The Third Report of the People?s Republic of China on the Implementation of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment


Introduction


1. This is the third report submitted by the People?s Republic of China in Accordance with article 19 of the Convention Against Torture and Other Cruel, Inhuman of Degrading Treatment or Punishment.


2. China submitted its initial report on the Convention (CAT/C/7/Add.5) in December 1989. This was followed in October 1992 by a supplementary report (CAT/C/7/Add.14, hereinafter ?supplementary report?). China?s second report (CAT/C/20/Add.5, hereinafter ?second report?) was submitted in December 1995 and considered by Committee in May 1996.


3. The initial and supplementary reports and the second report submitted by China described in detail China?s political structure, legal framework and statutory and practical prohibitions against torture. This report deals with the relevant new measures taken and progress made by China in implementation of Part I of the Convention, and, taking into account the related issues of concern raised during the previous review by the Committee and in its concluding observations, provides further information on China?s implementation of the Convention.


4. China resumed its exercise of sovereignty over Hong Kong and established the Hong Kong Special Administrative Region (HKSAR) on 1 July 1997. Part II of this report provides information on implementation of the Convention in HKSAR. This part was prepared by the Government of HKSAR.


I. NEW MEASURES TAKEN AND PROGRESS MADE IN IMPLEMENTATION OF THE CONVENTION




Article 2


5. Paragraphs 64-71 of the supplementary report and paragraphs 6-7 and 85 of the second report submitted by China continue to apply.


6. Since the submission of its second report, China has revised the 1979 Criminal Law and Criminal Procedure Las of the People?s Republic of China. The revised Criminal Law and Criminal Procedure Law draw on experience with the two original laws and the strengths of contemporary criminal law in other countries. The two new laws explicitly set forth basic principles of criminal law, such as those providing that crimes and punishment shall be determined by law; that the law applies equally to all citizens; that punishment must be compatible with the crime and that no one shall be found guilty without being tried by a people?s court in accordance with law.


7. On 17 March 1996, the Fourth Session of the Eighth National People?s Congress adopted the Decision on Amending the Criminal Procedure Law of the People?s Republic of China, The revised Criminal Procedure Law has been implemented as of 1 January 1997.It strengthens the guarantees against torture and other cruel, inhuman or degrading Treatment or punishment with regard to persons suspected, accused or convicted of criminal offences through measures in the following five areas:


Abolition of the system of detention for interrogation;


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 thus 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;


Advancement of the date for lawyers? involvement in criminal proceedings;


Reform of the procedures of criminal adjudication, replacing those characterized


by interrogations by judges with means of hearing prosecution and defence arguments;


(e) Change in the means by which a death sentence is executed. The 1979 Criminal Law of China stipulated that a death sentence must be carried ort by means of shooting. While maintaining This procedure, the revised Criminal Procedure Law further introduces provisions on more humane means of enforcing death sentences, such as the use of injections.


8. On 14 March 1997, the Fifth Session of the Eighth National People?s Congress of China amended the 1979 Criminal Law. The revised Criminal Law attaches greater importance to the protection of human rights. With regard to the prohibition of the crime of torture. Considerable additions and improvements have been made in the revised criminal Law as compared with the previous law. These mainly include:


(a) Retention of the crime of extorting confessions by torture and the crime of physically abusing prisoners, which were stipulated in the 1979 Criminal Law, and introduction of the crime of the use of force by judicial personnel to extract testimony. This fills a gap in the original law, which lacked explicit provisions on acts involving the use of force to extract testimony from witnesses by judicial personnel;


(b) A more explicit stipulation that those who extort confessions by torture, extract testimony from witnesses by force or physically abuse prisoners shall be punished more severely. Those who cause injury, disability or death through the above three crimes shall be sentenced to death, life imprisonment or fixed term imprisonment of not less than 10 years.


9. The Regulations on the Use of Police Instruments and Weapons by People?s Police, issued by the State Council of China in 1996, clearly define the circumstances in which police instruments or weapons are to be used and the relevant procedures. Article 14 of the Regulations stipulates that people?s police who cause unnecessary personal injury or death of loss of personal property through unlawful use of police instruments or weapons shall be punished by law; those whose acts do not constitute a criminal offence shall be subject to administrative discipline. The victims of such crimes shall be compensated by the organ to which the policemen belong in accordance with the relevant provisions of the State Compensation Law.


