Chinese Human Rights Defenders (CHRD) 维权网 Web: http://chrdnet.org/ Email: [email protected] Promoting human rights and empowering grassroots activism in China September 8, 2010 Issues and Cases CHRD Recommends the Committee against Torture Include in its List of Issues for the Chinese Government to Address in its Fifth Periodic Report This submission, prepared by Chinese Human Rights Defenders (CHRD), raises a number of issues and cases which we urge the Committee against Torture (CAT) to include in the List of Issues (LOI) it will request the Chinese government to address in its fifth periodic report to CAT. This document is also intended to supplement our recent report on the Chinese government‘s December 2009 submission to CAT under the Committee‘s follow-up procedure.1 Torture remains a serious problem in China and one that urgently demands a genuine commitment to reform on the part of the Chinese government. This submission does not purport to provide a comprehensive overview of the current situation, but rather identifies some of the areas of greatest concern. We urge CAT to press the Chinese government for concrete evidence of actions being taken to address the issues and cases raised here, many of which CAT has raised with China in the past. I. Recommended Issues for CAT to Include in its LOI for the Chinese Government A. Unnatural deaths in detention centers Owing partially to local officials‘ ham-handed attempts to cover up unnatural deaths of individuals in police custody through bizarre, often illogical explanations, detention center (kanshousuo) deaths has been one of the most visible human rights issues in China during the past two years. Unnatural deaths of detainees have been an ongoing concern of CAT‘s as well. The Committee included a question on unusual deaths in detention facilities in its List of Issues provided to the Chinese government for China‘s fourth periodic report, and in its 2008 Concluding Observations on China‘s report (hereinafter ―Concluding Observations‖), CAT stated ―that it remains concerned about reports of abuses in custody, including the high number of deaths, possibly related to torture or ill-treatment, and about the lack of investigation into these abuses and deaths in custody.‖2 1 CHRD, ―Report on Several Issues Raised by the Chinese Government‘s Response to the UN Committee Against Torture‘s Recommendations for Follow-Up in 2009.‖ For the text of that report, and for more information on CAT‘s follow-up procedure, see CAT‘s web page, ―Follow Up,‖ http://www2.ohchr.org/english/bodies/cat/follow-procedure.htm. 2 UN Committee against Torture (CAT), ―Concluding observations of the Committee against Torture: China,‖ 12 December 2008, CAT/C/CHN/CO/4, available at http://www.unhcr.org/refworld/docid/496c854b2.html, para. 12; and ―List of issues to be considered during the examination of the fourth periodic report of China,‖ September 9, 2008, (CAT/C/CHN/Q/4), http://www2.ohchr.org/english/bodies/cat/docs/CAT.C.CHN.Q.4EN.pdf, para. 2 (d). 1 In its submission to CAT in December 2009, the Chinese government wrote that ―in 2009, the Supreme People's Procuratorate (SPP) and the Ministry of Public Security (MPS) jointly carried out an inspection campaign dealing specifically with regulation and law enforcement of detention facilities throughout China.‖ 3 Indeed, in late April 2009, the SPP stated that there had been 15 unnatural deaths in detention thus far in 2009 and that the inspection campaign with the MPS aimed to crack down on ―jail bullies‖ and ensure improved management of detention centers.4 However, more than a year after that inspection campaign and related efforts on the part of the Chinese government, victims both young and old continue to perish in different types of detention facilities across the country. A Zhejiang Daily report5 published in June 2010 cites five additional cases since the beginning of this year; moreover, CHRD has documented several cases of suspicious deaths in Re-education through Labor camps during the same time period.6 Far from an exhaustive account, these reports only serve to hint at the severity of the problem. Most deaths in detention centers occur as the result of one of two phenomena: violence perpetrated by ―jail bullies‖ and the use of torture to extract confessions. ―Jail bullies,‖ detainees who attack other inmates with the explicit or understood consent of prison officials, are most often blamed for the deaths of other detainees, and yet the Chinese government, despite issuing notices on the problem as far back as 1988, has so far been unable or unwilling to take effective measures to root out and eliminate jail bullies.7 Given that the public security apparatus (under the