Keywords: CAT, torture, implementation report, concluding observation 

 

Illegality of torture is an important development in the human civilization, which proves that the human rights protection is improved. Although in the early UN document of human rights there were some scattered regulations to ban torture, the UN cannot prevent and punish the crime. The facts of torture exist in different countries. Given this, the UN passed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1984 (hereinafter referred to as the CAT）.  The Convention came into effect on June 26, 1987，and it has become the first legal binding document towards torture and other cruel, inhumanity or degrading treatment or punishment internationally. 

On February 2, 1986, China signed the CAT; on September 5, 1988, the National People’s Congress approved it and declared to make a reservation concerning the competence of the Committee against Torture to initiate investigations under Article 20 and to examine the complaints of other States parties (Article 30.1). The Convention came into effect in China on November 3, 1988.  

As China doesn’t specifically recognize the Committee’s competence to examine the inter-State complaints and personal applications, the report system of State party is the main enforcement obligation. Up to now, China has submitted six reports of State party. The first one was submitted in December 1988, and a supplementary one in October 1992; the second one in December 1995; the third one in April 1999; the fourth and fifth ones combined in January 2006; the sixth one in 2013. The CAT made corresponding comments on December 2 and 3, 2012, after examining reports of the State party of China. This article will, based on the comments of the Committee, review the undertakings by China from the legislative, judicial and executive aspects and in particular problems.     

 

 

There are two legislative models for use against torture in the world: one is to write a charter to regulate all kinds of torture, which is adopted by fewer countries and regions, such as the Netherlands, Canada, France, Macao and HK. The other is to classify torture as another type of crime, which does not break the original pattern of crime type and is adopted by a majority of countries. Some classify it as a crime of obstruction of justice, like Russia; some classify it as a crime of malfeasance, e.g. Germany and Japan; some classify it as personal infringement of human rights, which is the standard adopted by China. China has ruled torture in the Criminal Law, Article 247 “torture and taking evidence by force” and Article 248 "maltreatment of imprisoned person".

Compared with the definition of torture in CAT, China has several characteristics in the elements of the crime. Firstly, in the objective aspect, the behavior object suffered flesh pains and physical torture. The crime above-mentioned involved torturing physically but not mentally. Secondly, the Convention states that torture is a conduct crime. The crimes of extorting confessions by torture, obtaining evidences by force and maltreating prisoners and detainees are identified as a result crime in China. The conduct of attempting, conspiring and participating in torture is not regarded as a crime. Thirdly, subjects of implementing the crimes are limited to judicial officers and supervising officers, not including “people who have official identity”. Fourthly, the aim of implementing torture is only limited to extorting a confession.

In the follow-up actions, China stipulates that the Criminal Law is applicable to several crimes of implementing tortures without requiring elements of actors’ identity, intention and aim, such as homicide, battery and crime of illegal imprisonment. At the same time, there are special provisions to regulate people who have special identities such as official capacity. Secondly, injury incurred by tortures punishable according to Chinese law include not only physical injury through manners such as hitting and using instrument of torture but also mental injury such as maltreating and insulting. Pursuant to Articles 248 and 247 of the Criminal Law, the crimes of extorting confessions, obtaining evidence by force and maltreating prisoners and detainees involve methods of using violence and maltreating, insulting and other moral intense pain.

According to the principle of “nullum crimen sine lege”, we believe that the subject of implementing torture should include everyone, which is legal and reasonable. Other explanations are open to further discussion. To reconcile stipulations of convention, China considered that mental torture as well as intention, collusion and participation in torture should be stipulated in criminal behavior. The specific methods is a good choice, for example, through modifying law and making judicial explanation; specifically, stipulating torture and other cruel, inhuman or degrading treatment or punishment with mental torture as well as intention, collusion and participating cruel torture. In November 2012, the Supreme People’s Court issued a judicial explanation, stipulating that taking other methods that make the defendant painful and suffering mentally and physically, forcing the defendant to confess unwillingly should be determined as torture and other illegal methods stipulated in Article 54 of Criminal Procedure Law, which represents China’s progress in performing convention.

 

Exclusionary rule of illegally obtained evidence is a rule that obtaining evidences through illegal channels and methods cannot be used to charge a defendant. In 2012 China’s Amendment of the Criminal Procedural Law makes inadmissible the evidence from the methods of extorting confessions by torture and also stipulates that the investigation of serious and big criminal cases should be recorded and videoed. Evidence as confession of a suspect and defendant, testimony of a witness and statement of a victim, obtained by illegal methods such as extorting of confessions by torture, force and threat, should be excluded. The provision shows that evidence as confession of a suspect and defendant, testimony of a witness and statement of a victim, obtained by illegal methods such as extorting of confessions by torture, force and threat, should be excluded, which restricts from source extorting of confessions by torture and illegal collection of evidence.

