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Public Security and Coercive Use of Police Power | Political Crimes | Arbitrary Detention in the Formal Criminal Process | Administrative Detention | Torture and Abuse in Custody | Access to Counsel and Right to Present a Defense | Fairness of Criminal Trials and Appeals | Capital Punishment | Harvesting of Organs From Executed Prisoners | Criminal Justice Exchanges

• The Communist Party's concern with growing social instability dominated its policy statements over the past year, and served as justification for increased government vigilance over activities and groups that potentially threaten Party legitimacy. Top Party, court, and law enforcement officials repeatedly linked the government's policy of pursuing periodic anti-crime campaigns, referred to as "Strike Hard" campaigns, to the goal of maintaining social stability. Government efforts to maintain social stability have led to a greater reliance on the coercive powers of the police to subdue potential threats to Party rule.

• Abuse of power by local police forces remains a serious problem. The Supreme People's Procuratorate (SPP) has acknowledged the existence of continuing and widespread abuses in law enforcement, including illegal extended detentions and torture. New SPP regulations that detail the criteria for prosecuting official abuses of power went into effect in July 2006, and establish standards for the prosecution of police who abuse their power to hold individuals in custody beyond legal limits, coerce confessions under torture, acquire evidence through the use of force, maltreat prisoners, or retaliate against those who petition the government or file complaints against them.

• The Chinese government continues to apply vague criminal and administrative provisions to justify detentions based on an individual's political opinions or membership in religious, ethnic, or social groups. These provisions allow for the targeting and punishment of activists for crimes that "endanger state security" or "disturb public order" under the Criminal Law. The UN Special Rapporteur on Torture concluded in his March 2006 report to the UN Commission on Human Rights that the vague definition of these crimes leaves their application open to abuse, particularly of the rights to freedom of religion, speech, and assembly.

• Chinese authorities use reeducation through labor and other forms of administrative detention to circumvent the criminal process and imprison offenders for "minor crimes," without judicial review and the procedural protections guaranteed by the Chinese Constitution and Criminal Procedure Law. The UN Working Group on Arbitrary Detention concluded in 2004 that the Chinese government has made no significant progress in reforming the administrative detention system to ensure judicial review and to conform to international law. Although proposed reforms would provide some added procedural protections, they would still not provide an accused individual the opportunity to dispute the alleged misconduct and contest law enforcement accusations of guilt before an independent adjudicatory body.

• Although illegal in China, torture and abuse by law enforcement officers remain widespread. Factors that perpetuate or exacerbate the problem of torture include a lack of procedural safeguards to protect criminal suspects and defendants, over reliance on confessions of guilt, the absence of lawyers at interrogations, inadequate complaint mechanisms, the lack of an independent judiciary, and the abuse of administrative detention measures. The Chinese government emphasizes its ongoing efforts to pass new laws and administrative regulations preventing, punishing, and compensating cases of torture by law enforcement officers. Both the SPP and the Ministry of Public Security have announced their support for audio and video taping of interrogations of criminal suspects accused of a limited number of crimes. The Chinese government recognizes that problems of misconduct, including physical abuse, exist within Chinese prisons and reeducation through labor centers, and it is making progress toward increasing accountability for such behavior.

• In 2006, Chinese authorities increased restrictions on lawyers who work on politically sensitive cases or cases that draw attention from the foreign news media. Law enforcement officials intimidated lawyers defending these cases by charging them, or threatening to charge them, with various crimes. Since mid-2005, local authorities have also used harassment and violent measures against those who participated in criminal or civil rights defense in sensitive matters. Beijing lawyer Zhu Jiuhu was detained during the past year. Self-trained legal advocate Chen Guangcheng was sentenced on August 24, 2006, to four years and three months' imprisonment, and Shanghai lawyer Zheng Enchong is currently under house arrest after being released from prison on June 5, 2006. Beijing lawyer Gao Zhisheng has been held incommunicado since authorities reportedly abducted him on August 15 from his sister's home in Shandong province. Guo Feixiong, who served as a legal advisor to Gao's law firm, was arrested and later released in late 2005, and is currently in detention after being taken from his home on September 14.

• Chinese criminal law includes 68 capital offenses, over half of which are non-violent crimes. The Chinese government reportedly has adopted an "execute fewer, execute cautiously" policy. In 2006, the Chinese judiciary made reform of the death penalty review process a top priority and introduced new appellate court procedures for hearing death penalty cases. The Supreme People's Court announced that it would consolidate and reclaim the death penalty review power from provincial-level high courts. These reforms are designed to limit the use of death sentences, consolidate criteria used by courts to administer those sentences, and ensure constitutionally protected human rights.

• The Vice Minister of Health acknowledged that the majority of human organs used in transplants in China originate from executed prisoners. Under the World Health Organization's guiding principles on human organ transplantation, organ donations by prisoners, even when reportedly voluntary, may nonetheless violate international standards if the organs are obtained through undue influence and pressure. New Ministry of Health regulations include medical standards for organ transplants, but do not provide guidance on what type of consent is required for taking organs from executed prisoners.

• The Chinese government continues to engage the international community on human rights and rule of law issues, including those related to the criminal justice system. The government's application for membership in the UN Human Rights Council noted that it has acceded to 22 international human rights accords, and that it plans to amend its Criminal, Civil, and Administrative Procedure Laws and reform the judiciary to prepare for ratification of the International Covenant on Civil and Political Rights. As a member of the new Council, the government has pledged to fulfill its obligations under the terms of these accords, and is obligated under the rules of the Council to submit to peer review of its human rights record.

Public Security and Coercive Use of Police Power

The Communist Party's concern with growing social instability dominated its policy statements over the past year, and served as justification for increased government vigilance over activities and groups that potentially threaten Party legitimacy. Top Party, court, and law enforcement officials repeatedly linked the government's policy of pursuing periodic anti-crime campaigns, referred to as "Strike Hard" campaigns, to the goal of maintaining social stability.¹ On a national level, the government's "Strike Hard" campaigns included crackdowns on the publication of materials, including Falun Gong literature, that the government deemed to be "illegal political publications" or that allegedly "spread political rumors and create ideological chaos"² [see Section V(a)--Special Focus for 2006: Freedom of Expression]. Regionally, provincial-level officials used "Strike Hard" campaigns to justify crackdowns on "ethnic separatist forces" in the Xinjiang Uighur Autonomous Region³ and those who might threaten the operation of the new Qinghai-Tibet railroad,⁴ among other groups. [See Section V(d)--Freedom of Religion--Religious Freedom for China's Muslims; Section VIII--Tibet for additional information.]

