Police Updated RTL Rules in 2005, But Have They Complied?

A reeducation through labor center in Guizhou Province. Photo: Southcn.com

In a previous post, Dui Hua published a translation of regulations issued by the Ministry of Public Security in 2002 that govern many of the procedures connected with reeducation through labor (RTL). Not long after those regulations were first introduced, the National People’s Congress announced plans to replace RTL with a system of “education and correction.” A new Public Security Administration Penalty Law gave new legal grounding to all administrative punishments available to the police (other than RTL, which is formally considered “compulsory education,” rather than a kind of punishment). At the time, it seemed that reform of RTL was imminent.

In apparent response to these legislative developments, the MPS introduced new RTL policies in 2005 (translated below) in the form of an Implementation Opinion Regarding Further Strengthening and Improvement of Reeducation through Labor Review and Approval Work (hereafter, the “2005 Opinion”). Although many of these policies are exhortatory in nature and others concern institutional arrangements, this document also introduced several policy changes with important ramifications for those facing RTL.

First, a cap was placed on the length of time that a person could be sent to RTL. Though previous regulations allowed RTL to be imposed for between one and three years, with the possibility of an extension of up to one year, the 2005 Opinion states that most RTL decisions should henceforth fall in the range of one to one-and-a-half years, with a two year maximum for pickpocketing, drug use, and recalcitrant “cult” beliefs.

Second, earlier restrictions on eligibility for pre-decision hearings were loosened. The 2005 Opinion explicitly overruled the provision in the 2002 MPS regulations denying such hearings to individuals being sent to RTL in connection with “cult” activities or drug use, stipulating that hearings be available for all suspects except in cases involving state secrets or “simple cases” in which the suspect either admitted to an offense or did not contest the RTL decision.

Third, individuals facing RTL were given an explicit right to engage a lawyer to provide them with legal assistance during the period preceding the RTL decision. The 2005 Opinion stipulates that lawyers can apply to meet with suspects, review case files, and submit opinions to the RTL review-and-approval panel, either at the pre-decision hearing or in writing. A suspect’s access to a lawyer can be denied, however, if the case is deemed to involve state secrets.

Given the notoriously arbitrary way in which China’s state-secrecy provisions are applied—especially with respect to criminal investigation—this restriction on lawyers’ right to meet with suspects is cause for concern. Similar provisions in the 1996 Criminal Procedure Law (the likely model for the RTL rule in question) have been amended in the revised Criminal Procedure Law that took effect on January 1. If the RTL rules are revised to follow suit, it could mean restrictions for lawyers representing suspects charged with offenses under the category of “endangering state security”—a potentially broader category than that in the earlier state-secrets exemption.

Finally, new requirements were added to the system of non-custodial RTL. Each month, persons serving non-custodial RTL sentences would be required to attend a legal-education session and perform between 10 and 30 hours of community service. These elements resemble features of the community corrections system that has been proposed to replace RTL in the future.

It is not clear how consistently any of these new policies have been enforced. For example, records from Dui Hua’s database of prisoner information suggest that, since 2006, RTL management committees have continued to impose RTL sentences of more than two years, though there appear to be fewer of these longer sentences than before the 2005 Opinion.

Part of the reason why implementation may have been inconsistent is that the 2005 Opinion reflects internal policies with no formal normative status outside of the public security system. As such, their enforcement is largely reliant on the commitment of the public security system to regulate itself. Although individuals facing RTL may challenge RTL decisions in court through administrative litigation, it would be difficult, if not impossible, to use non-compliance with these policies as the basis for such a challenge. Instead, non-compliance with the 2005 Opinion could only really be pursued through administrative reconsideration—an administrative appeals process that does not involve court litigation and generally relies upon the police to police themselves.

