A/HRC/WGAD/2011/15

GE.12-11192

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its sixtieth session, 2–6 May 2011

No. 15/2011 (China)

Communication addressed to the Government on 3 February 2011

Concerning: Liu Xiaobo

The State is not a party to the International Covenant on Civil and Political Rights.

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the former Commission on Human Rights. The mandate of the Working Group was

clarified and extended in Commission resolution 1997/50. The Human Rights Council

assumed the mandate in its decision 2006/102. The mandate was extended for a further

three-year period in Council resolution 15/18 of 30 September 2010.

2.

The Working Group forwarded a communication to the Government on 3 February

2011 and received a reply on 13 April 2011. The Working Group welcomes the cooperation

of the Government.

3.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his

sentence or despite an amnesty law applicable to him) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

United Nations

A/HRC/WGAD/2011/15

General Assembly

Distr.: General

27 February 2012

Original: English

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(d)

When asylum-seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

(e)

When the deprivation of liberty constitutes a violation of international law for

reasons of discrimination based on birth; national, ethnic or social origin; language;

religion; economic condition; political or other opinion; gender; sexual orientation;

disability or other status, and which aims towards or can result in ignoring the equality of

human rights (category V).

4.

The case concerns Liu Xiaobo. The Working Group has at the same time considered

the case of Liu Xia, who is married to Liu Xiaobo (see opinion No. 16/2011 adopted on 5

May 2011).

5.

The Working Group further points out that this is only one of several opinions in

which it has been alleged that China is in violation of its international human rights

obligations (see opinions No. 26/2010 and No. 29/2010). The Working Group reminds

China of its duties to comply with international human rights obligations not to detain

arbitrarily, to release persons who are arbitrarily detained, and to provide compensation to

them. The duty to comply with international human rights rests not only on the Government

but on all officials, including judges, police and security officers, and prison officers with

relevant responsibilities. No person can contribute to human rights violations.

6.

The United Nations High Commissioner for Human Rights, expressing concern for

the fate of human rights defenders in China, has on several occasions mentioned Liu

Xiaobo, and called for his release.

7.

After Liu Xiaobo was awarded the Nobel Peace Prize, his case was the subject of a

press release by the Chairperson of this Working Group, together with the Special

Rapporteur on the promotion and protection of the right to freedom of opinion and

expression, the Special Rapporteur on the independence of judges and lawyers, and the

Special Rapporteur on the situation of human rights defenders, on 11 October 2010. The

Working Group now turns to the merits of the case, following submissions from the source

and the Government’s reply.

Submissions

Communication from the source

8.

The case summarized hereinafter was reported by the source to the Working Group

on Arbitrary Detention as follows: Liu Xiaobo, a citizen of China, born 28 December 1955,

is a human rights activist and literary scholar. He is usually resident in Qixian in Beijing.

9.

He was arrested on 8 December 2008 at his home by police officers from the Beijing

Public Security Bureau. The police officers did not state reasons for his arrest, providing an

arrest warrant which did not indicate any specific offence. The police officers searched the

home of Liu Xiaobo and seized computers and other materials.

10.

Liu Xiaobo was held incommunicado from 8 December 2008 to 31 December 2008,

and was denied access to his family and legal counsel. He had two visits by his spouse at

the Xiaotangshan Conference Centre after 31 December 2008, but was otherwise held in

solitary confinement until 23 June 2009.

11.

On 23 June 2009, Liu Xiaobo was formally arrested on charges of inciting

subversion of state power. He was detained at the Beijing No. 1 Detention Centre until 24

May 2010, when he was moved to Jinzhou Prison in Liaoning Province, where he remains

in detention.

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12.

On 10 December 2010, the Beijing Municipal People’s Procuratorate Branch No. 1

submitted the indictment against Liu Xiaobo. The prosecution asserted that Liu Xiaobo had

disregarded state laws and, by means of rumour mongering and slander, incited subversion

of state power and the overthrow of the socialist system in violation of article 105(2) of the

Criminal Law of the People’s Republic of China. The source alleges that these charges

were based on Liu Xiaobo’s participation in “Charter 08” and six articles he has published.