Government efforts to maintain social stability have led to a greater reliance on the coercive powers of the police to subdue potential threats to Party rule.⁵ In late 2005, a land dispute between local government officials and villagers in Shanwei city, Guangdong province, escalated into a mass protest and then a violent confrontation between villagers and the paramilitary People's Armed Police (PAP).⁶ Both domestic and international human rights activists condemned the coercive use of police power to subdue the Shanwei villagers, and called for an investigation into the PAP's decision to open fire on the crowd.⁷ Shanwei authorities detained Deputy Director Wu Sheng of the local public security bureau for mishandling the situation,⁸ but one month later, Public Security Minister Zhou Yongkang and the PAP's top two officials reaffirmed the role of the PAP as a prominent force in guarding against threats to public order, particularly large-scale mass incidents.⁹ In May 2006, domestic news media reported that Party officials delivered a "stern internal warning" to Wu and fired him from office.¹⁰ No criminal charges were filed against Wu, but 13 of the villagers who participated in the protest received sentences ranging from three to seven years' imprisonment for allegedly "gathering people to disturb public order," among other crimes.¹¹

Party concerns over the type of unrest that occurred in Shanwei have prompted new government measures that allow for greater discretion by local police in responding to "disturbances of public order."¹² In late 2005, Premier Wen Jiabao warned senior rural bureaucrats that more violence would result if they continued to commit the "historic mistake" of failing to protect farmers and their lands.¹³ In April 2006, the Ministry of Public Security (MPS) denied the existence of conflict between police and villagers.¹⁴ Instead, MPS officials maintained that China faces "conflicts among the people," high crime rates, and struggles against unnamed "enemies."¹⁵ The MPS reported that crimes of "disturbing public order" rose to a total of 87,000 in 2005, a 6.6 percent increase over the figure in 2004.¹⁶ Officials declined to provide a figure for mass incidents in 2005, but previously reported a rise from 58,000 mass incidents in 2003 to 74,000 in 2004.¹⁷ In March, a new Public Security Administration Punishment Law went into effect nationwide and added 165 new offenses that are subject to administrative punishments at the discretion of public security agencies, rather than according to the procedures required under the criminal justice system.¹⁸ In a press conference about the new law, MPS officials explained that the law entrusts public security agencies and the police with greater powers and means for protecting social stability and public order.¹⁹

Abuse of power by local police forces remains a serious problem. The government does not encourage external supervision over police affairs or prosecution of police abuses by the procuratorate,²⁰ as mandated by law.²¹ Instead, the MPS maintains a system of self-discipline carried out by the police affairs supervisory departments within local public security bureaus.²² Between 2001 and 2005, 1.5 million on-site inspections resulted in 330,000 findings of abuse by police officers.²³ Of those, 4,321 offending officers were suspended and 2,576 were taken into custody as punishment for their wrongdoing.²⁴ In February 2006, the MPS announced that it had suspended a total of 10,034 police officers since 1997 for breaches of discipline.²⁵ The announcement acknowledged the problem of police misconduct and expressed a high-level commitment to confront the problem and improve the image of the police. At the same time, it also confirmed that local police in some areas openly collude with criminals, without fear of reprisal. In one case in Hunan province, a court convicted three senior public security officials for ties to organized crime, but ultimately suspended their two- and three-year sentences.²⁶

The Supreme People's Procuratorate (SPP) has acknowledged the existence of continuing and widespread abuses in law enforcement, including illegal extended detentions and torture.²⁷ New SPP regulations that detail the criteria for prosecuting official abuses of power went into effect on July 26, 2006, and establish standards for the prosecution of police who abuse their power to hold individuals in custody beyond legal limits, coerce confessions under torture, acquire evidence through the use of force, maltreat prisoners, or retaliate against those who petition the government or file complaints against them.²⁸ Domestic news media reported in 2006 on the convictions of several public security officials who had beaten to death criminal suspects or prisoners in their custody.²⁹ In one case, two public security officials received sentences of 1 year and 12 years' imprisonment, respectively, for beating a woman to death during police interrogation.³⁰ The local procuratorate did not launch an investigation until two years after the incident occurred, and only in response to persistent efforts by the woman's husband to petition the government.³¹ In response to these reports, one Chinese legal scholar criticized authorities for being too lenient and for shielding one another from punishment.³² In July, an SPP spokesperson stated that local procuratorates do not lack potential cases against official abuses of power, but that "many of them are cases that [the procuratorates] don't dare handle, are unlikely to handle, and cannot handle."³³

Political Crimes

The Chinese government continues to harass, detain, and imprison citizens for the peaceful exercise of fundamental rights guaranteed under the Chinese Constitution and international declarations and treaties such as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).³⁴ In some cases, police detain individuals without formal charge or judicial review, in contravention of provisions in both the UDHR and the ICCPR.³⁵ Arbitrary detentions intensified during politically sensitive periods, such as the periods both preceding and following the visits of U.S. President George W. Bush and Manfred Nowak, UN Special Rapporteur on Torture, in November and December 2005, respectively.³⁶ Police also detained, placed under surveillance, and harassed citizens before the first anniversary of former Communist Party General Secretary Zhao Ziyang's death in January 2006,³⁷ and before and after the March 2006 plenary sessions of the National People's Congress (NPC) and Chinese People's Political Consultative Conference.³⁸ A senior official from the Ministry of Public Security justified police use of mass roundups during the plenary sessions by stressing the need to "manage public order" and "reduce some of the factors threatening social stability"³⁹ [see Section VII(c)--Access to Justice--Citizen Petitioning]. In most cases, police released individuals after a few days in detention.

