COMMITTEE AGAINST TORTURE HEARS RESPONSE OF CHINA
The Committee against Torture this morning heard the response of China to questions raised by Committee Experts on the fourth periodic report of that country, including the Hong Kong and Macao Administrative Regions, on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to a series of questions raised by the Committee members on Friday, 7 November, the delegation, which was led by Li Baodong, Permanent Representative of China to the United Nations Office at Geneva, referring to the March 2008 incident in Llhasa and the surrounding areas, said that ample evidence proved that the 14 March incident had been a premeditated criminal activity carefully planed and organized by the Dalai group, together with separatist forces promoting Tibet's independence. The public security organs had acted in accordance with law and arrested 953 criminal suspects. Some 362 suspects surrendered themselves to the public security organs. After judicial proceedings, 69 had been sentenced to imprisonment for committing crimes of arson, robbery, theft, obstructing government functions, trouble-making in the streets, gathering to disrupt public order or attacking State organs; seven had been sentenced for committing crimes of treason or illegally offering information to people outside China; and eight were still under investigation. The remaining 1,231 suspects had redeemed themselves and been released after receiving education and administrative punishment. Those people were now leading a normal life.
On the Falun Gong, Mr. Li stressed that that was not a religion, but rather was an "evil cult against society, science and humanity", exercising mind control over practitioners through distortions and evil teachings. China had provided Falun Gong members with care and assistance, educated them, and helped them to rid themselves of the Falun Gong's control and to return to society and normal life. The Chinese delegation also provided answers on the situation of "illegal immigrants" from the Democratic People’s Republic of Korea; the status and independence of judges; the State Secrets Law; the death penalty; compensation to victims of torture; the nature of the powers of the Procuratorate; training for law enforcement, judicial and prison officials; prison conditions; corporal punishment for children; and treatment of petitioners.
Responding to questions on Hong Kong, James O'Neil, Deputy Solicitor-General of Hong Kong Special Administrative Region, confirmed that there were no plans to extend the 1951 Refugee Convention to Hong Kong. Refugee claims lodged in Hong Kong were dealt with by UNHCR's Hong Kong sub-office, and the screening procedures were undertaken in accordance with relevant UNHCR guidelines. Hong Kong had a clear prosecution policy in place so that a person who sought asylum or made a torture claim would not normally be prosecuted for an immigration offence until their claim and all appeal procedures had been concluded. No one in Hong Kong was subject to arbitrary detention, and less than two per cent of claimants were detained.
Jorge Costa Oliveira, Director of the International Law Office of the Macao Special Administrative Region Government, also answering questions, said that there had been great progress made in terms of prosecuting cases of police misconduct, with 26 cases of investigation currently under way. On illegal immigrants, there were no cases of appeal against expulsion decisions, but there had been several cases of appeal against decisions forbidding entrance. Illegal immigrants could be held in police stations up to 48 hours, and in detention centres up to 60 days. However, in practice, they still did not have such detention centres, and so following the 48-hour deadline, Macao released any illegal immigrants that had not been heard before a judge. That was perhaps why the expulsion procedure was so quick in Macao.
The Committee will submit its conclusions and recommendations on the reports of China towards the end of the session on Friday, 21 November 2008.
As one of the 145 States parties to the Convention against Torture, China is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.
When the Committee next reconvenes in public, at 10 a.m. on Tuesday, 11 November, it will begin its consideration of the initial report of Montenegro (CAT/C/MNE/1).
Response of China
LI BAODONG, Permanent Representative of China to the United Nations Office at Geneva, in some opening comments before turning to answers to questions, observed that it was China's view that dialogue with the Committee was both necessary and beneficial. At the same time, they should recognize differences in cultures, traditions, and legal systems. In a diversified world, such differences were normal. Since ancient times, the Chinese people had the tradition of learning from others. Important developments had been made in recent years in the human rights and criminal law field. However, more work was necessary for China to fully realize the benefits of international law. The process was a gradual one, but China's commitment on this road was firm and unshakeable.
