Concluding Observations of the Forty-first Session of the Committee Against Torture (CHINA)

• Author: China Law Digest

1. Introduction

   2. The Committee welcomes the fourth periodic report of China, which, while generally following the Committee’s guidelines for reporting, lacks adequate statistical data and practical information on the implementation of the provisions of the Convention.

2. Positive aspects

   (a) the 2001 Marriage Law explicitly prohibiting domestic violence;

   (b) the 2007 amended Law on Lawyers guaranteeing lawyers’ right to meet with criminal suspects;

   © the 2005 Law on Administrative Punishments for Public Order and Security which requires inter alia that security organs shall adhere to principles of respect for human rights guarantees and, in particular… “has, for the first time established in national law the exclusion rule of illegal evidence.”

   The Committee appreciates the promulgation of the following new regulations:

   (a) Amendment, since 2005, of the Procedural Provisions for the Handling of Administrative Cases by Public Security Organs and the Procedural Provisions for the Handling of Criminal Cases by Public Security Organs;

   (b) Issuance by the Ministry of Justice (14 February 2006) of Six prohibitions on people’s prison police; Six prohibitions for RTL guards; and by the Supreme People’s Procuratorate (26 July 2006) of Regulations on filing cases standard on infringing rights by dereliction of duty, focused on preventing abuses in detention and investigating abuses;

   © Reforms of the death penalty system aimed at creating a system of review that could ensure that wrongful convictions are overturned before executions are carried out;

   (d) The prohibition of corporal punishment of children in schools and judicial processes.

   The Committee welcomes the ongoing efforts made by the State party to combat torture practices, including, inter alia, the adoption of administrative regulations prohibiting the use of torture to obtain confessions, the provision of nationwide training of the police and the introduction of audio and video recording in interrogation rooms, notwithstanding the lack of adequate methods of enforcement for the administrative regulations and the lack of changes to criminal or criminal procedure laws.

   The Committee welcomes the accession of China to (a) the International Covenant on Economic, Social and Cultural Rights in 2001, (b) the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography in 2002 and © the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict in 2008.

   The Committee also notes with interest that China has invited and received a visit from the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment which was made in November-December 2005. The Committee further notes that the Government of China has also received the Working Group on Arbitrary Detention twice.

   The Committee notes the statement by Wang Zhenchuan, the Deputy Procurator-General of the Supreme People’s Procuratorate in November 2006 that “nearly every wrongful verdict in recent years … involved … illegal interrogation”. In this regard, the Committee notes with interest the Special Rapporteur on Torture’s observation that “the growing willingness of officials and scholars to acknowledge China’s torture problem is a significant step forward”. Efforts beginning with the publication of The Crime of Tortured Confession in the late 1990s have acknowledged the torture problem, inter alia by addressing wrongful convictions, weak investigations, lack of professionalism in the police, and confessions extorted by torture, and by the resumption by the Supreme People’s Court of its authority to review all death penalty cases (see E/CN.4/2006/6/Add.6, paras. 46-51).

   The Committee also welcomes the efforts made by non-governmental organizations, national and international, to provide it with relevant reports and information, and encourages the State party to strengthen further its cooperation with them with regard to the implementation of the provisions of the Convention.

3. Subjects of concern and recommendations

   Widespread torture and ill-treatment and insufficient safeguards during detention

   11. Notwithstanding the State party’s efforts to address the practice of torture and related problems in the criminal justice system, the Committee remains deeply concerned about the continued allegations, corroborated by numerous Chinese legal sources, of routine and widespread use of torture and ill-treatment of suspects in police custody, especially to extract confessions or information to be used in criminal proceedings. Furthermore, the Committee notes with concern the lack of legal safeguards for detainees, including: (a) Failure to bring detainees promptly before a judge, thus keeping them in prolonged police detention without charge for up to 37 days or in some cases for longer periods; (b) Absence of systematic registration of all detainees and failure to keep records of all periods of pretrial detention; © Restricted access to lawyers and independent doctors and failure to notify detainees of their rights at the time of detention, including their rights to contact family members; (d) Continued reliance on confessions as a common form of evidence for prosecution, thus creating conditions that may facilitate the use of torture and ill-treatment of suspects, as in the case of Yang Chunlin. Furthermore, while the Committee appreciates that the Supreme Court has issued several decisions to prevent the use of confessions obtained under torture as evidence before the courts, Chinese Criminal procedure law still does not contain an explicit prohibition of such practice, as required by article 15 of the Convention. (e) The lack of an effective independent monitoring mechanism on the situation of detainees (arts. 2, 11 and 15). As a matter of urgency, the State party should take immediate steps to prevent acts of torture and ill-treatment throughout the country.

       As part of this, the State party should implement effective measures promptly to ensure that all detained suspects are afforded, in practice, all fundamental legal safeguards during their detention. These include, in particular, the right to have access to a lawyer and an independent medical examination, to notify a relative, and to be informed of their rights at the time of detention, including about the charges laid against them, as well as to appear before a judge within a time limit in accordance with international standards. The State party should also ensure that all suspects under criminal investigation are registered. The State party should take the measures necessary to ensure that, both in legislation and in practice, statements that have been made under torture are not invoked as evidence in any proceedings, except against a person accused of torture, in accordance with the provisions of the Convention. The State party should review all cases in which persons were convicted on the basis of coerced confessions with a view to releasing those who were wrongly convicted. The State party should establish consistent and comprehensive standards for independent monitoring mechanisms of all places of detention, ensuring that any body established, at the local or the national level, has a strong and impartial mandate and adequate resources.

       Conditions of detention and deaths in custody

   12. While the Committee takes note of the information from the State party on conditions of detention in prisons, it remains concerned about reports of abuses in custody, including high numbers of deaths, possibly related to torture or ill-treatment, and about the lack of investigation into these abuses and deaths in custody. While the Committee notes that the Special Rapporteur on Torture has found the availability of medical care in the detention facilities he visited to be generally satisfactory (E/CN.4/2006/6/Add.6, para. 77), it also notes with concern new information provided about inter alia the lack of treatment for drug users and people living with HIV/AIDS and regrets the lack of statistical data on the health of detainees (art. 11). The State party should take effective measures to keep under systematic review all places of detention, including existing and available health services. Furthermore, the State party should take prompt measures to ensure that all instances of deaths in custody are independently investigated and that those responsible for such deaths resulting from torture, ill-treatment or willful negligence are prosecuted. The Committee would appreciate a report on the outcome of such investigations, where...