[None of the recommendations that the Working Group formulated in its earlier report have been followed. No definition of the term "endangering national security" in criminal law was adopted, no legislative measures have been taken to make a clear-cut exemption from criminal responsibility of those who peacefully exercise their rights guaranteed in the Universal Declaration of Human Rights, and no real judicial control has been created over the procedure to commit someone to re-education through labour.]

29 December 2004

Summary

The Working Group on Arbitrary Detention visited China from 18 to 30 September 2004 at the invitation of the Government. The Working Group had carried out a previous visit to China from 6 to 16 October 1997, preceded by a five-day preparatory mission in July 1996. 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 its visit in 1997, and in accordance with the follow-up character of the mission, the Working Group held meetings with officials of the same ministries, institutions, departments as it had in 1997. Moreover, it visited the same cities (except Shanghai) and, with some minor exceptions, the same detention facilities as in 1997.

The Working Group visited Beijing and the cities of Chengdu, capital of Sichuan Province, and Lhasa, capital of the Tibet Autonomous Region. The Working Group visited 10 detention facilities included in a list previously submitted to the authorities. This list also included police stations, pre-trial detention centres, prisons, re-education through labour camps and psychiatric hospitals. 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 or guards and in locations chosen by the Working Group.

The report notes that legislation pertaining to the judicial organization and the legal framework governing judicial and administrative deprivation of liberty has not undergone basic changes since the Working Group's last visit. However, the Working Group recalls that China has signed the International Covenant on Civil and Political Rights, and is making preparatory steps for its ratification.

The Working Group considers that the rules and practice concerning judicial deprivation of liberty are not in keeping with international law and standards. The period of time for which criminal suspects can be held in police custody without judicial approval is too long, and the status of the public prosecutor does not meet international requirements. The Working Group doubts whether the status of the prosecutors as regulated by Chinese law fulfils the requirement toward the independence of an officer authorized by law to exercise judicial power within the meaning of article 9, paragraph 3, of the International Covenant on Civil and Political Rights.

The report further notes that placing the judiciary in a position of inferiority to the prosecution is incompatible with relevant international norms. As far as the rights of defence are concerned, the 1996 reform does not in certain of its aspects, constitute progress as compared to the previous legal framework. Access to the case file by the defence counsel during the pre-trial phase has been excessively restricted. The rights of the defence are even further restricted if the case concerns charges of endangering national security or State secrets.

There exists no genuine right to challenge administrative detention, including detention for the purpose of re-education through labour and detention in a psychiatric facility. The avenues to challenge placement in re-education through labour institutions do not satisfy international law requirements. The unduly long duration of this measure needs to be reduced and an effective remedy against the decision of the authority to placement in re-education through labour must be introduced.

The Working Group recommends to the authorities that they examine the possibility of instituting a simplified emergency procedure to allow a person detained to be brought before a judge and not only before a procurator. As far as minor administrative offences are concerned, it recommends that all conduct subject to sanction be described in great detail, and that all persons deprived of their liberty on account of administrative offences be guaranteed a public and adversarial trial. All persons placed against their will in a psychiatric hospital or disintoxication centre should enjoy an effective judicial remedy.

Lastly, the Working Group recommends the amendment of all legal provisions that could be used to sanction the peaceful exercise of rights and freedoms enshrined in the Universal Declaration of Human Rights and in the Constitution of the People's Republic of China.

According to information provided by the host authorities, legislation pertaining to the judicial organization and the legal framework governing judicial and administrative deprivation of liberty has not undergone basic changes since the Working Group's last visit. An analysis of the laws accessible through the Internet, such as the Constitution, the Criminal Procedure Law, the Judges Law, the Public Procuratorates Law and the Administrative Procedure Law,¹ supports this information.

The Working Group recalls that after its first visit to China, it reported on the organization of the judiciary, the characteristics of the Chinese legal system and the criminal justice system and, in particular, the legal framework governing deprivation of liberty.

A. The revised Criminal Law

The Working Group had identified three matters of concern: the lack of a precise definition of the concept of "endangering national security", which is applied to a broad range of offences, the criminalization of contacts and exchange of "classified" information with individuals, institutions or organizations based abroad, and the danger posed to the freedom of expression by the punishment of "control", a measure introduced in order to reduce the inmate population. The Working Group recommended that the crime of "endangering national security" be defined in precise terms and an exception be introduced into the Criminal Law to the effect that the peaceful activity in the exercise of the fundamental rights guaranteed by the Universal Declaration of Human Rights is not considered criminal.

