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SPECIAL RAPPORTEUR ON TORTURE HIGHLIGHTS CHALLENGES AT END OF VISIT TO CHINA



Beijing, 2 December 2005

Introduction

The Special Rapporteur of the United Nations Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment concluded a two-week visit to the People’s Republic of China (PRC) today.

Nearly a decade after the initial request, the visit to the PRC by the United Nations Special Rapporteur on Torture, Manfred Nowak, finally materialised from 20 November to 2 December, and included visits to Beijing, Lhasa, Tibet Autonomous Region (TAR) and Urumqi, Xinjiang Uighur Autonomous Region (XUAR). The long-awaited visit of the Special Rapporteur on Torture to China has its origins in a 1995 request by the then Special Rapporteur, Sir Nigel Rodley, for an invitation to carry out a fact-finding visit. The Government responded in 1999 with an invitation for a “friendly visit” in May 2000, however, differences between the Government and the Special Rapporteur on the standard methodology for country visits by United Nations human rights experts (including unannounced visits to detention centres and private meetings with detainees) prevented it from being realized. In spring 2004, the Government extended an unconditional invitation to the then Special Rapporteur, Theo van Boven, for a two-week visit in June of that year, which was then postponed by the Government. Upon Manfred Nowak’s appointment as Special Rapporteur on Torture in December 2004, the Government of China renewed its invitation for a visit in 2005, accepting his Terms of Reference.
The mission’s aim was two-fold: fact-finding and starting a process of cooperation aimed at the common goal of eradicating torture in the PRC.

The Special Rapporteur wishes to express his deep appreciation to the Ministry of Foreign Affairs, in particular Dr. Shen Yongxiang, Special Representative on Human Rights Affairs, and his team for their professionalism, cooperation, and shared commitment to the objectives of the mission. The Special Rapporteur credits the Ministry for its great efforts in ensuring that the mission proceeded as smoothly as possible and that his Terms of Reference were in principle respected. All meetings with detainees were carried out in privacy and in locations designated by the Rapporteur. No request for a meeting or interviewing of a particular individual was refused. Prison staff were generally cooperative. The Special Rapporteur was also able to meet with a number of individuals outside of his official programme, notwithstanding the obstructions elaborated upon below.

While visits were also planned for Jinan in Shandong Province and Yining in the XUAR, the Special Rapporteur sincerely regrets that he had to cancel these visits due to time constraints, and expresses his gratitude to the Ministry of Foreign Affairs and the respective leaderships of Shandong Province and Yining Autonomous Prefecture for accommodating these last minute changes to the programme.

While in Beijing, the Special Rapporteur met with Government officials, including the Assistant Foreign Minister, the Vice Ministers of Justice and Public Security, the Deputy Procurator-General, as well as prominent members of civil society including the All China Lawyers’ Association, the Beijing Lawyers’ Association, China University for Political Science and Law, Renmin University, Tsinghua University, Beijing University, the Chinese Academy of Social Sciences, and the Beijing Child Legal and Research Centre. Meetings were also held with individual lawyers, human rights defenders, academics, and members of the diplomatic corps and UN country team. In Lhasa and Urumqi, the Special Rapporteur met with local officials including from the Ministry of Foreign Affairs, the People’s Court, the Procuratorate, and Departments of Justice and Public Security.

In Beijing, the Special Rapporteur visited the Municipal Detention Centre, Prison No. 2 (twice), and the Municipal Women’s Re-education Through Labour (RTL) Facility. In Lhasa he visited Lhasa Prison, Tibet Autonomous Region Prison (also known as Drapchi Prison), and the recently-opened Qushui Prison. In Urumqi, he visited Prison Nos. 1, 3, and 4, as well as the Liu Dao Wan Detention Centre. In all facilities, the Special Rapporteur met with prison management and interviewed detainees in private.

Particular circumstances of the fact-finding mission

The Special Rapporteur feels compelled to point out that some Government authorities, particularly the Ministries of State Security and Public Security, attempted at various times throughout the visit to obstruct or restrict his attempts at fact-finding. The Special Rapporteur and his team were frequently under surveillance by intelligence personnel, both in their Beijing hotel as well as in its vicinity. Furthermore, during the visit a number of alleged victims and family members were intimidated by security personnel, placed under police surveillance, instructed not to meet the Special Rapporteur, or were physically prevented from meeting with him.

