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A/HRC/WGAD/2018/22

Opinion no. 22/2018 concerning Liu Feiyue and Huang Qi (China)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2018-04-26 · 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.18-10530(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-first session, 17–26 April 2018

Opinion No. 22/2018 concerning Liu Feiyue and Huang Qi (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 Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 33/30.

2.

In accordance with its methods of work (A/HRC/36/38), on 8 December 2017, the

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

Feiyue and Huang Qi. The Government replied to the communication on 19 January 2018.

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/2018/22

General Assembly

Distr.: General

27 June 2018

Original: English

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Submissions

Communication from the source

4.

Huang Qi, born on 7 April 1963, is a citizen of China. He resides in Shizhong

District, Neijiang City, Sichuan Province.

5.

The source states that Mr. Huang is a prominent journalist. He was the director of

the Chinese human rights monitoring website, 64 Tianwang Human Rights Centre,1 which

he established in 1998. After the establishment of the website, the Centre started to

disseminate reports about alleged cases of enforced disappearances and trafficking. By the

mid-2000s, the Centre had also begun reporting on other alleged human rights violations,

and on complaints against government officials.

6.

The source reports that Mr. Huang has been targeted by the authorities since he

began his journalistic activity. He has served two prison sentences, of eight years in total,

which were allegedly handed down in reprisal for his work. In 2003, Mr. Huang was given

a five-year sentence for “inciting subversion of State power”. In 2009, he was sentenced to

three years in prison for “illegal possession of State secrets”. According to the source, this

sentence relates to Mr. Huang’s meeting with families of children who died in schools that

collapsed during the 2008 earthquake in Sichuan Province.

7.

After each release from prison, Mr. Huang resumed reporting on the human rights

situation in China. Mr. Huang and 64 Tianwang Human Rights Centre have received

international recognition, including the Reporters Without Borders Press Cyber-Freedom

Prize, awarded to Mr. Huang in 2004, and the Reporters Without Borders Press Freedom

Prize, awarded to the Centre in 2016.

8.

The source reports that, late in the evening of 28 November 2016, Mr. Huang was

detained at his residence in Neijiang City by approximately 15 police officers from the

cities of Chengdu, Mianyang and Neijiang. Police officers also searched Mr. Huang’s home

and confiscated some of his possessions. They detained him without showing a warrant or

other decision by a public authority. Mr. Huang was then allegedly subjected to

incommunicado detention. Furthermore, it is reported that, when Mr. Huang was taken into

custody, his mother and a volunteer at 64 Tianwang Human Rights Centre, who has sent

messages about Mr. Huang’s arrest, were also being held incommunicado by the

authorities.

9.

The source also states that Mr. Huang was formally arrested on 16 December 2016.

He is currently being held in custody at Mianyang City Detention Centre, Sichuan

Province, by Mianyang City Public Security Bureau.

10.

The source specifies that Mr. Huang’s detention was ordered by Sichuan Province

Public Security Department. According to the authorities, the legal basis for the detention

was article 111 of the Criminal Law on the illegal dissemination overseas of State secrets.

The article provides that whoever steals, spies with relation to, buys or unlawfully supplies

State secrets or intelligence for a body, organization or individual outside the territory of

China shall be sentenced to fixed-term imprisonment of not less than 5 years but not more

than 10 years. If the circumstances are especially serious, he or she shall be sentenced to

fixed-term imprisonment of not less than 10 years, or life imprisonment. If the

circumstances are minor, he or she shall be sentenced to fixed-term imprisonment of not

more than 5 years, criminal detention, public surveillance or deprivation of political rights.

11.

