Persistent Torture, Unaccountable Torturers A Report on China’s Implementation of Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or PunishmentComments Off on Persistent Torture, Unaccountable Torturers A Report on China’s Implementation of Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Persistent Torture, Unaccountable Torturers
A Report on China’s Implementation of
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Chinese Human Rights Defenders (CHRD)
November 5, 2008
The report finds that except for some progress in the promulgation of legislation and administrative documents, China has made no clear and discernible improvement in prohibiting the use of torture or of cruel, inhuman and degrading treatment. Twenty years after China ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in 1988, all are routinely practiced by government personnel with a wide variety of official duties as well as by persons affiliated with or working on behalf of the state to such a wide extent that their practice must be considered systematic.
This report was submitted to the UN Committee against Torture ((hereafter referred to as “the Committee”) in early October as it considers China’s state report (CAT/C/CHN/4) during its 41st session on November 7 and 10 in Geneva. The Chinese government has not been transparent in the process of preparing its current state report or previous state reports. It has not invited the participation or contribution of civil society, or invited members of civil society to participate in or observe the review process at the United Nations. This report is unique as it has been submitted by members of Chinese civil society and prepared by lawyers, independent legal experts, and human rights activists in China.
Many aspects of current Chinese law still provide fertile grounds for torture. China’s legal definition of “torture” is much narrower than that of CAT and it has not been amended to include all elements of the practice as defined in the Convention.
The use of violence and abuse of power by the police and other law enforcement officials such as Urban Inspection Officers (chengguan) and family planning officials are common. Officials who use such violence are rarely investigated or held accountable.
China has made little attempt to abolish the official system of administrative punishment, Re-education through Labor (laojiao), a form of arbitrary detention about which the Committee has raised serious concerns. The police have also made use of vague provisions in the Criminal Law to subject individuals to involuntary hospitalization in psychiatric institutions. In addition, China has developed an illegal network of interceptors and secret detention facilities commonly referred to as “black jails” (heijianyu) and “law education classes” (xuefaban) to persecute and arbitrarily detain petitioners. Torture and ill-treatment are routinely practiced in these extra-legal detention facilities. This combination of official and unofficial arbitrary detention systems has been use to punish human rights activists, petitioners and Falun Gong practitioners. In theory, individuals have recourse to challenge their incarceration by applying for an administrative review or filing an administrative lawsuit against the relevant government officials or agencies, but these remedies are rarely effective in challenging decisions on arbitrary detention.
Conditions in detention facilities remain poor. Incarcerated individuals are often forced to labor under poor and dangerous working conditions. Detention authorities tolerate and even promote inter-prisoner violence. Prisoners on death row are subjected to cruel treatment.
The lack of protection of the right to fair trial increases the risk of torture and other mistreatment in China’s detention facilities. Investigators and prosecutors rely heavily on confession, often without the presence of a lawyer, as evidence. Confession obtained by torture is still admissible in court. A suspect’s access to legal counsel is routinely limited and arbitrarily denied by the Public Security Bureau (PSB) while lawyers are often reluctant to defend certain criminal cases due to a number of reasons including a fear of prosecution according to intimidating laws regarding lawyers’ speech in court. Suspects can be legally detained for months before being brought in front of a judge. Because the provisions stipulating the legal limit of pretrial detention are numerous and complex and there is no habeas corpus in Chinese law, the PSB and the Procuratorate can easily extend the period of pretrial detention multiple times while making it difficult for the detainee to challenge the legality of their detention. Meanwhile, the right to appeal is often curtailed, and appeals, rather than being taken up by the higher court, are routinely sent back to the original court for “re-trial”, often leading to the same if not harsher sentences.
Perpetrators of torture are almost never held criminally accountable, largely because there are no independent complaint mechanisms to which victims of torture have recourse. The PSB and Procuratorate, under intense pressure to “strike hard” on crime, have little incentive to investigate allegations of torture against their own employees who use torture to “solve” cases quickly. The Procuratorate and the judiciary, which in theory might provide some institutional safeguards against torture, are unable to genuinely and independently supervise law enforcement agencies. The Procuratorate is ineffective in supervision of the conduct of the police because its primary purpose—prosecution of accused individuals—is aligned with that of the police. The judiciary lacks independence, being subordinate to other organs of government administration and under the control of the Chinese Communist Party’s (CCP’s) Political-Legal Committees. It is unwilling to seriously investigate allegations of torture and hold perpetrators of torture accountable especially in sensitive cases in which the verdict has been pre-determined by the Political-Legal Committees. In addition, evidence needed to prosecute perpetrators of torture is very difficult to obtain due to a number of factors, such as the increased use of means of torture that do not leave physical traces.
Victims of torture almost never receive adequate compensation. There is a lack of effective mechanisms to ensure that victims of torture are properly compensated. In the few cases in which compensation is granted, the amount is a pittance especially considering the painful and long process victims must go through to receive it.
Recommendations of specific measures the Chinese government can and should take to address the significant deficiencies in China’s fulfillment of its obligations under CAT are presented at the end of this report.
TABLE OF CONTENTS
Common methods of torture in China
Definition of Torture
China‘s definition of torture is narrower than that of the Convention against Torture
The Use of Violence by Government Officials
The use of excessive force by the police is common
Officials who use extensive violence in the implementation of the family planning policy are
rarely investigated or held accountable
Re-education through Labor continues to be widely used despite calls for its abolition
Government officials exploit general and vague provisions in the article of the Criminal Law
regarding involuntary hospitalization to incarcerate dissidents in psychiatric hospitals
Petitioners are ill-treated and arbitrarily detained for lodging complaints
Prevalence of Torture in Detention Facilities and Prisons
Detention of suspects can last months before they appear before a judge
Conditions are poor in detention facilities. Detention authorities tolerate and even promote
Forced labor under poor working conditions persists in detention facilities
Lack of Legal Safeguards to Prevent Torture
Confession is heavily relied on as evidence
Confession obtained by torture is admissible in court
Access to legal counsel is routinely limited and arbitrarily denied
Lawyers are deterred from defending detained clients
The right to appeal is often violated, and cases are sent back to original courts for re-trial
Investigation of Torture and Accountability for Torture
Judicial independence and restraints on police power are lacking
Perpetrators of torture are rarely punished or held legally accountable
Victims and their lawyers face difficulties in obtaining evidence to prosecute torture
Victims of torture almost never receive adequate compensation
Harassment and arbitrary detention of human rights defenders are not investigated
The Chinese government actively prohibits human rights education in China
Recommendations to the Chinese government
Appendix: CHRD Case Files of Torture and Other Cruel, Inhuman and Degrading Treatment or