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.17-18105(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its seventy-eighth session, 19-28 April 2017
Opinion No. 5/2017 concerning Huang Wenxun, Yuan Bing and Yuan
Xiaohua (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. Pursuant to General Assembly resolution 60/251 and
Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The mandate of the Working Group was most recently extended for a three-
year period in Council resolution 33/30 of 30 September 2016.
2.
In accordance with its methods of work (A/HRC/33/66), on 13 February 2017 the
Working Group transmitted to the Government of China a communication concerning
Huang Wenxun, Yuan Bing and Yuan Xiaohua. The Government replied to the
communication on 23 March 2017. 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 or
her sentence or despite an amnesty law applicable to him or her) (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 Covenant (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);
(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).
United Nations
A/HRC/WGAD/2017/5
General Assembly
Distr.: General
13 October 2017
Original: English
A/HRC/WGAD/2017/5
2
Submissions
Communication from the source
4.
Huang Wenxun, also known as Huangzi, born on 16 February 1990, is a Chinese
national. His usual place of residence is Huizhou city, Guangdong province. The source
reports that Mr. Huang began his social activism in 2011, when he was a student, in order
to support prisoners of conscience. According to the source, in 2013, before his current
detention, Mr. Huang had been detained multiple times. He was also subjected to beatings
in retaliation for taking part in demonstrations, including in a demonstration calling on top
officials to disclose their financial assets. Before being taken into custody, Mr. Huang took
part in the advocacy campaign tour “Enlightening China”, intended to encourage citizen
activism and promote the idea of democracy and the rule of law.
5.
Yuan Bing, also known as Yuan Fengchu, born on 19 January 1982, is a Chinese
national. His usual place of residence is Guanshiao village, Xindian town, Chibi city, Hubei
province. Mr. Yuan Bing began his engagement in pro-democracy activities in 2010. He
travelled across the country, meeting activists and discussing strategies to promote
democracy in China. Formerly a school security guard, Mr. Yuan Bing lost his job after
local authorities forcibly returned him to Hubei province in 2012. The source reports that
Mr. Yuan Bing continued to protest peacefully on topics ranging from anti-corruption to the
ratification by China of the International Covenant on Civil and Political Rights. He carried
out this activity despite recurrent arbitrary detentions and violent assaults in retaliation for
his advocacy work. Before his current detention, he had previously been detained in
January 2013, while taking part in a demonstration defending media freedom in support of
the Southern Weekly newspaper.
6.
Yuan Xiaohua, born on 6 December 1972, is a Chinese national. His usual place of
residence is Xinwan town, Yuanjiang city, Hunan province. Mr. Yuan Xiaohua is a
democracy activist. He graduated from Hunan Normal University and became a teacher. He
then moved to Guangdong to work in the private sector, began to get involved in organizing
gatherings to discuss democracy and initiated a series of rallies. He advocated on behalf of
political prisoners and supported local democracy movements, such as the Wukan village
protests by farmers in Guangdong in 2011. According to the source, because of his activism
Mr. Yuan Xiaohua has lost his job, as local authorities have often detained him and forcibly
returned him to Hunan, in retaliation for his activities. In 2012, he was detained for one
month. During that time, he was reportedly tortured by being deprived of sleep for six days.
Mr. Yuan Xiaohua had been previously detained in April 2013 in Dongguan City in
Guangdong, for taking part in a rally calling for the release of activists reportedly deprived
of their liberty for exercising their right to peaceful assembly, association and expression.
7.
The source states that during his tour “Enlightening China” Mr. Huang stopped in
the city of Chibi and Mr. Yuan Xiaohua and Mr. Yuan Bing joined him there to show their
support. The source also reports that in the early morning of 25 May 2013, Mr. Huang, Mr.
Yuan Bing and Mr. Yuan Xiaohua, along with several other activists, were detained in a
park by a group of men, who did not identify themselves. The activists were planning to
take a photograph holding signs that promoted Mr. Huang’s advocacy tour.
8.
