A/HRC/WGAD/2015/39

GE.16-02975(E)

*1602975*

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its seventy-fourth session,

30 November-4 December 2015

Opinion No. 39/2015 concerning Su Changlan (China)

1.

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

the 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 1/102 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.

2.

In accordance with its methods of work (A/HRC/30/69), on 22 September 2015 the

Working Group transmitted a communication to the Government of China concerning Su

Changlan. The Government has not replied to the communication. The State is not a party

to the International Covenant on Civil and Political Rights.

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);

(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/2015/39

General Assembly

Distr.: General

25 February 2016

Original: English

A/HRC/WGAD/2015/39

2

(e)

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

the grounds of discrimination based on birth, national, ethnic or social origin, language,

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

disability or any other status, that aims towards or can result in ignoring the equality of

human beings (category V).

Submissions

Communication from the source

4.

Ms. Su Changlan is a 44-year-old national of China. According to the source,

Ms. Su has a history of human rights activism. Ms. Su was an elementary school teacher for

more than a decade but was dismissed from her position because of her public and political

activism. She is now a prominent activist in Guangdong province, advocating for election,

land and women’s rights.

5.

In 1999, Ms. Su successfully provided assistance to rural married women whose

land had been taken away in Sanshan Village in Nanhai District, Guangdong, safeguarding

the continuity of their right to land after they marry someone from a different village. As a

result of her efforts in producing a substantial amount of legal materials, including

complaints and appeals, affected women received some compensation for land that had

been taken away from them. Ms. Su has become a popular mobilizing figure among

villagers advocating against land confiscation in Sanshan. The source submits that Ms. Su’s

advocacy work has made her a frequent target of surveillance, harassment and retaliation

from local authorities.

6.

On the morning of 27 October 2014, Ms. Su was forcibly taken from her home by

Nanhai national security guards and police officers from the Guicheng police station,

Nanhai Branch of the Foshan Public Security Bureau. According to the source, the guards

and officers verbally summoned Ms. Su but did not produce a warrant. The officers cited

charges of “creating a disturbance” under article 293 of the Criminal Law of the People’s

Republic of China as the reason for the arrest. In the afternoon of the same day, five

officers returned to Ms. Su’s home while her husband was there and confiscated three

computers, but did not disclose why or where Ms. Su was being detained.

7.

Ms. Su was taken to the Guicheng police station in Nanhai District. She was

interrogated about her posts on WeChat, a popular messaging tool in China, and charged

with the more serious crime of “inciting subversion of State power”. According to the

source, the alleged offence relates to Ms. Su’s online support for pro-democracy protests in

Hong Kong, China, in September 2014. Ms. Su was then transferred to Nanhai District

Detention Centre. Her family did not receive a detention notice.

8.

On 3 December 2014, Ms. Su was formally arrested on suspicion of inciting

subversion of State power. Under article 105 (2) of the Criminal Law of the People’s

Republic of China, this offence applies to those who incite others by spreading rumours or

slander or use any other means to subvert State power or overthrow the socialist system. It

is punishable by a fixed term of imprisonment of not less than five years, criminal

detention, public surveillance or deprivation of political rights. The source points out that

Ms. Su’s detention occurred at a time of widespread detention of individuals who had

expressed support for the pro-democracy movement in Hong Kong, China. According to

the source, in October 2014, more than 100 mainland Chinese activists, writers and artists

were detained in order to deprive them of their rights to expression and movement.

9.

The source alleges that serious procedural violations occurred during Ms. Su’s arrest

and pretrial detention. For instance, the source claims that, by refusing to produce a warrant

when taking Ms. Su away and when later seizing her property, the police violated article 83

A/HRC/WGAD/2015/39

3

of the Criminal Procedure Law of the People’s Republic of China, which requires Public

Security Bureau officers to produce an official notice when placing a person in detention.

10.

Furthermore, after Ms. Su was taken from her home, her family did not know of her

whereabouts until she was formally arrested on 3 December 2014. The source alleges that,

at the detention centre, local authorities registered Ms. Su under a different name in order to

deny her the right to access legal counsel. When Ms. Su’s husband enquired about her at

the detention centre, staff told him that there was no individual being detained under that

name. Ms. Su later confirmed to her lawyer that she had been informed by the authorities

that she had been registered under a different name when brought to the detention centre.

11.

According to the source, Ms. Su was denied visits by her lawyer and family

throughout the first six months of her detention, as government officials cited concerns over

“possible obstruction” of the investigation. Neither letters written by Ms. Su and her

husband to each other nor postcards sent to Ms. Su by her supporters were ever received.

After months of unsuccessful requests to see Ms. Su, her husband and brother protested in

February 2015 in front of a police station, holding banners that said “Conscience is not

violence. Su Changlan is innocent.” They were both detained for nearly one month. The

source asserts that Ms. Su gained access to her legal representative only on 6 May 2015,

more than six months after she had been taken from her home.

12.

