A/HRC/WGAD/2014/55

GE.15-02388 (E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its seventy-first session, 17–21 November 2014

No. 55/2014 (China)

Communication addressed to the Government on 26 June 2014

concerning Ziyuan Ren

The Government replied to the communication on 21 August 2014.

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 its resolution 1997/50. The Human Rights Council assumed the

mandate in its decision 2006/102 and extended it for a three-year period in its resolution

15/18 of 30 September 2010. The mandate was extended for a further three years in

resolution 24/7 of 26 September 2013. In accordance with its methods of work

(A/HRC/16/47 and Corr.1, annex), the Working Group transmitted the above-mentioned

communication to the Government.

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);

United Nations

A/HRC/WGAD/2014/55

General Assembly

Distr.: General

12 February 2015

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; 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.

The case summarized below was reported to the Working Group on Arbitrary

Detention as follows:

4.

Ziyuan Ren, a Chinese national, was formerly a Chinese teacher at No. 10 middle

school in Zoucheng City, Shandong Province. He has a strong interest in the issue of

democracy and often participated in online discussions about achieving democracy in

China. He wrote and published on the Internet an article entitled “The road to democracy”,

in which he expressed his view that people have the right to overthrow tyranny. Mr. Ren

also established an organization called Mainland Democracy Frontline.

5.

On 10 May 2005, Mr. Ren was arrested in Nantong City, Jiangsu Province, by the

Jining City Public Security Bureau. The arresting officer did not show a warrant for his

arrest. Mr. Ren was detained in Jining City Detention Center as of 16 June 2005.

6.

On 30 September 2005, the Jining City Intermediate People’s Court tried Mr. Ren

on a charge of “subversion of State power” through “attempting to establish the Mainland

Democracy Frontline” in order to “overthrow the reactionary and decadent rule of the

Chinese Communist Party”. Mr. Ren’s lawyer maintained his innocence.

7.

On 17 March 2006, the Jining City Intermediate People’s Court sentenced Mr. Ren

to 10 years of imprisonment, with three years of subsequent deprivation of his political

rights, pursuant to article 105 (1) of the Criminal Law of the People’s Republic of China. A

number of activists supporting Mr. Ren were prevented from attending the hearing.

Mr. Ren appealed his sentence to the Shandong Province High People’s Court on the same

day, but the Court rejected the appeal and his sentence was confirmed. Following the

sentencing, Mr. Ren was transferred to Shandong Provincial Prison.

8.

During various periods of his detention, Mr. Ren has been subjected to physical and

psychological torture and mistreatment. He has been beaten, including with steel pipes, by

the prison guards, which caused fractures to his vertebra and nose, and other serious

injuries. He has also been denied medical treatment, causing his health to greatly

deteriorate.

9.

Furthermore, he has been held in solitary confinement and not been permitted to

leave the floor where he has been held or to go outside of the prison building. He has also

not been allowed to speak to fellow prisoners and prison officials have confiscated

incoming letters and interrupted his telephone conversations, so as to completely isolate

him. In March 2010, the authorities reportedly began to place Mr. Ren under strict

surveillance. His family members have not been allowed to visit him and stopped receiving

letters from him in March 2010.

10.

At the last family visit in March 2010, Mr. Ren’s father learned that he had

contracted tuberculosis and was not receiving medical treatment. However, the authorities

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have rejected his family’s requests for him to be released on bail on medical grounds.

Mr. Ren remains in detention at Shandong Provincial Prison.

11.

The source submits that Mr. Ren’s detention is arbitrary, as he has been tried,

convicted and sentenced to imprisonment solely on the basis of the peaceful exercise of his

right to freedom of opinion and expression, as guaranteed under article 19 of the Universal

Declaration of Human Rights.

Response from the Government

12.

The Working Group on Arbitrary Detention addressed a communication to the

Government of the People’s Republic of China on 26 June 2014, requesting detailed

information about the current situation of Mr. Ren, and the legal provisions justifying his

continued detention and their compliance with international law. In its response of

21 August 2014, the Government provided the Working Group with the following

information:

13.