The source also states that Mr. Huang, Mr. Yuan Bing and Mr. Yuan Xiaohua were
seized in what appeared to be a planned abduction. Reportedly, a group of unidentified men
appeared immediately after the activists had gathered in the park. The unidentified
individuals proceeded to take the belongings of Mr. Huang, Mr. Yuan Bing and Mr. Yuan
Xiaohua, including their identification cards and wallets. The three men were then taken to
the Chimagang police station.
9.
According to the source, at the time that the three men were taken into custody, the
authorities did not provide them with a police notice or a reason for their arrest, despite
their repeated requests to be notified of the legal basis of their arrest and detention. They
learned that they were under a 15-day administrative detention for “unlawful assembly”
only several days after the arrest.
10.
The source also states that after Mr. Huang, Mr. Yuan Bing and Mr. Yuan Xiaohua
had served the 15-day administrative detention, they were transferred to the Chibi city
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detention centre, where on 8 June 2013 they were put under criminal detention for “inciting
the subversion of State power”. On 13 July 2013, they were officially arrested.
11.
According to the source, Mr. Huang, Mr. Yuan Bing and Mr. Yuan Xiaohua were
originally put under administrative detention for “unlawful assembly” and later detained for
“inciting the subversion of State power”. The Chibi city People’s Procuratorate then
changed the charge against them to “gathering a crowd to disrupt order in a public place”.
12.
The source further states that the legal basis for the detention of the three men is
article 105 (2) of the Criminal Law of the People’s Republic of China (“inciting the
subversion of State power”), which stipulates a fixed-term imprisonment of not less than
five years, criminal detention, public surveillance or deprivation of political rights for those
who incite others by spreading rumours or any other measures to subvert State power or
overthrow the socialist system. Furthermore, for the crime of “gathering a crowd to disrupt
order in a public place”, article 291 of the Criminal Law stipulates a fixed-term
imprisonment of not more than five years, criminal detention or public surveillance of those
who gather to disturb order at railway stations or bus terminals, wharves, civil airports,
marketplaces, parks, theatres, cinemas, exhibition halls, sports grounds or other public
places, or block traffic or undermine traffic order, or resist or obstruct public security
administrators of the State from carrying out their duties according to the law, if the
circumstances are serious. Additionally, article 293 of the Criminal Law stipulates a fixed
term of imprisonment of up to five years for those who provokes trouble in a public place,
causing serious disorder.
13.
The source maintains that the detention of Mr. Huang, Mr. Yuan Bing and Mr. Yuan
Xiaohua is an act of reprisal against them for exercising their rights to free expression,
assembly and association. The source notes that Mr. Huang’s advocacy tour was intended
to promote democracy and make Chinese citizens aware of their civil and political rights.
The advocacy tour gathered momentum at every stop, as other activists joined him in the
call for free expression and the rule of law. It was in this context that Mr. Yuan Bing and
Mr. Yuan Xiaohua went to support Mr. Huang and took photos holding banners stating
“Enlightening China”.
14.
The source also maintains that the criminal charges against the three men were a
pretext used by the Government to punish them for their advocacy efforts, in particular, for
promoting the International Covenant on Civil and Political Rights and for calling for
greater political awareness among citizens. According to the first indictment filed by the
Chibi city People’s Procuratorate, Mr. Yuan Xiaohua and Mr. Yuan Bing were accused of
coordinating a major rally in Guangzhou, in front of the headquarters of the “Southern
Weekly” newspaper. The source notes that the demonstration, which took place in January
2013, was not organized by any particular individual or a group of people. Rather, it was
reportedly a spontaneous rally where people gathered in order to support journalists
working for the newspaper and to express their objection to interference from the
authorities. The source therefore argues that blaming activists for an unplanned and
peaceful demonstration held to protect freedom of the media is not only legally baseless,
but also constitutes an act of political abuse. In addition, the source notes that the
indictment also mentioned that Mr. Yuan Bing had called on multiple occasions for the
Government to ratify the Covenant. The source argues that to detain an activist on the basis
of his call for the Government to ratify an international treaty signed by China is arbitrary
and a contradiction of the principles of upholding and promoting human rights that the
State pledges at the United Nations.