The source also reports that Ms. Su suffers from hyperthyroid heart disease, which

required medical treatment in hospital in 2014 prior to her detention, and can be fatal if not

properly treated. Applications were made for Ms. Su to be released on bail due to her

medical condition, but they were denied by the authorities. In addition, Ms. Su’s husband

submitted a Government information disclosure request in order to obtain information

about Ms. Su’s health conditions at the detention centre. After authorities refused to

disclose any information, he commenced litigation against the Nanhai Public Security

Bureau. The case was heard on 7 April 2015, but the Court refused to give a verdict or

announce when it would issue one.

13.

Ms. Su has also allegedly experienced degrading treatment and denial of medical

care. The source asserts that guards at Ms. Su’s detention centre strip-searched her after a

visit from her lawyer, forcing her to remove her pants and underwear. The source claims

that Ms. Su’s cell is 80 square feet and is severely overcrowded, as it is used to hold

between 50 and 80 women. As a result, Ms. Su only has a space that is 60 cm wide in

which to sleep, which often prevents her from falling asleep. Ms. Su has been subjected to

over a dozen harsh interrogations, during which she was threatened with a long prison

sentence. She informed her lawyer that, due to the poor living conditions and her health

problems, she frequently suffers from numbness in her hands and feet, headaches and

constant tearing in one of her eyes. Despite these physical problems, the source reports that

the detention centre has restricted Ms. Su’s access to medical treatment. For example, Ms.

Su was denied medical care and suffered from a fever for over a week in April 2015.

14.

According to the source, the detention centre has violated the country’s Regulations

on Administrative Detention Facilities, which came into effect on 1 April 2012. Under

those regulations, detainees have the right to prompt notification of their families about

their detention, prompt medical care, correspondence with the outside world (which

includes a ban on inspection or confiscation of correspondence) and meetings with lawyers

during the period of detention.

15.

Ms. Su remains in detention at the Nanhai District Detention Centre. According to

the source, on 18 June 2015, the prosecution sent Ms. Su’s case back to the police owing to

a lack of evidence. Her case is still pending and the police are collecting additional

evidence in order to resubmit the case. Ms. Su’s conditions of detention continue to be

A/HRC/WGAD/2015/39

4

poor. She has been suffering from heart stoppage and uncontrollable tearing of the eyes, as

well as tremors in her hands and feet. She continues to be denied bail on medical grounds.

16.

The source submits that Ms. Su’s detention is arbitrary in accordance with categories

II and III of the categories applied by the Working Group. The source argues that Ms. Su

has been detained in retaliation for her advocacy activities, and solely on the basis of the

peaceful exercise of her rights guaranteed under the Universal Declaration of Human

Rights. According to Ms. Su’s lawyer, over half of her case materials, including e-mail

exchanges between Ms. Su and others, relate to her exercise of free expression. Ms. Su has

informed her lawyer that she suspects that the authorities are punishing her for representing

thousands of disadvantaged farmers in litigation against the Government. In addition, the

source submits that, one month before her current detention, Ms. Su was detained in order

to prevent her from attending the trial of a prominent activist who was arrested for leading

an anti-corruption campaign.

17.

Finally, the source submits that Ms. Su was detained incommunicado between

27 October and 3 December 2014 before being formally arrested. Further, it is alleged that

she was denied access to legal representation until 6 May 2015, and has not been brought

before a judicial authority since she was taken into custody.

Response from the Government

18.

The Working Group transmitted the allegations from the source to the Government

of China on 22 September 2015 under its regular communication procedure. The Working

Group requested the Government to provide detailed information by 23 November 2015

about the current situation of Ms. Su, and to clarify the legal provisions justifying her

continued detention.

19.

The Working Group regrets that it has not received a response from the Government

to this communication. The Government did not request an extension of the time limit for

its reply, as provided for in the Working Group’s revised methods of work.

Discussion

20.

In the absence of a response from the Government, the Working Group has decided

to render this opinion in conformity with paragraph 15 of its revised methods of work.

21.

In its jurisprudence, the Working Group has established the ways in which it deals

with evidentiary issues.1 If the source has established a prima facie case for breach of

international requirements constituting arbitrary detention, the burden of proof should be

understood to rest upon the Government if it wishes to refute the given allegations. In this

case, the Government has chosen not to challenge the prima facie credible allegations made

by the source.

22.

The Government has therefore not rebutted the prima facie reliable allegation that

Ms. Su was arrested and is being detained solely on the basis of the peaceful exercise of her

rights to freedom of opinion and expression and freedom of peaceful association. In

particular, the Government did not refute the assertion that Ms. Su was arrested and is being

detained to punish her for her advocacy activities, and to prevent her from supporting other

peaceful activities such as pro-democracy protests in Hong Kong, China. The fact that this

conduct is criminalized under domestic law in China does not deprive Ms. Su of her rights

under international law, including under the Universal Declaration of Human Rights.2 The

1 See, for example, A/HRC/19/57, para. 68; and opinion No. 52/2014.

2 The Working Group has emphasized this point in other opinions relating to China. See, for example,

opinion Nos. 7/2012 and 32/2007.

