China Rights Forum, Summer 1996
This is a summary of a 37-page report issued by Human Rights in China in April 1996 and submitted to the Committee Against Torture, which reviewed China's second periodic report on implementation of the U.N. Convention Against Torture on May 2, 1996. The full report contains more detailed information about various official documents and regulations relating to the management of torture cases, and translations of documents on three cases in which individuals were allegedly beaten to death by police.
China's actions since it signed the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention) in October 1988 raise serious questions about the Chinese government's commitment to the letter of the treaty. The Chinese government claims to have cooperated fully with the United Nations human rights mechanisms, including the Committee Against Torture (CAT) which monitors the Convention, and to have met its obligations under the human rights instruments it has signed. Yet reports of individual cases of torture in China collected by human rights groups indicate that torture is still a systemic problem and is often instigated by the authorities, charges the Chinese government has repeatedly denied.
Again and again, Chinese representatives have told the CAT that China's domestic law is fully in line with the requirements of the Convention and that the government has done its best to promote the goals of the Convention. But in fact, although some domestic legislation covering obligations in the Convention has been passed, these laws do not embody the minimum requirements of the Convention. The basic concept of torture in Chinese law is much narrower than that articulated in the Convention.
Furthermore, the implementation of existing Chinese legal standards on torture have been severely hindered by the following deficiencies: political control of the judiciary; inadequate monitoring mechanisms and procedures; the courts' acceptance of evidence obtained through torture; the practice of holding defendants incommunicado without access to family or lawyers before trial; strict censorship of news about law enforcement and legal matters; and the widespread use of administrative detention. Under these conditions, HRIC believes that torture remains routine in many Chinese detention centers, prisons and labor camps and that the Chinese government has generally failed in its responsibility to implement the provisions of the Convention.COOPERATION WITH CAT
In its 1993 report to the General Assembly, the CAT stated: "Although the Committee was aware of the obvious difficulties facing China, it expressed concern at the use of administrative detention and the cases of torture alleged and deplored by various non-governmental organizations, in particular in Tibet. It recommended that energetic measures be taken by the authorities to prevent such cases and to punish those responsible and requested precise statistical data concerning the number of persons in administrative detention, sentenced to capital punishment and executed."
After ratifying the Convention in October 1988, in December 1989 China submitted an initial report to the CAT concerning its implementation of the Convention. In its review, the CAT expressed regret that the report "had been drafted in too general a manner and failed to give details of the practical application of each of the Convention's provisions in China." The Committee requested that China submit an additional report by December 31, 1990.
In December 1992, almost two years after the deadline, the Chinese government submitted a supplementary report, which provided a more detailed description of the Chinese legal regime related to the application of the Convention. However, most of the important questions raised by the CAT, on such subjects as administrative detention, incommunicado detention and whether defendants have access to lawyers during the early pretrial phase, remained unanswered.
On December 2, 1995, China submitted its second periodic report, which had been due in 1993. There was still no information on the prevalence of torture or any studies conducted on the subject; on numbers of cases filed for investigation; on numbers of officials disciplined for torturing or ill-treating individuals; or any specific problems encountered in the implementation of the laws cited in the report.
All China's reports have insisted that the Chinese government has done a very good job of preventing the occurrence of torture in China. A number of articles of the Criminal Law of the People's Republic of China (hereinafter CL) and China's Constitution are cited as proof that torture is prohibited under domestic law. But all the reports avoided the crucial legal issues raised by the CAT, issues which provide an explanation for the continuing prevalence of torture in China.
There are three principal reasons for this prevalence:
- Failings in the legal system, including within the legal provisions relating to torture. The major contributing factors in this area are an incomplete conception of torture, the lack of an independent judicial system, the denial of the right of the accused to early access to legal counsel and the acceptance by trial judges of evidence obtained through torture.
- Aspects of judicial practice. Under the influence of both central- and local-level Chinese Communist Party (CCP) political-legal committees, many cases of torture have been handled in an overly tolerant manner; generally courts have imposed light punishments on perpetrators while procuratorates have often exempted accused torturers from prosecution.
- CCP policies on law enforcement. The Public Security Bureau (PSB) and State Security organs are given vast powers to maintain social order and to investigate crimes without adequate monitoring. Under such circumstances, the filing of complaints by detainees is not really feasible, since lodging a complaint may bring only further abuse. Furthermore, in order to cover up any incidents which could damage the image of the security organs, in 1986 the CCP ordered that any media reports concerning the PSB and any other state functionaries had to be approved by the CCP Central Committee or its local committees before release.
