RSDL has been used on numerous foreigners in China, where they have disappeared for 6 months or longer. RSDL has been used against human rights lawyers, as well as Ai Weiwei 艾未未, an artist. Let’s dive into China’s Criminal Procedure Law and see what the law actually says. Links to original Chinese documents as well as Google translations are provided. Here is some commentary and case studies
In summary, RSDL is the outcome of a criminal justice system which has tolerated, and indeed sanctioned, the use of informal places of detention. While the 2012 CPL places some restrictions on the situations in which residential surveillance in a designated location can be used, it has also helped to formalise the emergence of a dual track system in which certain categories of persons can be treated distinctly and with fewer human rights protections. All persons facing allegations of endangering national security, terrorist activities or major bribery face the risk of six months incommunicado detention under RSDL.
The legal justification for RSDL is to bypass detention time limits or to facilitate an investigation (CPL Article 72). In the current context in China, however, such investigations are generally not independent, and focus on charges which are often politically motivated. In addition to this problematic justification, detention in the form of RSDL inherently places detainees at high risk of torture and CID, and can lead to violations of other, related rights.
Criminal Procedure Law of the People’s Republic of China
(Adopted at the Second Session of the Fifth National People’s Congress on July 1, 1979
According to the second amendment of the “Decision on Amending the Criminal Procedure Law of the People’s Republic of China” at the Fifth Session of the Eleventh National People’s Congress on March 14, 2012)
Article 72: People’s courts, people’s procuratorates, and public security organs may conduct residential surveillance on criminal suspects or defendants who meet the conditions for arrest and have one of the following circumstances:
(1) Suffering from a serious illness and unable to take care of themselves;
(2) Women who are pregnant or breastfeeding their own babies;
(3) It is the sole supporter of people who cannot take care of themselves;
(4) Because of the special circumstances of the case or the need to handle the case, it is more appropriate to adopt residential surveillance measures;
(5) When the detention period expires and the case has not been settled, residential surveillance measures need to be taken.
Those who meet the conditions for bail pending trial, but the criminal suspect or defendant cannot provide a guarantor or pay a deposit, may be under residential surveillance.
Residential surveillance is implemented by the public security organs.
Article 73 Residential surveillance shall be executed in the residence of the criminal suspect or defendant; if there is no fixed residence, it may be executed in the designated residence. For suspected crimes of endangering national security, terrorist activities, or particularly serious bribery crimes, where execution in the residence may hinder investigation, the execution may also be carried out in a designated residence with the approval of the higher-level People’s Procuratorate or the public security organ. However, it shall not be executed in a prison or a special case-handling place.
In the case of residential surveillance in a designated place, except for those unable to notify, the family members of the person under residential surveillance shall be notified within 24 hours after the implementation of residential surveillance.
For criminal suspects and defendants under residential surveillance to entrust a defender, the provisions of Article 33 of this Law shall apply.
The People’s Procuratorate shall supervise whether the decision and implementation of residential surveillance in designated residences are legal.
Article 74 The period of residential surveillance in a designated residence shall be offset against the term of sentence. For those sentenced to control, one day of residential surveillance is equal to one day of sentence; for those sentenced to criminal detention or fixed-term imprisonment, two days of residential surveillance is equal to one day of sentence.
Article 75 Criminal suspects and defendants under residential surveillance shall abide by the following provisions:
(1) Not to leave the premises under residential surveillance without the approval of the executing agency;
(2) Not to meet with others or communicate without the approval of the executing agency;
(3) Arrive at the case in time during the subpoena;
(4) Not to interfere with the witness’s testimony in any form;
(5) Not to destroy or forge evidence or collude with confessions;
(6) Submit passports and other entry-exit documents, identity documents, and driving licenses to the enforcement agency for preservation.
Criminal suspects or defendants under residential surveillance who violate the provisions of the preceding paragraph and the circumstances are serious may be arrested; if arrests are needed, criminal suspects or defendants may be detained first.
Article 76: Enforcement agencies may use electronic monitoring, irregular inspections and other surveillance methods for criminal suspects and defendants under residential surveillance to supervise their compliance with the provisions on residential surveillance; during the investigation, they may monitor residential surveillance. The communications of the suspects are monitored.
Article 77 The people’s court, the people’s procuratorate, and the public security organs shall not release criminal suspects or defendants on bail pending trial for a maximum of 12 months, and residential surveillance shall not exceed six months.
The investigation, prosecution and trial of the case shall not be interrupted during the period of release on bail pending trial and residential surveillance. If it is discovered that criminal responsibility should not be pursued or the period of release on guarantee pending trial or residential surveillance expires, the release on security pending trial or residential surveillance shall be lifted in time. The person who is released on guarantee pending trial or residential surveillance shall be notified in a timely manner and related units.
This document is an English translation of the oversight of RSDL, Provisions on People’s Procuratorates’ Oversight of Residential Surveillance in a Designated Location , but did not find it very helpful in defining the law. Here’s a version of the original Chinese, though I don’t recognize the source.
China has ramped up its use of secret detention without trial, creating one of the most far-ranging systems of forced disappearance in the world, human rights activists warn in a report.
Tens of thousands of people have been subjected to “residential surveillance at a designated location” (RSDL), an anodyne, bureaucratic name for an Orwellian system…
The RSDL system allows security forces to hold people for months without charges or trial, which Safeguard Defenders described as “state-sanctioned kidnappings”.
Detained over time chart
The detained person’s family is meant to be notified that they have been taken into custody, but police “routinely bypass” this requirement and there is little contact with relatives or legal teams. “It is almost unheard of for police to permit lawyer access … or allow contact with family,” the researchers said.