There is no doubt that since then progress has been made, but as far as the criminal law is concerned, the situation has unfortunately not evolved and the recommendations of the Working Group have not been put into effect. The Working Group continues to receive individual communications confirming that its concerns were well founded.

The Working Group has been informed that since its last visit, dozens of interpretative regulations on the Criminal Law and on the Criminal Procedure Law have been issued by the Supreme People's Court, the Supreme People's Procurator, the Ministry of Public Security, the Ministry of Justice and local authorities. These regulations sometimes incorporate conflicting rules that allow for an arbitrary application of the law, especially as concerns State secrets and State security. In this respect, while visiting the Drapchi Prison in Lhasa, the Working Group learned with concern that the prison authorities can, irrespective of the decision of the court on this point, classify inmates convicted for endangering national security as holding State secrets and impose on them restrictions resulting from that classification.

The Working Group reiterates its previous recommendations and invites the authorities to take them into account in the course of the ongoing reform process.

B. The revised Criminal Procedure Law

While it is true that the 1996 reform constitutes a qualitative evolution as compared with the previous Law, it nonetheless appears that in certain aspects it is not in conformity with the relevant international instruments, in particular with the provisions of the International Covenant on Civil and Political Rights, which China signed and is preparing to ratify. Several aspects deserve to be reconsidered in the course of the ongoing reform process.

C. Judicial deprivation of liberty

Under international law, a person detained on a criminal charge shall be promptly brought before a judge or other judicial officer authorized by law to exercise judicial power, and shall within a reasonable time be entitled to trial or released. This requirement, which is spelt out in clear terms in article 9, paragraph 3, of the International Covenant on Civil and Political Rights, reflects the generally accepted standard of customary international law, irrespective of whether a State is a party to the Covenant.

32. To assess the conformity of this system of arrest/pre-trial detention with international standards, three issues have to be addressed: firstly, the "promptness" requirement, secondly, the "bringing" requirement and thirdly, the status of the judicial officer (i.e. the procurator) taking a decision on arrest:

(a) As to the first issue, the Working Group believes that the holding of a person in police custody for more than four to five days is problematic under the requirement of promptness. Even though, according to the law, the approval of the procurator is necessary to hold the suspect in detention beyond 24 hours, this approval is apparently taken on the basis of the case file, without hearing the suspect in person;

(b) As to the second issue, it is the view of the Working Group that the decision by the procurator to approve the suspect's arrest pending investigation, if taken, as the Working Group was informed, without the procurator hearing the suspect does not satisfy international standards. The rationale behind the requirement that the person in custody shall be brought before a court or a judicial officer is that before taking a decision on his arrest, the suspect shall be given an opportunity to argue against this decision;

(c) As to the third issue, the Working Group doubts that the status of the procurator as regulated by law in China fulfils the requirement of independence of an officer authorized by law to exercise judicial power. This opinion of the Working Group is suggested by the constitutional provision (art. 132) stipulating that the Supreme People's Procuratorate directs the work of the local people's procuratorates at different levels, and the people's procuratorates at higher level direct the work of those at lower level. A similar provision is contained in article 5 of the Public Procurators Law. As a result of this hierarchical subordination of the organs of prosecution, procurators are bound by the orders of their superiors. In the absence of any unambiguous provision stating that individual procurators are independent in exercising their power to take decisions in pre-trial detention matters, procurators do not meet the criteria of an officer authorized by law to exercise judicial power within the meaning of article 9, paragraph 3, of the International Covenant on Civil and Political Rights.

D. Supervision of the People's Procuratorates over the courts

According to the Criminal Law and the Criminal Procedure Law, the People's Procuratorates supervise judicial activities undertaken by courts in handling civil, criminal and administrative cases. The Working Group was told that procurators at criminal trials not only prosecute the cases, but supervise the proceedings. In addition, prosecutors are empowered to protest rulings or judgements on criminal cases issued by courts. The Working Group was informed that if the procurator lodges a protest, the court must retry the case.

This situation - placing the judiciary in a position of inferiority vis-à-vis the prosecution, is manifestly incompatible with relevant international norms. The prosecution is a party to the proceedings; it brings the charges and argues them before the court. It cannot at the same time be judge and party and remain impartial. It is for the court to guarantee to all parties to the proceedings, including the prosecution, the respect of the principle of legality - and not the other way round.