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Ministry of Public Security Notice: click to expand

Ministry of Public Security Notice on Issue of “Implementation Opinion Regarding Further Strengthening and Improvement of Reeducation Through Labor Review and Approval Work”

MPS Legal [2005] No. 292

To the public security departments and bureaus of each province, autonomous region, and directly administered municipality and the Xinjiang Production and Construction Corps Public Security Bureau:

In order to implement law enforcement for the people and put into practice the spirit of the central legal institutional reform [agenda], standardize law-enforcement behavior, and promote fair law enforcement, the Ministry of Public Security (MPS) issued the MPS Notice Regarding Further Strengthening and Improvement of Reeducation Through Labor Review and Approval Work (MPS Notice [2005] No. 58) on August 25, 2005. In order to ensure the correct and effective enforcement of that notice, the MPS enacted the Implementation Opinion Regarding Further Strengthening and Improvement of Reeducation Through Labor Review and Approval Work, which is hereby issued to you for your compliance and implementation. At an appropriate time in 2006, the MPS will arrange to inspect the implementation situation in each locale and promote effective enforcement experiences and methods through the use of on-site meetings, experience-exchange meetings, and other fora. Please report any problems encountered during [reeducation through labor] work to the MPS in a timely manner.

September 13, 2005

Implementation Opinion Regarding Further Strengthening and Improvement of Reeducation Through Labor Review and Approval Work

Further strengthening and improvement of reeducation through labor (RTL) review and approval work is an important measure in the MPS effort to put into practice the spirit of the central legal institutional reform [agenda] and a major act for fully raising the law-enforcement level of public security organs. In order to ensure the correct and effective implementation of the MPS Notice Regarding Further Strengthening and Improvement of Reeducation Through Labor Review and Approval Work (MPS Notice [2005] No. 58, hereafter “the Notice”), the following implementation opinions are hereby offered in response to relevant problems:

     I. Regarding the Legal Basis for Reeducation Through Labor

1. The legal basis for RTL is the State Council Decision on the Issue of Reeducation Through Labor and the State Council Supplementary Regulations on Reeducation Through Labor, both approved by the National People’s Congress (NPC) Standing Committee; the Public Security Administration Penalty Regulations of the PRC, the Decision on Prohibition of Drugs, and the Decision on Strict Prohibition of Prostitution, passed by the NPC Standing Committee; the Trial Measures on Reeducation Through Labor, issued by the MPS under approval of the State Council; the MPS Regulations on the Handling of Reeducation Through Labor Cases by Public Security Organs (hereafter, “the Regulations”); etc. Public security organs in each locale shall review and approve RTL in strict accordance with the applicable targets and procedures as set out in the provisions of the aforementioned laws, administrative regulations, normative documents, and the Notice.
   
2. According to Article 76 of the Public Security Administration Penalty Law of the PRC, compulsory education measures may be used in accordance with [the relevant] state regulations against those who “lure, shelter, or introduce another person to engage in prostitution”; “produce, transport, duplicate, sell, or lend pornographic materials including books, periodicals, pictures, movies, and audio-video products, or disseminate pornographic information by making use of computer information networks, telephones, or other means of communications”; or “provide conditions for gambling for the purpose of making profits, or participates in gambling with a relatively large amount of money” and who refuse to reform despite several attempts at admonition. Here, “compulsory education measures” means RTL; “in accordance with the relevant state regulations” means in accordance with the provisions of the aforementioned laws and administrative regulations; “refuse to reform despite several attempts at admonition” means again committing one of the three aforementioned acts, without warranting criminal punishment, after having been fined, given administrative detention, custody and education, or RTL in accordance with the law for the aforementioned acts. Since the implementation on March 1, 2006, of the Public Security Administration Penalty Law of the PRC, public security organs in all locales must operate strictly in accordance with the aforementioned provisions.
   

     II. Regarding Making Full Use of RTL to Combat Unlawful Offenses in Accordance with the Law

3. Public security organs at all levels must handle RTL cases in strict accordance with the law, making full, lawful use of RTL to combat unlawful offenses and protect social stability and public order while also firmly fostering consciousness of rule of law and human rights protection and earnestly preventing the negative consequences caused by improper use of RTL.
   
4. With respect to those unlawful offenders who meet the criteria for RTL, especially those unlawful offenders who disrupt social order and affect the public’s sense of safety, public security organs must resolutely request and approve RTL in accordance with the law and must not simply issue public-security-administration penalties or fail to investigate and issue punishment in accordance with the law.
   
5. The case-handling units of public security organs that are in charge of things such as public order, criminal investigation, and drug enforcement must firmly foster consciousness of the law, evidence, and procedure and make efforts when investigating and obtaining evidence to promptly collect and firm up evidence and accurately determine the facts and nature of the unlawful offense; legal-affairs units and RTL review-and-approval units must strengthen legal verification, follow strict review and approval procedure, and earnestly raise the quality of cases.
   