“Mr. Ren has long expressed dissatisfaction with society and has disseminated his

ideology to others, advocating the overthrow of the Government, including through the

Internet and in personal encounters. He plotted to establish an illegal organization, the

Mainland Democracy Frontline, collected funding for it, actively recruited members and

wrote the organization’s charter and the article ‘The road to democracy’, which sets out its

guiding principles and theoretical basis, explicitly calling for ‘an armed uprising to

overthrow the current regime’. His behaviour thus constituted the offence of inciting

subversion of State power.

14.

On 13 March 2006, the Jining City Intermediate People’s Court in Shandong

Province, hearing the case in first instance, sentenced Mr. Ren to 10 years’ imprisonment

and 3 years’ deprivation of his political rights for the offence of inciting subversion of State

power. After the verdict of the initial trial was announced, Mr. Ren appealed. On 3 July

2006 the High People’s Court of Shandong Province, having heard the case in accordance

with the law, decided to reject the appeal and uphold the original ruling. During the initial

proceedings, not only did Mr. Ren exercise his right to defend himself, but his designated

lawyer also delivered a full submission in his defence. During the second hearing of the

case Ren did not designate a defence lawyer, but the court of second instance attentively

heard the defence he made on his own behalf and fully respected his procedural rights.

Mr. Ren is now serving his sentence at a prison in Shandong Province.

15.

On 20 November 2012, at around noon, Mr. Ren became involved in an altercation

and a fight with another inmate over a trivial disagreement, as a result of which his nose

was broken. He was diagnosed and treated at the prison infirmary, and he fully recovered.

Prisons in Shandong Province recently conducted full medical check-ups for all inmates in

custody, with follow-up examinations for all those with a history of tuberculosis. The

examination showed that Mr. Ren’s health was good, with no signs of abnormalities.

16.

From the time he entered prison, Mr. Ren has enjoyed the right to communicate with

people and receive visitors, in accordance with the law. The prison has, in accordance with

the law, arranged for him to meet with his relatives and to make telephone calls to members

of his family. On 6 March 2010, Mr. Ren violated the prison regulations during a telephone

call with his father, and, in accordance with the law, on 15 April 2010, the prison

temporarily suspended his access to visits and family telephone calls. Mr. Ren, having

received guidance, undertook to observe the rules concerning visits and communications in

the future. In June 2014 the prison, acting in accordance with the law, restored his ability to

receive visits and family telephone calls.

17.

From the outset, after entering prison, Mr. Ren failed to obey the prison

administration, demonstrated quite poor conduct and seriously disrupted order in the

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facility. The treatment he received from the prison was completely in keeping with the law.

There was no situation in which he suffered ill-treatment or beatings or in which others

were incited to treat him in such a manner. Under the patient instruction of the prison staff,

Mr. Ren is now essentially able to comply with the prison rules and to obey the prison

administration.

18.

Since entering prison, Mr. Ren has never submitted any type of request for medical

attention outside the facility. Mr. Ren is now in good health, and there is no reason for

outside medical assistance.”

Further comments from the source

19.

In accordance with paragraph 15 of the Working Group’s revised methods of work,

the replies of the Government were brought to the attention of the source. The source

provided its comments on 4 November 2014, as follows:

20.

In regard to the claim that the behaviour of Mr. Ren constituted the crime of

“subversion of State power”, the source states that the booklet entitled “The road to

democracy”, in which Mr. Ren expressed his views that citizens have the right to overthrow

tyranny, was not published in any form.

21.

The source reports that, during the trial, the Prosecutor merely presented online

articles discussing the pursuit of democracy and freedom in China under the name

Mainland Democratic Frontline, an organization established by Mr. Ren. In the source’s

view, the Prosecutor failed to provide evidence that Mr. Ren had engaged in any behaviour

intended to “subvert State power,” or even that the organization Mainland Democratic

Frontline existed and operated in reality (that is, not just as the name of an organization that

appeared online).

22.

