May 23, 2012

III. Relevant International and Domestic Legal Standards

The abuses documented in this report, including beatings, threats, arbitrary detention, and extortion, are prohibited under Chinese and international law. Some of the relevant standards and instruments include the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; the United Nations’ Code of Conduct for Law Enforcement Officials, the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, and the UN standards for Treatment of Offenders; the UN Body of Principles for All Persons under Any Form of Detention or Imprisonment; and the Constitution of the People’s Republic of China.

Excessive Force

None of the Chinese laws and directives that directly govern the operations of the chengguan regulate their use of force. Two non-binding but universally accepted international standards are relevant to regulating the use of force by chengguan. The first is the 1979 Code of Conduct for Law Enforcement Officials, adopted by the UN General Assembly. The code stipulates that in the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons. Specifically, such officials may use force only when strictly necessary and to the extent required for the performance of their duty, a standard that implies the use of force should be exceptional, and strictly proportionate to the legitimate object to be achieved. Law enforcement officials are also bound to refrain from corrupt acts and oppose and combat all such acts. [160]

The 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, a non-binding standard that is nonetheless widely recognized as articulating universal norms, enjoin governments to “adopt and implement rules and regulations on the use of force … [and] keep the ethical issues associated with the use of force and firearms constantly under review.” [161] The Basic Principles also commit law enforcement officials to “as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.” [162] The Basic Principles also enumerate specific circumstances under which law enforcement officials may lawfully use force, reiterating the Code’s requirements of proportionality and necessity. [163]

Prohibition of Cruel, Inhuman, or Degrading Treatment and Torture

The Universal Declaration of Human Rights stipulates that “No one should be subjected to torture or to cruel, inhuman or degrading treatment,”[164] while the ICCPR prohibits “torture or ... cruel, inhuman or degrading treatment or punishment.”[165] 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.”[166] The UN Code of Conduct for Law Enforcement Officials also prohibits inflicting, instigating, or tolerating “any Act of torture or other cruel, inhuman or degrading treatment or punishment.”[167]

The brutal beatings chengguan have inflicted on some of their victims 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.[168]

The Convention against Torture also prohibits states from inflicting “cruel, inhuman or degrading treatment.” [169]

Physical abuse of detainees also violates China’s constitution (article 38 guarantees the “personal dignity of citizens”), Prison Law, and Police Law.

Due Process and Arbitrary Detention

Due process of law requires that government officials or security forces who detain or arrest someone or impose a penalty on someone identify themselves and provide the legal basis for their actions.

The International Covenant on Civil and Political Rights (ICCPR) prohibits arbitrary arrest [170] and requires that arrest and detention be “in accordance with such procedure as are established by law.” [171] 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 the legality of their detention and that they be released if their detention is ruled unlawful. [172] 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.” [173] China has signed, but not ratified, the International Covenant on Civil and Political Rights.

The detention of people by chengguan authorities is illegal under Chinese law. Article 37 of the Constitution of the People’s Republic of China states that 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. China’s Police Law limits police powers of interrogation and detention strictly to those suspected of criminal offences. [174] Police powers of detention and arrest are tightly circumscribed by China’s Criminal Procedure Law, which requires approval for arrests from the People’s Procuratorate or a public court [175] as well as an arrest warrant which the police must display at the time of arrest. [176]

Impunity

Police tolerance of and complicity in chengguan acts of physical violence and unauthorized detention violates provisions of China’s Police Law and Administrative Penalties Law. The Police Law obligates Chinese police to “prevent, stop and investigate illegal and criminal activities.” [177] Police who fail to do so are guilty of “dereliction of duty” and face administrative sanctions and/or criminal prosecution. [178] Detention of alleged administrative law violators is also inconsistent with the objectives of the Chinese government’s National Human Rights Action Plan (2009-2010), which provides in relevant part:

The State prohibits illegal detention by law enforcement personnel. Wrongful or prolonged detention shall be prevented. The State will [provide economic compensation], [179] legal remedies and rehabilitation to victims. Those who are responsible for illegal, wrongful or prolonged detention shall be subjected to inquiry and punished if found culpable. [180]

[160] United Nations Code of Conduct for Law Enforcement Officials, adopted December 17, 1979, G.A. res. 34/169, annex, 34 U.N. GAOR Supp. (No. 46) at 186, U.N. Doc. A/34/46 (1979), articles 2, 3 and 7 and associated commentary, available at www2.ohchr.org/English/law/codeofconduct.htm.

[161]Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders, Havana, 27 August to 7 September 1990, U.N. Doc. A/CONF. 144/28/Rev.1 at 112 (1990), General Provisions (1).

[162] Ibid., General Provisions (4).

[163]Ibid., General Provisions (5). Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:

( a )Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;

( b )Minimize damage and injury, and respect and preserve human life;

( c )Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment;

( d )Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment.

Ibid., General Provisions (6). “Where injury or death is caused by the use of force and firearms by law enforcement officials, they shall report the incident promptly to their superiors, in accordance with principle 22.

[164]Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948), art. 5.

[165]Ibid., art. 7.

[166]Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles), adopted December 9, 1988, G.A. Res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988), principle 21 (2).

[167]Code of Conduct for Law Enforcement Officials, art. 5.

[168]Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, art. 1 (1).

[169]Ibid., art. 16.

[170]International Covenant on Civil and Political Rights (ICCPR) , adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No.16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, art. 9 (1).

[171] Ibid., art. 9 (2).

[172] Ibid., art. 9 (4).

[173]UN Human Rights Committee, General Comment 8, (Sixteenth session, 1982), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc HRI/GEN/1/Rev.1 (8), 1994, art. 9.

[174]Peoples Police Law of the Peoples Republic of China, adopted on February 28, 1995 and effective on February 28, 1995, art. 9.

[175]Criminal Procedure Law of the Peoples Republic of China, adopted on July 1, 1979 and effective on January 1,1980, art. 59.

[176] Ibid., art.64.

[177] Peoples Police Law, art. 6(1).

[178]Law on Administrative Penalty, art. 62.

[179] The official English-language translation actually refers to provision of “economic detention,” a mistranslation of “economic compensation” (经济赔偿) from the NHRAP’s Chinese-language version. http://www.humanrights.cn/cn/dt/gnbb/t20090413_438873.htm (accessed on October 22, 2011).

[180]National Human Rights Action Plan of China (2009-2010), April 13, 2009, http://news.xinhuanet.com/english/2009-04/13/content_11177126_10.htm (accessed October 22, 2011), chapter two, Guarantee of Civil and Political Rights, (1) Rights of the person, para. 3.