New Study Reveals Nationwide System of Arbitrary Detention
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INTRODUCTION
As October 1 approaches, Chinese police nationwide are participating in the "clean-up" of cities to prepare for the 50th anniversary of the founding of the PRC by detaining thousands of people considered undesirable by urban authorities. As well as the obvious candidates—beggars, street children, garbage collectors, prostitutes and the homeless—a Human Rights in China investigation has found that people in low status occupations whose household registration (hukou) is not located in the city where they are working or doing business are at risk of being detained in such sweeps. Also, people exercising their constitutional right to complain to the authorities about official misbehavior or other concerns are routinely detained in this way.
Most of the people caught up in these sweeps are detained under a form of arbitrary detention called Custody and Repatriation (shourong qiansong, below C&R). Although this form of administrative detention now affects upwards of two million people every year, with some five to 20 percent of these being children, it has so far received no attention outside China, and little inside either. One of the reasons for this is that most of those detained under C&R belong to some of the most marginalized groups in society, generally referred to by the city authorities as "three nos personnel" (sanwu renyuan), having no papers, no job and no fixed abode. Another is that dissidents have rarely been detained in this way, with some exceptions noted in this report.
Human rights groups and international human rights institutions have consistently expressed strong concern about the various forms of arbitrary detention in the PRC. The principal focus of this concern has been on administrative detention under Reeducation Through Labor (RTL) and Custody and Investigation (C&I), and on the use of the criminal law, particularly laws on state security and secrets, to imprison people who have done nothing but peacefully exercise their rights.
The elimination of C&I through its incorporation in diminished form into the revised Criminal Procedure Law, passed in 1996, was seen as a significant step forward in curbing arbitrary detention in China. But under the rubric of administrative custody (shourong) and other administrative methods, the police and other agencies still have the power to detain people at will in much the same way C&I was used in the past. Thus we believe that although the "elimination" of C&I has certainly meant that the authorities have been forced to decide more quickly how to deal with dissidents following their detention, it appears likely that for ordinary people this has made little difference and that the abusive practices which characterized C&I still exist under another name.
A. Routinely abusive system
The detentions associated with "clean-ups" such as the one currently in progress are not only associated with special occasions like October 1, but also continue at varying rates throughout the year.
There is an annual increase in detentions in July, August and September. As well as preparing for National Day and Liberation Army Day on August 1, this yearly peak period is associated with various factors. First is the increased traffic of people and their use of various entertainment "services" associated with the high season for tourism. Second is the fact that following graduation from school, as well as during school holidays, many rural youngsters go to seek work in the cities. Third is the approach of the time for annual reporting of "achievements" by the police and civil affairs departments, which means that they are keen to increase the numbers of detainees to meet targets their leaders have set for numbers of persons to be cleared from the cities.
Administered jointly by the public security agencies and the civil affairs departments, C&R is generally considered as one of the "welfare" functions of the latter, which also runs welfare institutes and orphanages. But as with the latter type of institutions, the available information on conditions in C&R centers gives rise to serious concern. Plagued by the shortage of all elements necessary to run a proper welfare-oriented facility—including funds, proper buildings with appropriate sanitation, trained staff with defined powers, supervision and so on—such centers are often little more than holding pens for all those whose presence on the streets of the city is deemed unseemly or inconvenient, as well as anyone police officers decide to send there.
Unlike welfare institutes and orphanages, however, C&R centers are supposed to "educate" their inmates in a manner analogous to the "education" theoretically provided to those in Custody and Education (shourong jiaoyu, targeting persons engaged in prostitution and their clients) and Forced Drug Treatment centers (qiangzhi jiedu suo, for drug addicts and those caught using drugs), as well as in Reeducation Through Labor (laodong jiaoyang) facilities. The implication of "education" in this context is clearly that the inmates have done something wrong. Although the authorities do not consider C&R as a form of punishment but an administrative measure, it is clearly used as a penalty. Some of the provincial regulations on C&R explicitly allow for it to be employed as a punishment in certain circumstances.
Although it is targeted at indigent beggars and vagrants, the history of C&R demonstrates that it has consistently been used to clear the cities of those attempting to make a living there, or those people the authorities do not wish to have in a particular city. It has also been the enforcement arm of the state against those who defy the strict segregation imposed by the CCP in the 1950s between urban and rural China, designed to keep poverty out of the cities.
In the 1980s and 1990s, according to official sources, the categories of people who are potentially subject to C&R has been expanding rapidly, as a number of officials have complained in civil affairs journals. Based on incomplete statistics, we believe that in the 1990s, the numbers of people detained have more than doubled. Furthermore, some civil affairs officials complain that the police use the measure to detain people they cannot find legal means for holding in detention centers. C&R is used very flexibly, essentially allowing the police to detain anyone for any reason for as long as they choose.
C&R is now authorized by a national statute passed by the State Council in 1982, as well as by local regulations passed by particular provinces and cities. Under these regulations, the police and officials of the civil affairs departments may detain a person virtually indefinitely. There is no judicial procedure for determining whether this is appropriate, or whether the person in question falls into the category of people subject to such custody according to the regulations. Persons detained may appeal administratively, but as the people responsible for receiving the appeal are generally those in charge of the custodial facility in which they are detained, such appeals may be pointless or may even result in the detainee being subjected to abuse.
The fact that detainees have no rights to due process is only part of the problem. The lack of rights guarantees combines with a lack of supervisory systems, whether public or institutional, to allow abusive conditions inside the C&R centers. Official publications speak of the problem of "cell bosses" and crime within the centers, and some mention that there have been deaths as a result. They describe the mixed population they contain as creating a very "complicated" situation. This is hardly surprising when one facility may hold a mixture of the indigent and the homeless, street children, runaways, the mentally ill, victims of trafficking, unemployed migrants, people suspected of crimes, petitioners whose grievances have not been satisfactorily resolved and so on.
HRIC has six major areas of concern relating to this system of detention. First, the lack of due process, which makes it inherently arbitrary both because of the nature of the system itself and because of the confused legislative arrangements for it; second, the abusive conditions in the C&R centers and other administrative custody facilities; third, the inappropriate mixing of detainees who should be protected - including children, trafficked women and the mentally ill - with ordinary detainees; fourth, the way the system has become self-perpetuating and has a built-in incentive to maximize the number of detainees, since a significant proportion of the funds used to pay for staff and facilities comes from the labor of detainees and from moneys extorted from them and their families; fifth, this system violates not only international standards, but also Chinese law; and sixth, the lack of transparency within this system, for detainees and their families and for the society as a whole, which contributes to the abusive, discriminatory, rent-seeking nature of the system.
B. Sources of information
This report is based on a comprehensive review of documentary sources in Chinese and English, and on interviews with former C&R inmates and their families, as well as with informed individuals, including scholars. We interviewed around 20 people who provided information on over 30 specific cases, a selection of which are presented in Appendix I. Human Rights in China is grateful to all those who contributed to this project. Since the report covers a very broad range of issues and topics, it is necessarily a preliminary, cursory overview. We hope that it will encourage further research on some of these areas of concern.
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