6. Public security organs must not downgrade [cases] to RTL where, in accordance with the law, criminal responsibility ought to be pursued; must not upgrade [cases] to RTL where, in accordance with the law, they ought to be handled through public-security-administration penalties or other means; must not approve RTL where the facts are unclear or the evidence is insufficient; and must not use RTL to covertly extend the custody period when investigation of a suspected offender cannot be concluded within the statutory custody period.
   

     III. Regarding the Issue of Attorney Representation in RTL Cases

7. In order to protect citizens’ lawful rights and interests, after the case-handling units of county-level public security organs or prefectural- or provincial-level public security organs have requested RTL, where the person suspected of an unlawful offense or his or her legal representative requests to appoint [the suspect’s] guardian, friend, or relative or to hire a lawyer to provide legal assistance on his or her behalf, the prefectural- or provincial-level public security organ shall give its approval. However, with respect to cases that involve state secrets, the public security organ, in line with the procedural provisions for handling criminal cases, shall refuse to give its approval and explain the reason. So-called “cases that involve state secrets” means cases in which the circumstances or nature of the case involve state secrets; cases cannot be treated as cases involving state secrets [only] because, during the process of the investigation, relevant documents or opinions about the handling of the case were required to be kept secret.
   
8. A lawyer acting as representative may meet with and provide legal assistance to the person suspected of an unlawful offense as well as participate in proceedings such as hearings. Where a lawyer requests to meet with a person in custody on suspicion of an unlawful offense, public security organs, in line with the procedural provisions for handling criminal cases, must arrange a meeting within 48 hours.
   
9. From the day a lawyer is named as representative, he or she may consult and excerpt from documents relating to the facts of the unlawful offense; other representatives may, with approval from a prefectural- or provincial-level public security organ, also consult and excerpt from the aforementioned documents or meet with the person suspected of an unlawful offense.
   
10. Where there has been no application for a hearing, the public security organ must consider the opinions of the lawyer or other representative before convening the meeting [to review and approve the RTL case]. The public security organ shall accept lawful and reasonable opinions made by the representative; where opinions are not accepted, the public security organ must explain its reasoning in the RTL decision.
    

     IV. Regarding the Issue of Fully Implementing the Hearing System

11. Prior to issuing an RTL decision, except in cases involving state secrets or simple cases where the person suspected of an unlawful offense has admitted to the facts of the unlawful offense or does not contest the ruling, the public security organ must inform the person suspected of an unlawful offense that he or she has the right to apply for a hearing. The scope for hearings is no longer bound by the provisions of Article 25 of the Regulations which excludes cases involving “organizing or using a cult to undermine the implementation of national laws and [cases involving] smoking, ingesting, or injecting drugs.”
    
12. Public security organs shall no longer arrange for hearings in simple cases where the person suspected of an unlawful offense has admitted to the facts of the unlawful offense or does not contest the ruling. So-called “simple cases” means cases where the facts of the case are clear, causality is certain, the number of people involved is relatively few, and it is not necessary to review the evidence from all sides, e.g., cases involving smoking, ingesting, or injecting drugs. So-called “does not contest the ruling” means that there is no difference of opinion with respect to the proposed RTL decision.
    

     V. Regarding the Issue of Shortening the RTL Duration

13. When deciding on the duration of RTL for a person who has committed an unlawful offense, generally limit [the duration] to the three levels of 1 year, 1 year and 3 months, and 1 year and 6 months. For those who commit pickpocketing; smoking, ingesting, or injecting drugs; or organizing or using a cult to undermine implementation of national laws and refuse to reform despite several attempts at admonition or prove difficult to reform through education, as well as persons who have committed an unlawful offense and meets the conditions for heavier punishment under Article 47 of the Regulations, it may be decided to impose RTL for 1 year and 9 months or 2 years.
    
14. If, during the time that RTL is being served, a public security organ finds that the person upon whom RTL has been imposed has committed unlawful offenses for which criminal responsibility has not yet been pursued, it may decide to impose RTL in accordance with the law if [the circumstances] meet the criteria for RTL; however, the combination of the duration of the new RTL decision and the remaining duration generally must not exceed 2 years.
    