10. To prevent and reduce the incidence of torture in judicial proceedings, China?s judicial organs have taken a series of measures, including:


(a) Institutional improvement. The supreme People?s Court has formulated and issued a provisional set of Measures Concerning the Punishment of Judicial Personnel of the People?s Courts Who Break the Law During Trials and a provisional set of Disciplinary Measures Concerning Judicial Personnel of the People?s Courts. It has also 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;


(b) Enhancement of the quality of judicial personnel through education and rectification. To reduce torture and other breaches of law by judicial personnel in the performance of their duties and to improve their quality, the judicial organs 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, Through 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;


(c) During the campaign, a supervisory system was established in the courts of China which gave effect to the provision that ?the Supreme People?s Court shall supervise the administration of justice by the local people?s courts at different levels and by the special people?s courts?, as stipulated in the Constitution and the Organic Law of the Supreme People?s Court; the courts have also further strengthened their disciplinary inspection and supervision, and standardized and instituted procedures for such work and the investigation and punishment of violations of laws and disciplinary rules;


(d) Intensification of the practice of open trials and their placement under social and public scrutiny. The courts of China have always regarded open trials as an important link in the realization of judicial justice and the prevention of corruption. The Supreme People?s Court issued Provisions for Strict Implementation of the Open Trial System on 8 March 1999, which explicitly call for all cases to be handled through open trials except those involving State secrets or personal privacy and those concerning minors. The practice of open trials helps to prevent torture and other cruel, inhumane or degrading treatment towards defendants, and make public acts of torture or extortion of confessions by torture by judicial personnel during criminal proceedings, since they can be exposed by defendants in the courts, thus forcing the judicial organs to make thorough investigations of the incidents and avoid the occurrence of similar incidents.


Article 3


Paragraphs 72 and 73 of the supplementary report continue to apply.


12. It is usually stipulated in extradition treaties between China and other countries, such as the Extradition Treaty between the People?s Republic of China and the Republic of Bulgaria, that these instruments do not interfere with the obligations undertaken and rights enjoyed by the two sides under multilateral treaties. Therefore, Sino-foreign extradition treaties do not affect the application of this article.


Article 3


13. See paragraphs 74-81 of the supplementary report. Paragraphs 10-17 of the second report continue to apply.


14. The revised Criminal Law introduces a new crime involving torture and amends the provisions on prohibition of torture by aggravating the punishment, as follows:


(a) Introduction of the crime of extracting testimony by force. Torture as referred to in the Convention covers acts of torture not only against criminal suspects aimed at extorting confessions, but also against other people aimed at extracting ?information?. This obviously includes the use of torture against witnesses to extract testimony. The previous Criminal Law provided only for the crime of extorting confessions by torture, While the revised Criminal Law furthermore introduces the crime of extracting testimony by force i.e., acts involving the use of force to extract testimony from witnesses by judicial personnel. The punishment meted out for this crime is the same as that for the crime of extorting confessions by torture;


(b) Revision of the punishment given to those who cause death through extortion of confessions by torture. The previous Criminal Law stipulated that any State functionary who extorts a confession by torture shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. Whoever causes injury or disability to a person through corporal punishment shall be charged with the crime of injury and given a heavier punishment. The revised Criminal Law stipulates that any State functionary who extorts a confession buy torture against a criminal suspect or a defendant shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. Whoever causes injury, disability or death to a person shall be charged with the crime of intentional injury or the crime of intentional homicide and given a heavier punishment. This shows that the revised Criminal Law imposes a heavier punishment on those who cause death when extorting confessions by torture;


(c) Revision of the provisions on the applicable charges and punishment for persons who cause injury, disability or death through unlawful detention. Both criminal laws provide for State functionaries committing acts of battery or humiliation in the process of unlawful detention to be charged with unlawful detention and given a heavier punishment. However under the previous Criminal Law, perpetrators of acts of violence in the process of unlawful detention that caused injury or disability could only be charged with unlawful detention and sentenced to fixed-term imprisonment of not less than three years and no more than 10 years; while the perpetrators of acts that caused death could be sentenced to fixed-term imprisonment of not less than seven years. The revised Criminal Law establishes more serious charges and heavier punishment for such acts, the perpetrators being charged with intentional injury or intentional homicide rather than simply unlawful detention, thus increasing the severity of the punishment for such acts;


(d) Revision of the provisions on the applicable charges and punishment for abuses of prisoners that cause injury, disability or death. The previous Crimi8nal Law stipulated that in such cases, if the circumstances are especially serious, the severest punishment should be fixed-term imprisonment for 10 years. The ?especially serious circumstances? here included cases in which the abuses caused injury, disability or death to prisone5rs. The revised Criminal Law stipulates that prison officers who abuse prisoners and cause injury, disability or death shall be charged with intentional injury or intentional homicide and given a heavier punishment. The prison officers whose abuses cause injury, disability or death to prisoners are thus liable to fixed-term imprisonment for more than 10 years, life imprisonment or the death penalty. The revised Criminal Law also stipulates that prison officers who incite prisoners to beat or physically abuse other prisoners shall be punished in the same manner.


Article 5


15. Articles 6 and 9 of the 1997 Criminal Law constitute the legal basis for the exercise of jurisdiction by China over the crimes described in article 4 of the Convention.


16. Article 6 of the 1997 Criminal Law states that ?the law is applicable to all who commit crimes within the territory of the People?s Republic of China unless otherwise expressly stipulated by law. The law is applicable to all who commit crimes aboard a ship or aircraft of the People?s Republic of China. When either the act or consequence of a crime takes placer in the People?s Republic of China, a crime is deemed to have been committed within the territory of the People?s Republic of China .?


