While welcoming certain gestures by the Chinese government, the UN Working Group on Arbitrary Detention concludes after a visit to China that its recommendations in a 1997 report have not been implemented: “Namely, the provision which stipulates that everyone shall not be consider guilty until convicted has not been amended to clearly stipulate the presumption of innocence until proven guilty; no definition for the term in criminal law ‘endangering national security’ has been given…; no legislative measures have been taken to ensure a clear-cut exception from criminal responsibility for those peacefully exercising their rights under the Universal Declaration of Human Rights; and finally, no real judicial control is exercised within the procedure to commit someone to re-education through labour. ” During its visit to Drapchi Prison in Lhasa, the Working Group was not allowed to interview certain individuals on its list.
Press Statement by the Working Group on Arbitrary Detention of the
United Nations Commission on Human Rights following its visit to the
People’s Republic of China
Geneva, 1st of October 2004
Statement by Ms Leïla Zerrougui, Chairperson-Rapporteur of the
Working Group on Arbitrary Detention
The Working Group visited the People’s Republic of China from 18 to 30 September 2004 at the invitation of the Government. The Working Group visited, in addition to Beijing, the cities of Chengdu (capital of Sichuan Province) and Lhasa (capital of the Tibet Autonomous Region). The Working Group’s delegation was headed by Ms. Le√Øla Zerrougui, Chairperson-Rapporteur of the Working Group, and was composed by Mr. Tam√°s B√°n, the Working Group’s Vice Chairperson, as well as the Working Group’s Secretary, another member of the United Nations Secretariat and two UN interpreters.
It was agreed that the mission would have a follow-up character to the previous missions of the Working Group (6-16 October 1997, report contained in UN Doc. E/CN.4/1998/44/Add.2; and 14-21 July 1996, report in Doc. E/CN.4/1997/4). Therefore, in contrast to other missions conducted by the Working Group in countries which it visits for the first time, this visit focused on developments since the 1997 visit. Bearing also in mind the significant dimension of the country and the limited time of its stay in China, the Working Group concentrated its attention on laws applicable to the prosecution, trial and sentencing of individual suspected of criminal offences as well as others charged with disrupting social order and deprived of their liberty by non-judicial organs. The follow-up nature of the visit was emphasized by the fact that the Group met, to the extent possible, with the same authorities and visited the same detention centers as during its previous visits.
The Working Group was thus able to hold meetings with the Vice Ministers for Foreign Affairs, Public Security, Justice, and Health, as well as with other authorities of those Ministries; the Vice-Chairman of the Supreme People’s Court; the Vice-Chairman of the Supreme People’s Procuratorate; the Deputy Director General and other members of the Legislative Affairs Commission of the Standing Committee of the People’s National Congress; the Deputy Governor of the Province of Sichuan and of the Tibet Autonomous Region; other authorities of those local Governments; judges, prosecutors, police authorities and penitentiary administration officials. It also held meetings with the Deputy-President and members of the Board of the All China Lawyers Association as well as with the Vice Chair and members of the China Society for Human Rights Studies.
The Working Group visited the following detention facilities (included in a list previously submitted by the Working Group to the authorities): The Beijing Municipal Detention Centre N° 501 at Chaoyang District; the Beijing Juvenile Reformatory; the Beijing Tuang He Re-education Through Labour Camp; the Chengdu Reformatory Penitentiary; the Jinjiang Prison; the Chengdu Detention Centre; a police station in the city of Chengdu; the Prison N° 1 of the Tibet Autonomous Region (Drapchi Prison) and the Lhasa Detention Centre (Gutsa); as well as the Mental Health Hospital at Beijing Fangshang District.
At those detention facilities, the Working Group was able to meet with and interview more than 70 detainees, chosen at random and from a list previously submitted to the authorities, including pre-trial detainees, convicted individuals serving their sentences, women, minors, and persons held in administrative detention in re-education through labour camps. The interviews with detainees were carried out in conformity with the Working Group’s terms of reference, i.e. in private, without the presence of government officials and in locations chosen by the Working Group.
