[1]  Cf., e.g., the case of Hu Shigen in Appendix 2.

[1]  See, e.g., the cases of Yang Zili, Xu Wei, He Depu, Yang Jianli, Jigme Tenzin, Lobsang Tsuitrim, Jigme Gyatsu, Tohti Tunyaz Mozat, Rebiya Kadeer and Nur Mohammat Yasin in Appendix 2.

62.       Many prisoners serving sentences for political crimes and detainees subjected to RTL who submitted complaints to the Special Rapporteur or whom he personally met in detention, claimed that the disproportionate, discriminatory and unjust deprivation of personal liberty (often for a very long period of time) together with the forced re‑education system to which they were subjected caused more severe pain and suffering than the physical torture they might have endured during interrogation by the police.  Indeed, some of these measures of re‑education through coercion, humiliation and punishment aim at altering the personality of detainees up to the point of even breaking their will.

63.       In response to the Special Rapporteur’s characterization of forced re‑education as a form of inhuman or degrading treatment, the Chinese authorities advanced several arguments in written comments of 25 January 2006 on the preliminary draft report, including that re‑education is premised on helping detainees re‑enter society and that since many detainees “are led to a life of crime because they love leisure and hate labour and resort to illegal means to gain others’ property”, prisons and re‑education through labour facilities organize appropriate work “in order to cultivate abilities and habits of self‑reliance and prevent problems such as poor mental health because they have nothing to do”.  Furthermore, the Special Rapporteur was informed that, in order to further enforce the law in a civilized manner, China’s Ministry of Justice Prison Bureau has begun training psychotherapists in the prison system with national professional accreditation in order to prevent and eliminate torture of prison inmates.  According to China, “at present nearly 90 per cent of China’s prisons have begun this work and more than 1,000 prison system psychotherapists have already been trained”.^[1]

64.       In the opinion of the Special Rapporteur, methods used in the system of RTL in China, and similar methods of re‑education in prisons, pretrial detention centres, and other institutions often go beyond legitimate rehabilitation measures provided for in article 10 of the ICCPR.  Indeed, some of these measures strike at the very core of the human right to personal integrity, dignity and humanity, as protected by articles 7 and 10 of the ICCPR, as well as articles 1 and 16
of the CAT.  RTL constitutes not only a serious violation of the human right to personal liberty, but can also be considered as a form of inhuman and degrading treatment or punishment, if not mental torture.  RTL and similar measures of forced re‑education in prisons, pretrial detention centres, religious institutions and psychiatric hospitals should therefore be abolished.

65.       The human rights to privacy, freedom of expression, religion, assembly and association lie at the very heart of a democratic society, which, according to its White Paper on Democracy, China has committed itself to achieve.^[1]  Under international human rights law, Governments can only interfere with the expression of political opinions, religious convictions, moral values or minority views when they constitute incitement to hatred or violence or a direct threat to national security or public safety in the country.  A system of State surveillance of citizens with non‑conformist views and with severe punishments for such “deviant behaviour”, such as long‑term prison sentences for vaguely defined crimes, including endangering national security, undermining the unity of the country, subverting State power, or unlawfully supplying State secrets to individuals outside the territory, as well as subjecting them to RTL, seems to be incompatible with the core values of a society based upon a culture of human rights and leads to intimidation, submissiveness, self‑censorship and a “culture of fear”, which in turn interferes with the right not to be subjected to inhuman and degrading treatment or punishment.

Circumstances surrounding capital punishment

68.       The Special Rapporteur is also concerned about the circumstances surrounding the death penalty, including the situation of prisoners on death row.  At the Beijing Municipality Detention Centre, where the Special Rapporteur spoke with prisoners sentenced to death at first instance awaiting appeal, he noted that these prisoners were handcuffed and shackled with leg irons weighing approximately 3 kg, 24 hours per day and in all circumstances (i.e. including during meals, visits to the toilet, etc).[1]  In the opinion of the Special Rapporteur this practice is inhuman and degrading and serves only as an additional form of punishment of someone already subjected to the stress and grief associated with having been sentenced to death.

69.       The Special Rapporteur wishes to express concern at the high number of crimes for which the death penalty can be applied, and the lack of official statistics on the application of the death penalty, which contributes to the perception of secrecy.[1]  He encourages the Government to both narrow its scope and to be more transparent towards family members and the public at large regarding its use, including by making statistics on the death penalty public information.  The Special Rapporteur notes allegations that some provincial authorities are introducing mobile execution vans (converted 24‑seater buses) manufactured by a State‑owned company.[1]  These mobile execution vans were reportedly approved by Yunnan Provincial authorities on 6 March 2003, and 18 such vans were distributed to all intermediate courts and one high court in Yunnan Province in 2003.  In December 2003, the SPC in Beijing reportedly urged all provinces to acquire execution vans “that can put to death convicted criminals immediately after sentencing”.

