Evidence guidelines ban torture in capital cases

PUBLISHED : Monday, 31 May, 2010, 12:00am
UPDATED : Monday, 31 May, 2010, 12:00am

Beijing has introduced key guidelines on evidence aimed at stopping the use of torture to obtain confessions in the most serious cases.

Their release was expedited after the wrongful imprisonment of a Henan farmer brought the criminal justice system back into the spotlight, according to a legal expert close to the drafting of the guidelines who asked not to be named.

Farmer Zhao Zuohai was set free this month after the reappearance of the neighbour he confessed to murdering 11 years ago. Zhao had been tortured for an entire month before his confession.

The first guideline deals with evidence in death penalty cases.

Under it, evidence obtained illegally must not be used for conviction. That includes testimony obtained through torture, violence or threats, physical evidence obtained without being properly documented, and evidence certified by unqualified organisations.

The guideline includes for the first time the fundamental principle of criminal justice that 'every fact must be supported by evidence', which has never previously been spelled out in legal documents. It stresses that the evidence in death penalty cases 'must be of the highest' quality.

While the standard of proof in criminal cases is generally 'beyond a reasonable doubt', proof in death penalty cases must be absolute and 'exclude all other possibilities'.

A second guideline, on the exclusion of illegal evidence in criminal cases, sets out a clear procedure for a defendant to dispute the legality of a piece of testimony.

The defendant must first provide the court with information on how the testimony was illegally obtained, and the court must then begin an assessment of the defendant's claim.

If the court decides the defendant might have been tortured, prosecutors must provide the court with written records, video and audio recordings of the interview in question, and witnesses who were present at it.

If the evidence still does not rule out the possibility of torture, those who conducted the interview must be called to attend the hearing.

The two guidelines - 'The Assessment of Evidence in Death Penalty Cases' and 'The Exclusion of Illegal Evidence in Criminal Cases' - add flesh to the skeletal principles already set out in the Criminal Procedure Law, which 'had not been systematic and complete enough for the use of the judicial system', a government spokesman said yesterday.

The full text of the two guidelines is not yet publicly available, but details were revealed to the China News Service by the bodies that issued them - the Supreme People's Court, the Supreme People's Procuratorate and the ministries of public security, state security and justice.

Professor Bian Jianlin , of the China University of Political Science and Law, said the new illegal evidence guideline does not cover physical evidence, which he said would require a more delicate balancing act between combating crime and protecting human rights. But he added that the reform of criminal procedure had to take place 'one step at a time'.

Ultimate penalty

Amnesty International says 672 people were executed in 2008 worldwide, excluding China, where the number put to death was at least: 1,178