Prison officials imposed their own working hours as limits for interviews which curtailed the number of facilities that could be visited and the number of detainees interviewed. The Special Rapporteur and his team were also prevented from bringing photographic or electronic equipment into prisons. Furthermore, in contrast to his previous country visits, the Special Rapporteur was unable to obtain a letter of authorization from the relevant authorities to visit detention centres on his own. Consequently, officials from the Ministry of Foreign Affairs accompanied him to detention centres in order to ensure unrestricted access. As the authorities were generally informed an hour in advance, the visits could not be considered to have been strictly “unannounced.” Nonetheless, this practice significantly improves upon the modalities employed in previous visits to China of Special Procedures of the Commission on Human Rights.

In his interviews with detainees, the Special Rapporteur observed a palpable level of fear and self-censorship, which he had not experienced in the course of his previous missions. A considerable number of detainees did not express a willingness to speak with the Rapporteur, and several of those who did requested absolute confidentiality.

Under these conditions and taking into account the size and complexity of China as well as the limited duration of the mission, the Special Rapporteur acknowledges the limitations in drawing up a comprehensive set of findings and conclusions on the situation of torture and ill-treatment in China.

Situation of torture and ill-treatment

The Special Rapporteur recalls that over the last several years his predecessors have received a significant number of serious allegations related to torture and other forms of ill-treatment in China, which have been submitted to the Government for its comments. These have included a consistent and systematic pattern of torture related to ethnic minorities, particularly Tibetans and Uighurs, political dissidents, human rights defenders, practitioners of Falun Gong, and members of house-church groups. These allegations have been and continue to be documented by international human rights organizations.

The methods of torture alleged include, among others: beatings; use of electric shock batons; cigarette burns; hooding/blindfolding; guard-instructed or permitted beatings by fellow prisoners; use of handcuffs or ankle fetters for extended periods (including in solitary confinement or secure holding areas), submersion in pits of water or sewage; exposure to conditions of extreme heat or cold, being forced to maintain uncomfortable positions, such as sitting, squatting, lying down, or standing for long periods of time, sometimes with objects held under arms; deprivation of sleep, food or water; prolonged solitary confinement; denial of medical treatment and medication; hard labour; and suspension from overhead fixtures from handcuffs. In several cases, the techniques employed have been given particular terminologies, such as the “tiger bench”, where one is forced to sit motionless on a tiny stool a few centimetres off the ground; “reversing an airplane”, where one is forced to bend over while holding legs straight, feet close together and arms lifted high; or “exhausting an eagle”, where one is forced to stand on a tall stool and subjected to beatings until exhaustion. On the basis of the information he received during his mission, the Special Rapporteur confirms that many of these methods of torture have been used in China.

Although he cannot make a detailed determination as to the current scale of these abuses, the Special Rapporteur believes that the practice of torture, though on the decline – particularly in urban areas – remains widespread in China. Indeed, this is increasingly recognized by Government officials and reports. According to the 2005 Supreme People’s Procuratorate’s (SPP) report to the National People's Congress presented on 9 March 2005, covering the year 2004), 1595 civil servants had been investigated for suspected criminal activity in cases involving "illegal detention, coercion of confessions, using violence to obtain evidence, abuse of detainees, sabotaging elections, and serious dereliction of duty resulting in serious loss of life or property." The report goes on to note that this is a 13.3 percent increase over the previous year's totals and that the SPP personally investigated 82 of the most serious cases. 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.