E. The restrictions on the right to defence

In the course of a meeting with representatives of the Bar Association, the Working Group was informed that as far as the rights of the defence are concerned, the 1996 reform does not constitute, in certain respects, progress as compared with the previous legal framework, but is even a step back. During the entire pre-trial phase, access to the case files by the defence counsel has been excessively restricted. Defence lawyers only have access to a certain amount of documents of a technical character, while they cannot review the documents and other evidence relating to the facts of the case before the opening of the trial (article 36, Criminal Procedure Law).

Where the case concerns charges of endangering State secrets, the rights of the defence are even further restricted. Under article 96 the right of the accused to be represented by a counsel of his own choosing as from the first hours of detention and the right of the lawyer to meet his or her client are subject to a preliminary authorization by the authorities in charge of the investigation. In practice, this provision appears to give rise to numerous abuses, either because the notion of State secret is not defined with sufficient precision, or because it is interpreted in an extensive manner.

The second paragraph of article 96 provides that when the defence counsel meets a detained client, the authorities in charge of the investigation can, in view of "the serious nature of the crime and when it deems it necessary", impose the presence of a representative of the "investigative organ" at the meeting. This provision is manifestly incompatible with article 14, paragraph 3 (b), of the International Covenant on Civil and Political Rights.

Finally, article 306 of the Criminal Law makes "a defender or agent ad litem" who destroys or fabricates evidence, or forces or incites a witness to change his or her testimony or to commit perjury punishable by a sentence of up to seven years of imprisonment. Article 38 adds to this provision by making "interfering with the proceedings before judicial organs" an offence. It appears that these provisions have occasionally been used to intimidate, harass, or sanction lawyers who made use of their freedom of expression in order to defend their clients before the courts.

F. Administrative deprivation of liberty

Since the late 1950s, China has known different forms of administrative detention, which have allowed people to be detained for long periods without charge or trial outside the criminal justice system. Individuals held in administrative detention are not entitled to the safeguards for criminal suspects enshrined in the Criminal Procedure Law. In 1996, the Law on Administrative Penalties was adopted and came into force; it regulates the system of administrative sanctions, including administrative detention.

Forms of administrative detention still in force include the following:

− Re-education through Labour, (laodong jiaoyang);

− "Custody and education" of prostitutes and clients implemented by law enforcement, in accordance with the decision of the Standing Committee of the NPC on "Strictly Prohibiting Prostitution and the Visiting of Prostitutes", which foresees detention for periods ranging between six months and two years (shourong jiaoyang);

− The State Council "Methods of Forced Detoxification", adopted on 12 January 1995, which allow local Public Security Bureau officials to commit, for three to six months, a drug user to a forced detoxification centre (qiangzhi jiedu);

− Administrative detention under the 1997 Law on Administrative Penalties (xzingzheng juliu);

− Work Study Schools (gongdu xuexiao), implemented to correct what is described in the Law on Preventing Juvenile Delinquency adopted on 28 June 1999 as "Seriously unhealthy behaviour that seriously harms society but does not qualify for criminal punishments".

Public Security also have the power to commit individuals to psychiatric facilities called ankang ("Peace and Health").

During its visit, the Working Group was not able to study all the above-mentioned forms of administrative deprivation of liberty; it concentrated its attention on Re-education through Labour, which is currently the most controversial form of non-judicial deprivation of liberty. In addition, for the reasons described below, the Working Group was also interested in questions related to the forcible holding and treatment in psychiatric institutions of persons of unsound mind.

G. Re-education through Labour

Re-education through Labour involves detention without trial or charge. The decision is supposed to be made by an Administrative Committee made up of officials from the bureaux of civil affairs, public security, and labour. In practice, however, public security officers dominate the decision-making process.

In its first report, the Working Group focused particularly on the re-education through labour system and pointed out the risks this form of deprivation of liberty involves for the enjoyment of fundamental rights. In its recommendations, the Working Group suggested the incorporation into the law of a categorical declaration that re-education through labour cannot be imposed on anyone for exercising his or her fundamental freedoms protected under the Universal Declaration of Human Rights, and to subject this measure to prior control by a judge, without thereby depriving it of its administrative character.

Returning to China seven years later, the Working Group found that the measure of re-education through labour still raises concerns.

The Working Group recalls that a significant number of organizations defending human rights, both in China and abroad, challenge the re-education through labour system and demand its abolition. Several sources assert that it is used to suppress freedom of expression. Some sources highlight that certain groups are over-represented in this system, such as followers of Falun Gong.

