New Type of Detention Marks China’s Intensifying Crackdown on Civil Society

Murky detentions under ‘residential surveillance on a designated location’ are an important tool in the ongoing campaign against Chinese lawyers and activists, effectively enabling torture against people in captivity. Taiwanese activist Lee Ming-che is most likely detained on the same premises.

 

Chinese human rights lawyer Xie Yang was released on bail last week after confessing to being “brainwashed” abroad while receiving training to “develop Western constitutionalism in China.” In the videotaped “confession,” which was made during a closed trial, Xie also asserted that he was never subjected to torture or received any bad treatment following his disappearance in July 2015 as one of about 300 lawyers and activists kidnapped by the authorities during the “709 crackdown” that summer.

His statement is particularly awkward since Xie earlier this year, when he had a chance to meet his lawyers, again described in detail the extensive torture that he was almost immediately subjected to after his disappearance. Apart from severe beatings, Xie was also kept awake for days on end while being deprived of water and food. “I’m going to torment you until you go insane”, said one of his interrogators while Xie had to sit in stressful positions for up to 20 hours, adding that he could expect to walk out from his detention not as a lawyer, but as “a cripple.”

The worst torture sessions took place while Xie was being held under “residential surveillance on a designated location” (指定居所監視居住), or “RSDL,” a new form of detention introduced into Chinese criminal law in 2013. While “residential surveillance” might not sound all that terrible, it is a completely different thing when it takes place at a “designated location” rather than in the home of a suspect.

According to Article 73 of the Criminal Procedure Law (刑事訴訟法), residential surveillance can be enforced at a designated location when an individual in suspected of crimes that endanger state security, involving terrorist activities or significant bribery. The law also says that the family should be notified within 24 hours upon the enforcement action, and the detained person has the right to meet a lawyer within 48 hours (Article 37).

But at the same time, the Criminal Procedure Law states that the family will not be notified if notification “can not be processed,” and that the right to meet with a lawyer can be revoked by police if doing so “impedes with the ongoing investigation.” Since 2016, a detainee also has the right to receive visits from state prosecutor every week as part of an oversight system meant to ensure that no ill-treatment occurs during RSDL. But this provision can also be denied by police or state security on the grounds of impeding an investigation.

While “residential surveillance” might not sound all that terrible, it is a completely different thing when it takes place at a “designated location” rather than in the home of a suspect.

Unsurprisingly, those “exceptions” have become norm, and in reality suspects under RSDL may only meet or speak to other parties with permission from the police. As a result of the exceptions, the authorities more often than not refuse to tell families as well as lawyers where a suspect is being held. RSDL also allows authorities to detain individuals at a secret location for up to six months, with no legal process whatsoever required. In plain language, that means the usual time limits of criminal detention before a formal arrest can be ignored, and the suspect can be held incommunicado for half a year.

This, in turn, opens the door for maltreatment and torture, as a detained individual is totally isolated from the surrounding world. No wonder Xie was told by his interrogators that they handled his case on behalf of the Party Central, and that not a “single piece of evidence” would be found if they decided to kill him on the spot.

Alas, the case of Xie Yang is far from an isolated one. Also last week, Li Heping, another lawyer abducted in the summer of 2015, was finally reunited with his family after receiving a three-year suspended prison sentence for “subversion of state power” in yet another secret trial.

But it was a different man who returned home. According to friends, Li seemed to have “aged 20 years” during his detention: he was worryingly thin and his remaining hair was all white. His wife told The Guardian how she was shocked by hardly recognizing her husband, whom she described as having “wasted away” by the suffering and cruelty he was subjected to during his detention, including forced medication, electric shocks, starvation, sleep deprivation and being shackled in a stooping position 24/7 for a month’s time.

Earlier this year, Li Heping’s brother Li Chunfu, also a lawyer, was released after 18 months of detention. Immediately his family noticed that is mind had been “shattered” as a result of cruel torture during his time in RSDL. He was unable to talk in whole sentences, and instead was constantly muttering to himself.

When information of torture against Xie, the Li brothers and several other human rights lawyers leaked out earlier this year, 11 countries issued in private a joint statement addressed to Guo Shengkun, China’s Minister of Public Security. The letter urged the Chinese government to investigate the “credible claims” of torture against the lawyers, and also to bring an end to RSDL. “Detaining people without any contact with the outside world for long periods of time is contrary to China’s international human rights obligations,” the statement said.

 

Foreign nationals in RSDL

RSDL breaches a whole list of conventions that China is obliged to follow, including the United Nation’s International Convention for the Protection of All Persons from Enforced Disappearances, as well as set of rules formulated by the Human Rights Council and the United Nations Working Group on Enforced or Involuntarily Disappearances, to name a few.

In its 2015 review of China the Committee Against Torture, a United Nations body, stated as a matter of urgency that China should repeal “the provisions of the Criminal Procedure Law that allow suspects to be held de facto incommunicado, at a designated location, while under residential surveillance.” But instead of repealing the law, China is trying to justify it by legalizing exceptions on sweeping grounds of national security, even though international is clear on the point that no such exceptions are allowed.