Efforts by the Government to combat torture

In recognizing the problem, the Government has undertaken a number of measures to tackle torture. In August 2003, the Minister of Public Security, Zhou Yongkang, issued a set of unified regulations on the standardization of law-enforcement procedures for public security institutions entitled, "Regulations on the Procedures for Handling Administrative Cases”, including procedures defining police powers in respect of time limits for confiscation of property, legal means for gathering evidence, time limits on investigation and examination of suspects, etc. In 2004, the Ministry issued regulations prohibiting the use of torture and threats to gain confessions. The Supreme People's Procurotorate announced that eliminating interrogation through torture would be a priority of their work agenda and has instructed procurators that confessions obtained as a result of torture cannot form a basis for the formal approval of arrests and that prosecutors must work to eliminate illegally obtained evidence.

In addition to initiatives at the central level, the Zhejiang provincial Public Security Department issued regulations on forced confessions stating that local police chiefs will be expected to resign in any district where there are more than two cases of forced confessions resulting in injuries, miscarriages of justice or public order problems. In mid-April 2005, Sichuan law enforcement and judicial authorities issued a joint opinion that prohibits the use of illegally obtained evidence, such as coerced confessions in criminal trials, and requires courts to exclude coerced statements and confessions if police cannot provide a rational explanation of the alleged coercion or refuse to investigate allegations of abuse.

Practical measures to combat torture have included piloting systems of audio and video recording in interrogation rooms, strengthening representation during the investigative and pre-trial phase of the criminal process by placing lawyers on a 24-hour basis in pilot police stations, designing interrogation rooms which separate suspects from interrogators, and placing resident procurators in places of detention and near public security bureaux to supervise law enforcement personnel.

The Special Rapporteur also observes positive developments at the legislative level including the planned reform of several laws relevant to the criminal procedure, which he hopes will bring Chinese legislation into greater conformity with international norms, particularly the fair trial standards contained in the International Covenant on Civil and Political Rights (CCPR) which China signed in 1998 and is preparing to ratify. He also welcomes the resumption by the Supreme People’s Court (SPC) of its authority to review all death penalty cases, particularly given the fact that the quality of the judiciary increases as one ascends the hierarchy. The Special Rapporteur suggests that China might use the opportunity of this important event to increase transparency regarding the number of death sentences in the country, as well as to consider legislation that would allow direct petitioning to the SPC in cases where individuals do not feel that they were provided with adequate relief by lower courts in cases involving the use of torture, access to counsel, etc.

Need for further efforts to prevent and address torture

The Special Rapporteur notes that China was among the first States to ratify the UN Convention against Torture (CAT) in 1988, which requires States parties to take measures for the prevention of torture and to punish every act of torture with appropriately serious penalties. Although Chinese law prohibits gathering evidence through torture and provides for punishment of those guilty of torture, the Chinese definition of torture does not fully correspond to the international standard contained in CAT. In particular, physical or psychological torture that leaves no physical trace is difficult if not impossible to punish with appropriate penalties in China (indeed, the Chinese word for torture, “kuxing,” principally connotes physical torture).

Combating torture in China is further impeded by the absence of essential procedural safeguards necessary to make its prohibition effective, including: the effective exclusion of evidence from statements established to be made as a result of torture; the presumption of innocence; the privilege against self-incrimination; timely notice of reasons for detention or arrest; prompt external review of detention or arrest; granting of non-custodial measures, such as bail; the right of habeas corpus; and timely access to counsel and adequate time and facilities to prepare a defence.

Other serious shortcomings are the lack of an independent monitoring mechanism of all places of detention and a functional complaints mechanism. A number of authorities have pointed out that mechanisms exist in China for individuals to report instances of torture, particularly procurators, some of which are resident in prisons and near police stations. However, the Special Rapporteur believes that it is difficult to rely on the vigilance of procurators whose interest in convicting suspects as charged might compromise their ability to oversee the police and prison guards. In addition, procurators encounter many difficulties in practice to exercise their supervisory role, including because detainees are afraid to report instances of torture to them.

During his mission, the Special Rapporteur noted the inefficiency of current complaint mechanisms. He was informed, for example, that in Prison No. 4 in Urumqi, the procurators have not received a single torture complaint during the last decade. In the Tibetan Autonomous Region, he was told that no complaint had been received since 2003 and in the Beijing Municipal Detention Centre, none were received since its establishment in June 2004. In the Xinjiang Uighur Autonomous Region, two cases of torture were established by the courts since 2000, and in the Tibet Autonomous Region one such case had been confirmed. The Deputy Procurator-General of the PRC informed the Special Rapporteur that only 33 law enforcement officials had been prosecuted for torture throughout the country during the first nine months of 2005.

