Convention Abbreviation: CAT
COMMITTEE AGAINST TORTURE
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 19 OF THE CONVENTION
Conclusions and recommendations of the Committee against Torture
387. The Committee considered the additional report of China (CAT/C/7/Add.14) at its 143rd and 146th meetings, on 22 and 23 April 1993 (see CAT/C/SR.143/Add.2, 144/Add.2, 145/Add.2 and 146/Add.2 and 4).
388. The report was introduced by the representative of the State party, who stated that China paid great attention, both in its legislative texts and in its judicial practice, to the protection of the rights and freedoms of citizens and their democratic rights. The Penal Code explicitly prohibited torture, thus upholding the rights of the person and the inviolability of the dignity of the human person. The Criminal Procedure Law set out in detail the procedure for investigating and punishing offences, including that of torture. Other texts played an important role in preventing and combating torture, in particular by enabling any victims to be compensated. Draft laws on prisons, judges and procurators were under consideration. In addition a national legal training and awareness programme would be renewed for a further five years. The situation in China and the efforts made by the Government must, however, be seen in their historical context: the majority of the legislative efforts aimed at introducing the primacy of law had in fact been undertaken only since 1979. Moreover, since China currently had 1.16 billion inhabitants, the implementation of such legal provisions gave rise to unquestionable difficulties.
389. The competence of procurators extended to offences allegedly committed by State bodies, including law enforcement agencies. With regard to the prohibition of torture, the procurator was empowered to approve, disapprove or revise an order for arrest; he investigated cases, instituted proceedings and visited places of detention. Any allegations of torture or human rights violations were thus referred to him. The number of cases of torture brought before procurators had fallen from 472 in 1990 to 407 in 1991, a reduction of 13.5 per cent, and then to 339 in 1992, a drop of 16.7 per cent.
390. With regard to certain questions raised during the consideration of the initial report of China, the representative of the State party explained the place of Tibet in the constitutional structure of China. He recalled that Tibet was an integral part of Chinese territory and that the political and judicial system of the People’s Republic applied equally to Tibet. Its population enjoyed the same political rights as other Chinese populations.
391. The members of the Committee welcomed the additional report of China, which endeavoured to provide the clarifications requested by the Committee following its consideration of the initial report and said that the presence of a high-level delegation was proof of the desire of the Government of China to cooperate with the Committee.
392. With regard to the constitutional and legal framework for the implementation of the Convention, the members of the Committee asked how the monitoring of the People’s Supreme Court by the Standing Committee of the People’s National Congress could be reconciled with the principle of the independence of the judiciary; how the judges and procurators of the People’s Supreme Court were appointed and dismissed; whether the Chinese Communist Party was subject to non-interference in cases heard by the people’s courts; whether the training given to judicial personnel and doctors related to the Convention; and, in general, what measures had been taken to prevent acts of torture from being committed.
393. The members of the Committee, referring to the assurances given by the Chinese delegation during the consideration of the initial report, asked what the outcome of inquiries conducted into alleged cases of torture in Tibet had been. They also referred to the report of the Special Rapporteur of the Commission on Human Rights to examine questions relevant to torture (E/CN.4/1993/26) generally deploring the use of torture and other cruel, inhuman or degrading treatment or punishment in China. They drew attention to information received from many non-governmental sources alleging repeated violations of human rights in Tibet, the systematic use of force against peaceful demonstrations in Tibet and acts of religious and racial discrimination against the population in general, and asked what the position of the authorities was in that regard.
394. On the subject of article 1 of the Convention as read in conjunction with article 4, the members of the Committee requested clarifications about the incorporation of the definition of torture into Chinese domestic legislation.
395. The members of the Committee asked how article 2, paragraph 3, of the Convention, according to which an order from a superior officer or a public authority may not be invoked as a justification of torture, was applied. In particular, they asked whether the rule stemmed from an administrative decision, whether it covered all forms of torture and whether it also applied to military personnel.
396. With reference to article 3 of the Convention, the members of the Committee wished to know whether an arrested person could be extradited to a country where he would be in danger of the death penalty and, if not, whether there were provisions in Chinese legislation which enabled the person concerned to be brought before the competent national courts.
