During China’s first UPR, the Chinese government rejected all the recommendations by States related to the prevention of torture and other mistreatment of detainees, according to the United Nations, “Report of the Working Group on the Universal Periodic Review: China” (referred to hereafter as “the UN UPR report”).[2] However, in two National Human Rights Action Plans[3] issued after China’s UPR, the Chinese government has promised to strictly prohibit torture by “improving the system of eliminating illegal evidence,” holding accountable perpetrators and enforcing “preventive and remedial measures.”[4]

Torture and cruel treatment are still routinely employed to retaliate against and intimidate human rights defenders (HRDs).[5] Among the many detained HRDs and dissidents subjected to torture and mistreatment include individuals for whom CHRD has submitted urgent appeals to UN Special Procedures.[6] Unnatural deaths have occurred in detention centers, and torture and violence within “black jails”—illegal detention facilities run by government personnel or government-hired thugs— remain a serious problem.[7] In addition, torture and other forms of mistreatment extend beyond detention facilities and are practiced by “city administration and law enforcement” (chengguan) officers and family planning officials.[8] Beatings and violence are also common during forced evictions and land seizures, which are carried out by developers with the support or acquiescence of local government officials.[9] Judges routinely ignore claims of torture even when lawyers present evidence of torture at court hearings.[10] Courts have often ignored defendants’ claims that they were tortured by police while in detention or failed to exclude evidence obtained through torture, and lawyers have been retaliated against for revealing that their clients were subjected to cruel treatment.[11]

Although China’s revised Criminal Procedure Law (CPL), which took effect in January 2013, includes several provisions aimed at curbing torture, it still falls short of international standards.[12] Article 54, added as part of the revision, excludes from criminal proceedings confessions obtained through torture as well as witness testimonies and victim statements obtained through violence.[13] However, physical and documentary evidence obtained through torture is still admissible in judicial proceedings unless it is “collected in ways violating legal procedures and severely affecting judicial justice.”[14] Also, the CPL still does not define torture in a manner that conforms to the definition contained in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Conduct recognized as torture under CAT, like those that cause severe mental suffering, would not be recognized as such under the revised CPL, and statements obtained through these actions would still be admissible in court.

Recommendations

China should implement the recommendations from the Committee Against Torture’s review of China’s compliance with the CAT conducted in 2008;

Revise its laws and regulations to include all elements of the definition of torture as stipulated in Article 1 of the CAT;
Hold legally accountable any individuals responsible for torturing HRDs; and

Release information on the implementation of measures to prevent torture, including those covered in relevant sections of the National Human Rights Action Plans.

The Chinese government has not made sufficient progress in abolishing forms of administrative and arbitrary detention, as recommended during the UPR in 2009.[15]

Over the past twenty years, members of China’s intellectual establishment and its civil society have called for the abolition of Re-education through Labor (RTL),[16] a form of administrative detention that, according to data provided by the Chinese government, held 170,000 individuals in 320 RTL camps at the time of its UPR in 2009.[17] The summer of 2012 saw a flurry of public calls for abolition, particularly following the plight of a Chinese woman who was sent to RTL in August 2012 for petitioning about the abduction and rape of her young daughter.[18] Perhaps in response to protests against RTL, the Chinese government announced a month later that RTL “reform” was being piloted in four cities.[19] Disappointingly, rather than introducing substantive judicial or legislative reforms, the main “reform” appears to be cosmetic—renaming RTL as “Illegal Behavior Correction.” In early January 2013, a Chinese official was reported as stating that the government would halt the use of RTL this year upon approval of the Standing Committee of the National People’s Congress. However, official Chinese news sources did not immediately corroborate the report, leaving observers to only speculate further about any plans to reform or abolish RTL.[20] “Black jails” continue to hold petitioners in retaliation for their efforts to express grievances and pursue justice. In 2009 and 2010, reports in the official Chinese press about these facilities, which were previously off-limits to Chinese media, raised hopes that there could be a change in official attitude towards black jails, but no concrete reforms have emerged.[21] Petitioners have sued local governments for illegally detaining them in black jails, but courts very rarely accept such cases.[22]

Although it was recommended that China “eliminate abuse of psychiatric committal” during China’s first UPR, the country’s system of psychiatric confinement remains highly vulnerable to abuse.[23] Every year, hundreds of thousands of people who have, or are alleged to have, psychosocial disabilities are held against their will in psychiatric hospitals in China.[24] Authorities continue to involuntarily hospitalize individuals critical of the government. In October 2012, the National People’s Congress Standing Committee adopted China’s first-ever Mental Health Law (MHL), which will go into effect in May 2013.[25] However, the new law does not provide sufficient legal protections for those who are involuntarily committed to psychiatric institutions, and falls short of complying with the Convention on the Rights of Persons with Disabilities.[26] The MHL fails to close loopholes for abuse by relatives, police or government officials who forcibly commit individuals. The law also allows hospitals to defer to guardians on decisions about continued incarceration of those who have been involuntarily committed, even if medical professionals have concluded that there is no need to incarcerate. Overall, the MHL makes it difficult for the forcibly committed to exercise their right to legal counsel, though such a right is nominally provided by the law; for example, the MHL fails to clarify that those committed have the right to authorize their own representatives to appeal to judicial authorities on their behalf.[27]

Recommendations

China should abolish RTL and other forms of administrative detention;

Take effective measures to close down black jails and hold officials or their private agents operating black jails legally accountable; and

Further revise the Mental Health Law to accord with the Convention on the Rights of Persons with Disabilities, namely by prohibiting the involuntary commitment of people on the basis of psychosocial disabilities and ensuring that individuals who are involuntary committed have access to legal counsel.

