Wong Kai-shing

Torture today is embedded in the criminal justice system of China as in many other parts of Asia. Through examining the case of She Xianglin and several others in China, it is hoped that a better understanding of the use of torture in the country
can be attained from which present and future measures to prevent or minimise the practice can be formulated.

In 1994, the Jingzhou Intermediate People's Court convicted She of murdering his wife and sentenced him to death. He appealed to the Higher People's Court of Hubei Province, which found the evidence insufficient and the facts unclear and sent the case back to be retried again. In June 1998, the Jingshan County People's Court in the province subsequently convicted She of murder and sentenced him to 15 years in prison. On March 28, 2005, however, She's wife, Zhang Zaiyu, suddenly returned to their village to visit her family. She was alive! This startling development prompted another retrial of the case that resulted in the Jingshan County People's Court declaring She innocent of murder charges on April 13 this year.

Obviously, She was falsely convicted. How did this happen? What were the problems with the police investigation? Under police interrogation, She confessed that he murdered his wife. Why did he do so if he was innocent? How did the courts at three different levels consider the evidence during the trials and make their judgements? Why did the Higher People's Court not declare She innocent instead of sending the case back for a retrial? What must be done to prevent torture in China? All these questions are closely related to the needed reform of criminal procedures and the criminal justice system in China.

The key question in this case is the identity of the dead body. Did the police carry out a complete autopsy? The answer is negative. According to some Chinese news reports, the dead body was decomposed. The police told Zhang's family the physical characteristics of the dead body, and they found them similar to Zhang Zaiyu. There were no blood or DNA tests, however. Zhang's family subsequently asked for a further examination. The police replied that they did not have the funds to do so. Either the police did not take the use of a forensic examination seriously, or they had no resources to do so. Probably both are the cause of the deficiencies of the police investigation. As a result, the reliability of the evidence is thus greatly in doubt.

Another major piece of evidence of the police was She's confession that he had murdered his wife. What made him confess? After he was released from prison, he claimed that he was continuously beaten and not allowed to sleep for 10 days in police custody. His legs were seriously injured, and his fingers and toes were broken. It is difficult now to prove that he was tortured by the police after so many years. Nevertheless, observers have a strong reason to believe that torture was the main cause of his confession as a normal person would not confess to something that they had not done.

This case indicates that the use of torture to extort a confession is a primary cause of false convictions in China. It is not an isolated event, however. In recent years, many cases of torture have been reported in Chinese newspapers. These reports reveal that police officers employ torture to extort confessions that put innocent people in prison and create enormous suffering to torture victims and their families.

For example, the Gongren Daily reported a case involving a father and his two sons who were tortured by police officers and falsely charged of murder in the city of Zhaotong in Yunnan Province. Although they were finally acquitted by the court after three years, the livelihood of the family was deeply affected as all their money and property were used to pay for the litigation costs, the youngest son ceased his schooling and they faced discrimination by people in their village. Moreover, the police officers who tortured them have never been charged. In another case, the Legal Daily, a major newspaper on legal news, reported on Oct. 18, 2004, the conviction of a senior police officer by a court in Hebei Province for torturing a confession from a prisoner, resulting in the senior police officer being sentenced to prison for two-and-a-half years. Another case concerned the false conviction of Li Jiuming of murder in Hebei Province in 2003. He was released in November 2004 after another prisoner in Zhejiang Province admitted that he was the real murderer. On May 25, 2005, the court convicted and sentenced two police officers to two years in prison for forcing a confession from Li through torture using electric shock and pouring peppered water in his mouth.

There are a number of reasons for the problem of torture in China.

First, there is the reliance on confessions to prove a crime. To force a confession from a person in custody, police officers often resort to torture. The collection of physical evidence, especially forensic evidence, is not taken seriously or is even neglected. At the same time, the lack of funding, facilities and training of police officers to conduct forensic investigations reinforces the use of torture.

Secondly, police officers who torture suspects believe that people will tell the truth when they are tortured. However, what occurs is that in the midst of their pain suspects admit to doing whatever the interrogators want, even confessing to a crime they did not commit, as in She's case and many other cases in which torture has led to false convictions. Another attitude of police officers who resort to torture is that they presume the suspects are guilty and that criminals deserve to be treated badly. In this sense, torture is taken as a form of punishment for criminals. The notion of the presumption of innocence is still weak among police officers. Their mindset is still such that they would rather convict innocent people than let criminals go unpunished.

Third, China lacks provisions to protect the rights of suspects in police custody. Suspects do not have the right to silence and the right to the presence of their legal counsel during interrogation. It is often difficult to prove the use of torture, for suspects are commonly kept in police custody for investigation for months or even more than a year. In addition, there is no system of judicial review of the detention of suspects. Only when brought to court for trial does a suspect have an opportunity to tell the judges about the torture they have experienced in detention. However, it will be difficult for the suspect to prove that they were tortured as it took place long ago and the wounds have healed. As a result, although China has laws prohibiting torture, such as Articles 247 and 248 of the Criminal Law, they cannot be implemented effectively. Moreover, the long period of detention in police custody means a greater chance of suspects being tortured.

