VI. Relevant International and Domestic Legal Standards

The detention of petitioners is unlawful whether regarded through the lens of the international right to peacefully express grievances to government[180] or China's own law on Letters and Visits. The Chinese government's immediate obligation is to ensure that all individuals detained for lawful petitioning activities are released immediately.

Even if some persons detained in black jails have violated some local or national law, detaining them without legal authority or legal process is a serious human rights violation.  Extralegal, unacknowledged abduction and detention by agents of the state can also constitute the crime of enforced disappearance.

The treatment of black jail detainees in many instances also violates the prohibition on torture and cruel, inhuman, and degrading treatment, and the affirmative obligation of officials to provide humane conditions of detention, access to family and legal counsel, access to medical treatment, and protection of minors.

Petitioning is Protected

The targeting of petitioners for abduction and detention in illegal black jails violates China's Regulations on Letters and Visits implemented in 2005 to protect petitioners' interests. Those regulations protect petitioners' rights from infringement "due to overstepping or abuse of power"[181] and classify retaliation against a petitioner as a criminal act.[182] Although not specifically linked to the right to petition, the Chinese government's National Human Rights Action Plan (2009-2010) prioritizes an end to illegal, wrongful or prolonged detention, rehabilitation of victims of such forms of detention, and punishment of the perpetrators:

The state prohibits illegal detention by law enforcement personnel. Taking a suspect into custody, changing the place of custody or extending the term of detention must be done in accordance with the law. Wrongful or prolonged detention must be prevented. The state will improve the measures of providing economic compensation, legal remedies and rehabilitation to victims. Those who are responsible for illegal, wrongful or prolonged detention shall be subject to inquiry and punished if found culpable.[183]

Prohibition of Secret Detention

The International Convention for the Protection of All Persons from Enforced Disappearance ("Disappearances" Convention) prohibits secret detention by government authorities and requires that enforced disappearance be investigated and prosecuted as a serious international crime; indeed, when "widespread and systematic" it constitutes a crime against humanity under the convention and the Rome Statute of the International Criminal Court.[184] China has signed neither the Rome Statute nor the "Disappearances" Convention, which has yet to enter into force.

However, many of the principles that the convention seeks to establish as binding law were first set out by a declaration adopted by consensus of the UN General Assembly in a session with China's participation. The Declaration on the Protection of all Persons from Enforced Disappearance[185]describes and bans enforced disappearance in terms quite similar to the convention, stating the declaration should be "a body of principles for all States"[186] and establishes enforced disappearance as a norm without derogation.[187]The UN Working Group on Enforced or Involuntary Disappearances has already received documentation on enforced disappearances in China,[188] reinforcing the importance of the Chinese government eventually signing and ratifying the "Disappearances" Convention. The UN's Standard Minimum Rules for the Treatment of Prisoners stipulates that those rules apply equally to "persons arrested or imprisoned without charge."[189]

Chinese law also strictly defines and delimits the operations of prisons under the Prison Law of the People's Republic of China. The Prison Law requires the establishment of a prison to be "subject to approval of the department of judicial administration under the State Council"[190] and defines a prison as "an organ of the state for executing criminal punishments."[191] China's prisons are dedicated to "supervision and control over prisoners according to law."[192]

Due Process of Law

Due process of law requires that government officials or security forces who arrest someone identify themselves and provide the legal basis for arrest. Detainees are entitled to know the charges against them and to a speedy, predictable, and transparent process in which a court of law rules on the merits of their arrest and detention. The Universal Declaration of Human Rights prohibits "arbitrary arrest (and) detention"[193] and guarantees "full equality to a fair and public hearing by an independent impartial tribunal."[194]

The International Covenant on Civil and Political Rights (ICCPR) likewise prohibits arbitrary arrest[195] and requires that arrest and detention be "in accordance with such procedure as are established by law."[196] The ICCPR also requires that any individuals arrested or detained by police or security forces have access "without delay" to a court hearing to determine legality of detention and to order release of any detainee if detention is ruled unlawful.[197] The UN Human Rights Committee, which documents ICCPR compliance, has interpreted this provision to apply "to all deprivations of liberty, whether in criminal cases or in other cases such as, for example, mental illness, vagrancy, drug addiction, educational purposes, immigration control, etc."[198]

The necessity of due process for detainees is echoed in the United Nations' Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.[199] The United Nations' Standard Minimum Rules for the Treatment of Prisoners stipulates a formal and transparent registration process for detainees including recording of the individual's identity, reason for detention, and date/time of admission and release.[200]

The abduction and detention of Chinese citizens in extrajudicial detention facilities such as black jails are illegal under Chinese law. Article 37 of the Constitution of the People's Republic of China stipulates arrests must be conducted "with the approval or by decision of a people's procuratorate or by decision of a people's court and arrests must be made by a public security organ." Article 38 of the Constitution prohibits "false charge or frame-up" of any Chinese citizens. The People's Police Law of the People's Republic of China limits police powers of interrogation and detention strictly to those suspected of criminal offences.[201] Police powers of detention and arrest are tightly circumscribed by the Criminal Procedure Law of the People's Republic of China, which requires approval for arrests from the People's Procuratorate or a public court[202] as well as an arrest warrant which the police must display at the time of arrest.[203] Police detention cannot exceed a two-month investigation period without approval by the People's Procuratorate.[204]