The Chinese government continues to apply vague criminal and administrative provisions to justify detentions based on an individual's political opinions or membership in religious, ethnic, or social groups, even when authorities identify a formal charge and initiate the legal process. These provisions allow for the targeting and punishment of activists for crimes that "endanger state security" or "disturb public order" under the Criminal Law.⁴⁰ After a 2004 visit to China, the UN Working Group on Arbitrary Detention (UNWGAD) recommended that the Chinese government define these crimes in precise terms and create exceptions under the Criminal Law for the peaceful exercise of fundamental rights guaranteed by the UDHR.⁴¹ Nowak noted after his visit to China in late 2005 that the UNWGAD's recommendations have not been implemented to date.⁴² He concluded in his March 2006 report to the UN Commission on Human Rights: "The vague definition of these crimes leaves their application open to abuse, particularly of the rights to freedom of religion, speech, and assembly."⁴³

Courts convict 99 percent of those tried for crimes that allegedly "endanger state security," and the Dui Hua Foundation, a U.S. NGO that advocates for political prisoners in China, reports: "The great majority were detained for non-violent expression of their political and religious beliefs."⁴⁴ "Splittism" and "inciting splittism,"⁴⁵ as well as "subversion of state power" and "inciting subversion of state power,"⁴⁶ are classified as crimes that endanger state security under the Criminal Law. Chinese authorities continue to use charges of "splittism" and "inciting splittism" to target and punish peaceful activities by ethnic Uighurs and Tibetans [see Section V(d)--Freedom of Religion--Religious Freedom for China's Muslims; Section VIII--Tibet]. They continue to apply charges of "subversion" and "inciting subversion" to target and punish the peaceful activities of writers, journalists, and publishers [see Section V(a)--Special Focus for 2006: Freedom of Expression], as well as those who have supported the creation of independent political parties or associations [see Section VII(a)--Development of Civil Society].

Faced with an increasing number of "public order disturbances" in 2005, Chinese authorities have applied criminal provisions to crack down on otherwise lawful citizen attempts to challenge government abuses.⁴⁷ Many of the "public order disturbances" that occurred in 2005 involved alleged crimes of "gathering people to disturb public order,"⁴⁸ "obstructing public services,"⁴⁹ "gathering people to engage in affrays,"⁵⁰ and "creating disturbances."⁵¹ From 2004 to 2005, these "public order disturbances" increased by 13 percent, 18.9 percent, 5.8 percent, and 11.8 percent, respectively.⁵² In one case, a local people's court in Yulin city, Shaanxi province, sentenced private investor and former Party official Feng Bingxian to three years' imprisonment for "gathering people to disturb public order" and obstructing the work of government agencies.⁵³ Feng's conviction was based on his efforts to meet with local officials and discuss compensation for private property that the government seized in 2003.⁵⁴ The procuratorate charged that the presence of too many investor representatives led to traffic congestion, disturbance of public order, and interference with the work of the government.⁵⁵ At the time that the procuratorate indicted Feng, the NPC was publicizing efforts to increase legal protection for property rights.⁵⁶

Since late 2005, government officials have abused Criminal Law provisions on "public order disturbances" to silence property rights advocates in particular. In 2004, the government amended the Constitution to recognize explicitly the private property rights of Chinese citizens.⁵⁷ One year later, at the same time that Shaanxi officials detained Feng Bingxian, Guangdong provincial authorities used force to suppress citizen efforts to defend property rights in Shanwei city⁵⁸ and Taishi village⁵⁹ in Guangzhou city. In October 2005, Guangdong authorities arrested legal advocate Yang Maodong (who uses the pen name Guo Feixiong) for "gathering people to disturb public order."⁶⁰ The charge was based on Guo's efforts to advise Taishi villagers in their recall campaign against the village committee head, who allegedly had embezzled compensation funds for government seizures of farmland [see Section VII(b)--Institutions of Democratic Governance and Legislative Reform]. In February 2006, the Guangdong Public Security Bureau circulated a report that blamed a succession of mass protests in 2005 on "disputes over so-called rights defense."⁶¹ With the release of this report, Guangdong authorities made explicit their campaign against legal advocates such as Guo and directly linked the activities of these individuals to crimes of "disturbing public order."

The Chinese government has released a small number of political prisoners since August 2005, but many Chinese citizens continue to serve long prison or reeducation through labor sentences for political or religious activities.⁶² In April 2005, the Chinese government insisted that authorities do not apply a stricter standard for evaluating sentence reductions and parole in crimes that "endanger state security."⁶³ Between early 2005 and 2006, however, officials granted sentence reductions or early releases to political prisoners in only a few cases.⁶⁴ Authorities released most political prisoners only when their court-imposed sentences expired. The list of released political prisoners includes political activist Wang Wanxing, journalist Liu Shui, legal advocate Guo Feixiong, journalist Jiang Weiping, Falun Gong practitioner Charles Lee, labor activist Xiao Yunliang, journalist and Tiananmen democracy activist Yu Dongyue, Internet publisher Cai Lujun, China Democracy Party member Tong Shidong, Internet writer Luo Changfu, house church activist Xiao Gaowen, Shanghai lawyer Zheng Enchong, Gyatso Children's Home founder Nyima Choedron, and Catholic auxiliary bishop An Shuxin.⁶⁵ Despite the Chinese government's pledge to conduct a national review of cases involving political acts that are no longer crimes under Chinese law,⁶⁶ some prisoners are still serving sentences for counterrevolutionary and other crimes that were removed from the Criminal Law in 1997.⁶⁷

Arbitrary Detention in the Formal Criminal Process

The UN Working Group on Arbitrary Detention (UNWGAD) defines the deprivation of personal liberty to be "arbitrary" if it meets one of the following conditions:

(1) there is clearly no legal basis for the deprivation of liberty;

(2) an individual is deprived of his liberty because he has exercised rights and freedoms guaranteed under the Universal Declaration of Human Rights (UDHR) or the International Covenant on Civil and Political Rights (ICCPR); or

(3) non-compliance with the standards for a fair trial set out in the UDHR and other relevant international instruments is sufficiently grave to make the detention arbitrary.⁶⁸