China had zero tolerance for torture, Mr. Li stressed, and China had been conducting various awareness-raising and training sessions for law enforcement and judicial officials in this area. China had also made large-scale judicial reforms to implement the provisions of the Convention and to prevent torture. At present the concept of torture was gaining ground with law enforcement personnel, and the perpetrators were punished.
It was true that a lot remained to be done in terms of persecution, as Committee members had mentioned on Friday, Mr. Li agreed. However, it should be recalled how big China was and how vast its population, not to mention how diverse its population was. China had limited human and financial resources. The process needed time. China, for its part, would try and accelerate that process and coordinate with international instances. China had also always relied on non governmental organizations and NGOs played an important and essential role in promoting and protecting human rights and they had a role to play here as well.
It was important to realize the larger political situation and that, in the modern world, there was a need to combat international terrorism and other violent movements. In that context, some organizations had taken the opportunity to spread allegations such as that torture was prevalent in China, to realize their own sinister aims. The Committee should screen relevant documents and avoid being misled by baseless allegations spread by organizations with ulterior motives, Mr. Li cautioned.
Turning to a series of questions raised by Committee Experts on Friday, 7 November, Mr. Li, with regard to the definition of torture in Chinese law, said that Chinese law did not specifically define torture, but criminalized that offence based on different acts. The various elements of torture were all covered by the Chinese law. Regarding mental suffering, according to Chinese law, acts of torture that were punishable covered both physical suffering caused by beating or use of instruments of torture and mental suffering caused by ill-treatment or humiliation.
On the relationship between enforced disappearance and torture, the Chinese Government believed that enforced disappearance, like torture, should be strictly prohibited. There was indeed a certain connection between enforced disappearance and torture. It was also noted that the United Nations human rights bodies and human rights instruments had put them into different categories. The vast international system for the protection of human rights was composed of various mechanisms with different mandates. China respected the division of labour established among the human rights mechanisms, Mr. Li affirmed.
On Tibet, Mr. Li observed that Tibet had been a part of China's sacred territory since ancient times. Tibet had been liberated by peaceful means and underwent democratic reform in the mid-twentieth century. The serf system in Tibet had been demolished, and millions of serfs had been liberated and started to enjoy personal freedoms. Thanks to the system of regional autonomy set forth in China's Constitution in minority ethnic regions and the great endeavours made by the Central Government to promote ethnic unity and common prosperity, Tibet had witnessed huge progress and drastic changes.
Turning specifically to the March 2008 incident in Llhasa and neighbouring areas, Mr. Li emphasized that China took that seriously and had immediately requested the relevant domestic departments to undertake further enquiry. The results showed that in mid-March 2008 there had been a series of grave violent crimes of beating, smashing, looting and burning in Llhasa and other places. Ample evidence proved that the 14 March incident had been a premeditated criminal activity carefully planed and organized by the Dalai group together with separatist forces promoting Tibet's independence from China. It was an important part of the so-called Tibetan People's Great Uprising Movement aimed at harming national unification and ethnic unity. During that incident, 18 innocent people had been killed in Tibet, including a baby just a few months old; and 382 people had been injured, 58 of them seriously.
Police and military policemen on duty were attacked by force, leading to one death and 241 injuries, including 23 serious injuries. The attackers had engaged in criminal activities and set fire to over 300 places in Llhasa, burning and looting 908 shops, seven schools, 128 civilian houses, and damaging five hospitals, altogether resulting in over 500 million yuan of direct economic losses.
In handling that incident, the public security organs in Llhasa had acted in accordance with law and arrested 953 criminal suspects. Some 362 suspects surrendered themselves to the public security organs. After judicial proceedings, 69 had been sentenced to imprisonment for committing crimes of arson, robbery, theft, obstructing government functions, trouble-making in the streets, gathering to disrupt public order or attacking State organs; seven had been sentences for committing crimes of treason or illegally offering information to people outside China; and eight were still under investigation by the judicial organs. The remaining 1,231 suspects had redeemed themselves and been released after receiving education and administrative punishment. Those people were now leading a normal life. During the whole course of the 14 March incident, the public security organs had strictly abided by the law, and fully protected the lawful rights and interests of the suspects, Mr. Li underscored.
