An editorial in ND Daily, the apparent the source of the SCMP report, is HERE. The editorial says that despite the criminal law's ban, and Supreme Peoples Court interpretations, unlawfully obtained testimony is still used.
The SCMP piece follows:
Anti-torture measures in works, paper says
Ng Tze-wei
Aug 11, 2009
The mainland will soon release a judicial document that will for the first time spell out that confessions obtained through torture will not be admissible evidence in court, according to The Southern Metropolis News.
Even though the mainland criminal code has long banned torture during the questioning of suspects, and even made it a criminal offence, forced confessions still overshadow the judicial system.
The Renmin University School of Law recently researched 137 wrongful convictions imposed in the 1980s and determined that 164 men and women had been wrongfully deprived of a total of 720 years of freedom, one had
been executed, and another had died in prison. Half of the wrongful convictions involved murder charges.
The Southern Metropolis News, which is based in Guangzhou, quoted Renmin University professor Liu Pinxin as saying that the reason wrongful convictions tended to concentrate on felonies was that police were under pressure to solve the cases within a time limit, and there was little social sympathy for people suspected of serious crimes.
As the mainland reviews its Criminal Procedure Law, debate has been rekindled over whether criminal law should follow the principle of "protecting individual rights" or "protecting the masses through heavy punishment". The way evidence is obtained is one of the issues at the forefront.
Using the death penalty as a starting point, the Supreme Procuratorate will soon introduce a new regulation on death-penalty trials and the use of evidence, which will specify the inadmissibility of confessions obtained through torture.
China University of Political Science and Law professor Wang Shunan hailed the pending regulation as "an extremely important step". He said it would also force the country's police and procuratorates to shift from an emphasis on confession and testimony to collecting solid circumstantial and documentary evidence.
"In the past it was endorsed only in theory; now it will be given as a procedure," Professor Wang said. "So if torture is used now, there will be clearly stated legal repercussions."
Under the new regulation, the procuratorate must also investigate and bring charges if it becomes aware of torture or any form of tampering with evidence. It will also specify six scenarios in which evidence will be considered to have been gathered illegally and cannot be used in court.
Criminal lawyer Xia Lin said he would reserve judgment about the changes until he saw the details.
"The key is who will have the liability to prove that the confession was obtained through torture. Right now unless a defendant dies or suffers serious injuries, it is very difficult for the defendant to prove that he has been tortured," Mr Xia said.
"The police should bear the burden of proof that they have not used torture."
Other measures such as filming whole interrogations, allowing the presence of lawyers during interrogation and separating interrogation facilities from detention facilities are also aimed at stopping torture.
Ng Tze-wei
Aug 11, 2009
The mainland will soon release a judicial document that will for the first time spell out that confessions obtained through torture will not be admissible evidence in court, according to The Southern Metropolis News.
Even though the mainland criminal code has long banned torture during the questioning of suspects, and even made it a criminal offence, forced confessions still overshadow the judicial system.
The Renmin University School of Law recently researched 137 wrongful convictions imposed in the 1980s and determined that 164 men and women had been wrongfully deprived of a total of 720 years of freedom, one had
been executed, and another had died in prison. Half of the wrongful convictions involved murder charges.
The Southern Metropolis News, which is based in Guangzhou, quoted Renmin University professor Liu Pinxin as saying that the reason wrongful convictions tended to concentrate on felonies was that police were under pressure to solve the cases within a time limit, and there was little social sympathy for people suspected of serious crimes.
As the mainland reviews its Criminal Procedure Law, debate has been rekindled over whether criminal law should follow the principle of "protecting individual rights" or "protecting the masses through heavy punishment". The way evidence is obtained is one of the issues at the forefront.
Using the death penalty as a starting point, the Supreme Procuratorate will soon introduce a new regulation on death-penalty trials and the use of evidence, which will specify the inadmissibility of confessions obtained through torture.
China University of Political Science and Law professor Wang Shunan hailed the pending regulation as "an extremely important step". He said it would also force the country's police and procuratorates to shift from an emphasis on confession and testimony to collecting solid circumstantial and documentary evidence.
"In the past it was endorsed only in theory; now it will be given as a procedure," Professor Wang said. "So if torture is used now, there will be clearly stated legal repercussions."
Under the new regulation, the procuratorate must also investigate and bring charges if it becomes aware of torture or any form of tampering with evidence. It will also specify six scenarios in which evidence will be considered to have been gathered illegally and cannot be used in court.
Criminal lawyer Xia Lin said he would reserve judgment about the changes until he saw the details.
"The key is who will have the liability to prove that the confession was obtained through torture. Right now unless a defendant dies or suffers serious injuries, it is very difficult for the defendant to prove that he has been tortured," Mr Xia said.
"The police should bear the burden of proof that they have not used torture."
Other measures such as filming whole interrogations, allowing the presence of lawyers during interrogation and separating interrogation facilities from detention facilities are also aimed at stopping torture.
Thanks to Otto Malmgren for the tip.
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