“A journey of a thousand miles began
with a single step” (千里之行，始于足下).
1. Introduction
From the Western point of view
China’s Criminal Justice System has a large number of deficiencies[1]. The case of prohibition of torture and
exclusion of illegally obtained evidence is not exempt from those
criticisms. On 2009, the Executive
Director of the Asia Program at Human Rights Watch said: “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]. 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 1996
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. Currently, the majority of the cases are more
or less like the case of Zhao Zuohai.
Zhao was a Henan resident that in 2010 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.[5] But, stating the Chinese proverb mentioned
above: “千里之行，始于足下, there is the
Ningbo case. In this case a Court in a remarkable
resolution decided to denied the use of the suspect’s confession because the
prosecutor didn’t prove that the confession made by Zhang Guoxi (章国锡)
was obtained in legal terms.[6]
In order to clarify this situation, 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]"
"Prosecutorial 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 taken by
China 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 (international and national), the exclusionary rules,
and the draft of the Amendments of the Criminal Procedural Law with respect of
torture. Third part describes two judicial cases of torture in China, the
Ningbo case and a case where the suspect died because of the torture committed
by policemen against him. 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. The China Society for
Human Rights Studies (CSHRS) states that torture is a serious violation of
basic human rights and human being dignity which is intolerable under modern
civilization and rule of law.[12]
As it is mentioned later on, the
reforms made by China could be seen as steps taken to comply with the CAT. However, some scholars stated that main issue
is that torture in Chinese law is still defined as the use of “physical” force
which has serious consequences, resulting in permanent injury or death, to
coerce a statement or confession.
Therefore, torture is rarely prosecuted in China. Moreover, it has been said that it actually encourages
officials to rely on torture in state of taking proper investigative
techniques.[13]
- HISTORICAL ANALYSIS OF HOW TORTURE WAS DEVELOPED IN
CHINA BEFORE 1979
China
is a country with a deep tradition legacy.
Certain legal mechanisms that are used now have been influenced by legal
traditions of imperial times. For this
reason, it can be said that the use of torture in recent times reflects in
certain way the vision of the past times.
And maybe the major legal changes that we see now show an intention of
departing from those imperial practices, especially with respect of torture. [14]
Mainly,
two schools of thought have influenced today’s Chinese legal setting on
punishment as torture: Confucianism and Legalism. Both of them, although with a different point
of view came to the conclusion that punishment (as torture) is an acceptable
and in fact indispensable human institution.[15]
The
concept of punishment in imperial times is different from the modern one. Punishment in old times refers mainly to
“corporal punishment.” For instance, the
Chinese character for punishment is xing,
which according to the famous etymological dictionary of the Later Han Dinasty,
by Xu Shen, defines as to cut a throat.[16]
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.[17] 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.[18] However, punishment has to be exactly
right. Punishment can never be just,
they can only be right. The greatest
danger, according to him, lies in a ruler’s inclination to use punishment
excessively. Then, the notion of right
punishment is actually meant to restrict the ruler’s discretion in his use of
punishment. One theory that we can apply
here is that confession by the accused could be considered as the right way to
know what the exact punishment must be.
On
the other hand, legalist theory states that rules, the use of physical force
(torture), and a uniform administrative apparatus are necessary to govern a
State. The standards in written law applied to everyone, irrespective of rank
or relationship. The legalist conception of punishment recognized only one
purpose of punishment: deterrence. Han
Feizi defined punishment (xing) as the infliction of death or torture upon
culprits.[19] The use of punishment serves to protect and
defend the existing order as to keep people in check by threaten them. It is this fear that keeps the government’s
subjects from transgressing public laws.
The punishment may not fit the crime, instead it can be harder. Therefore, it can be said that the legalists
actually promote the use of torture. However, the legalists always believe that the
use of punishment was a temporary measure.