17. In the above provision concerning the cases ?expressly stipulated by law?, the express stipulation, with regard to the Convention, refers to the special provisions on foreigners who enjoy diplomatic privileges and impunity. Article 11 of 1997 Criminal Law of China states that ?the problem of criminal responsibility of foreigners who enjoy diplomatic privileges and impunity is to be resolved through diplomatic channels?.


Article 6


Paragraphs 85-89 of the supplementary report continue to apply.


Article 7


19. Paragraph 90 of the supplementary report continues to apply. The current extradition treaties between China and foreign countries usually stipulate that both signatory parties have the right to refuse to extradite their own nationals. Under such circumstances, the country of origin of the person whose extradition was requested must submit the case to its competent departments with a view to initiating criminal proceedings against and punishing the person as appropriate in accordance with the law of the country. One example of this is article 5 of the Extradition Treaty between the People?s Republic of China and the Russian Federation.


20. Regarding the treatment of criminal suspects and defendants at the various stages of criminal proceedings, see paragraphs 91-98 of the supplementary report.


Article 8


Paragraphs 21-24 of the second report continue to apply.


22. As of February 1999, China had concluded extradition treaties with the following countries: Belarus, Bulgaria, Cambodia, Kazakhstan, Kazakhstan, Mongolia, Romania, Russia, Thailand, Ukraine. In practice, China also cooperates with some countries in extraditing or repatriating suspect criminals. The relevant articles of international conventions acceded to by China, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , will serve as the legal basis for such cooperation.


Article 9


23. Paragraph 100 of the supplementary report submitted by China continues to apply.


24. By the end of 1998, China had concluded treaties on judicial assistance in criminal matters with some 20 countries, including Canada, Egypt, Greece, Korea, Russia, Turkey and Viet Nam.


Articles 10 and 11


25. Reference may be made to paragraphs 101- 112 of the supplementary report and paragraphs 27- 37 of the second report.


26. In the first half of 1996, an education and rectification campaign to reinforce the prohibition of the practice of extorting confessions by force was conducted in public security organs throughout China. The campaign was designed to raise all police officer? awareness of the danger of extorting confession by torture through study of the relevant laws, regulations and the disciplinary rules concerning the handling of cases. Leaders and officers of public security organs at all levels received refresher courses on the legal system and police discipline. As a result, their professionalism in handling cases in accordance with law and with civility had been strengthened. Since 1996, the number of cases of extortion of confessions by torture has dropped.


27. In April 1997, while arranging the yearly program of anti-misconduct and corruption in law enforcement, the Ministry of Public Security emphasized that a special effort should be made to address the issue of extorting confession by torture and put an end to occurrence of cases of death caused by torture in extorting confessions. The Ministry also called for measures to be taken to prevent and prohibit torture and physical abuse and maltreatment of persons held in custody.


28. On 9 March 1998, The Ministry of Public Security issued a circular, urging public security organs at all levels to place the investigation into police misconduct on top of their agenda and take effective measures to prevent and check, to the greatest possible extent, cases of breach of law and disciplinary rules by police officers taking advantage of their functions and powers, especially cases of extortion of confessions by torture, bribery and corruption. From March until the end of the year, a review of law enforcement work was undertaken in the public security organs throughout the country. Its focus was placed, among other, on cases of policemen abusing their official capacity in violation of laws and disciplines, or committing crimes, including those of extortion of confessions by torture.


29. In China, prisons are the principal executing organs of criminal punishment. It has been consistently emphasized that torture is strictly forbidden in prisons, No one would be permitted to torture prisoners under any circumstances or for whatever reasons. China attaches great importance to the legal education of prison police officers and to the improvement of their professionalism and ability to manage the prisons with civility.


30. In 1996, a total of 2,902 training courses were held for law enforcement personnel in the country and some 180,000 person/time participated in these courses. To improve the professional quality of law enforcement officers, the Ministry of Justice, in June 1997 introduced a program of examinations for self-taught learners of specialized tertiary courses of prison management. By the end of 1998, the participants of such examinations totaled 80,000 person/times.


31. To keep prison police officers updated of the contents of international human rights conventions, including the Convention Against Torture, the Ministry of Justice has compiled a manual which contains relevant United Nations instruments as well as Chinese laws and regulations. These manuals are made available to each and every prison police officer to study and observe.


32. The amended Criminal Procedure Law of China has introduced and established the adversarial approach in criminal trial to replace the inquisitorial approach previously practiced in China. According to the previous Practice, judges would be fully apprised of the case and related information transferred by a people?s procurator ate against the accused before the opening of a court session. He would have already interrogated the accused, investigated the witnesses and examined and verified the evidence. The trial would take place only after the judge had ascertained that facts of the crime accused were clear and that charges could be well established. The advantage of such approach in criminal trial is that the judge would be thoroughly familiar with the case, the trial would be completed in one court session. The drawback, of course, is that since the judge would have formed a priori opinion, he could hardly take into account of the arguments presented by either the prosecuting party or the defense party in the court trial.