The source alleges that Mr. Huang was detained in reprisal for his exercise of the

rights to freedom of expression and of association through his work at 64 Tianwang Human

Rights Centre. Mr. Huang has allegedly suffered acts of torture and other forms of ill-

treatment during his detention. The source notes that Mr. Huang was detained at a time

when the authorities had intensified the suppression of groups and individuals reporting on

alleged human rights abuses inside China. Two more journalists who had been volunteering

1 See http://64tianwang.com/ (available in Chinese only).

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with the Centre were allegedly pressured by the authorities, detained and eventually

imprisoned.

12.

The source reports that, on 6 April 2016, 64 Tianwang Human Rights Centre

published a police document issued in March 2016 by the Sichuan Province Public Security

Department. The document ordered the authorities to suppress Mr. Huang’s journalistic

activity and the reporting by 64 Tianwang Human Rights Centre’s website, claiming it to be

a reactionary overseas website that specialized in sending information on scandals inside

China to foreign countries. The source states that the publication of the document appears

to have played a role in Mr. Huang’s current detention and has probably made him, his

colleagues and his website an even greater target for the authorities. The source thus argues

that the authorities have violated Mr. Huang’s rights to freedom of expression and of

association.

13.

According to the source, in February 2017, Mr. Huang’s lawyers met with

Mianyang City national security officers to discuss his case. Officers allegedly told the

lawyers that the case related to State secrets, given the publication of the above-mentioned

police document. The source alleges that government officials retroactively classified the

police document as “top secret,” taking advantage of loopholes in the national State Secrets

Law.

14.

The source adds that Mr. Huang’s case involved various procedural and legal

violations. For instance, no official detention notice was provided to Mr. Huang’s family

when he was taken into custody, in violation of article 83 of the Criminal Procedure Law.

The article stipulates that the Public Security Bureau must produce an official notice when

placing an individual under detention. The source also states that, during the first few

weeks, Mr. Huang was subjected to incommunicado detention. It is alleged that the

authorities did not allow him to meet with a lawyer for the first eight months after his

arrest. The first visit by Mr. Huang’s lawyer only took place on 28 July 2017, eight days

after the police recommended his case for indictment. Prior to that date, the authorities

refused to allow visits by the legal counsel on the grounds that they might “endanger

national security”, as Mr. Huang’s case allegedly involved “State secrets”. The source notes

that this restriction, contained in article 37 of the Criminal Procedure Law, is frequently

applied by the authorities in cases of detention of human rights defenders. The source adds

that article 37 also states that detainees should be given access to a lawyer within 48 hours

of making the corresponding request. According to principle 18 (1) and (2) of the Body of

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

a detainee should be entitled to communicate and consult with his or her legal counsel and

should be allowed adequate time to do so, a safeguard that Mr. Huang was denied.

15.

After the visit to the Detention Centre in July 2017, Mr. Huang’s lawyer reported

that his client’s long-standing health condition had deteriorated further, and that, on 5 July

2017, the authorities at the Detention Centre had stopped providing him with medical

treatment. This denial of medical care occurred when several of Mr. Huang’s health

problems turned life-threatening. His family and supporters thus began to fear that he might

die in detention. The source specifies that, in 2010, Mr. Huang was diagnosed with an

incurable and potentially fatal condition, which resulted in limited kidney function.

Reportedly, Mr. Huang must take nine doses of medication each day to treat his condition.

Mr. Huang was frequently hospitalized, most recently just a few months before his current

detention. According to the source, Mr. Huang is at risk of rapid renal failure. In addition,

he is suffering from hydrocephalus, heart disease, emphysema and the effects of

pneumonia. It is reported that he has lost a lot of weight.

16.

The source reports that Mr. Huang was interrogated by rotating teams of several

dozen investigators, and forced to stand for four to six hours a day over a period of several

weeks, despite his weak physical state. Reportedly, officers tried to pressure him to confess

to the crimes of which he had been accused while being videotaped. The source notes that

this is a common tactic employed by the authorities regarding many other human rights

defenders in the past two years. The source observes that the ongoing mistreatment of Mr.

Huang is similar to the retaliatory treatment received by him during previous periods of

incarceration. It is alleged that Mr. Huang was often tortured during those periods. Acts of

torture applied to Mr. Huang included physical and sexual assaults. He was also often

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forced to sleep next to the toilet. In 2009, when Mr. Huang was in prison, his lawyers

reported that he had two tumours on his chest and stomach, and that he was suffering from

headaches and cardiac issues. His lawyers thus requested that the authorities release Mr.

Huang on bail for medical treatment. However, the authorities have never responded to this

request.

17.

The source reports that, in the course of Mr. Huang’s current detention, in January

2017, twice in February 2017 and also in April 2017, his lawyers requested the authorities

to release him on bail on medical grounds. However, the authorities turned down each

application. International and national human rights activists have unsuccessfully called on

the authorities to release Mr. Huang on humanitarian grounds, citing his deteriorating

health and his alleged arbitrary detention. Mr. Huang’s lawyers also submitted a request to

Mianyang City Public Security Bureau to make public Mr. Huang’s medical history, any

medical treatment he has received, his diet and any other information related to his health in

detention. However, Mianyang City Public Security Bureau refused to grant this request.

18.

The source submits that the denial of medical treatment for Mr. Huang confirms

well-documented instances of torture of incarcerated human rights defenders in China. The

source argues that Mr. Huang’s life-threatening health problems qualify him for release on

medical grounds, according to the Measures for Carrying Out Medical Parole for Prisoners

issued by the Ministry of Justice. The source states that the failure or refusal by the

authorities to provide adequate medical treatment to Mr. Huang constitutes ill-treatment.

The source sustains that article 18 of the Regulation on Detention Facilities and article 26

of the Measures for the Implementation of the Regulation on Detention Facilities, which

stipulate that incarcerated individuals in China should receive prompt medical care, have

not been enforced in the case of Mr. Huang. It is submitted that the ill-treatment of Mr.

Huang by the authorities violates, among other international standards, the Convention

against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the

Basic Principles for the Treatment of Prisoners.

19.

The source submits that Mr. Huang was detained solely because of his peaceful

exercise of his rights guaranteed by the Universal Declaration of Human Rights. The source

concludes that his detention falls within 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).

20.

Mr. Huang was previously the subject of a number of joint urgent appeals sent on 8

December 2003, 30 November 2007, 18 June 2008 and 30 July 2009, by the Working

Group on Arbitrary Detention, the Special Rapporteur on the promotion and protection of

the right to freedom of opinion and expression, the Special Rapporteur on torture and other

cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on the right

of everyone to the enjoyment of the highest attainable standard of physical and mental

health and the Special Rapporteur on the situation of human rights defenders. The Working

Group acknowledges replies from the Government of China received on 28 February 2008,

11 August 2008 and 18 December 2009.

21.

Mr. Liu, born on 5 February 1970, is a citizen of China. He resides in Suizhou City,

Hubei Province.

22.

According to the source, Mr. Liu is an activist and a journalist. In 2006, he founded

the Civil Rights and Livelihood Watch website.2 The website contained reports on a wide

range of alleged abuses of rights based on information collected from and about victims of

forced evictions, demolitions and secret detentions, migrant workers denied their rights,

unpaid teachers, rural children forced to drop out of school, and activists who were

involuntarily committed to psychiatric institutions. In 1998, Mr. Liu joined a branch of the

banned China Democracy Party in Hubei Province. Soon afterwards, he began to research

and publish articles about non-violent civil and political rights movements. A participant in

many advocacy campaigns, Mr. Liu belonged to a group of activists that, in 2003, launched

a movement that urged the Government to implement political reforms. In 2004, in an

2 See http://msguancha.com/ (in Chinese).

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effort to promote the right to health, he collected over 500 signatures from individuals

seeking more affordable medication.

23.