After
the third century B.C., Xunzi in his essay “Rectifying Theses” recognized that
a balanced punishment will generate order within the society. According to him, punishment is capable of transmitting
values to people. His attempt to
reconcile Confucianism with legalism was very influential for later
dynasties. For instance, the Tang Code,
and the concept of the “ten greatest abominations” represent the behaviors that
were against Confucianism. In the cosmological view and the role of punishment
in traditional Chinese law, Qin official attended to fine tuning of punishment
of proper punishing for offenses helped maintain cosmic harmony.[20]
For
instance, since ancient times China’s sources have mentioned the system of
punishments called the wu xing or
five punishments. The five punishments were tattooing, amputation of the nose,
amputation of one or both legs, castration, and the death penalty. However, the
implementation of the punishments was carefully controlled by the central
authorities.[21]
During
those times when there was no evidence in a case, the punishment was
reduced. Therefore, as it was stated by
Confucius, officials needed to undertake a careful investigation of the case,
to make sure that the crime receives a right punishment. This was important to determinate not only
whether the accused committed the crime but also whether there were mitigating
circumstances that might justify a reduction of the sentence.[22]
There
was an elaborate procedure system in order to guarantee that the government
officers don’t miscarriage justice by arbitrarily use violence. For instance, in the Qing period, the
government carried out a detailed rules and laws about how to regulate
punishment so to not be arbitrary or abusive.
Also, when the state knew that there were some irregularities, it
conceded amnesties and reduction of punishment in order to release the pressure
on the criminal system. The law
specifically stated how officials shall apply the law and punishment. The Qing code specified the number of crimes
that involved the faulty imposition of criminal punishments. For instance Art 396 “Intentionally
incarcerating law abiding persons and putting them to the question” (interrogation
under torture) and Art 410: Exposing injustices and misapplication of the law.[23]
In
late imperial period, the administration of justice was in charge of an
extensive and elaborate bureaucracy so to deal with criminal cases in specific
time. The investigation process was
inquisitorial. The magistrate had to ascertain
the truth from the accused as well as from the witnesses and from the given evidence.
However, one of the main characteristics was that time limit on investigation
was very important. So, officials were
punished for breaches of the standard procedure.
During
this period, confession of guilt was a requirement. A confession serve two purposes: (1) it was supposed to establish an objective
truth, which the magistrate had to find out in the course of his investigation,
and (2) it also demonstrated to officials that the offender had started to be
aware of his crime and was on the way to repenting. Therefore, before the case could be closed by
the magistrate, there was a need of a confession by the accused, irrespective of
the evidence or allegations of witnesses.
The law stated that the magistrate cannot pronounce a sentence until the
accused confessed. As it was mentioned
before, the officials had strict time limits for each case. Therefore, the use of coercive means was allowed
in cases where the accused refused to admit guiltiness. To extract a confession, torture was legally
permitted, even for suspects or witnesses.[24]
The
magistrate was allowed to use the following treatments: twisting of ears, slapping,
or beating, pressing sticks (jiagun), which were applied to the shins, ankles
or fingers, making the accused kneel on an iron chain, and head-squeezing
bands. However, to prevent the uncontrolled
application of legal torture and to keep it legal, torture could only be used
after enough evidence had been gathered by the investigation. As it
can be seen, the law was concern about the miscarriages of justice that the
abuse of power can generate, therefore, officials were rigorously penalize for
violating the regulation and the scale of punishment for those offence was
high. Qing officials were well aware
that the accused could make false confessions in order to shorten or avoid the
tortuous treatment. The Qianling emperor warned his officials
that confessions obtained by jiagun and cudgel are not necessarily entirely
reliable. The elaborate and redundant
procedures for adjudicating and sentencing for capital crimes shows a serious
concern for justice, a diligent search for truth, and a sincere regard for both
victim and offender[25].
Since the end of the imperial era in
1911, China has struggled to create a workable legal system. The nation’s legal
institutions had very little opportunity to develop during much of the
twentieth century amidst the chaos of civil wars, warlords’ periods, World War
II, and disruptive political campaigns.[26]
The last and most chaotic of these
political movements was the Great Proletarian Cultural Revolution, which began
in the mid-1960s and lasted through much of the 1970s. During the Cultural
Revolution, virtually all legal institutions were abolished. There were no
courts, no prosecutors, no lawyers, and no law schools. Since the reform era
began in 1979 under Deng Xiaoping, legal institutions have slowly been
reestablished. Law schools reopened and
judicial and Prosecutorial institutions were recreated.
