UN Special Rapporteur on Torture Concludes Two-Week Visit to China

Manfred Nowak, the UN Special Rapporteur on Torture, concluded his two-week visit to China and confirmed allegations that "the practice of torture, though on the decline - particularly in urban areas - remains widespread in China," according to a December 2 press release available through the Web site of the UN High Commissioner for Human Rights. The press release acknowledges the Supreme People's Procuratorate's (SPP) efforts to investigate civil servants for criminal activity related to torture and other forms of ill treatment, but concludes, "When compared with other national statistics, these official figures are clearly the tip of the iceberg in a country the size of China and demonstrate that most victims and their families are reluctant to file complaints for fear of reprisal or lack of confidence that their complaints will be addressed effectively." The Ministry of Foreign Affairs (MFA) published remarks by spokesman Qin Gang at a December 6 press briefing that refute Nowak's finding that torture is widespread and insist that "the rapporteur jumped into a conclusion, which is ill-grounded on the part of facts and does not conform to reality." Qin said, "We have expressed our position to the Rapporteur and hope that Mr. Nowak can correct the wrong conclusion in his report." Nowak will submit a final report on his visit to the UN Commission on Human Rights at its session in 2006.

The Special Rapporteur expressed gratitude to the Chinese government in a November 22 interview with the BBC, and interpreted his invitation to visit China as a sign of growing official awareness about the torture problem. A December 23 article in the China Daily pointed out that the Chinese government promised cooperation with the UN body and agreed to allow Nowak unannounced visits to prisons and interviews with prisoners. Nowak revealed in the December 2 press release, however, that he had not received authorization to visit detention centers on his own and could not consider his visits to be "unannounced." Moreover, he discovered that public security officials had prevented or physically blocked some victims of abuse and their family members from meeting with him, and found in his interviews with detainees "a palpable level of fear and self-censorship which he had not experienced in the course of his previous missions." According to the BBC's December 6 report, MFA spokesman Qin "denied Nowak's allegations that public security officers had monitored his activities and tried to stop torture victims from meeting him." After visiting detention centers and meeting with officials from the MFA, Ministry of Justice, Ministry of Public Security, and SPP, who were charged with briefing him on domestic efforts to oppose and prohibit torture, Nowak concluded that the Chinese government's official definition of torture does not correspond fully to the international standard. He also found that the criminal justice system fails to provide procedural safeguards to criminal defendants and is instead "focused on admission of culpability." He further pointed to a general inadequacy in complaint mechanisms, lack of an independent judiciary, and abuse of administrative detention measures, including "re-education through labor" (RETL), which go "well beyond legitimate rehabilitation measures." MFA spokesman Qin maintained that the Chinese legislature has adopted "a package of laws on prevention, supervision, punishment and compensation" to prevent torture, and that it "has made great and effective efforts to prevent torture, and handle specific torture cases according to law."

The Special Rapporteur's findings are consistent with the CECC's findings on the Rights of Criminal Suspects and Defendants, in Section III(b) of the 2005 Annual Report.

The UN press release concluded by recommending a series of actions to the Chinese government. In the area of criminal procedure, it recommended that China "[e]nsure that the reform of the criminal procedure law conforms to [International Covenant on Civil and Political Rights (ICCPR)] fair trial provisions, including by providing for the following: the right to remain silent and the privilege against self-incrimination; the right to cross-examine witnesses and the effective exclusion of evidence extracted through torture." China became a signatory to the ICCPR in 1998. Since early 2004, reports published on the Chinese language Web site China.com and in the weekly publication Southern Weekend have pointed to statements made by President Hu Jintao, Premier Wen Jiabao, and Politburo Standing Committee Member Luo Gan hinting that the government will soon ratify the ICCPR. Concurrent with these developments, legislators and scholars inside China have been working to complete a draft revision to China's Criminal Procedure Law (CPL). The working draft that scholars revealed in October attempts to provide additional safeguards to criminal defendants, including the right to choose between making a statement and remaining silent, and a requirement that witnesses appear in court. In addition, the UN press release mentions a series of government efforts that attempt to eliminate interrogation through torture and the use of illegally obtained evidence. Such efforts include regulations promulgated by the central government in 2003 and 2004, and a joint opinion by Sichuan authorities in mid-April 2005.

