Skip to content Skip to navigation

Follow-up Response by the Chinese Government to the Concluding Observations Of the United Nations Committee against Torture

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

中国政府关于联合国禁止酷刑委员会
结论性意见的后续答复材料*

Follow-up Response by the Chinese Government
to the Concluding Observations of
the United Nations Committee against Torture

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.

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)

(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

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.

此外,最高人民法院、最高人民检察院、公安部、国家安全部、司法部还于2015 年9 月16 日联合出台《关于依法保障律师执业权利的规定》,对上述三类案件律师会见作了进一步细化规定,如要求侦查机关应当依法及时审查辩护律师提出的会见申请,在三日以内将是否许可的决定书面答复辩护律师,并明确告知负责与辩护律师联系的部门及工作人员的联系方式。对许可会见的,应当向辩护律师出具许可决定文书;因有碍侦查或者可能泄露国家秘密而不许可会见的,应当向辩护律师说明理由。对特别重大贿赂案件在侦查终结前,侦查机关应当许可辩护律师至少会见一次犯罪嫌疑人。

In addition, the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice jointly issued the Provisions on Safeguarding Lawyers’ Practice Rights in Accordance with Law on September 16, 2015, further detailing the rules on lawyers’ meetings in the three abovementioned types of cases, such as requiring investigatory organs to examine a defense lawyer’s meeting application promptly and in accordance with the law, make a written reply to the defense lawyer within three days on whether the application is approved, and provide specific contact information of the department and personnel responsible for liaising with the defense lawyer. Where permission is granted for a meeting, a permission decision document should be issued to the defense lawyer. Where a meeting is not permitted because it would obstruct an investigation or may disclose state secrets, the reasons should be explained to the defense lawyer. In cases of bribery of significant magnitude, the investigatory organ should permit the defense lawyer to meet with the criminal suspect at least once before the investigation concludes.

(二)关于“对向被拘留人家属发出羁押通知的限制”

2. Regarding restrictions on giving notification of custody to the detainee’s family members

中国法律法规对通知被拘留人家属问题的适用范围、限制条件等作出了严格规定。根据《刑事诉讼法》第83 条和《公安机关办理刑事案件程序规定》,除无法通知或者涉嫌危害国家安全犯罪、恐怖活动犯罪通知可能有碍侦查的情形以外,应当在拘留后24 小时以内,通知被拘留人的家属。《公安机关办理刑事案件程序规定》和《人民检察院刑事诉讼规则(试行)》等均对“有碍侦查”和“无法通知”的具体含义作了明确规定。此外,根据《刑事诉讼法》第91 条规定,对被拘留的人需要逮捕的,除无法通知的以外,应当在逮捕后二十四小时以内,通知被逮捕人的家属,不得以有碍侦查为由不及时通知家属。上述安排是对保障被拘留人人权与维护刑事司法正义的适度平衡,且相关规定仅适用于侦查期间,有碍侦查的情形消失后,应当立刻将相关情况通知被拘留人家属。在司法实践中,公安、检察机关严格执行《刑事诉讼法》有关规定,依法保障被拘留人家属的知情权。

Chinese laws and regulations have made strict provisions on the scope of applicability and conditions for limitation regarding notifying a detainee’s family members. According to Art. 83 of the Criminal Procedure Law and to the Procedural Regulations on the Handling of Criminal Cases by Public Security Organs, family members of a detained person should be notified within 24 hours after the person is taken into custody, except where it is impossible to deliver a notice or where crimes of endangering state security or terrorist activities are suspected and the notification might hinder the investigation. The Procedural Regulations on the Handling of Criminal Cases by Public Security Organs and the People's Procuratorate Criminal Procedural Regulation (Trial Version), among others, also clearly provide concrete definitions of “hinder the investigation” and “impossible to deliver a notice.” In addition, Art. 91 of the Criminal Procedure Law stipulates that where the detainee is to be arrested, family members of the arrested person should be notified within 24 hours after the arrest, except where it is impossible to deliver a notice; “hindrance of investigation” cannot be used as a reason for failure of prompt notification to the arrested person’s family members. The above mentioned arrangements are made to strike a suitable balance between guaranteeing a detainee’s human rights and defending criminal judicial justice. Moreover, the relevant provisions apply only during the investigation phase; once the circumstances that obstruct investigation cease to exist, family members of the detainees should be notified promptly. In judicial practice, public security and procuratorial organs strictly enforce relevant provisions in Criminal Procedure Law to guarantee the rights of a detainee’s family members to know in accordance with the law.