3. LEGISLATION FROM 1979 TO DATE AND THE DRAFT OF THE AMENDMENTS
IN REFERENCE TO THE PROHIBITION OF TORTURE AND THE EXCLUSION OF ILLEGALLY
OBTAINED EVIDENCE
As stated in the introduction of this essay, the Criminal
Justice System in China is recent in comparison with other systems in the world. The former criminal procedure law was adopted
on July 1979, and became effective on 1980.[27] In terms of law making on the prohibition of
torture and the exclusion of illegally obtained evidence, regulation have
passed through major reforms since then.
3.1 INTERNATIONAL PROVISIONS
In the international sphere China has
ratified several instruments that refer to the prohibition of torture, such as
the United Nations Convention Against Torture
(CAT), and the Convention of the Rights of the Child. It has also signed the International Covenant
of Civil and Political Rights (ICCPR). [28] In China, although these provisions cannot be
quoted in decision of the courts, they must be taken into account in the
implementation of the existent national law.
Torture is not only prohibited under international law
but it is considered to be a violation of human rights[29].
Besides these international legal
prohibitions against torture, abuses in the use of torture are closely
monitored by NGOs such as Amnesty International
and the International
Rehabilitation Council for Torture Victims. For instance, Amnesty International estimates
that at least 81 world governments, among them China, currently practice
torture, some of them openly.[30]
3.2 NATIONAL PROVISIONS
First, the Chinese Constitution
explicitly prohibits torture. In its Art
37 it states that: “the freedom of person of citizens of the People’s Republic
of China is inviolable. No citizen may
be arrested except with the approval or by decision of a people’s prosecutor or
by decision of a people’s court, and arrests must be made by a public security
organ. Unlawful deprivation or
restriction of citizen’s freedom of person by detention or other means is
prohibited: and unlawful search of the person of citizens is prohibited.[31]”
In the Chinese Criminal Procedure
Law, Art. 12 and Art 43 establish that anyone shall be found guilty without
being judged as such by a People’s Court according to law. Moreover, it clearly indicates that extorting
confessions by torture and collecting evidence by threat, enticement, deceit or
other unlawful means is prohibited.
Conditions must be guaranteed for all citizens who are involved in a
case or who have information about the circumstances of a case to objectively
and fully furnish evidence and, except in special circumstances, they may be
brought in to help the investigation.
However, Art. 43 does not exclude unlawfully obtained evidence. There is no for breach of these rule unless
the circumstances are that serious that it can constitute a crime.[32]
A reaffirmation of these statements
is also found on Art. 61 in the Interpretation of the Supreme People’s court on
some issues concerning the implementation of criminal procedure law of PRC and on
Art 265 in the Rules of Criminal Procedure of the People’s Prosecutor.[33]
3.2.1
The
police:
Some scholars see the “Chinese
Police” as very powerful institution in China’s criminal process for three
reasons: (1) the police have an important place in Chinese politics. Until late 1970s the Minister of Public Security
played an important role within the CPC leaders. Although during the reform period its power
was decreasing, in regional levels is still dominant. The chief of policy is a member in the
Standing Local Committee, a chairman of the local PLC, and a deputy governor in
the regional government. (2) the
criminal process is structured in such a way that the police play a dominant
role. The law in certain way encourages
the police to ascertain the true facts of an offense with little regard to
procedural rectitude. In practice, the
files prepared by the police of an investigation made of a case become of vital
importance for the entire prosecuting process. (3) The police can use
administrative penalties in order to avoid the criminal procedures and possible
responsibilities.[34]
The procedural requirements enacted
in 1979 for detain a suspect were, in practice, almost impossible to be
enforcing by law.. Because of that, the police apply a system called “Shelter
for examination.” This mechanism allowed
the police to shelter the suspect for a period of maximum 3 months. Although it was directed for a specific kind
of crime, the police usually arrest all kind of criminal suspects. The police use to hold in custody the
majority of the accused without taking into account the requirements imposed by
the criminal procedure. Although now the
shelter of examination has been stopped, some scholars argue that the abolition
actually turn some elements of this mechanism into licit practices.[35]
As the rule of law is for major
importance nowadays in China, there is a recurring emphasis of socialist
legality. Socialist legality
establishes among others, that the police power must come from law and it shall
be applied according to law. Therefore,
since 1986 there has been improving measures to control the police, such as
judicial review of the police work. For
instance, under the current Police Law, Article 22 states that policemen may not
commit acts of extortion confession by torture or subject criminals to corporal
punishment or maltreat them; and to illegally impose punishment or collect
charges. The other two important institutions in Criminal Procedure Law are the
Prosecutor and the Court. Under the Judge
Law, Article 30, and the Public Prosecutors Law Art 35, judges and
public prosecutors may no export confessions by torture.
