COMMITTEE AGAINST TORTURE
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Conclusions and recommendations of the Committee against Torture
Committee considered the additional report of China (CAT/C/7/Add.14)
at its 143rd and 146th meetings, on 22 and 23 April 1993 (see CAT/C/SR.143/Add.2,
144/Add.2, 145/Add.2 and 146/Add.2 and 4).
report was introduced by the representative of the State party, who
stated that China paid great attention, both in its legislative texts
and in its judicial practice, to the protection of the rights and
freedoms of citizens and their democratic rights. The Penal Code explicitly
prohibited torture, thus upholding the rights of the person and the
inviolability of the dignity of the human person. The Criminal Procedure
Law set out in detail the procedure for investigating and punishing
offences, including that of torture. Other texts played an important
role in preventing and combating torture, in particular by enabling
any victims to be compensated. Draft laws on prisons, judges and procurators
were under consideration. In addition a national legal training and
awareness programme would be renewed for a further five years. The
situation in China and the efforts made by the Government must, however,
be seen in their historical context: the majority of the legislative
efforts aimed at introducing the primacy of law had in fact been undertaken
only since 1979. Moreover, since China currently had 1.16 billion
inhabitants, the implementation of such legal provisions gave rise
to unquestionable difficulties.
competence of procurators extended to offences allegedly committed
by State bodies, including law enforcement agencies. With regard to
the prohibition of torture, the procurator was empowered to approve,
disapprove or revise an order for arrest; he investigated cases, instituted
proceedings and visited places of detention. Any allegations of torture
or human rights violations were thus referred to him. The number of
cases of torture brought before procurators had fallen from 472 in
1990 to 407 in 1991, a reduction of 13.5 per cent, and then to 339
in 1992, a drop of 16.7 per cent.
regard to certain questions raised during the consideration of the
initial report of China, the representative of the State party explained
the place of Tibet in the constitutional structure of China. He recalled
that Tibet was an integral part of Chinese territory and that the
political and judicial system of the People's Republic applied equally
to Tibet. Its population enjoyed the same political rights as other
members of the Committee welcomed the additional report of China,
which endeavoured to provide the clarifications requested by the Committee
following its consideration of the initial report and said that the
presence of a high-level delegation was proof of the desire of the
Government of China to cooperate with the Committee.
regard to the constitutional and legal framework for the implementation
of the Convention, the members of the Committee asked how the monitoring
of the People's Supreme Court by the Standing Committee of the People's
National Congress could be reconciled with the principle of the independence
of the judiciary; how the judges and procurators of the People's Supreme
Court were appointed and dismissed; whether the Chinese Communist
Party was subject to non-interference in cases heard by the people's
courts; whether the training given to judicial personnel and doctors
related to the Convention; and, in general, what measures had been
taken to prevent acts of torture from being committed.
members of the Committee, referring to the assurances given by the
Chinese delegation during the consideration of the initial report,
asked what the outcome of inquiries conducted into alleged cases of
torture in Tibet had been. They also referred to the report of the
Special Rapporteur of the Commission on Human Rights to examine questions
relevant to torture (E/CN.4/1993/26) generally deploring the use of
torture and other cruel, inhuman or degrading treatment or punishment
in China. They drew attention to information received from many non-governmental
sources alleging repeated violations of human rights in Tibet, the
systematic use of force against peaceful demonstrations in Tibet and
acts of religious and racial discrimination against the population
in general, and asked what the position of the authorities was in
394. On the
subject of article 1 of the Convention as read in conjunction with
article 4, the members of the Committee requested clarifications about
the incorporation of the definition of torture into Chinese domestic
members of the Committee asked how article 2, paragraph 3, of the
Convention, according to which an order from a superior officer or
a public authority may not be invoked as a justification of torture,
was applied. In particular, they asked whether the rule stemmed from
an administrative decision, whether it covered all forms of torture
and whether it also applied to military personnel.
reference to article 3 of the Convention, the members of the Committee
wished to know whether an arrested person could be extradited to a
country where he would be in danger of the death penalty and, if not,
whether there were provisions in Chinese legislation which enabled
the person concerned to be brought before the competent national courts.
