Unaccountability at Root of Persistent Torture in ChinaComments Off on Unaccountability at Root of Persistent Torture in China
CHRD & Coalition of Chinese NGOs Releases Report for UN Review of China’s Treaty Obligations Under Convention Against Torture
(Network of Chinese Human Rights Defenders—November 10, 2015) The Chinese government has systematically failed to prevent torture, hold torturers accountable, and respect the rights of torture victims, a report prepared by CHRD and a coalition of Chinese human rights defenders finds. In China, torture and cruel, inhuman or degrading treatment and punishment remain persistent and widespread. Authorities have largely ignored relevant legal measures in Chinese law. Investigations and criminal prosecution of torture suspects are rare, and victims seeking compensation have faced obstacles, and in some cases reprisals. The report has been submitted to the UN Committee against Torture (CAT), which is currently reviewing China’s compliance to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The formal dialogue will take place on November 17-18, 2015.
This report is based on scores of interviews and data from more than 2,300 reviewed cases of deprivation of liberty from January 2012 through June 30, 2015. Although the government has claimed to CAT that “so-called ‘figures with different political views’” are not subjected to torture, the findings of this report shows that torture and other forms of mistreatment are especially common in cases involving individuals whose views, speech, religious beliefs, or rights defense work are deemed threatening by the Chinese Communist Party (CCP).
The report acknowledges that changes to Chinese laws and regulations since 2009, which the government referenced in information it sent to CAT for the current review, have introduced some measures that can potentially help prevent torture and punish torturers. This legislation, however, also has included provisions that negatively affect efforts to prevent torture, and worded vaguely enough to allow torturers to avoid adequate and appropriate punishment. Furthermore, new or draft laws introduced in the past two years weaken existing provisions. For example, the new National Security Law, draft Anti-Terrorism Law, and amendments to the Criminal Law, as well as other draft laws grant broader powers to police and allow exceptions to provisions intended to protect rights of detainees or criminal suspects.
Persistently lax implementation and weak enforcement of both the Convention and relevant domestic Chinese laws have undermined efforts to prevent torture and punish torturers. Problems of implementation and enforcement are partly linked to China’s one-party, authoritarian political system, as well as the lack of an independent judiciary and an absence of the rule of law.
The report focuses on cases and incidents where Chinese authorities have violated legal measures for preventing torture and disregarded basic safeguards intended to protect detainees’ and victims’ rights, including those specifically stipulated in the Convention against Torture under Articles 2, 11, 12, 13, 14, & 15.
More specifically, we examined the following issues and found:
- Individuals held as criminal suspects have been subjected to excessively prolonged pre-trial detention. For example, lawyer Pu Zhiqiang (浦志强), who was taken into custody in May 2014 after attending an event memorializing the 1989 Tiananmen Massacre, has yet to be tried. Another egregious case involves three HRDs—Huang Wenxun (黄文勋), Yuan Fengchu (袁奉初), and Yuan Xiaohua (袁小华). Arrested in July 2013 in Hubei Province, they have spent more than two years in pre-trial detention. Police detained them for calling for greater government transparency and an end to CCP and government corruption. In another example, police held more than 30 individuals in extended criminal detention—in some cases for as long as 12 months—without indicting them after they had been detained in the fall of 2014 during the suppression against mainland supporters of the Hong Kong pro-democracy protests.
- Human rights lawyers face increasing persecution and interference, including violent assault, in their work defending detainees. With alarming frequency, defense lawyers are denied access to detained or imprisoned clients, violently assaulted, and arbitrarily detained in the course of conducting their professional work. For example, since a crackdown against lawyers began in early July 2015, more than 20 human rights lawyers and activists have been held incommunicado for longer than 100 days. This contradicts statements in the Chinese government’s response to the Committee’s List of Issues—namely that those who hold politically dissenting views have not been “cut off from contact with the outside world for more than three months.” Eleven of those lawyers and HRDs remain under “residential surveillance,” including Wang Yu (王宇), and six others are still “forcibly disappeared,” including Li Heping (李和平).
- Detainees or prisoners of conscience are deprived of medical treatment as a form of torture that also constitutes political persecution. A tragic case is that of activist Cao Shunli (曹顺利), who died in March 2014 after authorities denied her sufficient medical care in police custody for over five months. Cao had documented rights abuses and wanted the government to accept her information for inclusion in the State report for the UN Human Rights Council Universal Periodic Review of China. She believed in using international human rights mechanisms to improve rights conditions in China and faced reprisals from authorities as a result.
- Evidence extracted through torture is still admitted in court trials. Such evidence was officially banned in the 2012 amendments to the Criminal Procedure Law. While changes on the books technically brought Chinese law in line with the Convention, there are few signs that courts have implemented them, a conclusion even drawn in China’s state media.
