May 25, 2015, by Editor
Can judicial reforms reduce the incidence of torture in China?
Written by Jackie Sheehan.
Former CIA agent Bob Baer famously identified the different purposes of America’s “extraordinary rendition” programme of torture out-sourcing, explaining that “If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear – never to see them again – you send them to Egypt.” China also allegedly practices torture with a variety of goals, including torture as slow execution (Goshul Lobsang and Tenzin Choedak, for example), as punishment and to create an intimidatory example for others (Gao Zhisheng), and as an attempt to force someone to confess to a crime or divulge information.
This is not to say that China has done nothing to try to reduce the use of torture in various forms of detention. As well as having laws against it and reiterating the prohibition of forced confessions in recent years, China was one of the earliest countries to sign (in December 1986) and ratify (in October 1988) the UN Convention against Torture (CAT). This November, the PRC’s record on combating torture will come under scrutiny again as its fifth periodic report on implementation of the CAT is reviewed by the Committee against Torture, hence the submissions to the Committee by human-rights NGOs including China Human Rights Defenders and Human Rights Watch.
Although it signed and ratified the CAT, China opted out of the provision for the UN to undertake a confidential enquiry into the systematic use of torture within its borders. It took ten years for the then UN Special Rapporteur on Torture, Manfred Nowak, to gain access to China’s prisons and other detention sites to investigate whether the PRC was meeting its Convention obligations, with the visit eventually taking place in 2005. Nowak’s 2006 report, which found that torture remained widespread, helped to promote more systematic use of audio and video recording of police interrogations once recording equipment was widely installed across China by the end of 2008. But putting the technology in place to confirm or disprove detainees’ complaints of torture is only a necessary condition for the curbing of torture, not a sufficient one, as was proved by the rash of cases in 2009 where detainees’ violent deaths in custody were explained away by police with bizarre stories about fatal games of hide and seek, as well as the ever-popular “falling down steps”.
Nowak’s other points, about the importance of courts excluding from evidence statements made as a result of torture, of an independent judiciary, an independent monitoring mechanism of all places of detention, and a functional complaints mechanism, remain as valid today as they were in 2005. The persistence in China of what we may call the Jordanian variant, i.e. torture to elicit information or confession, is the main focus of the Human Rights Watch report published on 13 May 2015, Tiger Chairs and Cell Bosses: Police Torture of Criminal Suspects in China, which finds that it remains normal operating procedure in the PRC. Where defendants claim to have been tortured into confessing, judges are still too ready to accept police claims that recording equipment malfunctioned or the interrogation tapes were lost, or to believe that the defendant confessed somewhere not covered by cameras or microphones, such as in the back of a police van, in the detention centre’s toilets, or to another inmate in the cells. The illegal withholding of medical treatment, as in the death of Cao Shunli, has been identified as an increasing trend, as has the use of forms of torture which leave few outward physical marks, making allegations even harder for victims or their families to substantiate.
The international community is not the only source of pressure to clean up China’s act and reduce the tainting of trial evidence through torture. The Chinese public would rather have the right people convicted than just anyone who can be made to confess, especially for serious crimes, and many judges themselves want to play more of a role in guaranteeing defendants’ rights in their courtrooms and during the investigative process, fearing that the entire system is brought into disrepute by notorious cases like that of Zhao Zuohai, tortured into confessing he had murdered his neighbour when the man wasn’t even dead.
At a recent symposium on miscarriages of justice and “hearing-centred criminal procedures” organized by the Henan Higher People’s Court and the China University of Political Science and Law (reported in Susan Finder’s excellent Supreme People’s Court Monitor blog), judges, legal academics and journalists came up with recommendations for involving judges more in the investigative process, ensuring that cases are decided at the court hearing, not during the police investigation with the trial a mere formality, having witnesses give evidence in person, compelling detention-centre staff to cooperate with investigations into allegations of torture, and a stronger presumption of innocence for defendants. The journalists attending also made a plea for greater judicial transparency and media monitoring of cases.
The implementation of any of these proposals would help, but not all of them are within the power of judges to put into practise. As Susan Finder notes, the Central Committee’s Central Leading Group for Judicial Reform would have to approve most of them, and might be nervous of their effect on “stability” if they led, as they inevitably would, to a drop in the current 99.3% conviction rate in criminal cases. Some lawyers are optimistic about the prospects of real reform, while others, like criminal lawyer Si Weijiang, see a major obstacle ahead in the forbidden topic of judicial independence in China: “The judicial system needs a structural reform that raises its jurisdiction above … the police and the Procuratorate, or else it would continue to be a lame duck [unable] to hold police accountable for procedural irregularities.”
The proposals would do little to help those tortured in China as a reprisal for expressing unacceptable views, or the many lawyers who are themselves detained for trying to make a difference in the conduct of justice, like Pu Zhiqiang. However, when at least some within the system believe that it really needs fixing, not to impress a UN committee in November, but for its own sake, the possibility cannot be dismissed of progress this year at last against some of the miscarriages of justice caused by torture.