were also sought on the legislative measures adopted in order to safeguard
the universal jurisdiction provided for in articles 5 to 7 of the
information was requested about the implementation of articles 8 and
9 of the Convention, particularly with regard to the mutual judicial
assistance procedure followed in practice.
members of the Committee asked what measures were taken to give practical
effect to the provisions of article 10 of the Convention.
regard to article 11 of the Convention, the members of the Committee
requested information on rules relating to the interrogation of suspects
and the prohibition of corporal punishment with a view to extorting
confessions, since allegations by non-governmental organizations referred
to many cases of persons detained in secret, and on opportunities
for persons arrested to contact a family member, consult a qualified
doctor and choose a lawyer as soon as they were arrested. They also
asked how many persons were detained in the country's prisons or held
in administrative detention and whether measures were envisaged to
place a time-limit on the length of pre-trial detention. They requested
further information on the definition of the crime of counter-revolution
and on the situation of the 4,329 persons held in Chinese prisons
for such crimes; they asked whether re-education through labour could
be used as part of administrative penalties, how many persons were
affected by such penalties and how many had died in prison or in re-education-through-labour
members requested clarifications about the conditions in which a person
could be subjected to a form of administrative detention known as
"protective custody during investigation"; the number of
persons involved and the procedural safeguards available to them,
in particular any opportunity for remedies in cases of torture; and
allegations that persons thus placed in "protective custody during
investigation" were deprived of certain rights, particularly
that of communicating with members of their family or their defence
counsel, and were frequently detained for longer than the regulation
three months and subjected to torture. They also asked whether steps
had been taken by the competent authorities as a result of allegations
of torture and suspicious death among persons detained in such special
402. As to
articles 12 and 13 of the Convention, the members of the Committee
said that they would like further information on complaints filed
against public officials, on the outcome of the inquiries conducted
and on the number and nature of sentences handed down against persons
found guilty of violating citizens' human and democratic rights and
of acts of torture in particular.
403. On the
subject of article 14 of the Convention, the members of the Committee
also requested clarifications of the conditions in which a victim
of an act of torture, or claimants on his behalf, could obtain compensation,
particularly when the guilty person was an agent of the State.
reference to article 15 of the Convention, the members of the Committee
asked whether a statement obtained by torture could be invoked as
evidence in a trial, whether such cases had occurred in practice and
what use the courts made of such evidence.
405. On article
16 of the Convention, the members referred to information from non-governmental
sources according to which sentences to the death penalty had increased
sharply during recent years, having reached 1,891 in 1992, involving
1,079 executions. They requested clarifications in that regard and
asked whether the death sentence might not constitute a form of cruel
and inhuman treatment in some cases, particularly when the enforcement
of such a sentence remained pending for a long period. It was also
asked whether the bodies of persons executed could be used for the
purpose of organ transplants.
the members of the Committee asked whether the Government of China
was planning to recognize the Committee's competence under articles
21 and 22 of the Convention and to withdraw its reservation on article
20 of the Convention.
407. In reply
to the questions raised, the representative of the State party said
that, in conformity with article 126 of the Constitution, the courts
exercised their functions without any interference by administrative
organs, social groups or individuals. The Chinese judicial system
was based on the responsibility of the courts to the People's Congress,
but those courts handed down their decisions in complete freedom.
Judges and the Procurator General were elected by the People's National
Congress, which could revoke their appointment. The independence of
the courts with regard to social groups was guaranteed and the Communist
Party did not intervene at all in decisions of the courts.
reference to articles 1 and 4 of the Convention, the representative
of the State party said that chapters IV and VII of the Penal Code
contained specific provisions guaranteeing the protection of individuals
against any violation of their rights. The definition given in article
136 of the Penal Code corresponded to that contained in article 1
of the Convention.
to questions raised in connection with article 2, paragraph 3, of
the Convention, the representative of the State party explained that
superior orders could not be invoked to excuse offences involving
torture, and administrative and criminal procedures were available
in such cases.