The source further informs the Working Group that “Charter 08” is a document drafted by a

number of intellectuals, including Liu Xiaobo, calling for political reform in China.

13.

On 23 December 2009, Liu Xiaobo was prosecuted before the Beijing Municipal

No. 1 Intermediate People’s Court. The source alleged that Chinese authorities significantly

limited access to the proceeding; journalists, foreign diplomatic representatives, and all but

two members of Liu Xiaobo’s family were prevented from entering the courthouse for the

trial. The police prevented Liu Xia, the spouse of Liu Xiaobo, from leaving her home and

attending the trial. The proceedings lasted for two hours, and the court imposed a time limit

of 14 minutes for Liu Xiaobo’s defence.

14.

On 25 December 2009, Liu Xiaobo was convicted for inciting subversion of state

power, and sentenced to 11 years’ imprisonment and 2 years’ loss of political rights. On 9

February 2010, the Beijing Municipal High People’s Court rejected the appeal.

Response from the Government

15.

The Government’s reply was received on 13 April 2011. It states that citizens of

China enjoy the right to freedom of speech, including the right to criticize the government.

The Government notes that freedom of speech is limited by articles 51 and 54 of the

Constitution of the People’s Republic of China, in line with article 19, paragraph 3, of the

International Covenant on Civil and Political Rights. The Government argues that the

justifications for limitations on the right to freedom of expression contained in article 19,

paragraph 3, of the Covenant are present in this case.

16.

The Government states that China is a nation respecting the rule of law. Liu Xiaobo

was convicted according to the criminal code offences for inciting subversion of state

power, and not for the promotion or protection of human rights. The courts strictly followed

domestic criminal procedural law, allowing Liu Xiaobo and his lawyers to present a

defence with Liu Xiaobo’s family members present at the hearing.

Comments from the source

17.

The source claims that Liu Xiaobo’s detention is a direct result of his writings,

including the “Charter 08” initiative, containing peaceful calls for democratic reform and

the protection of human rights in China.

18.

The indictment and verdict cite Liu Xiaobo’s participation in the production of these

materials as the basis for his prosecution. The Government’s position that it prosecuted Liu

Xiaobo under a criminal charge does not change that the core charges against him directly

relate to his exercise of the fundamental right to freedom of expression.

Discussion

19.

Article 9 of the Universal Declaration of Human Rights prohibits arbitrary arrest and

detention, declaring that “no one shall be subjected to arbitrary arrest, detention or exile”.

20.

The prohibition of arbitrary detention is customary international law, authoritatively

recognized as a peremptory norm of international law or jus cogens; see, inter alia, the

established practice of the United Nations as expressed by the Human Rights Committee in

its general comment No. 29 (2001) on states of emergency (CCPR/C/21/Rev.1/Add.11, 31

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August 2001, para. 11), which this Working Group follows in its opinions. Of assistance is

the judgment of the International Court of Justice in Ahmadou Sadio Diallo (Republic of

Guinea v. Democratic Republic of the Congo) of 30 November 2010 and in particular the

discussions by Judge Cançado Trindade on arbitrariness in customary international law,*

with which the Working Group agrees. The International Covenant on Civil and Political

Rights, other treaties and conventions, and the jurisprudence of the United Nations and

other treaty bodies are important sources in determining the extent of what constitutes

arbitrary detention in customary international law. The constant jurisprudence of the rulings

contained in the opinions of this Working Group, and of the other United Nations special

procedure mandate holders, dealing with full range of human rights treaties and customary

international law, is yet another source.

21.

The Working Group will first address the issues relating to the pretrial detention of

Liu Xiaobo. The starting point is the requirements that follow from article 9 of the

Universal Declaration of Human Rights (see the 2009 annual report of the Working Group,

A/HRC/13/30, 15 January 2010, para. 61). Liu Xiaobo was not informed, at the time of

arrest, of the reasons for his arrest or promptly informed of any charges against him. He

was not brought promptly before a judge. He was held incommunicado for an extended

period and not granted access to legal counsel. The pretrial detention of Liu Xiaobo

constitutes a clear violation of article 9.

