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Vicious patterns

July 17, 2000

Inadequate official response allows torture to continue unchecked

 

 

On paper, the 1997 revisions to the Criminal Law expanded the scope of actions which constitute torture under Chinese law. Yet China still has failed to outlaw all forms of torture as defined in the Convention Against Torture, and legal loopholes ensure that the practice remains widespread and officially sanctioned. As Amnesty International's comments on China’s report to the UN Committee Against Torture show, abuse of prisoners and other disfranchised groups in society is a systemic problem caused by inadequate legislation, insufficient safeguards for detainees, lack of judicial intervention and failures of both internal and external supervision and investigation.

 

 

 

 

 


 

 

 

 

 

 

OVERVIEW

 

Torture and ill-treatment of detainees and prisoners is widespread in China. Such abuses have been reported in the full range of state institutions, from police stations, detention centers and prisons, to administrative Reeducation Through Labor camps, internal migrant Custody and Repatriation centers and enforced drug rehabilitation centers. Torture is also frequently reported as an integral part of the abuse of “non-custodial” control measures such as “residential supervision” and during “special isolation” of officials during investigations into allegations of corruption.

These abuses do not only occur behind closed doors, they have often been perpetrated by officials in the course of their normal duties in full public view, as a deliberate public humiliation and warning to others. They are perpetrated by a range of officials outside the criminal justice system, including environmental officers and family planning officials. Many perpetrators acting in an official capacity, such as part-time, contracted or seconded security staff, are specifically excluded from prosecution for crimes of torture.

In recent years, victims of torture have included many people who simply became involved in disputes with officials or attempted to uphold their rights. Officials have resorted to torture in the collection of legitimate fines and taxes. Torture as part of blackmail and extortion by corrupt officials is also frequently reported. Migrant workers, particularly young women far from the protection of family and community contacts, are easy prey and frequent victims.

Torture during interrogation is perpetrated against all types of detainees, including in high profile cases. Reports of torture increase during periodic “Strike Hard” campaigns against specific crimes when police are clearly given the green light to use “every means” to achieve “quick results.”

Forced labor and “acknowledgment of guilt” are central to penal policy, generating an environment where prisoners are often abused. Particularly harsh treatment is inflicted on common criminal prisoners and political prisoners who are deemed to be “resisting reform.” Prison guards often assign disciplinary duties to selected prisoners or “cell bosses” who are routinely responsible for abuse, often at the direction of the guards.

Torture and ill-treatment become component parts of some high profile political campaigns, such as the crackdown on the banned Falungong organization. The failure to investigate and complete lack of prosecution in such cases can only be interpreted as official acquiescence in such practices.

 

 

 

 

 

 

TYPES OF TORTURE

 

Torture to coerce confessions has reportedly been “prohibited” since 1958 and has been a criminal offense in some circumstances since 1979, yet it remains commonplace.

In Tibet, for example, few political prisoners escape ill-treatment and torture, and this is particularly harsh during the early stages of custody and interrogation. Many report being beaten with whatever implement a guard or interrogator can find to hand including gun-butts. Prisoners are often beaten around the head, and wearing metal helmets, have had their heads beaten against walls. Kidney and liver ailments are common among prisoners as a result of kicking and beatings by prison guards aimed specifically at these sensitive organs.

In the cases reported since the examination by the Committee against Torture of the government’s last report in 1996, a high proportion of victims were killed or fatally wounded within the first 24 hours of detention for interrogation. Some of these killings have resulted in high profile prosecutions, but punishment is inconsistent and often lenient—frequently a suspended sentence or simple disciplinary sanction, even when the law provides for heavy punishment. In many other cases there has been no investigation at all. Where the procuratorate does initiate an investigation it is often blocked by police and other officials.

Particularly brutal treatment is reported against prisoners who are deemed to be “resisting reform” (kangju gaizao), either through failure to meet production targets, lodging complaints, staging hunger strikes or attempting to escape. Former prisoners regularly testify that extreme brutality, often resulting in death, is the norm against any prisoner caught attempting to escape from detention.

