Reflect On China's Anti-torture Status Quo, From The International Anti-torture Movement

Torture is complied with the ancient penalty. The Enlightenment of 19th century made the personal rights respected and the protection of human rights become a important part of modern nomocracy generally. Torture is related tightly with the guarantee of human rights, which is the trend of the development of international human rights and the indispensable of modern nomothetic society. After China has regulated the human rights in the constitution, the recognition of human rights is lifted to a new height and respect and guarantee of human rights has become an aim of value that people pursue. Despite its absolute prohibition under both international law and the laws of most, if not all, national jurisdictions, the use of torture persists. The united Union has made many efforts in the anti-torture field. Through establishing the basic frame of international anti-torture legal system, the international anti-torture treaties have provided a big number of criteria of international law of torture combat both from precautionary and remedial aspects, especially the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(Convention Against Torture for short hereinafter), which clearly states the definition of torture and announce it as a international crime that every member country should carry out universal jurisdiction principle. In recent years, our country academia has already paid attention to the problems caused by torture and the departments of actual practice like legislative and judicatory departments have also performed several practice of punishing the behavior of torture. China subscribed the Convention Against Torture on Dec.12, 1986 and it went into effect on Nov. 3, 1988. Besides, China has enacted relative regulations about torture in criminal law, criminal procedure law and so on. However, because the international criminal law is a new subject, the research of which in China started a little late and till the 80s in 20th century there were scholars studied on but not attach enough importance to the human rights' research, each field of our country and society is for short of cognition and recognition in the present anti-torture condition. In resent years, some cases of torture exposed made people fearful, but a lot of behavior and phenomenon of torture not thrown daylight persist. Our country is still in face of the austere situation against torture.It is necessary to clarify the definition of torture when focus on and researching on it. Torture is both a international crime and a home crime, so there are several points of view about the definition. If our country wants to prevent torture drastically, it is indispensable to change and adjust the traditional and outdated understanding. Through the overall introduction and analysis of the different points and regulations of the definition in international law and international criminal law, we can see that it is feasible and necessary to adopt the standard of Convention Against Torture. On the basis of understanding of the definition, expounding the element of torture can lead our research on torture extending. Although our country have not set up a single crime of torture, there is also necessity to probe the elements and characteristics of torture. Combating torture and other cruel, inhuman or degrading treatment or punishment is a common task of modern nomocracy and human rights protection in many countries all over the world. There are some typical countries on the road of torture combat such as Holland, Germany and France. The level of anti-torture development in each continent is not balanced and Europe is the fastest and most mature comparatively. Because torture combat is not only concerning criminal law, it is also involved in many other aspects such as criminal procedure and human rights protection, the research of most scholars at home is not all-around, and expatiate on only one or more than one aspect. The international society has reached many consensuses on precaution and punishment, such as universal jurisdiction, or indict or extradition and so on. Some countries and areas have developed fast in this field. For example, Europe not only formulates its own common anti-torture criterion, but also establishes its supervisory and remedial mechanism. The analysis of typical countries' legislative form of torture and introduction and comparation of the anti-torture development of each continent are helpful for our country and other countries. The next problem is how to face and envisage the severely-existed torture phenomenon in China. It is a real fact in spite of that many people are hard to accept and acknowledge that severe torture exists. The reason of existence of torture on a board scale lies in more than one aspect. There are not only historical reasons, but also actually survival soil. Nowadays, the situation of anti-torture is relatively grim in China and the main situation is that torture as an illegal behavior exists on a fairly board scale in a certain large space. The behaviors of torture mainly represent in extorting confession from a criminal suspect of defendant by torture or extorting testimony from a witness by violence and so on. But it should also be stressed that our country has adopted several solutions to combat torture, includes subscribing a series of international treaties, strengthening legislation about torture, pay more attention to the procedure and so on.Nothing is so corrosive of the rule of law than official lawlessness, especially official criminality. Moreover, when a state engages in and fails to prevent torture, it is in breach of its obligations under international law. Therefore, the author wants to bring forward effective and feasible suggestions through the limited knowledge and ability. At present, anti-torture can be carried out from the following aspects: firstly, establishing a single crime of torture in our criminal law; secondly, establishing the principle of presumption of innocence and the right of silence, framing the rule of exclusion of illegal evidence and perfecting the rights of lawyer and enhancing the lawyer's supervision on the jurisdiction; thirdly, strengthening the punishment on torture and consummating the remedy of the victims; fourthly, intensifying the supervisory extend and strengthening the administration of law enforcement officials and judicial officers and improving their level of competence; fifthly, fulfilling the international obligations and enhancing international cooperation.