     VI. Regarding the Issue of Expanding the Scope of Non-Custodial RTL

15. In addition to the scope for applying non-custodial RTL set out in Articles 11 and 54 of the Regulations, a decision of non-custodial RTL may be issued at the same time that RTL is decided in accordance with the law for persons who show a sincere expression of regret and who will not endanger society if not sent to an [RTL] facility. However, under any of the circumstances set out in Article 55 of the Regulations, non-custodial RTL must not be [imposed]. So-called “sincere expression of regret” means things such as sufficient recognition that one’s actions have violated the law, a willingness to accept legal sanctions, a willingness to accept and obey monitoring and inspection by the relevant agencies, and an indication of active participation in public service. So-called “will not endanger society” means things such as the ability of a person sanctioned with RTL to obey the law and regulations and MPS regulations on oversight management while under non-custodial RTL and that he or she will not abscond or re-offend.
    
16. Public security organs must not collect a non-custodial-RTL bond from a person on whom non-custodial RTL has been imposed.
    
17. For persons serving non-custodial RTL, the public security police station in their place of residence shall, together with their family, school, work unit, neighborhood (village) committee, etc., carry out oversight and help-and-education, and arrange for them to go once a month to the local township, town, or subdistrict [government office], police station, or neighborhood (village) committee to study relevant details of the criminal law, public security administration penalty law, legal knowledge about RTL, and MPS regulations regarding oversight and management and, according to the different circumstances of each individual serving non-custodial RTL, arrange for him or her to perform 10 to 30 hours of public service per month in local old-age homes, orphanages, or other welfare organizations to help him or her turn over a new leaf as soon as possible.
    

     VII. Regarding Strengthening Oversight Work

18. As a member of the RTL management committee, the public security organ must actively accept the guidance and oversight of the RTL management committees at the same or superior administrative levels; periodically (at least once at mid-year and once at year-end) report on its work to the RTL management committee at the same administrative level; and request that the RTL management committee at its own administrative level review and decide on major matters such as annual RTL work arrangements, policy demarcations, and funding; coordinate the resolution of problems associated with RTL approval and implementation; and study and make decisions about major influential or complex and difficult RTL cases occurring in its own region or nationwide.
    
19. Where the organization of the RTL management committee at the same administrative level is not robust or personnel arrangements have not been made in a timely manner, a public security organ must take the initiative to request that the people’s government at that administrative level strengthen the organization, make immediate personnel arrangements, and increase the number of member units.
    
20. Public security organs in all locales must consciously accept the oversight of the people’s procuratorate, the people’s court, and the people. Where, through inspections or in handling letters and visits from the public, the people’s procuratorate [office] stationed in the [RTL] facility discovers that a public security organ has made an unlawful RTL decision and provides a recommendation to the public security organ for how to remedy the problem, the public security organ shall promptly conduct an examination in accordance with the law. If the examination finds that there were in fact errors, remediation must be carried out in a timely manner in accordance with the law.
    
21. Provincial-level public security organs must conscientiously carry out work on administrative reconsideration of RTL and actively promote a system to openly solicit opinions regarding RTL-reconsideration cases. In administrative litigation regarding RTL, a responsible person of the public security organ that issued the RTL decision [in question] must appear in court to respond to the litigation.
    
22. Public security organs must resolutely enforce all legally effective administrative reconsideration decisions, administrative litigation verdicts, and compensation decisions related to RTL. After a public security organ has been found liable for payment of state compensation in accordance with the law, it shall order leaders or police officers whose intentional [acts] or gross negligence [were responsible] to pay some or all of the compensation amount.
    
23. Public security organs must, in strict accordance with the requirements of the Regulations, strengthen internal law-enforcement oversight, earnestly place the handling of RTL cases within the scope of law-enforcement quality performance appraisals, and strengthen inspection of law-enforcement. Where it is discovered in the course of law-enforcement oversight that an excessively broad scope of targets has been applied or the review and approval of RTL has violated procedure, remediation must be conscientiously carried out in accordance with the law and responsibility for the mistakes pursued from the relevant leaders and police officers in accordance with regulations.
    