15.
The source furthermore maintains that there have been procedural and legal
violations during the period of detention and the first instance trials. As such, the source
notes that the families of the three men did not receive any written notice of their
administrative or criminal detentions. The source further points out that the families only
obtained confirmation of their whereabouts after inquiring on repeated occasions at police
stations in Chibi and at the Chibi National Security Branch. The authorities confirmed the
place of detention to the families in the middle of July 2013, more than a month after the
initial detention of the three men. The source argues that such a lack of notice by the police
violates article 83 of the Criminal Procedure Law, which stipulates that a detainee’s family
must be notified within 24 hours of that individual being taken into custody.
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16.
The source notes that the three activists were not informed of the reasons for their
deprivation of liberty at the time of their arrest in May 2013. All three individuals have had
limited access to their lawyers, including immediately after being taken into custody and
also on several occasions in 2014, when the authorities turned down meeting requests filed
by their lawyers. The source specifies that the lawyers have had limited access to their
clients because the authorities have classified their cases as “political” and “sensitive” and
therefore meetings needed to be pre-approved.
17.
The source argues that such a restriction of the right to legal counsel violates article
37 of the Criminal Procedure Law, which states that a detainee should be given access to a
lawyer within 48 hours of his or her request. The source also argues that pursuant to the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, a detainee shall be entitled to communicate and consult with his or her legal
counsel and allowed adequate time to do so.
18.
The source further states that during the extensive periods that they were held in
detention incommunicado, Mr. Huang, Mr. Yuan Bing and Mr. Yuan Xiaohua were
subjected to torture and other inhumane treatment.
19.
Furthermore, according to the source, the three men faced obstacles to a fair trial,
primarily by being held in prolonged pretrial detention without being brought before a
judge, for a period close to three years in the case of Mr. Yuan Bing and Mr. Yuan Xiaohua
and a full three years in the case of Mr. Huang. The source also argues that the nature of the
crimes the activists were accused of committing changed multiple times, which
demonstrates the arbitrary nature of the charges.
20.
The source also alleges that the lawyers were not informed in a proper and timely
manner of procedural changes that had occurred in the cases of their clients, including when
the Chibi city people’s court repeatedly delayed trial proceedings in April and July 2014.
Initially, the lawyers were gathered for a pretrial meeting in March 2014, but the trial
proceedings were postponed several times until 19 April 2016, when both Mr. Yuan
Xiaohua and Mr. Yuan Bing were tried. Mr. Huang stood trial on 24 June 2016 at the
Xianning city intermediate people’s court a few months after the prosecutors withdrew the
original indictment and charged him with “inciting the subversion of State power” instead.
The activists were represented by their lawyers at the trials, but police cordoned off the
courthouses and barred other activists from attending, and some were even detained. The
source argues that the fact that Mr. Huang, Mr. Yuan Bing and Mr. Yuan Xiaohua have
spent nearly three years, or even more, in pretrial detention is a grave violation of their
rights to due process, specifically the right to a fair trial, spelled out in article 14 in the
Covenant.
21.
The source also argues that in another sign of political persecution, the police and
courts, in a seemingly concerted effort, held Mr. Huang, Mr. Yuan Bing and Mr. Yuan
Xiaohua beyond the reasonably permitted periods of time by adding or replacing criminal
charges.
22.
The source states that domestic legal remedies have proven to be futile. The lawyers
have received no official response to formal requests or complaints. In December 2014,
when the three men had been held for approximately 19 months, their lawyers requested the
Chibi city People’s Procuratorate to release them, given the prolonged period of pretrial
detention. However, they did not receive an official reply. Subsequently, in February 2015,
lawyers filed a similar request, which was refused. Following meetings with their clients,
the lawyers have filed allegations of torture and mistreatment with the Procuratorate,
requesting that they be investigated and appropriately remedied. These motions have
yielded no results.
23.
