井底之蛙

6/1/2010

Evidence and Torture

Filed under: — K. M. Lawson @ 10:40 am Print

As can be seen in this New York Times article and BBC report from May 31 reports some interesting news on the legal front when it comes to torture:

The top judicial and law enforcement bodies in China have issued new guidelines that seek to halt the use of torture in obtaining confessions or witness testimony, especially in death penalty cases.

The rules, announced Sunday, would nullify evidence gathered through violence or intimidation and give defendants the ability to challenge confessions presented during their trials.

There are two new sets of guidelines issued on May 30, the 《关于办理死刑案件审查判断证据若干问题的规定》focusing on death penalty cases, and the《关于办理刑事案件排除非法证据若干问题的规定》which focuses on other criminal cases.1 The New York Times notes that China’s authorities have been willing to recognize the problem for some time, citing a 2003 report by China’s Supreme People’s Procuratorate admitting that forced confessions had led to hundreds of deaths suspects. While bans of torture have been on the books in the post 1949 period at least since the late 1950s, even at the level of law, some organizations have long complained that the bans do not define torture comprehensively enough, let alone back these laws with real action.2

A Xinhua article announcing the regulations suggests that judges previously could exclude such evidence but lacked sufficiently detailed guidelines, leading to many cases in which it was accepted:

The new regulations define illegal evidence and include specific procedures on how to exclude such evidence.

Lu Guanglun, a senior judge at the Supreme People’s Court, said such details do not exist in the Criminal Procedure Law and its judicial interpretations.

“This is the first time that a systematic and clear regulation tells law enforcers that evidence obtained through illegal means is not only illegal but also useless,” said Zhao Bingzhi, dean of the law school at Beijing Normal University.

“Previously we could only infer from abstract laws that illegal evidence is not allowed. But in reality, in many cases, such evidence was considered valid,” he said.

The guidelines ban evidence obtained through torture but also other problematic evidence. Danwei helpfully translates the six kinds of evidence now banned for use in death penalty cases listed in a 新京报 article on them.

A Long Road

The continued failure to eliminate torture in China is deeply troubling, and clearly not enough is being done. However, the Chinese Public Security Bureau (公安部) has recognized, at higher levels, at least, that confessions gained from torture ultimately do more harm than good as far back as the Sino-Japanese War and even earlier.

In a posting here at Frog in a Well last year, Working to Protect Your Human Rights, I reviewed Chinese Communist Party efforts to eliminate torture (刑讯) in favor of an approach of persuasion (说服) with arrested treason suspects during the Sino-Japanese War in Shandong Province. Internal party reports that I have read urged treason elimination cadres to “protect human rights” (保障人权) and continue to refer to the problem and criticize responsible units all throughout the war and into the civil war period, suggesting that they were never fully successful.

To expand on the examples in the above mentioned posting, take for example, one April, 1943 document criticizing the work of the “treason elimination department” (鋤奸部)of the Communist Party in the Jioadong base area of Shandong that can be found in the Shandong Provincial Archive. This document, “A summary of an investigation on the Jiaodong Trotskyist case and initial opinions on the work of the Jiaodong treason elimination work” (膠東托派案的審查總結及對膠東鋤奸工作的初步意見) is one of many similar documents I have come across reviewing and condemning mistakes made by the treason elimination cadres, especially on cases related spurious cases of “Trotskyist traitors” that plagued the party long after the CCP stopped focusing on the supposed Trotskyist threat and shifted its focus to punishing spies for the Japanese and other collaborators. In this document, all Trotskyist cases from 1941-43 are said be basically mistakes (基本是錯誤的) and the treason elimination organs must take responsibility.

Though a number of different problems are listed, the most relevant is:

In interrogation work, one of the most serious issues is the from top-to-bottom universal use of of torture, which are evil acts in violation of our policy (自上而下普遍的使用刑訊,這面真是犯政策的罪惡行為).3

The opinion concludes that, “not only have these personal mistakes caused psychological and physical harm to the health and progress of cadres, but are also a threat to our political prestige.” It calls for a reorganization of the treason elimination department to better control and supervise their work, and calls for the better education of its cadres.

Though they rarely show any kind of moral outrage, astute analysts within the Communist Party have long recognized that torture has an impact both on the cadres who carry it out, but also the prestige of the Party. This I believe is a substantive difference between them and the widespread torture sanctioned and promoted by the KMT’s wartime agents up to the highest level, including Dai Li, and torture carried out by many other totalitarian regimes in the 20th century. These documents do not call for these acts to be better hidden from the public, but consistently call for their elimination and the reform of cadres responsible.

Since outwardly advertised condemnations of torture by the party match internally distributed condemnations of the same in the case of the CCP, then studying the persistence of torture in Communist China from the wartime to the present day ought to focus on understanding why and how the gap opened up between not the external and internal policy, since I haven’t found much evidence of one, but between the higher level cadres and the interrogation officers on the ground. This is the kind of gap which was targeted in United States attempts to grapple with the widespread persistence of police torture (“third degree” interrogations) among the police in the Wickersham report of 1931.4

More Needs to Be Done

Issuing clear guidelines blocking “illegal” evidence obtained through torture is an important step in the right direction. This can be seen as a message delivered to two primary recipients. First, China is making a statement to its own people, who have been outraged by the tragic-comical case of Zhao Zuohai who was tortured into confession and imprisoned for over a decade for committing a murder of someone who wasn’t even dead. Second, the judiciary is sending a message to interrogation officers in the Public Security Bureau who may be proud of the confessions they extract through their violent means.5 PSB officers likely have incentives to produce such confessions in terms of an increased number of cases solved as well as personal satisfaction that a villain has been caught and prosecuted. If they believe that a bit of “third degree” interrogation will starve them of that solved case and allow a guilty (or innocent) suspect go free, then this may reduce the occurrence of such abuses.