33. With regard to the adversarial approach, Article 150 of the amended Criminal Procedure Law stipulates that ?After a People?s Court has examined a case in which public prosecution was initiated, it shall decide to open the court session and try the case, if the bill of prosecution contains clear facts of the crime accused and, in addition, there are a list of evidence and a list of witnesses as well duplicates or photos of major evidence attached to it?. The Law also stipulates that during the court session, the parties and defenders, with the permission of the presiding judge, may question the witnesses and expert witnesses, state their views on the evidence and the case, and they may debate with each other; that after the conclusion of the debate, the defendant shall have the right to present a final statement. These provisions ensure an open and fair court hearing and enhance the position of the defendants in court proceedings, and help reduce the likelihood of torture.


34. Furthermore, the amended Criminal Procedure Law has abolished the practice of detention for interrogation. Such practice was a compulsory administrative measure, mainly applied to those who had committed minor offences but refused to reveal their true name, address or identity or those who had committed minor offences and were suspected of committing crimes in different places or in collusion with others, and need to be detained for interrogation and investigation. The decision of detention for interrogation was to be made public security organs. As the true identity of detainees and the facts of their suspected crimes had be to investigated and ascertained, they could be held for as long as three months. As such practice was under little or no effective supervision, the revised Criminal Procedure Law has abolished this kind of compulsory administrative measure.


35. As detention is a compulsory criminal measure, a public security organ, while taking such measure, shall (a) abide by the provisions concerning the object and time limit of detention as defined by the Criminal Procedure Law; (b) observe the relevant provisions of the Criminal Procedure Law concerning the interrogation of criminal suspects and the collection of evidence; and (c) accept the legal supervision of the People?s Procuratorates. These amended provisions of the Criminal Procedure Law can effectively prevent and reduce cases of torture against suspects for extortion of confessions.


Article 12


Paragraphs 113 and 114 of the supplementary report continue to apply.


37. Over the last two decades, China?s procuratorial organs have strengthened their investigation and prosecution of crimes of extorting confessions by torture. Such cases have been listed as priouities in People?s Procuratorates? investigation so as to punish, in accordance with law, those who infringed upon citizens? rights. According to the statistics, the procuratorates in China have investigated and prosecuted 409 cases of such kind in 1996 and 412 in 1997.


38. In trying cases of crimes of extorting confessions by torture and extracting testimony by violence, and of physical abuse or mistreatment of persons held in custody, the courts in China uphold the principle of independent adjudication free from interference either by administrative authorities or by associations or individuals. According to the statistics, during the first seven months of 1998, courts in China accepted and tried a total of 154 cases of extorting confessions by torture, extracting testimony by violence, physically abusing or mistreating persons held in custody. In 150 of all these cases, the defendants were found guilty while in the other four cases, the defendants were acquitted. Penalties were imposed in 136 of the 150 cases, while in the other 14 cases the defendants were exempted from criminal punishment. The victims of injuries caused by torture have received compensation from the State.


39. For example, on 8 February 1996, a policeman surnamed Zhong and a police trainee surnamed Deng, who worked at a police station of the Public Security Bureau in the city of Nanhai in Guangdong Province, without prior authorization, interrogated a man surnamed Chen, who was held in custody and suspected of theft. During the interrogation, these two police officers beat Chen ob the hands, legs and back with wooden rods, finally causing his death. On 15 July, the Nanhai People?s Court sentenced Zhong and Deng to eight years? and three years? fixed-term imprisonment respectively. On 22 July, the Nanhai Municipal Bureau of Supervision made a decision, removing the head of the police station in question from office.


40. Once a case involving torture is discovered in a prison, the persons responsible will be immediately pry under investigation and dealt with according to law. In 1997, there were 1.44 million criminals held in custody in China?s prisons and there were 180,000 prison police officers. Of these, 55 officers were prosecuted for verbal of Physical abuse of inmates, and 14 of them were given criminal penalties.


Article 13


Paragraphs 39-43 of the second report continue to apply.


42. Article 22 of the Prison Law stipulates:? The prisons shall promptly process the materials on charge of accusation from a criminal or transfer them to a public security organ or a People?s Procuratorate for action. The public security organ or the People?s Procuratorate shall inform the prisons of the results of its action?. Article 23 of the same Law stipulates ?Any petition, accusation or complaint by a criminal shall be promptly forwarded and shall not be withheld?.


43. Article 46 of the Regulations on Custody House stipulates: ?Any appeal or complaint by an inmate must be promptly forwarded without obstruction and shall not be withheld. Any denunciation or accusation concerning an unlawful act by a judicial officer must be promptly communicated to a People?s Procuratorate.?


44. Article 153 of the Regulations on the Procedures for Handling Criminal Cases by Public Security Organs stipulates: ?Any complaint or appeal by a detainee shall not be withheld and must be promptly communicated to a relevant authority without delay or obstruction. Any denunciation of or accusation against a judicial officer must be communicated by the custody or detention house authority to the public security organ to which the house is affiliated or a People?s Procuratorate?.


Since 1997, the public security organs at all levels have successively set up their own


supervisory bodies to check if the police officers abide by relevant laws, regulations and disciplines in the performance and exercise of their functions and powers, including whether they use torture to extort confessions during interrogation.


