Proposed Law Would Permit Enforced Disappearances
September 1, 2011
The Chinese government’s proposed legislation would give the security apparatus free rein to carry out ‘disappearances’ lawfully. Legalizing secret detention puts detainees at even greater risk of torture and mistreatment.
Sophie Richardson, China director at Human Rights Watch

(New York) – Proposed legislation in China to empower the security apparatus to detain criminal suspects secretly for up to six months in undisclosed locations would be a major setback for basic human rights, Human Rights Watch said today. Chinese human rights activists, lawyers, and legal experts have strongly opposed the measure, which would violate China’s international legal obligations.

“The Chinese government’s proposed legislation would give the security apparatus free rein to carry out ‘disappearances’ lawfully,” said Sophie Richardson, China director at Human Rights Watch. “Legalizing secret detention puts detainees at even greater risk of torture and mistreatment.”

Under proposed revisions to the Criminal Procedure Law, which the government made public on August 30, 2011, law enforcement authorities would be allowed to place suspects in detention for up to six months at a location determined by the police in cases regarding state security, terrorism, or serious instances of corruption. The revisions would permit law enforcement authorities to keep this detention secret if they believed notifying relatives or a lawyer could “hinder the investigation.”

The proposed legislation could also lead to a formalization of house arrest – “soft detention” in police parlance – which is routinely imposed on activists and dissidents, Human Rights Watch said.

The Chinese government already routinely uses state security charges against perceived critics and dissidents, and the incidence of enforced disappearances has sharply risen in recent years. The government justified the detention in secret locations of the Nobel Peace Prize Laureate Liu Xiaobo in 2009 and the outspoken artist Ai Weiwei in 2011 by claiming they had been put under “residential surveillance.” In both cases police denied them access to a lawyer and refused to inform their families of their whereabouts.

“Legalizing a regime of secret detentions would poison the judicial system and seriously set back hopes of moving toward the rule of law,” Richardson said. “Giving the security apparatus these additional powers may make it impossible to take them back in the future.”

Under international law, a state commits an enforced disappearance when its agents take a person into custody and then deny holding the person or fail to disclose the person’s whereabouts. “Disappeared” people are often at high risk of torture, a risk even greater when they are detained outside of formal detention facilities such as prisons and police stations. Family members and legal representatives are not informed of the person’s whereabouts, well-being, or legal status.

Human Rights Watch has in recent years documented enforced disappearances in Xinjiang and Tibet in the wake of protests in those regions, in illegal detention facilities known as “black jails” in Beijing and other cities, and of well known activists the government has wanted silenced, such as the human rights lawyers Teng Biao and Tang Jitian.

The proposed measures would dramatically increase the risk of torture and ill-treatment, already chronic in China, Human Rights Watch said. Suspects would be detained in locations not administered by the judicial system, and thus not subject to detention center or prison regulations. Suspects also would be unable to challenge their detention in court, since they would not have access to a lawyer.

In recent days, Chinese state media have claimed that the revisions were designed to improve the protection of human rights and that the powers to carry out secret detentions would be supervised and used only in exceptional circumstances.

Yet the police are virtually unaccountable. Their authority is far greater than that of the courts or the procuratorate (the state prosecution), the body technically in charge of supervising “residential surveillance.” China’s judicial system is statutorily under the leadership of the Communist Party, and there are no independent bar associations. As a result, there are no effective remedies if law enforcement agencies manipulate or abuse these provisions, or if the prosecutions are politically motivated.

The prohibition against arbitrary detention is a key principle of the administration of justice. It is recognized under the Universal Declaration of Human Rights, which is considered reflective of customary international law.

The International Covenant on Civil and Political Rights (ICCPR), which China signed in 1998, but has yet to ratify, states that, “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.” The ICCPR further provides that, “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” As a signatory to the ICCPR, China is obliged under the Vienna Convention on the Law of Treaties “to refrain from acts which would defeat the object and purpose” of the treaty.

Human Rights Watch also repeated its call to the Chinese government to ratify the International Convention against Enforced Disappearance.

“Instead of abandoning the practice of enforced disappearances, the Chinese government is attempting to legalize it,” Richardson said. “The proposed revisions should be withdrawn, and the government should commit itself to eradicating the practice.”

 

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