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China: Evidence Obtained by Torture to Be Excluded

(June 3, 2010) It was reported in the SOUTH CHINA MORNING POST on May 31, 2010, that two new sets of guidelines have been issued by China that limit the use of evidence obtained by torture. The Assessment of Evidence in Death Penalty Cases and the Exclusion of Illegal Evidence in Criminal Cases were jointly issued by the Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministries of Public Security, State Security, and Justice. (Ng Tze-wei, Evidence Guidelines Ban Torture in Capital Cases, SOUTH CHINA MORNING POST, May 31, 2010; the texts of the new guidelines were not available as of June 3, 2010.)

The first guideline, concerning evidence in death penalty cases, states that no evidence obtained illegally can be used for a conviction, including information gained through torture, violence, or threats, as well as improperly documented physical evidence or evidence certified by “unqualified organizations.” (Id.) For death penalty cases, the principle that evidence obtained through torture cannot be used to decide on guilt had already been established. A Notice issued in 2007 states, “[t]he testimony collected from [a] criminal suspect or the defendant by torture during interrogation, or the victim’s statements or witness’s testimony collected by the illegal means of violence or threat, etc. shall not be used as the basis for determining the case.” (Art. 6, Notice of the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security and the Ministry of Justice Concerning Issuance of the “Opinions on Further Strengthening the Strict Adherence to Law in Handling Cases and Ensuring the Quality in Handling Death Penalty Cases,” promulgated and effective on Mar. 9, 2007, English and Chinese texts available from ISINOLAW online subscription database, ID: 77031;77032;76682;76686;77237 -10023366.)

The new death penalty guidelines stress that “every fact must be supported by evidence,” in capital cases and that evidence “must be of the highest” quality. (Ng, supra.) The standard of proof in such cases is that the evidence must “exclude all other possibilities,” a stricter standard than what is usual in criminal matters, that guilt must be established “beyond a reasonable doubt.” (Id.)

The second new guideline discusses the general ban on the use of evidence that was obtained through illegal means. It allows defendants to dispute whether testimony is legal by providing information on how the testimony was received. Should the court find a possibility of torture having been used, the prosecutors would have to provide written records, videos, and audio recordings of any disputed interview, along with witnesses who were present for that interview. (Id.)

Commenting on the new guidelines, Fan Yu, a professor at Renmin University Law School in Beijing, stated, “[t]he issue of illegally obtained evidence has long been a controversial one in China and now they made a big step forward in this respect.” (China Torture Evidence Is Ruled Out in Courts, MORNING STAR ONLINE, May 31, 2010, available at
.) Zhao Bingzhi, dean of the law school at Beijing Normal University, also praised the new guidelines, saying, “[t]his is the first time that a systematic and clear regulation tells law enforcers that evidence obtained through illegal means is not only illegal but also useless.” (Id.)

The adoption of the two guidelines follows a well-publicized case in which a man was tortured into confessing to murder and spent 11 years in prison. It turned out that the supposed victim was still alive. (Id., Ng, supra.)