The Chibi city people’s court convicted Mr. Yuan Bing and Mr. Yuan Xiaohua on
charges of “picking quarrels and provoking trouble” and “gathering a crowd to disrupt
order in a public place”, and sentenced them to four and three and a half years’
imprisonment respectively. According to the information received from the source, Mr.
Yuan Xiaohua was released in November 2016, after serving his sentence. He filed a
complaint with the Chibi people’s court alleging his wrongful conviction, which was
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rejected. Mr. Huang is currently serving a five-year sentence in Chibi prison, while Mr.
Yuan Bing is serving four years in Xianning prison in Hubei province.
24.
According to the source, lengthy pretrial detention and limited access to legal
counsel have further exposed the three men to mistreatment in custody. The source alleges
that during their detention, the alleged victims have been subjected to inhumane and cruel
treatment, including assault, forced labour without pay, deprivation of food and sleep and
threats. While serving his 15-day administrative detention in May and June 2013, Mr.
Huang was twice subjected to electric shocks, in apparent retaliation for his questioning the
legal basis for his and the other men’s detention. At the Chibi city detention centre, Mr.
Huang was reportedly deprived of food, blankets and access to a shower. He was forced to
do extensive labour. Both Mr. Yuan Bing and Mr. Yuan Xiaohua were also required to
work whilst in detention. The three men have also suffered abuse and threats from their
cellmates. Their complaints about such threats were, however, ignored by officers and
prosecutors stationed at the detention centre. The source adds that in addition to their
physical pain and suffering, the authorities have subjected them to significant psychological
stress. For instance, during the interrogation of Mr. Yuan Bing, the authorities used a video
clip featuring his mother in tears, allegedly in an attempt to pressure him to admit
wrongdoing.
25.
The source concludes that Mr. Huang, Mr. Yuan Bing and Mr. Yuan Xiaohua were
detained solely on the basis of the peaceful exercise of their rights guaranteed under the
Universal Declaration of Human Rights. The circumstances of their detention satisfy both
category II (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 category III (when the total or partial non-observance of the
international norms relating to the right to a fair trial, spelled out 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). The source asserts that three years in pretrial detention far exceeds reasonable
time under both Chinese law and international standards.
Response from the Government
26.
On 13 February 2017, the Working Group addressed a communication to the
Government of China requesting detailed information about the current situation of Mr.
Huang, Mr. Yuan Bing and Mr. Yuan Xiaohua. The Working Group also requested the
Government to clarify the legal provisions justifying their continued detention and details
regarding the conformity of their detention with international human rights law.
27.
In its response of 23 March 2017, the Government provided the Working Group
with the following information:
28.
On 8 June 2015, Mr. Huang, Mr. Yuan Bing and Mr. Yuan Xiaohua were suspected
of inciting the subversion of State power and were accordingly put in criminal detention by
the Hubei public security organs. On 12 September 2015, they were transferred to the
prosecutorial body for review and prosecution.
29.
On 9 May 2016, Chibi city people’s court in Hubei province sentenced Mr. Yuan
Bing and Mr. Yuan Xiaohua to four and three and a half years in prison, respectively, for
the crimes of picking quarrels and provoking trouble, and for gathering a crowd to disrupt
order in a public place. On 24 June 2016, the Xianning city intermediate people’s court in
Hubei province convicted Mr. Huang of inciting the subversion of State power, sentenced
him to five years in prison and deprived him of his political rights for three years.
30.
The Chinese courts believe that freedom of speech is the fundamental right of
citizens, but safeguarding national security is also a responsibility that citizens must fulfil.
