Report on Implementation of the Convention Against Torture in the People's Republic of China
Prepared to Assist in the Assessment of the Third Periodic Report of the People's Republic of China on Implementation of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
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INTRODUCTION
SUMMARY OF CONCERNS
INTRODUCTION
The Chinese government's Third Periodic Report under the Convention Against Torture is completely inadequate, given the scale and severity of the problem of torture and ill-treatment in the People's Republic of China today.
The government report fails to reflect statements by high-ranking officials, including the Minister of Public Security himself, that the problem of torture remains very serious. It also does not mention the many cases of torture published in the domestic Chinese media during the reporting period, or the statistics published in various books and periodicals on the incidence of this crime. And it ignores the debates over appropriate measures to combat torture in legal and professional journals, as well as the proposals of Chinese scholars on the changes needed in various laws and policies to eliminate the practice of torturing and ill-treating criminal suspects and others in detention.
Human Rights in China (HRIC)'s report assesses China's progress in implementation of the Convention since its last report, concentrating on the legal and regulatory regime relating to torture. This report does not describe the forms of torture most commonly used or provide extensive examination of recent cases, since such materials are available in other reports and are hardly the focus of the government's report. We examine in particular the recent changes in the Criminal Law (CL) and Criminal Procedure Law (CPL), looking at how they have affected the rights of detained persons in practice. We also provide some information on situations in which torture and ill-treatment is a significant problem, but which are not covered in the government report. In particular, we provide some detail on detention under Custody and Repatriation, since this form of detention is entirely outside the current oversight mechanisms and has previously received no attention outside China.
HRIC's overall conclusion based on an assessment of current laws, policies and practice, is that China has failed to act upon the majority of the Committee's 1996 recommendations, and thus its implementation of the Convention during the reporting period has been entirely insufficient. Despite a small increase in transparency, we find that persons acting in an official capacity who torture and ill-treat others in violation of the Convention generally do so with impunity, as the government has failed to establish effective mechanisms to hold them accountable and prevent such abuse.
Following each section of this report, we suggest some questions for the Committee to pose to the Chinese representatives regarding China's report, current laws and regulations, practices and the reality. We present recommendations to the Chinese government for reforms of the legal system, government policies and practices necessary for China to meet its obligations under the Convention. In Appendix I, we provide a list of illustrative cases of torture and ill-treatment, almost all of which were never investigated or dealt with in any way by the authorities.
SUMMARY OF CONCERNS
The following is a summary of our concerns and findings under the various articles of the Convention, and of our recommendations.
Article 1: Definition of torture
Despite minor progress in expanding offenses of torture and ill-treatment that can be prosecuted, the definition of torture in Chinese law continues to fall far short of the definition contained in Article 1 of the Convention. Torture in Chinese law is still essentially defined as the use of physical force which has serious consequences, resulting in permanent injury or death, to coerce a statement or confession.
Given this definition, torture is rarely prosecuted in China. While providing impunity for officials who use physical violence, this reality also effectively encourages many law enforcement officials to rely on ill-treatment, rather than on proper investigative techniques, to break cases.
Article 2: Anti-torture laws and policies
China has generally failed to take substantive measures to prevent torture since its last report to the Committee in 1995. China’s revised CPL, along with the revised CL, has done little to prevent torture. Moreover, the inadequate sentences handed down to torturers in most cases demonstrate the ineffectiveness of China’s implementation policies. Suggestions for further reforms of the law from scholars and officials have been ignored.
Article 4: Failure to criminalize acts of torture by non-state personnel
Although the Convention requires that any persons acting in an official capacity be liable for the crime of torture, China has failed to ensure that this is the case. The many persons engaged in law enforcement work who are not categorized as officials are immune from China’s legal provisions prohibiting torture. The use of inmates to torture and ill-treat other inmates remains endemic, yet no effective action has been taken to hold officials responsible for this.
Article 10: Education and information on the prohibition against torture
The government report details a number of training courses, self-study programs and qualification tests made available to law enforcement officials over the past few years, yet fails to provide any information on how much these focus on torture prevention. No information is available with regard to whether these courses include information about the Convention itself.
Article 13: Complaints procedures inadequate
China’s third report fails to describe any substantially new procedures established to deal with torture complaints, while existing complaints procedures remain seriously inadequate.
Insufficient safeguards for the rights of suspects and defendants, failure to implement the existing safeguards and loopholes in the law that allow the authorities to ignore such safeguards make complaints procedures useless in many cases. The revised CPL, while an improvement over the old laws, does not guarantee the right to a lawyer for persons detained or arrested, leaving so much discretion in granting access as to make the right virtually meaningless. Lawyers are frequently barred from meeting with detained or imprisoned clients on the grounds that the case involves “state secrets,” or for no reason, at all. And when lawyer-client meetings do take place, they are often hampered by a lack of even minimal privacy, and severe time restrictions.
In cases involving torture, since defendants are accusing state officials of acts seen as damaging to the image of state organs, lawyers representing the victims and their families often encounter a great deal of obstruction from the local Party committees or other official bodies. Many cases are never prosecuted.
The government report entirely fails to address the fact that torture and ill-treatment occurs frequently in administrative and illegal detention, and this is outside the judicial process and often beyond the scope of the existing systems of oversight. The absence of such safeguards means that inmates held in administrative detention may have particular difficulty in making complaints and gaining redress, compensation and rehabilitation when they are victims of torture or ill-treatment.
Article 15: Evidence obtained by torture still admissible at trial
China’s statement, in its third report, that confessions obtained through torture are inadmissible at trial is misleading. While the CL and the CPL prohibit the extraction of confessions through torture, the lack of an exclusionary rule barring the admission of evidence obtained through illegal means renders these provisions mere empty words. In fact, under current rules the only restriction is that a confession obtained through torture may not be used as the sole basis for deciding a case. Unfortunately, the longstanding conviction among many scholars and practitioners that tortured confessions and evidence derived therefrom are a legitimate weapon in the fight against crime means that adopting an exclusionary rule has not yet been seriously considered by the authorities.
The CPL also lacks an unambiguous presumption of innocence and a right to remain silent to avoid self-incrimination. Many scholars in China have recommended that the PRC adopt these basic principles in its criminal law in order to bring the Chinese legal system into compliance with international human rights norms.
Article 16: Other acts of cruel, inhuman or degrading treatment or punishment
The government report fails to mention many types of ill-treatment occurring inside and outside custodial facilities. Along with the routine denial of humane conditions of detention in most facilities in which persons are incarcerated, for those detained these include indefinite incarceration in mental institutions as a form of punishment and the widespread denial of medical care for those suffering from illness, including potentially life-threatening medical conditions.
Other particular areas of concern include the use of force to implement the population control policy. Also, brutality and the use of excessive force in the course of law enforcement remain a widespread problem in China, as evidenced by the violence used on protestors from the Falungong group, but the government report makes no mention of ill-treatment in non-custodial situations.
Recommendations in brief:
1. Ensure all detainees have prompt access to lawyers and family members
2. Revise laws on torture to bring them into compliance with the Convention
3. Increase transparency in order to combat torture
4. Enforce laws protecting the rights of persons in detention
5. Make mechanisms for receiving complaints and investigating and prosecuting torture cases independent so they can operate effectively
6. Eliminate all forms of detention without judicial oversight
7. Publicize China’s obligations under the Convention
