Hebei Provincial Government Issues Opinion Prohibiting Torture to Obtain Evidence

January 31, 2006

The Hebei provincial procuratorate, high court, and public security bureau have issued a joint opinion prohibiting the use of torture to obtain evidence against a criminal suspect, according to a December 30, 2005, report by the official Xinhua news agency. The "Guiding Opinion Regarding Prevention of Extorting Confessions Under Torture During Criminal Case Activity" went into effect in Hebei province on January 1, 2006.

The Hebei provincial procuratorate, high court, and public security bureau have issued a joint opinion prohibiting the use of torture to obtain evidence against a criminal suspect, according to a December 30, 2005, report by the official Xinhua news agency. The "Guiding Opinion Regarding Prevention of Extorting Confessions Under Torture During Criminal Case Activity" went into effect in Hebei province on January 1, 2006. Liu Ruichuan, president of the Hebei provincial high court, highlighted in the 2005 progress report (posted by Xinhua on December 27) on rule of law developments in Hebei province that "Any witness deposition, victim testimony, or defendant statement that is verified for authenticity, and categorized as obtained through extortion under torture or other illegal means, cannot serve as the basis of a [criminal] verdict." Xinhua also quoted language in the opinion that states, "Oral evidence obtained through extortion under torture cannot serve as the basis for approving arrest and prosecution." In addition, the opinion provides that the local procuratorate will initiate an investigation into cases where extortion under torture may constitute a crime.

President Liu acknowledged that the opinion comes in the wake of recent developments related to a wrongful conviction case in Hebei. According to a September 24, 2005, report by Xinhua, Li Jiuming became the principal suspect in a murder case that took place in Tangshan city, Hebei province, in July 2002. A local court sentenced him to death, with a two-year reprieve, in November 2002. Public security officials in Wenzhou city, Zhejiang province, then apprehended a different culprit in June 2004. After the Tangshan procuratorate launched an investigation into the wrongful conviction, the Hejian Municipal People's Court ultimately convicted seven civilian officers, including the bureau chief and vice chief of a branch office of the local public security bureau, for "extorting a confession under torture," a crime under Article 247 of China's Criminal Law. The court found that the seven officers had subjected Li to corporal punishment and inflicted injury to extort his confession for the murder. The court exempted five of the officers from criminal punishment, and sentenced both the bureau chief and vice chief to two years imprisonment. Article 247 authorizes a maximum sentence of three years imprisonment where a criminal suspect suffers minor injuries under torture.

The wrongful conviction of Nie Shubin, also from Hebei, created a national uproar in 2005 over widespread abuses in China's criminal justice system and the continuing problem of torture. Although Chinese law prohibits torture, national regulations currently in force do not require courts to exclude illegally obtained evidence. The Supreme People's Court issued a June 29, 1998, judicial interpretation, and jointly issued a September 6, 2004, circular, providing only that such evidence shall not be used as the "basis" for a criminal judgment. The Hebei opinion does not go so far as to prohibit the use of illegally obtained evidence during trial, but instead echoes the language in national regulations and focuses on the punishment of officials who resort to such means. The Sichuan provincial government introduced a similar opinion that actually prohibited the use of oral evidence obtained through illegal means, which went into effect May 1, 2005. At the time, an article in the Legal Daily questioned whether the Sichuan opinion could adequately address key problems in criminal procedure and evidence. In December 2005, the UN Special Rapporteur on Torture called on the Chinese government to "ensure that the reform of the criminal procedure law conforms to [International Covenant on Civil and Political Rights] 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."

For additional information on the Nie case and the problem of extorting confessions under torture, see the CECC's analysis of Torture and Abuse in Custody, in Section III(b) of the 2005 Annual Report.