 

In 2012, The Ministry of Public Security revised the Provisions on the Procedures for Handling Criminal Cases by Public Security Organs. “Respecting and safeguarding human rights” was added as part of the basic tasks of criminal law enforcement of public security organs. Prohibition of self-incrimination of anyone and prohibition of extorting confessions by torture” were written into the general provision. Procedures for the collection and examination of evidence and the exclusion of illegally obtained evidence were further clarified. It is also clearly stipulated that evidence extorted by torture or obtained by other illegal means shall be excluded. Provisions on the Procedure for Handling Administrative Cases by Public Security Organs was also revised in 2012. It stipulated as strict rules for administrative cases to exclude illegally obtained evidence as for criminal cases. Evidence extorted by torture or obtained by other illegal means shall not be taken as the basis for deciding a case. Since 2014, the system of producing audio-visual recordings of the whole process of suspect interrogating in major cases was comprehensively implemented by public security organs in China, and then it will be gradually implemented in all criminal cases.

 

 

Articles 12 and 13 of the CAT provide for preventing torture in the process of investigation and prosecution. Investigation and prosecution process is the first stage of the process in which people committing tortures shall be punished, but there are some difficulties in practice because the subject to implement torture is special. The Committee against Torture states that: first, there is an absence of a uniform and effective investigation mechanism to examine allegations of torture in China;¹ there are serious conflicts of interest with the role played by the procuratorates which are charged with investigating allegations of torture by government officials and private actors acting with the acquiescence or consent of government officials. This may lead to ineffective and partial investigations.² Second, rules and practices of certain procurators limit the prosecution of torture suspects to certain serious cases;³ some instances of acts involving torture are considered as “relatively minor offences” and are subjected only to disciplinary or administrative punishment.⁴

The Chinese government has stated that there are significant differences in the institution between procuratorates in China and the prosecuting authorities in Europe and America. A salient feature of the Chinese procuratorial system is the independence guaranteed by the Constitution. The Constitution stipulates that the people’s procuratorates of China are State organs for legal supervision; the people’s procuratorates exercise procuratorial power independently in accordance with the law and are free from intervention by any administrative organs, social groups or individuals. Therefore, independent investigations by procuratorates of cases involving torture by government officials will not result in any serious conflict of interest with the responsibilities of the procuratorates.⁵

Firstly, for a detainee in custody within an detention facility, the detainee and his/her family members are entitled to complain to the detention facility, the competent authority of the facility or the procuratorate in various ways such as oral, written, sending an e-mail and meeting the dispatched prosecutor, etc. Other relevant persons are also entitled to report to the organs mentioned above. There are mail boxes in every detention district set by procuratorial organs and detention facilities for detainees to send complaint letters. Other relevant persons may send reports to the authorities above mentioned. And there are torture alarm systems in every detention room. Moreover, in accordance with Regulations on the Supervision of Public Security Organs, the supervision departments of public security organs are responsible for entertaining people’s letters or calls to complain or report police officers’ violation of law or regulation and inspect the issue. Secondly, in accordance with their responsibilities, relevant law enforcement organs in China are able to actively discover torture or other cruel, inhuman or degrading treatments in detention facilities. In addition to the regular or irregular inspection by the competent authorities of a higher level of incarceration facilities, police supervisors can also enter the incarceration facilities for a spot supervision. The procuratorial organs will also go deep into the prison area, detention room, arraignment room and meeting room for a site inspection, actively to find whether there is torture or abuse in the detention house.

 

In China, there are three types of detention: administrative detention, criminal detention and judicial detention. Torture crime typically occurs in administrative detention and criminal detention. The Committee against Torture notes that there are some potential risks of torture in our administrative detention.

First, before charge, the police detention can be up to 37 days. In some cases, the suspect can even be detained for longer time. The detention time is longer than 48 hours stipulated by the international standard.      

Second, when the suspect has failed to be notified of the rights of detainees during the detention, including the right to contact family members, the right to receive medical treatment;⁶ the right to meet attorney with permission during the detention.⁷

The Criminal Procedure Law clearly stipulates the custody period of criminal suspects in the investigation stage. According to Article 69 of this law, if the public security organ deems it necessary to arrest a detainee, it shall, within three days after the detention, submit a request to the people's procuratorate for examination and approval. Under special circumstances, the time limit for submitting a request for examination and approval may be extended by one to four days. As to the arrest of a major suspect involved in crimes committed from one place to another, repeatedly, or in a gang, the time limit for submitting a request for examination and approval may be extended to 30 days. The People's Procuratorate shall decide either to approve or disapprove the arrest within seven days from the date of receiving the written request for approval of arrest submitted by a public security organ. In addition, Ministry of Public Security, procuratorates and the people's courts carry out the task to screen and correct custody period nationwide, and set up the systems including noticing custody period, circulating a notice on custody information, reminding the expiration of the period of custody, circulating a notice on regular inspections, tipping-off and redressing the extended custody and investigating responsibilities for the extended custody.