Also during the entire course of the incident, the Chinese Government had strictly followed the principle of openness and transparency by holding many press conferences, inviting over 200 Chinese and foreign reporters to Llhasa.
With regard to the accusation that the higher authorities had refused to renew licenses for those lawyers who had tried to defend the suspects, Mr. Li said that it had been verified through investigations by judicial organs that that accusation was untrue.
Turning to the issue of the Falun Gong, Mr. Li said that the Falun Gong was not a religion by nature, but rather was an "evil cult against society, science and humanity". It exercised mind control over Falun Gong practitioners through distortions and evil teachings. It violated human rights, brutally ended lives and endangered the whole of society. So far, the death toll of the Falun Gong practitioners who were spiritually controlled by its ringleader Li Hongzhi had reached 2,000 owing to suicides, killings and refusal to take medicines. After the Falun Gong's lies had been exposed in China, they had started to fabricate and spread lies and rumours of being persecuted in the international community. They had even publicly instigated the overthrow of the Chinese Government and indulged in activities aimed at sabotaging the 2008 Beijing Olympics.
China's position to the Falun Gong was consistent, it provided their members with care and assistance, educated them through patience and facts, and helped them to rid themselves of the Falun Gong's control and to return to society and normal life.
For a period of time the Falun Gong had plotted the lie about the so-called "Sujiatun concentration camp", alleging that there had been a concentration camp in the Sujiatun district of Shenyang where 6,000 practitioners were held. Some people from foreign missions and the media had visited the site and investigated. The fact was, there was no such concentration camp at all. After that lie was exposed, the Falun Gong had started to allege that China was harvesting human organs from Falun Gong practitioners. That once again turned out to be a groundless lie, Mr. Li underlined. The Chinese Government strictly adhered to the guidelines set by the World Health Organization and strictly banned all kinds of trade in human organs. In particular, in 2007, China had promulgated the Human Organ Transplant Ordinance, which made certain stipulations on the donation, registration, allocation and transplants of human organs and, among others, provided the institutional base to effectively prevent and punish violations.
Regarding illegal immigrants from the Democratic People’s Republic of Korea, Mr. Li stressed that the Chinese Government attached great importance to the protection of refugees. Since 1978, the Government had accepted nearly 300,000 Indo-Chinese refugees seeking asylum by providing them with food, shelter and jobs, and the United Nations High Commissioner for Refugees (UNHCR) and the international community had recognized China's contribution to the maintenance of peace and stability in the region.
For a long time, China had kept up good cooperation and communication with UNHCR, and UNHCR affirmed China's efforts in the protection of refugees and was satisfied with its cooperation, Mr. Li noted. The truth was, the people from the Democratic People’s Republic of Korea mentioned by Experts on Friday had entered China illegally for economic reasons. Clearly, they were not refugees as defined in the 1951 Refugees Convention and its 1967 Protocol. Always keeping in mind the overall peace and stability of the Korean Peninsula, China's efforts had been reasonable, lawful and effective.
Continuing to respond to questions, on the issue of the State Secrets Law, another member of the delegation explained the function of that law, which provided that "State secrets refer to matters concerning State security and interests the knowledge of which is limited to a certain scope of personnel with a certain time frame which is determined according to legal procedures". There were three categories of such secrets: most confidential; classified; and confidential. According to the Criminal Procedure Law, if a case involved State secrets, the criminal suspect had to obtain the approval of the investigative organ for appointing a lawyer. "To obtain the approval" did not mean that the suspect was not allowed to appoint a lawyer; he just needed to obtain the approval of the investigative organ. In practice, the investigative organ would normally make a decision based on the consistent performance of the lawyer.
If the detainee refused to accept the determination as to whether a matter was a State secret, the question would be submitted to the State secret-guarding department or the secret-guarding department of the province or autonomous region or municipality for evaluation, the delegation added.
With respect to the death penalty, the decision to abolish the death penalty was not just a legal matter: it involved complicated economic, political, cultural, social and public opinion elements. Since countries had different national conditions, the time they needed to gradually reduce and finally abolish the death penalty was also different. "Currently, the social, material and cultural conditions are not yet ripe for China to abolish the death penalty", the delegation observed.