The press release also recommends that the government "[a]bolish 'Re-Education through Labour' and similar forms of forced re-education of detainees in prisons and pre-trial detention centres and psychiatric hospitals." The UN Working Group on Arbitrary Detention published a report on its September 2004 mission to China, available on its Country Visits Web page, in which it criticized the government's failure to create real judicial oversight of administrative detention. The Working Group concluded that Chinese citizens enjoy "no genuine right to challenge administrative detention." Nowak's press release goes further, calling for the complete abolition of RETL and similar systems of re-education in prisons and detention centers. Nowak also calls for an end to the government's system of psychiatric hospitals for mentally ill criminal offenders (also known as the "ankang" system). The press release characterizes these systems of punishment as "aim[ed] at breaking the will of detainees and altering their personality." It makes a distinction between RETL's "forceful re-education of human beings with deviant behaviour through labour and coercion," and efforts such as vocational training or education within prisons, which instead aim for mere "rehabilitation and re-socialisation of persons who committed crimes." The Chinese government has hinted at reform of the RETL system, but reports on the cases of activists Wang Wanxing and Liu Shui confirm that officials continue to use other administrative measures, including "ankang" and "custody and education." The National People's Congress Standing Committee re-affirmed the legality of using administrative punishment against criminal offenders by passing a new Public Security Administration Punishment Law in August 2005, which provides a basis in national law for the government's use of penalties such as fines and administrative detention against offenders of "minor crimes."

Other recommendations include eliminating imprecise definitions of crimes, broadening the role of defense lawyers, and granting more independence to judges. For additional analysis, see below.
 

(The specific recommendation appears in italics, followed by an analysis.)

Criminal law

• Reform the criminal law by adding the crime of torture in accordance with the definition contained in [UN Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT)] (Art.1) with appropriate penalties. The Chinese government ratified the CAT in 1988 and outlawed the use of torture in 1996, but fails to provide a definition of the term consistent with international law. The government made it a crime under Article 247 of China's Criminal Law and Article 43 of China's CPL for any judicial officer to "extort a confession" in the investigation and adjudication process. It also made it a crime under Article 248 of the Criminal Law for any official in custody and supervisory institutions (such as prisons or detention centers) to beat or maltreat a prisoner "by subjecting him to corporal punishment, if the circumstances are serious." Nonetheless, the CECC's coverage of Torture and Abuse in Custody, in Section III(b) of the 2005 Annual Report and Section III(a) of the 2004 Annual Report, highlights cases that demonstrate how law enforcement officials continue to resort to such measures. Nowak's press release acknowledges the Chinese government's positive legislative and regulatory efforts to combat torture, and acknowledges the SPP's report that in 2004, procuratorates nationwide investigated 1,595 civil servants for suspected criminal activity related to torture and other forms of ill treatment. However, the press release also concludes that "physical or psychological torture that leaves no physical trace is difficult if not impossible to punish with appropriate penalties" and notes the lack of an independent monitoring mechanism or functional complaints mechanism.
• Abolish imprecise and sweeping definitions of crimes that leave large discretion to law enforcement and prosecution authorities such as "endangering national security", "disrupting social order", "subverting public order," etc. The CECC's findings on Political Crimes, in Section III(b) of the 2005 Annual Report, note that Chinese authorities continue to apply vague criminal and administrative provisions to detain citizens for political offenses. These provisions allow for the use of crimes such as "endangering national security," "subversion," or "inciting splittism" against political activists. The UN Working Group on Arbitrary Detention published a report on its September 2004 mission to China, available on its Country Visits Web page, in which it criticized the government's failure to adequately define crimes of "endangering national security." The Working Group further noted, "None of the recommendations that the working group formulated in its earlier report have been followed." Nowak's press release acknowledges that there exists "a consistent and systematic pattern of torture related to ethnic minorities, particularly Tibetans and Uighurs, political dissidents, human rights defenders, practitioners of Falun Gong, and members of house-church groups." Recent CECC reports reflect that rights activists who challenge Chinese government abuse of power continue to be charged with various crimes of "endangering national security" and "subverting state power, " as defined under Chapter 1 of China's Criminal Law, or "disturbance of public order," as defined under Articles 290, 291, and 293. Examples include the cases of Guo Feixiong, Feng Bingxian, Zhang Lin, Xu Zhengqing, Zhang Yinan, Zheng Yichun, and Wang Qiaojuan.