It is likely the case that Taiwanese activist Lee Ming-che is currently being held under RSDL, even though this has not been officially confirmed by Chinese authorities. Ten days after his March 19 disappearance, Beijing finally revealed that Lee was in custody on suspicions of “endangering state security.”

According to Chinese criminal law, Chinese police can only hold a suspect for 30 days under normal criminal detention (刑事拘留) before asking the procuratorate for approval of a formal arrest. In Lee’s case that has obviously not yet happened, and the 30-day-deadline passed already in mid-April. Besides, the suspicion of “endangering state security” points to detention under residential surveillance on a designated location. If so, Chinese police could in fact, without the approval of prosecutors or judges, deny Lee access even to Chinese lawyers for six months, let alone Taiwanese diplomatic staff.

And Lee wouldn’t be the first foreigner to be held under such premises. When Swedish NGO director Peter Dahlin was kidnapped in his Beijing home in January 2016, the Ministry of Security proceeded to put him under residential surveillance on a designated location. He told me that, according to law, RSDL cannot be performed at a detention center or prison or any official part of the judicial system. Instead, the detention takes place at state guesthouses or military apartment complexes, redesigned for the purpose of solitary confinement.

The “location” in Dahlin’s case was a secret custom built prison, possibly a former hotel, designed to hold eight detainees on eight separate floors. As a foreign national, Dahlin was not subjected to any physical torture during the 23 days he spent at that location. Dahlin’s interrogators did deprive him from sleeping, but after Dahlin told the supervisor that sleep depravation was against the United Nations Convention against Torture that China has ratified, he was allowed somewhat decent sleeping hours, even though the supervisor lost temper and accused Dahlin of having a bad attitude and “lacking respect.”

Naturally, similar requests by Chinese citizens would never be obeyed, and on the very floor above him Dahlin could hear his colleague being badly beaten, apparently for not agreeing to denounce the Swede as a foreign spy.

What surprises Dahlin even more than the bad treatment of lawyers is the fact that many observers, journalists or even diplomats seem to lack knowledge of or interest in residential surveillance on a designated location as a form of detention.

During the crackdown in the summer of 2015, many observers of Chinese human rights were relieved to hear that lawyers and activists would be put under residential surveillance on a designated location, thanks to an initial feeling that “residential surveillance” would carry less restrictions than formal detention. But as the exiled lawyer Teng Biao pointed out that same summer, RSDL is rather a more severe form of detention, since the rules of formal detention centers can be ignored. And because the suspect is held outside of legally designated places of custody, evidence of torture will be more difficult to obtain.

Dahlin also points out that with its current exceptions, RSDL may qualify as a crime against humanity, as stated in Article 7 of the Rome Statute which forms the basis for the International Criminal Court in The Hague. According to the Rome Statute, forced disappearance qualifies as a crime against humanity when committed as part of a widespread or systematic attack against a civilian population, which is exactly what is happening according to the earlier mentioned United Nation rules and conventions.

 

Knowledge and attention vital

With this in mind, it is particularly worrying, as Dahlin told me earlier this year, the Swedish embassy in Beijing seems to lack knowledge of RSDL and did not contact him for information after he was deported from China in late January 2016. This, said Dahlin, is “almost unbelievable” given the fact that Swedish citizen Gui Minhai was being held at the same premises and is still in detention.

Instead, Dahlin himself sent an e-mail to the Swedish embassy with some basic information about RSDL and his experiences in detention. Swedish diplomats promised to contact him again for a debriefing — something that, strangely enough, never happened.

The above-mentioned 11 country joint statement addressed to China’s Minister of Public Security provoked a fierce response from Chinese authorities. Within days an extensive smear campaign against the detained lawyers and Western media was launched, including articles and broadcasts in Chinese state media with headlines such as “The Truth about ‘Xie Yang Torture’: It is a Fabrication Catering to Western Media.”

It is in the interest of every foreign diplomatic mission in China to speak up against RSDL since it is now also being used routinely against foreign nationals.

The campaign included Xie’s own defense lawyer Jian Tianyong “confessing” on camera that he was involved in fabricating the claims of torture. Jian himself was placed under RSDL in December 2016, after spreading information about the cruel torture that his client had told him about during a brief visit last year. Hence, the lawyer of the lawyer is also under RSDL and subject to torture. China Human Rights Defenders reported last week that as a result of the ill-treatment that he has received, Jian can no longer stand up on his feet.

The fierce response from the Chinese authorities shows that they are sensitive and vulnerable to criticism from the outside, especially in the form of joint statements from several countries, diplomatic missions or organizations. Given that lawyers are still being tortured under RSDL as we speak, and the fact that local police in Suzhou and other locations this year began to use RSDL for non-national security crimes, it is of outmost importance to keep pressuring China to abandon this form of detention.

If the fierce response and the smear campaign that followed the joint statement by the 11 countries does not provoke any further attention, it will without a doubt be viewed by the Chinese government as a sign of weakness. Furthermore, it is in the interest of every foreign diplomatic mission in China to speak up against RSDL since it is now also being used routinely against foreign nationals. In the case of Lee Ming-che, Taiwanese and foreign media must also pressure China for answers on whether he has been formally arrested or is being held under RSDL, especially since the latter constitutes a breach of international law.

 

Top photo: http://cpd.com.cn

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