Here’s the original text and a translation (by myself and my RA Changyun Pan) of a recent insightful article by 王亮亮 Wang Liangliang on the problems of residential surveillance at a designated location. Thanks to Susan Finder for bringing it to my attention. There’s a Word version here.
Aug. 4, 2021
Five Major Problems of Residential Surveillance at a Designated Location
王亮亮 – 天下说法
Residential surveillance at a designated location (hereinafter “RSDL”) is one of the five coercive measures provided for in the Criminal Procedure Law. Understood solely as a legal concept, it is certainly more relaxed and humane than detention and arrest. But in judicial practice is, on the contrary, completely the opposite of the black-letter rule. This measure of residential surveillance, in which the police designate a specific residence, in fact puts the criminal suspect or defendant in a situation where the public security organs coercively restrict his personal freedom without any supervision. Specifically, there are five major problems.
I. The conditions for the application of RSDL are unclear
RSDL is first of all residential surveillance. It occurs in two different situations. The first is based on “humanitarian considerations,” such as pregnant or nursing women, or those who are unable to care for themselves do too serious illness.
The second situation is where the public security organs find that adopting residential surveillance is more appropriate because they believe that the case involves special circumstances or that handling the case requires it. This is called “the needs of the case”, but the standard for what constitutes quote needs of the case unquote is quite unclear. In actual application, the term can turn into a general basket and everything can be interpreted as “the needs of the case”, to the point that the needs of the case for evidence gathering can be stuffed into it. Therefore, the legitimacy of this way of gathering evidence faces a severe test.
Even more important is the fact that the criminal procedure law stipulates that when imposing RSDL, the conditions for arrest must be met. So who judges whether the conditions for arrest have been met? The normal procedure is for the procuracy to make this judgment and approve the arrest. This is the constraint that procuratorial power exercises over investigative power. But with RSDL, the decision and the implementation are both in the hands of the public security organs. This allows the public security organs to systematically evade procuratorial supervision and directly use residential surveillance. This method, which lies outside of regular procedures, will invariably have loopholes: a coercive measure that limits or completely eliminates citizens’ personal liberty has not been approved by the procuracy.
II. RSDL is used as a method of investigation and evidence collection
The Criminal Procedure Law provides that where the execution of residential surveillance at the residence of a criminal suspect or defendant suspected of compromising national security or terrorist activities may obstruct criminal investigation, the surveillance may be executed at a designated residence with the approval [of the public security organ at the next higher level]. In other words, the statute clearly stipulates that there are only two kinds of crimes under which RSDL can be openly executed. This is the principle of exception to residential surveillance.
However, in practice there are clearly not many cases of these two kinds of crimes, while RSDL is in fact applied more broadly, particularly in cases of organized crime and vice, in which RSDL has become virtually a standard procedure. That is because the public security authorities have the power of cross-regional jurisdiction and cross-regional case handling. For example, your residence is in Huai’an, but your case is designated to be handled by Nantong public security organs. In this case, the fact would be created that the suspect has no fixed residence in Nantong, where the designated organ handles the case. Therefore, residential surveillance can be executed at a designated location. In other words, although the suspect may have a fixed residence, the public security organs, through cross-regional jurisdiction, can make the suspect or the defendant’s fixed residence disappear, so that they can execute RSDL. This provides a powerful institutional tool for public security organs to “gather evidence”.
The maximum period of RSDL is six months, during which the suspect is not allowed to meet or communicate with anyone without the approval of investigative organs, and is almost completely isolated from the outside world. In other words, the only difference between RSDL and detention or arrest is that it is not executed at a detention center. However, a detention center itself is the site for supervision over investigation. Conducting investigation at a designated location is the same as eliminating all the limitation and supervision over it. The legality of evidence collection will rest completely on the investigators’ self-awareness, which tends to be unreliable. This is also why RSDL has become a standard procedure in cases involving organized crime or vice.
III. RSDL forces lawyers to get “approval in substance” to meet the client
Although RSDL cannot be executed in custody or case handling locations, the designated locations, regardless of whether they are a hotel, a hospital, or another “case handling site”, are uniformly managed by the public security organs. Outsiders cannot get any information about them. If a lawyer wants to meet a client, they have to have the consent of the case handling organ, which is in fact a kind of approval.
