Proposed Legislation Would Violate International Standards
March 12, 2012
The draft criminal procedure law contains many positive provisions, but the government’s stated goal of improving due process will be severely undermined by allowing incommunicado detention of people in undisclosed locations. Such provisions represent a clear danger for government critics and human rights activists, and are in clear contravention of China’s international obligations.
Sophie Richardson, China Director

(New York) –The Chinese legislature should delete provisions in the draft criminal procedure law that would allow the incommunicado detention in undisclosed locations of certain categories of criminal suspects, Human Rights Watch said today. The proposed legislation would violate China’s obligations under international law. A comprehensive set of mostly progressive revisions to China’s criminal procedure law – the first in 15 years – is expected to be adopted on March 14 by the National People’s Congress.  

Despite the removal of the power to “disappear” suspects for as long as six months, the legislation currently under consideration would still effectively empower the police to secretly detain government critics or anyone accused of “national security,” “terrorism,” or “bribery” crimes.

“The draft criminal procedure law contains many positive provisions, but the government’s stated goal of improving due process will be severely undermined by allowing incommunicado detention of people in undisclosed locations,” said Sophie Richardson, China Director at Human Rights Watch. “Such provisions represent a clear danger for government critics and human rights activists, and are in clear contravention of China’s international obligations.”

Human Rights Watch welcomed provisions that could – if translated into practice – strengthen procedural protections and due process for ordinary criminal suspects, such as stricter time limits for detentions, better guarantees for access to a lawyer, and greater protection for juvenile and mentally ill defendants.

In recent years, the police have increasingly resorted to secret detention of government critics, including the artist Ai Weiwei, the Nobel Peace Prize laureate Liu Xiaobo, and the human rights lawyer Gao Zhisheng. These detentions are illegal under Chinese law. The first draft of the revised law, disclosed for public consultation in August 2011, contained a clause that would have effectively legalized enforced disappearances for up to six months. That clause created a domestic and international outcry and was ultimately removed by the government when it introduced the second version of the law to the legislature on March 8.

However, under the revised law’s “residential surveillance” provision (article 73), law enforcement agencies would still have the power to detain national security or terrorism suspects in a designated location of the agencies’ choice for up to six months. Although the law enforcement agency imposing the measure would have to notify relatives within 24 hours, the notification would not require them to disclose the whereabouts of the person. The draft provision would also allow police to deny suspects’ access to a lawyer for the duration of the detention.

Individuals placed incommunicado outside of a formal detention system would be placed at great risk of torture and ill-treatment; such problems are chronic even in formal detention. Several human rights lawyers who were detained secretly last year have recounted that they had also been severely tortured during their detention.

Other provisions in the proposed legislation that would allow the secret detention of criminal suspects in “national security, terrorism and major bribery” cases for up to 37 days are found in articles 37 and 83.

These exceptions suspend the requirement to notify relatives within 24 hours if the law enforcement agency believes that such notification could “impede the investigation.” The right to access a lawyer is also conditioned on “approval” by the law enforcement agency that has imposed the detention – in effect, giving authority to the investigators to deny any contact with a defense lawyer.

These provisions detract from the proposed improvement to the general regime for criminal detentions, which will now guarantee notification of relatives within 24 hours and access to a lawyer within 48 hours.

China defines “national security” crimes sweepingly, including criticism of the ruling Communist Party and the government as well as peaceful advocacy for autonomy or independence by ethnic minority groups such as Tibetans and Uighurs. In the latest known conviction over national security offenses, the dissident Zhu Yufu was sentenced in February 2012 to seven years imprisonment for “inciting subversion of state power” for a poem he wrote that urged his compatriots to support calls for political freedom.

In recent days, the Chinese government has claimed that the new criminal procedure law has been designed to improve the protection of human rights, and that the powers to carry out secret detentions would be supervised and used by the police only in exceptional circumstances. Yet in practice the police operate without meaningful judicial review. Their authority is far greater than that of the courts or the procuratorate, the state prosecution body technically in charge of supervising “residential surveillance” and criminal detention. The ability of detained individuals suffering abuse at the hands of law enforcement agencies to gain redress is also limited, given that China’s judicial system is formally under the direction 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 reflects 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. 

The UN Special Rapporteur Against Torture and the UN Working Group on Arbitrary Detention have repeatedly condemned both secret and incommunicado detention as a serious rights violation that should be proscribed by law, and the UN General Assembly has denounced the practice as well.

“Legalizing a regime of secret detentions without judicial review would seriously set back hopes of moving toward the rule of law,” said Richardson. “It is not too late to close these loopholes and fulfill the government’s commitment to use the law to improve human rights.”

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