(三)对执法人员的监督及有关救济手段

3. Supervision of law enforcement personnel and relevant means for redress

中国一贯重视加强对被羁押人会见律师权和通知家属权的保护。中国刑事诉讼法对以上领域执法人员的监督措施和救济手段均作出明确规定,中国政府还出台《关于深化公安执法规范化建设的意见》,对依法保障律师执业权利,完善救济机制,健全举报投诉事项的受理、核查、反馈工作机制等做出进一步规定。为做好监督救济工作,各执法部门也出台相关落实细则及措施。公安机关对于违反法定程序执法办案的民警,包括违法阻挠律师会见或不通知家属的,将依据《公安机关人民警察执法过错责任追究规定》追究其执法过错责任。检察机关《人民检察院刑事诉讼规则(试行)》及《最高人民检察院职务犯罪侦查工作八项禁令》均对侵犯上述权利的监督和救济作出规定,如当检察机关及其工作人员违法限制辩护律师同在押、被监视居住的犯罪嫌疑人、被告人会见和通信的,辩护人可以向本级或者上一级人民检察院申诉或者控告,控告检察部门应当接受并依法办理。同时,人民检察院发现公安机关侦查活动中,对犯罪嫌疑人拘留、逮捕、指定居所监视居住后依法应当通知家属而未通知的,人民检察院将视情节,分别予以提出纠正意见、发出纠正违法通知书。对于构成犯罪的, 移送有关部门依法追究刑事责任。此外,《关于依法保障律师执业权利的规定》也包含对公务人员相关行为的监督条款。

China has always attached great importance to strengthening the protection of a detainee’s rights to meet with lawyers and have family members notified. China’s Criminal Procedure Law clearly stipulates measures for the supervision of enforcement personnel in the abovementioned areas and means for redress. The Chinese government has also issued the Opinion on Deepening the Construction of Standardized Law Enforcement by Public Security, making further stipulations to guarantee lawyers’ practice rights in accordance with the law, perfect the redress mechanism, and improve the working mechanisms for accepting, examining, and responding to complaints. Various law enforcement departments have also issued relevant implementation rules and measures for effective supervision and redress. Public security organs will pursue responsibility for mistakes made in law enforcement by police officers who violate law enforcement procedures in the course of handling cases as prescribed by law, including those who unlawfully obstruct a lawyer’s meeting or do not notify family members, in accordance with the Provisions for Pursuing Accountability for Mistakes in Law Enforcement by People's Policemen in Public Security Organs. Both the People’s Procuratorate Criminal Procedural Regulation (Trial Version) and the Eight Prohibitions of the Supreme People's Procuratorate on the Duty-related Crime Investigation provide supervision of and redress for violations of the abovementioned rights. For instance, where a procuratorial organ and its personnel illegally restrict meetings or communications between a defense lawyer and a criminal suspect in detention or under residential surveillance, the defense advocate may file a petition or complaint in a people’s procuratorate of the same level [as one where the violation occurred] or at one level above, and the procuratorial department where the complaint is filed should accept and handle the case in accordance with the law. At the same time, if a people’s procuratorate discovers that a public security organ, during investigation, after a criminal suspect has been detained, arrested, or subjected to residential surveillance at a designated place, does not notify the suspect’s family members as it should in accordance with the law, the people’s procuratorate shall, depending on the circumstances, issue an opinion for correction or a notice for correction of illegality. Where a violation constitutes a crime, it shall be referred to the relevant department to pursue criminal responsibility. In addition, the Provisions on Safeguarding Lawyers’ Practice Rights in Accordance with Law also include relevant provisions for supervising the relevant conduct of civil service personnel.