The Working Group regrets that during its visit to Drapchi Prison in Lhasa, it was informed that certain individuals on its list could not be interviewed due to an internal regulation. The visit to those detainees was particularly important to the Working Group given incidents which occurred in the aftermath of its 1997 visit. Upon learning this information, the Working Group decided to discontinue its visit to Drapchi prison. It should, however, be noted that the authorities made efforts to allow the Working Group to interview a former detainee at Drapchi included in the Working Group’s list who had been released under supervision. It also should be mentioned that in cases on which the Working Group was not able to meet with detainees on its list, the Government, at the Working Group’s request, submitted information on their legal circumstances.
The Working Group stresses that the Government showed an attitude of more co-operation and transparency that was the case during its two previous visits. It should be specified that the cities and detention facilities requested by the Group were included in the programme of the visit; official meetings and visits were organized as requested during holidays; and detainees serving their sentences in locations far from the cities visited by the Working Group were transferred in order be interviewed by the Group. The Working Group considers that during its visit, its methods of work and terms of reference were generally respected.
The Working Group attaches particular importance to the decisions taken recently at the political level in China to further reinforce and develop the human rights protection. In particular, the National People’s Congress amended the Constitution in March to add the provision “the state respects and preserves human rights,” providing for the first time in Chinese history a constitutional protection of human rights. The Working Group hopes that this constitutional enshrinement of human rights will lay the foundation for a more effective legal framework for human rights protection in China.
The Working Group was informed that certain subjects of concern outlined in the reports of its previous visits are being considered by the National People’s Congress as possible matters for new legislation or legislative amendments, including: Limitation of the length of detention and introduction of alternative measures to detention, such as bail; reinforcement of defense lawyers’ participation in criminal proceedings including immediate involvement after arrest; the requirement that individuals’ arrest by public security organs be based on more solid evidence than in current practice; compulsory recording of police questioning of suspects to eliminate the use of coercion; inadmissibility of evidence gathered under duress; the right to silence; and more efficient methods to ensure the appearance and testimony of witnesses, through, inter alia, reimbursement of travel expenses and financial losses suffered.
Another area — which under Chinese law is not considered criminal law yet with direct relevance to the Working Group’s mandate — is that of the re-education through labour system. The Working Group welcomed the information that the National People’s Congress intends to put on its agenda the reconsideration of the current legal framework for re-education through labour. According to some members of the NPC, the principal weak points of the current regulation are the unduly long duration of this measure which must be reduced (currently three years subject to extension by another year); and the lack of effective remedy against the decision. A judicial review should also be contemplated.
The Ministry of Public Security informed the Working Group that all procedural aspects of arrest and detention shall be reviewed with a view to implementing the constitutional principle concerning the Rule of Law. Issues such as the condition of pregnant women, drug addicts, minors and other vulnerable groups will be defined by law enacted by the National People’s Congress and not, as in the past, by internal police regulations and the like. Recently, the Ministry of Public Security also embarked upon the elaboration of a draft bill on administrative procedural law, which will define all the substantive aspects of arrests carried out by public security organs.
Similarly, in the Ministry of Health, the Working Group was informed that this Ministry drafted a law which will regulate nation-wide the admission and holding in psychiatric institutions of mentally ill patients, including those held against their will.
The Working Group welcomes this positive evolution. However, it would like to stress that at this stage, the four recommendations formulated in its 1997 report have not yet been implemented. Namely, the provision which stipulates that everyone shall not be consider guilty until convicted has not been amended to clearly stipulate the presumption of innocence until proven guilty; no definition for the term in criminal law “endangering national security” has been given, hence the application of criminal law provisions using this unduly broad notion may invariably give rise to arbitrariness; no legislative measures have been taken to ensure a clear-cut exception from criminal responsibility for those peacefully exercising their rights under the Universal Declaration of Human Rights; and finally, no real judicial control is exercised within the procedure to commit someone to re-education through labour. The lawsuit the affected person may initiate cannot be deemed under international law as an effective remedy against arbitrary deprivation of liberty.
The Working Group also noted that some of the authorities competent in detention-related matters do not seem to fully realize that irrespective of the legal qualification given by national law to any form of deprivation of liberty, the safeguards against arbitrariness provided by international standards must be respected. Therefore any form of deprivation of liberty — whether linked to criminal offences, contravention of administrative law provisions, socially unacceptable behavior; mental illness; illegal immigration and the like — must be subject to judicial control.
These are the first impressions at the conclusion of the Working Group’s visit.
