The Chairperson-Rapporteur of the Working Group on Arbitrary Detention of
the United Nations Commission on Human Rights, Leïla Zerrougui, issued the
following statement today:
"The Working Group on Arbitrary Detention 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 Leïla Zerrougui,
Chairperson-Rapporteur of the Working Group, and was composed of Tamás Bán,
the Working Group's Vice Chairperson, as well as the Working Group's
Secretary, another member of the United Nations Secretariat and two United
Nations interpreters.
"It was agreed that the mission would follow up on previous missions of the
Working Group (6 to 16 October 1997, report contained in document
E/CN.4/1998/44/Add.2; and 14 to 21 July 1996, report in document
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". |