二、所谓对“维权律师”和“活动人士”的“打压”(第19段)

II. The “suppression” of “rights defense lawyers” and “activists” (para. 19)

律师是中国依法治国、建设社会主义法治国家的重要力量。

目前,中国有近30 万律师。中国政府一贯尊重和保障律师执业权利,支持律师依法依规履行职责,2015 年9 月出台的《关于依法保障律师执业权利的规定》,进一步完善了律师执业权利的保障措施,律师执业权利受到侵犯的救济机制和侵犯律师执业权利的责任追究制度。2016 年6 月,中共中央和国务院又印发了《关于深化律师制度改革的意见》,对律师制度改革作出全面部署。

该《意见》对保障律师诉讼权利和完善相关救济机制,切实维护律师执业权利和人身权利等提出了要求。

Lawyers are an important force in China’s ruling the country by law and building a socialist country under the rule of law.

At present, there are nearly 300,000 lawyers in China. The Chinese government has always respected and guaranteed lawyers’ practice rights, supporting lawyers performing their duties in accordance with laws and regulations. The Provisions on Safeguarding Lawyers’ Practice Rights in Accordance with Law issued in September 2015 further perfects the measures for guaranteeing lawyers’ practice rights, as well as the redress mechanism and accountability system for violations of lawyers’ practice rights. In June 2016, the Central Committee of the Communist Party of China (CPC) and the State Council jointly issued the Opinion on Deepening Reform of the Lawyers System, outlining a comprehensive deployment for reforming the lawyers system. That Opinion put forward requirements with regard to, among others, guaranteeing lawyers’ litigation rights and perfecting relevant redress mechanisms, as well as conscientiously defending lawyers’ practice rights and personal rights.

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。实践中,存在极个别律师受到法律的追究和制裁的案例,这是因为他们违反执业道德和纪律,超出法律规定的律师执业范围,涉嫌违法犯罪。任何人不能因其律师身份而享受任何“特权”。这是对绝大多数依法执业律师利益的维护,有助于营造良好的律师执业环境,促进律师事业健康发展。

There is no “suppression” of “rights defense lawyers” or “activists” by the Chinese government. In practice, there are extremely few cases of lawyers being legally pursued or punished—because they have violated professional ethics and discipline, exceeded the scope of lawyers’ practice as prescribed by law, and are suspected of having committed crimes. No one is allowed any “privilege” based on the status as a lawyer. This is for defending the interests of the majority of lawyers who abide by the law in their practice. It helps to create a positive practice environment for lawyers and promote the healthy development of the lawyers profession.

关于审议中提到的锋锐律师事务所案,此案已于2016 年8月2 日至5 日在天津市第二中级人民法院公开审判。周世锋、翟岩民、胡石根、勾洪国被依法判处刑罚。四人均认罪忏悔、服从判决,相关情况媒体已有报道。上述人员在羁押期间,其合法权益均得到充分保障。

Regarding the case of Fengrui Law Firm mentioned in the review. The case was tried publicly on August 2-5, 2016, at the Tianjin Municipal No. 2 Intermediate People’s Court. Zhou Shifeng, Zhai Yanmin, Hu Shigen, and Gou Hongguo were sentenced in accordance with the law. All four admitted guilt, expressed remorse, and accepted the court’s decision. Relevant circumstances were reported by the media. While the abovementioned persons were in custody, their legal rights were fully guaranteed. 

关于扰乱法庭秩序罪的修改。中国刑法修正案(九)草案第一次公开征求意见时使用了“其他严重扰乱法庭秩序的行为”的表述,后经多次研究,将其明确为“有毁损法庭设施,抢夺、损毁诉讼文书、证据等扰乱法庭秩序行为,情节严重的”。这一修改旨在避免“严重扰乱法庭秩序”在解释和适用方面被滥用,并不专门针对任何群体,有利于维护司法权威,保证诉讼活动正常进行,保障包括律师在内的诉讼参与人的人身安全。

Regarding the amendment of the crime of “disrupting courtroom order.” The expression “other conduct that seriously disrupts courtroom order” was used in the first round of public comment solicitation for the draft of the Criminal Law of China Amendment (9). After much deliberation, it was clarified as “conduct that disrupts courtroom order, including damaging court facilities, and snatching, damaging, or destroying litigation documents or evidence, where the circumstances are serious.” The amendment aims to avoid abuse of the term “serious disruption of courtroom order” in its interpretation and application, and not to specifically target any group. It is conducive to defending judicial authority, ensuring the normal operation of litigation activities, and guaranteeing the personal rights of all participants in the litigation, including the lawyers. 