46. On 10 September 1997,the Ministry of Public Security the Regulations on the Work of Public Security Supervisory Taskforce. The purpose of the Regulations is to ensure the lawful exercise of the supervisory body?s mandate. The Regulations provides in detail for the mandate and working procedures of the supervisory body. It stipulates that ?If the taskforce, in the exercise of its mandate, receives a complaint or accusation submitted a citizen against a police officer, it shall process them. Should the matter not fall within the terms of reference of the supervisory body, it must be promptly referred to a competent public security authority?.


In China, if an act, such as extorting confessions by torture or extracting testimony by


violent means, constitutes a crime, the People?s Procuratorates would file a case and carry out investigation to seek the criminal responsibility of the perpetrators. If the circumstances of the case are obviously minor, and the act does not constitute a criminal offence, the case shall be investigated by the public security organ, People?s Procuratorate, People?s Court or judicial organ that the perpetrator works for. And the perpetrator shall be subject to administrative or disciplinary action in accordance with relevant regulations.


48. Article 254 of the 1997 Criminal Law retains the crime of retaliation and frame-up as defined in the 1979 Criminal Law. If a criminal suspect accuses a judicial officer of torture and the officer retaliates against the suspect with further abuse or torture, the acts of the officer constitute crimes not only of torture for extorting confessions or maltreatment of the person in custody, but also of retaliation and frame-up. And the officer in question will be given a combined criminal punishment for more than one count.


Article 14


49. Reference may be made to paragraphs 117 and 118 of the supplementary report. Paragraphs 45-53 of the second report continue to apply.


50. The Prison Law of China explicitly prohibits the torture of criminals serving their sentence in prison by anyone or for any reason. In addition, the Ministry of Justice has issued a series of its own departmental regulations, such as Methods of Administrative and Criminal Compensation by Organs of Judicial Administration, If a prison police officer infringes upon a prisoner?s right of the person, the State shall compensate the victim in accordance with the relevant regulations.


Article 15


51. Paragraphs 120-122 of the supplementary report and paragraph 55 of the second report continue to apply.


52. In the course of a trial, if the defendant claims that his confession has been given under torture, the court must look into such claim and , if necessary, suspend the trial to undertake an investigation. No testimony by a witness, declaration by a victim or confession by the defendant which are verified through investigation by the court to have been obtained by unlawful means such as torture, threat, enticement or deceit can be admitted as evidence. The court will then recommend that a procuratorial organ file the case for investigation of the alleged acts of torture and look into the responsibility of the persons involved.


Article 16


53. Reference may be made to paragraphs 123-125 and 129 of the supplementary report.


54. Article 48 of China?s 1997 Criminal Law stipulates: ?The death penalty shall only be applied to criminals who have committed extremely serious crimes. If the immediate execution of the criminal punishable by death is not deemed necessary, a two- year suspension of execution may be pronounced simultaneously with the imposition of the death sentence.? ?All death sentences except for those which according to law must be decided by the Supreme People?s Court, shall be submitted to the Supreme People?s Court for Verification and approval. A death sentence with a suspension of execution may be decided or approved by a higher people?s court.?


55. Article 212 of the revised Criminal Procedure Law stipulates that a death penalty shall be executed by such means as shooting or injection and that a death penalty may be executed on the execution ground or in a designated place of custody, and that the execution of death sentence shall be announced but shall not be held in public.


56. Article 50 of China?s 1997 Criminal Law stipulates: ? If a person sentenced to death with a stay of execution commits no intentional crime during the period of suspension, his punishment shall be commuted to life imprisonment upon the expiration of that two-year period. If he performs major meritorious service, his punishment shall be commuted to fixed-term imprisonment of not less than 15 years and not more than 20 years upon the expiration of the two-year period. If it is verified that he has committed an intentional crime, the death penalty shall be executed upon the verification and approval of the Supreme People?s Court.?


57. The system of sentencing death penalty with a stay of execution is a cautious practice of China to reduce executions. The purpose is to avoid, as far as possible, the execution of a death penalty. Such practice in criminal punishment is suited to China?s conditions and it embodies China?s respect for human rights and its consistent adherence to the principle of humanitarianism.


58. Paragraphs 57-62 of the second report continue to apply.


ADDITIONAL INFORMATION AS REQUESTED BY THE COMMITTEE


A. The concept of torture


59. Chapters IV and VIII of China?s revised Criminal Law of 1997 have provided in detail for the protection of the citizens? right of the person and democratic tights. These rights are not to be violated by any individual or organ for whatever reason. Any unlawful act of violation of a citizen?s rights deemed to constitute a crime is punishable according to law. The relevant stipulations of the Criminal Law fully cover the definition of ?torture? as given in Article 1 of the Convention.


