It is quite strange that in the Yichun case of Heilongjiang Province, the court ruled that the crime of torture for confession was constituted, but the punishment exceeded the statutory sentence term stipulated in the Criminal Law for the crime of torture for confession. The defendant was sentenced to seven years in prison. After weaning, what food can be eaten to increase breast size? This unnamed scholar admitted that the practical approach does not conform to the legislative intent of the crime of torture for confession in the special provisions of the Criminal Law. According to Article 247 of the Criminal Law, the crime of torture for confession is a conduct crime, which means that as long as the act of torture for confession is carried out, regardless of the consequences, it will constitute the crime of torture for confession and criminal responsibility will be pursued.
The aforementioned deputy procurator-general on secondment also did not agree with the view that Article 247 of the Criminal Law was a legislative void. He believed that this article now plays an insignificant role, but it does not mean that it cannot play a big role in the future.
However, Gao Mingxuan believed that abolishing the crime of torture for confession would have too many negative effects and might legalize torture for confession. Retaining it could at least serve as a certain deterrent. He believed that although legislation consistently emphasizes the prohibition of torture for confession, from the general procedures reflected in practice, torture for confession should exist in large quantities during the investigation stage.
The mystery surrounding the Xiangshui torture for confession case in Jiangsu Province is profound.
The vast majority of torturers have not been held accountable, partly because it is too common in practice and involves a large number of people, and partly because the social effects of handling cases are considered.
According to Article 247 of the Criminal Law, judicial staff who subject criminal suspects or defendants to torture for confession or use violence to force witnesses to testify shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. If they cause serious injury or death, they shall be convicted and punished according to the crimes of intentional injury or intentional homicide, with heavier penalties.
Chen Jinbing, the former deputy director of the Xiangshui County Public Security Bureau, who was suspected of causing death by torture for confession, overturned his confession in court, claiming that he had been tortured by the Yancheng County Procuratorate, and all his previous confessions were not his true intentions.
From the statistics, the reporter of the Legal Weekend found that among the 30 cases, 16 cases resulted in deaths due to torture for confession, but only in one case in Zunyi, Guizhou, was the torturer sentenced to death with a two-year reprieve for intentional homicide. In eight cases, the torturers were sentenced to fixed-term imprisonment ranging from three years to life imprisonment for intentional injury; in seven cases, the torturers were held accountable for torture for confession, with one case exempted from punishment, and three cases sentenced to suspended sentences.
Police officers caught for carrying out torture for confession also suffered from torture for confession? Such absurd and bizarre events are currently unfolding in Xiangshui County, Jiangsu Province. What has led to the persistent problem of torture for confession despite repeated prohibitions? The answer may lie within the 30 cases disclosed over the past 15 years where criminal responsibility was pursued due to torture for confession.
A criminal law scholar serving as the deputy procurator-general in a southern county told the Legal Weekend reporter that in practice, the principle for handling torture for confession is generally: if someone confesses under duress due to torture, leading to wrongful convictions, and the case is later uncovered, then the reasons for the wrongful conviction are traced back, and if torture for confession is found, relevant personnel will be held accountable.
Traditional ideas of unity between public security, procuratorial, and judicial organs still exist, the pattern centered on investigation has not been broken, courts tend to believe in the public security bureau, maintaining their professional community, and many people still think that procedure is a minor issue, while combating crime is a major issue," You Wei analyzed.
In the 14 cases without resulting in death, there were four cases where the torturers received suspended sentences, three cases where they were exempted from punishment after admitting guilt, and two cases where they were found not guilty, accounting for 64% of such cases, nearly one-third of the total number of cases counted.
He explained that last year's first case of illegal evidence exclusion in Ningbo, the nationwide notification required by the procuratorial system, including the two evidence rules previously issued, are all signals of reduced tolerance for torture. Now, the procuratorate increasingly emphasizes learning interrogation techniques, and this revision of the Criminal Procedure Law also proposes to authorize the procuratorate with technical investigative means, indicating attention to the issue of torture.
This aligns with the observations of practitioners and scholars regarding actual practice.
You Wei from the Judicial Research Center of East China University of Political Science and Law also observed that in practice, cases where individuals are held accountable for implementing torture for confession are extremely rare: "There are basically two types, one being those proven to be wrongful convictions; the other being those who lose control during torture, resulting in immediate fatalities."
