Shao Shaping

Brief Introduction

The rules of international law against torture is originally associated with the conventions against war crimes or the punishment of the war crimes. The Four Geneva Conventions is a good example.[1]  In the rules of international criminal law on the suppression and punishment of the war crimes, torture is arranged into international crimes as one type of the war crimes.[2] 

After the World WarII, international society usually put the suppression of torture and the protection of the basic human rights closely together. After the foundation of the United Nations, a series of measures have been taken to promote the development of the rules of international law on the suppression of torture. The enforcement and implementation of the "Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment makes great influence on the suppression and the punishment of international crimes, especially the crimes against basic human rights.[3] In our modern society, torture is not only a type of war crime, but also a crime of inhumanity against basic human rights. [4]

China, as one of the deputy members of the Security Council of the United Nations, actively promotes international society to formulate, develop and implement the international rules and documents on the suppression of torture, and also actively accedes the conventions on the protection of the basic human rights.[5 ]  China ratified and acceded the Convention Against Torture. China, as one of the member parties of the Convention, conscientiously implements the provisions of the Convention, and has made great contribution to the controlling of torture and other relevant crimes for international society. China has handed in our issues of State Reports to the Commission of Suppression of Torture. Those reports include the first issue in 1989, the second issue in 1995, the third issue in 2000, and the additional report in 1992. Now China is preparing for the fourth issue of the state report.

China has made great achievements in the implementation of the suppression of torture, but the burden is heavy and the road is long. The colloquium here will promote to deepen the research on the implementation of the Convention Against Torture in P. R. China, and help to solve the existing problems during the process of the implementation of the Convention.

The Position of the Convention Against Torture in the Legal System of P. R. China

The Constitution of PRC doesn't provide directly the position of international treaties in the legal system of China, but it provides the right of conclusion and the procedure of conclusion. The constitution provides that the State Council¡° exercises the function and power to conclude treaties and agreements with foreign states (article 89)¡±.The Standing committee of NPC¡°exercises the function and power to decide on the ratification and abrogation of treaties and important agreements concluded with foreign states(article 81)¡±.According to the Constitution of PRC, the right of conclusion and legislation, procedure of conclusion and legislation are almost of the same importance. The ratification and abrogation of treaties and agreements are decided by the Standing Committee of NPC, the statutes are enacted and amended by the Standing Committee of NPC (article 67). The President of the P. R. China, in pursuance of decisions of the Standing Committee of NPC, ratifies or abrogates treaties, promulgates statutes (article 80). From above we can conclude that treaties and agreement are of the same effect with statutes in the legal system of China. [6] International treaties and agreements can be applied directly in P.R.China because of the equal validity of the conclusion and legislation. The Constitution of PRC doesn't provide definitely that treaties and agreements can be directly applied, but some of Chinese statutes and regulations provide clearly that international treaties and agreements can be directly in China. [7]

On 27 April,1990 the representatives of PRC interpreted the relationship between the Convention and the municipal law of China to the United Nations Committee Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The interpretation is as follows. According to the legal system of China, all the treaties and agreements should be reviewed by the organs of legislation or State Council if China is to ratify or accept them. Once a treaty is effective in China, China will fulfill the encounter obligation. The application of the Convention Against Torture in China should also be on the basis of the principles above. Crimes provided in international treaties, which come into effect directly in China, are taken as the crimes provided in municipal law. The definite provisions of the Convention can be applied directly in our country. [8]

The Manners and Measures to Implement the Convention Against Torture in P. R. China

According to the article 2 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.[9] 

A. Municipal Legislation

1. Profiting by the present law of protection of human rights to fulfill the Convention Against Torture.

Before the Convention Against Torture was in effect in China, there have already been a series of provisions in our municipal law to protect basic human rights, and suppress torture.

The whole chapter two of the 1982 Constitution provides the rights and duties of citizens. It provides the personal freedom and personal dignity of citizens. No citizen may be arrested except with the approval or decision of a people's procuratorate or by decisions of a people's court, and arrests must be made by a public security organ; unlawful deprivation or restriction of citizens' freedom of person by detention or other means, unlawful search of the person of citizens, and insult, libel, false change or frame-up directed against citizens by any means are prohibited, unlawful search of, or intrusion into a citizen's home is also prohibited; the freedom and privacy of correspondence of citizens are protected by law. Citizens who have suffered losses through infringement of their civic rights by any state organ or functionary have the right to compensation in accordance with the law. The chapter four of the 1979 criminal law provides the crimes of the infringement of citizens' civic rights and democratic rights. The article 136, 143 and 189 of this chapter specifically and respectively prohibit the extortion of confession by torture, unlawful detention and corporal punishment of prisoners. The article 32 of the 1979 Criminal Procedure law provisions¡°judicial, procuratorial and investigatory personnel must, in accordance with the legally prescribed process, collect various kinds of evidence that can prove the defendant's guilt or innocence and the gravity of his crime. It shall be strictly forbidden to extort confessions by torture and to collect evidence by threat, enticement, deceit or other unlawful means".