During the 2009 UPR, several States recommended that the Chinese government cease practices that violate the right to freedom of expression and freedom of the press, recommendations that were rejected by the Chinese government.[28] In the past four years, as the government has maintained a tight grip over the media, many Chinese citizens have made use of cyberspace to express themselves, despite official monitoring and censorship. However, they risk paying a heavy price if they express views that are critical of government authorities.[29]

The government continues to use the crimes of “subversion of state power” and “inciting subversion of state power” (Article 105 of the Chinese Criminal Law[30]) to detain and imprison individuals for exercising their free expression rights.[31] Since December 2009, sentences of seven or more years each have been given to outspoken dissidents and activists convicted of such crimes, including Liu Xiaobo, Chen Wei, Chen Xi, Li Tie, Liu Xianbin and Zhu Yufu.[32]

Amendments made in April 2010 to the State Secrets Law (SSL) in April 2010[33] fail to address the concern that the law has been “abused for persecution of human rights defenders in particular petitioners or journalists,” as pointed out by the Czech Republic in the 2009 UPR.[34] The SSL continues to fail to provide precise definitions for what constitutes a “state secret.” Moreover, the revisions do not address how information is designated to be a state secret—a process that remains unsupervised by an independent body and subject to police abuse. The revisions also do not outline any mechanism through which a citizen accused of violating the law may challenge, or even inquire about, the classification of information as state secrets.

Recommendations

China should release individuals who have been detained and imprisoned for the peaceful exercise of their right to freedom of expression;

Interpret Article 105 of the Chinese Criminal Law to clarify and define the terms “subversion,” “incitement” and “state power,” as well as specific conditions under which an act of expression may constitute “subversion” or “incitement.” Such conditions must exclude any peaceful activity in the exercise of the right to freedom of expression, including expression critical of government authorities; and

Revise the State Secrets Law to provide a precise definition of a “state secret,” a clear process to designate information as state secrets, and a mechanism for citizens to challenge a “state secrets” charge.

The Chinese government has failed to “investigate reports of harassment and detention of human rights defenders,” as recommended by Australia during the 2009 review, and instead has continued and even stepped up efforts to harass HRDs. Persecution of human rights defenders reached a new extreme in the spring of 2011, as government authorities severely cracked down on civil society after calls appeared online for citizens to take “Jasmine Strolls” in major Chinese cities. During the ensuing “Jasmine Crackdown,” security personnel seized and interrogated an unknown number of people (estimated in the thousands) who had spoken out on the subject, posted related information online, or participated in related rallies. CHRD confirmed information on more than 50 HRDs, including activists and lawyers, who were subjected to enforced disappearance and arbitrary detention as part of the crackdown.[35]

States called on the Chinese government in 2009 to ensure that lawyers “can defend their clients without fear of harassment” and “participate in the management of their own professional organizations,” and for the government to support “the independence of judiciary and lawyers.”[36] The Chinese government rejected all of these recommendations. Lawyers are still prevented from, and harassed for, providing legal assistance to victims of human rights violations. In addition to being pressured, they can be dismissed from their jobs and the law firms where they work are forced to close.[37] Judicial authorities have also used a powerful tool—the annual review for renewing licenses for lawyers and firms—to revoke, suspend or deny lawyers the right to practice law.[38] Lawyers associations remain tightly controlled by the government. Efforts made to press for direct elections of the leaders of the officially-controlled Beijing Lawyers Association were suppressed, and Beijing authorities denied or delayed the renewal of licenses of lawyers who led the campaign.[39] In 2012, the government instituted a new measure that further compromises the independence of lawyers, who must now take a loyalty oath to the Chinese Communist Party upon joining the bar or reapplying for lawyers’ licenses.[40]

Recommendations

China should release all HRDs who are detained as a result of the exercise of their human rights and hold legally accountable any individuals responsible for subjecting HRDs to reprisals or retaliation for their human rights activities; and

Cease the harassment of lawyers who take on “sensitive” cases, including the practice of using the annual evaluation of lawyers’ performance and the lawyers licensing process to intimidate and retaliate against human rights lawyers.

One of the most alarming recent developments in China has been the increased use of “enforced disappearance” against HRDs. Enforced disappearance was one of the main tools of suppression during the Jasmine Crackdown in the spring of 2011, when at least two dozen high-profile HRDs were disappeared and held for weeks or months at a time. After these HRDs reappeared later in the year, it was clear that they had been threatened with retaliation if they revealed what they had endured. When some eventually ended their silence, many told of brutal psychological and physical torture.[41] Since then, enforced disappearance has remained a routine tool used to persecute HRDs, particularly to suppress their activism around some high-profile human rights cases and issues as well as during “sensitive periods.”

With the revision of China’s CPL, “residential surveillance” (jianshi juzhu) in unknown locations may well become a six- month black hole into which activists and dissidents could effectively disappear. In theory, residential surveillance has been a form of pre-trial non-custodial detention served at home since the previous version of the CPL first took effect in 1996. However, Article 73 in the new CPL will allow for individuals to be placed under residential surveillance at a “designated location” for up to six months in cases involving suspected crimes of endangering state security, terrorism, and major bribery, and when serving residential surveillance at home would be deemed by police to “hinder the investigation.” While the provision stipulates that families must be notified of residential surveillance within 24 hours, it does not indicate that they must be told the place of detention. Several activists have “disappeared” since the new CPL was adopted in March 2012.[42]

Recommendations

China should revise Article 73 of the CPL so that “residential surveillance” cannot be used to allow authorities to disappear an individual;

Hold legally accountable any individuals responsible for disappearing HRDs; and

Sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearance.