opencaselaw.ch

A/HRC/WGAD/2017/59

Opinion no. 59/2017 concerning Hu Shigen, Xie Yang and Zhou Shifeng (China)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2017-08-25 · en UN

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.17-18644(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its seventy-ninth session, 21-25 August 2017

Opinion No. 59/2017 concerning Hu Shigen, Xie Yang and Zhou

Shifeng (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 15 February 2017 the

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

Shigen, Zhou Shifeng and Xie Yang. The Government replied to the communication on 9

March and 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/2017/59

General Assembly

Distr.: General

23 October 2017

Original: English

A/HRC/WGAD/2017/59

2

Submissions

Communication from the source

4.

Hu Shigen, born on 14 November 1955, is a national of China. His usual place of

residence is Beijing. According to the source, Mr. Hu graduated from Beijing University

with bachelor’s and master’s degrees in literature and later taught at the Beijing Language

Institute (now Beijing Language and Culture University). A member of the Independent

Chinese PEN Center, Mr. Hu took part in pro-democracy activities after events in

Tiananmen Square in 1989. His activities included helping to establish the China Free

Democratic Party and the China Free Labour Union. The source further reports that in

1994, Mr. Hu was sentenced to 20 years in prison for “organizing and leading a counter-

revolutionary group” and “counter-revolutionary propaganda and incitement”. He was

released in 2008, having served 16 years of his sentence. It is alleged that Mr. Hu endured

torture while in detention, at one point falling critically ill. Following his release, Mr. Hu

resumed advocating for human rights, democracy and the rule of law. The source notes that

in retaliation for these activities authorities placed Mr. Hu under surveillance, house arrest

and detention. Mr. Hu is the leader of underground Christian churches in Beijing. He was

also allegedly targeted in a crackdown aimed at lawyers and other civil society advocates

that began in July 2015, known as the “709 crackdown”.

5.

Xie Yang, born on 4 February 1972, is a national of China. His usual place of

residence is Changsha City, Hunan Province. According to the source, Mr. Xie is a lawyer

who has worked on cases involving activists arrested during the “Jasmine crackdown” in

2011, members of the New Citizens’ Movement and mainland supporters of the Hong

Kong protests in 2014. Mr. Xie has also openly condemned assaults against human rights

lawyers in retaliation for defending their clients. The source reports that Mr. Xie himself

became a victim of such an assault when he represented the family of a man shot by the

police in May 2015.

6.

Zhou Shifeng, born on 18 November 1964, is a national of China whose usual place

of residence is Beijing. According to the source, Mr. Zhou began to practise law in 1995

and in 2007 established the Beijing Fengrui law firm. He has represented clients in several

high-profile cases. Under his leadership, the Beijing Fengrui law firm employed nearly one

hundred lawyers, including several prominent human rights lawyers. He also hired activists

as advisers to the firm. Mr. Zhou was detained during the 709 crackdown. Mr. Zhou also

established the China Lawyers Defence Fund, which aimed at supporting families of

lawyers who were experiencing pressure from authorities across the country.

7.

The source reports that Mr. Hu disappeared on 10 July 2015, while he was on his

way to an underground church to give a sermon. No notice or warrant was provided to his

family. Mr. Hu was formally arrested on 8 January 2016. Before being formally arrested,

Mr. Hu was put under “residential surveillance at a designated location”, during which his

location was not disclosed to his lawyers or family.

8.

The source further reports that on 11 July 2015, at around 5.40 a.m., Mr. Xie, along

with two colleagues, was seized by a dozen plainclothes police officials from the Hongjiang

City Public Security Bureau in his hotel room in Hunan Province. None of the officers

showed identification. However, before confiscating all Mr. Xie’s belongings and taking

him into custody, they did produce a summons for questioning. The police stated that Mr.

Xie and his colleagues were suspected of “gathering a crowd to disrupt the order of a work

unit” and needed to be taken to a police station to assist with the investigation. The source

adds that later that day, Mr. Xie was planning to meet with victims of a forced demolition

project. The day after his apprehension, Mr. Xie was transferred to a building at the

National University of Defence Technology in Changsha City that has housed retired

officials. This location was not disclosed to his lawyers or family. Mr. Xie was held in that

building under residential surveillance at a designated location for the next six months, until

he was formally arrested on 9 January 2016.

9.

The source also reports that Mr. Zhou was detained on 10 July 2015, at around 7.30

a.m., by three unidentified men at the hotel where he was staying. A hood was placed over

this head and he was taken away by force. No notice or warrant was shown to him. The

A/HRC/WGAD/2017/59

3

source notes that Mr. Zhou was detained after he met with his client, who had just been

released from detention. Mr. Zhou was formally arrested on 8 January 2016. Before being

formally arrested, he was put under residential surveillance at a designated location, during

which his location was not disclosed to his lawyers or family.

10.

The source reports that the authorities that ordered the detentions were the Tianjin

Municipal Hexi District Public Security Bureau, the Tianjin No. 2 Intermediate People’s

Court (in the cases of Mr. Hu and Mr. Zhou) and the Changsha City Public Security Bureau

(in the case of Mr. Xie). Mr. Hu and Mr. Zhou are currently incarcerated at Tianjin No. 1

Detention Centre, while Mr. Xie is detained at Changsha No. 2 Detention Centre. Mr. Hu

and Mr. Zhou are being held by the Tianjin Municipal Public Security Bureau while Mr.

Xie has been held by the Changsha City Public Security Bureau.

11.

According to the source, Mr. Hu and Mr. Zhou were arrested on suspicion of

“subversion of State power” and have been sentenced to 7 1/2 and 7 years’ imprisonment,

respectively. Mr. Xie was initially charged with “inciting subversion of State power” and,

on 16 December 2016, was indicted for the additional crime of “disrupting court order”.

12.

The source cites the main legal basis for the detention as article 105 (1) of the

Criminal Law of China (subversion of State power), which stipulates fixed-term

imprisonment of not more than 3 years for participants, 3 to 10 years for active participants

and not less than 10 years or life imprisonment for those who organize, plot or carry out a

scheme to subvert State power or overthrow the socialist system, and ringleaders and others

who commit major crimes. Additionally, the source recalls article 105 (2) of the Criminal

Law (inciting subversion of State power), which provides for a fixed-term imprisonment of

not less than 5 years, criminal detention, public surveillance or deprivation of political

rights for those who incite others by spreading rumours or slanders or any other means to

subvert State power or overthrow the socialist system.

13.

The source submits that the detentions of the above-mentioned human rights

defenders were unlawful and violated international human rights norms and Chinese legal

and procedural standards. In all three cases, no notice or warrant for summoning for

questioning issued by either the People’s Procuratorate or the Public Security Bureau was

shown, as stipulated by article 117 of the Criminal Procedure Law. Moreover, the

detentions of the above-mentioned individuals violate principle 2 of the Body of Principles

for the Protection of All Persons under Any Form of Detention or Imprisonment.

14.

The source further argues that the detentions of the three human rights lawyers were

acts of reprisal against them for their activism and for exercising their right to free

association, given that all three have been human rights defenders for many years. Mr. Hu

was a leading member of a church, while Mr. Xie had defended many politically sensitive

cases since 2011. Mr. Zhou and his firm have taken on an increasing number of human

rights cases in recent years and represented victims of religious persecution and detained

human rights advocates. The source points out that Mr. Hu, Mr. Xie and Mr. Zhou are part

of a loose civil society network of human rights lawyers and activists seeking to promote

the rule of law in China. The source notes that this solidarity network was targeted by

authorities in July 2015 and, consequently, all three human rights defenders have suffered

because of their activism.

15.

The source further notes that according to the court transcript of Mr. Hu’s closed

hearing, which took place in August 2016 at Tianjin No. 2 Intermediate People’s Court, the

procuratorate accused him of leading a religious group that worked on advocacy campaigns

around “politically sensitive” cases. Mr. Zhou was accused of using the Beijing Fengrui law

firm as a platform for launching these activities. Mr. Hu was accused of meeting with Mr.

Zhou and a dozen other people at a restaurant in Beijing in February 2015 to organize such

activities, a meeting that public security officers recorded. One of the “politically sensitive”

cases was that of the family of a man shot by police in May 2015, whom Mr. Xie

represented.

16.

The source argues that the criminal charges against Mr. Hu, Mr. Xie and Mr. Zhou

are a pretext used by authorities to punish them for their activism. Mr. Hu and Mr. Zhou

have been convicted of subversion of State power while Mr. Xie was initially detained on

charges of inciting subversion of State power. The source alleges the existence of a trend

A/HRC/WGAD/2017/59

4

whereby the Government suppresses citizens’ efforts to establish independent political

parties by arbitrarily applying criminal charges related to subversion of State power to any

acts of association or expression. The source concludes that, by doing so, authorities send a

strong signal that exercising and defending human rights are acts that “threaten national

security”.

17.

The source further argues that there have been serious procedural and legal

violations throughout the detention period in all three cases and during the trials of Mr. Hu

and Mr. Zhou. For instance, it is stated that the ongoing incommunicado detention of Mr.

Hu, Mr. Xie and Mr. Zhou is a grave violation of their legal rights. None of the families of

the three individuals have received a detention notice nor have they been informed of their

whereabouts, in violation of article 83 of the Criminal Procedure Law, which stipulates that

a detainee’s family must be notified within 24 hours of his or her detention. Mr. Hu had

been missing for three months until his lawyer discovered in October 2015 that Tianjin

police had transferred him on 7 August 2015 to residential surveillance at a designated

location. The police nevertheless refused to disclose this location. Mr. Xie and Mr. Zhou

were subjected to the same incommunicado residential surveillance and their families and

lawyers were denied the right to communicate with and visit them. The source adds that

such acts by authorities grossly violate principles 14, 15, 16, 17 and 18 of the Body of

Principles.

18.

Additionally, the source argues that Mr. Hu, Mr. Xie and Mr. Zhou were subjected

to coerced removal of family-appointed lawyers and have allegedly accepted State-

appointed attorneys, which constitutes a further breach of detainees’ due process rights. The

source adds that according to authorities, in January 2016, not long after his formal arrest,

Mr. Zhou had fired his lawyer. However, no written communication was received from Mr.

Zhou in this regard, and Mr. Hu’s lawyers were not informed of any charges against him

until the day of his trial in August. His lawyers were barred from attending his trial and

later discovered that the Government had appointed a lawyer for him during the hearing. In

the case of Mr. Xie, the source reports that authorities have repeatedly denied requests from

his lawyers to meet with him. Authorities later claimed that Mr. Xie had appointed a

different lawyer to represent him. The source argues that the lack of transparency about any

changes in legal representation raises strong suspicions that police have abused their power

by coercing or threatening detainees. The source submits that these violations breach

Chinese law. In this context, the source cites article 32 of the Criminal Procedure Law,

which stipulates that a criminal suspect has the freedom to choose his/her own legal counsel

or to “entrust” the defence to certain individuals.

19.

The source further reports that all three individuals faced obstacles to a fair trial,

primarily by being held in prolonged pretrial detention without being brought before a

judge for over a year (in the cases of Mr. Hu and Mr. Zhou). Mr. Xie has not yet received a

verdict. The source argues that in Mr. Zhou’s case, the Government has disregarded the

principle of the presumption of innocence, as the Xinhua State media outlet accused his

firm of running a “criminal syndicate” and, in July 2015, featured him on State television

“confessing”. The source notes that it is likely that this confession was obtained under

duress.

20.

According to the source, during Mr. Hu’s and Mr. Zhou’s trials in August 2016, the

court failed to give the three-day advance public notice of trials, as required by Chinese

law. Instead, the court posted trial notices either on the day of the trial or the night before.

The court immediately convicted both men of subversion of State power after hearings that

lasted just several hours, despite the seriousness of the charges. Additionally, both were

represented by lawyers appointed by the Government. Authorities have prevented their

chosen lawyers, supporters and family members from attending the trials by either

detaining them or placing them under house arrest. According to the State media, Mr. Hu

and Mr. Zhou pleaded guilty and promised not to appeal. There was no independent

verification of their mistreatment over the previous year. The source argues that these are

violations of the right to due process and a fair trial, contrary to principles 36, 37 and 38 of

the Body of Principles.

21.

The source highlights the disregard of domestic legal and procedural laws as well as

international human rights standards demonstrated by authorities. For example, the source

A/HRC/WGAD/2017/59

5

affirms that Mr. Hu, Mr. Xie and Mr. Zhou were taken into police custody in what appeared

to be de facto abductions, were held in secret locations, were denied access to a lawyer of

their own choosing as well as access to their families, were vilified in State media and were

not given public hearings by an independent court. The source also notes that lengthy

pretrial detentions and the lack of access to legal counsel have made Mr. Hu, Mr. Xie and

Mr. Zhou vulnerable to mistreatment, since a visit by a lawyer is a principal method for

reporting mistreatment and a safeguard against it. Mr. Xie was granted a meeting with his

lawyers in July 2016 on the condition that they would try to convince him to confess. Mr.

Hu and Mr. Zhou have not been allowed to meet with their lawyers.

22.

The source further reports that Mr. Xie was allegedly subjected to repeated torture

and cruel punishment. For six months, during which the location of his detention was not

disclosed to Mr. Xie’s lawyers or family and they were not allowed to see him, he was

reportedly subjected to torture and various forms of cruel mistreatment by officers,

prosecutors and other officials. Torture techniques included sleep deprivation, long

interrogations, beating, death threats and humiliation and other methods of psychological

pressure. The apparent intention of authorities was to force Mr. Xie to confess to criminal

behaviour and to incriminate other lawyers. As many as 40 individuals have allegedly been

involved in inflicting torture and other cruel mistreatment on Mr. Xie since he was initially

taken into custody.

23.

The source reports that Mr. Xie was subjected to extensive violent interrogations

that lasted 22 hours a day for a week. National security guards beat Mr. Xie, repeatedly

blew cigarette smoke into his face, inflicted pain on his leg, which was recovering from a

previous injury, and hung him from the ceiling. At one point, Mr. Xie lost consciousness.

24.

The treatment of Mr. Xie caused him extreme distress, anxiety and fear for his life

and the lives of his family members. Allegedly, at times the torture became so unbearable

that Mr. Xie wanted to commit suicide. In response, authorities increased the number of

individuals monitoring Mr. Xie in order to prevent him from doing so. Mr. Xie has

sustained multiple injuries as a result of the torture and mistreatment, including swollen

legs, numbness and dizziness. He has not received any comprehensive medical examination

or treatment.

25.

The source further reports that the violence against Mr. Xie continued when he was

transferred to Changsha No. 2 Detention Centre in January 2016, despite the complaints of

mistreatment in this facility that he had filed. In the detention centre, he was held with

prisoners charged with crimes punishable with the death penalty. Inmates were instructed to

monitor him in his cell and beat him with shackles, which resulted in a 10-cm-long wound

to his head. At one point, an inmate infected with HIV/AIDS was put in Mr. Xie’s cell (east

No. 3 cell) for more than two months and everyone in the cell had to share the same

sanitary items. No investigation has been conducted into these occurrences and authorities

have since refused to allow Mr. Xie’s lawyers to meet with him. The source adds that due

to retaliatory measures taken by authorities at the detention centre, Mr. Xie has been

undernourished and his health has deteriorated, and in particular that he has developed

gastrointestinal complications.

26.

Mr. Xie’s lawyers and family have sought to hold the perpetrators of his torture

accountable but have experienced pressure from authorities. On 20 January 2017, Mr. Xie

and his lawyer filed a complaint with the Changsha Procuratorate against 10 officers who

were involved in torturing and mistreating him during the six-month period of residential

surveillance at a designated location. They demanded an investigation and that the officers

be prosecuted for their suspected criminal acts. After these allegations were made, Mr.

Xie’s family was summoned for questioning by Changsha City officials and authorities at

Hunan University. Authorities indicated that they would summon Mr. Xie’s lawyer next.

27.

The source adds that since Mr. Xie’s detention in 2015, his family has faced

intimidation from authorities, in addition to travel bans and threats. Mr. Xie’s family was

repeatedly told not to speak to media, not to advocate for his release and not to meet with

other families who have been affected by the 709 crackdown against human rights lawyers.

28.

The source points out that those detainees who are held in secrecy and denied visits

by lawyers and notification of families, such as those placed under residential surveillance

A/HRC/WGAD/2017/59

6

at a designated location, face a higher risk of being subjected to torture. The residential

surveillance at a designated location scheme is legal in China under article 73 of the

Criminal Procedure Law, which provides that an individual accused of “national security”

crimes, such as Mr. Xie, can be held in a “police-designated” location for up to six months.

The source points out that the families of such detainees must still be informed of their

status within 24 hours, but that the police do not have to tell families the exact whereabouts

of the detainees. The source argues that the law fails to provide detainees held under

residential surveillance at a designated location with basic legal protection, including access

to lawyers and the ability to challenge the legality of their detention. The source recalls that

the Committee against Torture expressed “grave concern” over article 73 of the Criminal

Procedure Law and urged China to repeal the provision “as a matter of urgency” during its

2015 review of the Government’s implementation of the Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment.1

29.

According to the source, other lawyers have also reported Mr. Xie’s torture

allegations to government authorities under article 108 (1) and (3) of the Criminal

Procedure Law, which requests citizens to report incidents of torture to the local police and

the procuratorate. These agencies are then required to open investigations into the cases.

According to the lawyers, the accused Changsha police officers should be investigated for

“torturing to force confession” and “using violence to extract evidence” under article 247 of

the Criminal Law. In addition, article 55 of the Criminal Procedure Law states that

procurators must investigate accusations of forced confessions. The source recalls that

under article 12 of the Convention against Torture, to which China has been a party since

1988, the Government is obliged to conduct prompt and impartial investigations into

accusations of acts of torture committed by State agents.

30.

The source adds that domestic remedies sought through legal channels have proven

to be futile. The lawyers for Mr. Hu, Mr. Xie and Mr. Zhou received no response to

repeated requests for meetings or complaints filed with Public Security bureaus,

procuratorates and detention centres. In addition to being denied visitation rights, Mr.

Zhou’s lawyer was summoned for questioning by the Changsha City Public Security

Bureau and warned by the Changsha City Judicial Department not to travel to Beijing.

After Mr. Zhou was formally arrested in January 2016, his lawyer went to Tianjin No. 1

Detention Centre and asked to see his client. Authorities denied the request, claiming that

Mr. Zhou had engaged another lawyer to represent him. This claim was never confirmed in

writing by Mr. Zhou.

31.

Mr. Xie’s lawyers were repeatedly denied the possibility to meet with their client on

the grounds that he was being investigated for a crime in the “endangering national

security” category and a meeting with lawyers could allegedly “hinder the investigation” or

“leak State secrets”, as stipulated in article 37 of the Criminal Procedure Law. From 17

September to 10 October 2016, Mr. Xie’s lawyer visited Changsha City No. 2 Detention

Centre every day asking to see his client, but each time authorities claimed that Mr. Xie

was being interrogated by a prosecutor. On 10 October, the police told Mr. Xie’s lawyer

that he had hired a new lawyer. This claim was not confirmed by Mr. Xie. Lawyers,

families, supporters and local organizations have posted public calls for the release of the

three defenders and have unsuccessfully tried to visit them at the detention centres on a

number of occasions. Families and supporters also tried to attend Mr. Hu’s and Mr. Zhou’s

trials, but have suffered reprisals from authorities in the form of harassment, house arrest or

detention.

32.

The source concludes that Mr. Xie, Mr. Zhou and Mr. Hu have been detained solely

because of the peaceful exercise of their rights guaranteed under the Universal Declaration

of Human Rights. The circumstances of their detentions satisfy both category II and

category III arbitrary detentions. Furthermore, the source submits that forced confession

and torture should not have occurred, as stipulated in articles 1, 2 and 16 of Convention

against Torture, which China has signed and ratified.

1 See CAT/C/CHN/CO/5, paras. 14-15.

A/HRC/WGAD/2017/59

7

Response from the Government

33.

The Working Group addressed a communication to the Government requesting

detailed information about the current situation of Mr. Zhou, Mr. Hu and Mr. Xie. 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.

34.

In its response, the Government stated that on 4 August 2016, Mr. Zhou was

convicted of subverting State power and sentenced to seven years in prison by Tianjin No.

2 Intermediate People’s Court. He was also deprived of his political rights for five years.

Mr. Zhou pleaded guilty and told the court he would not appeal. On 3 August, Mr. Hu was

sentenced by Tianjin No. 2 Intermediate People’s Court to 7 1/2 years in prison after being

convicted of subverting State power. He was also deprived of his political rights for five

years. Mr. Hu pleaded guilty and said he would not appeal.

35.

On 16 December 2016, Mr. Xie was prosecuted for suspected incitement of

subversion of State power and disrupting court order. During the investigation and

prosecution process, the litigation rights of Mr. Xie were guaranteed by public security and

procuratorial organs in accordance with the law. Mr. Xie’s lawyers have met Mr. Xie

several times. His case is still under judicial consideration in accordance with the law.

36.

The Government states that the three individuals in question were dealt with by the

judicial organs not because they were “rights protection” lawyers or because they defended

the legitimate rights of others in the courts, but solely because, under the pretence of

“defending rights”, they have long been engaged in criminal activities aimed at subverting

the basic national system established under the Constitution of China.

37.

Through open trials, it has been determined that Mr. Zhou and others colluded with

criminals, plotted to subvert State power and promoted systematic ideologies, methods and

steps of State subversion. Moreover, they used cases and incidents that had drawn the

attention of the public; plotted, organized and instigated others to conduct illegal gatherings

and provoke disruption at judicial organs and in other public venues; incited public

confrontation against and hatred of judicial organs and the State, online and offline; and

engaged in activities aimed at subverting State power and overthrowing the basic national

system. Acts of the three individuals in question constitute serious violations of the

Criminal Law.

38.

All the defendants pleaded guilty and repented their wrongdoing in court. The

Government respects and protects the human rights of its citizens. Torture is forbidden by

Chinese laws, including the Criminal Law and the Criminal Procedure Law. The Criminal

Procedure Law clearly stipulates that the extortion of confessions by torture and other

illegal evidence-gathering methods such as threats, enticement and deception are strictly

prohibited; no person may be forced to prove his own guilt. The Criminal Law stipulates

that judicial employees who extort a confession from criminal suspects or defendants by

torture or who use force to extract testimony from witnesses are to be sentenced to criminal

detention for up to three years; those causing injuries to others, physical disablement or

death are to be convicted and severely punished according to the penalties for the crimes of

intentional injury and intentional murder. In addition, the People’s Police Law stipulates

that police officials may not extort confessions through torture or mistreat suspects through

corporal punishment.

39.

The above-mentioned cases were dealt with by Chinese judicial authorities in strict

accordance with the laws and procedures. The legitimate rights of the defendants and

criminal suspects, including the right to a defence and the right to complain, have been fully

guaranteed.

40.