The source reports that, during the evening of 17 November 2016, Mr. Liu was

taken into custody by national security officers of Suizhou City. Allegedly, the officers did

not show any warrant or other decision by a public authority. They searched his home and

confiscated computers, printed materials and other belongings. At that time, Mr. Liu

messaged other activists, stating that national security officers had taken him to a

“mountain village,” referring to a location where he had been detained on previous

occasions. On 18 November 2017, he was placed in criminal detention on suspicion of

“inciting subversion of State power”. On 23 December 2016, Mr. Liu was formally

arrested.

24.

The source reports that Mr. Liu is currently being held in custody by Suizhou City

Public Security Bureau in Suizhou City No. 1 Detention Centre. The legal basis for his

detention is article 105 (2) of the Criminal Law on inciting the subversion of State power,

which stipulates that those who incite others, by spreading rumours or slander, or by any

other means, to subvert State power or overthrow the socialist system, are to be sentenced

to a fixed term of imprisonment of not less than five years, criminal detention, public

surveillance or deprivation of political rights.

25.

The source submits that Mr. Liu’s detention is an act of reprisal for his human rights

advocacy work, particularly for his reporting of human rights abuses on the Civil Rights

and Livelihood Watch website. The source sustains that Mr. Liu was detained when the

authorities intensified their suppression of groups and individuals reporting on alleged

human rights abuses inside China. On 6 December 2016, the police told Mr. Liu’s lawyer

that his client had been detained because he had “published articles that opposed the

socialist system”. In early August 2017, when recommending Mr. Liu’s case for indictment

to the local prosecutor, the police added the charge of “illegally disseminating State secrets

overseas”. The source argues that these actions by the police reflect the Government’s

attempt to curtail Mr. Liu’s right to freedom of expression.

26.

The source submits that there have been procedural and legal violations throughout

Mr. Liu’s current period of detention. For instance, Mr. Liu’s family did not receive a

detention notice after he was taken away on 17 November 2016. This lack of official police

notification violates article 83 of the Criminal Procedure Law, which stipulates that a

detainee’s family must be informed within 24 hours after he or she is taken into custody.

The day after Mr. Liu was detained, the police confirmed as much verbally to his family

when they went to Suizhou City Public Security Bureau to enquire as to his whereabouts.

Despite this verbal confirmation, the police still did not provide an official detention notice.

The source adds that officers told Mr. Liu’s family not to speak out publicly about his

detention, or to seek assistance from the outside world.

27.

The source submits that the authorities have attempted to intimidate Mr. Liu’s

defence lawyers and have obstructed their work on the case. Instances of such obstruction

included preventing the lawyers from gaining access to their client. The authorities also

prevented lawyers from visiting Mr. Liu for the first six months of his detention. They were

thus denied visits on several instances, including on 6 December 2016, 12 December 2016,

21 January 2017 and 23 March 2017. Mr. Liu was only granted his first meeting with a

lawyer on 25 May 2017. Since then, Mr. Liu has had several meetings with his legal

counsel. The source adds that, soon after Mr. Liu’s detention, the judicial authorities

allegedly threatened his lawyer, leading to him halting work on Mr. Liu’s case.

28.

The source reports that, when refusing to allow visits by the legal counsel, the

authorities often cited concerns based on the ground of “national security”, as Mr. Liu’s

case involved a crime of “endangering State security”. The source notes that this restriction,

provided for by article 37 of the Criminal Procedure Law, is frequently applied in cases of

detained human rights defenders. The source notes, however, that the same provision of the

Criminal Procedure Law also stipulates that a detainee should be given access to a lawyer

within 48 hours of making the corresponding request. Moreover, pursuant to the Body of

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

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a detainee should be entitled to communicate and consult with his or her legal counsel and

should be allowed adequate time to do so. Mr. Liu was allegedly denied this safeguard.

29.

The source argues that the authorities presented a weak criminal case against Mr.