Chinese authorities use measures such as surveillance or house arrest⁶⁹ to punish and control political activists, even when no legal basis exists for such deprivations of liberty. Authorities in Linyi city, Shandong province, placed Chen Guangcheng, a legal advocate who exposed and challenged the abuses of local population planning officials [see Section V(h)--Population Planning], under house arrest on September 6, 2005.⁷⁰ In March 2006, Chen's house arrest exceeded the six-month limit permitted by Chinese law.⁷¹ A network of Chinese human rights activists and groups subsequently worked with Chen's defense lawyers to submit information about his case to the UNWGAD, the UN Special Rapporteur on the Independence of Judges and Lawyers, and the Special Representative of the Secretary General for Human Rights Defenders.⁷² From March until formal notification of Chen's criminal detention on June 10, Linyi authorities held Chen without charge or trial.⁷³ Since March, authorities have kept Chen's wife under surveillance at their home, formally arrested several of Chen's relatives, beaten and summoned Chen's lawyers for interrogation, and placed other activists under house arrest to prevent them from holding a press conference about Chen's case.⁷⁴

Chinese authorities also have used incommunicado detention to punish and control particularly high-profile political offenders who exercise their fundamental rights. The Criminal Procedure Law (CPL) permits detention without arrest or charge, but generally requires notification of family members or the detainee's workplace within 24 hours of custody.⁷⁵ Despite this legal safeguard, a number of activists, including Hu Jia, disappeared in February 2006 after launching a nationwide hunger strike to protest government abuses [see Section IV--Introduction]. Hu, who has campaigned on behalf of HIV/AIDS patients [see Section V(g)--Public Health--HIV/AIDS], was missing from February 16 to March 28. When Hu reappeared, he reported that security officers took him from his home and held him on the outskirts of Beijing without any legal formalities and without notifying his family.⁷⁶ In February, a UN agency expressed concern about Hu's disappearance and reported his case to the Ministry of Health.⁷⁷ Others who have been held incommunicado include Gedun Choekyi Nyima and his parents, abducted by Chinese officials in 1995 after the Dalai Lama recognized him as the reincarnation of the Panchen Lama, and Catholic Bishop Su Zhimin, who reportedly has been detained in a form of house arrest since 1997. Both Gedun Choekyi Nyima and Bishop Su have been the subject of frequent U.S. and international inquiries, but the Chinese government denies that it took coercive measures against either of them. [See Section V(d)--Freedom of Religion--Religious Freedom for Tibetan Buddhists; Section V(d)--Freedom of Religion--Religious Freedom for China's Catholics and China-Holy See Relations for additional information.]

Law enforcement authorities continue to detain Chinese citizens for long periods without formal charge or trial, despite official statements to the contrary. In January 2006, the Chinese government reported to Manfred Nowak, UN Special Rapporteur on Torture, that serious cases of extended detention lasting more than three years had been eliminated, and that the number of individuals held beyond time limits was at an all-time low.⁷⁸ The government further reported that the number of provinces, autonomous regions, and municipalities in which there were no cases of extended detention had risen from 14 at the end of 2003 to 29.⁷⁹ In May 2006, the Supreme People's Procuratorate (SPP) identified Beijing as one of nine municipalities or provinces where no cases of extended detention had occurred in 2005.⁸⁰ Despite these claims, Beijing authorities repeatedly used provisions in Chinese law to hold New York Times researcher Zhao Yan from September 17, 2004, until his trial date on June 16, 2006.⁸¹ After invoking several legal exceptions to extend Zhao's pretrial detention, authorities indicted him on December 23, 2005, for disclosing state secrets and for fraud.⁸² The Beijing procuratorate withdrew its case against Zhao on March 17, 2006,⁸³ shortly before President Hu Jintao's visit to the United States, but resumed legal proceedings based on the same charge in May, after Hu returned to China.⁸⁴ The court permitted the procuratorate to resume its case, despite objections from Zhao's defense lawyer that this action was illegal.⁸⁵ The UNWGAD has concluded that Zhao's detention was arbitrary because it resulted from the exercise of rights guaranteed under the UDHR and the ICCPR, and because official non-compliance with the international standards for a fair trial was sufficiently grave.⁸⁶

Chinese authorities do not comply with the minimum international standards for prompt judicial review of criminal detention and arrest. Both the UDHR and the ICCPR prohibit arbitrary detention or arrest. Under the ICCPR, anyone detained or arrested on a criminal charge must be brought promptly before a judge or other officer authorized by law to exercise adjudicatory powers, for review of the lawfulness of his detention or arrest.⁸⁷ In December 2004, the UNWGAD found that the CPL and related regulations on pretrial detention fail to meet this basic standard because: (1) Chinese suspects continue to be held for too long without judicial review; (2) procurators, who review arrest decisions, only examine case files and do not hold a hearing; and (3) a procurator cannot be considered an independent adjudicator under applicable international standards.⁸⁸ In May 2006, the SPP acknowledged that unlawful extended detentions remain problematic, and that Chinese authorities misuse provisions in the CPL to disguise this problem.⁸⁹ The SPP is currently working with the Supreme People's Court and Ministry of Public Security to finalize new regulations that will seek to address the problem of extended detention.⁹⁰

Administrative Detention

The Chinese government continues to punish large numbers of citizens administratively, without effective judicial review and in contravention of human rights standards under the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).⁹¹ Public security agencies reported that they investigated and charged a total of 6.3 million "public security" (zhi'an) offenses in 2005, up from 5.4 million in 2004.⁹² "Public security" offenses include public order disturbances, traffic offenses, prostitution, drug use, and other "minor crimes" that the Chinese government typically sanctions with administrative punishments rather than formal criminal sentences.⁹³ In some instances, public security agencies handle cases administratively because they do not have enough evidence for a formal prosecution,⁹⁴ or because it is a convenient method for detaining and harassing activists.⁹⁵ Administrative punishments can range from a warning or fine to detention in a reeducation through labor (RTL) center for up to three years, with the possibility of a one-year extension.⁹⁶ Administrative punishments such as RTL can be harsher than some criminal punishments such as fines, public surveillance, and criminal detention of one to six months.⁹⁷