Accordingly, the source maintains that the conviction of Mr. Ren is based merely on

online articles in which Mr. Ren expressed his opinions on realizing democracy and

freedom in China. The source reiterates that the conviction and sentencing of Mr. Ren

clearly violated both international and Chinese laws, and that they constitute the

Government’s retaliation against Mr. Ren’s expression of political ideas. The Chinese

Constitution stipulates, in article 35, that “citizens of the People’s Republic of China enjoy

freedom of speech, of the press, of assembly, of association, of procession and of

demonstration”. According to article 105 of the Criminal Law of the People’s Republic of

China, only conduct (and not one’s ideas or opinions) proven to have the intention of

“subverting State power or overthrowing the socialist system” may constitute the crime of

“subversion of State power”.

23.

Regarding the allegations of the beatings suffered by Mr. Ren, the source contends

that prison guards had specifically instructed inmates to attack him. Furthermore, according

to the source, the frequent beatings suffered by Mr. Ren at the hands of guards or inmates in

combination with the denial of medical treatment have led to a severe deterioration in his

health.

24.

As to the fact that “the prison temporarily suspended [Mr. Ren’s] access to visits and

family telephone calls” because he had “violated the prison regulations during a telephone

call with his father”, the source notes that the Government did not indicate what regulations

Mr. Ren had allegedly violated that resulted in those years-long deprivations, nor provide

any explanation or justification. The source also reports that Mr. Ren’s father submitted an

application for medical parole to the Shandong Provincial Prison on behalf of his son in

February 2008, which was rejected by the prison authorities. The application was made

after Mr. Ren had developed a serious case of tuberculosis in November 2007. After only

two months of treatment in hospital however, Mr. Ren was forced to return to hard labour

in the prison.

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Discussion

25.

In the original communication to the Working Group, the source reported that

Mr. Ren had written and published an article online entitled “The road to democracy”, in

which he expressed his view that people have the right to overthrow tyranny. The source

also submitted that Mr. Ren had established an organization called Mainland Democracy

Frontline.

26.

The Government confirmed those facts and that the activities mentioned constituted

a criminal offence under the national law.

27.

After receiving the Government’s reply, the source retracted its previous assertions.

In particular, in its comments, the source claims that the booklet entitled “The road to

democracy”, in which Mr. Ren expressed his views that citizens have the right to overthrow

tyranny, was not published in any form. The source also submits that the “Prosecutor failed

to provide evidence … that the organization Mainland Democratic Frontline existed and

operated in reality.” That contradicts the source’s own original submission, wherein it

stated that Mr. Ren established that organization.

28.

The Working Group takes note of the relevant international guidelines, although

they are not legally binding, according to which the freedom of expression can be restricted

where legitimate national security interest is involved. That applies, in particular, to

“incitement to violent overthrow of the government.”1 According to the guidelines,

expression may be punished as a threat to national security only if a government can

demonstrate that: (a) the expression is intended to incite imminent violence; (b) it is likely

to incite such violence; and (c) there is a direct and immediate connection between the

expression and the likelihood or occurrence of such violence.2 In the case under

consideration, the Working Group does not have sufficient information to conclude whether

those criteria were met.

Disposition

29.

In the light of the foregoing, the Working Group on Arbitrary Detention renders the

following opinion:

Considering the serious difference between the original allegations submitted by the

source, its further comments to the Government’s response, and the information

provided by the Government, the Working Group considers that it is lacking

sufficient information to conclude whether or not the detention of Mr. Ren is of an

arbitrary nature.

Therefore, in accordance with paragraph 10 (f) of the Working Group’s revised

methods of work, the Working Group decides to file the case.

30.

In accordance with paragraph 33 (a) of its revised methods of work (A/HRC/16/47

and Corr.1, annex), the Working Group considers it appropriate to refer the allegations of

ill-treatment, including the prolonged suspension of family visits, to the United Nations

Special Rapporteur on torture and other cruel, inhuman or degrading treatment or

punishment for appropriate action.

[Adopted on 21 November 2014]

1 The Johannesburg Principles on National Security, Freedom of Expression and Access to Information

(E/CN.4/1996/39, annex), Principle 2.

2 Ibid., Principle 6.