Indeed, an important element in combating torture is judicial oversight. However, China lacks an independent judiciary, and the judiciary suffers from relatively low status in comparison to other State organs. Without a court system that judges cases fairly and independently according to law, thereby redressing grievances in a timely manner, the problem of torture cannot be brought under effective control, particularly in a context where police exercise wide discretion in matters of arrest and detention and are under great pressure to solve cases.
Forced re-education as a form of inhuman and degrading treatment

The Special Rapporteur also pointed to conceptual or ideological constraints to the effective implementation of the prohibition of torture. The criminal justice system is focused on admission of culpability, and the role of obtaining confessions continues to be central to successful prosecutions. In fact even after persons, who have not confessed to an offence, have been convicted and sentenced, these persons are subject to restrictions within prison, such as limited restricted access to telephone or visiting privileges until they confess, or are provided the incentive of a reduced sentence if they confess. Moreover, the system as such places a strong emphasis on change and re-education of the criminal, and the acceptance of punishment.

Societies that have been successful in establishing a human rights culture differ from others in the degree of tolerance of the majority towards those whose behaviour deviates from standard moral and social norms. This right to be different, which finds its legal expression in the human rights to privacy, freedom of expression, religion, assembly and association, lies at the very heart of any democratic society. These freedoms and political rights were not enacted to protect conformist behaviour, but non-conformist behaviour. Under international human rights law, Governments are only permitted to interfere with the expression of political opinions, religious convictions, moral values or minority views when they constitute incitement to hatred or violence or a direct threat to national security or public safety in the country. A system of State surveillance of citizens with non-conformist views and with severe punishments for such “deviant behaviour”, such as Re-Education through Labour (RTL), seems to be incompatible with the core values of a society based upon a culture of human rights and leads to intimidation, submissiveness, self-censorship and a “culture of fear”, which interferes with the right not to be subjected to inhuman and degrading treatment or punishment.

Every society has the right, and indeed is required by article 10 of the CCPR, to assist convicted criminals during their prison term through vocational training, education, and measures aimed at ensuring their equal access to the labour market in order to become law-abiding citizens. However, efforts aimed at the rehabilitation and re-socialisation of persons who committed crimes should be clearly distinguished from forms of deprivation of liberty aimed at the forceful re-education of human beings with deviant behaviour through labour and coercion.

The system of RTL in China and similar methods of re-education in prisons and even in pre-trial detention centres go well beyond legitimate rehabilitation measures and aim at breaking the will of detainees and altering their personality. Such measures strike at the very core of the human right to personal integrity, dignity and humanity, as protected by Articles 7 and 10 of the CCPR, as well as articles 1 and 16 of the CAT. RTL constitutes not only a serious violation of the human right to personal liberty, but must also be considered as a systematic form of inhuman and degrading treatment or punishment, if not torture. RTL and similar measures of forced re-education in prisons, pre-trial detention centres and psychiatric hospitals should therefore be abolished.

Circumstances surrounding capital punishment

The Special Rapporteur also expressed concern about the circumstances surrounding the death penalty, including the situation of prisoners on death row. At the Beijing Municipality Detention Centre, where the Rapporteur spoke with prisoners sentenced to death at first instance and awaiting appeal, he noted that these prisoners were handcuffed and shackled with leg-irons weighing approximately 3kg, 24 hours per day and in all circumstances (i.e. including during meals, visits to the toilet, etc). Prison officials indicated that the average length of appeal was two months. This practice is reportedly based on a nation-wide regulation for detention facilities. When questioned by the Special Rapporteur on the reasons for the handcuffs and shackles around the clock, prison officials indicated that this was necessary for their own safety, the security of others, to prevent them from fleeing, and to prevent suicide. However, in the Liu Dao Wan Detention Centre in Urumqi, death row prisoners were “only” shackled and not handcuffed. In the opinion of the Special Rapporteur this practice is inhuman and degrading and serves only as an additional form of punishment of someone already subjected to the stress and grievance associated with having been sentenced to death. The Special Rapporteur also expressed concern at the high number of crimes for which the death penalty can be applied. He encouraged the Government to both narrow its scope and to be more transparent towards family members and the public at large regarding its use; including by making statistics on the death penalty public information.