The Constitution and the law endow citizens with freedom of speech and the rights to
criticize, give advice and file complaints against State organs and employees. However,
those provisions stipulate that when citizens exercise their rights, they must comply with
the national law, they cannot endanger national security, social order or the public interest
and cannot harm other citizens’ legitimate interests. Mr. Huang disregarded the national
Constitution and law, through activities such as publicizing his activities online and holding
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6
up signs on the street, made statements that endangered national security and interests,
maliciously attacked the socialist system and incited the subversion of State power. Those
actions exceeded the legal boundaries of freedom of speech, constituting the crime of
inciting the subversion of State power in a public place. Mr. Yuan Bing and Mr. Yuan
Xiaohua were holding banners, signs and calling out slogans. They have also refused to
cooperate with and have obstructed State public security management personnel enforcing
their duty according to the law and have severely disrupted order in a public place. Both of
them fabricated images and information to upload onto the Internet for dissemination,
causing serious social public disorder. Their conduct constitutes the criminal acts of
gathering a crowd to disrupt social order, picking quarrels and provoking trouble.
31.
During the detention, prosecution, and imprisonment period of Mr. Huang, Mr.
Yuan Bing and Mr. Yuan Xiaohua, Chinese public security, the courts and the management
department of the detention facility safeguarded all their legitimate rights in accordance
with the law, including litigation rights, appeal, communication, meeting and access to
medical care. The alleged “political persecution”, “torture”, and “inhuman treatment” did
not take place. During the judiciary review process of the cases, the Chinese courts handled
the requests to extend the deadline for trials in accordance with the Criminal Procedural
Law. Currently, Mr. Yuan Xiaohua has been released after serving his full sentence. Mr.
Huang and Mr. Yuan Bing are still serving their sentences.
Further comments from the source
32.
The source strongly refutes the points made by the Government and affirms that the
detentions of Mr. Yuan Bing, Mr. Yuan Xiaohua and Mr. Huang have principally been acts
of reprisal against them for their activism and for exercising their rights to free expression,
assembly and association. All three activists were seized during an advocacy campaign tour
called “Enlightening China”, during which activists gathered together local human rights
defenders in the cities that they visited to share meals and to advocate for reform through
peaceful demonstrations. The tour was intended to bring like-minded people together, to
inspire citizen activism and to spread ideas about democracy, free expression and the rule
of law. The tour was initiated by Mr. Huang and stopped at other cities before arriving at
Chibi city in Hubei province. At every stop, other defenders joined him and echoed his calls
for transparency, accountability, free expression and the rule of law. Mr. Yuan Bing and
Mr. Yuan Xiaohua went to support Mr. Huang in person and took photos of them together,
holding banners stating “Enlightening China”. According to Mr. Yuan Xiaohua, their
activities were peaceful and within the bounds of free expression, as activists were merely
holding banners and taking photos.
33.
The source strongly refutes the accusations made by the Government against these
individuals, particularly that of alleging that their actions endangered national security,
social order and the public interest. According to their lawyers and to Mr. Yuan Xiaohua,
throughout their advocacy activities they did not encourage the use of language or activities
to advocate for the overthrow of the Government or to cause any disruption in a public
place. The content of their slogans were specifically about democracy, the rule of law,
governmental transparency and accountability and combating corruption and political
persecution. The activists sought to inspire others to participate actively in civil and public
affairs. The source argues that to label their advocacy efforts as “endangering national
security” is to undermine and delegitimize human rights defenders. In addition,
criminalizing defenders under such a pretext runs counter to Human Rights Council
resolution 27/31, in which the Council called on countries to stop targeting civil society in
the name of national security and countering terrorism. The source observes that the crimes
that Mr. Yuan Bing and Mr. Yuan Xiaohua have been convicted of, namely “gathering a
crowd to disrupt order in a public place” and “picking quarrels and provoking trouble” are
often used to prosecute demonstrators. Such accusations have also been increasingly used
to prosecute those who produce online commentaries about governmental corruption, non-
transparency, lack of accountability and problems with government policies, or who share
information deemed “sensitive” by the authorities.
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34.