China collected data on the death penalty, the delegation said. In March every year, the President of the Supreme People's Court reported to the National People's Congress on the death penalty, which was also made public to the whole world, he said.
On compensation to victims, the delegation noted that if State organs and their functionaries violated the law in exercise of their power, including torture, the State offered victims timely and effective compensation. China's State Compensation Law had explicit stipulations on the scope, procedures and volume of compensation. With regard to victims of torture, according to that Law, in the case of bodily injury, medical expenses as well as compensation for loss in income due to missed working time would be paid; if death resulted, compensation for death and funeral expenses would be paid; living expenses would also be paid for those who were unable to work and had been supported by the deceased in his/her lifetime, such as parents or children. It was evident that those provisions took into account compensation for mental suffering and recovery needs of victims of torture.
Currently, the State Law on Compensation was being amended to further straighten out the channels for citizens to apply for compensation, to improve compensation procedures, to increase the burden of proof placed on State organs, and to explicitly provide for compensation to be paid for mental suffering. It also further clarified that compensation shall include necessary expenses, such as nursing, recovery and follow-up medical treatment.
On the nature and function of procurators in Chinese law, and why the procuratorate organs were able to approve the arrest of criminal suspects, the delegation observed that in China the status and function of its Procuratorial Organs were different from most other countries. According to the Constitution, the procuratorates were State organs for supervising judicial activities in China. Like courts, they were created by and responsible to the National People's Congresses, and exercised their power independently. They also had wide-ranging functions, including supervising investigations, trial and execution of sentences. In China, the people's courts and the people's procuratorates were both judicial organs. Arrest was a measure that was decided by the court of the Procuratorate.
As for the political status of procurators, the delegation noted that the Procurators-General at various levels were elected by people's congresses, and the procurators were nominated by the procurators-general and appointed by the congresses. Procurators did not have to be Communist Party members. For instance, the incumbent Deputy Procurator-General, Jiang Jian-chu was not a Communist Party member.
China attached importance to ground-level personnel training, and all procurators received annual training of not fewer than 15 days. Within local procuratorial organs, there were a number of torture-related sub-organs, especially the supervision department on the dereliction of duty and rights infringement and the supervision department on prison and detention facilities, responsible, respectively, for the investigation, supervision and prevention of torture. There were over 25,000 procurators in those departments and they received annual training in courses on punishment for and prohibition of torture and protection of human rights of detainees and prisoners. Procurators from other departments also had human rights protection in their annual training programmes.
Human rights education was also embodied throughout the training for the people's police in public security organs. Since 2003, public security organs had been practising the system of "three musts", i.e. police officers had to receive training when they started their jobs; when they were promoted; and when they did frontline field work. The Convention against Torture and other relevant texts were included in the training.
The code of conduct for houses of detention had strict provisions on the working procedures to be used by doctors for such facilities, the delegation continued. Based on the items and contents of the medical check-up and registration form, doctors carried out medical check-ups for suspects, defendants and criminals. They had to write their conclusions and sign their names after the examinations. If injuries were discovered, they had to obtain the necessary information and write it on the registration form, which had to be witnessed by both the escorting guard and the detainee. The Ministry of Public Security also often conducted multi-level and multi-form training for supervisors, doctors and other related personnel, including on legal system and anti-torture training. Intensified training efforts had led to marked progress by law enforcement and judicial organs in human rights protection and prevention of torture. The accusation that China was obstructing NGOs from publicizing human rights instruments was "groundless", the delegation said.
Turning to prison conditions, since 2001, adjustments had been made in prison deployment to move prisons closer to large and medium-sized cities where transportation was more convenient for family members to visit and for others to offer help. Many newly built, renovated or enlarged prisons enjoyed better facilities and environment, and living conditions for prisoners had improved by a fairly big margin. China had set the target of achieving an average living space for each prisoner of 3 square metres of floor space by 2010, the delegation said.
On corporal punishment for children, the delegation underscored that the Government was always resolutely against physical punishment. The Law on Protection of Minors had implemented the principles of the Convention on the Rights of the Child and had made a full range of provisions on protection of the lawful rights and interests of minors, including prohibiting family violence against minors.