regard to articles 8 and 9 of the Convention, the representative of
the State party explained that China was currently drafting legislation
on the question of extradition and had signed bilateral agreements
with a number of countries on reciprocal arrangements in commercial
and judicial matters, including extradition. Any extradition order
had to comply with the basic principles of international law, including
the provisions of the Convention, and if not extradited, a citizen
of another State would be tried under provision of China's Penal Code.
to article 10 of the Convention, the representative of the State party
stressed that the Government of China attached great importance to
the training of judicial personnel with regard not only to domestic
legislation, but also to the international conventions to which China
was a party, in particular the Convention against Torture. No special
legal training was given to medical staff or armed forces personnel,
who nevertheless benefited from the measures taken as part of the
national legal training and awareness campaign.
regard to article 11 of the Convention, the representative of the
State party said that, in 1993, there were 684 reform-through-labour
centres, 155 prisons, 492 rehabilitation centres and 37 social reintegration
centres for juvenile offenders. The total prison population was some
1,209,945, i.e., about 1 prisoner per 1,000 inhabitants. Solitary
confinement applied only to certain prisoners who had committed serious
violations of prison regulations and must not exceed 15 days. Prisoners
subjected to such a regime were entitled to the same standards of
hygiene and living as other inmates and were given support in order
to help them reform.
through education and labour in China was carried out in accordance
with an Act approved by the People's National Congress in 1957. It
was intended to reduce crime and to safeguard the public through persuasion
and education. It did not entail punishment, but was intended to restrain
potential juvenile offenders, particularly in urban areas. Persons
detained in reform-through-labour camps were entitled to free medical
attention. The standard of medical attention provided in such establishments
was higher than the national average. The death rate in those camps
was extremely low, moreover, and the staff were expressly prohibited
from subjecting inmates to humiliation, ill-treatment or torture.
In 1990 and 1991, a total of 21 agents of the State had been punished
for such offences; no cases had been reported in 1992.
detention, also known as public security detention, was imposed by
public security organs for minor offences. Offenders could be held
for a period of up to 15 days and public security officials were strictly
forbidden to beat, curse, humiliate or otherwise intimidate detainees.
were no specific provisions covering counter-revolutionary and political
offences and the concept of political crime did not exist in China.
The crimes of counter-revolution referred to in the Penal Code were
a category of criminal offences including all activities carried out
with the specific intention of subverting State power or overthrowing
the Government. The judicial bodies which tried such cases showed
particular circumspection and the courts strictly abided by the principles
and procedures laid down in the Code of Criminal Procedure. Persons
found guilty of counter-revolutionary crimes had been sentenced in
strict conformity with articles 91 and 102 of the Penal Code, according
to the gravity of the offences committed.
to further questions, the representative said that detention during
investigation could not last more than two months and correspondence
to the period during which proceedings might or might not be instituted.
Under Chinese law, families of defendants were normally notified of
the fact and place of detention, unless accessories to the alleged
offence were still at large. Persons who were arrested had to be informed
of the nature of the charges at the time of arrest.
417. In reply
to questions on articles 12 and 13 of the Convention, the representative
of the State party provided detailed information on the number of
complaints of torture filed from 1990 to 1992. Any persons found guilty
of extorting a confession by torture or having subjected a prisoner
to corporal punishment, ill-treatment, harassment or humiliation were
liable to prison sentences varying according to the gravity of the
offence and the extent of the ill-treatment and even to the death
sentence in the most serious cases. Furthermore, if a case of torture
was discovered, the Ministry responsible for supervising the civil
authorities would take action, if necessary by initiating proceedings,
even in the absence of a complaint.
to article 14 of the Convention, the representative of the State party
said that, if a death occurred following an act of torture, the perpetrator
was brought before the people's court. The perpetrator of such acts
was required to compensate the victim or his surviving relatives;
if he was not solvent, the production unit to which he belonged addressed
a request to the finance department, which then compensated the victim.
The Civil Code also included provisions for awarding compensation
for mental suffering.