A/HRC/WGAD/2015/39

5

Government has not provided any evidence of the precise nature of the threat posed by

Ms. Su, and has not demonstrated that there was specific evidence on which her arrest and

detention was based.3

23.

In addition, the Working Group refers to its previous opinions concerning recent

individual communications received from various sources on the violation of human rights

in China.4 In these cases, findings have been made about the arbitrary deprivation of liberty

of human rights defenders who peacefully exercised their rights under the Universal

Declaration of Human Rights, demonstrating that this is a systemic problem in the

administration of criminal justice in China.

24.

The Working Group concludes that Ms. Su has been deprived of liberty in violation

of the rights to freedom of opinion and expression and freedom of association as guaranteed

by articles 19 and 20 of the Universal Declaration of Human Rights, and that the case falls

within category II of the categories applicable to the consideration of cases submitted to the

Working Group.

25.

In addition, the Government has provided no evidence to rebut the allegations that

Ms. Su was arrested and her property confiscated without a warrant. The Working Group

notes that the Public Security Bureau officers who removed Ms. Su from her home in

October 2014 initially cited charges of “creating a disturbance”. However, Ms. Su was not

formally arrested until December 2014, more than a month after she was taken from her

home, on suspicion of “inciting subversion of State power”, a more serious crime with

significantly higher penalties. The Working Group has previously found in a similar case

that such a change of charges to the disadvantage of the accused constitutes a clear

violation of articles 9, 10 and 11 of the Universal Declaration of Human Rights.5

26.

Further, the Government has not denied that Ms. Su was held incommunicado prior

to being formally arrested, was denied legal representation for over six months and has

been in prolonged pretrial detention without being brought before a judicial authority for

over a year, in violation of articles 9, 10 and 11 of the Declaration.

27.

The Working Group concludes that the breaches of articles 9, 10 and 11 of the

Universal Declaration of Human Rights in the case of Ms. Su are of such gravity as to give

her deprivation of liberty an arbitrary character, falling within category III of the categories

applicable to the consideration of cases submitted to the Working Group.

28.

The Working Group wishes to record its concern about Ms. Su’s deteriorating health

and well-being while in detention, particularly in relation to the allegations made by the

source regarding degrading treatment, the refusal of bail on medical grounds and the denial

of medical care. The Working Group considers that the treatment of Ms. Su during her

detention, which was not contested by the Government, may have violated the prohibition

of cruel, inhuman or degrading treatment under article 5 of the Universal Declaration of

Human Rights. The Working Group will therefore refer the matter to the relevant Special

Rapporteur for further consideration of the circumstances of this case and, if necessary,

appropriate action.

3 The Working Group has stated, in its Deliberation No. 8 on deprivation of liberty linked to/resulting

from the use of the Internet, that a vague and general reference to the interests of national security or

public order, without being properly explained and documented, is insufficient to convince the

Working Group that the restrictions on the freedom of expression by way of deprivation of liberty are

necessary (see E/CN.4/2006/7, para. 43).

4 See, for example, opinion Nos. 3/2015, 49/2014, 21/2014, 59/2012, 29/2012, 7/2012 and 23/2011.

5 See opinion No. 49/2014, para. 20.

A/HRC/WGAD/2015/39

6

29.

Finally, the Working Group notes the source’s allegation that Ms. Su has been

deprived of her liberty in retaliation for her advocacy and work as a human rights defender.

These activities are protected under the Declaration on the Right and Responsibility of

Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized

Human Rights and Fundamental Freedoms (also known as the Declaration on Human

Rights Defenders), in particular its articles 1, 2, 5, 6, 9 and 12. The Working Group will

therefore refer the matter to the relevant Special Rapporteur for further consideration of the

circumstances of this case and, if necessary, appropriate action.

Disposition

30.

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

The deprivation of liberty of Ms. Su is arbitrary, being in contravention of articles 9,

10, 11, 19 and 20 of the Universal Declaration of Human Rights, and falls within

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

submitted to the Working Group.

31.

Consequent upon the opinion rendered, the Working Group requests the

Government to take the steps necessary to remedy the situation of Ms. Su without delay and

to bring that situation into conformity with the standards and principles set forth in the

Universal Declaration of Human Rights.

32.

Taking into account all the circumstances of the case, the Working Group considers

that the adequate remedy would be to release Ms. Su immediately and grant her reparation

in accordance with international law for the harm she has suffered during the period of her

arbitrary detention.

33.

In accordance with article 33 (a) of its revised methods of work, the Working Group

considers it appropriate to refer the allegations of degrading treatment and denial of medical

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

or punishment for appropriate action. The Working Group also refers the alleged retaliation

against Ms. Su because of her work as a human rights defender to the Special Rapporteur

on the situation of human rights defenders.

34.

The Working Group encourages the Government to accede to the International

Covenant on Civil and Political Rights.

[Adopted on 2 December 2015]