Regarding complaints mechanisms and the treatment of petitioners, the delegation noted that the right to present claims was bestowed by the Constitution and law by means of correspondence and visits. Governments at various levels had established special departments to receive petitioners. In order to help people better express their views, the Government had built a nationwide system of correspondence and visits, set up the national reception centre and promoted the practice of mayors' public letter boxes to ensure a timely and effective handling of cases. With regard to Experts' indications that there had been non-official personnel intercepting, beating and detaining people who came to visit, that was prohibited by Chinese law and not allowed in their work, the delegation stressed. If such were the case, the organs and people found responsible would be held accountable in a serious manner. As for the specific case mentioned, the information provided was insufficient to find evidence.
Additional Comments and Questions Raised by Committee Experts on Mainland China
FELICE GAER, the Committee Expert serving as Rapporteur for the reports of China, thanked the delegation for the information provided, but expressed frustration at a lack of information or details on individual cases. A similar concern was the lack of statistics. While they had heard the explanation that China was a developing country, the obligations of China under the Convention were not vague or long-term, but an immediate and concrete obligation to prevent acts of torture. Therefore, the need to develop statistics and to monitor the situation was direct and immediate.
Moreover, Ms. Gaer was concerned not so much about an absence of statistics, but an unwillingness to make those statistics public. Those issues were covered under the State Secrets Act, which covered groups such as subversive sects, the very same groups they were asking about. The State Secrets Act also covered information on location of prisons, inter-prisoner violence, information on places of custody, statistics and files, figures on kidnapping and trafficking, and information and statistics concerning the conduct of public security officers. That pretty well covered the areas the Committee wanted to hear about.
As to the questions previously asked on specific cases, the Committee had provided specific names and facts of the situations in the written questions, as well as on Monday, Ms. Gaer stressed. Those included the case of the designated Panchen Lama, Genden Choekyi Nyima, who had disappeared for many years now, and Bishop Bishop Su Zhimin.
On Tibet, Ms. Gaer underscored that the problem was that no one was being allowed access to the region and no independent investigation had been undertaken.
Regarding the “North Korean” refuges, Ms. Gaer said that the issue was whether there was a procedure to determine if those entering the country, for whatever reasons, economic or otherwise, faced a risk of torture if they were returned.
NORA SVEAASS, the Committee Expert serving as Co-Rapporteur for the report of China and the Hong Kong and Macao Special Administrative Regions, raised the issue of re-education through labour, which several Chinese judges and lawyers had challenged publicly recently as being anti-Constitutional. It was not clear what oversight mechanism existed for this practice, nor what rights of appeal individuals sentenced to re-education had. Access by international groups to re-education camps was also not provided.
The delegation had also not provided answers about the situation of the Uighurs, which she had raised earlier, Ms. Sveaass said.
The Falun Gong had been referred to by the Chinese as an "evil sect". Nonetheless, and no matter what their actual status, the right of the Falun Gong to be free from torture was absolute, Ms. Sveaass stressed.
Ms. Sveaass also took this opportunity to ask again if China would consider adopting the Istanbul Protocol for medical examinations to determine whether or not torture had occurred.
She would have appreciated further comments on the situation of human rights defenders and, specifically, what protections existed for human rights defenders in China.
Other Experts then raised questions on issues of the definition of torture in law; the State Secrets Law; the independence of the judiciary; the fact that statistics on the death penalty were considered to be a State secret; and independent mechanisms for investigating torture claims, among others.
Response by Delegation from Mainland China to Additional Questions
Mr. Li, on requests for provision of further details, said he would refer the cases back to the authorities in China for replies to specific cases.
Briefly, on the issue of the Panchen Lama, Genden Choekyi Nyima, the delegation noted that, the Dalai Lama and the Panchen Lama, the two top officials of the Tibetan Government, had to have their selection to those positions approved by the Chinese Government in accordance with long-established procedures. Anyone who sought to go beyond those instruments and sought to appoint someone else was committing a subversive act. China attached great importance to finding Genden Choekyi Nyima. Following inquiries, it had been found that he and his family were living a normal life and they did not want to be disturbed. No claims from relatives or others that he was missing had been received. Ms. Gaer's information according to which he was missing was false.
