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United Nations International Day in Support of Victims of Torture – how Chinese human rights lawyers go through torture (26 June 2021)

 

Today is the United Nations International Day in Support of Victims of Torture. Exactly 34 years ago on 26 June 1987, the UN Convention against Torture (the “Convention”) officially came into effect, which China subsequently ratified in 1988 as a State Party of the Convention. Upon the ratification, China is obliged to be bound by the articles in the Convention, meaning that it should eradicate any torture happening in its territory, and to punish the perpetrators who commit torture. Sadly, and unfortunately, it appears that China has not been progressing to proper compliance of the Convention.

 

This is supported by the fact that in recent years, CHRLCG has observed and realized that numerous human rights lawyers have been subjected to torture during detention. The infliction of torture is especially fierce in massive crackdowns like the “709 Crackdown” – which is about to mark its 6th anniversary around 2 weeks later – and the “Xiamen Gathering Crackdown” happening in around late 2019 to early 2020, where in both instances a large number of human rights lawyers were detained and arrested. 

 

How RSDL facilitates perpetration of torture and in defiance of international law

 

While torture can happen on various occasions, its most frequent use is always tied with the use of RSDL – Residential Surveillance at Designated Location (指定居所監視居住) – which finds its legal origination in Art. 75(1) of the Criminal Procedure Law. Promulgated in the revised Criminal Procedure Law in 2013, RSDL is a form of criminal measure which warrants the public security officers, in the absence of approval from the judiciary, to detain an individual in incommunicado solitary confinement up to 180 days. Just by citing national security proposition, regardless proven or not (since the reasoning does not have to be communicated), authorities need to disclose neither the whereabouts of the detainees nor any details regarding the detention whatsoever even to detainees’ family members. It should be noted that the General Assembly of UN has regarded that prolonged incommunicado detention per se can amount to a form of torture (General Assembly Resolution 68/156). 

 

That is why in 2018, 10 mandates of UN Special Procedures issued a joint letter (OL CHN 15/2018), classifying the use of RSDL “analogous to incommunicado and secret detention and  tantamount to  enforced  disappearance; they expose those subjected to RSDL to the risk of torture and other inhuman and degrading treatment and other human rights violations”. Further, RSDL is deemed by these special procedures as lacking legality for the reason that it allows the police to vaguely construe the language of the measure without needing any monitor or check-and-balance exercised by the judiciary. The joint letter also notes that RSDL has been increasingly used to place human rights defenders under enforced disappearance. 

 

Confession obtained from RSDL is admissible, victims have no means to redress

 

As identified above, RSDL is a practice which manifests a large number of elements associating with the infliction of torture. Yet, the judiciary is indifferent as to whether there is an existence of torture, for the fact that it treats confession and evidence obtained during RSDL admissible, which is totally against the China’s domestic law as stated in Art. 56(1) in the Criminal Procedure Law.

 

What is more excruciating is that persons who are tortured during RSDL has no means to redress. There is no official mechanism to allow detainees to meet lawyers to dispute the RSDL measure, save to mention the lack of system to facilitate victims to complain being tortured during RSDL. Ding Jiaxi and Xu Zhiyong, a Chinese human rights lawyer and a legal scholar who are currently detained, have communicated repetitively to their defence lawyers about being tortured during RSDL, but no action has been taken whatsoever by the authorities to investigate the matter, in total defiance of promulgated laws. Chinese human rights lawyer Chang Weiping, who has hitherto remained incommunicado, was even sent to RSDL for the 2nd time shortly after he disclosed on social media being tortured in his 1st RSDL during which permanent injury was constituted on his right hand. 

 

Way Forward

 

Article 2 and 16 of the UN Convention against Torture stipulates that prohibition of torture and other cruel, inhuman or degrading treatment or punishment is absolute and non-derogable. Yet, more than 32 years after its ratification, China still seems not binding itself in eradicating the perpetration of torture. Rather, after the promulgation of RSDL as a criminal measure, the adoption of torture, enforced disappearance and arbitrary detention appears even to be endorsed by the authorities and widely exercised.

 

We would like to take the opportunity from this International Day in Support of Victims of Torture to show our grieve and respect to human rights lawyers who have once being the victims of torture. It is hoped that China can fully enshrine and fulfil its international legal responsibility in eliminating torture happening in its territory, and to strive its best to provide a safe and just working environment to human rights lawyers.

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