A principal reason for the failure of the Chinese legal system to prevent torture effectively is the lack of judicial independence and the relative lack of status of the judiciary in comparison to other state organs. Judges are generally nominated by the CCP committee at the corresponding level, and Party policy dictates that those selected as judges at different levels should have reached a corresponding rank within the Party system. Furthermore, political- legal committees in Party committees at all levels may intervene in the routine work of the judiciary by reviewing cases submitted to the local courts. In most sensitive cases, especially those of a political nature, the political-legal committee plays a dominant role in reaching the final decision.
The CCP has issued various instructions to prevent news reports about scandals or sensitive matters involving the PSB or other state organs. This is one of the reasons why so few torture cases are reported in the Chinese domestic media, despite the number of incidents documented by human rights organizations outside the country. The exact number of cases of torture is a top secret. Official reports frequently contain conflicting, even misleading information, further obscuring an already muddy picture. According to the 1988 China Procuratorate Yearbook, in that year the procuratorates received 1048 complaints about torture to coerce a statement, but only 170 were filed for investigation. This means that the torture cases filed for investigation represented only the tip of the iceberg.
Finally, the judicial organs have tended to deal leniently with torturers, under the influence of CCP policy. Procuratorates frequently allow torturers to evade responsibility for their crimes, either by not filing cases for investigation or by exempting individuals from prosecution. The standards to be met for a case to be filed for investigation are very narrow and torturers are not usually brought to trial unless the incident resulted in a death or other serious consequences. Even when torture has caused a death, perpetrators have often received only administrative discipline, light sentences or have simply been exempted from prosecution.PRC LAW'S CONCEPTION OF TORTURE
In Article 1
of the Convention, "torture" is defined as:
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or the person acting in an official capacity.
In response to the question of whether Chinese domestic law incorporated the concept of torture articulated in this article, both China's initial and supplementary reports replied affirmatively. In fact, although the CL does indeed include some articles concerning torture, the definition of torture is significantly different from that of the Convention in several respects.EVIDENCE FROM TORTURE ADMISSIBLE
First, torture in the CL refers mainly to two types of acts, one being using torture to "coerce a statement" (Article 136), and the other being subjecting imprisoned persons to corporal punishment and abuse for this same purpose (Article 189). By defining torture narrowly as the use of force to "coerce a statement," the concept of torture in domestic law clearly falls short of the requirements of the Convention.
Second, the penalties prescribed for torture in the CL are relatively light compared to those for other crimes. Torturing to coerce a statement usually only merits a fixed-term sentence of no more than three years or criminal detention ranging from 15 days to six months. Torture that results in disability or death is subject to a penalty of over three years of fixed-term imprisonment.
Third, there is no mention of psychological torture in Chinese law. Some articles in the General Principles of the Civil Law address the issue of mental damage, but they are not applicable to psychological torture. In fact, solitary confinement, a common form of psychological torture, has been employed in excess of legal time limits to punish those who supposedly are not willing to submit to "education" and "reform."
Fourth, under the Criminal Procedure Law (CPL), investigation of the crime of torture is to be handled exclusively by the procuratorates. The Supreme People's Procuratorate established various standards to determine whether particular torture cases should be prosecuted, which further define the concept of torture described in the CL. In these standards, two elements are of primary importance in determining how a case should be handled. The first is the intention of the torturer: if he carried out the act for personal ends or in revenge, the case should be investigated. The second is the end result of the torture: an investigation should only be initiated if the torture caused disability, death or other serious consequences. Such a narrow definition of the crime of torture compounds existing ignorance and appears to encourage officials not to view torture as a serious matter.
In response to a question from the CAT, the Chinese report stated, "It is strictly forbidden to use torture to extort confessions or other unlawful methods to collect or falsify evidence; otherwise the offender incurs legal responsibility and the evidence so obtained is declared null and void." However, a review of judicial practice and Chinese law shows that this is not the case. In theory, Article 36 of the Criminal Procedure Law prohibits the practice of torture, but it does not contain any clear rule under which evidence obtained through torture or other unlawful means must be ruled inadmissible.
However, the 1994 Supreme People's Court's Detailed Rules on the Adjudication Procedure for Criminal Cases stated for the first time in the history of the PRC's legal system that evidence obtained through torture was ruled out as legal evidence in Chinese courts. But these rules alone are not sufficient to eliminate the possibility that torture may be used to extort confessions. The rules are vague on how the determination should be made that a particular piece of evidence has been obtained through torture. Furthermore, other bodies and laws have failed to duplicate this explicit rejection of such evidence. Most importantly, the first revisions of China's 1979 Criminal Procedure Law failed to enact such a prohibition into law, while comparable rules to the Supreme Court's passed around the same time by the Supreme People's Procuratorate and the Supervision Ministry also did not exclude such unlawfully-produced evidence.