MPS) is responsible for both managing detention centers and investigating criminal cases, the prevalence of the use of torture to extract confessions is not surprising. CHRD recommends that CAT ask the Chinese government to: provide information on concrete steps being taken to address the issue of deaths in detention centers since the SPP and MPS‘s joint review of detention center management in mid- 2009. CHRD reiterates its recommendation that the Chinese government transfer management authority over detention centers from the Ministry of Public Security to a different government agency.8 B. New regulations banning evidence obtained through torture face uncertain future On June 25, 2010, the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice jointly issued two new regulations regarding evidence in criminal cases: one dealing with evidence in capital cases, and the other concerning the exclusion of 3 ―Comments by the Government of the People‘s Republic of China concerning the concluding observations and recommendations of the Committee against Torture,‖ December 9, 2009, CAT/C/CHN/CO/4/Add.2 http://www2.ohchr.org/english/bodies/cat/docs/followup/CAT.C.CHN.CO.4.Add2.pdf, para. 2. 4 ―Top Prosecuting Body Starts Jail Safety Drive After Inmate Deaths,‖ South China Morning Post, April 21, 2009. 5 For an English translation, see the Dui Hua Human Rights Journal, http://www.duihuahrjournal.org/2010/06/zhejiang-daily- compiles-morose.html. 6 See, e.g., CHRD, ―Deaths Highlight Continued Problem of Torture, Poor Oversight in Detention Facilities,‖ October 6, 2009; CHRD, ―Man Dies in Re-education through Labor Camp, Allegedly Tortured,‖ China Human Rights Briefing May 4-10, 2010. 7 CHRD, ―Supreme People‘s Procuratorate Reports on Actions Taken Against ‗Prison Bullies‘ in 2009,‖ China Human Rights Briefing March 9-15, 2010, http://chrdnet.org/2010/03/16/china-human-rights-briefing-march-9-15-2010/. 8 See CHRD, ―Persistent Torture, Unaccountable Torturers: A Report on China‘s Implementation of Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,‖ November 5, 2008, http://chrdnet.org/2008/11/05/persistent-torture- unaccountable-torturers/. This recommendation appears on page 29. 2 confessions which had been extracted through torture.9 These regulations went into effect on July 1, 2010. While the appearance of these regulations is an encouraging sign, CHRD is concerned that these regulations contain certain problematic provisions, and it remains to be seen whether they will prove to be effective in preventing torture. There are a number of articles in these regulations, particularly in the Rules Concerning Questions about the Exclusion of Illegal Evidence in Handling Criminal Cases, which are worrisome. Among these is Article 6, which places an undue burden of proof on the victim of torture. Defendants are required to provide evidence including persons, time, place, and manner of the torture inflicted upon them, some of which may be difficult or impossible for a torture victim to ascertain or understand at the time they were tortured or afterwards. The rules are silent regarding the consequences if a defendant cannot produce this evidence. Article 12 poses a problem as well. When a judgment of a court of first instance is appealed, according to the Criminal Procedure Law (CPL), courts of second instance are required to ―conduct a complete review of the facts... not limited by the scope of appeal.‖ 10 The new rules, however, appear to conflict with this provision of the CPL. The new rules provide that if a defendant alleges that a confession was extracted through torture, and the procuratorate ―does not provide evidence to confirm [the legality]‖ of the confession, the court is not required to investigate how the confession was obtained. It simply states that the confession may not be used as a basis for conviction. Even more important than the language of these regulations, however, is their implementation. Early indications have not been encouraging. In late July, lawyer Zhu Mingyong released to the public a video recording in which his client, alleged Chongqing mob boss Fan Qihang, describes being subjected to torture by police seeking to extract a confession and displays scars left by their abuse. Fan was convicted and sentenced to death based on a confession obtained through this torture. Zhu publicly released the video after having submitted it to the Supreme People‘s Court (SPC), as Fan‘s case went to the SPC for review of his death sentence. In August, a group of prominent Chinese lawyers, including Teng Biao, Li Xiongbing, and Li Fangping, signed a public letter calling on the SPC to investigate the allegations of torture in Fan‘s case. Fan‘s case remains