     VIII. Regarding the Issue of Strengthening Work Guarantees

24. Public security organs at all administrative levels must fully understand the major significance of strengthening and improving RTL review and approval work and earnestly carry out related work. Public security organs at the prefectural level and above must set up RTL review and approval offices before the end of 2005 and provide appropriate personnel to carry out review and approval work, as well as a full-strength leadership group. In order to meet the needs of carrying out obligations in accordance with the law, the RTL review-and-approval office shall set up at least one [review and approval] panel. Where there are a great number of cases for review and approval, panels may be set up based on the average annual standard of one per 300 cases reviewed.
    
25. Public security organs must include operational RTL funding and equipment and funding for RTL review and approval personnel in the budget for the public security organ at that administrative level under separate line items. The RTL review and approval office must be provided with the vehicles, communication tools, computers, audiovisual recording equipment, and other equipment necessary for handling cases and office work, and a sufficient number of hearing rooms should be established based on the work situation.
    
26. Public security authorities must strengthen operational training for RTL review and approval personnel in order to continually raise their professional quality and law-enforcement capacity
    
27. In order to ensure the smooth introduction and actual effectiveness of improvement measures, the RTL review and approval office must actively report on its work to the RTL management committee at its own administrative level, highlighting analysis of new circumstances and new problems encountered during review and approval work by promptly summarizing practical experience, reviewing real effectiveness, and adjusting improvement measures to ensure work yields practical effectiveness.
    

December 12, 2005

Chinese Source（原文）:  公安部关于印发《关于进一步加强和改进劳动教养审批工作的实施意见》的通知 http://www.cixi.gov.cn/art/2008/6/19/art_17970_280231.html Click on icon to expand

公安部关于印发《关于进一步加强和改进劳动教养审批工作的实施意见》的通知

公法[2005]292号

各省、自治区、直辖市公安厅、局，新疆生产建设兵团公安局：

        为深入落实执法为民思想，贯彻中央司法体制改革精神，规范执法行为，促进执法公正，公安部于2005年8月25日印发了《公安部关于进一步加强和改进劳动教养审批工作的通知》(公通字[2005]58号)。为保证该通知的正确、有效贯彻执行，公安部制定了((关于进一步加强和改进劳动教养审批工作的实施意见)，现印发给你们，请遵照执行。公安部将在2006年适当时候组织检查各地的执行情况，并将通过召开现场会、经验交流会等形式推广执行效果好的经验、做法。工作中遇到问题，请及时报部。

2005年9月13日

关于进一步加强和改进劳动教养审批工作的实施意见

        进一步加强和改进劳动教养审批工作，是公安部贯彻落实中央司法体制改革精神的重要措施，是全面提高公安机关执法水平的重要举措。为保证《公安部关于进一步加强和改进劳动教养审批工作的通知》(公通字[2005]58号，以下简称((通知))的正确、有效贯彻执行，现就有关问题提出如下实施意见：

        一、关于劳动教养的法律依据

1. 劳动教养的法律依据是全国人大常委会批准的《国务院关于劳动教养问题的决定和《国务院关于劳动教养的补充规定》，全国人大常委会通过的《中华人民共和国治安管理处罚条例》、《关于禁毒的决定》、《关于严禁卖淫嫖娼的决定》，国务院批准公安部转发的《劳动教养试行办法》、公安部《公安机关办理劳动教养案件规定》(以下简称《规定》等。各地公安机关要严格按照上述法律、行政法规和规范性文件及《通知》规定的适用对象和程序审批劳动教养。
   
2. 根据《中华人民共和国治安管理处罚法》第76条的规定，对有“引诱、容留、介绍他人卖淫”，“制作、运输、复制、出售、出租淫秽的书刊、图片、影片、音像制品等淫秽物品或者利用计算机信息网络、电话以及其他通讯工具传播淫秽信息”，“以营利为目的，为赌博提供条件的，或者参与赌博赌资较大的”行为，屡教不改的，可以按照国家规定采取强制性教育措施。这里的“强制性教育措施”即为劳动教养；“按照国家有关规定”即为按照上述法律、行政法规的规定；“屡教不改”是指有上述行为被依法给予罚款、行政拘留、收容教育、劳动教养后又实施上述三种行为之一，尚不够刑事处罚的。自2006年3月1日《中华人民共和国治安管理处罚法》施行后，各地公安机关要严格按照上述规定执行。
   

