Opinion; Subjects: CHINA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.12-15267
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its sixty-third session, 30 April-4 May 2012
No. 7/2012 (China)
Communication addressed to the Government on 16 January 2012
Concerning: Chen Wei
The Government replied to the communication on 17 April 2012.
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, which extended and clarified the Working
Group’s mandate 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 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 or
her sentence or despite an amnesty law applicable to the detainee) (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);
(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);
United Nations
A/HRC/WGAD/2012/7
General Assembly
Distr.: General
13 July 2012
Original: English
A/HRC/WGAD/2012/7
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(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; or
disability or other status, and which aims towards or can result in ignoring the equality of
human rights (category V).
Submissions
Communication from the source
3.
Mr. Chen Wei, a Chinese citizen, is a human rights activist.
4.
The source reports that on 20 February 2011, Mr. Chen was summoned for
interrogation by Chinese National Security officers from a unit in the Suining City Public
Security Bureau. It is unknown whether Mr. Chen was presented with a warrant or any
other decision by a public authority. Mr. Chen’s home was subsequently searched and
officers allegedly confiscated his computer and other materials belonging to him. Mr. Chen
was placed in Suining City Detention Centre, where he remains to date.
5.
The source reports that on 21 February 2011, the Suining City Public Security
Bureau issued a formal notice stating that Mr. Chen was being detained on a criminal
charge of “inciting subversion of State power” under Article 105(2) of the Criminal Law of
the People’s Republic of China. On 28 March 2011, it announced that Mr. Chen had been
formally arrested on the same charge.
6.
Since his arrest, Mr. Chen has been refused access to his family and has had very
limited access to his lawyers. Mr. Chen was brought to trial on 23 December 2011 before
the Suining Municipal Intermediate People’s Court of Sichuan Province on charges of
“inciting subversion of State power”. He was sentenced to nine years’ imprisonment and
deprivation of his political rights for a further two years.
7.
The source alleges that the indictment against Mr. Chen referred to articles he wrote
for foreign websites on topics related to the political system and human rights in the
People’s Republic of China.
8.
The source reports that Mr. Chen was one of the students who participated in the
1989 protests held in Tiananmen Square. He had been imprisoned in Qincheng prison in
Beijing and released in January 1991. Subsequently, in May 1992, Mr. Chen was again
arrested for commemorating the events of 4 June 1989, and for organizing a political party,
and was sentenced to five years’ imprisonment. According to the source, Mr. Chen has in
recent years emerged as a leading figure in the organization of various human rights
activities in Sichuan Province alongside Mr. Liu Xianbin, who is the subject of Opinion
No. 23/2011 of the Working Group. Mr. Chen is also a signatory of Charter 08, a document
containing a number of reform proposals which was co-written by Mr. Liu Xiaobo, who is
the subject of Opinion No. 15/2011 of the Working Group.
9.
On 26 December 2011, the United Nations High Commissioner for Human Rights
expressed concern that “[t]he conviction and extremely harsh sentencing of Chen Wei
indicates a further tightening of the severe restrictions on the scope of freedom of
expression in China that has been seen over the last two years”. The United Nations High
Commissioner for Human Rights called “upon Chinese authorities to release any person
detained for peacefully exercising his or her right to freedom of expression”.
10.
In light of the foregoing, the source submits that Mr. Chen’s detention is arbitrary as
it arises from the peaceful exercise of his rights to freedom of opinion and expression as
provided for under article 19 of the Universal Declaration of Human Rights.
A/HRC/WGAD/2012/7
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Response from the Government
In its response, the Government provided the Working Group with the following
information:
11.
Mr. Chen Wei, unemployed, had been sentenced in December 1994 to five years’
imprisonment for the offence of endangering national security and deprived of political
rights for two years. He was released on 28 May 1997.
12.
On 23 December 2011, Sichuan province Suining City Intermediate People’s Court
conducted a trial and found that, since 2009, Mr. Chen had seriously violated specific
regulations of Chinese Criminal Law endangering society by way of rumours, defamation,
etc. to slander and to instigate the overthrow of the existing State power. The court
concluded that he should be punished according to the law.
13.
Mr. Chen had been sentenced for the offence of endangering national security, did
not repent after serving his previous sentence and again committed the offence of
endangering national security. As a repeat offender, he should therefore be punished
severely according to the law.
14.
The Court of First Instance sentenced Mr. Chen to nine years’ imprisonment for the
offence of inciting subversion of State power, and deprived him of political rights for two
years.
15.
During the trial proceedings, the Court had fully guaranteed Mr. Chen’s litigation
rights, except for that of self-representation; however the two lawyers assigned to him also
fully delivered their opinions.
16.
Mr. Chen’s relatives were present at the hearing. The Court handled the case fully in
accordance with the law and facts, the trial procedures were legal, and there was no
question of arbitrary detention. After the Court announced its first instance verdict, Mr.
Chen refused to accept the verdict and appealed against the decision. The first instance
verdict of the Court has already become legally effective.
Further comments from the source
17.
