The Chinese authorities do not appear to be complying even with the minimal requirements of the Criminal Procedure Law (10 day limit on detention without charge and the requirement to inform families).

In a January 1990 memorandum, Amnesty International has stated that those detained following the June 1989 crackdown on the pro-democracy movement are believed to be held incommunicado. (E/CN.4/1990/52, par. 19.) Further compounding this isolation, prisoners have been denied visits from their families, and under Chinese law, they do not have access to lawyers either until shortly before the trial. Asia Watch reported in February 1990 that "the majority of those detained since June 4 have been held incommunicado, often in secret locations (Punishment Season, p. 79).

A few examples of persons held incommunicado in connection with the post-June crackdown follow:

-Wang Ruowang, 71 years old, a famous writer and journalists, was arrested in mid-September and is reportedly being held incommunicado in #1 Detention Center in Shanghai.

-Zhang Weiguo, a journalist for the newspaper World Economic Herald in Shanghai, was seized June 20 and formally arrested on September 20 on charges of "counter-revolutionary activity." He is believed to be held incommunicado at the #1 Detention Center in Shanghai.

-Tian Qing, Deputy Director of the Institute of Music of the Chinese Academy of Sciences, was arrested on September 23 and is believed to be held incommunicado in Erlong Detention Center in Beijing.

-Han Dongfang, leader of the independent workers union, the Beijing Worker's Autonomous Union, has been held incommunicado since last June.

-Yao Yongzhan, a Hong Kong student studying in Shanghai, was arrested in Shanghai in the first half of June and was still being held in incommunicado detention as of late July. Attempts by his family to visit him were not successful and he has had no access to legal assistance. It was only in late July that the charges being brought against him were made known publicly (Ming Pao, 29 July 1989). His case appears to be just one of many.

Detention outside the judicial system

Quite apart from the legal regime of the Criminal Law and Criminal Procedure Law which regulates arrest, detention and trial within the court system, there are other methods by which persons can be lawfully detained or imprisoned in the exercise of authority conferred by laws which do not provide even the paltry and frequently flouted guarantees of the criminal law. Amnesty International recently described the situation in the following terms:

A 1957 law, which was updated with new regulations in 1979, also permits longterm detention without charge or trial: it provides for the detention of people considered to have "anti-socialist views" or to be "hooligans" in camps or prisons for up to four years for "re-education through labour." Detention orders for those subjected to "re-education through labour” are issued outside the judicial process by Public Security (police) officers.

(Note by the Secretary-General prepared for the 1990 session of the Commission on Human Rights, E/CN.4/1990, p.8, para. 18.)

There is no discussion of these provisions or of the scheme of administrative detention in the Chinese Report.

Re-education through labor camps

To date, there is little information about detainees who have been sent by administrative order to the network of re-education through labor camps. Clarification of the numbers and conditions encountered by detainees in these facilities is assuredly needed. Little is known about whether detainees at these facilities are afforded any of the procedural rights to seek remedies under Chinese law for torture and other infringements of their rights.

According to testimony obtained by the International League for Human Rights from a former Chinese police official, the guards at the re-education through labor camps engage in even more brutal maltreatment and torture of detainees than is found in the police holding centers and prisons. An excerpt from that interview follows:

Does torture take place after interrogation and confession?

Yes. Once persons are convicted, they go to labor reform camps. Torture continues there. If, for example, they run away or disobey orders, or refuse to do personal chores for the prison guards or warden, they get it. There is a famous case of a convict who escaped, was caught, returned to the reform farm, was beaten by four guards and died.

Who serves as guards at the reform camps?

The same police officials, responsible to the same police units as in the cities. there used to be one department-of Public Security-to administer the police and prison camps. Two or three years ago it was separated. But the personnel are interchangeable. Police from the city go to the reform farms for a few months. They are supposed to teach the guards there how to tone down their actions-but sometimes the guards from the cities end up tougher-they have learned new techniques from the camp guards.

VIII. THE OBLIGATION TO CRIMINALIZE ACTS OF TORTURE AND TO PROVIDE FOR

APPROPRIATELY SEVERE PUNISHMENT-ARTICLE 4

The Convention obliges State Parties to take effective legislative, administrative, judicial or other measures to prevent torture in its territory, as well as steps to prevent other forms of ill treatment from occurring. Article 6 imposes a particular obligation to ensure that all acts of torture are made criminal offenses punished by appropriately severe sentences, while article 14 requires that an adequate remedy and rehabilitation be provided.

The Chinese Government's Report devotes much of its discussion to a description of laws and regulations which prohibit torture specifically or as part of a general prohibition and which guarantee remedies for torture and other unlawful acts committed by public authorities. Two points may be made in this context. First, the formal protection provided by a number of laws does not appear to be as extensive as that required by the Convention. Secondly, many of these guarantees appear to be largely ineffectual in practice to prevent torture or to provide an adequate remedy for victims of it.