397. Clarifications were also sought on the legislative measures adopted in order to safeguard the universal jurisdiction provided for in articles 5 to 7 of the Convention.
398. Further information was requested about the implementation of articles 8 and 9 of the Convention, particularly with regard to the mutual judicial assistance procedure followed in practice.
399. The members of the Committee asked what measures were taken to give practical effect to the provisions of article 10 of the Convention.
400. With regard to article 11 of the Convention, the members of the Committee requested information on rules relating to the interrogation of suspects and the prohibition of corporal punishment with a view to extorting confessions, since allegations by non-governmental organizations referred to many cases of persons detained in secret, and on opportunities for persons arrested to contact a family member, consult a qualified doctor and choose a lawyer as soon as they were arrested. They also asked how many persons were detained in the country’s prisons or held in administrative detention and whether measures were envisaged to place a time-limit on the length of pre-trial detention. They requested further information on the definition of the crime of counter-revolution and on the situation of the 4,329 persons held in Chinese prisons for such crimes; they asked whether re-education through labour could be used as part of administrative penalties, how many persons were affected by such penalties and how many had died in prison or in re-education-through-labour camps.
401. The members requested clarifications about the conditions in which a person could be subjected to a form of administrative detention known as “protective custody during investigation”; the number of persons involved and the procedural safeguards available to them, in particular any opportunity for remedies in cases of torture; and allegations that persons thus placed in “protective custody during investigation” were deprived of certain rights, particularly that of communicating with members of their family or their defence counsel, and were frequently detained for longer than the regulation three months and subjected to torture. They also asked whether steps had been taken by the competent authorities as a result of allegations of torture and suspicious death among persons detained in such special centres.
402. As to articles 12 and 13 of the Convention, the members of the Committee said that they would like further information on complaints filed against public officials, on the outcome of the inquiries conducted and on the number and nature of sentences handed down against persons found guilty of violating citizens’ human and democratic rights and of acts of torture in particular.
403. On the subject of article 14 of the Convention, the members of the Committee also requested clarifications of the conditions in which a victim of an act of torture, or claimants on his behalf, could obtain compensation, particularly when the guilty person was an agent of the State.
404. With reference to article 15 of the Convention, the members of the Committee asked whether a statement obtained by torture could be invoked as evidence in a trial, whether such cases had occurred in practice and what use the courts made of such evidence.
405. On article 16 of the Convention, the members referred to information from non-governmental sources according to which sentences to the death penalty had increased sharply during recent years, having reached 1,891 in 1992, involving 1,079 executions. They requested clarifications in that regard and asked whether the death sentence might not constitute a form of cruel and inhuman treatment in some cases, particularly when the enforcement of such a sentence remained pending for a long period. It was also asked whether the bodies of persons executed could be used for the purpose of organ transplants.
406. Lastly, the members of the Committee asked whether the Government of China was planning to recognize the Committee’s competence under articles 21 and 22 of the Convention and to withdraw its reservation on article 20 of the Convention.
407. In reply to the questions raised, the representative of the State party said that, in conformity with article 126 of the Constitution, the courts exercised their functions without any interference by administrative organs, social groups or individuals. The Chinese judicial system was based on the responsibility of the courts to the People’s Congress, but those courts handed down their decisions in complete freedom. Judges and the Procurator General were elected by the People’s National Congress, which could revoke their appointment. The independence of the courts with regard to social groups was guaranteed and the Communist Party did not intervene at all in decisions of the courts.
408. With reference to articles 1 and 4 of the Convention, the representative of the State party said that chapters IV and VII of the Penal Code contained specific provisions guaranteeing the protection of individuals against any violation of their rights. The definition given in article 136 of the Penal Code corresponded to that contained in article 1 of the Convention.
409. Responding to questions raised in connection with article 2, paragraph 3, of the Convention, the representative of the State party explained that superior orders could not be invoked to excuse offences involving torture, and administrative and criminal procedures were available in such cases.