Re-education through labour has been practised for about 50 years

Under international law, anyone deprived of his/her liberty by arrest or detention shall be entitled to proceedings before a court so that the court may decide, without delay, on the lawfulness of the detention and order the person's release if the detention is not lawful. This requirement, which is spelt out in clear terms in article 9, paragraph 4, of the International Covenant on Civil and Political Rights, reflects the generally accepted standards of customary international law, irrespective of whether a State is a party to the Covenant.

Firstly, it is uncontested that irrespective of the legal qualification given to detention in such institutions by Chinese law, the system of re-education through labour involves deprivation of liberty. International law provisions and standards referred to above require that everyone deprived of his/her liberty should be given an opportunity to contest before a court the lawfulness of the detention. In this context, lawfulness means conformity with domestic law and international standards. The fact that the legal system of China classifies re-education through labour as an administrative deprivation of liberty as opposed to judicial deprivation of liberty governed by criminal law, does not affect China's obligation to ensure judicial control over this form of deprivation of liberty.

Secondly, article 10 of the 1982 regulations itself considers some of the behaviours sanctioned by placement in re-education centres as criminal in nature. Even if the Chinese authorities might be led by the good intention to provide a milder system of sanctions for petty criminals, the result of removing them from the criminal system is ultimately that they are stripped of the guarantees surrounding criminal procedure.

Thirdly, the Working Group is of the view that the arguments of the Chinese authorities, namely that there exist judicial avenues to challenge administrative decisions in a re-education through labour camp institution are, in the light of what happens in reality, of very little value.

The operation of the laws governing decision-making on placement in a re-education through labour camp is, however, highly problematic. From reliable sources, including interviews with persons affected, it is clear that in the overwhelming majority of cases, a decision on placement in a re-education centre is not taken within a formal procedure provided by law. The commission vested with the power to take this decision in practice never or seldom meets, the person affected does not appear before it and is not heard, no public and adversarial procedure is conducted, no formal and reasoned decision on a placement is taken (or issued for the person affected). Thus, the decision-making process completely lacks transparency. In addition, recourse against decisions are often considered after the term in a centre has been served.

For this reason, the Working Group concludes that no effective judicial review against placement in re-education through labour camps is available.

H. Deprivation of liberty of mentally ill people

The Working Group views with particular concern cases of deprivation of liberty of mentally ill or disabled people. This particular interest led the Working Group to use the opportunity of its visit to China to become acquainted with the legal framework and practice in this area. The current legal framework can be summarized as follows.

There is no uniform legislation at the national level on forcible admission and holding in mental health institutions. Some provisions exist in some autonomous regions and provinces, but these regulations vary from province to province and lack consistency.

The decision to deprive someone of his/her liberty by placing him in a mental health institution against his/her will, as well as to release him/her, seems to be in the hands of psychiatrists employed by the mental health institutions. No genuine avenue is available to challenge such a decision before an outside and independent body.

For offenders whose accountability is diminished or who are not liable because of their mental state, there are some 23 mental health institutions nationwide, run by public security organs (Ministry of the Interior). Before the cases are sent to a court, the decision to transfer suspected criminals to such institutions as well as to release them lie exclusively with the public security organs, without an effective remedy available to the patient.

The Working Group is of the opinion that the Chinese system of confinement of mentally ill persons in mental health facilities, which they are not allowed to leave, is to be considered a form of deprivation of liberty, since it lacks the necessary safeguards against arbitrariness and abuse. As emphasized above, international law requires that everyone deprived of his/her liberty on any ground, including health grounds, be able to challenge before a court the lawfulness of the detention.

Areas of concern

None of the recommendations that the Working Group formulated in its earlier report have been followed. No definition of the term "endangering national security" in criminal law was adopted, no legislative measures have been taken to make a clear-cut exemption from criminal responsibility of those who peacefully exercise their rights guaranteed in the Universal Declaration of Human Rights, and no real judicial control has been created over the procedure to commit someone to re-education through labour.

The rules and practice concerning judicial deprivation of liberty are not in keeping with international law and standards. The holding period in police custody of criminal suspects without judicial approval is too long, and the status of the procurator called to approve arrest pending investigation does not meet the requirements of an officer authorized by law to exercise judicial power. In addition, since the procurator is a party in the criminal proceedings, he lacks the requisite impartiality to take decisions in matters relating to arrest.

There exists no genuine right to challenge administrative detention, including detention for the purpose of re-education through labour and psychiatric confinement. The avenues to challenging placement in re-education institutions do not satisfy international law requirements.

As no law provides a clear definition of "State secrets", the Working Group is concerned about the restriction on the right to defence imposed by regulations issued by public security departments, prison administration or prosecutors when a case involves State security or State secrets.