Article 4 of the Convention requires States to ensure that acts of torture, attempts to commit torture and complicity in such acts are criminal offenses under its laws. It also requires that these criminal offenses be subject to penalties which take into account the grave nature of these offenses. It is clear that not only must the law make such provision, but that the law must actually be enforced and appropriate penalties imposed in cases involving torture.a

Three areas of Chinese criminal law and procedure are of special concern as it applies to torture.5 First, while there are a number of statutory provisions which criminalize acts of torture, these provisions have a number of loopholes or exculpatory categories which may have the effect of rendering some acts of torture not subject to the full severity of the criminal to which they should be subject.

Secondly, there have been a number of cases in which public officials have tortured individuals resulting in the death of those individuals or serious injury to them. Instead of being charged under the Criminal; Law with the more serious criminal offenses of causing injury (Article 134), the defendants have been charged with lesser offenses (such as torture simpliciter under Article 136) which carry considerably less severe penalties. As a result, many defendants have been liable to lesser maximum penalties than they would have been if charged with the more serious offense. In many cases the maximum penalty for these offenses does not reflect the serious nature of their crimes.

Thirdly, the sentences actually meted out to convicted torturers often do not reflect the gravity of the offense. Often, factors are taken into account which are not appropriate to be taken into account; for example, the consideration that the defendant is a public official and that too severe a punishment would undermine public confidence in the police and other officials or the fact that the torture was inflicted in the pursuit of a "worthwhile" goal is viewed as a mitigating factor. There are many accounts of cases in which public officials who have engaged in torture have either not been punished at all, have been subjected solely to administrative punishment or have received extremely lenient sentences for their criminal acts.

a. Exculpatory or mitigating factors in the Criminal Law

One provision of the Criminal Law which gives cause for concern and which is not mentioned in the Chinese Report is Article 59, which provides:

Where the circumstances of a criminal element are such as to give him a mitigated punishment under the stipulations of this Law, he shall be sentenced to a punishment below the legally prescribed punishment.

Although the circumstances of a criminal element do not-warrant giving him a mitigated punishment under the stipulations of this Law, if, according to the concrete situation of the case, to sentence him to the minimum legally prescribed punishment is to impose too heavy a punishment, upon decision of the adjudication

committee of the people's court he too may be sentenced to a punishment below the legally prescribed punishment.

This provision confers a broad discretion, largely unconstrained by any specific criteria, to impose relatively lenient punishments on persons who have committed serious offenses including (presumably) torture. The Committee may wish to ask the Chinese Government to clarify the factors which may legitimately be taken into account (and are actually taken into account) when an adjudication committee is considering the exercise of this discretion in favor of a defendant.

The Committee may also wish to request information as to whether courts have made use of this provision in cases of torture to impose less than the legally prescribed minimum sentence and, if so, what factors influenced any such decisions. b. Laying of less serious charges

There are many cases in which public officials have been charged with less serious offenses under the Criminal Law in cases in which more serious charges would appear to have been appropriate.

A number of provisions of the Criminal Law are prima facie applicable to acts of torture carried out by law enforcement officials: Articles 134, 136 and 189.

Article 189 (reproduced in paragraph 42 of the Report) covers those cases in which judicial authorities (this includes those involved in the running of prisons) impose corporal punishment in violation of the law and regulations on prison management. Such persons are liable to be sentenced to 3 years' imprisonment if the "circumstances are serious"; if the circumstances are "especially serious," the range of possible sentences is 3-10 years' imprisonment.

Article 136 (reproduced in paragraph 7 of the Report) deals with cases in which a person extracts a confession by torture. For this crime a maximum period of impris onment of 3 years is prescribed. However, Article 136 also provides that, if a person causes injury or disability to a person by the infliction of corporal punishment, the person should be charged with the crime of injury under Article 134 of the Criminal Law and subjected to a heavier penalty.

Article 134 of the Criminal Law (not reproduced in the Report) covers “crimes of injury" and provides that “* ** if he causes a person's death, [the offender] is to be sentenced to not less than seven years of fixed-term imprisonment." Similarly, Article 143 of the Criminal Law (reproduced in paragraph 39 of the Report) provides for varying sentences for unlawful detention: a maximum of 3 years for the least serious cases, 3-10 years' imprisonment where the case involves the infliction of serious bodily injury, and a minimum period of 7 years' imprisonment in cases in which the offender has caused a person's death.

Thus, the selection of the crime with which the defendant is to be charged provides an opportunity for manipulating the maximum punishment that may be lawfully imposed.