In March 2006, Manfred Nowak, UN Special Rapporteur on Torture, concluded that the RTL system and other forms of administrative detention "go beyond legitimate rehabilitation measures provided for in [A]rticle 10 of the ICCPR."⁹⁸ Forms of administrative detention include short-term detention under the Public Security Administration Punishment Law (PSAPL) and long-term detention such as RTL, forced psychiatric commitment, "custody and education" of prostitutes and their clients, forced drug detoxification, work-study schools, and discipline and inspection of corrupt officials under Party rules.⁹⁹ Although many public security cases do not result in detention, the U.S. State Department estimates that at least 260,000 to 310,000 individuals are currently detained in approximately 340 RTL centers.¹⁰⁰ In addition, another 350,000 individuals were held in facilities for drug offenders and prostitutes as of 2004.¹⁰¹ The government consistently has emphasized the beneficial "reeducation" function of administrative detention measures,¹⁰² but Nowak found that "some of these measures of [reeducation] through coercion, humiliation and punishment aim at altering the personality of detainees up to the point of even breaking their will."¹⁰³

The Chinese government is in the process of reforming the administrative punishment system, but these reforms seek to codify rather than abolish it. In August 2005, the National People's Congress Standing Committee passed the PSAPL to provide a basis in national law for short-term detentions of up to 20 days. In addition to establishing more severe punishments than its predecessor, the Regulations on Public Security Administration Punishment, the new law creates 165 new offenses subject to administrative punishment effective March 1, 2006.¹⁰⁴ These offenses include, among other things, "taking on the name of religion or qigong to carry out activities disturbing public order"¹⁰⁵ and "inciting or plotting illegal assemblies, marches, or demonstrations."¹⁰⁶ The new law reaffirms the role of public security bureaus as the entities that determine and administer punishments for public security violations. Ministry of Public Security officials have interpreted this provision to mean greater powers and means for public security agencies and police to carry out their duties and protect stability.¹⁰⁷ The new law provides for disciplinary sanctions and criminal liability to address violations of human rights, such as coercing confessions under torture or exceeding time limitations on interrogation.¹⁰⁸ The law, however, lacks mechanisms for external supervision of public security agencies and police, and lacks standards for imposing disciplinary and criminal sanctions on police abuses.

Although short-term administrative detention of up to 20 days for public security offenses now has a basis in national law under the PSAPL, long-term administrative detention, including RTL, is authorized only under administrative regulations and therefore violates Chinese law. The Legislation Law requires that all deprivations of personal liberty be authorized by national law, and not by administrative regulation.¹⁰⁹ Under the criminal justice system, a Chinese citizen cannot be found guilty of any crime, even a "minor crime," without being judged guilty by a people's court.¹¹⁰ The Constitution makes explicit the inviolable nature of a person's liberty and further dictates:

No citizen may be arrested except with the approval or by decision of a people's procuratorate or by decision of a people's court, and arrests must be made by a public security organ. Unlawful deprivation or restriction of citizens' freedom of person by detention or other means is prohibited. . . .¹¹¹

Nonetheless, Chinese authorities use RTL and other forms of long-term administrative detention to circumvent the criminal process and imprison offenders for "minor crimes," without judicial review and the procedural protections guaranteed by the Chinese Constitution and Criminal Procedure Law.¹¹²

The UN Working Group on Arbitrary Detention (UNWGAD) concluded that between its 1997 and 2004 visits, the Chinese government had made no significant progress in reforming the administrative detention system to ensure judicial review and to conform to international law.¹¹³ Domestic pressure is building to reform the RTL system, particularly in the National People's Congress (NPC).¹¹⁴ Since March 2005, the NPC has been considering a new Law on the Correction of Unlawful Acts that would provide a basis in national law for RTL.¹¹⁵ The draft law reportedly enhances the rights of RTL prisoners by setting a maximum sentence of 18 months, and by permitting defendants to hire a lawyer, request a hearing, and appeal sentences imposed by public security officials in RTL cases.¹¹⁶ Although the reforms would provide some added procedural protections, the draft law would still not provide an accused individual the opportunity to dispute the alleged misconduct and contest law enforcement accusations of guilt before an independent adjudicatory body.¹¹⁷ Public security officials continue to dominate the decisions of RTL administration commissions,¹¹⁸ which consist of officials from the public security, civil affairs, and labor bureaus.¹¹⁹ The Chinese government has argued that administrative detention decisions are subject to judicial review under the Administrative Procedure Law (APL), but the UNWGAD found APL review "of very little value" and maintained that "no real judicial control has been created over the procedure to commit someone to [reeducation] through labor."¹²⁰

The UNWGAD also has found that the government's practice of forced psychiatric commitment of criminal offenders is a "form of deprivation of liberty, since it lacks the necessary safeguards against arbitrariness and abuse."¹²¹ The U.S. State Department estimates that there are at least 20 ankang,¹²² or special psychiatric institutions for mentally ill criminal offenders, in China. Public security officials can forcibly commit "political maniacs," and increasingly have done so as a measure against those who repeatedly petition the government such as Liu Xinjuan,¹²³ or political activists such as Wang Wanxing.¹²⁴ The government deprives these individuals of their liberty without judicial review.¹²⁵ Treatment in these institutions is sometimes brutal, and political prisoners are held along with patients suffering from true mental illnesses.¹²⁶ Upon his release in August 2005, Wang called for the government to cease psychiatric detention of those without mental illness and transfer administration of ankang hospitals from public security officials to psychiatric professionals.¹²⁷ He added that the inability to object to public security officials' determination that one is mentally ill "makes it so difficult for the inmates to hope for release--more difficult than in prison or in a labor camp, where the punishments are for a fixed term."¹²⁸

Torture and Abuse in Custody

Although illegal in China, torture and abuse by law enforcement officers remain widespread.¹²⁹ In March 2006, Manfred Nowak, UN Special Rapporteur on Torture, reported that Falun Gong practitioners make up the overwhelming majority of victims of alleged torture [see Section V(d)--Freedom of Religion--Government Persecution of Falun Gong], and that other targeted groups include Uighurs, Tibetans, human rights defenders, and political activists.¹³⁰ About half of all alleged acts of torture take place in pretrial criminal detention centers or reeducation through labor (RTL) centers, and 47 percent of alleged perpetrators are police or other public security officials.¹³¹ Forms of torture and abuse cited in Nowak's report include beating, electric shock, painful shackling of the limbs, denial of medical treatment and medication, and hard labor.¹³² Foreign news media and NGOs reported that torture by law enforcement officers resulted in the death of at least one detainee during the past year.¹³³