The source adds that, contrary to what the Government claimed in its response, the
legal and human rights of the detainees in question have not been protected. From the time
of taking Mr. Huang, Mr. Yuan Bing and Mr. Yuan Xiaohua into custody and throughout
their detention, the authorities deprived them of their legal rights. The three men were
seized by public security officials in a manner resembling abduction. In a written testimony,
Mr. Huang stated that as they tried to gather in a park, a group of unidentified men
suddenly appeared and immediately took all their belongings, including identification cards
and wallets. Officials then forcibly took them to a police station. No notice or reason was
given at the time, even after the activists had repeatedly asked to be informed of the legal
basis of their detention. According to Mr. Yuan Xiaohua, they did not obstruct the officers
in carrying out their work. In fact, they were reminding the officers of the legal procedures
stipulated under Chinese law. No official notice or explanation was given to family
members or lawyers. None of the families has received any notice or been informed of their
whereabouts, in violation of article 83 of the Criminal Procedure Law.
35.
Furthermore, the source maintains that the authorities have continually disregarded
rules and regulations concerning the right to legal counsel. All three activists had limited
access to their lawyers, including immediately after being taken into custody, in late 2013
and during some parts of 2014, when their lawyers’ requests for meetings were turned
down. The source argues that refusing to let lawyers meet with their clients violates article
37 of the Criminal Procedure Law, which stipulates that a lawyer should be able to visit a
client within 48 hours of making a request. Moreover, as the Government noted in its
response, the authorities have changed the charges against the activists multiple times,
which, the source argues, further demonstrates the arbitrariness of the charges. For
example, the source notes that all three individuals were initially detained in June 2013, not
in June 2015, as indicated by the Government in its response. The source explains that
when the authorities change criminal charges against an individual, the date of detention
can also be changed, which in practice prolonged the pretrial detention of the three
activists.
36.
The source maintains that the prolonged pretrial detention of the three activists,
without being brought before a judge, runs counter to international standards. Mr. Yuan
Bing and Mr. Yuan Xiaohua were held in detention for nearly three years and Mr. Huang
was held for three full years without being brought before a judge. Although Chinese law
allows the authorities to hold detainees for a lengthy period of time before any judicial
review, such long periods of deprivation of liberty without a trial violate international law
on the right to a fair trial within a reasonable time. In some cases, even the Supreme
People’s Court has repeatedly approved three-month extensions of detention before trials,
appeal hearings or announcements of verdicts after a trial. According to international
standards, pretrial detention should be used only as a last resort, because it undermines the
principle of the presumption of innocence.
37.
The source notes that while it is accurate to state that the authorities have approved
the extension of pretrial detention, such acts represent seemingly concerted efforts by the
police and prosecutors to exploit loopholes in the Criminal Procedure Law for political
ends. The source maintains that the authorities have arbitrarily applied provisions in the
Criminal Procedure Law, which should be applicable only in exceptional cases, to deprive
individuals of their rights to due process. Article 89 of the Criminal Procedure Law permits
detention for 37 days before arrest or release. Following a formal arrest, a detainee can face
periods of investigation of more than one year. Articles 154, 157 and 158 of the Criminal
Procedure Law allow police a period of between 3 and 10 months before it recommends an
indictment. However, a lengthy period of pretrial detention is applicable only to cases
involving “major crimes”, or when the suspect has “committed a new crime”, subject to
review by the prosecution. The source also argues that without an independent and effective
complaint system in place that would enable detainees and their lawyers to file complaints
about prolonged detention and other issues, the authorities can unilaterally extend pretrial
detention.
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38.
The source further notes that the three activists have faced obstacles to obtaining fair
trials, given that their hearings were marred by violations of their legal rights. Initially, the
lawyers were gathered for a pretrial meeting in March 2014, but the trial proceedings were
then postponed several times until 2016, when both Mr. Yuan Xiaohua and Mr. Yuan Bing
were tried in April. While the activists were represented by their lawyers, the police
cordoned off the courthouses and barred other activists from attending. Some individuals
attempting to observe the trials were themselves detained. The source argues that this
effectively made the trials closed to the public. The source also alleges that the judges
denied the lawyers full exercise of their profession in court. During Mr. Huang’s trial in
June 2016 at the Xianning city intermediate people’s court, a few months after the
prosecutors rescinded the original indictment, the judge repeatedly stopped Mr. Huang as
he tried to present the defence argument and question evidence presented by the
prosecution.
39.
