Against the backdrop of recently emerged reports and allegations of torture in detention of several lawyers who have been in custody since the July 2015 massive crackdown on lawyers and rights defenders, and the “release on bail” of another lawyer displaying severe psychological problems including violence and paranoia, the Chinese government submitted a follow-up report to the UN Committee against Torture.
On the question of the crackdown on lawyers that has continued to be a focus of concern and criticism from many governments and legal professional circles around the world, the report—submitted in Chinese only, which HRIC has translated into English (see excerpts below)—categorically denies the crackdown. It states: “There is no ‘suppression’ of ‘rights defense lawyers’ or ‘activists’ by the Chinese government.” (中国政府不存在对所谓的“维权律师”和“活动人士”进行“打压”的情况。)
Regarding a detainee’s right to meet with lawyers, the report asserts: “In practice . . . public security and procuratorial organs comply strictly with the relevant provisions and take various measures to guarantee the right to meet with lawyers, in accordance with the law.” But in reality, two of the three lawyers who are still held—Li Heping (李和平) and Wang Quanzhang (王全璋)—have had no access to their lawyers during their one-and-a-half years’ detention. And their families have never even been officially notified of their detention.
The Chinese government’s report addresses four specific concerns raised by the Committee as requested by the Committee. The four were among several dozen that the Committee listed in its Concluding Observations issued following its last review of China, in November 2015, on its implementation of obligations under the Convention against Torture.
The four specific concerns and recommendations (excerpts) are as follows (the paragraph number indicated at the end of each recommendation refers to that in the Concluding Observations):
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Committee’s Concern |
Committee’s Recommendation |
|
Restrictions to the rights to access a lawyer and to give notification of custody |
“The Committee urges the State party to adopt effective measures to ensure, in law and in practice, that detainees are afforded all legal safeguards from the very outset of the detention . . . .” (para. 13) |
|
Reported crackdown on defense lawyers and activists |
“[China] should stop sanctioning lawyers for actions taken in accordance with recognized professional duties . . . . (a) Ensure the prompt, thorough and impartial investigation of all the human rights violations perpetrated against lawyers . . . .” (para. 19) |
|
Independence of the investigations of torture allegations |
“The Committee reiterates its previous recommendation . . . and requests [China] to provide information on the number of torture-related complaints received since 2008 . . . .” |
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State secret provisions and lack of data |
“The Committee calls for the declassification of information related to torture, in particular, information about the whereabouts and state of health of detained persons whose cases fall under the scope of the State Secrets Law.” (para. 31) |
According to the guidelines for follow up, the Committee will assess China’s follow-up responses and assign grades on several aspects: the quality and extent of the information provided (from “0” for no response to “3” for satisfactory); the degree to which the recommendations have been implemented (from “E” for counteracted to “A” for largely implemented); and the the implementation plan (from “C” for not provided to “A” for largely addresses all of the Committee’s recommendation).
China ratified the Convention against Torture in 1988.
EXCERPTS
Follow-up Response by the Chinese Government
to the Concluding Observations
of the United Nations Committee against Torture
Date submitted: January 24, 2017
Translation by Human Rights in China
Chinese available at UN website: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fCHN%2fCO%2f5%2fAdd.1&Lang=en
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中国政府关于联合国禁止酷刑委员会 |
Follow-up Response by the Chinese Government |
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关于禁止酷刑委员会结论性意见中提到的问题，中方在向委员会提交的履约报告中以及和委员会进行对话时已作出一定说明。中国政府现根据结论性意见有关后续行动的建议（第61 段），就结论性意见第13 段、第19 段、第23 段及第31 段相关问题逐一进行回应： |
Regarding the questions raised by the Committee against Torture in its Concluding Observations, China has already provided certain explanations in the [Convention Against Torture] implementation report it submitted to the Committee and during the interactive dialogue with the Committee. In accordance with the relevant recommendations for follow-up actions in the Concluding Observations (para. 61), the Chinese government hereby responds to each of the relevant questions in paragraphs 13, 19, 23, and 31 in the Concluding Observations. |
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一、对被拘留人获得律师会见的限制、对向被拘留人家属发出羁押通知的限制等（第13 段） |
I. Regarding restrictions on a detainee’s meeting with lawyers, issuing notification of custody to the detainee’s family members, etc. (para. 13) |
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（一）对被拘留人获得律师会见的限制 |
1. Regarding restrictions on a detainee’s meeting with lawyers |
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中国高度重视保障律师会见权，《刑事诉讼法》、《律师法》等法律法规均对律师会见权作出明确规定。如《刑事诉讼法》第33 条规定，“犯罪嫌疑人自被侦查机关第一次讯问或者采取强制措施之日起，有权委托辩护人”。第37 条规定，“危害国家安全犯罪、恐怖活动犯罪、特别重大贿赂犯罪案件，在侦查期间辩护律师会见在押的犯罪嫌疑人，应当经侦查机关许可。”上述规定仅要求极少数特殊案件中律师会见需得到许可，系对保障被拘留人人权与维护国家和公共安全、司法正义的适度平衡，且相关规定仅适用于侦查期间，待有碍侦查或者可能泄露国家秘密的情形消失后以及案件移送起诉以后，有关部门应当许可会见，并及时通知看守所和辩护律师。实践中，公安、检察等侦查机关严格遵守相关规定，采取各种措施依法保障律师会见权利。 |
China attaches great importance to guaranteeing the right to meet with a lawyer, as clearly provided in laws and regulations including the Criminal Procedure Law and Lawyers’ Law. For instance, Art. 33 of the Criminal Procedure Law stipulates that “a criminal suspect shall have the right to retain a defense advocate on the day he/she is interrogated for the first time by the investigating organ or when compulsory measures are taken.” Art. 37 stipulates that “during the investigation period for cases of crimes of endangering State security, crimes of terrorist activities, or crimes of bribery of significant magnitude, defense lawyers should obtain the approval of investigating organs before they meet with the detained criminal suspects.” The abovementioned provisions only require permission for meeting with lawyers in extremely few special cases, striking a suitable balance between guaranteeing detainees’ human rights and defending state and public security and judicial justice. Moreover, the relevant provisions apply only during the investigation phase; once the circumstances that obstruct the investigation or may disclose State secrets cease to exist and after a case has been submitted for indictment, the relevant departments should grant permission for meetings and promptly notify the detention centers and defense lawyers. In practice, investigatory organs such as public security and procuratorial organs comply strictly with the relevant provisions and take various measures to guarantee the right to meet with lawyers, in accordance with the law. |
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