In accordance with the Regulations on Detention Facilities passed in 2012, the lawful rights of detainees shall be protected. In terms of noticing rights and obligations, when taking a detainee into custody, a detention facility shall notify the detainee of his or her lawful rights and the regulations to be observed. The authority deciding to detain shall inform the relatives of the detainees in time. In terms of the right of meeting, a detention facility shall protect a detainee's right of meeting visitors during detention, including the attorney. In 2007, Lawyers Law protected a detainee's right of meeting his/her attorney. The Regulations on Legal Aid passed in 2003 by the State Council clearly stipulates the scope, standard, implementation procedure of carrying out the legal aid, and the rights, obligations and legal liability of all parties concerned in the legal aid, which guarantees the legal relief for criminal suspect with economic difficulties.

 

 

The CAT stipulates that torture victims or their dependants shall be entitled to compensation. The State Compensation Law of China stipulates that victims are entitled to receive compensation. In 2010, the newly added Article 35 of the State Compensation Law stipulates that compensation for conscious pain and suffering incurred by criminal detention and arrest shall be paid. On July 31st of 2014, the Supreme People’s Court issued Opinions on Issues concerning the Application of Compensation for Conscious Pain and Suffering in the State Compensation Cases Heard by the Compensation Committees of the People's Courts (Herein after referred to as the Opinions). According to Article 7 of the Opinions, the specific amount of compensation for conscious pain and suffering shall not exceed 35% of the total amount of personal freedom compensation and life health compensation in principle, with the amount total not less than 1000 yuan.

 

Apart from compensation for injury, the Committee against Torture also highlights the post-treatment to victims. In the latest concluding opinions, members of the Committee against Torture expressed their concern about the recovery treatment provided for victims including those suffering sexual violence, human trafficking, domestic violence and maltreatment and proposed to establish rehabilitation centers in Beijing or other major cities for people suffering torture.

 

Given the facts and feasibility of rehabilitation work for the victims, the government may establish or encourage civic groups to establish rehabilitation centers, study the problems related to rehabilitation work and provide the victims with necessary medical treatment, psychological treatment or consulting services, etc. Besides, the government may also promote the establishment of non-governmental or governmental funds so as to grant remedies to victims.⁸ 

 

Torture is more likely to occur in the process of detention, interrogation or the handling of other forms of arrest, custody or imprisonment performed by civil or military law enforcement officer, medical staffs and other relevant persons. Thus, it is imperative to eradicate torture via professional skills training and moral training of these people. In China, some policemen may torture or maltreat the suspects in order to get criminal confessions and relevant information. On one hand, the law enforcement officers, procurators, judges and medical staffs lack professional skills and knowledge. On the other hand, they have little knowledge of the international standards of human rights. Furthermore, most of those who study international conventions on human rights and other relevant documents are from academic circle. 

 

Therefore, China should provide comprehensive training to officers of public security organ, procuratorial organ and judicial organ. To date, China has conducted a series of work against torture effectively in professional training against torture. The public organs carried out three pre-requisite training: orientation training for occupation, training for promotion in titles and police ranks, and practice training of officers at primary level and in front line. The procuratorial organ has formulated Implementation Guidelines for Occupational Training of Procurators and Interim Provisions on the Training of Procurators which stipulate the content and approaches including orientation training for occupation, training for promotion, specific training and training in other relevant aspects. The courts are mainly responsible for the training of officers in prison system, especially counseling psychologists eligible for state vocational qualification.

 

Prohibition of torture remains a daunting task. China, as one of the States parties, shoulders heavy responsibilities. To prevent torture, China needs to further deepen its judicial reform, adopt further measures to fulfill obligations as stipulated in the conventions, uphold and guarantee the right of suspects to be free from torture. The aim of torture prohibition is not only to prevent unjust cases, but also to “protect the dignity, sound physical and mental health of individuals”. 

 

* XU Shuang（徐爽）,  associate professor, Institute for Human Rights of China University of Political Science and Law.

1. See A/55/44 para. 121.

2. See CAT/C/CHN/CO/4 para. 20.

3. See A/55/44 para. 119.

4. See CAT/C/CHN/CO/4 para. 31.

5. See CAT/C/CHN/CO/4/ADD. 2 para. 8.

6. See CAT/C/CHN/CO/4 para 11.

7. See CAT/C/CHN/CO/4 para 11.

8. See Zhao Shanshan, Study on Convention agaisnt Torture, China University of Political Science and Law Press, 2012, at 216.