The source finally notes that while in detention, all three individuals were subjected
to assault, forced labour, various acts of torture and significant psychological pressure. Mr.
Huang was subjected to electric shocks on two occasions. He was also deprived of food and
blankets and of access to a shower and was forced to do extensive labour. Both Mr. Yuan
Bing and Mr. Yuan Xiaohua were also required to work in detention. All three individuals
suffered beatings by cellmates, but their complaints were ignored by officers and
prosecutors stationed at the detention centre. In addition to their physical pain and
suffering, the authorities have subjected activists to significant psychological stress. In the
case of Mr. Yuan Bing, a video clip of his mother in tears was used during interrogation to
pressure him to admit wrongdoing. Reportedly, Mr. Yuan Bing has frequently been
threatened by his fellow cellmates, but his complaints have gone unanswered. The source
maintains that in denying allegations of torture and mistreatment without conducting a full
and independent investigation, the Government has breached Chinese national laws and
procedures regarding the prohibition of torture, as well as the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, which China has signed
and ratified.
Discussion
40.
The Working Group thanks the source and the Government for their comprehensive
submissions and replies, which allowed the Working Group to consider the case with a full
understanding of the matter contested by the parties. The Working Group would like to
emphasize that procedural rules on handling communications from sources and responses
of Governments are contained in its methods of work (A/HRC/33/66).
41.
On the basis of the information provided to it, the Working Group was convinced
that Mr. Huang, Mr. Yuan Bing and Mr. Yuan Xiaohua were detained on 25 May 2013 in a
park in the city of Chibi by unidentified men. They were then brought to Chimagang police
station. During the detention, the three men were not informed of the reasons for their
arrest, nor were they notified of the judicial order for their detention. The Government has
not rebutted the allegation that no reason was given at the time of the arrest of the
applicants. Therefore, the detention of Mr. Huang, Mr. Yuan Bing and Mr. Yuan Xiaohua
falls within category I of the arbitrary detention categories referred to by the Working
Group when considering cases submitted to it.
42.
The Working Group received credible information that was not rebutted by the
Government that the family members of Mr. Huang, Mr. Yuan Bing and Mr. Yuan Xiaohua
only obtained confirmation of their whereabouts more than one month after their initial
detention and that the three men had limited access to their lawyers, including immediately
after being taken into custody.
43.
The Working Group has previously recognized that “any persons deprived of their
liberty shall be informed about their rights and obligations under law through appropriate
and accessible means. Among other procedural safeguards, this includes the right to be
informed, in a language and means, modes or format the detainee understands, of the
reasons justifying the deprivation of liberty, the possible judicial avenue to challenge the
arbitrariness and lawfulness of the deprivation of liberty and the right to bring proceedings
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before the court and to obtain without delay appropriate remedies.” 1 Such rights of
detainees were not respected by the Chinese authorities in the present case.
44.
Furthermore, the Working Group was also convinced that Mr. Huang, Mr. Yuan
Bing and Mr. Yuan Xiaohua were not informed of the reasons of their arrest, were not
allowed access to a lawyer immediately after their apprehension and were not able to bring
procedures before a court to challenge the lawfulness of their detention. The Working
Group is of the view that the partial non-observance of the international norms relating to
the right to a fair trial, spelled out in the Universal Declaration of Human Rights, is of such
gravity as to give the deprivation of liberty of Mr. Huang, Mr. Yuan Bing and Mr. Yuan
Xiaohua an arbitrary character and falls within category III.
45.
The Working Group notes that Mr. Huang, Mr. Yuan Bing and Mr. Yuan Xiaohua
were subject to various injustices. First, they served a 15-day administrative detention for
“unlawful assembly”. Secondly, they were transferred to the Chibi city detention centre,
where on 8 June 2013 they were placed in detention for “inciting the subversion of State
power”. They were officially arrested on 13 July 2013. Thirdly, the Chibi city People’s
Procuratorate then changed the charge against them to “gathering a crowd to disrupt order
in a public place”. The Working Group has previously found in similar cases 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.2
46.