The widespread use of torture in China violates both domestic and international law. Chinese domestic law prohibits judicial officers from coercing confessions under torture or acquiring evidence through the use of force, and imposes criminal liability on police and other corrections officers who beat or maltreat prisoners, if the circumstances are particularly "serious."¹³⁴ The government is further bound by the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) that prohibit the use of torture.¹³⁵ Nowak has said that the government's definition of torture under the Criminal Law and administrative regulations does not correspond fully to the international standard as outlined in Article 1 of the CAT.¹³⁶ In addition, the government does not recognize the competence of the Committee against Torture authorized under the CAT to investigate allegations of systematic torture.¹³⁷

Factors that perpetuate or exacerbate the problem of torture in China include a lack of procedural safeguards to protect criminal suspects and defendants, over reliance on confessions of guilt, the absence of lawyers at interrogations, inadequate complaint mechanisms, the lack of an independent judiciary, and the abuse of administrative detention measures.¹³⁸ In late 2005 and early 2006, the U.S. State Department and several faith-based organizations reported that these factors and the pervasiveness of torture and abuse by public security officials contributed to the conviction of Pastor Gong Shengliang of the banned South China Church.¹³⁹ Following their release from prison in late 2003 and early 2004, several female members of the church disclosed that public security officials tortured and forced them to sign statements accusing Pastor Gong of the sexual crimes for which he was ultimately convicted.¹⁴⁰ Pastor Gong reportedly continues to be tortured in prison,¹⁴¹ and is confined for a life term.

The Chinese government emphasizes its ongoing efforts to pass new laws and administrative regulations preventing, punishing, and compensating cases of torture by law enforcement officers.¹⁴² Some of these new measures appeared after a series of news media reports in 2005 on wrongful convictions drew national attention to widespread abuses in the criminal justice system and the continuing problem of torture.¹⁴³ In April 2005, the Sichuan provincial government prohibited the use of evidence acquired through illegal means and introduced a requirement that interrogation in "major" cases be taped.¹⁴⁴ Other provincial governments have not followed Sichuan's lead in excluding illegally acquired evidence,¹⁴⁵ but have shown more willingness to adopt the practice of audio and video taping of interrogations as a preventive measure against torture. In early 2006, the Supreme People's Procuratorate mandated that by October 1, 2007, all procuratorate interrogations of criminal suspects in job-related crimes such as graft and dereliction of duty be audio and video taped.¹⁴⁶ At the March 2006 plenary session of the National People's Congress, one deputy submitted a proposal calling on the Ministry of Public Security (MPS) to mandate tapings of police interrogations in cases of crimes punishable by death.¹⁴⁷ The MPS has announced that it will promote audio and video taping of police interrogations in homicide and organized crime cases, and that public security bureaus in economically developed areas such as Shanghai and Beijing municipalities have already adopted this practice.¹⁴⁸ It has no formal plans for nationwide implementation.

The Chinese government recognizes that problems of misconduct, including physical abuse, exist within Chinese prisons and RTL centers, and it is making progress toward increasing accountability for such behavior. In February 2006, the Ministry of Justice (MOJ) established punishments ranging from warnings to dismissal and criminal liability for prison and RTL police found to violate prohibitions against beating, or instigating others to beat, prisoners.¹⁴⁹ Under these new regulations, police activities will be subject to regular supervision and investigation by the MOJ and local justice bureaus, to ensure that they comply with legal requirements. Beijing municipal authorities have also imposed quality control measures on prison police that authorize warnings, demotions, and dismissals for misconduct including insults, beatings, prolonged confinement, and isolation of inmates.¹⁵⁰

Access to Counsel and Right to Present a Defense

Most defendants in China go to trial without a lawyer, and domestic sources cite fear of law enforcement retribution and the lack of legal protections for lawyers as major factors in the low rate of representation.¹⁵¹ Chinese law grants criminal defendants the right to hire an attorney, but guarantees pro bono legal defense only if the defendant is a minor, faces a possible death sentence, or is blind, deaf, or mute.¹⁵² In other cases in which defendants cannot afford legal representation, courts may appoint defense counsel or the defendant may apply for legal aid.¹⁵³ In late 2005, the Chinese government expanded the scope of legal aid in criminal cases and required public security bureaus and procuratorates to notify all criminal suspects of their right to apply for legal aid.¹⁵⁴ Criminal suspects who cannot afford legal services can now make a request for legal aid as early as the investigative stage of their case, and do not have to wait until formal indictment.¹⁵⁵ Despite these advances, lawyers represent criminal defendants in, at most, 30 percent of all cases, and the rate of representation continues to drop.¹⁵⁶

Government abuses of provisions in the Criminal Procedure Law (CPL) have prevented some criminal defendants who are able to find lawyers from meeting with them. Under Chinese law, suspects have a right to meet with their lawyers after police interrogation or from the first day of their formal detention.¹⁵⁷ Nevertheless, after the first interrogation, police have manipulated legal exceptions to deny lawyers access to their clients or otherwise obstruct or encumber such access.¹⁵⁸ The UN Working Group on Arbitrary Detention identified China's use of the "state secrets" exception as one area of particular concern, noting that authorities apply the exception to improperly interfere with access to defense counsel.¹⁵⁹ In late 2005, Beijing lawyer Gao Zhisheng attempted to register as defense counsel for democracy activist Xu Wanping, but authorities refused to grant him access to Xu on the grounds that the case involved "state secrets."¹⁶⁰ Authorities also held freelance writer Yang Tongyan (who uses the pen name Yang Tianshui) without access to a lawyer or contact with his family, again citing "state secrets."¹⁶¹ According to Yang's lawyer, the inability of lawyers to get involved during the investigative stage is a "tacitly understood, unwritten rule" in political cases.¹⁶² Chinese scholars have urged amending the CPL to allow for lawyers to be present throughout the criminal process, beginning with the interrogation of a criminal suspect, to help guard against coerced confessions under torture and other abuses.¹⁶³