The source opined that the Government has presented no evidence or arguments
(other than concluding statements) to refute the allegation that Mr. Chen’s detention was
and remains arbitrary under international human rights law because he is currently serving
a nine-year prison sentence for “inciting subversion of State power” (Article 105(2) of the
Criminal Law) solely for his writings. The indictment issued in his case cites as “evidence”
of “inciting subversion” four essays written by Mr. Chen between March 2009 and January
2011: “The Disease of the System and the Medicine of Constitutional Democracy;” “The
Key to China’s Democratization is the Growth of a Civil Opposition;” “The Feet of the
Rights Defence [Movement] and the Brain of the Constitutional Democracy Movement;”
and “Thoughts on Human Rights Day Hunger Strike.”
18.
In the source’s view, the Government’s reply merely repeats the indictment’s
assertions that Mr. Chen’s writings constituted “spreading rumours” and “defamation.” It is
clear that Mr. Chen’s alleged offences were exercises of free expression protected not only
by the Universal Declaration of Human Rights and the International Covenant on Civil and
Political Rights (which China has signed but not ratified), but also by China’s Constitution
(Article 35). Accordingly, the source contends that Mr. Chen’s deprivation of liberty is
arbitrary under category II of the Working Group’s methods of work.
19.
With respect to the Government’s claim that the court fully guaranteed Mr. Chen’s
procedural rights, including his right to self-defence and that his lawyers were permitted to
fully present their defence opinions, it is not, in the source’s view, supported by the facts.
A/HRC/WGAD/2012/7
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Chinese authorities consistently prevented Mr. Chen from meeting with the defence
counsel during his pre-trial detention, in violation of article 33 of the Chinese Lawyers’
Law. Mr. Chen met with a lawyer only three times between 20 February 2011—the day he
was detained—and 23 December 2011 – the day he was tried. Before the trial, Mr. Chen’s
lawyers were warned by police not to get “tied up in details” during their defence
statements and not to give any media interviews. During the trial, Mr. Chen was not
permitted to make a final statement in his defence – in violation of article 160 of the
Criminal Procedure Law of China. In addition, only three of Chen’s supporters (his wife,
sister and brother) were present at the hearing, as numerous police surrounded the
courthouse and packed the courtroom with government officials. More than 200 police
vehicles blocked off roads leading to the courthouse to prevent supporters from attending
the proceedings, and police forcibly dragged away activists who approached the scene. Mr.
Chen’s trial proceeded as a de facto closed hearing, in violation of article 152 of the
Criminal Procedure Law, which requires first instance trials to be heard in public. The
source concludes that, in light of the deprivation of Mr. Chen’s fair trial rights, his
detention is also arbitrary under Category III.
Discussion
20.
In its response, the Government does not refute the allegation that Mr. Chen was
convicted for the online publication of his articles calling for democratic reforms. However
the Government stated that Mr. Chen was arrested and sentenced for “inciting subversion
of the State power and overthrow of the socialist system.”
21.
The Working Group considers that Mr. Chen was arrested and convicted for the
exercise of his right to freedom of expression through the publication of articles and reports
critical of the authorities. The fact that these peaceful expressions of opinion are
criminalized under domestic law as the “incited subversion of State power and overthrow
of the socialist system” does not deprive him of his right under article 19 of the Universal
Declaration of Human Rights. In this regard, the Working Group recalls that in another
Opinion concerning the People’s Republic of China it emphasized that, although national
laws might punish such conduct, it is, however, protected by the rights to freedom of
opinion and expression and association in international law.1
22.
The Working Group reiterates that, in conformity with its mandate, it must ensure
that national law is consistent with the relevant international provisions set forth in the
Universal Declaration of Human Rights. Consequently, even if the deprivation of liberty is
in conformity with national legislation, the Working Group must ensure that it is also
consistent with the relevant provisions of international law.2
23.
The Working Group recalls that the holding and expression of opinions, including
those which are not in line with official government policy, are protected by article 19 of
the Universal Declaration of Human Rights.
24. In the Working Group’s view, Mr. Chen was deprived of his liberty for peacefully
exercising his right to freedom of opinion and expression, as guaranteed under article 19 of
the Universal Declaration of Human Rights. Mr. Chen’s deprivation of liberty thus falls
within category II of the categories applicable to the consideration of cases submitted to the
Working Group.
1 Opinion No. 32/2007 (China) of the Working Group on Arbitrary Detention, para. 27.
2 See, inter alia, Opinion No. 13/2007 (Viet Nam) of the Working Group on Arbitrary Detention,
para. 29.
A/HRC/WGAD/2012/7
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25.
The Working Group shares the concern of the United Nations High Commissioner for Human
Rights that “[t]he conviction and extremely harsh sentencing of Chen Wei indicates a further tightening of
the severe restrictions on the scope of freedom of expression in China that has been seen over the last two
years”.3
Disposition
26.
In the light of the above, the Working Group on Arbitrary Detention renders the
following opinion:
The deprivation of liberty of Mr. Chen is arbitrary, being in contravention of article
19 of the Universal Declaration of Human Rights, and falls within category II of the
categories applicable to the consideration of cases submitted to the Working Group.
27.
Consequent upon the Opinion rendered, the Working Group requests the
Government to take the necessary steps to remedy the situation of Mr. Chen Wei and bring
it into conformity with the standards and principles set forth in the Universal Declaration of
Human Rights.
28.
The Working Group believes that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Chen and grant him an enforceable
right to compensation.
29.
The Working Group also calls upon the Government to consider ratifying the
International Covenant on Civil and Political Rights.
[Adopted on 2 May 2012]
3 See “China: UN deeply concerned by conviction of human rights activist”, UN News Centre, 26
December 2011.