"Almost all of the major flawed cases discovered in recent years are all closely linked to confessions extorted during interrogations. The causes of extorted confessions are complex, but one of them is the imperfections in the legal mechanism."
— Zhu Xiaoqing, Deputy Procurator-General
Supreme People's Procuratorate, August 21, 2007
Torture is prohibited by international law, and by China's own Constitution and domestic laws. But despite these prohibitions, there is ample evidence from first-hand accounts by detainees and prison inmates that the use of torture by police, state security, and prison officials is prevalent in China. In addition, the use of torture as a tool of political repression is frequently reported by victims, domestic activists, international media, civil society groups such as social service and church groups, and non-governmental organizations.
In recent years, following the revelation of wrongful convictions in several murder cases, the Chinese government has acknowledged that the use of torture to extract confessions from criminal suspects remains a serious problem in China's criminal justice process and a major cause of miscarriage of justice.
In an effort to reduce the use of torture in criminal investigations, China's top judicial and law enforcement organs, including the Supreme People's Procuratorate (SPP), the Supreme People's Court (SPC), the Ministry of Public Security (MPS), and the Ministry of Justice (MOJ), have introduced several new measures over the last couple of years that aim at reforming law enforcement practices. The following are examples.
Additionally, in 2002, the government launched programs to train police and prison wardens on legal procedures.
- In 2006, the SPP listed "extracting confessions through torture, collecting evidence by violent means, and abusing detainees" among 42 offenses that would trigger criminal investigations.
- In 2006, the SPP ordered that all interrogations concerning job-related crimes be audio taped (beginning March 2006) and video-taped (beginning October 2007).
- In March 2007, the SPC, SPP, MPS, and MOJ jointly issued a set of regulations which stated that confessions from criminal suspects or testimony from witnesses extorted through the use of force, threat, or other illegal means cannot be used as the basis for indictment or conviction in death penalty cases.
It is not yet clear whether these measures are being implemented effectively and whether they are having a significant impact on reducing torture. But as Zhu Xiaoqing, Deputy Procurator-General, admitted in August 2007, the practice of torture in China's criminal justice system stems from a complex set of causes, including imperfections in the country's legal mechanisms.
This section contains a brief summary of international and domestic prohibitions against torture in China and an analysis of the structural flaws in China's judicial system that result in the use of torture.
China's Obligations: The Prohibition Against Torture
- The Chinese government is required through international treaties and customary international law to uphold prohibitions against torture
First and foremost, the Chinese government is bound by customary international law to prevent and investigate cases of torture and punish perpetrators. The customary prohibition against torture carries significant weight in international law, and is normally referred to as a jus cogens prohibition, "peremptory law" that is binding on all states even without ratification of a specific treaty. As such, the Chinese government is strictly obligated under international law to prohibit torture.
The Chinese government is also obligated under its international treaty commitments to respect and uphold prohibitions against torture. China ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in 1988. By ratifying the CAT, the Chinese government is required to prevent and investigate cases of torture, and punish perpetrators. However, the Chinese government shows a poor record of compliance with its treaty obligations under the CAT.
In November 2005, Manfred Nowak, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, conducted a mission to China, and stated the following in his report:
China has also signed (but not ratified) the International Covenant on Civil and Political Rights (ICCPR). Article 7 of the ICCPR states that no person shall be subjected to "torture or to cruel, inhuman or degrading treatment or punishment." As signatory to the ICCPR, the Chinese government is obligated to respect the spirit and intent of the ICCPR provisions against torture.
– Weak institutions, in particular, "localized and semi-autonomous police forces shaped by local power balances and economic resources," the lack of independent internal oversight mechanisms for law enforcement, and the lack of judicial independence were key obstacles to eliminating or reducing the incidence of torture.|
– The criminal justice system and its "strong focus on admission of culpability, confessions and re-education" was "particularly disturbing" in relation to political crimes and the administrative detention system of "Reeducation-Through-Labor." Nowak also concluded that the combination of deprivation of liberty with measures of re-education through coercion, humiliation and punishment aimed at admission of guilt and altering the personality of detainees up to the point of breaking detainees' will, constituted a form of inhuman or degrading treatment or punishment.
