Chinese reflection on alternatives to torture

Thursday, August 8, 2013

Zhang Gaoping and his nephew, Zhang Hui, had water poured into their nostrils. They were deprived of sleep, forced to stand and squat in uncomfortable positions, burned with cigarettes, beaten and starved.  When the police in Zhajiang province, China, failed to force the men to confess, they were returned to the cells where they were beaten further by other detainees. Soon enough, they signed the pre-prepared confessions of rape and murder of a young woman.

DNA evidence from the victim would later identify a local taxi driver who was executed in 2005 for the separate murder of another woman. By the time of their release, Zhang Gaoping and Zhang Hui had spent ten years in prison. Zhang Gaoping’s pregnant wife had lost their baby and divorced him, and his elderly mother had died. Zhang Hui’s fiancée had disappeared, and his father had spent all the family’s savings trying to secure his release. In May 2013, they were awarded 1.1 million Yuan each in compensation.

Sadly, this case is not unique. Several other wrongful conviction cases have been published in China this year, all a result of reliance on confessions obtained by torture. However, in a sign which many hope represents changing attitudes, China Daily reported that public security officials are now “reflecting” on the case in Zhejiang, where the court overturned the earlier rape and murder conviction after having ruled that the trial had relied on confessions obtained under torture. It is, according to China Daily, “the first time that a public security department has shown such a sentiment”.

Welcome considerations

In spite of the pervasive problem, it is heartening to hear that there are those who are prepared to consider a better alternative to brutal methods to obtain confessions – an alternative where police authorities conduct a proper and thorough investigation, and where judicial authorities ensure integrity of their proceedings and fairness for defendants who appear before them.

Such consideration by Chinese authorities should be strongly welcomed. It demonstrates awareness among professional legal actors that criminal investigations should be conducted in a way which ensures the integrity of the collected information and protects the rights of detainees.

The use of confessions obtained by torture is prohibited in international and Chinese law. The Chinese Criminal Procedure Law, even prior to its recent amendment, directs that “the use of torture to extort a confession and the collection of evidence by threats, enticement, deceit or other unlawful methods is strictly prohibited”.

New law strengthens protection

As we wrote earlier this year, the 2012 revisions to the Criminal Procedure Law have significantly strengthened the protections available to defendants.  It directs that detainees should be transferred to a detention facility immediately upon arrest, interrogations should only take place at the detention facility, and audio or video recording may be used to cover the entire process. The law also guarantees access to a lawyer and that meetings between the lawyer and their client shall no longer be monitored. These, and additional safeguards in detention centres, serve to reduce the risks of torture in the early stages of detention. 

The high legal status of the revised Criminal Procedure Law should ensure that it has an impact on the entire criminal justice system. If effectively implemented, such reforms should regulate the investigatory powers of police and improve the collection of evidence.

Attention to safeguards

Despite these progressive legal reforms, without equal and immediate attention to operationalise these safeguards, such advances will be forgotten and the judicial system will continue to rely on torture in the collection of evidence.

The APT continues to urge all States to introduce strong procedural safeguards to fully realise the prohibition on the use of torture-tainted evidence (see Special Focus: Exclusion of evidence obtained through torture). Such procedures should ensure effective protection of suspects during police interrogation and enforce a robust test for the admission of confessions used in court. Intensive and regular professional training for legal actors also serves to change the institutional culture, and bring it in line with international standards.

In October this year, China will take its place before the Human Rights Council for its Universal Periodic Review. The Human Rights Council must take the opportunity to invite authorities in China to take additional steps to ensure that safeguards in interrogation are applied and that all evidence obtained by any form of coercion is excluded from the judicial process. By publicly accepting such recommendations, China would demonstrate its commitment to justice, the rule of law, and the determination not to repeat past mistakes.


Photo: Zhejiang People’s high court