Torture against members of the Falungong group appears to be tolerated, if not encouraged. In just one of many examples, many women practitioners who travelled to Beijing in August 1999 to appeal to the authorities against the ban on the group were reportedly detained in late August and September in the Qiliqu Detention Center, Changping County, Beijing. Some 60 of them started a hunger strike on September 7 for which they were punished in the following days. On September 9, having fasted for two days, some were forced to stand in the burning sun and were reportedly beaten when they could no longer stand. After ten days on hunger strike, Zhang Xihong had her feet and hands chained closely together so that she could only walk bent double. Ten other women were handcuffed for three days. Others were beaten with belts and various objects, or forced to stay for long periods with their bodies bent at a 90-degree angle and their arms raised high behind their backs. Guo Fenren was beaten on the face with a string of keys until blood covered her face.

Former prisoners, held in all the different forms of criminal and administrative detention, report that guards routinely use “cell bosses” (also called “cell monitors” or the “second government”) to discipline, beat and torture their fellow prisoners. Reflecting persistent official denial of, and indifference to, this reality, China’s representatives asserted to the Committee against Torture during the 1996 hearing that “cell bosses” simply do not exist in China. Since 1997, Amnesty International has monitored only one prosecution relating to the actions of cell bosses, a case in which the victim was killed.

Although China’s report focuses only on torture and ill-treatment in criminal detention, these abuses occur in many other situations. A growing range of officials are being cited as perpetrators of torture, including administrative police, judges, court clerks and court police; village and party leaders and members of Mutual Defense Teams (lianfang dui); and many types of security officials (bao’an) outside the regular police force but seconded, contracted or working part-time for them.

Many women have been tortured, including through rape, sexual abuse and humiliation, by police who accuse them of prostitution. The majority are migrant workers. Police have the power to levy an instant fine on suspicion of prostitution, while they may also send alleged prostitutes and their clients for six months to two years’ administrative detention for “Custody and Education.” The police choose to detain, ill-treat and torture the women in order to extract lists of alleged “clients” to blackmail. When these “clients” maintain their innocence, they may also be tortured. Many alleged prostitutes and clients have died in custody as a result of torture. Others have committed suicide shortly after release believing their lives to have been ruined by the stigma of these allegations and the degradation of the abuse they have suffered. Such practices have become so common that in recent years they have been revealed as the major source of income for many police stations in different areas.

Former prisoners have also testified to encountering mentally ill people in detention, in spite of regulations prohibiting the detention of the mentally ill in penal institutions. Such prisoners are also among the most vulnerable to attack and bullying by “cell bosses” and other prisoners. Several recent reports have revealed gross ill-treatment of the mentally ill within the public security system. A number of cases in which political activists have been detained involuntarily in psychiatric hospitals without medical grounds have been reported.

 

 

 

 

 

 

DEATHS IN CUSTODY—FAILURE TO PROTECT

 

Many victims of torture have died in custody or shortly after release. Amnesty International believes that the extent of death in custody remains largely unacknowledged by the authorities and is a priority concern. The organization knows of many cases where officials have simply denied responsibility with no further explanation for the death, and where no full investigation has taken place. This inadequate response is the norm in cases involving political prisoners or where the deaths have occurred during a national campaign against perceived enemies of the government.

In the most notable example of this, since September 1999, at least 12 Falungong practitioners are reported to have died in police custody in circumstances which remain unclear, some reportedly as a result of torture. Official sources have confirmed at least three of these deaths. On November 8, 1999, Li Bing, deputy head of the information office of the State Council, citing police reports, confirmed that three female Falungong practitioners had died after being detained for their activities. He denied they had been tortured. His statement that two had died of “previous heart condition[s]” also calls into question the functioning of detention center regulations which bar the detention of those with potentially life-threatening medical conditions.

Since 1998 at least 13 Tibetans are reported to have died in prison or shortly after release following reports of torture and ill-treatment. Amnesty International knows of no substantive response to any of these cases from the Chinese authorities.

