suspects facing the death penalty or a heavy prison sentence. The rules also gave judges the authority
to set aside evidence obtained through torture.
Some lawyers observe that physical torture and other forms of physical abuse by the police seem to
have abated somewhat in recent years. The 2012 revisions to the Criminal Procedure Law, combined
with other rules such as the 2013 “Regulations on Effectively Preventing Miscarriage of Justice” issued
by the Central Political and Legal Affairs Commission are said to have improved the situation. These
rules require that the interrogation of suspects and defendants take place at an officially designated
location and, once the detainee has been transferred to a detention centre, the interrogation should
be conducted in the interview room of the detention centre with the whole process audio or video
recorded.
This emphasis on audio and video recording has been viewed as a sign of progress in reducing police
torture as well as illegally obtained witness testimony. Any confession that has been obtained without
audio or video recording is, in Chinese law, considered illegal. In 2017, the SPC announced new
regulations on the exclusion of illegal evidence which were also viewed as major progress, although it
is yet to be seen how effective they prove in practice. The introduction of liuzhi, under the National
Security Law and, what appears to be, an increase in the use of RSDL, however, suggest that the
investigation authorities are adopting measures to circumvent new restrictions on police conduct in
detention centres. Liuzhi and RSDL are both forms of incommunicado detention which can be used in
‘the three types of cases’, corruption, terrorism and national security, all crimes which are eligible for
the death penalty.
The use of torture and other cruel, inhuman or degrading treatment remains a systemic problem.
Despite some improved oversight, investigators are clearly able to ditch restrictions in cases that are
politically sensitive at a local or national level, while procurators and judges are still reluctant to
overturn evidence provided by the police. The UN Committee on Torture, in their report on China in
2015, stated that torture and ill-treatment were still deeply entrenched in the Chinese criminal justice
system and there is an overreliance on confession to bring convictions.
Role of Lawyers
Steps have been taken by China towards introducing a more adversarial style of criminal justice in
which greater emphasis is placed on the role of defence in the examination of evidence. (see more on
legal assistance in capital cases in Chapter 5). Since the 2012 revisions to the Criminal Procedure Law
some progress has also been made in terms of allowing lawyers to meet with their clients.
Lawyers are not allowed to attend police interrogations. They can, however, try to challenge an
illegally obtained confession through obtaining signed and fingerprinted meeting transcripts with
suspects to fully record the circumstances of evidence collection. Where lawyers are made aware of
injuries allegedly obtained as a result of violence by the police they can also request the detention
centre or duty procurator take pictures as evidence. However, they continue to face many challenges.
It is particularly difficult for lawyers to allege that a confession has been coerced if there are no
physical signs of ill treatment. The law in practice does not acknowledge the use of oppressive
interviewing or other psychological pressure.
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