According to the law, there are only two types of crimes where lawyers need approval to meet their clients. These two are national security crimes and terrorist crimes, which are also the only two types of crimes where RSDL can be applied. Other than these two, lawyers do not need approval to meet clients in criminal cases. But because of the existence of “the needs of the case” and cross-regional jurisdiction, the fact of the suspect or the defendant having no fixed residence will be created. If residential surveillance is to be executed, the location will be designated by the public security organs. Lawyers will have to apply to meet the client, and in turn have to ask for public security organs’ approval. This is a combination blow with every part linked with each other, the fundamental purpose of which is to limit lawyers’ right to meet with their clients.
IV. The failure of supervision of RSDL
Although “the people’s procuratorates exercise supervision over the legality of the decision and execution of residential surveillance at a designated location”, and the criminal enforcement department of the procuratorate also reviews matters such as the necessity for RSDL and detention, the problem is that RSDL is theoretically not detention, which means the procuratorate cannot carry out a “review of the necessity of detention” over RSDL decisions. In addition, the public security organs can utilize designated jurisdiction or set up a “special case group” to handle criminal cases, which leads to a strange phenomenon: the basic-level public security organ that issues the RSDL document is not responsible for the specific investigation and handling of the case, but acts only as an external coordinating body, while the specific investigation and handling of the case is conducted by the public security organ at the next higher level. At this point, if the basic-level procuratorate asks the basic-level public security organ for information of the case, the basic-level public security organ will shirk its responsibilities on the ground that the specific case investigation is run by a higher-level organ, and the higher-level procuratorate is unable to supervise the case, because RSDL is not reported to the procuratorate so that it has no specific information about the case. In the end, the result is that it seems that the procuratorate has sufficient supervisory power, but in fact, it is in a dilemma and there could even be a dangerous vacuum in the supervision of RSDL.
As a result, during the maximum period of six months of RSDL, suspects and defendants are unable to meet with their lawyers or obtain effective relief. This is a serious violation of the spirit of human rights protection of the Constitution and the Criminal Procedure Law.
V．Conversion of RSDL into Substantive Detention
RSDL is characterized by a high degree of restriction on personal freedom and extremely long duration, which are in contradiction with the original legislative intent of having residential surveillance be an alternative to detention. If the system allows the case handling organ to execute residential surveillance on suspects or defendants who “meet the conditions of arrest” based on their own “needs of the case”, there is no doubt that it creates chances for it to circumvent the statutory arrest procedures and to gather evidence illegally by the limiting or even deprivation of citizens’ personal freedom.
In judicial practice, most of the extortions of confession by torture occur before the suspect or defendant is sent to a detention center, which is why the Criminal Procedure Law clearly stipulates that the detained or arrested person should be sent to a detention center immediately after detention or arrest. The interrogation by the case handling officer should also be conducted in the detention center, coupled with the audio and video recording system and the rule of excluding illegal evidence, etc.
As a result of the existence of RSDL, the more complete the legal stipulations are regarding conditions for arrest, the arrest approval process, and the system for preventing the extortion of confessions by torture, the greater the likelihood that RSDL will be abused. It is like a beautiful teapot with a leak at the bottom. It just looks good on the outside, but it cannot perform its valued function.
The purpose of establishing a residential surveillance system is to restrict the suspect or defendant from leaving their residence and to ensure the smooth conduct of criminal prosecution proceedings. With existing technologies, the use of electronic monitoring equipment, GPS positioning and other technical measures can fully achieve the same purpose.
To put it a little extremely, abolishing residential surveillance will not affect the criminal procedure in any way, and can even activate the institutional value of the Criminal Procedure Law. For criminal suspects who do not need to be detained, it is completely reasonable to grant bail; for those who need to be detained, [the authorities can] take measures that have a complete supervisory system, such as detention or arrest. Not until then can we return to the value of human rights protection of Criminal Procedure Law!
 Translated by Donald Clarke and Changyun Pan.
 Translator’s note: Probably “RSDL” is intended here.