Chinese law imposes procedural obstacles that make it difficult for lawyers to build and present an adequate defense. In practice, defense lawyers cannot start building a case until the official investigation ends and a case is transferred to the procuratorate.¹⁶⁴ Even then, police and procurators often deny lawyers access to government case files and information, despite provisions in the CPL that are intended to guarantee access to those materials.¹⁶⁵ Defense lawyers can gather information in support of their case from a witness, but must obtain the consent of the witness or permission from a procuratorate or court.¹⁶⁶ In June and July, authorities obstructed attempts by lawyers to meet with witnesses and gather evidence in defense of legal advocate Chen Guangcheng.¹⁶⁷ Li Jinsong, one of Chen's defense lawyers, reported that unidentified assailants attacked him during a visit to Chen's home village, and that police officers stood by and watched.¹⁶⁸ In order to interview crime victims, defense lawyers must obtain both the consent of the victim and permission from a procuratorate or court.¹⁶⁹ In addition, about 95 percent of witnesses in criminal cases do not appear in court to testify, in part due to hardship or fear of reprisals.¹⁷⁰ The inability of defense lawyers to cross-examine witnesses undermines their ability to represent their clients.¹⁷¹ Chinese scholars involved in the discussion of potential amendments to the CPL suggest that a provision requiring witnesses to appear in court should be written into the law.¹⁷²

In 2006, Chinese authorities increased restrictions on lawyers who work on politically sensitive cases or cases that draw attention from the foreign news media. The All China Lawyers Association issued a guiding opinion that restricts and subjects to punishment lawyers who handle collective cases without authorization [see Section VII(c)--Access to Justice--Access to Legal Representation]. Defense lawyers have also reported that local authorities apply added pressure in cases that involve systemic problems or large groups of people.¹⁷³ In April 2006, local justice bureaus in at least two provinces formalized this growing practice by issuing opinions to restrict the scope of activities that lawyers are permitted to undertake in particularly sensitive or high-profile cases [see Section VII(c)--Access to Justice--Access to Legal Representation].¹⁷⁴ The opinion issued by the justice bureau in Shenyang city, Liaoning province, emphasized the role of Chinese lawyers as protectors of social stability and builders of a harmonious society, and implied that these functions may outweigh the defense of legally protected rights.¹⁷⁵

Law enforcement officials intimidated lawyers defending these cases by charging them, or threatening to charge them, with various crimes [see Section IV--Introduction], including "evidence fabrication" under Article 306 of the Criminal Law.¹⁷⁶ Such charges often prove to be groundless.¹⁷⁷ At the March 2006 plenary session of the National People's Congress, one delegate submitted a motion to eliminate the Criminal Law's provision on evidence fabrication and noted its chilling effect on criminal defense work.¹⁷⁸ Since mid-2005, local authorities have also used harassment and violent measures against those who participated in criminal or civil rights defense in sensitive matters such as the Shaanxi oil case and Taishi recall election¹⁷⁹ [see Section IV--Introduction]. Asia Weekly included prominent legal advocates and scholars Chen Guangcheng,¹⁸⁰ Fan Yafeng,¹⁸¹ Gao Zhisheng,¹⁸² Guo Feixiong,¹⁸³ Guo Guoting,¹⁸⁴ Li Baiguang,¹⁸⁵ Li Heping,¹⁸⁶ Xu Zhiyong,¹⁸⁷ Zhang Xingshui,¹⁸⁸ Zheng Enchong,¹⁸⁹ and Zhu Jiuhu¹⁹⁰ among China's 14 "Icons of 2005,"¹⁹¹ but all have been placed under surveillance or other government restrictions after drawing news media attention to themselves and their legal cases. Zhu Jiuhu was detained during the past year. Chen Guangcheng was sentenced on August 24, 2006, to four years and three months' imprisonment, and Zheng Enchong is currently under house arrest after being released from prison on June 5, 2006. Gao Zhisheng has been held incommunicado since authorities reportedly abducted him on August 15 from his sister's home in Shandong province. Guo Feixiong was arrested and later released in late 2005, and is currently in detention after being taken from his home on September 14.

Fairness of Criminal Trials and Appeals

China's criminal justice system is strongly biased toward presumptions of guilt, particularly in cases that are high-profile or politically sensitive.¹⁹² The conviction rate for first instance criminal cases rose slightly and remained above 99 percent in 2005.¹⁹³ After Chinese reports disclosed in 2005 that official malfeasance had led to the wrongful murder conviction of She Xianglin, a local court official blamed the miscarriage of justice on negligence by investigative personnel, intense public pressure, and a heavy presumption of guilt throughout the criminal process.¹⁹⁴ The local court, city government, and public security bureau all acknowledged wrongdoing in She's case and agreed to provide compensation or subsidy based on his wrongful imprisonment, physical and emotional damages, lost wages, and reintegration into society.¹⁹⁵ She Xianglin's case sets a potential precedent for similar claims based on wrongful conviction and imprisonment. Reports of wrongful murder convictions in Hebei, Henan, Liaoning, and Shaanxi provinces appeared in the news throughout 2005, and similarly called into question the fairness of those trials and the criminal process.¹⁹⁶

Reports of wrongful convictions indicate that public security officials and procurators rely heavily on pretrial witness statements to support their case,¹⁹⁷ despite provisions in the Criminal Procedure Law (CPL) that say such statements cannot serve as the sole basis for a criminal judgment.¹⁹⁸ In February 2006, an intermediate people's court in Chongqing municipality reversed its original death sentence against a man convicted of robbery, and called into question the procuratorate's heavy reliance on pretrial statements that were later retracted during the trial.¹⁹⁹ One Chinese legal scholar has reported that retraction of pretrial statements is increasing, and that in recent years, the reliability of pretrial statements has become increasingly suspect.²⁰⁰

According to one criminal defense lawyer, even when lawyers and judges believe that a defendant may be innocent, "external factors" may nonetheless lead to a criminal conviction.²⁰¹ Senior court officials and Party political-legal committees continue to influence judicial decisionmaking, particularly in sensitive or important criminal cases²⁰² [see Section VII(c)--Access to Justice--The Chinese Judicial System]. In addition, Chinese procurators may appeal acquittals as a matter of right or request "adjudication supervision" from higher courts until they obtain a guilty verdict.²⁰³ In practice, procurators have incentives to do so, since they face potential liability and professional sanction for wrongful detention if a criminal suspect is acquitted.²⁰⁴