– From 2000 to 2005, Nowak and his predecessors had reported 314 cases of alleged torture to the Chinese government, representing more than 1,160 individuals.
- The Chinese government is required to prohibit torture under its own Constitution and national laws
The PRC Constitution
The text of the PRC Constitution requires the Chinese government to respect and safeguard the human rights and human dignity of all its citizens.
Criminal Law and Criminal Procedure Law
– In 2004, the National People's Congress amended Article 33 of the Constitution to state that "the State respects and safeguards human rights." |
– Article 37 specifies that "personal freedom of citizens of the People's Republic of China is inviolable," and that no citizens shall be arrested without approval or decision of the people's procuratorate or a decision from the people's courts. Article 37 also prohibits illegal detention, illegal deprivation or limits on personal freedom, and illegal body searches.
– Article 38 states that the "human dignity of citizens is inviolable."
Torture for the purpose of eliciting testimony is expressly prohibited under Articles 247 and 248 of the Criminal Law, and Article 43 of the Criminal Procedure Law:
– Article 247 of the Criminal Law prohibits extortion of a confession from suspects or defendants under torture by a judicial officer, as well as extraction of testimony from witnesses through the use of force by a judicial officer.|
– Article 248 of the Criminal Law prohibits physical abuse of detainees and prison inmates and the instigation of detainee-on-detainee violence by an officer of an institution of confinement, such as a prison, detention centre or custody house.
– Article 43 of the Criminal Procedure Law states that it "shall be strictly forbidden to extort confessions by torture and to collect evidence by threat, enticement, deceit or other unlawful means."
The Chinese government has not effectively met its international and domestic obligations to prevent and investigate cases of torture and punish perpetrators
- China's legislative framework is ineffective in preventing torture
The legislative framework against torture in China is weak. Constitutional provisions on human rights are vaguely worded. Even the status of the Constitution is unclear, given the legal supremacy of the Communist Party.
Despite successive revisions, the Criminal Law still contains serious loopholes in preventing torture, for example:
It is also important to recognize that any legislative reforms will need to be implemented and supported by substantive changes in law enforcement procedures, training, and an overall cultural shift away from the existing focus on admissions of culpability, confessions and "re-education."
– "Judicial Officers and Officers of Institutions of Confinement": Articles 247 and 248 of the Criminal Law prohibit acts of torture by "judicial officers" and "officers of institutions of confinement," respectively, but do not mention temporary or quasi-governmental employees, hired thugs or detainees ordered or induced by officials to mistreat other detainees.|
– Mental Torture: Articles 247 and 248 of the Criminal Law do not refer to mental torture or mental harm, but only to cases of physical abuse. Mental torture includes all methods of ill-treatment that do not necessarily result in physical harm, but which are recognized internationally as conduct constituting torture under Article 1 of the CAT.
- Questionable police procedures and practices permit the use of torture
Police and other law enforcement agencies in China continue to use torture as a means to coerce and elicit confessions from detainees. The following are contributing factors:
– Limited access by accused persons to legal representatives: Although the Criminal Procedure Law provides in principle for a suspect's right to counsel—a right that is also codified in the Lawyers Law—suspects are often deprived of access to a lawyer for extended periods after being taken into custody. One common tactic the police use to deprive the suspect of access to a lawyer is to tell the lawyer that the case concerns "state secrets." When a case is purported to involve state secrets, a suspect must obtain approval from the investigative organ before appointing a lawyer, and the lawyer must also obtain approval from the investigative organ before meeting with the criminal suspect. |
– No independent medical examinations: While detainees may receive medical treatment or checkups while in detention, there is no requirement that detainees undergo independent medical examinations before or after interrogation sessions.
- The all-encompassing State Secrets Law undermines effective prevention of torture
The State Secrets Law presents a major obstacle to reform in the Chinese criminal justice system. The States Secrets Law is exceedingly broad and all-encompassing. It facilitates the continued prevalence of torture in two main ways:
1. As outlined above, police can easily invoke a claim of "state secrets" to deny the accused person access to a lawyer or to otherwise preclude independent scrutiny of investigative tactics or interrogation techniques.|
2. The overly-broad reach of the State Secrets Law means that it is exceedingly difficult for independent observers, legal scholars and civil society organizations to obtain usable and unbiased data about the true extent of the use of torture by Chinese authorities. For example, certain information about prison and RTL work is classified as state secrets.