The Working Group also notes that the Government of China argued that Mr. Huang
disregarded the national Constitution and law through activities such as publicizing his
activities online and holding up signs on the street, expressing opinions that endangered
national security and interests, maliciously attacking the socialist system and inciting the
subversion of State power. In the view of the Government, those actions exceeded the legal
boundaries of freedom of speech, constituting the crime of inciting the subversion of State
power. Mr. Yuan Bing and Mr. Yuan Xiaohua were holding banners and signs and calling
out slogans in a public place. They also refused to cooperate and obstructed State public
security management personnel, who were enforcing their duty according to the law, and
severely disrupted public order. Both individuals fabricated images and information in
order to upload them onto the Internet for dissemination, thus causing serious social public
disorder. Their conduct constitutes the criminal acts of gathering a crowd to disrupt social
order, picking quarrels and provoking trouble.
47.
The Working Group considers that in accordance with international law, States
should take measures to protect freedom of expression from attacks that seek to suppress
such a right. Limitations to freedom of expression should not be employed for silencing
calls to promote other human rights, such as the right to participate in government through
freely chosen representatives.3 Furthermore, under no circumstances, can an attack on a
person exercising his or her freedom of opinion or expression be compatible with articles
19 and 29 of the Universal Declaration of Human Rights. Arbitrary arrest, torture, threats to
life and killing could all constitute forms of such an attack. Journalists and persons who
gather and analyse information on the human rights situation and who publish human
rights-related reports, including judges and lawyers, should be protected from threats,
intimidation and attacks because of their activities.
48.
The Working Group also points out that the three individuals in question were
arrested and sentenced to three years’ imprisonment on the basis of a restrictive
interpretation of the criminal law, in contravention of the provisions in international law
aimed at protecting freedom of expression, such as the ones contained in the Universal
Declaration of Human Rights.
1 See principles 7 and 9 of the United Nations Basic Principles and Guidelines on Remedies and
Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings before a Court.
2 See opinions No. 49/2014, para. 20 and No. 39/2015, para. 25.
3 See article 21 of the Universal Declaration of Human Rights.
A/HRC/WGAD/2017/5
10
Disposition
49.
Although Mr. Yuan Xiaohua has been released, the Working Group, in accordance
with paragraph 17 (a) of its methods of work, reserves the right to render an opinion as to
whether his deprivation of liberty was arbitrary. In the light of the foregoing, the Working
Group renders the following opinion:
The deprivation of liberty of Huang Wenxun, Yuan Bing and Yuan Xiaohua is
arbitrary and falls within categories I, II and III.
50.
The Working Group requests the Government of China to take the steps necessary to
remedy the situation of Huang Wenxun, Yuan Bing and Yuan Xiaohua without delay and
bring it into conformity with the relevant international norms, including those set out in the
Universal Declaration of Human Rights.
51.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Huang Wenxun and Yuan Bing
immediately and to accord Huang Wenxun, Yuan Bing and Yuan Xiaohua an enforceable
right to compensation and other reparations, in accordance with international law.
52.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the case to the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment and the Special Rapporteur on the situation of human rights
defenders, for appropriate action.
Follow-up procedure
53.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether Mr. Huang and Mr. Yuan Bing have been released and, if so, on
what date;
(b)
Whether compensation or other reparations have been made to Mr. Huang,
Mr. Yuan Bing and Mr. Yuan Xiaohua;
(c)
Whether an investigation has been conducted into the violation of the rights
of Mr. Huang, Mr. Yuan Bing and Mr. Yuan Xiaohua and, if so, the outcome of the
investigation;
(d)
Whether any legislative amendments or changes in practice have been made
to harmonize the laws and practices of China with its international obligations in line with
the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
54.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example, through a visit by the
Working Group.
55.
The Working Group requests the source and the Government to provide the above
information within six months of the date of the transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
A/HRC/WGAD/2017/5
11
56.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.4
[Adopted on 19 April 2017]
4 See Human Rights Council resolution 33/30, paras. 3 and 7.