Chinese defendants who are judged to be guilty face limited prospects for reversal of their conviction, due to procedural and other barriers. In one case during the past year, Beijing court officials pressured house church pastor Cai Zhuohua into giving up his right to an appeal,²⁰⁵ even though provisions under the CPL guarantee this right.²⁰⁶ If an appeals court finds a case to be based on questionable or incomplete evidence, it may send the case back to a court of first instance for retrial.²⁰⁷ However, courts of first instance have incentives not to change their original judgments because they face potential liability and professional sanction for incorrect decisions²⁰⁸ [see Section VII(c) --Access to Justice--The Chinese Judicial System]. Procedural provisions do not limit the number of times an appeals court may send the case back for retrial, so some cases based on questionable or incomplete evidence have bounced back and forth between courts, sometimes for several years while the defendant remains in prison.²⁰⁹

Capital Punishment

Chinese criminal law includes 68 capital offenses, over half of which are non-violent crimes such as tax evasion, bribery, and embezzlement.²¹⁰ The Chinese government reportedly has adopted an "execute fewer, execute cautiously" policy, but the government publishes no official statistics on the number of executions and considers this figure a state secret.²¹¹ Some Chinese sources have estimated that the annual number of executions in China is in the thousands.²¹²

In 2006, the Chinese judiciary made reform of the death penalty review process a top priority and introduced new appellate court procedures for hearing death penalty cases. After news accounts of several wrongful murder convictions in 2005, the Supreme People's Court (SPC) convened seminars to help lower-level courts draw lessons from judgments made in error.²¹³ In October 2005, the SPC announced that it would consolidate and reclaim the death penalty review power from provincial-level high courts, as part of a five-year court reform program for 2004 to 2008.²¹⁴ Court officials emphasize that returning the power of death penalty review to the SPC will play a significant role in limiting the use of death sentences, consolidating criteria used by courts to administer those sentences, and ensuring constitutionally protected human rights.²¹⁵ The SPC's five-year court program also mandates that in 2006, provincial-level high courts will begin to conduct hearings on all death penalty appeals.²¹⁶ At these hearings, courts are required to conduct a "comprehensive examination" of the trial court's conclusions of fact and law, and to ensure that key witnesses, expert witnesses, procurators, and lawyers appear in court.²¹⁷ Some provincial-level high courts began implementing these requirements in January 2006, and have commented that court hearings help them to minimize wrongful executions and to provide greater protection to criminal defendants.²¹⁸

The Chinese government took positive steps toward reform of death penalty procedures in 2006, but legal scholars and professionals question how these steps will be implemented in practice. In 2005, provincial-level high courts reviewed nearly 90 percent of death sentences handed down in China.²¹⁹ The SPC has added three criminal tribunals to cope with the additional work from reclaiming death penalty review from the high courts, and has already transferred hundreds of court personnel to staff the new tribunals.²²⁰ Scholars at the National Judges College, however, expressed concern that three new criminal tribunals would require training at least 300 new judges.²²¹ Moreover, early reports indicate that provincial-level high courts do not agree about which cases require court hearings under the law, or about the specific procedures that they should apply to hearings.²²² The SPC has not yet issued a judicial interpretation to help settle unresolved issues in the death penalty review process and further clarify its own procedures.²²³

Harvesting of Organs From Executed Prisoners

In July 2005, Huang Jiefu, Vice Minister of Health, became the first senior official to acknowledge that the majority of organs used in transplants in China originate from executed prisoners.²²⁴ Other officials maintain that organ harvesting is limited to a few cases in which the express consent of the condemned convicts has been obtained, and pursuant to strict legal regulations.²²⁵ In 2006, new reports from overseas medical and legal experts condemned the government's continuing practice of harvesting organs from executed prisoners without their consent.²²⁶

Existing Chinese law legalizes the harvesting of organs from executed prisoners, but does not regulate the practice in a way that conforms to international standards. Under the World Health Organization's guiding principles on human organ transplantation, organ donations by prisoners, even when reportedly voluntary, may nonetheless violate international standards if the organs are obtained through undue influence and pressure, or if insufficient information prevents the donor from understanding the consequences of consent.²²⁷ Ministry of Health regulations that became effective on July 1, 2006, include new medical standards for organ transplants in China.²²⁸ These regulations do not provide guidance, however, on what type of consent is required for taking organs from executed prisoners, and leave intact 1984 provisions that legalize organ harvesting if no one claims the prisoner's body for burial.²²⁹

Criminal Justice Exchanges

Chinese scholars and officials continued to engage foreign governments and legal experts on a range of criminal justice issues during late 2005 and 2006. Chinese law enforcement agencies expressed a growing interest in cooperating with other countries to combat transnational crime,²³⁰ and in expanding cooperation with U.S. law enforcement agencies on money laundering, fighting terrorism, and other issues.²³¹ Numerous international conferences and legal exchanges with Western NGOs, judges, and legal experts took place, including programs on public accountability, pretrial discovery, evidence exclusion, criminal trials and procedure, bail, capital punishment, prison reform, and other subjects.²³² Participants in these programs encouraged more such exchanges.²³³

The Chinese government continues to engage the international community on human rights and rule of law issues, including those related to the criminal justice system. The government hosted visits by the UN Special Rapporteur on Torture from November to December 2005²³⁴ and the UN High Commissioner for Refugees in March 2006.²³⁵ Both UN officials commended the Chinese government for its open attitude toward increased dialogue,²³⁶ but Manfred Nowak, UN Special Rapporteur on Torture, also reported that his work was monitored and obstructed by Chinese authorities.²³⁷ On May 9, 2006, China was elected to serve for a three-year term on the newly established UN Human Rights Council.²³⁸ The government's application for membership in the Council noted that it has acceded to 22 international human rights accords, including five of the seven core conventions.²³⁹ In addition, the government reports that it plans to amend its Criminal, Civil, and Administrative Procedure Laws and reform the judiciary to prepare for ratification of the International Covenant on Civil and Political Rights.²⁴⁰ As a member of the new Council, the government has pledged to fulfill its obligations under the terms of these accords,²⁴¹ and is obligated under the rules of the Council to submit to peer review of its human rights record.²⁴²