The 1982 Constitution of the People's Republic of China (as amended through 2018), which "is the fundamental law of the state and has supreme legal authority" guarantees the protection of the dignity of all its citizens.Preamble and Art. 38, 1982 Constitution of China (as amended).The Constitution does not protect the right to life or to freedom from torture or other forms of inhumane treatment.
The 1982 Constitution does not specifically refer to the police or other law enforcement bodies. It stipulates, however, that:
All state organs, the armed forces, all political parties and public organizations, and all enterprises and undertakings must abide by the Constitution and the law.Art. 5, 1982 Constitution of China (as amended).
Under Article 24 of Taiwan's 1947 Constitution, any public functionary
who, in violation of law, infringes upon the freedom or right of any person shall, in addition to being subject to disciplinary measures in accordance with law, be held responsible under criminal and civil laws. The injured person may, in accordance with law, claim compensation from the State for damage sustained.
|1966 Covenant on Civil and Political Rights (ICCPR)||Signatory*|
|ICCPR Optional Protocol 1||N/A|
|1984 Convention against Torture (CAT)||State Party|
|Competence of CAT Committee to receive individual complaints||No|
|CAT Optional Protocol 1||N/A|
* Both Hong Kong and Macau are covered by the ICCPR following their return to China by, respectively, the United Kingdom (in 1992) and Portugal (in 1997).
|1998 Rome Statute of the International Criminal Court||Not party|
There is not yet a regional human rights treaty to which Asian nations can adhere.
Police Use of Force
The People’s Police Law (as amended in 2012) contains several articles governing the use of force by police officers. According to Article 8:
If a person seriously endangers public order or constitutes a threat to public security, the people's policemen of public security organs may forcibly take him away from the scene, detain him in accordance with law, or take other measures as provided by law.
The People’s Police Law gives police officers the right to disperse assemblies "and forcibly take away from the scene or immediately detain persons who refuse to obey".Art. 17, People’s Police Law of the People's Republic of China (as amended in 2012).The management of assemblies is also regulated by the Law on Assemblies, Processions and Demonstrations (as amended in 2009).See also the Regulation on the Implementation of the Law of the People's Republic of China on Assemblies, Processions and Demonstrations, adopted by the State Council (as amended in 2011).Article 27(3) of the Law authorises police officers to forcibly take away and detain those who refuse to dismiss an assembly, a procession or a demonstration and those who cross the established temporary security lines or enter a certain peripheral prohibited space in an emergency. In using force, however, police officers may not:
- extort a confession by torture or subject criminals to corporal punishment or maltreat them
- unlawfully deprive other people of, or restrict, their freedom of the person, or illegally search a person, his or her belongings, residence or place
- assault another or instigate others to do so.Art. 22, People’s Police Law of the People's Republic of China (as amended in 2012).
With respect to firearms, Article 10 allows police officers, "in accordance with the relevant regulations of the State, [to] use arms in case of emergencies such as resisting arrest, rebellion, escaping from prison, grabbing firearms or other acts of violence". Other instruments, notably the 1999 Regulations on Use of Police Instruments and Arms by the People's Police, also regulate police use of force. The Regulations generally provide that less-lethal weapons and firearms must only be used when necessary. Firearms may be used by the police if less-lethal weapons and measures prove ineffective. However, the Regulations allow the use of firearms in case of riot or rescue of a detainee from custody.
There are specific regulations governing police use of force in Hong Kong, but these are not publicly available.
Under Article 3 of the Police Power Exercise Act (as amended in 2011),
When the police exercise their power, it may not exceed what is necessary for accomplishing their goals, and they shall employ the approaches that can minimise infringement upon people’s rights. ... When the police have accomplished their goals through the use of their power or after judging the situation, believe that the goals cannot be accomplished, they shall stop their operation as allowed by their power or upon the request of the obligor or the interested party.
Police use of firearms is regulated by the Act Governing the Use of Police Weapons (as amended in 2002). Article 4 allows the police to use knives or firearms under the following circumstances:
1. When an extreme mishap is imminent and it is urgent to maintain the public order.
2. When the uproar is reaching the point of causing social disorder.
3. When the person to be arrested or detained by law resists arrest or escapes, or anyone helps him/her resist the arrest or escape.
4. When either the land, building, tools and supplies, vehicles, boats, aircrafts under police’s protection or people’s lives, bodies, freedom, or properties is endangered or under threat.
5. When the police’s lives, bodies, freedom or equipments are endangered or threatened, or there is enough evidence to believe that the foresaid parts will be endangered.
6. When a person carrying a weapon is believed to cause trouble, and he/ she refuses to be at the police’s command after being ordered to drop the weapon.
Use of Force in Custodial Settings
With respect to prisons, according to Article 46 of the Prison Law (as amended in 2012), firearms may be used:
(1) if any prisoner is assembling a crowd to make a riot or rebellion;
(2) if any prisoner is escaping or resisting arrest
(3) if any prisoner is committing physical assault or destruction with a lethal weapon or other dangerous articles to endanger the safety of another person's life or property
(4) if any prisoner is being seized and rescued by force; or
(5) if any prisoner is seizing a weapon by force.
There is no independent, external police oversight body in China. Under Article 42 of the People's Police Law, however, the police
in performing their duties, shall accept supervision by the People's Procuratorates and administrative supervisory organs in accordance with law.
A specific procedure exists in Hong Kong. To make a complaint about the conduct of any police officer, the complainant must file a complaint at the Complaints Against the Police Office (CAPO), a unit within the Hong Kong Police Force. All investigations by CAPO are monitored by the Independent Police Complaints Council (IPCC). When CAPO has completed the investigation of a Reportable Complaint, it will submit the investigation report, together with relevant files, documents and materials, to the IPCC for review.
Views and Concluding Observations of United Nations Treaty Bodies
In its 2016 Concluding Observations on China, the Committee against Torture stated that it had
received numerous reports from credible sources that document in detail cases of torture, deaths in custody, arbitrary detention and disappearances of Tibetans. In addition, allegations have been received about acts directed against Uyghurs and Mongolians.Committee against Torture, Concluding Observations on China, UN doc. CAT/C/CHN/CO/5, 3 February 2016, §40.
It urged China to
ensure that all custodial deaths, disappearances, allegations of torture and ill-treatment and reported use of excessive force against persons in the autonomous region of Tibet and neighbouring Tibetan prefectures and counties, and in the Xinjiang Uyghur Autonomous Region, are promptly, impartially and effectively investigated by an independent mechanism.Committee against Torture, Concluding Observations on China, UN doc. CAT/C/CHN/CO/5, 3 February 2016, §41.
In 2013, with respect to Hong Kong, the Human Rights Committee issued its Concluding Observations, expressing concern
about reports of excessive use of force by members of the police, not compatible with the United Nations Principles on the Use of Force and Firearms by Law Enforcement Officials, in particular by the inappropriate use of pepper spray to break up demonstrations to restore order, notably with regard to demonstrations surrounding the annual Hong Kong march on 1 July 2011, the visits of Vice-Premier and President of China, respectively in August 2011 and July 2012....
The Committee recommended that Hong Kong “increase its efforts to provide training to the police with regard to the principle of proportionality when using force, taking due account of the UN Principles on the Use of Force and Firearms by Law Enforcement Officials.”
There is no regional human rights body to which alleged victims of excessive use of police force can complain.
Zhang Lei case (2013)
This case concerned a fatal shooting by a police officer in which he shot and killed two drunk men who had pushed and scratched the police officer while he was discharging his duty. The officer claimed that he only fired when the men tried to grab his gun, this was not supported by the evidence. In the Guizhou Intermediate People’s Court, the officer was sentenced to eight years' imprisonment for intentional killing as even though he was acting in self-defence, the use of force exceeded what was necessary in the circumstances.
In 2016, addressing senior government officials, Chinese President Xi Jinping vowed to address the problems of police brutality by putting in place tougher regulations. According to a report in the South China Morning Post, the Minister for Public Security, Guo Shengkun, later emphasised the need to educate the country’s police force to understand and “consciously respect the law.” Guo also called for better training to boost legal literacy and law enforcement capacity among all police officers, especially those at local levels.
[We need] to educate the whole police force to consciously respect the law, study the law and abide by the law and to strictly standardise law enforcement to ensure justice.
In 2017, an academic paper concluded that there existed a code of silence among Chinese police officers and a "lenient attitude toward the use of excessive force".