410. With regard to articles 8 and 9 of the Convention, the representative of the State party explained that China was currently drafting legislation on the question of extradition and had signed bilateral agreements with a number of countries on reciprocal arrangements in commercial and judicial matters, including extradition. Any extradition order had to comply with the basic principles of international law, including the provisions of the Convention, and if not extradited, a citizen of another State would be tried under provision of China’s Penal Code.
411. Referring to article 10 of the Convention, the representative of the State party stressed that the Government of China attached great importance to the training of judicial personnel with regard not only to domestic legislation, but also to the international conventions to which China was a party, in particular the Convention against Torture. No special legal training was given to medical staff or armed forces personnel, who nevertheless benefited from the measures taken as part of the national legal training and awareness campaign.
412. With regard to article 11 of the Convention, the representative of the State party said that, in 1993, there were 684 reform-through-labour centres, 155 prisons, 492 rehabilitation centres and 37 social reintegration centres for juvenile offenders. The total prison population was some 1,209,945, i.e., about 1 prisoner per 1,000 inhabitants. Solitary confinement applied only to certain prisoners who had committed serious violations of prison regulations and must not exceed 15 days. Prisoners subjected to such a regime were entitled to the same standards of hygiene and living as other inmates and were given support in order to help them reform.
413. Reform through education and labour in China was carried out in accordance with an Act approved by the People’s National Congress in 1957. It was intended to reduce crime and to safeguard the public through persuasion and education. It did not entail punishment, but was intended to restrain potential juvenile offenders, particularly in urban areas. Persons detained in reform-through-labour camps were entitled to free medical attention. The standard of medical attention provided in such establishments was higher than the national average. The death rate in those camps was extremely low, moreover, and the staff were expressly prohibited from subjecting inmates to humiliation, ill-treatment or torture. In 1990 and 1991, a total of 21 agents of the State had been punished for such offences; no cases had been reported in 1992.
414. Administrative detention, also known as public security detention, was imposed by public security organs for minor offences. Offenders could be held for a period of up to 15 days and public security officials were strictly forbidden to beat, curse, humiliate or otherwise intimidate detainees.
415. There were no specific provisions covering counter-revolutionary and political offences and the concept of political crime did not exist in China. The crimes of counter-revolution referred to in the Penal Code were a category of criminal offences including all activities carried out with the specific intention of subverting State power or overthrowing the Government. The judicial bodies which tried such cases showed particular circumspection and the courts strictly abided by the principles and procedures laid down in the Code of Criminal Procedure. Persons found guilty of counter-revolutionary crimes had been sentenced in strict conformity with articles 91 and 102 of the Penal Code, according to the gravity of the offences committed.
416. Replying to further questions, the representative said that detention during investigation could not last more than two months and correspondence to the period during which proceedings might or might not be instituted. Under Chinese law, families of defendants were normally notified of the fact and place of detention, unless accessories to the alleged offence were still at large. Persons who were arrested had to be informed of the nature of the charges at the time of arrest.
417. In reply to questions on articles 12 and 13 of the Convention, the representative of the State party provided detailed information on the number of complaints of torture filed from 1990 to 1992. Any persons found guilty of extorting a confession by torture or having subjected a prisoner to corporal punishment, ill-treatment, harassment or humiliation were liable to prison sentences varying according to the gravity of the offence and the extent of the ill-treatment and even to the death sentence in the most serious cases. Furthermore, if a case of torture was discovered, the Ministry responsible for supervising the civil authorities would take action, if necessary by initiating proceedings, even in the absence of a complaint.
418. Referring to article 14 of the Convention, the representative of the State party said that, if a death occurred following an act of torture, the perpetrator was brought before the people’s court. The perpetrator of such acts was required to compensate the victim or his surviving relatives; if he was not solvent, the production unit to which he belonged addressed a request to the finance department, which then compensated the victim. The Civil Code also included provisions for awarding compensation for mental suffering.
