Oral intervention of Human Rights in China to the Committee Against Torture

Distinguished experts of the Committee, thank you for this opportunity to contribute to the Committee’s review of the Government of the People’s Republic of China’s (“PRC”) combined Fourth and Fifth Periodic CAT Reports. My name is Sharon Hom, Executive Director of Human Rights in China (HRIC). HRIC is an international, Chinese, non-governmental organization with a mission to promote international human rights and advance the institutional protection of these rights in China.

HRIC notes with appreciation the detailed and comprehensive list of issues that the Committee has raised in relation to the State party’s Fourth Periodic Report.

HRIC’s written report (October, 2008) to the Committee addressed several key areas of concern:

• the challenge presented by the state secrets system to monitoring and reducing the incidence of torture in the PRC, and specifically to preventing an effective assessment by this Committee of the implementation measures reported by the State Party (CAT Article 2(1)) Effective measures);
• the lack of a definition of torture under PRC law that fully complies with CAT Art.1, specifically failure to address severe mental pain and suffering, the use of torture by temporary, quasi-or non-governmental actors, and failure to prohibit acts of torture for an reason based on discrimination of any kind (CAT Article 1(1) Definition of Torture);
• serious ongoing attacks on lawyers and restrictions on access to legal counsel that present obstacles to insuring fair treatment and preventing abuses, (CAT Article 2(1)) Effective measures);
• the failure to abolish or reform the administrative detention system of Reeducation-Through-Labor (CAT Article 2(1)) Effective measures);
• the need to clarify the practices and policies of the Shanghai Cooperation Organization and their impact on the prevention of torture (CAT Article 2(2)) No exceptional circumstances); and
• accountability for victims of the 1989 Tiananmen crackdown, including those that suffered torture and ill-treatment (CAT Article 12, 13, &14 prompt and impartial investigations, right of complaint, and adequate compensation).

 

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I would be happy to answer any questions from the Committee on our report, but like to use our limited time to comment on a few of the PRC’s written replies (September 10, 2008) to the list of issues of concern raised by the Committee.

General comment: The State Party’s written responses tend to describe formal legislation on the books without sufficient detail as requested by the Committee on actual practice and implementation. In many cases, the responses are simply non-responsive or confusing.

Definition of torture: The numerous additional provisions cited by the PRC, do not demonstrate a clear and comprehensive definition of torture in Chinese law that meets the elements of torture as set forth in CAT. The lack of a clear and comprehensive definition is a serious obstacle to effective legislative, administrative, judicial or other measures to prevent torture. To prevent torture, state and non-state actors must know what it is.

Retroactive classification of state secrets:

• The State Party response (p.3) describes situations in which retroactive classification is not allowed (e.g. “ a matter which can clearly be defined by levels of confidentiality but somehow was not done so”) or how a dispute regarding classification might be addressed. This does NOT address the problem of retroactive classification which violates fundamental notions of fairness and process.
• See Measures for Implementing the Law on the Protection of State Secrets of the People’s Republic of China (1990) which specifically provides for retroactive classification if disclosure results in 8 enumerated “consequences.”
• We urge the Committee to press for further clarification in its exchange with the SPRC delegation, and urge the elimination of this provision in Chinese law.
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Reeducation Through Labor (RTL): The State Party response in response to a request for total number of detainees, including in “re-education through labour” camps, collapses two different practices and confuses the issues by referring to “reform through labour/re-education through labour” (p.9):

• RTL is a system of administrative detention without judicial oversight that places detainees in situations in which they are vulnerable to abuse or torture. The RTL system allows nonjudicial panels of policemen, called RTL Approval Committees, to sentence people to up to up to three years of detention (may be extended for another one year) in prison-like facilities. Under RTL, detainees are deprived of their right to due process, including the right to counsel, right to a fair trial and right to have the lawfulness of their detention reviewed by a judicial authority. RTL has been applied to hundreds of thousands of people. It has become a tool used by authorities to harass, intimidate, or silence petitioners, whistle blowers and rights activists. The RTL system contradicts the 2000 Law on Legislation, which states that only the National People’s Congress (NPC), and in some cases its Standing Committee, can pass legislation on matters relating to the deprivation of liberty of Chinese citizens (see HRIC CAT report, paras. 13-15).
• Reform through labour: (勞動改造), laogai (勞改), was regulated by the 1954 Reform through labour Regulations of the PRC (中华人民共和国劳动改造条例), that covers detention centers, prisons, labor reform regulated groups and juvenile regulated facilities.