Fourth, illegally obtained evidence is admissible during the trial under the Criminal Procedure Law (CPL). Therefore, evidence obtained through torture is admissible as well. Although the judicial interpretations of the Supreme People's Court contained in Article 61 in The Interpretations on Some Questions of the Criminal Procedure Law provide for the exclusion of evidence obtained through torture, it is only applicable to oral evidence, not other forms of evidence. This loophole in Chinese law encourages police officers to use torture as a means to extract clues about evidence, except for oral evidence, as this evidence is admissible.

Fifth, China lacks effective supervision mechanisms to prevent torture. There are no independent complaint bodies for people to make complaints against the police, for instance, and presently, the court does not play any role in supervising the practices of the police during their criminal investigations. The people's procuratorates have the responsibility to play such a role, but they are reluctant to do so as in She's case, for example, where the major evidence in his case-the identity of the dead body and his confession-were not clear as recognised by the Higher People's Court of Hubei Province. Moreover, before initiating a prosecution, the people's procuratorate also has the responsibility to ascertain the facts and evidence of the crime submitted by the police. In addition, it has the duty to determine whether the police have carried out the investigation properly. However, in She's case, the people's procuratorate obviously did not fulfil its duties.

She's case also reveals a serious problem during the trial. When the case was sent back and tried again by the Jingshan County People's Court, the court still convicted She of murder. Unlike the previous sentence made by the Jingzhou Intermediate People's Court though, the Jingshan County People's Court sentenced him to 15 years in prison, not capital punishment. The reduction of sentence indicated that the court was not sure about the facts and evidence. In other words, it had doubts about whether to convict She. The judgement was given in June 1998, one-and-a-half years after the revised CPL came into effect on Jan. 1, 1997. Article 162(3) of the revised CPL states that, "if the evidence is insufficient and thus the defendant cannot be found guilty, he shall be pronounced innocent accordingly on account of the fact that the evidence is insufficient and the accusation unfounded." According to this provision of the revised CPL, the Higher People's Court of Hubei Province should have acquitted She instead of sending the case back for a retrial, and the Jingshan County People's Court should have acquitted him instead of convicting him. This case reflects a common practice among judges in the past-even up to now-that when judges have doubts about a case they will still convict the defendant but give a lighter sentence instead of acquitting the defendant. A primary reason for this practice is that they do not want to be seen as being indulgent toward crime. They are also afraid of offending the police and the procuratorate as the court occupies a relatively weak position among the three branches of the legal system.

In response to public concern about the cases of torture related to false convictions, the Supreme People's Procuratorate issued a regulation to videotape suspects when they are interrogated, a decision it plans to implement in all procuratorates by the end of 2006.

Moreover, the Public Security Bureau (PSB) in Guangdong Province warned heads of police departments that they would be held accountable if the mistreatment of prisoners resulted in death. In May 2005, the PSBs of Haidian in Beijing, Baiyin in Gansu Province and Jiaozuo in Henan Province carried out a pilot programme to allow the presence of lawyers during the interrogation of suspects and to videotape the interrogation. Now the courts are more inclined to follow Article 162(3) of the CPL and to pronounce innocence if the evidence is insufficient.

These are positive developments. However, to ensure that the prohibition against torture is respected, the CPL must be further revised to provide protection for the rights of suspects and effective supervision over criminal investigations. The principle of presumed innocence should be realised throughout the criminal procedure, and suspects should have the right to silence. According to Article 96 of the CPL, a suspect may appoint a lawyer only after they are interrogated by an investigative organ for the first time or from the day on which compulsory measures are adopted against the suspect. This CPL article means that a suspect cannot get immediate legal counsel after being arrested. Thus, it must be revised to provide suspects access to legal counsel and the right to the presence of a legal counsel during their interrogation. The lawful length of detention under police custody also has to be greatly shortened and limited to a reasonable period, and the court should be allowed to review the detention. Moreover, not only oral evidence, but all other forms of evidence collected through torture, should be excluded from being presented at the trial.

Furthermore, an independent complaint system against the police should be established. Comprehensive anti-torture legislation should also be enacted to implement in domestic law the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) of which China is a state party. The training of the police should be strengthened as well, permitting them to learn scientific investigation skills and to develop a proper understanding and attitude about the problems of torture and the requirements of CAT. Lastly, the government should allocate resources for forensic facilities and train police in its use in investigations.

China has much to do to resolve the problem of torture, but there are some encouraging signs that have been highlighted above. Steps should be taken to further nurture these developments so that crimes in China are no longer "solved" through torture but through much more enlightened, effective and non-violent methods that respect the rights of China's people.