419. In reply to questions on article 15 of the Convention, the representative of the State party said that, in 1958, the Minister for Justice had prepared a 10-point list of principles to be observed, one of which prohibited obtaining confessions by torture. In 1983, a code of conduct for the legal and legislative professions had been published, reproducing and elaborating on the same principle. When China became a party to the Convention in 1988, the Minister for Public Security had issued a circular stating that the people’s police were required to study and apply the Convention. Lastly, the Penal Code very clearly stipulated that judicial bodies charged with investigating criminal cases could not base their rulings on evidence obtained by torture or illegal means and that, in the absence of other evidence, no penalty could be handed down.
420. With reference to article 16 of the Convention, the representative of the State party explained that capital punishment was reserved for persons who had committed only the most heinous crimes and its application was subject to extremely strict conditions. During the two-year stay of execution, the convicted person was subjected to reform through labour and his conduct was monitored for signs of successful rehabilitation. The death penalty was therefore carried out only in exceptional cases in which offenders resolutely refused to reform or committed further crimes while in prison. Removal of organs without the permission of either the person or his family was not standard practice. There were, however, cases in which permission had been given to remove organs from the bodies of persons executed.
421. Responding to other questions, the representative of the State party said that reconsideration of the reservation made by China to article 30 of the Convention was under way. Furthermore, the Committee’s views regarding the reservation entered in respect of article 20 would be duly taken into account.
422. Lastly, the representative of the State party drew the Committee’s attention to the fact that a great deal of the material referred to by its members had been supplied by non-governmental organizations, some of which were particularly biased against China. The credibility of such material was therefore questionable. The report of the Special Rapporteur on questions of torture had used the same sources of information and had to be treated with equal caution. China was making valiant efforts to improve its legal system and promote democracy. Any violations of the Convention were merely isolated cases and were not representative of the policy of the Government of China.
Conclusions and recommendations
423. The Committee expressed its gratitude for the detailed report submitted by the Government of China, which was in conformity with the Committee’s guidelines, as well as for the explanations provided by the delegation.
424. The Committee took note with satisfaction of the many legislative, judicial and administrative measures which had been adopted by the Government in order to comply with the various provisions of the Convention. The Committee welcomed, in particular, the reforms relating to the Penal Code and the efforts made to raise public awareness through the printing of textbooks used in information, education, training, promotion and protection programmes in the area of human rights.
425. Although the Committee was aware of the obvious difficulties facing China, it expressed concern at the use of administrative detention and the cases of torture alleged and deplored by various non-governmental organizations, in particular in Tibet. It recommended that energetic measures be taken by the authorities to prevent such cases and to punish those responsible and requested precise statistical data concerning the number of persons in administrative detention, sentenced to capital punishment and executed.
426. The Committee also called upon the Government to consider making declarations with regard to articles 21 and 22 of the Convention and withdrawing the reservation entered in respect of article 20 of the Convention.
427. The Committee recommended that arrested or detained persons should have more extensive guarantees immediately following their arrest and that their family, lawyer or doctor should have prompt and regular access to them. In order to guarantee the protection of detainees during interrogation, separation between the authorities responsible for detention, on the one hand, and investigation, on the other, should be provided for. The conduct of interrogations should be monitored in the framework of administrative and other forms of detention. In that regard, legislation could be considered that would enable detainees to lodge complaints and allow plaintiffs and witnesses to be protected against any ensuing ill-treatment or intimidation.
428. The Committee also recommended that criminal proceedings be systematically initiated against persons accused of acts of torture. Those procedures should be conducted independently of any disciplinary measures taken by the security forces. Procedures should be introduced to guarantee the medical examination of persons detained or arrested, to be carried out by qualified and independent medical doctors, immediately following arrest and at regular intervals thereafter, in particular before release. Training for law enforcement personnel, members of the armed forces and medical doctors should be accentuated and extended and should concern, in particular, limitations on the use of instruments, equipment and weapons by the security forces.
429. Finally, the Committee expressed the hope that, despite the difficulties and obstacles which might be encountered by the Government of China, the political will and the various legislative measures taken or envisaged would lead to significant progress in promoting in-depth research into the circumstances in which torture was practised and into the necessary ways and means of ending or at least reducing the incidence of torture.