Most of the criminal offenses
committed by government officials are investigated directly by the Prosecutor. The prosecutor’s
anti-corruption unit conducts investigations of bribery, embezzlement, and other public corruption.
The prosecutor also has a Government employees’ misconduct unit, which investigates
other criminal conduct committed by government workers in their official
capacity.[36]
The crimes investigated by the Prosecutor are seven crimes related to torture:
(1)the crime of unlawful detention, (2) the crime of illegal search, (3) the
crime of retaliation and frame-ups, (4)the crime of extorting a confession by
force, (5) the crime of extracting testimony from witness by violence, (6) the
crime of abuse of inmates, and (7) the crime of abuse of subordinates.[37]
3.3 EXCLUSIONARY RULES
In June 2010, the China’s Supreme
People’s Court, the Supreme People’s Prosecutor, the Ministry of Justice and
top law enforcement agencies issued the “exclusionary rules on the use of evidence
obtained through torture.” The main aim
of these rules was to exclude evidence from a case when the prosecutor could
not show that there was no use of torture and it was legally obtained.[38]
In one hand, the exclusionary rules
are clear that when the issue of illegal evidence is raised and the prosecution
fails to present sufficient and reliable evidence demonstrating the legal
acquisition of confessions, or where the prosecution has presented some
evidence but there is still doubt, the challenged confessions cannot be the
basis of conviction. On the other hand,
the unclear context of the Rules gives a vague definition on how much evidence
a defendant must present in order to initiate an investigation into the
legality of evidence provide by the prosecution. Also, it is not clear on what kind of proof
the prosecution must offer to dismiss any doubt about the legality of its
evidence proofs. Although the Rules mention that the prosecution should comply
with court requests to present evidence such as records and recordings of
interrogations and call even investigatory personnel to testify. However, this
depends on the Courts. Also the Rules
are vague when it refers on what kind of torture is penalized. Whether it only includes physical violence or
minor torture such as use of exhaustion and stress positions, might merit
exclusion[39].
3.4 THE DRAFT OF
THE AMENDMENTS OF THE CRIMINAL PROCEDURAL LAW SUBMITTED TO THE 11TH NATIONAL
PEOPLE'S CONGRESS (NPC) STANDING COMMITTEE
Although there were some cases of
actual implementation of those rules, such as the Ningbo case or the cases on
2010, where Beijing pledged to clamp down on inmate abuse, and about 1,800
policemen were suspended,[40]
some scholars argue that the actual implementation of the rules mentioned above
has been very poor. For that reason, the
draft tries to clarify and make those rules enforceable in order to be able not
only to prevent a possible commission of torture but to punish when torture has
been committed.
The draft incorporates the exclusionary rules of illegally
obtained evidence, and establishes privilege against self-incrimination,
brought in the suppression hearing.[41]
In the specific case of preventing
torture and coercive confession, Amendment 49 of the draft holds that audio or
video recording of questioning sessions shall be compulsory for those suspected
of crimes punishable with life sentence or the death penalty, and optional in
all the other cases.
