A UN body responsible for monitoring compliance with the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment expressed serious concerns over China’s use of torture, prolonged detention, and treatment of lawyers in its latest report. China was one of six countries whose state reports were considered by the UN Committee Against Torture (CAT) this session (Liechtenstein, Azerbaijan, Austria, Denmark, and Jordan were the other five).
After going over China’s report and raising questions and concerns to a Chinese delegation, the CAT issued its concluding observations on China. First, the committee noted some positive advances since the last periodic review was conducted in 2008. In 2012, amendments to China’s Criminal Procedure Law banned the use of confessions obtained through torture and called for audio and video recordings of interrogations in major criminal cases. The 2012 revisions also specified that suspects are entitled to meet with a defense lawyer within 48 hours of making a request. CAT also approved of China’s move to abolish the “reeducation through labor” system in 2014.
Yet despite that progress, there were loopholes and problems with the implementation of these advances. On the ban on confessions obtained through torture, the committee noted that the torture prohibition “may not cover all public officials and persons acting in an official capacity.” It also noted that the ban doesn’t apply to torture when it is used “for purposes other than extracting confessions from defendants or criminal suspects” – for example, beatings or mistreatment designed to intimidate already-convicted prisoners.
Also, when a defendant claims a confession was obtained under torture, the burden of proof is on the suspect, not the procuratorate and the courts, where the CAT recommends it should rest. The CAT concluded that there is no effective oversight or accountability for investigators – particularly public security officials – who are involved in allegations of torture, even when a prisoner dies in custody. The CAT called on China to make sure that all public officials “can be prosecuted for torture,” noting that China’s current laws and enforcement mechanisms “create actual or potential loopholes for impunity.”
Overall, the CAT said in its concluding observations that it “remains seriously concerned over consistent reports indicating that the practice of torture and ill-treatment is still deeply entrenched in the criminal justice system, which overly relies on confessions as the basis for convictions.”
Meanwhile, the CAT pointed to several risk factors that increase the risk of torture. The CAT noted concerns about the length of time people can be detained without charges – up to 37 days, whereas the CAT recommends defendants should be brought before a judge within 48 hours. The committee also expressed “grave concern” over a separate provision that allows people to be held for up to six months at a “designated location,” which “could be any unregulated and unmonitored facility.”
The committee also noted that, despite reforms to the Criminal Procedure Law ensuring access to legal counsel, such access can be denied when cases are deemed to involve charges of “endangering state security,” “terrorism,” or “bribery.” The CAT notes that “public security officials constantly refuse lawyers’ access to suspects and notification to their relatives on the grounds that the case concerns state secrets, even when the detained person is not charged with State security crimes.”
The potential to hold people for long periods of time without legal representation, judicial supervision, or even notification to the families of where and why suspects are being held creates an atmosphere rife for torture and other abuses. The committee concluded that “these provisions… may amount to incommunicado detention in secret places, putting detainees at a high risk of torture or ill-treatment” and called it “a matter of urgency” for China to repeal the relevant provisions of the Criminal Procedure Law.
The CAT also expressed its concern over China’s crackdown on human rights lawyers, saying it was “deeply concerned about the unprecedented detention and interrogation of, reportedly, more than 200 lawyers and activists since July 9, 2015” – of which 25 reportedly remain in unofficial “black jails” and four of which are unaccounted for.
The report noted that “the Committee remains concerned at consistent reports that human rights defenders and lawyers, petitioners, political dissidents and members of religious or ethnic minorities continue to be charged, or threatened to be charged, with broadly-defined offenses as a form of intimidation.” Those “broadly-defined offenses” include the famous charge of “picking quarrels and provoking troubles,” often leveled at political dissidents in China.
The committee said that China “should stop sanctioning lawyers for actions taken in accordance with recognized professional duties,” adding that representing one’s client “should be possible without fear of prosecution under national security laws.”
China was given a chance to respond to the concerns of the committee, and its response was what observers have come to expect from Beijing when it is confronted on human rights issues. The strategy is a dual insistence that: a) nothing is wrong with China’s human rights situation and b) China is fixing (or has fixed) all the problems. In his delegation’s response to the CAT, UN Ambassador Wu Hailong followed the usual playbook. He began by noting progress made since 2012, when China amended its Criminal Procedure Law. He denied many of the issues brought up by the committee, saying for example that all defendants have access to legal counsel and that lawyers can practice their trade free of government interference.
The farthest Wu would go in acknowledging issues was to admit that implementation of anti-torture provisions is uneven, as China is “a developing country with a huge population and unequally developed regions.” He admitted that China “was still facing challenges in the prevention and prohibition of torture” but said the 13th Five Year Plan would provide a blueprint for a “law-based Government system and a more effective guarantee for human rights.”
Wu promised that the “experts’ comments and recommendations would be taken into consideration with China’s specific context in mind.” He said “China was looking forward to an objective and impartial evaluation of its implementation of the Convention.” Being ‘impartial’, according to a previous remark by Wu, involves acknowledging that “progress made in that area [anti-torture] was clearly visible” and that “China’s efforts in combating torture would never cease.”
FM spokesperson Hua Chunying echoed this sentiment when asked about the UN report:
China is pushing forward in an all-round manner the law-based state governance. Great efforts and remarkable achievements have been made in all sectors including anti-torture, which are there for all to see. It is hoped that the relevant committee could be objective and just about the relevant issue.