The official theory of evidence is based primarily on a principle called "Seeking Truth from Facts," which means that each piece of evidence should be examined according to whether or not it is a "fact," regardless of its origin. This principle means that if a piece of evidence is proved to be true through the trial process, it is to be considered as legal evidence even if it was obtained illegally.
In practice, the use of evidence obtained from torture at trial is common practice in the Chinese judicial process. Although the CL states that a defendant's statement is not necessary for the determination of whether a criminal act has been committed, in fact such statements are generally one of the most important pieces of evidence in criminal trials, even in situations in which evidence other than the statement is sufficient to determine the verdict. In a 1991 case, a detainee was tortured to death because he had refused to confess to the criminal act although the other evidence available was sufficient in itself to prove him guilty. If the individual does not suffer serious injury in the process, a confession obtained through torture can undoubtedly be used at trial. Even in cases in which a torturer was found guilty and punished, the evidence obtained by him can still be admissible at trial.LACK OF ACCESS TO LEGAL COUNSEL
In Chinese law, defendants are not permitted access to their attorneys in the preliminary stages of the investigation. As a result a considerable number of cases involving the use of torture occur during this stage. In one county during 1990, a recent report said, 67 defendants withdrew their confessions when their cases went to trial. This accounted for 39 percent of total cases surveyed. In all of these cases, the major reason the defendants cited for the retraction was that they had confessed to "crimes" only in order to avoid further torture.
While HRIC welcomes the provisions in the recent amendments to the Criminal Procedure Law improving the legal rights of accused persons, we are concerned that the new provisions do not actually guarantee rights such as access to legal counsel for persons detained or arrested. Detainees' access to legal counsel remains at the discretion of the authorities, since the revisions contain no mandatory provision guaranteeing such access during the preliminary stage of a criminal investigation.
Throughout the PSB's investigation of a case, defendants are normally completely isolated from the outside world; even members of their immediate families are not allowed to see or have contact with them. Although the new revisions of the CPL now permit lawyers to meet with detainees in the presence of police officers "following the first interrogation," specifics are left completely undefined. Defendants are still in police custody for long periods of time without the benefit of monitoring of any kind. Under such conditions, HRIC does not believe that the extensive provisions cited in China's second report to the CAT detailing the rights of detainees to file complaints are of much use in protecting detainees from abuse; in fact, filing a complaint may result in further abuse.
Defense lawyers are not really able to play a strong role during a trial as do their counterparts in other countries. There is plenty of evidence that lawyers' interventions in trials are subject to the control of Party committees at the central and local levels. In political cases and cases in which defendants plead not guilty, lawyers have been required to submit their defense statements to the departments of judicial administration in advance for approval. In cases involving torture, since defendants would generally be state officials and the acts with which they are charged would likely be regarded 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 committee or from other official bodies.TORTURE IN ADMINISTRATIVE DETENTION
One of the settings in which torture most frequently occurs is when people are held in administrative detention, since this is outside the judicial process and beyond the scope of public monitoring. In China, detention outside the formal criminal process can take three major forms. The first is "Shelter and Investigation," a measure under which the PSB can detain people for as long as three months without any judicial procedure. The second is "Reeducation Through Labor," which is both a punishment and a form of coercive administrative detention and empowers the PSB to send people to labor camps for up to three years without going through any judicial process. The third is "Retention for In-Camp Employment," which enables the organs of judicial administration to continue to detain in camps those who have completed their sentences.
Torture in Shelter and Investigation and Reeducation Through Labor facilities is endemic and extreme, according to evidence collected by HRIC in a 1993 report, Detained at Official Pleasure: Arbitrary Detention in the People's Republic of China. During the mid-1980s, an internal document reported dozens of cases across China in which individuals sent to Reeducation were tortured to death. The prevalence of torture in Shelter and Investigation facilities also gives cause for serious concern. According to the assessment of an internal report, disorder in the management of Shelter and Investigation facilities resulted in the death of 28 people through torture in 1988, and eight deaths during the first three months of 1989 alone.TORTURE TO THREATEN OR "REEDUCATE" DETAINEES
A form of torture which occurs in detention facilities, prisons and labor camps of all kinds yet has been insufficiently investigated is the practice of inmates committing abuses against other inmates at the instigation of, or without interference from, officials.
In Chinese detention facilities, a few inmates who have "reformed well," usually minor criminal offenders, are often assigned the job of supervising their cellmates. In reward for carrying out the tasks officials have given them, these inmates are given more freedom and other privileges than their fellow inmates, and are widely known in the system as "second-rank cadres" or "the second government." These "trusties" are frequently used to carry out torture against those, particularly dissidents, who are not considered to be "accepting reform."