The most important Amendments in relation to torture are
Amendments 36 and 39. They provide for a
prompt transfer of criminal suspects to detention centers after being taken
away to avoid torture occurred prior to detention. Through Amendment 46, the draft proposes that
interrogation should be conducted within the detention center once the suspect
has been detained there. Supposedly, in the detention center the control and
supervision is stricter, therefore if the interrogation is to be done there, it
makes more difficult for officials to torture suspects there. Torture occurs mostly during the period from
when the suspect is taken away to the point when the suspect is formally
checked in at a detention center. This
is conducted by a local or even by security guards. If approved, these measures would take an
important role in prevention pre detention torture.[42]
In the case of illegally obtained evidence, the draft has
incorporated what the 2010 exclusionary rules provided. They state that illegal oral testimonies include confessions obtained through
illegal means such as extorting confessions through torture as well as witness
testimony or victim statements obtained through illegal means such as use of
violence or threats. [43]
One of the main incorporations of this draft is that it states that forced self-incrimination
will be strictly prohibited. In fact, extorting confessions by torture is
already prohibited but the changes made this time clearly state that a
suspect's rights must be protected.
Therefore, criminal suspects are now protected from self-incrimination. [44]
4. PRACTICAL CASES ON HOW THE LAWS THAT PROHIBIT TORTURE ARE
APPLIED IN CHINA
As
it was mentioned before, several cases can exemplify how torture is used by the
authorities in China in order to make the suspect to confess. However, the following cases exemplify how
Courts react “positively” when they have to deal with a case of torture
committed by policemen.
1) The Ningbo case is a
case of bribery. Zhang Guoxi (章国锡), an official from a
local construction administration project, was accused of accepting $12,000
over four years. The “torture” he was victim of was not one of those cases that
call the attention of the public because of its brutally. He got a bruise on his arm and was
questioning during nights with short breaks, and during his pre-trial
confinement, he was assigned to work long days assembling strings of colored
lights. At the end, and because of these torture measures, Zhang confessed to
several instances of accepting bribes. But, during the trial he claimed to be
innocent[45].
The remarkable act of
the Court I this case is that despite the power of the police and prosecutor
institutions, it followed the directives of the exclusionary rules. The
judgment addresses the case’s procedural and factual disputes separately, and
places the procedural issues before the substantive reasoning. As a proof that the interrogations were held
in a legal way, the prosecution offered signed letters. However, the Court demanded more specific
evidence. Moreover, the Court even went
to the detention center to ask for the records and recording videos of Zhang’s
interrogation process. However, the
prosecution only played edited videos of the part where Zhang confess guilty,
and refused to play the entire videos stating that it would reveal state
secrets and waste too much time.[46]
In its resolution, the
court did not find Zhang to be entirely innocent, but did release him without
further punishment. As the Court took the confession as illegal, it found
that the remaining evidence was insufficient to prove Zhang guilty of accepting
many of the bribes alleged. For the rest of the allegations, the Court found
that they were minimal. The prosecution and the defendant appealed the ruling
and currently the case is in the higher court. Although it is one small case,
it does demonstrate that a court can respect the law.[47]
Prosecutors, charged
with the initial investigation of corruption cases like Zhang’s, complain that
proof of bribery is simply impossible without a confession, and that this leads
to overly aggressive interrogation. Following this decision, many prosecutors
across the country temporarily suspended corruption investigations while
investigators reviewed their records to determine if inappropriate tactics had
been used and to reconsider how to proceed. The draft revisions to the CPL
offer many new interrogation techniques, such as secret wiretaps, that were
previously unavailable to prosecutors and might help remedy this evidence
gap, and this case may stimulate further discussion in this area as well.[48]
2) The second case is a case of crime
of willful and malicious injury and extorting confessions by torture
perpetrated by four policemen. On 2007,
in Wuzhong City, Shao Qingqing was arrested under the suspect of forcible
seizure and pillage by the police in Yuanzhou.
During the interrogation, the policemen extorted confessions through
violent means such as tying him up by rope, kicking his chest by foot and
beating his chest and back by baton, etc. for four hours. The suspect still arrested, started to
present symptoms of extreme pain all over his body. In few weeks, after been seen by a doctor,
his situation deteriorated and he died. The medico legal identification stated
that Shao Qingqing died from respiratory and circulatory failure due to
pulmonary contusion, secondary pulmonary abscess and multiple organ infection
all over the body, since his chest and back suffered from blunt external
strikes.[49]
The policemen involved in this crime
were prosecuted and investigated first by the Intermediate People's Court of
Wuzhong City, and later by the Higher People’s Court of Ningxia Hui Autonomous
Region.