Access to legal representation

• Allow lawyers—particularly criminal defense lawyers—to be more effective in representing the rights and interest of their clients including through involvement at the earliest stages of police custody and pre-trial detention. The central government's issuance of Provisions on Legal Aid Work in Criminal Litigation formally expanded the scope of legal aid services available in criminal cases effective December 1. A November 2004 article in the government sponsored Beijing Review highlighted some of the expected changes in Chinese criminal procedure law and commented that "[t]he establishment of a legal aid system and ensuring the protection of the rights of underprivileged groups are ongoing in China's social development plans." Legal experts have repeatedly identified the ability of criminal suspects and defendants to gain access to legal representation as one area for reform and inclusion in the CPL amendment, as noted by the CECC in February, August, and October. In an October 12 lecture at Harvard Law School, reported in the Epoch Times, prominent Beijing lawyer Mo Shaoping complained that criminal defense attorneys face multiple pressures, including difficulties in meeting with clients, obtaining documents, investigating and obtaining evidence, bringing witnesses to court, and balancing the powers of competing government agencies.
• Abolish Section 306 of the Criminal Law, according to which any lawyer who counsels a client to repudiate a forced confession, for example, could risk prosecution. The CECC reported on the case of criminal defense lawyer Zhang Jianzhong and recommended that the Chinese government repeal Article 306 in a topic paper on Defense Lawyers Turned Defendants: Zhang Jianzhong and the Criminal Prosecution of Defense Lawyers in China. Mo reported in his lecture at Harvard that from 1997 to 2002, 500 lawyers were arrested in China for working on criminal cases. Reports in the media in 2005 have revealed that detention and prosecution of legal activists and criminal defense lawyers, including Zhu Jiuhu, Guo Feixiong, and Guo Guoting, also occurs under other articles of the Criminal Law. In addition, authorities have allegedly increased harassment of prominent criminal defense lawyers such as Gao Zhisheng, by shutting down his law firm for one year and, according to the November 27 report by VOA, placing him under surveillance during Nowak’s visit.

Independence of the judiciary

• Take measures to enhance the professionalism, efficiency, transparency, and fairness of legal proceedings; and raise the status and independence of judges and courts within the Chinese legal system. The CECC has noted positive developments in China's Judicial System, in Section V(c) of the 2005 Annual Report and 2004 Annual Report. These include the continuing efforts by Chinese judicial officials to improve the educational level of Chinese judges and the quality of their judicial opinions. On October 26, the Supreme People's Court (SPC) announced its Second Five-Year Reform Agenda, covering the period from 2004 through 2008. The new reform agenda aims to address several structural problems affecting the Chinese judiciary, according to an October 26 article from Xinhua. In addition, some local courts have taken steps to curb internal administrative practices such as judicial responsibility systems for wrongly decided cases, which allow the threat of sanctions to interfere with a trial judge's independence in deciding cases. However, the SPC announced in November that it will require all Chinese courts to establish systems of responding to citizen petitions and resolving citizen complaints following judicial decisions. This announcement may increase pressure on Chinese trial judges to alter verdicts in order to satisfy persistent petitioners, thus weakening judicial finality.