三、酷刑指控调查的独立性(第23 段)

III. Independence of investigations of torture allegations (para. 23)

中国《宪法》明确规定人民检察院是国家的法律监督机关,依照法律规定独立行使检察权,不受行政机关、社会团体和个人的干涉。根据中国法律规定,除提起公诉的职责外,检察机关还承担立案侦查刑讯逼供、暴力取证、虐待被监管人等酷刑犯罪案件的职责。人民检察院与公安机关没有隶属关系,在侦查公安民警涉嫌酷刑犯罪时,能够保障调查的独立性。虽然检察机关同时拥有公诉权和侦查权,但是在检察机关内部,公诉权和侦查权是由不同部门行使的,能够在侦查酷刑行为时保证监督的独立性和公正性。同时,中国政府正在开展国家监察体制改革试点。

The Chinese Constitution clearly stipulates that people’s procuratorates are state organs for legal supervision, which exercise procuratorial power independently in accordance with the provisions of law, without interference from administrative organs, social organizations, or individuals. According to provisions in Chinese laws, aside from assuming the responsibility of public prosecution, procuratorial organs also bear the responsibility of investigating torture crimes such as “extracting a confession under torture,” “obtaining evidence by violence,” and “maltreatment of persons in custody.” There is no affiliation between people’s procuratorates and the public security organs, such that independence can be guaranteed when public security officials or police officers are being investigated for suspected torture crimes. Although procuratorial organs exercise powers of public prosecution and investigation simultaneously, these powers are exercised by different departments within the procuratorial organs, such that the independence and impartiality of the supervision of investigations of acts of torture can be guaranteed. At the same time, the Chinese government is also piloting reform of the national supervisory system.

关于中央政法委的主要职责,中央政法委是协调各方职能、督促依法履职、创造公正司法环境等,政法委支持审判机关、检察机关依法独立公正行使审判权、检察权,不协调个案,亦不对案件的事实证据、定罪量刑提出具体意见。

The main responsibilities of the Committee of Political and Legal Affairs (CPLA) under the CPC Central Committee include coordinating the functions of various organs, supervising the performance of duties in accordance with the law, and creating an impartial judicial environment. The CPLA supports the independent and impartial exercise of adjudicative and procuratorial powers by adjudicative and procuratorial organs, respectively, in accordance with the law. It does not coordinate individual cases, or offer concrete opinion on factual evidence, conviction, or sentencing in a case.

关于酷刑调查的数据、涉嫌实施酷刑的人员应被立即停职、及时追责、受害者应得到适当救济等问题,中国政府已在审议对话前的问题单答复材料中提交了相关情况( 详情请见CAT/C/CHN/Q/5/Add.2)。

As for the questions regarding relevant statistics of torture investigations, immediate suspension from duty of alleged perpetrators of torture, prompt pursuit of accountability, and appropriate redress to which victims are entitled, among others, the Chinese government has already submitted relevant information in the written responses to the list of issues prior to the review dialogue (see CAT/C/CHN/Q/5/Add.2 for details).

四、关于《国家保密法》、解密酷刑资料、提供相关数据等(第31 段)

IV. Regarding the Law on Guarding State Secrets, declassifying torture information, providing relevant statistics, etc. (Para. 31)

根据中国《保守国家秘密法》相关规定,涉及酷刑的信息,不属于该法规定的国家秘密范围,因此不涉及相关信息的解密问题。如果案件本身涉及国家秘密,则需要达到《保守国家秘密法》规定的保密期限或者解密条件才能解密。这是出于对国家和公共安全的必要保障,也是世界各国的通行做法。

According to relevant provisions in China’s Law on Guarding State Secrets, information related to torture does not fall within the scope of state secrets as prescribed in that Law. Therefore, it does not involve the question of declassifying relevant information. If a case itself involves state secrets, it should be declassified only when the duration of confidentiality expires or when the declassification conditions are met as stipulated by the Law on Guarding State Secrets. This is due to the necessary guarantee for national and public safety; it is also a common practice carried out by nations around the world.

