Cris Boonen • Criminalising an Ethnic Minority: The Case of the Uyghurs in China
reality, however, this has led many arrested Uyghurs to face either unfair trials or no trial at all under the so-called “administrative detention”. These two practices are both rejected by the international community and human rights law. Since the intensification of the “Strike Hard” campaign, many Uyghurs that were detained for involvement in terrorist crimes have not had access to a fair trial, which is a human right laid down in Article 10 of the Universal Declaration of Human Rights. They are frequently not given the protections needed regarding access to legal counsel and family, and open trials and decisions are sometimes believed to be predetermined. In 2008, the Committee Against Torture expressed concern over the continued problems in the criminal justice system of China: a) Failure to bring detainees promptly before a judge, thus keeping them in prolonged police detention without charge for up to 37 days or in some cases for longer periods; b) Absence of systematic registration of all detainees and failure to keep records of all periods of pre-trial detention; c) Restricted access to lawyers and independent doctors and failure to notify detainees of their rights at the time of detention, including their rights to contact family members; d) Continued reliance on confessions as a
e)
common form of evidence for prosecution, thus creating conditions that may facilitate the use of torture and ill-treatment of suspects […]. Furthermore, while the Committee appreciates that the Supreme Court has issued several decisions to prevent the use of confessions obtained under torture as evidence before the courts, Chinese Criminal procedure law still does not contain an explicit prohibition of such practice, as required by article 15 of the Convention. The lack of an effective independent monitoring mechanism on the situation of detainees.45
Under the “Strike Hard” campaign, the speed at which cases are processed through the criminal justice system leaves not muc h room for unfolding effective criminal defence. Significantly, the Max Planck Institute concluded in 2006 that the assignment of defence council often takes place after the defendant has already confessed and after investigation has been finalized.46 This problem with the defence is aggravated by the fact that lawyers that defend the rights of Uyghur individuals or that express a critical view on the human rights situation in East Turkestan are frequently harassed. In 2008 the Committee Against Torture expressed its concern about information received according to which
45 Committee Against Torture. (2008). Consideration of Reports Submitted by States Parties Under Article 19
of the Convention. Geneva, 3-21 November 2008. Retrieved 12 October 2009 from http://www2.ohchr.org/english/bodies/cat/docs/CAT.C.CHN.CO.4.pdf 46 Albrecht, H.J. (2006). Strengthening the Defence in Death Penalty Cases in the People’s Republic of China.
Max Planck Institute for Foreign and International Criminal Law. Retrieved 14 October 2009 from http://www.mpicc.de/shared/data/pdf/fa_37_albrecht10_06.pdf 18