        二、关于依法充分运用劳动教养打击违法犯罪活动

3. 各级公安机关要严格依法办理劳动教养案件，既要依法充分运用劳动教养打击违法犯罪活动，维护社会稳定和治安秩序，也要牢固树立法治意识和保护人权意识，切实防止因运用劳动教养手段不当而产生负面影响。
   
4. 公安机关对符合劳动教养条件的违法犯罪人员，特别是对那些扰乱社会治安、影响人民群众安全感的违法犯罪人员，要坚决依法呈报和批准劳动教养，不得简单地予以治安管理处罚或者不依法查处。
   
5. 公安机关的治安、刑侦、禁毒等办案部门要牢固树立法律意识、证据意识和程序意识，在调查取证上下功夫，及时收集和固定证据，准确认定违法犯罪事实和性质；法制和劳动教养审批部门要加强法律审核，严格审批程序，切实提高案件质量。
   
6. 公安机关对依法应当追究刑事责任的，不得降格予以劳动教养；对依法应当予以治安管理处罚或者作其他处理的，不得升格予以劳动教养；对事实不清、证据不足的，不得批准劳动教养；对不能在法定羁押期限内侦查终结的犯罪嫌疑人，不得以劳动教养变相延长羁押期限。
   

        三、关于律师代理劳动教养案件问题

7. 为保护公民的合法权益，县级公安机关或者地级、省级公安机关的办案部门在呈报劳动教养后，违法犯罪嫌疑人或者其法定代理人要求委托其监护人、亲友或者聘请律师为其提供法律帮助的，地级、．省级公安机关应当允许；但是对于涉及国家秘密的案件，公安机关应当参照办理刑事案件程序规定不予批准，并说明理由。所谓“涉及国家秘密的案件”，是指案情或者案件性质涉及国家秘密的案件，不能因案件调查过程中的有关材料和处理意见需保守秘密而作为涉及国家秘密的案件。
   
8. 代理律师可以会见违法犯罪嫌疑人、为违法犯罪嫌疑人提供法律帮助，以及参加聆询等活动。对律师提出会见在押的违法犯罪嫌疑人的，公安机关要参照办理刑事案件程序规定，在48小时内安排会见。
   
9. 律师自代理之日起，可以查阅、摘抄违法犯罪事实材料；其他代理人经地级、省级公安机关批准，也可以查阅、摘抄上述材料或者会见违法犯罪嫌疑人。
   
10. 对未申请聆询的，公安机关在合议前，要听取律师或者其他代理人的意见。对代理人提出的合法合理的意见，公安机关应当予以采纳；对不予采纳的，公安机关要在劳动教养决定书中说明理由。
    

        四、关于全面实行聆询制度问题

11. 在作出劳动教养决定前，除涉及国家秘密的案件和案情简单且违法犯罪嫌疑人承认违法犯罪事实、对裁决无异议的案件外，公安机关都要告知违法犯罪嫌疑人有申请聆询的权利。聆询范围不再限于((规定》第25条规定的“组织、利用邪教组织破坏国家法律实施和吸食、注射毒品”以外的案件。
    
12. 对案情简单且违法犯罪嫌疑人承认违法犯罪事实、对裁决无异议的案件，公安机关不再组织聆询。所谓“案情简单”，是指案件事实清楚，因果关系明确，参与人员较少，不需要进行多方查证的案件，如吸食、注射毒品案件等。所谓“对裁决无异议”，是指对拟作出的劳动教养决定没有不同意见。
    

        五、关于缩短决定劳动教养的期限问题

13. 在对违法犯罪行为人决定劳动教养期限时，一般按照1年、1年3个月和1年6个月三个档次掌握。其中，对实施扒窃，吸食、注射毒品，组织、利用邪教组织破坏国家法律实施等屡教不改、教育改造难度大的，以及具有《规定》第47条规定的从重情节的违法犯罪行为人，可以决定劳动教养1年9个月或者2年。
    
14. 在执行劳动教养期间，公安机关查明被劳动教养人员有尚未追究法律责任的违法犯罪行为，符合劳动教养条件的，可以依法决定劳动教养，但新决定的劳动教养期限与剩余期限合并执行一般不要超过2年。
    