- Law enforcement agencies lack the will to investigate allegations of torture
Under Article 18 of the Criminal Procedure Law, the SPP and other procuratorates have the authority to investigate and prosecute crimes (including torture) committed by organs of state. The procuratorates, however, have demonstrated a lack of political will to investigate allegations of torture against other government agencies. In addition, victims face considerable evidentiary hurdles in proving that they were subjected to torture.
Similarly, while Article 41 of the PRC Constitution and Articles 3 and 15 of the Law on State Compensation technically provide Chinese citizens the right to claim compensation against state organs and functionaries, potential claimants face daunting evidentiary and practical challenges.
The main difficulties faced by victims of torture in making a complaint include:
– Difficulty in obtaining independent medical proof of injuries: Either due to the lack of access to an independent medical examination, or due to the lapse of time after the injuries were inflicted.|
– Difficulty in proving mental torture: Victims, especially those of limited resources, often have a hard time proving or documenting the non-physical consequences of torture.
– Difficulty in identifying perpetrators: Victims may find it difficult to identify who inflicted the torture, especially if the torturer was a temporary or quasi-governmental employee, hired thug, another detainee, or if the victims are prevented from seeing or hearing their torturers.
- Flawed judicial process allows perpetrators of torture to go unpunished
Viewed in its entirety, the use of torture remains embedded within a web of entrenched police practices, weak institutional controls and official complicity.
An assessment of criminal trials in the PRC, as the final stage in the criminal process, also reveals significant obstacles to reducing the incidence of torture.
– Although the regulations promulgated by the Supreme People's Court and the Supreme People's Procuratorate prohibit the use of confessions extracted through torture as the basis for charges and convictions, evidence law in China, as set out in the Criminal Procedure Law, does not preclude the admissibility of confessions obtained through torture. |
– In addition, the limited role of defense counsel and the infrequent use of cross-examination provide little or no opportunity to question the investigating officers on the stand about allegations of torture.
From a reform perspective, the overarching nature of the State Secrets Law greatly hinders efforts to study and to understand why torture remains so prevalent in China. The current lack of political will to address the problem of torture may also be attributed in part to official complicity in utilizing torture as a means to secure criminal confessions and to intimidate political dissidents.
HRIC Advocacy and Media Work Against Torture
Human Rights in China's advocacy and media work has highlighted cases of torture and other human rights abuses in China.
For HRIC's advocacy and media work focusing on problems of torture and other cruel, inhuman or degrading treatment or punishment, see:
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- Letter from Zhang Qing, wife of imprisoned activist Guo Feixiong, to Manfred Nowak, the UN Special Rapporteur on Torture, June 2007. Human Rights in China (HRIC) transmitted a letter from Zhang Qing, the wife of Guo Feixiong (also known as Yang Maodong), detailing Guo's torture in detention, to Manfred Nowak, the UN Special Rapporteur on Torture. In her letter, Zhang called on the Special Rapporteur to investigate Guo's case and draw attention to his cruel and inhumane treatment in detention.
- Empty Promises: Human Rights Protections and China's Criminal Procedure Law (PDF), March 2001. This report discusses pre-trial detention as well as crucial issues relating to trials in the PRC criminal justice system. Section 5 of this report also discusses issues concerning illegally-obtained evidence, torture and the right against self-incrimination.
- Impunity for Torturers Continues Despite Changes in The Law, Report on Implementation of the Convention Against Torture, April 2000: Prepared to Assist in the Assessment of the Third Periodic Report of the People's Republic of China on Implementation of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This report examines reforms in the Criminal Law and discusses situations in which torture and ill-treatment remain a significant problem. The report also discusses issues relating to detention, custody and repatriation.
- Whose Security? "State Security" in China's New Criminal Code, April 1997. This joint report with Human Rights Watch discusses how "state security" is used by the Chinese government as a tool of political oppression, replacing the old language of "counterrevolution." The report contains a detailed analysis of changes in the Criminal Law, as well as the State Secrets Law and State Security Law.