60. Article 247, for example, refers specifically to the crimes of ?extortion of confession by torture? and ? extraction of testimony by violence.? Any judicial officer who extorts confession from a criminal suspect or defendant by torture or extorts testimony from a witness by violence shall be sentenced to fixed-term imprisonment of up to three years or criminal detention. The term ? crime of extortion of confession by torture ? refers to the application of corporal or other disguised forms of punishment by a judicial officer to extort confession from a criminal suspect or defendant. ?Extortion of testimony by violence? means the acts of violence by a judicial officer against a witness for extracting testimony.


61. Article 248 of the revised Criminal Law provides for the crime of ?maltreatment of a person held in custody by subjecting him to corporal punishment ?. Any policeman or other officer of an institution of confinement like a prison, a detention house or a custody house who beats a person held in custody or maltreats him by subjecting him to corporal punishment, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of up to three years or criminal detention? if the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment ranging from three to ten years.


62. Articles 247 and 248 also stipulate respectively that if an judicial officer causes injury or death to the victim, he shall be convicted and given a heavier punishment for his unlawful acts according to Article 234( on the crime of intentional injury ) and Article 232 ( on the crime of intentional homicide) of the amended Criminal Law.


63. The provisions of the Criminal Law in relation to the prohibition of torture also cover intentional homicide ( art. 232 ) intentional injury ( art. 234 ); illegal detention (art. 238 ); humiliation (art. 246 ); and false testimony ( art. 305).


64. The Convention refers to torture as certain acts ?inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.? In China?s Criminal Law, the provisions on the crime of ?extortion of confession by torture? and ?extraction of testimony by violence? and of ?maltreatment or corporal punishment of a person held in custody ? are in line with those of the Convention, as the subjects of such crimes are public officials. The subjects of such crime as humiliation may be a public official or a non=public official. Thus the provisions of Chinese law concerning the subjects of the crime of torture have a wider application than the Convention. As it stands now Chinese law does not differentiate between acts of torture by a public official and that by a non-public official. But this is in conformity with Article 1, Paragraph 2 of the Convention.


The system of filing of complaints by prisoners


65. See the paragraphs of this report relating to Article 13 of the Convention.


The functions and powers of the procuratorates


66. For the functions and powers of the procuratorates, see paragraphs 27 and 28 of the supplementary report.


67. Under Chinese law, the procuratorates are organs for legal supervision in China, with a responsibility for investigating and prosecuting crimes committed by State functionaries taking advantage of their functions and powers. In practice, the procuratorates at all levels have taken the supervision of law enforcement as a vital task in the building of democracy and legal system. They have fully exercised their function of legal supervision and rigorously prosecuted cases such as violation of laws, lax enforcement of laws and failure to bring law- breakers to justice, paying particular attention to cases of law enforcement personnel abusing their prerogatives, The handling of these cases have promoted strict observance and enforcement of laws and upheld justice.


68. Form 1993 to 1997, China?s procuratorial organs filed for investigation of a total of 387,352 cases of corruption, bribery, dereliction of duty as well as violation of the right of the person and the democratic rights of citizens. In the process, 16,117 functionaries of the Party and government departments, 17,214 persons of judicial organs, 8,144 persons of the law administration and enforcement organs and 13,330 employees of the economic management departments were investigated and dealt with accordingly. In the meantime, the procuratorates initiated prosecution against 181,873 defendants on charges of corruption, bribery and dereliction of duties. In their monitoring efforts, the procuratorates have focused on lax enforcement of laws and on the prevention of unjust, false or wrong cases. In the exercise of their power to examine and approve arrest and prosecution, they cracked down hard on criminals on the one hand and acted to protect the innocent and the legitimate rights of suspects of the other. Atotal of 271,629 persons had been free of arrest and 25,638 exempted from prosecution as a result of the decision by the procuratorates. In exercising the power of supervision over criminal trials, the procuratorates had worked to ensure that cases of inappropriate conviction or sentencing be rectified. During the same period, they issued critical opinions against 12,804 cases where they had found unlawful acts in the criminal proceedings. They had also, in accordance with the procedures of appeal and trial supervision, filed 12,288 protests or counter-appeals against cases of which the judgments or rulings were deemed wrong. Furthermore, the procuratorates made an active effort to review the cases of criminal complaints and compensation. The cases of complaints filed for review by the procuratorates during this period totaled 47,590. In 4,285 of all these cases, the procuratorates had decided not to arrest or prosecute against the complainants. They also lodged protest against 589 cases where the judgments and rulings had already taken effect. Since the implementation of the State Compensation Law in 1995, the procuratorates have accepted and processed 762 requests for compensation, of which 179 have been granted. In order to protect the legitimate rights of convicted persons, the procuratorial organs have also strengthened their supervision of execution of criminal penalties. They have ordered corrections in 94,794 cases of failure to submit execution reports, 5407,253 cases of prolonged detention or imprisonment and 2,922 cases of unlawful early or late release. The procuratorial organs in China have established 78 resident procuratorates and 3,404 procurator?s offices in places of confinement, basically putting all such places under effective supervision by a resident procurator.