The trial of Mr. Zhou and others was open to the public and all the defendants

admitted in court that their legitimate rights had been safeguarded. They expressed

gratitude to the judicial organs for the humane care during the judicial process. The so-

called allegation of “extortion of confession by torture” is therefore fabricated and

groundless.

A/HRC/WGAD/2017/59

8

41.

Regarding the ongoing case of Mr. Xie, the Government notes that his litigation

rights and other legitimate rights are safeguarded by the judicial organs in strict accordance

with the law.

42. The Government therefore submits that Mr. Hu, Mr. Zhou and Mr. Xie were all tried

pursuant to the law for their conduct, which violated Chinese criminal law. In August 2016,

Mr. Hu and Mr. Zhou were both convicted of subversion of State power and sentenced to 7

1/2 and 7 years’ imprisonment, respectively, by Tianjin No. 2 Intermediate People’s Court.

They were also deprived of their political rights for five years. Because Mr. Xie was

suspected of disrupting the court order and inciting subversion of State power, the public

security organs of Hunan have put him under designated residential surveillance. This step

was taken in July 2015 as a compulsory criminal measure in accordance with the law.

Hunan prosecutorial organs approved his arrest in January 2016 and, in December of the

same year, transferred him to the Changsha City Intermediate People’s Court for

prosecution.

Further comments from the source

43.

The source strongly refutes the points made by the Government and affirms that the

detentions of the three individuals in question have been principally acts of reprisal for their

activism and the exercise of their right to free association. Lawyers and the activists in

question have taken on an increasing number of human rights cases in recent years and

represented detained human rights advocates. They are part of a loose civil society network

of rights lawyers and activists seeking to promote the rule of law in China. This network of

solidarity for the defence of human rights was targeted by authorities in July 2015, when

over 300 persons were abducted, detained, summoned or questioned in a massive

nationwide police operation that became known as the 709 crackdown. Lawyers and the

activists in question were among the primary targets of the crackdown because they had

taken on some of the most controversial human rights cases. They had engaged in advocacy

campaigns around “politically sensitive incidents”, during which they jointly spoke about

rights abuses or publicly called for legal reforms.

44.

The source therefore strongly refutes the accusations against these individuals,

particularly that “they have long been engaged in criminal activities, under the pretence of

‘defending rights’”. The source notes that the Government has publicly smeared the names

of human rights lawyers and activists via the State media in order to delegitimize their

activities and undermine their professional reputations. In these cases, the portrayal of

human rights lawyers and activists as “criminals” started soon after the launch of the 709

crackdown. Without any official notice or explanation given to family members or lawyers,

in addition to denying detainees access to legal counsel, State media sources, such as

Xinhua, published articles claiming that police had “broken up a criminal gang” and that

those detained were “implicated in serious crimes”. The use of the State media has

“guided” public opinion and vilified human rights lawyers, which has had the effect of

“trying” the detainees and publicly depriving them of the presumption of innocence.

45.

The source also notes that Chinese authorities have broadcast and published

“confessions” in the State media to vilify detained lawyers and activists. Mr. Zhou is one of

several detained Chinese human rights defenders whose videotaped “confession” was

shown on television. In addition, Mr. Xie was interviewed by State media personnel under

circumstances that his lawyers could not confirm, a practice that violates both Chinese law

and international human rights norms. The lawyers have not been granted their due process

rights and were essentially found guilty in the eyes of the public without a trial and without

having met with their lawyers, conditions that strongly suggest that their “confessions”

involved coercion, including psychological pressure and, possibly, torture. One of the

lawyers who was detained and subsequently released during the 709 crackdown testified

that interrogators had pressured him and that he was thus under immense duress when he

“smeared” the name of Mr. Zhou and of others in an interview orchestrated by the

Government.

46.

The source submits that this kind of cruel, inhumane and unlawful treatment is just

one method that authorities have used to denounce individuals or groups within the civil

society and to control public discourse about “political threats” perceived by the

A/HRC/WGAD/2017/59

9

Government. The source argues that it is inhumane and cruel to put a detainee on television

to “confess” before any hearing by an independent court has taken place, in violation of

international standards.

47.

Furthermore, the source notes that contrary to what the Government has claimed in

its response, the legal and human rights of detainees have not been protected from the

beginning and throughout the duration of their detentions. Egregious violations of legal

rights include incommunicado detention during residential surveillance at a designated

location for all the detainees. The families of the individuals received no notice about their

whereabouts after they were seized, in violation of article 83 of the Criminal Procedure

Law. Residential surveillance at a designated location, which is stipulated under article 73

of the Criminal Procedure Law, has been widely criticized as constituting enforced

disappearance. The source adds that the foregoing circumstances grossly violate principles

14, 15, 16, 17 and 18 of the Body of Principles.

48.

