UN Special Rapporteur on Torture Concludes Two-Week Visit to China

Congressional-Executive Commission on China, 22 May 2006


CECC — Manfred Nowak, the UN Special Rapporteur on Torture, concluded his two-week visit to China and confirmed allegations that “the practice of torture, though on the decline – particularly in urban areas – remains widespread in China,” according to a December 2 press release available through the Web site of the UN High Commissioner for Human Rights. The press release acknowledges the Supreme People’s Procuratorate’s (SPP) efforts to investigate civil servants for criminal activity related to torture and other forms of ill treatment, but concludes, “When compared with other national statistics, these official figures are clearly the tip of the iceberg in a country the size of China and demonstrate that most victims and their families are reluctant to file complaints for fear of reprisal or lack of confidence that their complaints will be addressed effectively.” The Ministry of Foreign Affairs (MFA) published remarks by spokesman Qin Gang at a December 6 press briefing that refute Nowak’s finding that torture is widespread and insist that “the rapporteur jumped into a conclusion, which is ill-grounded on the part of facts and does not conform to reality.” Qin said, “We have expressed our position to the Rapporteur and hope that Mr. Nowak can correct the wrong conclusion in his report.” Nowak will submit a final report on his visit to the UN Commission on Human Rights at its session in 2006.

The Special Rapporteur expressed gratitude to the Chinese government in a November 22 interview with the BBC, and interpreted his invitation to visit China as a sign of growing official awareness about the torture problem. A December 23 article in the China Daily pointed out that the Chinese government promised cooperation with the UN body and agreed to allow Nowak unannounced visits to prisons and interviews with prisoners. Nowak revealed in the December 2 press release, however, that he had not received authorization to visit detention centers on his own and could not consider his visits to be “unannounced.” Moreover, he discovered that public security officials had prevented or physically blocked some victims of abuse and their family members from meeting with him, and found in his interviews with detainees “a palpable level of fear and self-censorship which he had not experienced in the course of his previous missions.” According to the BBC’s December 6 report, MFA spokesman Qin “denied Nowak’s allegations that public security officers had monitored his activities and tried to stop torture victims from meeting him.” After visiting detention centers and meeting with officials from the MFA, Ministry of Justice, Ministry of Public Security, and SPP, who were charged with briefing him on domestic efforts to oppose and prohibit torture, Nowak concluded that the Chinese government’s official definition of torture does not correspond fully to the international standard. He also found that the criminal justice system fails to provide procedural safeguards to criminal defendants and is instead “focused on admission of culpability.” He further pointed to a general inadequacy in complaint mechanisms, lack of an independent judiciary, and abuse of administrative detention measures, including “re-education through labor” (RETL), which go “well beyond legitimate rehabilitation measures.” MFA spokesman Qin maintained that the Chinese legislature has adopted “a package of laws on prevention, supervision, punishment and compensation” to prevent torture, and that it “has made great and effective efforts to prevent torture, and handle specific torture cases according to law.”

The Special Rapporteur’s findings are consistent with the CECC’s findings on the Rights of Criminal Suspects and Defendants, in Section III(b) of the 2005 Annual Report.

The UN press release concluded by recommending a series of actions to the Chinese government. In the area of criminal procedure, it recommended that China “[e]nsure that the reform of the criminal procedure law conforms to [International Covenant on Civil and Political Rights (ICCPR)] fair trial provisions, including by providing for the following: the right to remain silent and the privilege against self-incrimination; the right to cross-examine witnesses and the effective exclusion of evidence extracted through torture.” China became a signatory to the ICCPR in 1998. Since early 2004, reports published on the Chinese language Web site China.com and in the weekly publication Southern Weekend have pointed to statements made by President Hu Jintao, Premier Wen Jiabao, and Politburo Standing Committee Member Luo Gan hinting that the government will soon ratify the ICCPR. Concurrent with these developments, legislators and scholars inside China have been working to complete a draft revision to China’s Criminal Procedure Law (CPL). The working draft that scholars revealed in October attempts to provide additional safeguards to criminal defendants, including the right to choose between making a statement and remaining silent, and a requirement that witnesses appear in court. In addition, the UN press release mentions a series of government efforts that attempt to eliminate interrogation through torture and the use of illegally obtained evidence. Such efforts include regulations promulgated by the central government in 2003 and 2004, and a joint opinion by Sichuan authorities in mid-April 2005.

The press release also recommends that the government “[a]bolish ‘Re-Education through Labour’ and similar forms of forced re-education of detainees in prisons and pre-trial detention centres and psychiatric hospitals.” The UN Working Group on Arbitrary Detention published a report on its September 2004 mission to China, available on its Country Visits Web page, in which it criticized the government’s failure to create real judicial oversight of administrative detention. The Working Group concluded that Chinese citizens enjoy “no genuine right to challenge administrative detention.” Nowak’s press release goes further, calling for the complete abolition of RETL and similar systems of re-education in prisons and detention centers. Nowak also calls for an end to the government’s system of psychiatric hospitals for mentally ill criminal offenders (also known as the “ankang” system). The press release characterizes these systems of punishment as “aim[ed] at breaking the will of detainees and altering their personality.” It makes a distinction between RETL’s “forceful re-education of human beings with deviant behaviour through labour and coercion,” and efforts such as vocational training or education within prisons, which instead aim for mere “rehabilitation and re-socialisation of persons who committed crimes.” The Chinese government has hinted at reform of the RETL system, but reports on the cases of activists Wang Wanxing and Liu Shui confirm that officials continue to use other administrative measures, including “ankang” and “custody and education.” The National People’s Congress Standing Committee re-affirmed the legality of using administrative punishment against criminal offenders by passing a new Public Security Administration Punishment Law in August 2005, which provides a basis in national law for the government’s use of penalties such as fines and administrative detention against offenders of “minor crimes.”

Other recommendations include eliminating imprecise definitions of crimes, broadening the role of defense lawyers, and granting more independence to judges. For additional analysis, click on “more” below.