 

 

 

 

 

 

INADEQUATE LEGISLATION

 

Through welcome revisions to the Criminal Law (CL) in 1997 and subsequent interpretations of the law issued by the Supreme Peoples’ Court and Supreme Peoples’ Procuratorate, a wider range of actions which constitute torture are now considered crimes in China. However, other crucial provisions have been redefined in a more restrictive manner. The CL still fails to outlaw all acts of torture as defined in the Convention. The provisions governing existing offenses are also seriously flawed by loopholes, contradictions and ambiguities. They are only applicable to a limited range of officials in limited circumstances and locations. In addition, the procuratorate, which directly investigates and prosecutes torture and other offenses committed by officials, continues to set criteria for taking up cases which further limit the application of the laws on these offenses.

The Criminal Procedure Law (CPL) as revised in 1996 repeats provisions in the 1979 version prohibiting the use of torture to extract statements. There are growing calls in China for full and firm exclusion of evidence extracted by torture and other illegal means. Commentators argue that without such provisions, efforts to eradicate torture have little hope of lasting success.

Amnesty International believes the right of an accused to remain silent during the investigation phase and at trial is inherent to the presumption of innocence and an important safeguard of the right not to be compelled to confess guilt or testify against oneself. Currently Article 93 of the CPL states:

 

 

 

When interrogating a criminal suspect, the investigators shall first ask the criminal suspect whether or not he has committed any criminal act, and let him state the circumstances of his guilt or explain his innocence; then they may ask him questions. The criminal suspect shall answer the investigators’ questions truthfully, but he shall have the right to refuse to answer any questions that are irrelevant to the case.

Legal analysts in China argue that the duty to answer fully and truthfully puts the suspect at great disadvantage: it legitimizes the investigator’s use of ill-treatment and demonstrates that the presumption of guilt is still the reality.

 

INADEQUATE SAFEGUARDS FOR DETAINEES

 

China’s latest report to the Committee against Torture covers detention only within the criminal justice system. Many more citizens are subjected to deprivation of liberty by the state through expanding forms of administrative detention. These allow the police and other government agencies wide powers to detain people on their own authority, without charge, trial or any type of judicial review, and generally without the oversight of existing supervisory bodies.

Types of administrative detention include: Reeducation through Labor (laodong jiaoyang), Custody and Education (shourong jiaoyu), Custody and Repatriation (shourong qiansong), Enforced Drug Rehabilitation (qiangzhi jiedu), Administrative Detention (xingzheng juliu) and Work Study Schools (gongdu xuexiao). The limited safeguards for criminal suspects and defendants introduced in the revised CPL and outlined below do not apply to those detained administratively. As reports monitored by Amnesty International show, they are just as vulnerable to torture and ill-treatment by or at the instigation of state officials.

Under international law, “anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or release.” This is one of the basic safeguards against arbitrary arrest or detention and the word “promptly” is taken to mean “a few days.” There is no such safeguard in Chinese law.

Some important elements are omitted in the outline of revisions to criminal justice procedure in China’s Third Periodic Report to the Committee against Torture. Three years of implementation have validated Amnesty International’s initial concern that the 1996 revisions to the CPL had increased the potential for incommunicado, lengthy and arbitrary detention and related abuses.

Under the revised CPL, the police, procuratorate or the courts must rescind or alter “coercive measures” if they
discover they have been “inappropriately” taken (Article 73). However detainees or their representatives may contest their detention or restriction only on the basis that it has exceeded the stipulated time limits (Article 75). Even then, the remedy may simply be a transfer to another type of restriction or detention rather than release.

The right of detainees to be examined by a doctor and, when necessary, to receive medical treatment is a safeguard against torture or ill-treatment and an integral part of the authorities’ duty to ensure respect for human dignity. Rule 24 of the UN Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment states that a proper medical examination shall be offered to detainees or prisoners as promptly as possible after admission to a place of detention, and thereafter medical care and treatment shall be provided whenever necessary, free of charge.

