Tortuous progress

In late June, China's five main organs concerned with the administration of justice, including the Supreme People's Court, issued two sets of regulations on the use of evidence that appeared to make confessions obtained through torture inadmissible in court.

Previously, even though Chinese law made torture of suspects a criminal offence, confessions obtained in this manner were still acceptable as evidence and could be used to convict the victims.

The publication of these new regulations provided some evidence of progress in China's criminal justice system.

A notice issued by the five bodies declared: 'The two sets of rules set higher standards and stricter demands on law enforcement organs' handling of criminal cases, especially death penalty cases.'

Article 1 of the new rules, 'Concerning questions about exclusions of illegal evidence' states: 'The category of illegal oral evidence includes statements by criminal suspects or defendants obtained through illegal means such as coerced confession as well as witness testimony or victim statements obtained through illegal means such as use of violence or threats.'

However, Article 2 introduces a note of ambiguity. It says: 'Oral evidence that has been determined to be illegal in accordance with the law shall be excluded and may not serve as the basis for conviction.' The assertion that such evidence 'may not serve as the basis for conviction' suggests it may still be used in some way.

The other set of rules, 'Concerning questions about examining and judging evidence in death penalty cases', says that in examining a defendant's statements, emphasis shall be placed on 'whether a defendant's declaration was obtained through illegal means such as coercing confession'.

These regulations, too, contain an article that says that coerced confessions 'may not serve as a basis for conviction'.

Both new regulations came into effect on July 1 and so we should soon see if they make any difference in real life and whether there are higher standards and stricter demands on law enforcement agencies.

Last week, details of the torture of Fan Qihang, a defendant in a murder trial in Chongqing, surfaced. Fan's lawyer, Zhu Mingyong, provided recordings of interviews with his client, a 39-year-old construction businessman who was charged with having ordered the killing of a triad gang leader.

The recordings painted a picture of someone tortured almost daily for six months, at the end of which time he confessed to the murder charge. According to a report in the South China Morning Post, Fan was 'hung from his toes with his arms shackled behind him repeatedly over a period of five days'. In another form of torture called 'soaring wings', his hands were shackled behind his back and chained to a window bar, while his body was kept dangling in the air with the tip of his toes barely touching the floor.

His body bears evidence of the torture he suffered and, apparently, Fan's claims have been backed up by a statement provided by medical staff appointed by prosecutors.

During the trial, he attempted to retract the confession but was not allowed to do so. The case has now gone to the Supreme People's Court, which since 2007 has conducted a final review of every case where the death penalty was imposed. The trial was part of a massive crackdown on organised crime in Chongqing, which has resulted in the arrest of 3,600 people, 65 of whom have been sentenced to death or received suspended death sentences.

Given the new regulations, all eyes will be on the top court. If the rules are to have any meaning, then at the very least the court should suspend Fan's execution. The confession extracted through torture should be thrown out as illegal and 'not serve as the basis for conviction'.

The court should go further and ask for the prosecution of those involved in the torture. Unless the torturers have to pay a price, such methods will continue in China's detention centres.

Frank Ching is a Hong Kong-based writer and commentator