Liu, while apparently aiming to punish him with a lengthy prison sentence. Suizhou City

Public Security Bureau extended its investigation several times, a move that is allegedly a

common indication that a case has a weak basis for criminal prosecution. On 23 May 2017,

the Bureau recommended Mr. Liu’s case for indictment. On 8 July 2017, the prosecution

sent the case back to the police and extended the period of investigation by one month. On

8 August 2017, Suizhou City Public Security Bureau again announced that it recommended

indictment in Mr. Liu’s case, having added a serious criminal charge of “illegally

disseminating State secrets overseas” under article 111 of the Criminal Law. The source

notes that, although the supplementary investigation period had lapsed, the Public Security

Bureau reportedly continued its investigation in order to “collect evidence” up to 11 August

2017. The investigation allegedly included interrogating Mr. Liu at the Detention Centre.

The source submits that these actions by the authorities violate the provisions of article 171

of the Criminal Procedure Law, pursuant to which the period of supplementary

investigation is limited to one month.

30.

During Mr. Liu’s detention, his lawyers have maintained that he is innocent of any

criminal charges, and applied for him to be released on bail. However, the authorities

denied this request.

31.

The source notes that, prior to his current detention, Mr. Liu was subjected to

continuous harassment, beatings and detention by the authorities. The authorities allegedly

carried out such acts against Mr. Liu in retaliation for his activism. For instance, the source

reports that Mr. Liu was taken into custody in October 2016, shortly before the opening of

the Sixth Plenum of the Eighteenth Central Committee of the Communist Party of China.

During that period, the police allegedly kept Mr. Liu at a guesthouse, tortured him and

threatened him with further punishment if he continued his advocacy work. The authorities

have allegedly repeated this warning to Mr. Liu during his current detention. The police

also detained Mr. Liu for a short period in August 2016, before the Group of 20 Summit in

Hangzhou.

32.

The source submits that Mr. Liu has been detained solely due to the peaceful

exercise of his rights guaranteed under the Universal Declaration of Human Rights, and that

his detentions falls within category II (when the deprivation of liberty results from the

exercise of the rights and freedoms guaranteed by articles 7, 13, 14, 18, 19, 20, and 21 of

the Universal Declaration of Human Rights).

33.

Mr. Liu was one of a number of individuals the subject of the joint urgent appeal

sent on 2 March 2011 by the Working Group on Arbitrary Detention, the Working Group

on Enforced or Involuntary Disappearances, the Special Rapporteur on the independence of

judges and lawyers, the Special Rapporteur on freedom of expression, the Special

Rapporteur on human rights defenders and the Special Rapporteur on torture.

Response from the Government

34.

On 8 December 2017, the Working Group transmitted the allegations from the

source to the Government under its regular communication procedure. The Working Group

requested the Government to provide detailed information by 7 February 2018 about the

current situation of Mr. Huang and Mr. Liu. The Working Group also requested the

Government to clarify the legal provisions justifying their continued detention, and the

compatibility of their detention with the obligations of China under international human

rights law. In addition, the Working Group called upon the Government to ensure the

physical and mental integrity of Mr. Huang and Mr. Liu.

35.

The Government responded to the regular communication on 19 January 2018. In its

response, the Government states that Mr. Huang is a 55-year-old, residing in Neijiang City,

Sichuan Province. He is accused of the crime of illegally disseminating State secrets

overseas. Mr. Huang has been placed in criminal detention according to law by the public

security bodies of Sichuan Province on 28 November 2016. On 16 December 2016, the

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prosecution approved Mr. Huang’s arrest. Mr. Huang’s case has been reviewed and filed

for indictment.

36.

Furthermore, the Government states that Mr. Liu is a 48-year-old male from Suizhou

City, Hubei Province. Having been accused of the crime of inciting subversion of State

power, on 18 November 2016, Mr. Liu was placed in criminal detention according to law

by the public security bodies of Hubei Province. On 23 December 2016, the prosecution

approved Mr. Liu’s arrest. On 23 May 2017, Mr. Liu’s case was submitted to the local

prosecution service for indictment. It was subsequently filed for prosecution on 6 December

2017.