Chinese law and prison and detention center regulations appear to cover medical attention for detainees and prisoners quite comprehensively. However none of the provisions establish prisoners’ rights and concrete entitlements to medical attention. Reports also indicate that the provisions on paper are often ignored in practice. In several cases known to Amnesty International, medical staff called into interrogations by police officers have assessed that badly beaten victims are fit enough for questioning to continue. Several of the victims subsequently died of their injuries. In cases where the interrogators were finally prosecuted, there is no indication that the medical staff complicit in the torture were investigated or punished in any way.

Amnesty International also has long standing concerns about the quality and availability of medical care to prisoners in China. Reports indicate that the authorities routinely refuse to provide prisoners with proper medication and access to doctors. They also frequently refuse to supply information to prisoners’ relatives or allow them to pass on food and necessary medication.

Under the CPL the police should inform the family of a detainee about their detention, arrest and place of detention within 24 hours, except where it “would hinder the investigation” (Articles 64 and 71). In practice, communication with the family is frequently denied until the detainee is brought to trial or sentenced.

Provisions in the 1996 CPL concerning access to lawyers are an improvement over the 1979 CPL but still fall short of international standards. Guaranteed access to lawyers and legal representatives is one of the strongest protections against torture for any detainee. While such access during the investigation stage is not a guaranteed right to all suspects and remains subject to the discretion of the investigating authorities, there is unlikely to be significant progress in the fight against torture in China. Lawyers have also been criticized for a lack of professionalism when they fail to take action over allegations of torture, but they cannot be effective in isolation. The courts also have a duty to act, but reports from many regions in the last two years, from Tibet to Shanghai to Xinjiang, indicate that indifference is widespread.

 

 

 

 

FAILURES OF SUPERVISION

 

The majority of cases of torture reported in recent years where investigation has taken place involve severe injury or death in custody as a result of torture to extort a confession. Analysis of these cases indicates that, when the procuratorate is alerted, its primary response is to call on the police station in question to investigate itself. Police within the station with managerial responsibilities, or those from a public security organ at a higher level with supervisory functions, may be called in to investigate. Many “investigations” get no further, blocked by connivance and cover-up by the “supervisors”
themselves.

The procuratorate seldom finds it “necessary” to conduct its own investigation as allowed in relevant regulations. Overall, the procuratorate still lacks the authority to carry out its functions, being inferior in status to the Public Security and State Security apparatus. In addition, the procuratorate’s dual functions of prosecution and police oversight mean that it is unlikely to aggressively uncover police malpractice, especially if such actions are seen as undermining the ability of the police to perform in their joint endeavor to crack down on rising crime. “Internal supervision,” predominantly through the Party apparatus, has always been the failing norm. Priority is still being placed on developing systems for internal investigation. Complex systems for “allocating responsibility” have been publicized in the police, procuratorate and courts in the last year, but it is still unclear what impact these will have in practice. Many commentators in China insist that there is no effective alternative to powerful external supervision. This is supported by the outcome of cases monitored in recent years.

In the last two years the media have played an increasing role in exposing police malpractice, including cases of torture. There is still very little coverage of abuses within the prison or administrative detention systems, however, and no reporting on politically sensitive cases. While the majority of reports appear only after an outcome which reflects well on the authorities, such as the prosecution or disciplining of the police, there have been some significant exceptions. Reports have regularly covered the victim’s dissatisfaction with the punishment or compensation in cases of torture.

Concerted action by victims or their relatives over many years has been crucial to many of the successful prosecutions of torturers reported in recent years. However, victims, relatives, lawyers and concerned citizens who become involved in pursuing justice in such cases face significant risks, including harassment, economic sanctions, ill-treatment and detention. The continuing arrest and detention of people who expose details of torture and detention is an unjustifiable violation of the right to freedom of expression and association. It also calls into question the sincerity of the authorities’ commitment to combating torture.

 

 

 

 

 

 

OTHER CONCERNS

 

The introduction into the 1996 CPL of lethal injection as an alternative means of execution to shooting does not diminish Amnesty International’s concerns over the use of the death penalty in China. Far more people are executed in China every year than in the rest of the world put together. Based mainly on published reports, Amnesty International has recorded more than 18,000 executions in China in the 1990s. This is believed to be a fraction of the true figure as death penalty statistics remain a state secret in China. Prisoners are executed after judicial proceedings which do not conform to international standards for fair trial.