Those provisions are of great importance for the implementation of the convention against torture.

2. Enacting necessary municipal supplementary law to fulfill the Convention Against Torture

Before the Convention Against Torture is in force in P. R. China, it is through the relevant provisions of municipal law to fulfill the duty of the Convention. They are the Law of the People's Republic of China on Administrative Penalty in 1996, Public Procurators Law of the People's Republic of China in 1995, People's Police Law of the People's Republic of China in 1995, Judges Law of the People Republic of China in 1995, Law of the People's Republic of China on State Compensation in 1994. Prison Law of the People's Republic of China in 1994.

The 1996 Administrative Penalty Law

The 1996 Administrative Penalty Law provisions clearly that parties are entitled with the defense including presenting statements and hearing at the court. If parties don't obey the administrative penalty, they can apply for administrative review or administrative litigation Citizens, legal persons or other organs have the right to get the administrative compensation if their administrative penalty is inappropriate or unlawful. Those provisions help to prevent the acts of torture during the process of administrative penalty.

The 1995 Judges Law provides clearly the rights and duty of judges, police and procurators, especially the provisions of suppression of torture. For example, article 30 of the Judge's Law stipulates that a judge must not use torture in interrogation to extort confessions. And article 22 of the People's Police Law stipulates that people's police must not "use torture to extort confessions or to subject prisoners to corporal punishment or mistreatment", must not "unlawfully deprive or restrict the physical freedom of another; unlawful search the person, belongings, home, " and must not "beat or instigate others to beat people." Also article 33 of the Procuratorate Law stipulates that a procurator must not "use torture in interrogation to extort confessions", must not "abuse his authority and infringe the lawful rights and interests of citizens and legal persons or other organizations". All the provisions are of great importance to suppress torture.

The 1995 State Compensation Law

The 1995 State Compensation Law is a typical symbol that China has made great progress in protecting citizens' rights.

The State Compensation law includes administrative compensation and criminal compensation. Administrative compensation is the compensation for the infringement of personal rights of the citizens by the administrative organs and its personnel in practicing the administrative rights. Criminal compensation is the compensation for the personal rights of citizens by the administrative organs and persons when they are practicing their response of duties in investigations, procurator, examination and judgment, and administration of persons. Article 3 of the law clearly provide that the range of the administrative compensation includes the unlawfully taking a citizen into custody or depriving him of his right of the person by other unlawful means, and using or instigating violence such as beating one up, thereby causing bodily injury or death to a citizen. Article 15 of Law provides that the range of the criminal compensation includes the extortion of a confession by torture or causing bodily injury or death to a citizen by using or instigation the use of violence such as beating one up, and causing bodily injury or death to a citizen by the unlawful use of weapons or police restraint implements. All the provisions of compensation mentioned above reflect the requirements of the convention Against Torture.

The 1994 Prison Law

The Prison Law of the People's Republic of China came into force on December 29th, 1979. Article 7 of the prison law provides that human dignity of the prisoners shall not be humiliated. Article 14 of the prison law clearly provides that police of a prison can't use torture to coerce a confession, or use corporal punishment, or maltreat a prisoner, or humiliate the human dignity of a prisoner Prisoners have the rights to defense, petition, complaint and accusation. The provisions on the suppression of torture in this law are all of great importance to prevent the happenings of torture, and safeguard the prisoners' lawful rights.

3. Modifying the municipal law to meet the requirements of the Convention Against Torture

The 1997 Amended Criminal law

On March 14, 1997, the Fifth Session of the Eighth National People's Congress amended the 1979 Criminal Law. The amended criminal law further strengthens the protection of basic human rights. As for the suppression of torture, there are the following provisions.

Firstly, The 1997 Criminal Law of the PRC abolished the system of analogy and provides: for acts that are explicitly defined as criminal acts in law; other, they shall not be convicted or punished (article 3); the law shall be equal applied to anyone who commits a crime. No one shall have the privilege of transcending the law(article 4).