  The 1954 regulations were replaced by the 1990 中華人民共和國看守所條例 and the 1994 中華人民共和國監獄法. And in October 2001, the 1954 Regulations were canceled and the term laogai was eliminated. Although the 1997 Criminal Procedure Law also does not use the term, it is still used by Chinese prison authorities and in the Chinese criminal justice system to refer to persons convicted and sent to prisons.

• Recently, under the full glare of the international Olympic spotlight two elderly petitioners, Wu Dianyuan (吴殿元), and Wang Xiuying (王秀英), were given RTL for applying for protest permits during the Olympics; and the Sichuan schoolteacher Liu Shaokun, was given RTL for photographing and posting pictures of collapsed school buildings after the Sichuan earthquake. These are cases in which individuals were sentenced to administrative detention for “exercising their human right to freedom of expression, assembly, association or religion.”
• Finally, we wish to emphasize that the abolition of RTL has been pressed not only by this Committee, but also by widely by other UN human rights mechanisms (UN Special Rapporteur on Torture Manfred Nowak called for the Abolition of RTL in December 2005; The UN Working Group on Arbitrary Detention called for the abolition of RTL after its mission to China in September 2004), as well as governments such as the EU engaged in bilateral human rights dialogues with China. There also continues to be ongoing debate within the Chinese Government (and among Chinese scholars and legal experts) regarding possible reform and abolition of the RTL system.

Attacks on Lawyers and access to legal counsel:

• Since the filing of our written submission, there continues to be an escalation of attacks on the independence of lawyers: Just last week, we reported the cases of lawyers being fired for supporting direct elections in the Beijing Lawyers Association, and that their law firm employers were threatened by district-level bureaus of justice. (See HRIC Press release, October 31, 2008)
• HRIC also reported this week has that Guo Feixiong (郭飞雄, also known as Yang Maodong, 杨茂东), who was tortured by prison authorities and brutally beaten by an inmate, had been denied access to his lawyer. Guo is serving a five-year sentence in Meizhou Prison, Guangdong Province, and intends to appeal his conviction and file a complaint against the prison authorities. Guo's wife, Zhang Qing (张青), told HRIC that on October 20, Guo's Beijing-based lawyer, Hu Xiao (胡啸), after traveling more than 1,000 miles to Meizhou Prison, was not permitted to see Guo. (See HRIC Press release, November 3, 2008).
• The State Party response states that defendants do not need to apply for permission to hire a lawyer, unless the case involves state secrets (p.4). However, the Law of the Republic of China on Lawyers (revised on October 28, 2007) provides the right for a lawyer to meet with a criminal suspect unmonitored after the investigating organ has finished the initial interrogation or after the implementation of compulsory measures (i.e., detention). Other than the requirement that the lawyer present three documents (the lawyer’s practice license, proof provided by his law firm, and engagement letter or legal aid letter), the revised Lawyers Law does not impose any other restrictions and makes no exception for the right of lawyers to meet with their clients, including no exception for state secrets cases. We urge the Committee to press the State Party for clarification regarding steps or measures it plans to pursue to resolve this apparent conflict.

1989 Tiananmen Crackdown: With regard to the Committee’s questions about investigations and accountability for the victims and relatives of the June 4th 1989 Tiananmen Crackdown, we note with disappointment that the State Party has essentially provided the Party line that attempts to impose a dangerous historical amnesia.

• [Page 38]: “With regard to the political incident occurred in late Spring and early Summer in 1989, the Chinese government has already drawn its conclusions. The practice over the past almost 20 years has proved that the timely and resolute measures taken by the Chinese government at that time was absolutely necessary and right”.
• We urge the Committee to press the State party, pursuant to Article 12, 13 and 14 of the CAT, to provide all victims of the 1989 Tiananmen crackdown with a prompt and impartial investigation, respond to victims’ complaints and afford victims with redress and fair and adequate compensation. There can be no truly harmonious society if built on silence and injustice. Failure to investigate past abuses allows violations to continue in the present. Impunity breeds impunity.

Shanghai Cooperation Organization (SCO): We urge the Committee pursuant to Article 2(2) of the CAT, which states that “no exceptional circumstances” may be invoked to justify torture, to request information from the State party regarding the State party’s participation in the Shanghai Cooperation Organization (SCO). In particular, the Committee should request information relating to the prevention or use of torture, including extradition cooperation, by SCO member states regarding individuals suspected or accused of terrorism, separatism or extremism, and specific measures for ensuring that implementation of SCO provisions are within framework of other international obligations, including CAT.

Thank you again for this opportunity to share our comments with the Committee. We look forward to your questions.

Human Rights in China (HRIC) also submitted a written parallel NGO report to the Committee Against Torture in advance of its review of the combined Fourth and Fifth Periodic Reports of the People’s Republic of China on implementation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.