D. Execution and suspension of the death penalty.


69. See the part of this report relating to Article 16 of the Convention.


E. Lawyers? involvement in criminal proceedings


70. The revised Criminal Procedure Law brings forward the time of lawyers? involvement in criminal proceedings, allowing them to get involved in the proceedings as early as at the stage of investigation. Under the Criminal Procedure Law, after the criminal suspect is interrogated by an investigation organ 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 or complaints on his behalf. The appointed lawyer has the tight to find out from the investigation organ about the crime suspected of his client, and may meet with the criminal suspect in custody to inquire about the case.


71. These provisions enable the suspect to obtain legal assistance from his lawyer at the stage of investigation on the one hand, and obliges investigators to proceed strictly in accordance with law in the interrogation of the criminal suspect on the other. Should investigators inflict torture on the suspect, the latter may immediately lodge a complaint through his lawyer. Thus the early presence of a lawyer serves as a powerful deterrent to torture.


72. See Article 96 of the revised Criminal Procedure Law for the above- mentioned provisions. The Article reads, ?After the criminal suspect is interrogated by an investigation organ for the first time or from the day on which compulsory measures (including the issuance of a warrant to compel his appearance, obtaining a guarantor pending trial, residential surveillance, detention and arrest ) are adopted against him, he may appoint a lawyer to provide him with legal advice and to file petitions or complaints on his behalf. If the criminal suspect is arrested, the appointed lawyer may apply on his behalf for obtaining a guarantor pending trial. If a case involves State secrets, the criminal suspect shall have to obtain the approval of the investigation organ for appointing a lawyer. 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 inquire about the case. When the lawyer meets with the criminal suspect in custody, the investigation organ may, in light of the seriousness of the crime and where it deems it necessary, send its people to be present at the meeting. If a case involves State secrets, before the lawyer meets with the criminal suspect, he shall have to obtain the approval of the investigation organ?.


73. The Supreme People?s Court, the Supreme People?s Procuratorate, the Ministry of Public Security, the Ministry of State Security, the Ministry of Justice and the Legislative Affairs Commission of the Standing Committee of the National People?s Congress on 19 January 1998 jointly issued the Regulations on Issues Relating to the Implementation of the Criminal Procedure Law. Article 10 of the Regulations stipulates: ?According to Article 96 of the Criminal Procedure Law, a criminal suspect under investigation may appoint a lawyer either by himself or through his family. If a suspect in custody requests to appoint a lawyer, the custody organ shall promptly forward his request to the investigation organ handling the case, The investigation organ shall promptly convey the request to the entrusted lawyer or the law firm he works for. If the criminal suspect merely requests to appoint a lawyer but does not have a particular one in mind, the investigation organ shall promptly ask a local lawyers? association or judicial administrative organ to recommend a lawyer for the suspect?.


74. Article 11 of the Regulations provides that ?If the case concerned does not involve State secrets, the lawyer does not need approval to visit the criminal suspect. Secrecy conditioned by investigation may not be construed as involving State secrets and invoked as grounds for denying a lawyer? visit. A visit with the suspect requested by a lawyer must be arranged within 48 hours. If the arraigned person happens to be a suspected organizer, leader or member of a criminal ring, a terrorist movement or a smuggling, drug-dealing or embezzlement conspiracy involving more than two accomplices, a visit requested by his lawyer shall be arranged within five days.?


75. To ensure the implementation of the revised Criminal Procedure Law, the Ministry of Public Security on 14 May 1998 Published the revised Regulations on the Procedures for Handling Criminal Cases by Public Security Organs. The Rules are designed to ensure a faithful performance by the public security organs of their functions and powers and standardize the procedures for handling criminal cases, thus improving the quality and efficiency of the handling of cases. Article 8 stipulates: ?In handling a criminal case, a public security organ must rely on investigation and evidence, and not on confessions. Extortion of confessions by torture is strictly forbidden.?


76. The Regulations has a separate chapter on ?participation of lawyers in criminal proceedings.? It protects lawyers? professional activities and provides for their involvement in a case at the investigation phase of criminal proceedings. The relevant provisions are as follows:


77. Article 36 stipulates that after a criminal suspect is interrogated for the first time or from the day when the suspect is subjected to a compulsory measure by a public security organ, he must be informed on record by the public security organ of his right to appoint a lawyer to provide legal advice or file petitions or complaints on his behalf.


78. Article 39 stipulates that when a criminal suspect in custody requests to engage a lawyer, the custody house must promptly forward his request to the investigation organ in charge of the case. The investigation organ must then promptly refer it to the requested oawyer or his law office. If the suspect merely requests to engage a lawyer but does not have a particular one in mind, the investigating authority must promptly ask the local lawyers? association or judicial administrative organ to recommend a lawyer to the suspect.


79. Article 43, paragraph 1, stipulates: ?As long as the case concerned does not involve a State secret, a lawyer does not need approval to visit a suspect. Secrecy conditioned by investigation may not be construed as a State secret and invoked as grounds for denying a lawyer?s visit.?


80. Article 44 stipulates: ?A visit with a suspect requested by a lawyer must be arranged within 48 hours. If the arraigned person happens to be a suspected organizer, leader or member of a criminal ring, a terrorist movement or a smuggling, drug-dealing or embezzlement conspiracy involving more than two accomplices, a visit requested by his lawyer must be arranged within five days.?


