China’s criminal justice system is still heavily reliant on forced confessions obtained through torture and ill-treatment, with lawyers who persist in raising claims of abuse often threatened, harassed, or even detained and tortured themselves, Amnesty International said in a new report released today.
In a system where even lawyers can end up being tortured by the police, what hope can ordinary defendants have?”Patrick Poon, China Researcher at Amnesty International.
The report, No End in Sight, documents how criminal justice reforms hailed as human rights advances by the Chinese government have in reality done little to change the deep-rooted practice of torturing suspects to extract forced confessions. Attempts by defence lawyers to raise or investigate torture claims continue to be systematically thwarted by police, prosecutors and the courts.
“In a system where even lawyers can end up being tortured by the police, what hope can ordinary defendants have?” said Patrick Poon, China Researcher at Amnesty International.
“Papering over a justice system that is not independent, where the police remain all-powerful and where there is no recourse when the rights of the defendants are trampled upon will do little to curb the scourge of torture and ill-treatment in China. If the government is serious about improving human rights it must start holding law enforcement agencies to account when they commit abuses.”
Lawyers from across China told Amnesty International of the retribution they faced when they challenged law enforcement authorities. Lawyers pointed to fundamental flaws in the justice system that allow police officers, prosecutors and other officials to circumvent new safeguards designed to prevent forced confessions leading to wrongful convictions. Chinese legal experts estimate that less than 20% of all criminal defendants have legal representation.
“The government seems more concerned about the potential embarrassment wrongful convictions can cause than about curbing torture in detention,” said Patrick Poon.
“For the police, obtaining a confession is still the easiest way to secure a conviction. Until lawyers are allowed to do their jobs without fear of reprisals, torture will remain rampant in China.”
The report documents torture and ill-treatment in pre-trial detention, including beatings by police or by other detainees with the officers’ knowledge or upon their orders. Tools of torture described include iron restraint chairs, tiger benches – in which individuals’ legs are tightly bound to a bench, with bricks gradually added under the victim’s feet, forcing the legs backwards – as well as long periods of sleep deprivation and the denial of sufficient food and water.
I was strapped to an iron chair, slapped in the face, kicked on my legs and hit so hard over the head with a plastic bottle filled with water that I passed out.Beijing lawyer, Tang Jitian, describes the torture he suffered.
With China’s record on torture set to be scrutinized by the United Nations’ expert anti-torture committee in Geneva next week, the government has claimed the authorities have “always encouraged and supported lawyers in performing their duties” and denied any “retaliation”.
Tang Jitian, a former prosecutor and lawyer in Beijing, told Amnesty International he was tortured by local security officials in March 2014, when he and three other lawyers investigated alleged torture at a secret detention facility – known as a “black jail” – in Jiansanjiang, north-eastern China.
“I was strapped to an iron chair, slapped in the face, kicked on my legs and hit so hard over the head with a plastic bottle filled with water that I passed out,” he said.
Tang Jitian was later hooded, his arms handcuffed behind his back and suspended off the ground by his wrists as police beat him.
Yu Wensheng, a lawyer from Beijing, was arrested on 13 October 2014 and detained for 99 days by police. He told Amnesty International he was questioned approximately 200 times, with 10 public security officials assigned to interrogate him in three shifts every day. His wrists were shackled behind his back with the handcuffs deliberately set far too tight.
“My hands were swollen and I felt so much pain that I didn’t want to live. The police officers repeatedly yanked the handcuffs and I would scream,” he said.
Secret detention and torture
Legal experts told Amnesty International that the extraction of confessions through torture remains entrenched in pre-trial detention, in particular in political cases, such as those involving dissidents, ethnic minorities or those involved in religious activities.
The report shows that over the past two years the authorities have made increasing use of a new form of incommunicado detention called “residential surveillance in a designated location”, that was formalized in law in 2013 when revisions to China’s Criminal Procedure Law took effect.
Under this system, people suspected of terrorism, major bribery or state security offences can be held outside the formal detention system at an undisclosed location for up to six months, with no contact with the outside world, leaving the detainee at grave risk of torture and other ill-treatment.
Twelve lawyers and activists caught up in the ongoing crackdown against human rights and legal activists are currently being held in “residential surveillance in a designated location” on state security charges. Amnesty International considers all of them to be at serious risk of torture and ill-treatment and has called for the Chinese government to release them and drop all charges against them.
Despite several rounds of reform since 2010, the definition of torture under Chinese law remains inadequate and in contravention of international law. Chinese law still only prohibits certain acts of torture, such as “using violence to obtain a witness statement” and by certain law enforcement officials, other perpetrators can only be charged as accessories. Mental torture is not explicitly prohibited in Chinese law as is required under international law.
The majority of lawyers interviewed for this report cited the lack of judicial independence and the pre-eminent power of the public security agencies as one of the main obstacles in seeking justice in claims of torture. Local political and legal committees, made up of local Communist Party officials, wield considerable influence in determining the outcome of politically sensitive court cases. When a committee wants a conviction, claims of torture are ignored by the court and the perpetrators are rarely held to account.
Lawyers who spoke to Amnesty International denounced the continued inability to get claims of torture raised in court, to obtain genuine investigations by the state prosecutors, let alone independent bodies, or for forced confessions to be excluded as evidence at trial.
“Local officials and police continue to pull the strings of China’s criminal justice system. Despite defence lawyers’ best efforts, many claims of torture are simply ignored for the sake of political convenience,” said Patrick Poon.
“Police wield too much unchecked power, with the result that measures to curb torture are not having the necessary impact.”
Torture and unlawful “evidence”
In an attempt to analyse how courts in China deal with allegations of extracting “confessions” through torture since the introduction of reforms designed to exclude torture-tainted evidence, Amnesty International reviewed hundreds of court documents that have been made available on China’s Supreme People’s Court national online database.
Out of a sample of 590 cases in which allegations of torture were made, forced confessions were excluded in only 16 cases, with one leading to an acquittal and the rest ending in convictions on the basis of other evidence. These low number of cases in which evidence obtained through torture was excluded appears to corroborate lawyers’ claims that forced confessions continue to be presented as evidence in court, and that unlawfully obtained evidence is not excluded by judges.
Under international and China’s domestic law the burden of proof lies with prosecutors to show that evidence was obtained lawfully. In practice however, courts routinely dismiss allegations of torture if the defendant cannot prove them.
The report presents a series of detailed recommendations. In particular, in order to end the use of torture and other ill-treatment in China’s criminal justice system, Amnesty International is calling on the Chinese government to:
- Ensure lawyers and legal activists are able to carry out their work without harassment, intimidation, arbitrary restrictions and fear of detention, torture and other ill-treatment or criminal prosecution.
- Ensure that no statement obtained under torture or other ill-treatment is used as evidence in any proceedings.
- Bring Chinese law, policy and practice into line with the absolute prohibition against torture and other ill-treatment under international law.