One case that occurred in late 1987 and was described in a magazine article illustrates this manipulation ("A Law-Breaker Inside a Major Prison," Minzhu Yu Fazhi, 1988, No. 3, p.20). The article describes a case of a prisoner being beaten to death by a prison warder. The incident occurred on 8 September 1987 in the No. 1 Detachment of the Ximiao Brigade of the Jinxi Labour-Reform Coal Mine, Guizhou Province. The guilty official was Zhu Xiaofeng, 22 years old, the deputy leader of the detachment. The prisoner whom he killed was a 32-year-old thief named Shi Dexiang, then serving a two-year sentence.

The article begins by saying that Warder Zhu Xiaofeng was in the habit of frequently beating prisoners. He had a philosophy which he called "consciousness-raising" (tigao renshi): this consisted of hitting prisoners whenever they committed the slightest infringement of the regulations.

On the night of 8 September 1987, Zhu discovered that Prisoner Shi Dexiang had returned to the prison from the work-site early, without authorization. Shi had been feeling ill for several days, but had kept working anyway; eventually, he felt so bad that he left work early, even although the warders had refused to allow him to do

So.

When confronted by Warder Zhu, Shi readily apologized for having broken the rules. However:

This by no means let him escape his ill-fate: Zhu Xiaofeng let fly with his fists and gave him several punches around the ears, and then told him to kneel down. When the other people [who were present at the time] saw what was happening, they hurriedly left the office. Waiting until all the others had gone, Zhu then launched a series of punches and kicks at Shi's chest and abdomen. Zhu struck so fiercely that he injured his own wrist. Subsequently, several prisoners stated that the sound of Shi's awful cries of pain had filled them all with fear and anxiety.

After Zhu had finished beating Shi to his satisfaction, he ordered Shi, who could no longer stand up, to return to his prison cell and write out a self-examination.

Not long after returning to his cell, Shi experienced pain in his head, and felt nauseous; he also suffered a severe pain in his abdomen. Thereafter, his illness became steadily worse, and at 3 a.m. the following day he died.

According to the expert testimony provided by the forensic physician of the Guiyang Municipal Intermediate Court, Shi Dexiang had sustained multiple contusions to the soft tissue over his entire body; his ribs were broken; his abdominal cavity and spleen had been ruptured in several places, causing an accumulation of 2,000 ml. of blood all around the spleen. Shi Dexiang had died as a result of shock, induced by loss of blood caused by the ruptured spleen, which had itself resulted from externally applied force.

The article states that this case immediately aroused the attention of the local Public Security Bureau. On 22 September 1987, the Wudang District Procuracy, Guiyang Municipality, ordered the arrest of Zhu Xiaofeng. On 25 December, the Wudang District Court convicted Zhu of the crime of subjecting an imprisoned person to corporal punishment or abuse, and sentenced him to five years imprisonment.

Although the fact that Zhu received a five-year sentence is encouraging, the case nonetheless raises serious questions about the lenient, or "discretionary," use of the Criminal Law against offending state officials.

Zhu was charged and convicted under Article 189, so his sentence was within the range of sentences provided for by that article, although one would have thought that causing a prisoner's death was surely the "most serious" possible crime, and therefore deserving of something approaching a ten-year sentence.

However, it is not clear why he was not charged under Article 134, which covers crimes of injury resulting in death and which requires a minimum of seven years of fixed-term imprisonment. Unlike Article 136, Article 189 does not provide that in cases resulting in “injuries, disabilities or death" the offender be charged under Article 134. The effect of applying article 189 for Zhu would appear to be that prison officials are liable to lesser penalties than other torturers who have killed their victims. Whatever the legal justifiability of the position under the Criminal Law, such discrepancies do not appear to be consistent with the goals of the Convention. (In cases in which a public official kills a person by torture, one would expect resort to be made to Article 132 of the Criminal Law, which provides that intentional killing is to be subject to at least 10 years' imprisonment.)

Another case in which the lesser offense under Article 136 was utilized in a case in which torturers caused the death of a victim was reported in Fazhi Ribao ("Setting-Up of a Private Court-Use of Torture to Extract Confessions-Leading to a Man's Death," 23 February 1988).

The case involved the arrest and punishment of five "security officials" in Zhengzhou, Henan Province, for the torturing to death of three crippled beggars whom they suspected of having sold a child, a charge later shown to be without foundation.

