Research On "Convention Against Torture"

Since judicial system appeared in the beginning of human society, the judicial practice has been plagued by the torture, which has become the ills of the world and the evil counter to the civilization and the rule of law. Along with the evolution of history and social development, torture is criticized and attacked by all mankind much tougher than before. The prohibition of torture and the anti-torture have become the world strongest appeal. In 1984, the United Nations adopted the "Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment". This is a specialized international convention which provides the prevention and punishment of torture and other cruel, inhuman or degrading treatment or punishment. This is a landmark in the anti-torture history of the world, marking the world Anti-torture campaign entered a new period.In need of the domestic legal theory and development of judicial practice, we have to make an in-depth study of the "Convention against Torture". In 2004, China put the "human rights" concept into the Constitution firstly, explicitly stipulated that the state "respects and safeguards human rights". But in recent years, our party and the government put forward the concept of "people-oriented","building a harmonious society", which embodied China’s progress on the idea of human rights and the administration of law. However, due to the impact of factors such as historical and cultural traditions, ideology, legal system in our nation, torture is indeed deeply rooted in our country and has become the obstacle to the development of our modern civilization and the rule of law. How to prohibit torture and other cruel, inhuman or degrading treatment or punishment effectively has become an important issue of the world theory and practice.Our Government has participated in the "Convention against Torture". According to the basic principles of international law "the treaty must comply with", China must strictly carry out "the Convention against Torture" obligations under the provisions of the Convention. We have to combine the compliance to the Convention with the Criminal Justice Reform, especially with the amendment of criminal procedural law of our country.Firstly, it depends on our thorough understanding of the Convention’s spirit and content. And China’s current study of this convention is relatively less and not thoroughly in the theory and practice, which urgently needs to be strengthened. Therefore, in this kind of domestic situation, the research about the formulation and content of the United Nations "Convention against Torture" is very important in theory and practice, and it is the responsibility and mission of legal person that we can not shirk.In this paper, we use multiple kinds of analysis, which include: historical analysis, value analysis, empirical analysis, social analysis and comparative analysis. The paper describes the concept of torture; torture; the history of the torture; development of the concept of the anti-torture; the formulation and content of the "Convention against Torture", we make the In-depth study on the torture in China combining with the "Convention against Torture", the study points out the problem of the implementation of the Convention in China. And how to work through the reform of criminal procedure to deal with the implementing problem of the "Convention against Torture" in China, to achieve the purpose both amending our current Code of Criminal Procedures and performing the "Convention against Torture".The "Introduction" section describes the background of the research, the status of the research, and expected contributions to the research. And summarize the innovation of this research and the research problems we want to solve.The body part is divided into six chapters, the main contents include: The first chapter named "development of the concept against Torture and the formulation of the′Convention against Torture′". This chapter begin with the torture history in China and the West, discuss the development of the anti-torture concept, the background of formulating the "Convention against Torture" and the adoption of "Convention against Torture". It also pointed out that when the idea of the anti-torture developed to a certain stage, and at the same times there are still have acts and phenomenon of torture in the world, then the "Convention against Torture" came into being. The Chapter II named "overview of′Convention against Torture′". This chapter describes the purpose of "Convention against Torture". And analysis the torture in its literal meaning, and then introduce the definition of torture in the "Convention against Torture", point out why should we analysis the understanding of torture according to the provisions of "Convention against Torture", while according on the Characteristics, Components and other issues of the Torture which defined in the "Convention against Torture". Next, the paper has an analysis on the concept of the cruel, inhuman or degrading treatment or punishment. Finally, it analyzed the classification of torture as well as in China. The paper points that torture is consists of punish execution stage, investigation stage and monitoring stage. And torture in our country mainly in the investigation stage, which is as the torture defined in "Convention against Torture".The Chapter III named "the State party’s obligations of′Convention against Torture′". This chapter mainly analyzes State party’s obligations about Article 2 - Article 16 of the "Convention against Torture". Including: the obligation to prevent torture; the obligation to forbid using torture any time or any case; the non-refoulement obligations; torture is a crime; the general jurisdiction of torture; investigation obligations of the torture; excluding confessions obtained by torture; Compensation obligations. Only when we carry out these obligations the actively and effectively, it is the compliance with "Convention against Torture".Chapter IV named "implementation mechanism of′Convention against Torture′". This chapter discusses the implementation mechanisms of the "Convention against Torture". The Committee against Torture is the organ to supervise implementation of the "Convention against Torture", and the Article 17 - Article 24 of "Convention against Torture" provides the relevant issues of the Committee against torture. In addition, the Special Rapporteur on torture, the subcommittee to prevent torture and other cruel, inhuman or degrading treatment or Punishment of the Committee against Torture, which established according to "Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment" are also the implementation mechanism of the "Convention against Torture", therefore, this chapter are also analyzed these two implementation mechanisms. Finally, this paper put forward the suggestions to make implementation mechanism of the "Convention against Torture" perfect.Chapter V named "China’s implementation of′Convention against Torture′: the overall situation and Suggestions". This chapter summarizes and analyzes the implementation of China’s "Convention against Torture" and the effective measures of torture prohibition. It pointed out the problems in the Chinese implementation of "Convention against Torture" and put forward the proposals related to improvement. It also pointed out that it is a comprehensive project to perform the obligation of "Convention against Torture" positively and properly, there are not only need the perfection of the relevant domestic legal system, improvement of the judicial personnel quality, the full attention of relevant government departments and collaboration, but also need improvement of domestic citizens’Human rights literacy and the participation of the whole society.Chapter VI named "China’s implementation of′Convention against Torture′: The focus analysis on China’s reform of the criminal proceedings". "Convention against Torture" can be one of international human rights conventions which have the close relationship with the criminal prosecution, to fulfill the obligations of the "Convention against Torture" will certainly have far-reaching implications of the Criminal Procedure Reform. Therefore, this chapter Separate the reform of Chinese Criminal Procedure out particularly to analyze the China’s reform of criminal procedure in the background of the implementation "Convention against Torture". This chapter begins with analyzing the torture’s occurrence in China, and several typical cases involving. Trying to find in which stage of the criminal proceedings prone to torture in China, why the torture occurred in these stages, and then take the perspective of preventing the occurrence of torture. Pointed out on macroscopic that if China wants to carry out provisions of the State party’s obligations in "Convention against Torture" actively and curb the incidence of torture effectively, China has to establish some basic principles in the reform of the criminal proceedings. Only these principles are established can the criminal justice Status quo be fundamentally changed, to preventing the occurrence of torture, protect the human rights, demonstrate the fairness and justice. Finally, take the "Istanbul Protocol" as the foundation to describe the problem of identification of torture.The section of conclusion made a conclusion of the content of this article, pointed that the generation of the "Convention against Torture" is the result of continuous development of the concept of civilization, the rule of law and the Humanistic feelings. After the "Convention against Torture" entry into force, the next key question is the effective implementation of the Convention, that is means to let more countries to sign, ratify the Convention and strictly implement the obligation to the Convention, the truly achieve the purpose and spirit of the Convention. So, first of all is to publicize "the Convention against Torture" out, making every Country, everyone can learn and understand the content and spirit of the Convention. At the same time, find out the gap between domestic law and the provisions of the Convention to amend domestic law timely in order to achieve the ultimate goal of the prohibition of torture.