Secondly, Introduction of crime of extracting testimony by force. The previous criminal law provided only for the crime of extorting confessions by torture. There may appears the occasions that some judicial officials resort to violence for the required testimony of a witness or oral testimony in the judicial practice. The behavior of forcing a witness not only infringes citizens' human rights, but also violates the requirements of the Convention Against Torture. Therefore, the newly amended criminal law firmly suppresses those accessions.

Thirdly, there are the items for the crimes of the extortion of a confession by torture. Those items strengthen the punishment of the crimes of extortion of a confession by torture, crimes of causing bodily injury, and crimes of maltreatment of prisoners.

The 1996 Amended Criminal Procedure Law

On 17 March 1996, the Fourth Session of the Eighth National People's Congress revised the 1979 Criminal Procedure Law. It strengthens the guarantees against torture and other cruel, inhuman or degrading treatment or punishment with regard to persons suspected, accused or arrested of criminal offences through measures in the following areas:

Firstly, abolition of system of detention for interrogation. Because the application of the system of  "detention for investigation" may easily produce the acts of torture, the amended criminal procedure law provides the conditions time limit for arrests and detention, and abolishes the system of "detention for investigation".

Secondly, establishment of the principle that no one can be deemed guilty before a people's court has tried him in accordance with law. Article 12 of the revised criminal procedure law stipulates that no one shall be found guilty without being tried by a people's court in accordance with law. The establishment of this principle means that no suspect or defendant at any stage of criminal proceedings can be treated as a criminal, a stipulation which is conducive to further ensuring the legitimate rights of suspects and defendants and reducing the incidence of torture.

Thirdly, time for lawyers' involvement in criminal proceedings is headed. It is a new measure of the new criminal procedure law for the protecting the lawful rights of a criminal ¡°suspect", or a "defendant". According to the former criminal procedure law, a defendant can entrust defenders 7 days before the opening of the session. Since the lawyer haven't enough time to make preparation for the defence, this may actually limit the defence right of a defendant. The amended criminal procedure law provides that lawyers can step in the criminal proceedings ahead of time, which safeguards the defence right of a defendant. Article 96 of the amended criminal procedure law provides as follows:

After an investigation organ has interrogated the criminal suspect for the first time or from the day on which compulsory measures are adopted against him, he may appoint a lawyer to provide him with legal advice and to file petitions and complaints on his behalf. If the criminal suspect is arrested, the appointed lawyer may apply on his behalf for obtaining a guarantor pending trial. The appointed lawyer shall have the right to find out from the investigation organ about the crime suspected of, and may meet with the criminal suspect in custody to enquire about the case. All the provisions will help to prevent the crimes of torture and other acts of the infringement of defendants.

Fourthly, reform of the procedures of criminal adjudication, replacing those characterized by interrogations by judges with means of hearing prosecution and defence arguments. The revised criminal procedure law has laid down the conditions for the initiation of a case. Article 150 stipulates that if a court, upon looking into a case, finds facts and evidence to support the change and is satisfied with the witness list and evidence to support the charge and is satisfied with the witness list and the duplicates and photographs of the main physical evidence, it shall decide to hear the case, and in the course of the trial, the procurator and the defence may, with the permission of the judge, cross-examine witnesses and testifying experts. They may also comment on the evidence and present their arguments. Thereafter, the accused may make his final plea. These stipulation have the effect of making a trial more open and more just; they also tend to elevate the position of the accused in a trial and lessen the likelihood of physical abuse.

B. Judicial Judgment

Judicial organs have investigated large amount of cases of torture in recent years. According to some data. 4000 cases on extortion of a confession by torture were filed and investigated from 1979 to 1989. 472 cases and 921 persons were filed and investigated in 1990. 407 cases and 831 persons were filed and investigated in 1991. 352 cases and 705 persons were filed and investigated in 1992. 398 cases and 849 persons were filed and investigated in 1993.409 cases and 828 persons were filed and investigated in 1994. 412 cases and 843 suspects were filed and investigated in 1995. 493 cases and 945 persons were filed and investigated. [10]

Case I, on 22 July 1994, the assistant director of the public security bureau and chief of police command of the city of Changzhi, shanxi province, Yu Liehai, and two police officers from the 2nd Squad, Yu Luhai and Yan Deming, used false testimony obtained from a third party under torture to interrogate a middle school teacher, Shen Fengqi. Their attempt to extract a confession by torture led to the victim's death. Tried by the intermediate people's court of Changzhi for causing injury, Yu Liehai was given the death sentence and deprived of political rights for life; Yu Luhai was sentenced to life imprisonment and deprived of political rights for life; Yan Deming was sentenced to 10 years' imprisonment; He Tukuan, the director of the public security bureau who should bear direct responsibility, was sentenced to five years' imprisonment.