- Words Without Substance: China's implementation of the Convention Against Torture, March 31, 1996 (China Rights Forum). This report is a summary of a 37-page report issued by Human Rights in China in April 1996 and submitted to the Committee Against Torture, which reviewed China's second periodic report on implementation of the UN Convention Against Torture on May 2, 1996.
 "Gongjianfasi youguan renshi huizhen xingxunbigong wanzheng" [公检法司有关人士会诊刑讯逼供顽症], Legal Daily, August 20, 2007, http://www.legaldaily.com.cn/bm/2007-08/22/content_684867.htm.
 One of the most well-known cases was the wrongful imprisonment of She Xianglin, who served 11 years after being convicted of killing his wife. He was released in 2005 when his wife reappeared. He told reporters, "The police tortured me by not letting me sleep for 10 days and finally made me leave my finger mark on the documents." "China Cracks Down on Torture and Forced Confessions," People's Daily, May 17, 2005, http://english.peopledaily.com.cn/200505/17/eng20050517_185482.html.
 "China's Deputy Procurator-General Calls for Protection of Suspects' Rights," Xinhua News Agency, November 20, 2006, http://english.peopledaily.com.cn/200611/20/eng20061120_323195.html.
 "China Details New Laws of Official Abuse and Torture," Xinhua News Agency, July 27, 2006, http://english.people.com.cn/200607/27/eng20060727_287032.html.
 "Suspects' Questioning to Be Taped," Xinhua News Agency, January 18, 2006, http://news.xinhuanet.com/english/2006-01/18/content_4069692.htm.
 "Guanyu jinyibu yange yifa banan quebao banli sixing anjian zhiliang de yijian" [关于进一步严格依法办案确保办理死刑案件质量的意见], issued by the Supreme People's Court [最高人民法院], Supreme People's Procuratorate [最高人民检察院], Ministry of Public Security [公安部], and Ministry of Justice [司法部], promulgated March 9, 2007 and effective on March 9, 2007, http://news.xinhuanet.com/legal/2007-03/12/content_5833204.htm.
 Committee Against Torture, "Consideration of Reports Submitted by States Parties Under Article 19 of the Convention: Fourth Periodic Reports of States Parties due in 2004 Addendum," U.N. Doc. CAT/C/CHN/4 (2007), para 91, 93.
 Human Rights Committee, "General Comment No. 24: Issues Relating to Reservations Made upon Ratification Or Accession to The Covenant Or The Optional Protocols thereto, Or in Relation to Declarations under Article 41 of the Covenant," U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994), para 10, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/69c55b086f72957ec12563ed004ecf7a?Opendocument.
 UN Economic and Social Council, "Report of Special Rapporteur on Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment: Mission to China," U.N. Doc. E/CN.4/2006/6/Add.6 (2006) (Special Rapporteur, Manfred Nowak), at 2, http://ap.ohchr.org/documents/dpage_e.aspx?si=E/CN.4/2006/6/Add.6.
 Li Wenjuan [李文娟], "Zhongguo gudai xingxun zhidu de lishi yange he sixiang genyuan -- jianlun dangjin shehui xinxun bigong de fangzhi" [中国古代刑讯制度的历史沿革和思想根源——兼论当今社会刑讯逼供的防治], China Law Info [北大法律信息网], October 28, 2007, http://article.chinalawinfo.com/article/user/article_display.asp?ArticleID=40373.
 See, e.g., Human Rights in China, "Revised 'Lawyers Law' Fails to Protect Lawyers," June 19, 2008, http://hrichina.org/public/contents/56883.
 For a detailed discussion of State Secrets Law, see Human Rights in China, State Secrets: China's Legal Labyrinth, June 12, 2007, http://hrichina.org/public/contents/41421.
 Article 61 of the Supreme People's Court Interpretation on Several Issues Regarding Implementation of the PRC Criminal Procedure Law, September 8, 1998, http://www.cecc.gov/pages/selectLaws/criminalJustice/supremeCourtInterpretation.php.
 Article 265 of the Rules of Criminal Litigation for the People's Procuratorates, January 18, 1999, http://www.cecc.gov/pages/selectLaws/criminalJustice/procuratorateRules.php.