Prohibition of Torture and Exclusion of Illegally Obtained Evidence

1 January 2017

On 2009, the Executive Director of the Asia Program at Human Rights Watch, says: “The criminal justice system remains plagued by forced confessions and torture…”[2] However, it must be recognized that since 1979, when the former criminal procedure law was adopted, until the 2010’ exclusionary rules of illegally obtained evidence, and even more recently the draft of the Amendments to the Criminal Procedure Law of the People’s Republic of China, China has been taking steps to major reforms[3].

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As some scholars stated, China’s legal system is a work in progress, and the purpose of this paper is to see how that progress is taking place with respect of prohibition of torture. In terms of law reforms, there have been major changes. For instance, in 1997 the “shelter and investigation” was abolished. [4] Later on, in 2010, the exclusionary rules were enacted prohibiting the use of torture. However, the issue at stake is whether or not those laws have actually been implemented.

In 2010, in Henan province, Zhao Zuohai was released after spending eleven years in prison for a crime he didn’t commit; but was tortured and forced to self incriminate for. The guy he supposedly killed reappeared alive and the Government gave Zhao $96 000 as compensation. [5] Could that money compensate the torture he suffered and the fact that now his wife got remarried and his kids were adopted by the new husband? 6] On June this year, a draft of the amendments of the Criminal Procedural Law was submitted to the 11th National People’s Congress (NPC) Standing Committee. In relation with the prohibition of torture and the exclusion of illegally obtained evidence, it states that: “evidences and confessions collected by torture, violence, and threats should not be accepted. [7]” Procuratorial organs should investigate allegations of collecting evidence through illegal methods,[8]” “Interrogators suspected to have collected confessions or evidence through illegal methods should be criminally prosecuted. ”[9] It also states that: “all interrogations of suspects should be conducted in detention houses and the entire interrogation should be videotaped for the most serious criminal cases, according to the draft amendment. ”[10]

This essay analyzes the path that China is taking in order to prohibit torture and to exclude illegally obtained evidence. The first part will bring a definition of torture as well as a description of torture and punishment in imperial China. The second part will analyze the current law and the draft of the Amendments of the Criminal Procedural Law with respect of torture. Third part describes a case of torture took place in China. Finally, some conclusions and recommendations will be given. 1. Definition of torture

Article 1 of the Convention Against Torture (CAT) defines torture as: “Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. ”[11] According to this definition torture enclosures not only acts of confessions, but also punishment and discrimination. According to the China Society for Human Rights Studies (CSHRS) torture is a serious violation of basic human rights and human being dignity which is intolerable under modern civilization and rule of law. [12] 2. Background: Brief historical analysis of how torture was developed in China before 1979 It can be said that the use of torture in recent times reflects in certain way the vision of the past times.

On the other hand, the major changes shows an intention of depart from those imperial practices. [13] Mainly, two schools of thought have influenced today’s Chinese legal setting on punishment and torture: Confucianism and Legalism. Both of them, although with a different point of view came to the conclusion that punishment is an acceptable and in fact indispensable human institution. [14] For Confucius, the ruler must govern with “li”(rites) (modes of behavior) rather than governing in accordance with positive law and the threat of punishment. 15] According to him, the effect of punishment on society is negative and people will try to elude the rules and deceive the ruler. However, Confucius stated that punishments can be applied as a last resort when extraordinary circumstances occur. He recognized that there are some “evildoers” who cannot be affected by moral instruction and the only way to induce such persons to observe ”li” is through punishment. So, punishment is appropriate for the correction of the incorrigible. [16] However, punishment has to be exactly right. Punishment can never be just, they can only be right.

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