Legal Weekly reporter Chen Xiao
Traditional Lunar New Year celebrations have yet to pass, but the public security and procuratorial systems of Xiangshui County, Jiangsu Province, are already restless.
Xu Mingxuan: Who will uncover the mysteries of the Xiangshui torture for confession case?
Source: [Legal Weekly]
Difficulty in providing victim proof
Renowned criminal defense lawyer Chen Youxi described a very strange yet common phenomenon he observed in China's judicial status quo: "Court criminal judgments uniformly reject allegations of torture for confession by lawyers and defendants as 'lacking substantial evidence.'"
Zhou Qinghua, head of the Civil and Administrative Division of the Hubei Provincial People's Procuratorate, once wrote an article pointing out that due to legislative reasons, except in cases resulting in disability or death, no matter how serious the circumstances or how notorious the impact, in judicial practice, torture crimes can only be sentenced to light penalties of less than three years." Moreover, in actual penal enforcement, fewer real sentences are served, more suspended sentences are given, fewer criminal responsibilities are pursued, and more administrative punishments are imposed."
Statistical results show that among the 30 cases, 16 were pursued criminally due to the death of the suspect, accounting for more than half. Six cases involved discovering the real culprit or another perpetrator, accounting for a quarter. That is, more than 75% of the cases were initiated due to fatal incidents or discovery of wrongful cases.
Wu Qiao: Must ask layer by layer about the Xiangshui torture for confession case
Prohibition of torture for confession has been repeatedly emphasized, yet continues unabated. Why?
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No pursuit unless an incident occurs
Regarding the awkward situation of the application of Article 247 of the Criminal Law concerning the crime of torture for confession in reality, some scholars have proposed that the crime of torture for confession should be abolished. In cases of minor injuries, victims should initiate criminal self-litigation to pursue responsibility. In other situations, prosecution should be initiated under charges of intentional homicide, involuntary manslaughter, intentional injury, or involuntary grievous bodily harm to hold responsible parties accountable. This aims to "gradually change the absurd phenomenon in judicial practice where responsibility is only pursued after wrongful convictions are discovered."
Caught in the "lenient" criminal responsibility trap
In the research report titled "Survey Report on the Current Status of Illegal Investigation Procedures in Public Security Organs" conducted several years ago by Zhou Xin, a scholar from the People's Public Security University of China, it was also disclosed that in practice, cases of torture for confession with evidential recognition are rarely exposed in grassroots public security organs, unless serious consequences occur. "During interrogations, it is common for investigators to employ mild beatings, disguised corporal punishment, relay-style questioning, sleep deprivation, etc., causing unbearable physical and mental distress that is difficult to detect and leaves no marks afterward."
Therefore, some scholars criticize that lenient accountability is one of the root causes of torture. Wang Lin, associate professor at the Law School of Hainan University, believes that most accountability for torture has not been pursued under the crime of intentional injury with "severe penalties," but rather under the crime of torture for confession with "leniency," violating current provisions of the Criminal Law.
Renowned criminal law scholar Professor Gao Mingxuan, who participated several times in the establishment and amendment of Chinese criminal law, said in an interview with Legal Weekly that Article 247 of the Criminal Law demonstrates the severe stance of legislators against torture for confession, reflecting the party's consistent policy. In the 1979 Criminal Law, the words "strictly prohibited" were specifically added before the crimes of torture for confession, illegal detention, etc., personally added by Peng Zhen, who suffered greatly from torture for confession and illegal detention during the Cultural Revolution, thus reminding everyone to pay particular attention.
"The future may see the crime of torture for confession revert from a result-based offense back to a conduct-based offense, returning to the original legislative intent," said the aforementioned deputy procurator-general on secondment.
The scholar serving as the deputy procurator-general explained to Legal Weekly that the most important reason is indeed the limitation of current investigation skills and levels. Without relying on torture for confession to obtain confessions, some cases would indeed be impossible to resolve.
"Investigating cases not only seeks legal effects but also considers social effects. If the crime was indeed committed by the suspect, even if subjected to torture for confession, the public can勉强accept it. Conversely, if it is clear that the suspect indeed committed the crime but cannot be handled due to evidentiary reasons, the public finds it harder to accept the current state of justice. What the public truly opposes most is the innocent suspect being tortured for confession when no crime was committed," the aforementioned deputy procurator-general stated.