22.

The Working Group will now turn to the trial and sentencing of Liu Xiaobo. The

Government states that citizens of China enjoy the right to freedom of speech, including the

right to criticize the government. The Government notes that freedom of speech is limited

by articles 51 and 54 of the Constitution of the People’s Republic of China, and article 19,

paragraph 3, of the International Covenant on Civil and Political Rights. Article 51 of the

Constitution of the People’s Republic of China provides that “the exercise by citizens of the

People’s Republic of China of their freedoms and rights may not infringe upon the interests

of the state, of society and of the collective, or upon the lawful freedoms and rights of other

citizens”. Article 54 of the Constitution of the People’s Republic of China provides that “it

is the duty of citizens of the citizens of the People’s Republic of China to safeguard the

security, honour and interest of the motherland; they must not commit acts detrimental to

the security, honour and interests of the motherland”. Article 19, paragraph 3, of the

International Covenant on Civil and Political Rights provides that “the exercise of the rights

provided for in paragraph 2 of this article carries with it special duties and responsibilities.

It may therefore be subject to certain restrictions, but these shall only be such as are

provided by law and are necessary: (a) for respect of the rights and reputations of others;

(b) for the protection of national security or of public order (ordre public), or of public

health or morals”. The Government’s position is that the limitations on the right to freedom

of expression contained in article 19, paragraph 3, of the Covenant apply in this case.

23.

The starting point for the Working Group is the requirements that follow from

articles 9 and 10 of the Universal Declaration of Human Rights. The total or partial non-

observance of the relevant international standards contained in the Universal Declaration of

Human Rights relating to the right to a fair trial can be of such gravity so as to confer on the

deprivation of liberty, of whatever kind, an arbitrary character. The trial was organized in a

way which constitutes a breach of fairness. Despite the difficult balancing issues that are

involved in free-speech cases, Liu Xiaobo’s defence was limited to 14 minutes. His

detention thus falls within category III of the categories applicable to the cases submitted to

the Working Group.

* See, respectively, International Court of Justice, Ahmadou Sadio Diallo (Republic of Guinea v.

Democratic Republic of the Congo), Merits, Judgment of 30 November 2010, ICJ Reports 2010,

para. 79; and Separate Opinion of Judge Cançado Trindade, pp. 26-37, paras. 107-142.

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24.

A detention is also arbitrary if it is the result of a judgment or sentence for the

exercise of the rights and freedoms of the Universal Declaration of Human Rights.

25.

Article 19 of the Universal Declaration provides that “everyone has the right to

freedom of opinion and expression; this right includes freedom to hold opinions without

interference and to seek, receive and impart information and ideas through any media and

regardless of frontiers”.

26.

Restrictions on the right to political free speech are strongly circumscribed. The

Government has not shown in this case a justification for the interference with Liu

Xiaobo’s political free speech. The requirement of proportionality that applies to such

restrictions is not satisfied by the reasons provided by the Government. His detention also

falls within category II of the categories applicable to the cases submitted to the Working

Group.

27.

Customary international law provides for an enforceable right of compensation. The

Working Group has in its jurisprudence continued to develop, based on general principles,

the right to a remedy, which primarily is a right to immediate release and to compensation.

In this case, Liu Xiaobo is to be released immediately. He also has a claim to compensation.

The reasons that may be given for his detention cannot be used against a claim for

compensation.

Disposition

28.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Liu Xiaobo, being in contravention to articles 9, 10 and

19 of the Universal Declaration of Human Rights, is arbitrary, and falls within

categories II and III of the categories applicable to the cases submitted to the

Working Group.

29.

Consequent upon the opinion rendered, the Working Group requests the

Government to take the necessary steps to remedy the situation, which include the

immediate release of and adequate reparation to Liu Xiaobo.

30.

The Working Group would like to take this opportunity to invite the Government of

China to ratify the International Covenant on Civil and Political Rights.

[Adopted on 5 May 2011]