70.       The Special Rapporteur welcomes the anticipated recovery by the Supreme People’s Court of responsibility for final approval of the death penalty.[1]

civil and political rights, including the question
of torture and detention

Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Manfred Nowak

mission to china*

Summary

            The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment undertook a visit to China from 20 November to 2 December 2005, at the invitation of the Government.  He expresses his appreciation to the Government for the full cooperation it provided him throughout the visit.  The report contains a study of the legal and factual aspects regarding the situation of torture or ill-treatment in China.

            The Special Rapporteur bases his finding on a thorough analysis of the legal framework, individual communications and on written information from and interviews with a wide array of sources, including Government officials, non-governmental organizations, lawyers, victims and witnesses, as well as from on-site inspections of detention facilities.  Accordingly, he recommends a number of measures to be adopted by the Government in order to comply with its commitment to prevent and suppress acts of torture and other forms of ill-treatment.

            Though on the decline, particularly in urban areas, the Special Rapporteur believes that torture remains widespread in China.  He welcomes the willingness of the Government to acknowledge the pervasiveness of torture in the criminal justice system and the various efforts undertaken in recent years at the central and provincial levels to combat torture and ill‑treatment.  In the opinion of the Special Rapporteur, these measures have contributed to a steady decline of torture practices over recent years.

            Many factors contribute to the continuing practice of torture in China.  They include rules of evidence that create incentives for interrogators to obtain confessions through torture, the excessive length of time that criminal suspects are held in police custody without judicial control, the absence of a legal culture based on the presumption of innocence (including the absence of an effective right to remain silent), and restricted rights and access of defence counsel.  The situation is aggravated by the lack of self-generating and/or self-sustaining social and political institutions including:  a free and investigatory press, citizen-based independent human rights monitoring organizations, independent commissions visiting places of detention,  and independent, fair and accessible courts and prosecutors.

            While the basic conditions in the detention facilities seem to be generally satisfactory, the Special Rapporteur was struck by the strictness of prison discipline and a palpable level of fear and self-censorship when talking to detainees.

            The criminal justice system and its strong focus on admission of culpability, confessions and re-education is particularly disturbing in relation to political crimes and the administrative detention system of “Re-education through Labour”.  The combination of deprivation of liberty as a sanction for the peaceful exercise of freedom of expression, assembly and religion, with measures of re-education through coercion, humiliation and punishment aimed at admission of guilt and altering the personality of detainees up to the point of breaking their will, constitutes a form of inhuman or degrading treatment or punishment, which is incompatible with the core values of any democratic society based upon a culture of human rights.

iv.    DEPRIVATION OF LIBERTY FOR POLITICAL CRIMES AND
FORCED RE‑EDUCATION AS A FORM OF INHUMAN OR
DEGRADING TREATMENT

60.       The criminal justice system and its strong focus on admission of culpability, confessions and re‑education is particularly disturbing in relation to political crimes.  Although many such crimes, such as “organizing a counter‑revolutionary group” and “counter‑revolutionary propaganda and incitement” were abolished in 1997, members of the “democracy movement” and political dissidents who were sentenced before 1997 for these crimes are still serving long prison sentences today.^[i]  The Special Rapporteur welcomes the decision of the Government of China to grant prisoners convicted of these crimes the same access to sentence reduction and parole as other prisoners, and notes the relatively large number of sentence reductions and early releases granted to such prisoners.  However, prisoners are still serving sentences for counter‑revolution, and several hundred more are serving sentences for “hooliganism”.  Most systems provide for the release of prisoners serving sentences for a crime that is removed from the criminal law.  Article 15, paragraph 1, of ICCPR suggests that, at a minimum, reviews of the prisoners’ sentences should be carried out.  Release of all counter‑revolutionaries and hooligans imprisoned for non‑violent related offences (e.g. leading a counter‑revolutionary group, engaging in counter‑revolutionary propaganda and incitement) would be a milestone in China’s effort to ratify the ICCPR.

61.       After the 1997 changes, political dissidents, journalists, writers, lawyers, human rights defenders, Falun Gong practitioners, and members of the Tibetan and Uighur ethnic, linguistic and religious minorities were often prosecuted as a result of having exercised their human rights to freedom of speech, assembly, association or religion.  They are often sentenced to long prison terms for political crimes such as endangering national security through undermining the unity of the country, subversion or unlawfully supplying State secrets to individuals outside the country.^[ii]  Although many of these prisoners deny having committed any wrongful act and, therefore, do not confess during trial (often despite undergoing torture), they sometimes change their mind after having been subjected to forced re‑education while serving their prison sentences.  If politically deviant and dissident behaviour is not subjected to criminal sanctions, the respective target groups, such as Falun Gong practitioners and human rights defenders, are often subjected to years of administrative detention, such as RTL, for having disturbed the social order or similar petty offences.