Police tolerance and complicity in the illegal abduction and detention of petitioners violates provisions of the People's Police Law of the People's Republic of China as well as the Law of the People's Republic of China on Administrative Penalty. The Police Law obligates Chinese police to "prevent, stop and investigate illegal and criminal activities."[205] Police who fail to do so are guilty of "dereliction of duty" and liable for administrative sanctions and/or criminal prosecution.[206]

Access to Legal Counsel and Family Members

Detainees' right of access to legal counsel and to contact family members are also key components of the detainee rights stipulated in international law and instruments. The ICCPR requires authorities to allow detainees "to communicate with counsel of his own choosing."[207]The United Nations' Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment requires judicial authorities to ensure detainees have assistance of legal counsel[208] as well as the ability and adequate time to "communicate and consult"[209]with counsel without restriction barring "exceptional circumstances."[210] Detainees can not be denied access to either family members or legal counsel "for more than a matter of days"[211]and detainees are also entitled to communicate with and be visited by family members within "reasonable conditions and restrictions."[212]The United Nations Standard Minimum Rules for the Treatment of Prisoners also stipulates the right of detainees to "communicate with their family and reputable friends" at regular intervals.[213]

This willful obstruction of detainees' ability to contact legal counsel and friends and family is in direct violation of the Criminal Procedure Law of the People's Republic of China, the People's Police Law of the People's Republic of China, and the Prison Law of the People's Republic of China. The Criminal Procedure Law stipulates that a detainees' family or work unit must be notified of the reasons for detention and place of custody within 24 hours of detention.[214] The Police Law requires the immediate notification of a detainee's family members if detention is extended beyond 24 hours from the initial incarceration.[215] The Prison Law specifies that detainees maintain their "rights to defense, petition, complaint and accusation"[216]

Minimum Standards for Detention Facilities

Both the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and the United Nations Standard Minimum Rules for the Treatment of Prisoners stipulate minimum benchmarks for detention facilities to ensure the health and wellbeing of detainees. The Standard Minimum Rules outline a comprehensive list of guidelines which operators of detention centers should follow, including standards for sleeping quarters,[217] lighting,[218] sanitary conditions,[219] food provision,[220] and access to medical care.[221] The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment specifies the obligation of detention facilities to ensure adequate medical treatment to detainees.[222]

The denial of medical care to black jail detainees violates Chinese domestic law as well as international laws and instruments. Article 45 of the Constitution of the People's Republic of China guarantees Chinese citizens "the right to material assistance...when they are ill." The Prison Law of the People's Republic of China also stipulates that prison authorities are obliged to provide medical examinations for all new detainees[223] and allows those authorities to grant parole to "seriously ill" detainees who require medical treatment.[224]

Prohibition of Corporal Punishment and Torture of Detainees

The UDHR stipulates that "No one should be subjected to torture or to cruel, inhuman or degrading treatment,"[225] while the ICCPR prohibits "torture or...cruel, inhuman or degrading treatment or punishment."[226]The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment protects detainees from "violence, threats or methods of interrogation which impair his capacity of decision or his judgment."[227] The United Nations' Standard Minimum Rules for the Treatment of Prisoners prohibits "corporal punishment...and all cruel inhuman or degrading punishments."[228] The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment likewise requires all UN member states to "take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."[229]

Black jail detainees are routinely subjected to physical and psychological abuse, and there are reports of sexual violence. These may be severe enough to meet the definition of torture under the UN Convention against Torture and Other Cruel, inhuman or Degrading Treatment or Punishment, to which China has been party since 1988. Under this treaty;

The term torture means 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.[230]

The Convention against Torture also prohibits states from inflicting "cruel, inhuman or degrading treatment."[231]

Physical abuse of detainees also violates the Constitution of the People's Republic of China, the Prison Law of the People's Republic of China, and the People's Police Law of the People's Republic of China. Article 38 of the Constitution guarantees "the personal dignity of citizens." The Police Law obligates all Chinese police to "exercise their functions and powers respectively in accordance with the provisions of relevant laws and administrative rules and regulations.[232] The Prison Law stipulates that guards cannot humiliate detainees or violate their personal safety,[233] use torture or corporal punishment,[234] "beat or connive at others to beat a prisoner,"[235] or "humiliate the human dignity of a prisoner."[236] The Chinese government's National Human Rights Action Plan (2008-2010) prioritizes the development of measures to prohibit "corporal punishment, abuses, insult of detainees or extraction of confessions by torture[237] and obligates police and prison authorities to undertake effective measures to prohibit "abuse (and) insult of detainees."[238]