In accordance with provisions of Article 247,
Article 234, Paragraph 1 of Article 25, Paragraph 1 and Paragraph 4 of Article
26, Article 27, Article 72 and Paragraph 2 and Paragraph 3 of Article 73 of the
Criminal Law of the People's Republic of China, the Intermediate People's Court
of Wuzhong City determinate that the defendants were liable, therefore they
were sentences to a sentenced to a fixed-term imprisonment.[50]
The appeal in the Higher People's
Court of Ningxia Hui Autonomous Region seconded the resolution made by the
First instance. It stated that the
judgment of the first instance was clear in fact-finding, sufficient in
evidence, correct in conviction, proper in sentencing, legal in procedure, and
correct in the application of laws.
Therefore, in accordance with provisions of Article 189 (1) of the
Criminal Procedure Law of the People's Republic of China, the Higher People's
Court of Ningxia Hui Autonomous Region reaffirmed the judgment made by the
Intermediate Courts.
5. Conclusions and recommendations
-
In
order to analyze how torture is used in a certain country, it is important to
(1) take into account several factors, such as historical and cultural aspects,
and (2) to see the solution more than to see the problem. In China there is
still a lot to do with respect of torture and illegally obtained evidence,
however, it is important to recognize that China has been taking some measures
in order to improve its current situation.
-
On
paper, since 1979, when the former criminal procedure law was adopted, until
the recently the draft of the Amendments to the Criminal Procedure Law of the People’s
Republic of China, there has been major improvements. However, in terms of actual implementation of
the law, China has been taking small steps.
-
It
can be say then that the use of torture in recent times reflects in certain way
the vision of the past times. For that
reason, the Government should take into consideration what Confucius stated
with respect of finding a right punishment.
As Confucius said, officials needed to undertake a careful investigation
of the case, to make sure that the crime receives a right punishment, in order
to determinate not only whether the accused committed the crime but also
whether there were mitigating circumstances that might justify a reduction of
the sentence.
-
The
future Amendments to the CPL should take into consideration the aspects
considered in the Ningbo case. Although
it represents an exception on what happen in Courts, its remarkable judgment
should influence in the adoption of the Amendments to the CPL by clarifying
once for all the rules to apply by government officials.
-
The
self confession should be eliminated as a determinant evidence to incriminate
the suspect. As the confession is a
demonstration that the offender had started to be aware of his crime and was on
the way to repenting, it should actually be rewarded by legally promoting a
confession, maybe by offering a reduction of the punishment. Also suspects should have early access to
lawyers.
-
Finally,
all of these measures won’t mean that China is losing power. Actually, it will improve its international
image as modern society that respects the rule of law.
[1]
See more: Ira Belkin, China’s Criminal Justice System: A work in progress.
Washington Journal of Modern China, page 61. http://www.law.yale.edu/documents/pdf/chinas_criminal_justice_system.pdf
[2]
See more: www.hrw.org/world-report-2010/china
[3]
Further information in the third part of this essay.
[4] Ibid, Note 1. This
process consisted on police holding a suspect indefinitely while investigating
the person's true identity.
[5] TINI TRAN
Associated Press Write, 05.14.2010
[6]
Journal Chinese Law and Policy, Oct, 2011 www.chinalawandpolicy.com/tag/Ningbo
[7] Amendments to the Criminal Procedure Law of the
People’s Republic of China (Draft), Amendment 17
[8]
Ibid Note 7. Amendment 18
[9]
Ibid Note 7. Amendment 46
[10]
Ibid Note 7. Amendment 49
[11] Article
1 of the Convention Against Torture (CAT)
[12]
China Society for Human Rights Studies, Challenges and Problems on Chinese work
against torture, For examination of the
State Report of the People’s Republic of China on 41th Session of the CAT, 2008
http://www2.ohchr.org/english/bodies/cat/docs/ngos/CSHRS_China_41.pdf
[13] Report
on Implementation of the Convention Against Torture in the People's Republic of
China, Prepared to Assist in the Assessment of the Third Periodic Report of the
People's Republic of China on Implementation of the UN Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[14] Klaus
Mühlhahn, Criminal Justice in China – A History, Cambridge: Harvard University
Press 2009. "The Right Degree of Pain: Imperial China", pp.14-57.