On 19 December 1987, a woman had come to the Market's Security Defence Committee office to inform them that she had lost her child. On the basis of a "clue" provided by her, the officials had three men who had been begging in the vicinity of the Zhengzhou Masses Cinema: Han Zhizhou, who was crippled in both legs; and two "outsiders" to the area, named Yin Zengchao (crippled in one leg) and Li Chuanrong. The three were taken to the Security office. Once inside, Zhang Lishi and the other four security officials began to interrogate Li and Yin, trying to force them to confess to their "crimes"; they punched and kicked them, and poked and struck them indiscriminately with electric batons and other objects around their heads, necks, buttocks and hands. Li and Yin were beaten in this way until their whole bodies were covered in wounds, and they were in unbearable agony, such that they were forced to ‘admit' that Han Zhizhou knew the facts of the matter [i.e. the disappearance of the child]. Subsequently, Zhang Lishi and the others dealt with Han Zhizhou by the same methods, inflicting barbaric suffering upon him over a period, from start to finish, of more than seven hours. As a result, Han died at four o'clock the following morning.

The article concludes by saying that (at some unspecified time) the district procuracy of Zhengzhou's District had filed and investigated this case. They concluded that there was no evidence that Han, Li or Yin had been engaged in the selling of children; moreover, the actions of Zhang Lishi and the other four had constituted the crime of using torture to extract confessions (xingxun bigong). The article does not detail the punishment, but as the conviction was under Article 136 rather than Article 134, the maximum sentence that could have been imposed was clearly less

than it would have been had the defendants been charged with the more serious offense.

c. Lenient sentencing

Apart from the preferring of less serious charges, there have been many reported cases in which courts have imposed penalties well below the maximum permissible under the law in cases in which there have been serious abuses. The Report (paragraph 53) mentions one case of torture resulting in death in which a number of police officers were sentenced to terms ranging from life imprisonment to imprisonment to 2 years' imprisonment.

This case is the only specific case described in the Report and is one of a handful of cases reported in the media in which sentences of this magnitude have been imposed. However, there is a plethora of reports of other serious cases in which the sentences imposed seem relatively trivial in relation to the gravity of the circum

stances.

One example is the case reported in the Fazhi Ribao in 1988 (31 December 1988), which concerned the torturing by police of both a suspected rapist and also someone whom they falsely claimed was "a witness." In March 1986, several PSB officers from Lishi County in Shanxi Province went to Xialouqiao village to investigate a rape case. First, they kicked and punched the suspect, a man named Ren, and tied him up. Next:

They subjected a so-called witness-a healthy 32-year-old peasant named Gao Qianhu, who actually had nothing at all to do with the case-to even more savage treatment, with the result that he is now crippled in his left arm. Suspect Ren and witness Gao were made to undergo more than ten hours of illegal detention and torture."

The article does not go into detail, except to mention again the police's fuse of ropes to bind the victims, and it seems that this was what caused Gao to become crippled.

The two police officers-Guo Wanchun, deputy head of the County PSB, and Song Nan, an investigating official-were brought to trial at the Lishi County Court on 16 November 1988 (i.e. more than two and a half years after the actual incident), on charges of using torture to extort confessions. 500 people had crowded into the courtroom to view the proceedings. The article describes the contemptuous attitude shown by the accused at their trial, and also the lackadaisical approach shown by the judge himself. Despite a wealth of evidence to prove the charges of torture (the guilty PSB officers had even, on the night of the offense, made a tape-recorded account of how they had tied and bound the victim!), the judge declared Guo Wanchun to be innocent. Although Song Nan was found guilty, the judge decided for some reason "to show lenience and exempt him from criminal punishment."

However: "Three days after the trial, under pressure from public opinion, the Lishi County People's Court wrote an investigation report to the Standing Committee of the County People's Congress and to the County's Party Committee saying: "The presiding judge showed, subjectively, a lack of seriousness, and failed to give sufficient forethought to certain problems and situations that were likely to arise during the court hearing. His mastery of the proceedings was weak, and he lacked any kind of decisive guiding strategy

* *

Ön 26 November 1987 year, the Luliang District Intermediate Court criticized the trial heavily in its Court Newsheet, and the County Procuracy then formally raised a complaint about the case. (Procuratorial complaints against verdicts usually lead to retrials or appeal hearings being held.) The League is not aware of further proceedings in the case.

A disturbing aspect of this case is that at the local level, the trial court, the torture was not treated as the grave offense it was. There are frequent reports of such failures at the local level, whether on the part of the procuracy, the courts or the officials concerned who may be able to exert local influence in order to escape or minimize any punishment for their actions.

Reversal or intervention by a higher authority is by no means guaranteed, even if the victims are persistent and optimistic enough to press the matter.

The intransigence of some local officials (as well as an indication of the attitudes of some officials toward the propriety of torture is given by a case reported in Fazhi Ribao in 1988 (25 February 1988). According to the article:

On 6 April 1986, a pig was reported stolen from a local village. Xiahe police station immediately organized a "pig-finding team," and two suspects-brothers named Zhang Kunjin and Zhang Jinyou-were then taken by Officer He Deqing to the administrative office of Qigaoshi village. However, noted the article, this was done "without there being any firm evidence, and without any legal procedures whatever