Deep Observation: When “Sitting Dirty Ass” Is Interpreted as Managed: The Judicial Surveillance Crisis Behind Disputes

At the intersection of criminal proceedings and the protection of human rights, the designated residence surveillance system (hereinafter referred to as "residence") has always been a power area of high concern. This is intended to replace the compulsory measures of detention, if operated in a closed space without effective external supervision, very easily alienated to the lawless place to circumvent the baseline bound by the Criminal Procedure Law and the Convention against Torture.

Recently, five persons in Guangzhou Guangzhou County were compelled to sit on a hard bench for up to 15 hours per day for 30 centimeters, and for a month in a row, causing their hips to crumble, referring to the "no-track body punishment" and mental oppression in the execution of the case pushed the public opinion. More severe than law enforcement abuse, the Guangzhou County Prosecutor's Office, which undertook legal supervision responsibilities on the basis of "guaranteeing night rest" and "self-creating punishment standards", determined the act "not exceeded the necessary limit".

This is not only a common sense dispute about "what is corporal punishment", but also a typical public opinion supervision sample involving the improper application of legal principles and supervision of duty emptiness by the judicial organs.

In response to the complaint, the District Prosecutor’s Office split the mechanism of bodily punishment into “direct physical violence” and “variable bodily punishment that exceeds the necessary limits” and therefore concluded that “no excess limits” existed. This argument has significant deficiencies at the legal level. China’s Criminal Procedure Law, the Supervision Law and the Supreme Prosecutor’s relevant provisions do not give the District Prosecutor’s Office the power to create its own criteria for the “body punishment and variable bodily punishment” judgment. The “necessary limits” used by the Prosecutor’s Office say that there are no explicit legal provisions supported or judicial interpretations.

More importantly, according to the Law of Criminal Procedure, the restrictions accompanied by compulsory measures must comply with the “minimum infringement principle” and the “proportional principle”. The statutory purpose of surveillance of residence is only to prevent escape, confession or hinder investigation. Forcing the detained person to remain in an inappropriate position for a long time, with the prevention of escape has no causal relationship, its essence is to use physiological mechanisms to create pain, disrupt the will of the resident, has the characteristics of illegal interrogation and torture.

As the normalization of justice advances, traditional blasphemous physical violence is strictly restricted in the case area. However, in the closed reference environment, a more hidden "body and sensory deprivation of bodily punishment" is quietly emerging. Through the compulsion to maintain fixed sitting, standing and other bodily punishment, as well as the extreme control of basic physiological autonomy such as itching, drinking water, excretion, the case officers can thorough domestication of the detainees without leaving traces of physical beating.

Physical no beating wounds do not equate to no violation of human rights. Referred to inhabitants' buttocks and cracks, the objective physiological damage caused by continuous physical oppression has completely crossed the bottom line of humanity and law. Hardly interpreting such objective injury as "management norms" is providing compliance packaging for hidden violence.

Criminal proceedings are designed by the procuratorate to carry out residential supervision, aimed at building a firewall to prevent the exit of control of the administrative power and the investigative power.The provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the application and supervision of residential surveillance and surveillance in accordance with the law are clearly required, referring to bodily punishment abuse and other acts during the residence, the compulsory measures should be changed or lifted.

However, in this case, the supervisory mechanism shows obvious ineffectiveness characteristics. When the prosecutor investigates the facts of alleged bodily injury in the form of "eight hours of continuous sleep" to mask the damage to the process; in the application of the law, the self-created rules, should initiate the supervision duties of the correction procedure, alienated to the defence procedures that help the public security organs to execute the actions. When the legal conditions of "existence of physical punishment should be changed or lifted" are "currently corrected", the legal remedy channel has been substantially blocked.

The designated residency surveillance system has always been a sensitive area for human rights protection because of its high degree of closure. If the case authorities are allowed to arbitrarily deprive the detainees of their basic physical dignity in the name of management, and the supervisory authorities are allowed to digest violations on a self-creative basis, then the rule of law defense will be at risk of being layered down.

In the face of the common sense problem of "sitting your ass is not body punishment," the judicial system does not need a clever word game, but the courage of the rule of law and strict legal correction facing the problem. the higher level prosecutor's office should start the process of examination or supervision of the execution in a timely manner, determine the facts of body punishment in accordance with the law, seriously prosecute, cut off the path of alienation into extrajudicial detention, so that every judicial link can withstand the test of law and human rights.