Case II, on 8 February 1996, a policeman named Zhong and a police trainee named Deng, without prior authorization, interrogated a man named Chen suspected of theft in the city of Nanhai, in Guangdong province. During the interrogation, these two men beat Chen on the hands, legs and back with wooden rods, killing him. On 15 July, the court of Nanhai sentenced Zhong and Deng to eight years' and three years' imprisonment, respectively, for manslaughter. On 22 July, the head of public security of the municipality was dismissed from his post by the office of inspect.

C. Administrative Measures

To suppress torture effectively, the relevant judicial organs of China further provide how to implement the municipal law. For example, "Rules of the People's Republic of China on the Implementation of Criminal Procedure Law (For Trial Implementation ) which is issued by the Supreme People's Procuratorate of the PRC, provides that procuratorate organs shall review the process of investigation trial and execution, correct the wrong behaviour of the extortion of a confession by torture, corporal punishment, intimidation, induce, and the infringement of defendants' lawful right. Also, on 21 March 1994, the Supreme People's Court issued the special rules on the procedure for handling criminal cases. Article 45 of the rules stipulates; it is prohibited to collect evidence by unlawful means. Any testimony by a witness, declaration by a victim or confession by an accused that has been obtained by unlawful means such as interrogation by torture or threat, enticement or deceit cannot be admitted as evidence.

In China, there are also the self-disciplines of each inner organs to review the officials' behaviour in a People's Court, a People's Procuratorate and a public security organ. Officials of judicial organs not only obey laws, but also restrain themselves with their work disciplines. For example, the Supreme People's Court has formulated and issued a provisional set of Measures Concerning the Punishment of Judicial Personnel of the People's Court Who Break the Law During Trials and a provisional set of Disciplinary Measures Concerning Judicial Personnel of the People's Courts. To reduce torture and other breaches of law by judicial personnel in the performance of their duties and to improve their quality, the people's court of China have initiated a nationwide campaign of education and rectification since March 1998 with a view to establishing a team of judicial personnel who are fair, decent, professionally competent and strictly disciplined. Though the campaign, a number of personnel who had violated laws or disciplinary rules were punished and an attitude of performing duties in strict accordance with the law has been fostered among all judicial personnel.

D. Other Measures

To prevent torture effectively, public security organs, People's Procuratotate and People's Courts have held their own legal education on suppression of torture. For example, in June 1992, the Ministry of Justice introduced the 1992-1995 Nationwide Training Scheme for Cadres of the judicial and Administrative Systems. China's penal system has undertaken to train its custodial staff using the Scheme as a basis. It has built up a training network of three levels from the Central Academy for Judicial Police Officers and the criminal justice special curricula at the Southwest University of Politics and Law and the Northwest University of Politics and Law. In addition, there are 31 judicial police institutes and 370 permanent training courses for prison staff set up in the provinces. A network constructed on three different levels - under the Ministry of Justice, under the provincial penal administrations and inside the prisons themselves groups custodial staff of the Chinese penal system into and United Nations instruments against torture. Only those who become qualified can be given a post assignment. Also in the system of the people's court, there is an action for enhancement of the quality of judicial personnel through education and rectification. The Supreme People's Court has published a separate pamphlet containing the 13 banned practices of judges, as stipulated in the Judge's Law, and made it available to every judge. The 13 banned practices include extortion of confessions by torture and abuse of power, which violates the lawful rights of citizens.

Better the Legal Environment for the Implementation of the Convention Against Torture in P. R. China

China had made great progress in the suppression of torture, but there is still a lot of hard ,but important work to do in the future. In August, 2000, Li Pang, Chairman of the NPC pointed out, at the meeting of reviewing the NPC's implementation of the criminal procedure law, that there still seriously exists the occasions of extortions of confession by a torture to a suspect or a defendant in the process of criminal proceedings in some places or departments or organs.[11]

There are historical and actual reasons for the existing problems of torture in some places and departments of China. China has its own excellent traditional culture of law for being a country with long history and splendid national culture.[12] The Chinese traditional legal Culture also has some corrupt thoughts, which influences the behavior and thoughts of people today. The following are good examples.