- Torturers are rarely held criminally accountable and, when punished at all, are given light punishments, thus fueling a cycle of impunity for perpetrators. Despite the government’s claims to CAT and other UN bodies, the country lacks mechanisms independent from government and CCP interference to investigate and prosecute cases of torture. Chinese authorities have largely ignored requests by CAT—and Chinese citizens—to provide details on punishments for individuals convicted of torture-related crimes. This lack of cooperation with CAT makes it impossible to assess whether torturers have received “appropriate penalties” as stipulated in Chinese law.
- Established channels for filing complaints about torture are weak and ineffective, and complainants often face reprisals. Authorities pressure victims to drop complaints or threaten them for making accusations. Due to such challenges, victims of torture in China tend not to seek accountability or compensation.
- Compensation for torture victims is rare or inadequate, and such cases are mostly handled with little judicial oversight. Although China has a State Compensation Law with standards for granting compensation through the judicial system, courts only handle such cases when those seeking compensation do not accept financial terms offered by police or prosecutors, according to information the government itself provided to the CAT.
- Civil society has been largely barred from participation in the CAT review process, and those who demand participation have faced reprisals. From early 2015, dozens of Chinese citizens sent government ministries more than 100 “open government information” requests about torture cases about which the government had given very limited information to the Committee. Not only did those government agencies refuse to grant those information requests, officials have in some cases questioned, intimidated, and even detained those who filed the requests.
The joint coalition of NGOs that prepared this report recommends that the Committee against Torture push the Chinese government to:
- Implement effective measures to ensure that all detained suspects, regardless of charges against them, are provided fundamental legal safeguards in detention, including the right to access a lawyer and have the defendant’s family notified within the time frame specified by law, and to appear before a judge within a reasonable period of time, in accordance with international standards;
- Release human rights lawyers and activists who have been put under secret “residential surveillance” or criminal detention for an unreasonably prolonged period without trial (some individuals have been detained for more than two years) (See Appendix 2 below);
- Revise Article 73 of the Criminal Procedure Law so that “residential surveillance” no longer permits authorities to detain an individual incommunicado without a trial;
- Take effective measures to ensure that lawyers can, independently and without fear of harassment and retaliation, defend their clients’ legal rights;
- Revise Article 309 of the newly amended Criminal Law so that the law cannot be used to punish lawyers for exercising their free-speech rights in court;
- Strictly enforce relevant legal provisions to ensure that illegal evidence extracted through torture is excluded in court trials, and hold judges accountable for admitting such evidence;
- Establish an effective and independent oversight mechanism to ensure prompt, impartial and effective investigation into all allegations of torture and all instances of death in custody; require that those responsible for deaths resulting from torture or wilful negligence are prosecuted; and make public information about the results of such investigations, including details of penalties levied against them, and any compensation given to victims’ families;
- Make public data on state agents who have been investigated and criminally prosecuted for acts of torture, including their names, crimes, and the specific criminal punishments;
- Abolish the Politics and Law Committees, which are invested with the authority to interfere in (“guide”) court rulings and dictate verdicts; expand pilot circuit court projects and other measures designed to move toward a more independent judiciary, free from government and CCP interference;
- Abolish all forms of extralegal detention, including “black jails” and the CCP disciplinary shuanggui system; investigate alleged abuses committed in these facilities as well as in the abandoned Re-education Through Labor camps;
- Ensure that police departments, prosecutors’ offices, and courts record or register complaints of alleged torture, and pursue lawsuits filed by complainants;
- Establish and implement safe and independent complaint procedures, and protect complainants from retaliation;
- Hold criminally responsible state agents who commit acts of retaliation against torture victims who report on or seek redress for mistreatment;
- Provide timely and adequate medical treatment for detainees and prisoners by doctors of their own or their families’ choosing; release detainees for needed treatment, and hold state agents criminally accountable for the use of deprivation of medical treatment to retaliate against detainees/prisoners of conscience;
- Provide timely, fair and adequate compensation to victims who were subjected to torture in extralegal detention facilities and in the now-abandoned Re-education through Labor camps;
- Take effective measures to ensure that court rulings on state compensation are enforceable by law;
- End any reprisals against Chinese citizens who participate in, or who seek information necessary for, treaty body reviews and other UN human rights activities.
Read the report on CHRD’s website or in PDF. The report’s appendices are also linked below:
Appendix 1: Criminal Procedure Law (2012): Chart of Legal Provisions from Criminal Detention to First-Instance Trial
Appendix 2: 36 Selected Cases of Prolonged and/or Secret Pre-trial Detention (2013-present)
Appendix 3: “No Permission to Meet Criminal Suspect Decision” Concerning Detained Lawyer Xie Yang (From Public Security Bureau, Branch Division, Changsha City, Hunan Province)
Appendix 4: Sample Replies From the PRC Ministry of Foreign Affairs, Ministry of Public Security, and Ministry of Justice to Chinese Citizen Application for Information Disclosure on Data Submitted to CAT
Appendix 5: State Council’s Refusal to Conduct Administrative Review of the Ministry of Foreign Affairs’ Refusal to Disclose Information Submitted to CAT
Appendix 6: Beijing Municipal Higher People’s Court Notice Stating It Will Not Conduct a Public Hearing & Will Only Issue its Written Decision
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