Response of Hong Kong and Macao Special Administrative Regions
JAMES O'NEIL, Deputy Solicitor-General of Hong Kong Special Administrative Region, confirmed that there were no plans to extend the 1951 Refugee Convention to Hong Kong. Refugee claims lodged in Hong Kong were dealt with by UNHCR's Hong Kong sub-office, and they understood that the screening procedures were undertaken in accordance with relevant UNHCR guidelines.
On allegations of arbitrary prosecution and detention of torture claimants, Mr. O'Neil noted that Hong Kong had a clear prosecution policy in place so that a person who sought asylum or made a torture claim would not normally be prosecuted for an immigration offence until their claim and all appeal procedures had been concluded. No one in Hong Kong was subject to arbitrary detention. Less than two per cent of claimants were detained.
With regard to the function of the Complaints Against Police Office, Mr. O'Neil said that it operated as a unit separated from other police formation and was responsible for the handling and investigation of public complaints against members of the police force. Investigations conducted by the Complaints Office sought to ascertain all the facts by means of interviews of the complainant and witnesses and of the complainee, and by conducting visits to the scenes to locate witnesses and obtain evidence. The Office had the necessary investigative powers as well as the professional expertise for conducting thorough and impartial investigations.
In response to public concerns, the police reviewed, in early 2008, the Police Force's practices in respect of searches of detainees held in police custody. Following review, the Police had formulated a set of revised procedures which had taken effect from 1 July 2008. Under the revised procedures, new measures had been introduced to ensure that searches were conducted in a manner that respected the privacy and dignity of the subject. In particular, they specifically provided that only officers of the same gender as the detainee would be present when the search was conducted. Other key features included more stringent requirements in respect of searches involving removal of clothing; the provision of a written notice to the detainee of the guidelines; and a post-search review mechanism.
Regarding concerns about the treatment of sex workers by the Police, Mr. O'Neil said that the Police had reviewed and revised its guidelines for the control and conduct of frontline officers engaging in frontline operations in 2007.
JORGE COSTA OLIVEIRA, Director of the International Law Office of the Macao Special Administrative Region Government, said that there had been great progress made in terms of prosecuting cases of police misconduct, with 26 cases of investigation currently under way.
On illegal immigrants, Mr. Costa Oliveira said that expulsion implied that the individual had no right to enter the country. There were no cases of appeal against expulsion decisions, but there had been several cases of appeal against decisions forbidding entrance. They could be held in police stations up to 48 hours, and in detention centres up to 60 days. However, in practice, they still did not have such detention centres, following the 48-hour deadline, Macao released any illegal immigrants that had not been heard before a judge. That was perhaps why the expulsion procedure was so quick in Macao.
Regarding juvenile justice, Mr. Costa Oliveira reiterated that minors less than 16 years old who had committed crimes could be committed to centres for juveniles, not to prisons. The age of criminal responsibility remained 16 years old. The issue of isolation of minors was a concern of the Committee that would be brought back for further study.
On an increase in domestic violence, the capacity of shelters had been reinforced, a number of NGOs were working in this area, and the Macao government was currently drafting new legislation in this area, Mr. Costa Oliveira concluded.
Questions by Committee Experts
FELICE GAER, the Committee Expert serving as Rapporteur for the reports of China, said that the issue was not whether or not Hong Kong was a member of the Refugee Convention, but whether persons expelled from the region were at risk for torture, in contravention of the Convention. She also commented on the fact that the State Secrets Act appeared to obfuscate many of the areas on which they would want more information.
NORA SVEAASS, the Committee Expert serving as Co-Rapporteur for the reports of China, asked about the use of the Istanbul Protocol in police work and in asylum procedures in Hong Kong. On Macao, and the issue of minors in detention, she reiterated that her concern was over the use of isolation to punish juvenile offenders. Again on Hong Kong, did the new statutory Independent Police Complaints Council have the power to initiate legislation?
For use of the information media; not an official record
CAT08030E