The use of leg-irons is prohibited by international standards, and the prolonged use of other instruments of restraint is also considered in some circumstances to amount to ill-treatment. Prison and detention center regulations in China specifically exclude those awaiting execution from time limits on the use of shackles and other restraining instruments and solitary confinement. It is common practice for condemned prisoners to be kept in shackles (hands and feet) at least from their first trial until execution.

China has also violated its non-refoulement obligations. In January 2000, the Chinese government forcibly returned seven citizens of the Democratic People’s Republic of Korea (DPRK). The group, several of whom had previously been detained in labor camps in North Korea, feared extremely harsh reprisals for their escape from the country. Amnesty International believed they risked severe punishment and possibly death, such that their forcible return to DPRK would be contrary to China’s international obligations under the customary principle of non-refoulement. The Chinese authorities must take all the measures necessary to ensure that the rights of all refugees and asylum seekers in the PRC are respected. This should in particular include measures to ensure that persons are never returned to their country of origin before a fair and satisfactory refugee status determination procedure has been completed.

 

 

 

 

 

 

RECOMMENDATIONS

 

 

 

 

  • Firmly uphold zero tolerance of torture of any kind. Revise the Criminal Law, Criminal Procedure Law and prosecution policy to ensure that all acts which constitute torture as defined in Article 1 of the Convention Against Torture are fully and effectively outlawed.
  • Fully exclude all evidence extracted through torture from all proceedings, criminal or administrative. Based on definitions of torture consistent with Article 1 of the Convention, revise the Criminal Procedure Law and other relevant laws and regulations to introduce clear and unambiguous exclusion of all evidence obtained through torture.
  • End arbitrary or incommunicado detention. Abolish all forms of administrative detention which are imposed without charge, trial or judicial review. Introduce procedures to ensure that all detainees are brought before a judicial authority promptly after being taken into custody and regularly thereafter.
  • Guarantee all detainees, as a matter of right, from the outset of any form of detention by the state, and regularly thereafter, access to legal representatives, relatives and doctors of the detainees’ choice. Access should include the right for the detainee to have a lawyer present during interrogation.
  • Regulate and improve conditions in detention and prisons. Ensure that regulations and practice on the care, discipline and punishment of prisoners and detainees conform with international standards.
  • Ensure all detainees and prisoners have access to timely medical examinations and appropriate treatment. Take effective measures against the high levels of death in custody or shortly after release following reports of torture. Take effective measures to address high reported levels of serious medical problems among prisoners.
  • Introduce effective procedures to enable prisoners, their relatives, lawyers, or concerned citizens to make complaints about prisoners’ treatment and have them considered without fear of reprisals, and to protect them and witnesses from any coercion or intimidation. Complaints of torture, ill-treatment and other illegality should always be thoroughly and impartially investigated.
  • Institute or strengthen systems for redress, compensation and rehabilitation for victims of torture. These systems should complement and not replace investigation of the alleged perpetrators for criminal responsibility.
  • End restrictions in law, regulations and practice imposed on the free reporting of human rights abuses, including torture and ill-treatment. End retaliation and prosecution of human rights defenders who investigate, report and campaign on these issues. Encourage participation of the media and other actors in reporting violations, raising awareness of the issues both nationally and internationally, publicizing the rights of the detainee, disseminating national regulations and good practice and disseminating international standards including the Convention Against Torture and the concerns and recommendations of the Committee Against Torture, including those issued on the report by China. Prioritize education not only for law enforcement officials and detention center and prison staff, but also for doctors, psychiatrists and legal and social organizations in a position to contribute to preventing torture and assisting those most vulnerable to it.

 

 

NOTE

This is a shortened version of a longer submission prepared for the review of China’s report to the United Nations. Amnesty will publish a report on torture in China in September 2000.

 

 

 

 


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