China Changes Rules on Evidence Obtained by Torture

Stanley Lubman, a long-time specialist on Chinese law, teaches at the University of California, Berkeley, School of Law and is the author of “Bird in a Cage: Legal Reform in China After Mao,” (Stanford University Press, 1999).

A tragic but true story has been used to support a change in Chinese criminal procedure. Zhao Zuohai was acquitted after serving 10 years in jail for murdering a neighbor. He had confessed to the crime, was sent off to jail but, ten years later, his “victim” turned up alive. Three policemen who had obtained his confession – which turned out to have been coerced — have been arrested. Now, new rules have been announced limiting the use of torture, one of the most offensive human rights violations common in Chinese criminal procedure.

Late last month two guidelines that promise to limit the use of torture by police and prosecutors in criminal cases were issued by no less than five Chinese organizations concerned with law enforcement, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice.

They are welcome reforms in practices that were long forbidden under the Criminal Law (Section 247) and Criminal Procedure Law (Section 43) adopted in 1997, which forbid the use of torture, but without addressing the consequences for the use or exclusion of evidence obtained through torture. Although China is a nation in which a legal system is being created in remarkably short time, criminal law and criminal procedure remain the branches of the law most in need of reform, and the process of reform has been painfully slow.

One of the new guidelines, for use in capital cases, provides that evidence obtained illegally, involving ”torture, violence or threats, undocumented physical evidence, and evidence certified by unqualified organizations” may not be used to convict defendants. (“Evidence guidelines ban torture in capital cases,” South China Morning Post, May 31, 2010) Professor Bian Jianlin of the China University of Political Science and Law was quoted as noting that” no previous law or regulation clearly stated that when evidence may have been acquired through forced confession it must be excluded.” The same guideline also states that “every fact must be supported by evidence,” the first time that this principle has been clearly articulated in a legal norm.

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