However, this is just not enough. There is ample evidence that having such rules of evidence on the books is simply insufficient to create real changes in the interrogation room. We need only look in neighboring Japan for evidence of this. Japan outlawed torture as early as 1879 but a truly shocking variety of torture techniques were widespread until 1945. In the postwar 1947 constitution, Article 36 explicitly states that, “The infliction of torture by any public officer and cruel punishments are absolutely forbidden.” while Article 38 states pretty much what China has stated in its newly announced regulations, “Confession made under compulsion, torture or threat, or after prolonged arrest or detention shall not be admitted in evidence.”

A clear legal prohibition on using evidence tainted with torture doesn’t help if the courts do not admit that the practice occurs. In the forty years leading up to 1994, there were over 12,000 complaints of torture in Japan, of which only fifteen complaints were accepted in court, with only eight resulting in police punishment.6

The reality is, however, that police torture does exist in postwar Japan, with beatings and other objectionable practices in interrogations continue down to the present day. We must note, however, that there is little evidence that the severity of torture, the numbers of deaths, etc. are anywhere near the scale of torture reported in the Chinese case. Outright beatings of suspects and prisoners have been seem to be on the decline in postwar Japan and a variety of other more subtle forms of psychological and physical pressure have become more dominant.7 In a case reminiscent of the Zhao Zuohai debacle in China, we might remember the release last year of Sugaya Toshikazu whose DNA tests showed he wasn’t the perpetrator in a murder for which he had already served 17 years in prison. Sugaya claims to have been threatened and beaten by detectives into making his confession.

There is growing anger about this issue in Japan and in 2006 the director of “Shall We Dance” Suo Masayuki produced the film “I just Didn’t Do It” to highlight the problem of forced confessions.8 What it shows, however, is that merely banning torture is not enough. Allowing lawyers access to prisoners during all interrogations, and ideally the filming of all prisoner interrogations (now trivial in terms of technological costs, even though it is widely opposed by police around the world) are really the only ways we can guarantee that confessions are obtained legally and without coercion.

UPDATE: Ella Chou has a good posting about this with a more informed discussion about where things need to go from now: Death Penalty, Torture, and Criminal Justice in China.

UPDATE 2013.5: Just read a fantastic overview of the development of rules regarding interrogations and torture in China over the past two decades by Ira Belkin, “China’s Tortuous Path Toward Ending Torture in Criminal Investigations” in Michael McConville and Eva Pils, ed. Comparative Perspectives on Criminal Justice in China (Edward Elgar Publishing, 2013). Must read for anyone interested in this issue.

  1. According to the 新京报 article, the latter guidelines for regular cases bars the use of illegal evidence in deciding the case (非法取得物证不可以定案) and will ask officers to testify as to whether or not there was torture. []
  2. See Amnesty International’s 2001 report on torture in China, section 4. []
  3. Shandong Provincial Archives G024-01-0648-001 膠東托派案的審查總結及對膠東鋤奸工作的初步意見 1943.04.27 []
  4. Its conclusions on torture in the US are found in its Volume 11 “Report on Lawlessness in Law Enforcement.” One of the authors of the report famously said that it, “was greeted by the police with two answers which they regarded as conclusive: first, there wasn’t any third degree; and second, they couldn’t do their work without it.” Quoted in G. Daniel Lassiter Interrogations, Confessions, and Entrapment Springer (2004), 55. []
  5. One could argue that China’s human rights critics outside of China are a third recipient, but I’m not convinced it played a primary role in motivating the creation of these guidelines. My suspicion is that, this time, the primary motivation was domestic in origin. []
  6. See Rajendra Ramlogan “The Human Rights Revolution in Japan: A Story of New Wine in Old Wine Skins?” Emory International Law Review (Spring, 1994), 182. []
  7. In addition to beatings and the “binding fingers” these other techniques include threats to ruin the reputation of the suspect, forcing suspects to stand in a fixed position and waking the suspect in the middle of the night (sound familiar?), offering to allow family to be seen if confession is made, etc. See Jeff Vize “Torture, Forced Confessions, and Inhuman Punishments: Human Rights Abuses in the Japanese Penal System” UCLA Pacific Basin Law Journal (Spring, 2003), 334. In US State Department reports on human rights abuses in Japan, the period from 200-2009 focuses mainly on accusations of violence against prisoners within the highly secretive Japanese prison system. Another technique, which reminds of Tokugawa practices forcing suspected Christians to step on Christian images, is the forcing of suspects to step on the names of their ancestors, referred to as the practice of fumiji (踏み字). []
  8. Unfortunately, I haven’t been able to watch it. The Hong Kong DVD version of it available in the Harvard Law School video collection is too scratched up to watch. Its Japanese title is それでもボクはやってない. []

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