The People’s Republic of China has presented its candidature for the elections to the newly established Human Rights Council which will be held on 9 May 2006. In the light of the stated goal of UN member states to ensure that Human Rights Council members will “uphold the highest standards in the promotion and protection of human rights”, China’s pre-election pledge contains a number of assurances and actions that it believes make it worthy of election to the Council. However, the country has a long way to go before it can be held up as a model human rights protector.

Few expect China to lose its bid for a seat on the Council. However, while its election may be a foregone conclusion, it is important that some of the issues of concern be highlighted. The widespread use of torture in China is one of the most pressing human rights concerns in that country, and while China must be commended for inviting the UN Special Rapporteur on torture to visit the country, it must now look to internalising and following up on the rapporteur’s recommendations.

In December 2005, the UN Commission on Human Rights’ Special Rapporteur on Torture, Manfred Nowak, completed an unprecedented mission to China. The two-week mission between 20 November and 2 December 2005 came about after nearly a decade of negotiations between the UN and China on mutually acceptable Terms of Reference.

The Special Rapporteur's visit was completed in the context of widespread reports of prisoner abuse and torture in China over many years. In particular, human rights groups have raised serious concerns about the systematic abuse of political dissidents, human rights defenders, practitioners of Falun Gong and Christianity, and ethnic minorities including Tibetans and the Uighur Muslim minority in Xinjiang. The local media has also focused increasing attention on the issue of torture in China following recent revelations of coerced confessions. In one example, a man in Hubei province served 11 years in jail after being tortured into confessing to the murder of his wife, only for his wife to be found alive in March 2005.

While the mission marks a turning point in China's openness and willingness to engage in multilateral efforts to improve its human rights record, there were serious deficiencies with some aspects of the mission, especially in the granting of access to certain persons and areas.

The Special Rapporteur found that incidents of torture, though decreasing, are still extensive. The list of reported methods of torture is a shocking testimony to the brutality and cruelty of China's justice system. The methods include “beatings; use of electric shock batons; cigarette burns; hooding/blindfolding; guard-instructed or permitted beatings by fellow prisoners; use of handcuffs or ankle fetters for extended periods (including in solitary confinement or secure holding areas), submersion in pits of water or sewage; exposure to conditions of extreme heat or cold, being forced to maintain uncomfortable positions, such as sitting, squatting, lying down, or standing for long periods of time, sometimes with objects held under arms; deprivation of sleep, food or water; prolonged solitary confinement; denial of medical treatment and medication; hard labour; and suspension from overhead fixtures from handcuffs.”

The Special Rapporteur reported that victims and their families were intimidated, instructed not to talk to him or his team, put under surveillance or physically prevented from speaking to him. The Special Rapporteur also noted "a palpable level of fear and self-censorship" amongst those detainees he spoke to and that many were unwilling to speak to him at all or only on the strictest confidentiality. Members of the mission were restricted in their attempts at fact-finding at various times. For example, the Special Rapporteur noted that his team was put under surveillance, prevented from bringing photographic or electronic equipment into prisons, and that for procedural reasons he was unable to conduct "unannounced" visits to detention centres. Such measures not only compromised the mission, they also increased suspicions of widespread hidden human rights abuses within China's justice system and confirmed international criticism of China's opaque bureaucracy.

Incidents of ill-treatment have been increasingly recognised by the government. In 2005 it investigated around 1,595 civil servants for alleged criminal offences, involving amongst other things; the use of violence to obtain evidence, abuse of detainees and illegal detention. However, it is evident that there is much that goes unreported, uninvestigated and unpunished. The great majority of torture cases are in fact never reported due to the general reluctance of victims to report complaints due to the threat of reprisal and a lack of conviction that their grievances can be effectively resolved. This is especially true in cases of mental abuses where no physical mark is left. Such cases are virtually impossible to prosecute under China's current legal system, which does not recognise psychological torture.

National and state governments have enacted various regulations to combat torture. For example, the Ministry of Public Security has issued "Regulations on the Procedures for Handling Administrative Cases", which standardised law enforcement procedures for public security institutions and in particular setting rules for the obtaining of physical evidence and confessions. This was followed by regulations prohibiting the use of torture and threats to seek confessions. Some practical measures have also been introduced to combat torture, including the pilot use of video recording and the placing of lawyers on a 24-hour basis in pilot police stations to strengthen pre-trial representation. It is also anticipated that legislative reform of domestic law to bring it into line with international norms, especially the guarantee of a fair trial under the International Covenant on Civil and Political Rights (ICCPR), will take effect in 2006. Despite these and other procedures introduced to combat torture in China, it is clear that drastic measures are needed to change the culture of torture within the law enforcement system. One of the first steps in this process is for China to bring its domestic legislation on torture in conformity with legal definitions under the Convention Against Torture (CAT), which China ratified in 1988.

Further, the monitoring and complaints system must be overhauled if China is to avoid accusations of tokenism. Although many police stations are assigned procurators who are in theory responsible for the monitoring and investigation of complaints, the effectiveness of such a system is undermined by the conflict of interest procurators have in overseeing police measures while attempting to prosecute offenders. More significantly, the assigning of such positions does not address the pervasive fear of reprisals, which prevents most victims from reporting incidents of abuse.

The failure of the current monitoring system is illustrated by procurators' reports that there have been no complaints from prisoners of ill-treatment in the Tibetan Autonomous Region since 2003 and none at all in Prison No. 4 in Urumqi since its inception. Such reports are in stark contrast to the international reports documenting the systematic abuse of Tibetan and Uighur minorities in these areas. It is hence with incredulity that one learns of figures from the PRC's Deputy Procurator-General suggesting that only 33 law enforcement officials were prosecuted throughout China between January and September 2005 for torture related offences.

Human rights groups also report that the successful prosecution of torture cases is further impeded by an ill-trained and morally corrupt judiciary. Trials are rarely conducted openly, and defence lawyers are accorded very little time to prepare cases. Such is the lack of accountability within the legal system that there have even been cases where verdicts have been announced to the media before the beginning of a trial. The lack of guarantees to a fair and independent trial prevents torture victims from seeking judicial redress.

Additionally, the vague construction of crimes such as "disrupting social order" and "subverting public order" makes the legal system vulnerable to manipulation by authorities. Hence, it is vital that essential procedural protection including the exclusion of statements made under duress, safeguarding the privilege against self-incrimination, providing timely notice of reasons for arrest or detention and access to legal assistance, is introduced and systematically implemented.

Given the substantial problems reported by the Special Rapporteur on Torture, it is clear that major reforms within China's criminal justice system are necessary to combat torture and associated practices in China. Such reforms are long overdue.

In particular, China must establish proper procedures to safeguard judicial guarantees of a fair trial as well as to institute changes aimed at increasing the professionalism and transparency of the judiciary.

If China is serious about eliminating torture in its justice system, it must improve mechanisms for complaints, by creating a safe and confidential procedure for reporting and seeking redress for incidents of torture.

It must also accept the right of individual petition to the Committee Against Torture and its competence to initiate an inquiry in accordance with CAT.

Most importantly, China needs to engender a culture of respect for human rights within governmental authorities and wider society. While the Special Rapporteur's visit to China is unquestionably an important step to reforming generations of draconian practices, it means very little without accompanying action.

 Human Rights Features