For example, after going on a hunger strike to mark the third anniversary of the 1989 Beijing Massacre, political prisoner Li Yang was stripped naked and beaten by other inmates on the orders of a chief officer called Yang Guoping. Yang himself struck Li on the thighs with an electronic baton which produced a 80,000 volt shock.
Ma Liumin, a detainee held in the Chaoyang District Detention Center in the summer of 1994 described how another inmate, known only as Liu, died in July from a combination of ill-health and beatings at the hands of cell-mates. Liu was suffering from a gastric disorder and received no treatment. After several days, his condition became acute and fellow detainees began to beat him because they were irritated by his moans. The beatings continued over three days, with no intervention from guards. When doctors finally came after Ma called the guards, Liu died as he was being removed from the cell. A representative of the People's Armed Police who guard the detention center reportedly said, "The People's Police do not beat people. But if people beat each other, we don't give a damn."CONCLUSION AND RECOMMENDATIONS
Despite China's accession to the Convention, torture remains a systemic and regular practice. Although the Chinese authorities have enacted legislation to prohibit the practice of torture, the concept of torture in Chinese law does not reflect the requirements of the Convention.
In view of the seriousness of the situation pertaining to torture, HRIC urges the Chinese government promptly to take the following actions in order to reduce and eventually eliminate torture in China:
- Establish an impartial and independent judicial system in order that every case of torture may be tried equally and effectively;
- Pass legislation to amend the definition of torture in current Chinese law to bring it into compliance with that set out in the Convention;
- Revise the legal provisions in the Criminal Law and the Criminal Procedure Law regarding evidence obtained through torture and ensure that all evidence produced through torture of any kind, including statements of witnesses, is excluded from consideration, unless the evidence is to be used against the perpetrators of torture;
- Immediately lift the restrictions on the media's reporting of news relating to state organs and officials so that the whole society may monitor the actions of state organs;
- Prohibit the practice of employing inmates to perpetrate torture at the instigation of officials;
- Eliminate all forms of administrative detention without judicial process, especially Shelter and Investigation and Reeducation Through Labor; and
- Carry out fully all the obligations contained in the Convention and other international human rights instruments which would contribute to reducing and eventually eliminating torture.
HRIC recommends that the Special Rapporteur on Torture continue his excellent monitoring of individual cases of torture in China and that he and the Committee against Torture continue their scrutiny of China's legal and judicial provisions and practices and recommend that China consider making the type of changes outlined above.
TWO DEATHS MEET WITH STONEWALLING
On December 24, 1993, Ren Wanxia was riding home on her bicycle. Witnesses saw her being stopped by police officers who asked her to show her bicycle license. She was not carrying the license and a bitter altercation with police officers ensued. She was slapped in the face and taken to the police station. According to the police account, she was detained there for several hours and then released.
Ren never returned home and her body was found a week later in the river. According to the family, the condition of the body strongly suggested the possibility that Ren was tortured and raped and then thrown into the river. However, the PSB carried out an internal investigation, beginning five days after Ren disappeared, instead of reporting the case to the procuratorate. Although the resulting internal report revealed that the officers had admitted beating Ren, and implied that their superiors believed they may have been responsible for her death, no formal investigation was initiated until April 1994. No police officers were disciplined, and Ren's family has been refused a copy of the autopsy report.
To date, there has been no progress in this case. Despite the fact that both the CPL and the standards in the Convention would require further investigation in such a case, since an internal investigation can be substituted for the formal process, any further investigation of criminal responsibility in this case appears highly unlikely.
Another case in which a suspect was allegedly tortured to death occurred in Guiyang City, Guizhou Province, on November 9, 1994. While accompanying his inebriated friend home, Yang Xiaohong got into a dispute with a taxi driver. The driver then drove the cab to the Guiyang PSB. According to Yang's family, the officers there tortured Yang. Yang died several hours later after being sent to a local hospital where the police said he had jumped from a fifth-floor balcony on which he had been handcuffed to a pipe.
The procuratorate decided not to file the case for investigation after briefly questioning some of the officers involved, although there was ample evidence, including statements from medical workers who treated Yang and from other witnesses, to indicate that torture was a distinct possibility in this case. So far the family has been told that the autopsy is an "important secret" and will not be released, although Yang's wife was permitted to read it. There is no indication that any police officers were disciplined in connection with this case.
The failure to investigate in both of the above situations could be partly attributed to the rigid standards for initiating an investigation in a case of torture mentioned above, a practice which directly violates the standards established in the Convention and in other international human rights instruments.