        六、关于扩大所外执行范围问题

15. 除((规定)第11条、第54条确定的所外执行适用范围外，对确有悔改表现，且不投送场所执行不致发生社会危险性的，可以在依法决定劳动教养的同时决定所外执行。但是，对具有《规定》)第55条所列情形之一的，不得决定所外执行。所谓“确有悔改表现”，是指充分认识到自己行为的违法性、愿意接受法律制裁、愿意接受和服从有关部门的监督考察、表示积极参加公益劳动等。所谓“不致发生社会危险陛”，是指对被劳动教养人员在所外执行期间能够遵守法律、法规和公安部的监督管理规定，不会逃跑或者再次违法犯罪等情形。
    
16. 对劳动教养所外执行人员，公安机关不得收取所外执行保证金。
    
17. 对所外执行人员，被劳动教养人员居住地公安派出所要会同其家庭、学校、单位、居(村)民委员会等进行监管和帮教，组织他们每月一次到所在地乡镇、街道、派出所或者居(村)民委员会学习有关刑法、治安管理处罚法、劳动教养的法律知识和公安部的相关监督管理规定等，并根据所外执行人员的不同情况确定其每月到当地敬老院、儿童福利院等福利机构参加10小时至30小时的公益劳动，使其早日改过自新。
    

        七、关于进一步强化监督工作

18. 公安机关作为劳动教养管理委员会的成员单位，要主动接受同级和上级劳动教养管理委员会的指导、监督，定期(至少年中、年底各一次)向同级劳动教养管理委员会汇报工作，并提请同级劳动教养管理委员会审查决定劳动教养的年度工作部署、政策界限、经费等重大事项，协调解决劳动教养审批和执行中存在的问题，以及研究决定在本地区、全国有重大影响或者复杂、疑难的劳动教养案件。
    
19. 公安机关对同级劳动教养管理委员会机构不健全或者人员未及时调整的，要主动提请同级人民政府健全机构，及时调整人员，增加成员单位。
    
20. 各地公安机关要自觉接受人民检察院、人民法院和人民群众的监督。对人民检察院在驻所检察和处理群众信访工作中发现公安机关违法决定劳动教养而向公安机关提出纠正建议的，公安机关应当及时依法进行核查。对经核查确属错误的，要及时依法纠正。
    
21. 省级公安机关要认真做好劳动教养行政复议工作，积极推行劳动教养复议案件公开听取意见制度。对劳动教养行政诉讼案件，作出劳动教养决定的公安机关负责人要出庭应诉。
    
22. 公安机关对发生法律效力的劳动教养行政复议决定、行政诉讼判决和赔偿决定，要坚决执行。公安机关依法承担国家赔偿责任后，应当责令有故意或者重大过失的领导和民警承担部分或者全部赔偿费用。
    
23. 公安机关要严格按照《规定》的要求，加强内部执法监督，切实将办理劳动教养案件情况纳入执法质量考核评议范围，并加强执法检查。对在执法监督中发现超出适用对象范围、违反程序审批劳动教养的，要坚决依法予以纠正，并按照规定追究有关领导和民警的执法过错责任。
    

        八、关于加强工作保障问题

24. 各级公安机关要充分认识加强和改进劳动教养审批工作的重大意义，切实做好相关工作。地级以上公安机关要在2005年底前设立劳动教养审批办公室，并配备与审批任务相适应的工作人员，并配齐配强领导班子。为适应依法履行职责的需要，劳动教养审批办公室至少设立1个合议组，审批量大的地方可以按照年均审批300起案件设立1个合议组的标准设立。
    
25. 公安机关要将劳动教养业务经费、装备和劳动教养审核、审批部门的人员经费列入本级公安机关预算，并单独列支；要为劳动教养审批办公室配备必要的交通工具、通讯工具、电脑、录音录像等办案、办公设备，并根据工作情况，设立相应数量的聆询室。
    
26. 公安机关要加强对劳动教养审核、审批人员的业务培训，不断提高其业务素质和执法能力。
    
27. 为确保改进措施的顺利推进和实际效果，劳动教养审批办公室要主动向同级劳动教养管理委员会汇报工作，注意研究审批工作中遇到的新情况和新问题，及时总结实践经验、检查实际效果、调整改进措施，确保工作取得实效。
    

二〇〇五年十二月十二日

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