F. Allowing a detained or arrested person to receive family visits or a doctor at the outset of legal proceedings


81. Chinese law allows a person detained or arrested to receive visits from family members or a doctor at the earliest stage of legal proceedings. The revised Criminal Procedure Law provides as follows:


82. Article 14, paragraph 2, stipulates: ?In cases where a minor under the age of 18 commits a crime, the criminal suspect and the legal representative of the defendant may be notified to be present at the time of interrogation and trial?.


83. Article 64, paragraph 2, stipulates: ?Within 24 hours after a person has been detained, his family or the unit for which he works shall be notified of the reasons for detention and the place of custody, except in circumstances where such notification would hinder the investigation or there is no way of notifying them?.


84. Article 71, paragraph 2, stipulates: ?Within 24 hours after an arrest, the family of the arrested person or the unit for which he works shall be notified of the reasons for arrest and the place of custody, except in circumstances where such notification would hinder the investigation of there is no way of notifying them?.


85. Article 75 Stipulates that if the compulsory measures (including the issuance of a warrant to compel his appearance, obtaining a guarantor pending trial, residential surveillance, detention and arrest) adopted by a People?s Court, a People?s Procuratorate or a public security organ exceed the time limit prescribed by law, the criminal suspect or defendant, his legal representatives, near relatives, or the lawyers or other defenders entrusted by the criminal suspect or defendant shall have the right to demand cancellation of the compulsory measures. The People?s Court, the People?s Procuratorate, or the public security organ shall release the criminal suspect or defendant when the compulsory measures adopted against him have exceeded the time limit prescribed by law, terminate the period for awaiting trial out of custody after obtaining a guarantor or for residential surveillance, or take different compulsory measures according to law.


86. The revised Regulations on Procedures for Handling Criminal Cases by Public Security Organs further substantiate the above-mentioned provisions of the revised Criminal Procedure Law as follows:


87. Article 108 stipulates that within 24 hours after a person has been detained, a ?notification of detention? shall be made and served to the family or the work unit of the detainee. However, with the approval of a public security authority above the county level, notification may be withheld, if (a) a suspected accomplice may be alerted to flee or hide, or to destroy or falsify evidence; (b) the suspect refuses to reveal his true name, address or identity; or (c) notification would impede investigation or notification is not feasible. Once such circumstances no lo9nger exist, the family or the work unit of the detainee must be promptly notified. The reason for any failure to notify within l24 hours must be specified in the detention notification.


88. Article 125 stipulates that within 24 hour after a criminal suspect is arrested, a ?notification of arrest? must be made and served to the arrested person? family or work unit. However, with the approval of a public security authority above the county level, notification may be withheld, if (a) a suspected accomplice may be alerted to flee or hide, or to destroy or falsify evidence; (b) a suspect refuses to reveal his true name, address or identity; or (c) notification would impede investigation or when notification is not feasible. Once such circumstances no longer exist, the family or the work unit of the arrested person must be promptly notified. The reason for any failure to notify within 24 hours must be specified in the notification of arrest.


89. Article 135 stipulates that if a criminal suspect, his legal representatives, near relatives, or the lawyers entrusted by the criminal suspect demand cancellation of the compulsory measures which are adopted by a public security organ and which have exceeded the time limit prescribed by law, the public security organ shall release the criminal suspect, terminate the period for awaiting trial after obtaining a guarantor or for residential surveillance, or take different compulsory measures according to law.


90. Article 182, paragraph 1, stipulates that the interrogation of a suspect who is a minor must take a different form from that of the interrogation of an adult and must take into consideration the minor?s physical and mental characteristics. Unless notification would impede investigation or is otherwise not feasible, his parents, guardian or teacher must receive notice to be present. Interrogation may take place either in a public security office or in the domicile, work unit, school of the minor or other appropriate places.


91. In China, all detained or arrested criminal suspects are held in custody houses. On 17 March 1990, the State Council promulgated the Regulations on Custody Houses. Article 6, paragraph 1 of the Regulations specifies: ?A custody house may be staffed by guards, wardens and medical, financial and kitchen personnel.? Article 14 stipulates ?Criminal suspects who are minors must be separated from adult criminal suspects?. Article 26 states: ?A custody house must be provided with the necessary medical equipment and common medication. Suspects held in custody who are sick must be promptly treated. Those who need to be hospitalized must be sent to a local hospital for treatment. Those who are seriously ill may await trial out of custody after obtaining a guarantor?. Article 28 provides that ?a criminal suspect under custody may, with the consent of the authority handling his case and the approval of the public security organ, correspond with his near relatives and receive visits from them?.


Annexes*


A. Criminal Procedure Law of the People?s Republic of China


B. Criminal Law of the People?s Republic of China


C. Administrative Penalty Law of the People?s Republic of China


D. Extradition Treaty between the People?s Republic of China and the Republic of Bulgaria


E. Extradition Treaty between the People?s Republic of China and the Russian Federation'