419. In reply
to questions on article 15 of the Convention, the representative of
the State party said that, in 1958, the Minister for Justice had prepared
a 10-point list of principles to be observed, one of which prohibited
obtaining confessions by torture. In 1983, a code of conduct for the
legal and legislative professions had been published, reproducing
and elaborating on the same principle. When China became a party to
the Convention in 1988, the Minister for Public Security had issued
a circular stating that the people's police were required to study
and apply the Convention. Lastly, the Penal Code very clearly stipulated
that judicial bodies charged with investigating criminal cases could
not base their rulings on evidence obtained by torture or illegal
means and that, in the absence of other evidence, no penalty could
be handed down.
reference to article 16 of the Convention, the representative of the
State party explained that capital punishment was reserved for persons
who had committed only the most heinous crimes and its application
was subject to extremely strict conditions. During the two-year stay
of execution, the convicted person was subjected to reform through
labour and his conduct was monitored for signs of successful rehabilitation.
The death penalty was therefore carried out only in exceptional cases
in which offenders resolutely refused to reform or committed further
crimes while in prison. Removal of organs without the permission of
either the person or his family was not standard practice. There were,
however, cases in which permission had been given to remove organs
from the bodies of persons executed.
to other questions, the representative of the State party said that
reconsideration of the reservation made by China to article 30 of
the Convention was under way. Furthermore, the Committee's views regarding
the reservation entered in respect of article 20 would be duly taken
the representative of the State party drew the Committee's attention
to the fact that a great deal of the material referred to by its members
had been supplied by non-governmental organizations, some of which
were particularly biased against China. The credibility of such material
was therefore questionable. The report of the Special Rapporteur on
questions of torture had used the same sources of information and
had to be treated with equal caution. China was making valiant efforts
to improve its legal system and promote democracy. Any violations
of the Convention were merely isolated cases and were not representative
of the policy of the Government of China.
Conclusions and recommendations
Committee expressed its gratitude for the detailed report submitted
by the Government of China, which was in conformity with the Committee's
guidelines, as well as for the explanations provided by the delegation.
Committee took note with satisfaction of the many legislative, judicial
and administrative measures which had been adopted by the Government
in order to comply with the various provisions of the Convention.
The Committee welcomed, in particular, the reforms relating to the
Penal Code and the efforts made to raise public awareness through
the printing of textbooks used in information, education, training,
promotion and protection programmes in the area of human rights.
the Committee was aware of the obvious difficulties facing China,
it expressed concern at the use of administrative detention and the
cases of torture alleged and deplored by various non-governmental
organizations, in particular in Tibet. It recommended that energetic
measures be taken by the authorities to prevent such cases and to
punish those responsible and requested precise statistical data concerning
the number of persons in administrative detention, sentenced to capital
punishment and executed.
Committee also called upon the Government to consider making declarations
with regard to articles 21 and 22 of the Convention and withdrawing
the reservation entered in respect of article 20 of the Convention.
Committee recommended that arrested or detained persons should have
more extensive guarantees immediately following their arrest and that
their family, lawyer or doctor should have prompt and regular access
to them. In order to guarantee the protection of detainees during
interrogation, separation between the authorities responsible for
detention, on the one hand, and investigation, on the other, should
be provided for. The conduct of interrogations should be monitored
in the framework of administrative and other forms of detention. In
that regard, legislation could be considered that would enable detainees
to lodge complaints and allow plaintiffs and witnesses to be protected
against any ensuing ill-treatment or intimidation.
Committee also recommended that criminal proceedings be systematically
initiated against persons accused of acts of torture. Those procedures
should be conducted independently of any disciplinary measures taken
by the security forces. Procedures should be introduced to guarantee
the medical examination of persons detained or arrested, to be carried
out by qualified and independent medical doctors, immediately following
arrest and at regular intervals thereafter, in particular before release.
Training for law enforcement personnel, members of the armed forces
and medical doctors should be accentuated and extended and should
concern, in particular, limitations on the use of instruments, equipment
and weapons by the security forces.
the Committee expressed the hope that, despite the difficulties and
obstacles which might be encountered by the Government of China, the
political will and the various legislative measures taken or envisaged
would lead to significant progress in promoting in-depth research
into the circumstances in which torture was practised and into the
necessary ways and means of ending or at least reducing the incidence