[15]
Ibid
[16] Derk
Bodde, Clarence Morris, Law in Imperial China: Exemplified by 190 Ch'ing Dynasty
Cases, University of Pennsylvania Press, 1971, Part One, Preliminary Essay on
Concepts and Practices, I, Basic Concepts of Chinese Law, pp.15-51.
[17] Edward
T. Williams, "Confucianism and the New China," The Harvard
Theological Review, Vol. 9, No. 3 (Jul., 1916), pp. 258-285.
[18]
Ibid
[19]
Ibid Note 14 and John W. Head and Yanping Wang,Law codes in dynastic China: a
synopsis of Chinese legal history in the thirty centuries from Zhou to Qing,
Carolina Academic Press, 2005. Chapter I, The Long Reach of Chinese Law, pp.
3-22; Chapter II, Confucianists and Legalists, pp. 23-60.
[20]
Ibid Note 14
[21]
Ibid Note 19.
[22]
Ibid Note 14
[23] John
W. Head and Yanping Wang,Law codes in dynastic China: a synopsis of Chinese
legal history in the thirty centuries from Zhou to Qing, Chapter IV. B. The
Tang Code and Its Setting. pp. 115-136; Chapter VI. B. pp. 192-226 and Note 14
[24]
Ibid Note 14
[25]
Ibid Note 14
[26]
Ibid Note 1 See more: Ira Belkin, China’s Criminal Justice
System: A work in progress. Washington Journal of Modern China, page 61. http://www.law.yale.edu/documents/pdf/chinas_criminal_justice_system.pdf
[27]
Fair Trial Standards in China, Mike Mc Conville and Liling Yue, page 2.
[29]Ibid
Note 2 also, it is declared to be unacceptable by Article 5 of the UN
Universal Declaration of Human Rights
[31]
Art 37 Constitution of the People’s Republic of China
[32]
Art 12 and 43 Chinese Criminal Procedure Law
[33]
Art 61 Interpretation of the Supreme People’s court
[34]
Comparative Criminal Law and Enforcerment: China http://law.jrank.org/pages/643/Comparative-Criminal-Law-Enforcement-China-Concept-crime.html
[35]
Ibid page 6
[36]
Ibid Note 1 See more: Ira Belkin, China’s Criminal Justice
System: A work in progress. Washington Journal of Modern China, page 61. http://www.law.yale.edu/documents/pdf/chinas_criminal_justice_system.pdf
[37]
Ibid 12, China Society for Human Rights Studies, Challenges and Problems on
Chinese work against torture, For
examination of the State Report of the People’s Republic of China on 41th
Session of the CAT, 2008 http://www2.ohchr.org/english/bodies/cat/docs/ngos/CSHRS_China_41.pdf
[38] Jeremy Daum , Excluded : The Zhang
Guoxi Case, USA Asia Law NYU, Oct, 2011
[39]
Ibid
[41]Draft
of the Amendments to the PCL
[42]
Ibid
[43]
Ibid Note 2
[44] http://www.china.org.cn/video/2011-08/25/content_23280002.htm
[45] Jeremy Daum , Excluded : The Zhang Guoxi
Case, USA Asia Law NYU, Oct, 2011
[46]
Ibid
[47]
Ibid
[48]
Ibid
[49] The People's Procuratorate of Wuzhong City v.
Chen Lihong, Li Manlin, Xiong Zhaoqi, Xu Erxi, and He Yiqing 【案例标题】陈利宏、李满林、熊兆奇、徐二喜、何义清故意伤害、刑讯逼供案 【法宝引证码】 CLI.C.171494(EN)
[50]
Ibid