All three individuals concerned faced obstacles to a fair trial, primarily by being

labelled in the State media as “criminals” before any hearing had taken place. In the case of

Mr. Zhou, his “confessions” to criminal allegations were broadcast by the State media.

These “confessions” also violate article 12 of the Criminal Procedure Law, which stipulates

that suspects cannot be pronounced guilty without having been judged as such by a court.

49.

The source further submits that Tianjin Municipal No. 2 Intermediate People’s

Court, which tried and convicted lawyer Zhou and activist Hu, failed to give three-day

advance public notices of the trials, as required by Chinese law. Instead, the court posted

trial notices on its Weibo account either on the day of the trial or the night before. Further,

the source observes that given the fact that defence lawyers of the detainees’ choice, family

members and independent observers were absent during trials, statements made by

defendants in court could not be verified as being declarations made without duress. The

court quickly convicted both men of subversion of State power, each in hearings which

lasted for about three hours despite the seriousness of the charges the individuals faced.

50.

Mr. Hu was convicted of subversion of State power on 3 August 2016 and sentenced

to 7 1/2 years’ imprisonment. Mr. Hu pleaded guilty and promised not to appeal his

sentence, according to the State media. Police officials had taken his brothers into custody

on 31 July, apparently to prevent them from attending the trial, while his family-appointed

lawyer was never granted access to Mr. Hu. On 4 August, Mr. Zhou was sentenced to 7

years’ imprisonment for the same crime and by the same court. According to State media,

Mr. Zhou also pleaded guilty and stated that he would not appeal the verdict. Mr. Zhou’s

family was held under house arrest to prevent them from attending his trial and the Tianjin

police detained some of his supporters. Mr. Zhou was never granted access to his family-

appointed lawyer, whom authorities claimed he had fired in January 2016, without

providing written verification of any such decision.

51.

The source also observes that while it is true that torture is officially forbidden under

Chinese law, as the Government claimed in its response, authorities in these cases have

failed to enforce measures meant to prohibit ill-treatment and coerced confessions.

52.

Forty individuals have been implicated in committing torture and other cruel

mistreatment against Mr. Xie. The names and positions of over half of the suspected

perpetrators have been identified and several of them are officials of municipal and

provincial procuratorates.

53.

The source further asserts that access to legal counsel is a paramount measure of

torture prevention. However, Chinese authorities have failed to ensure this basic right in all

these cases.

Discussion

54.

The Working Group welcomes the prompt response of the Government to its

communication and considers such cooperation to be a sound basis for continuing its

dialogue with the Government on issues of arbitrary detention.

A/HRC/WGAD/2017/59

10

55.

Mr. Hu is member of the Independent Chinese PEN Center and took part in pro-

democracy activities after events in Tiananmen Square in 1989. Since 2008, after serving

16 years in prison, he has been advocating for human rights, democracy and the rule of law.

56.

On 10 July 2015, Mr. Hu was detained on his way to an underground church to give

a sermon and was put under residential surveillance at a designated location for six months.

During this period, his location was not disclosed to his lawyers or family. Mr. Hu was

formally arrested on 8 January 2016.

57.

Mr. Xie is a lawyer who defended activists arrested during the Jasmine crackdown

in 2011, belonged to the New Citizens’ Movement and was among mainland supporters of

the Hong Kong protests.

58.

On 11 July 2015, Mr. Xie was detained, along with his two colleagues, in his hotel

room in Hunan Province. Mr. Xie was held under residential surveillance at a designated

location for the next six months, until he was formally arrested on 9 January 2016.

59.

Mr. Zhou established the China Lawyers Defence Fund to support the families of

lawyers experiencing pressure from authorities across the country.

60.

On 10 July 2015, Mr. Zhou was detained by three unidentified men at his hotel. A

hood was put over his head and he was taken away by force. No notice or warrant was

reportedly shown. Mr. Zhou was formally arrested on 8 January 2016.

61.

Mr. Hu, Mr. Zhou and Mr. Xie were all convicted of subverting State power. Mr. Hu

and Mr. Zhou were sentenced to 7 1/2 years’ and 7 years’ imprisonment, respectively. Mr.

Xie was indicted for the additional crime of disrupting court order.

62.

The Working Group is pleased that the Government has responded to its letter.

Nonetheless, it regrets that it has not responded in an explicit and comprehensive manner to

all the allegations cited in the communication, including that the three individuals were

detained for several months without formal charges being brought against them; that their

confessions were obtained under torture and duress; and that lawyers engaged by the family

of the defendants were unable to intervene in the proceedings.

63.