中国政府在审议对话前的问题单答复材料中已提供部分涉及被羁押人数量、酷刑行为起诉和审判的数据,但由于中国幅员辽阔,人口众多,地区发展不平衡,人力和资源有限,各个区域的统计口径也不尽相同,难以在短时间内收集并汇总出其他各项详细细分数据。我们将认真研究委员会提出的建议,争取尽快提升数据统计的能力和水平。

In the written responses to the list of issues prior to the review dialogue, the Chinese government already submitted a portion of the statistics involving the numbers of detainees and of allegations and trials of acts of torture. However, in China, due to its expansive territory, enormous population, unbalanced regional developments, limited manpower and resources, and differences in data-gathering methods among regions, it is difficult to collect and summarize in a short amount of time the various other sets of detailed and disaggregated statistics. We will carefully study the recommendations put forward by the Committee and strive to improve our statistical capacity and level as quickly as possible.

中国政府重视信息公开,已采取切实措施,保障公民对国家和社会生活的知情权,充分发挥政府信息对公民生产、生活和经济社会生活活动的服务作用。根据《政府信息公开条例》的规定,公民、法人或者其他组织认为行政机关在政府信息公开工作中的具体行政行为侵犯其合法权益的,可以依法申请行政复议或者提起行政诉讼。

The Chinese government attaches great importance to open information and has taken concrete measures to guarantee its citizens’ rights to information regarding state and societal affairs, fully utilizing government information in the service of its citizens’ productive, life, economic, and social activities. As provided in the Regulations on Open Government information, if citizens, legal persons, or other organizations believe a specific administrative action of an administrative organ in its open government information work has infringed upon their lawful rights and interests, they may apply for administrative reconsideration or file an administrative lawsuit in accordance with the law.

综上,中国政府希望以上答复材料能有助于委员会更加全面客观地认识中国政府在反酷刑领域所做的努力和取得的进展,中国政府也将继续在平等和相互尊重的基础上与委员会开展合作与

交流,不断提升反酷刑的能力和水平。

In summary, the Chinese government hopes that the responses above will assist the Committee in forming a more comprehensive and objective understanding of the efforts made and progress achieved by the Chinese government in the anti-torture field. The Chinese government will also continue to cooperate and engage with the Committee on the basis of equality and mutual respect, continuously improving its anti-torture capacity and level.

Explore Topics

709 Crackdown Access to Information Access to Justice Administrative Detention All about law Arbitrary Detention
Asset Transparency Bilateral Dialogue Black Jail Book Review Business And Human Rights Censorship
Charter 08 Children Chinese Law Circumvention technology Citizen Activism Citizen Journalists
Citizen Participation Civil Society Commentary Communist Party Of China Constitution Consumer Safety
Contending views Corruption Counterterrorism Courageous Voices Cultural Revolution Culture Matters
Current affairs Cyber Security Daily Challenges Democratic And Political Reform Demolition And Relocation  Dissidents
Education Elections Enforced Disappearance Environment Ethnic Minorities EU-China
Family Planning Farmers Freedom of Association Freedom of Expression Freedom of Press Freedom of Religion
Government Accountability Government regulation Government transparency Hong Kong House Arrest HRIC Translation
Hukou Human Rights Council Human rights developments Illegal Search And Detention Inciting Subversion Of State Power Information Control 
Information technology Information, Communications, Technology (ICT) International Covenant on Civil and Political Rights (ICCPR) International Human Rights International perspective International Relations
Internet Internet Governance JIansanjiang lawyers' rights defense Judicial Reform June Fourth Kidnapping
Labor Camps Labor Rights Land, Property, Housing Lawyer's rights Lawyers Legal System
Letters from the Mainland Major Event (Environment, Food Safety, Accident, etc.) Mao Zedong Microblogs (Weibo) National People's Congress (NPC) New Citizens Movement
Non-Governmental Organization (NGO) Olympics One country, two systems Online Activism Open Government Information Personal stories
Police Brutality Political commentary Political Prisoner Politics Prisoner Of Conscience Probing history
Propaganda Protests And Petitions Public Appeal Public Security Racial Discrimination Reeducation-Through-Labor
Rights Defenders Rights Defense Rule Of Law Shanghai Cooperation Organization (SCO) Special Topic State compensation
State Secrets State Security Subversion Of State Power Surveillance Technology Thoughts/Theories
Tiananmen Mothers Tibet Torture Typical cases United Nations US-China 
Uyghurs, Uighurs Vulnerable Groups Women Youth Youth Perspective