Recommendations to the Government of the PRC

Among his key preliminary recommendations to the Government, the Special Rapporteur recommended:

· Reform the criminal law by adding the crime of torture in accordance with the definition contained in CAT (Art.1) with appropriate penalties
· Ensure that the reform of the criminal procedure law conforms to 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.
· Reform the criminal justice system by transferring several functions of the procurators to the courts, for example, authorization of detention and supervision of the police.
· Allow lawyers – particularly criminal defense lawyers -- to be more effective in representing the rights and interest of their clients including through involvement at the earliest stages of police custody and pre-trial detention.
· Abolish Section 306 of the Criminal Law, according to which any lawyer who counsels a client to repudiate a forced confession, for example, could risk prosecution.
· Take measures to enhance the professionalism, efficiency, transparency, and fairness of legal proceedings; and raise the status and independence of judges and courts within the Chinese legal system.
· Reduce the number of pre-trial detainees by enlarging the use of non-custodial measures such as bail.
· Establish an independent complaints mechanism for detainees subject to torture and ill-treatment
· Accept the right of individual petition to the Committee against Torture and its competence to initiate an inquiry procedure in accordance with Articles 20 and 22.
· Abolish imprecise and sweeping definitions of crimes that leave large discretion to law enforcement and prosecution authorities such as “endangering national security”, “disrupting social order”, “subverting public order,” etc.
· Abolish “Re-Education through Labour” and similar forms of forced re-education of detainees in prisons and pre-trial detention centres and psychiatric hospitals.
· Bring conditions on death row into conformity with the right of detainees with humane treatment
· Limit the scope of the death penalty by abolishing it for economic and non-violent crimes.
· Utilize the opportunity of the planned restoration of Supreme Court review for all death sentences to publish national statistics on the application of the death penalty.
· Establish a national human rights institution in accordance with the Paris Principles The United Nations Commission on Human Rights and General Assembly have adopted a set of guiding principles on the role, composition, status and functions of national human rights institutions commonly known as the Paris Principles. Commission on Human Rights Resolution 1992/54 of March 1992 and General Assembly Resolution A/RES/48/134 of 20 December 1993. with the authority to carry out unannounced visits to all places of detention.
· Ratify the Optional Protocol to the UN Convention against Torture
· Ratify the UN Covenant on Civil and Political Rights
· That OHCHR provide support to the above through its technical cooperation programme within the framework of the recent MOU signed between the High Commissioner for Human Rights and the Chinese Government.

The Special Rapporteur expresses his appreciation to the Government for inviting him to visit the country and looks forward to a long-term process of cooperation with the Government to combat torture and ill-treatment. He also expresses his appreciation for the support of the UN Country Team in China, and the Office of the High Commissioner for Human Rights.

The Special Rapporteur will submit a comprehensive written report on the visit to the UN Commission on Human Rights at its sixty-second session in 2006.
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Mr. Nowak was appointed Special Rapporteur of the Commission on 1 December 2004. As Special Rapporteur, he is independent from any government and serves in his individual capacity. The Commission first decided to appoint a Special Rapporteur to examine questions relevant to torture in 1985. The mandate covers all countries, irrespective of whether or not a State has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He has previously served as a member of the Working Group on Enforced and Involuntary Disappearances; as the UN expert on missing persons in the former Yugoslavia; as the UN expert on legal questions on enforced disappearances; and as a judge at the Human Rights Chamber for Bosnia and Herzegovina. He is Professor of Constitutional Law and Human Rights at the University of Vienna, and Director of the Ludwig Boltzmann Institute of Human Rights.
For further information on the mandate of the Special Rapporteur, please visit the website: http://www.ohchr.org/english/issues/torture/rapporteur/index.htm