The Working Group is thus convinced that Mr. Hu, Mr. Zhou and Mr. Xie were not

informed of the reasons for their arrest; were not brought immediately before a judge; were

not informed of their right to legal counsel of their choice; were not granted access to their

legal representatives; were subjected to incommunicado detention throughout periods of

residential surveillance at a designated location by the police; and that their families were

not informed of their whereabouts for several months. Furthermore, the Working Group is

concerned at serious allegations of torture leading to forced confessions; at the failure of the

authorities to respect the right to be presumed innocent; and, finally, at the fact that Mr. Hu,

Mr. Zhou and Mr. Xie were tried in hearings that were closed to the public and lasted only

a few hours.

64.

However, the Working Group is not convinced by the submission of the

Government that the accused individuals confessed to the crimes of which they were

accused. The Government provided no substantial information that confessions occurred

during the criminal proceedings, before a judge and in full respect of due process

guarantees. Following the 2015 review of the fifth periodic report of China, the Committee

against Torture expressed concern over reports “indicating that the practice of torture and

ill-treatment is still deeply entrenched in the criminal justice system, which overly relies on

confessions as the basis for convictions”.2

65.

The Working Group notes that the detention location was not disclosed to the

lawyers or family members of Mr. Hu, Mr. Zhou and Mr. Xie pursuant to article 73 of the

Criminal Procedure Law, which provides that an individual accused of national security

crimes can be held in a police-designated location for up to six months. The Working

Group recalls that the Committee against Torture expressed “grave concern” about article

73 and urged China to repeal the provision “as a matter of urgency” during its review in

2 Ibid., paras. 20-21.

A/HRC/WGAD/2017/59

11

2015. In view of the allegations of torture submitted by the source, the Working Group will

refer the present case to the Special Rapporteur on torture and other cruel, inhuman or

degrading treatment or punishment for further consideration and, if necessary, appropriate

action.

66.

The Working Group considers that the detentions of Mr. Hu, Mr. Zhou and Mr. Xie

took place in total or partial non-observance of the international norms relating to the right

to a fair trial, in violation of articles 9, 10 and 11 of the Universal Declaration of Human

Rights. The Working Group therefore concludes that the violations of the right to a fair trial

and due process are of such gravity as to give the deprivations of liberty of Mr. Hu, Mr.

Zhou and Mr. Xie an arbitrary character, thus falling within category III.

67.

Furthermore, the Working Group finds that Mr. Hu, Mr. Zhou and Mr. Xie were

detained in violation of articles 19 and 20 of the Universal Declaration of Human Rights

because the detentions were based on their activities to promote and protect human rights,

and took place as part of the 709 crackdown against lawyers and human rights defenders.

The Working Group therefore concludes that the deprivations of liberty of Mr. Hu, Mr.

Zhou and Mr. Xie fall within category II.

68.

The Working Group would like to point out that the legal representation of activists

and the defence of human rights are activities protected under both the Universal

Declaration of Human Rights and 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. The Working Group will therefore refer the

matter to the Special Rapporteur on the situation of human right defenders for further

consideration of the circumstances of the case and, if necessary, appropriate action.

69.

Given the continuing international concern regarding the deprivation of liberty of

human rights advocates, the Government may consider the present to be an appropriate

time to work with human rights mechanisms to bring its laws into conformity with its

international obligations under the Universal Declaration of Human Rights. The Working

Group would welcome the opportunity to conduct a country visit to constructively assist the

Government of China in this process. Furthermore, the Working Group encourages the

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

Disposition

70.

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

The deprivation of liberty of Hu Shigen, Xie Yang and Zhou Shifeng, being in

contravention of articles 9, 10, 11, 18, 19 and 20 of the Universal Declaration of

Human Rights, is arbitrary and falls within categories II and III.

71.

The Working Group requests the Government to take the steps necessary to remedy

the situation of Hu Shigen, Zhou Shifeng and Xie Yang without delay and bring it into

conformity with international standards and principles, including those set out in the

Universal Declaration of Human Rights.

72.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Hu Shigen, Zhou Shifeng and Xie Yang

immediately and accord them an enforceable right to compensation and other reparations,

in accordance with international law.

73.

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

refers the present case to the Special Rapporteur on torture and other cruel, inhuman or

degrading treatment or punishment and to the Special Rapporteur on the situation of human

right defenders.

Follow-up procedure

74.

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/HRC/WGAD/2017/59

12

(a)

Whether Mr. Hu, Mr. Xie and Mr. Zhou have been released and, if so, on

what date(s);

(b)

Whether compensation or other reparations have been made to Mr. Hu, Mr.

Xie and Mr. Zhou;

(c)

Whether an investigation has been conducted into the violation of Mr. Hu’s,

Mr. Xie’s and Mr. Zhou’s rights 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.

75.

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.

76.

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.

77.

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.3

[Adopted on 24 August 2017]

3 See Human Rights Council resolution 33/30, paras. 3 and 7.