37.

The Government also states that China is a country governed by the rule of law,

which protects all legal rights enjoyed by criminal suspects according to law. During the

period of review for indictment, procuratorial bodies did not find that confessions made to

public security organs had been extracted under duress, or that those organs had committed

any other legal violations in collecting evidence while investigating Mr. Huang or Mr. Liu.

Moreover, the criminal suspects did not file complaints related to the extraction of

confessions under duress and any other acts of unlawful evidence collection. Accusations

that, among other things, Mr. Huang and Mr. Liu “have been tortured and ill-treated” are

inconsistent with case facts.

Further comments from the source

38.

On 14 February 2018, the Government’s reply was transmitted to the source for its

additional comments, with a request to reply by 15 March 2018. The source responded on

14 March 2018.

39.

In its response, the source contests the submission by the Government and reiterates

that Mr. Huang’s case has involved attempts by public security organs to extract a criminal

confession under duress, he has been subjected to torture and other forms of ill-treatment

and there have been formal complaints filed about such mistreatment.

40.

The source notes that Mr. Huang has consistently refused to confess to criminal

behaviour during police interrogations, according to individuals familiar with his case. His

case was sent for prosecution to the Mianyang City People’s Court. Due to Mr. Huang’s

refusal to plead guilty to the alleged crimes, a move that might have seen him being granted

“clemency”, for example, in the form of lighter punishment, the Mianyang City People’s

Procuratorate reportedly recommended that Mr. Huang be sentenced to between 12 and 15

years in prison. The source maintains that Mr. Huang’s current detention, the criminal

charges against him and any criminal punishment in his regard constitute a violation of his

rights to free expression and of association.

41.

According to the source, contrary to the Government’s claim that Mr. Huang has not

been subjected to torture, he continues to be deprived of treatment for serious medical

conditions, contributing to fears that he will die in custody. Mr. Huang is not receiving

sufficient treatment for nephritis (inflammation of the kidneys), which has developed due to

the fact that he suffers from crescentic glomerulonephritis, a potentially fatal kidney

condition that has not been treated in detention. Mr. Huang has also faced several other

forms of mistreatment in detention. He has reportedly been beaten by guards and by fellow

detainees, acting on the orders of the guards. Mr. Huang has not been provided with toilet

paper. His living allowance in detention has been frozen, preventing him from purchasing

daily necessities. Mr. Huang has reportedly been deprived of healthy food and, due to poor

nutrition and untreated medical conditions, he has lost more than 20 kg whilst in detention.

42.

The source reports that Mr. Huang’s original lawyer filed complaints about the

mistreatment of Mr. Huang. This defence counsel also granted interviews to independent

media outlets that have reported such abuses. In addition, Mr. Huang’s family has written

letters to Sichuan Province Higher People’s Court and Mianyang City People’s Court,

appealing for his release on medical grounds. Neither of the above-mentioned authorities

have provided a response.

43.

Additionally, the source clarifies that the authorities took reprisals against Mr.

Huang’s legal counsel, first depriving him of his right to defend Mr. Huang, and then

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blocking him from practicing his profession. Procuratorial and court officials repeatedly

denied requests by Mr. Huang’s lawyer for access to his client’s criminal case files. It is

further alleged that national security officers frequently questioned Mr. Huang’s lawyer

about his representation of Mr. Huang. On 22 January 2018, Mr. Huang’s lawyer received

an advance notice of administrative punishment from the Guangdong provincial judicial

authorities, informing him that he was going to lose his licence to practice law. After he

filed an application to contest this decision, he was granted a hearing with the provincial

judicial bureau on 3 February 2018. After the hearing, the judicial authorities rescinded Mr.

Huang’s lawyer’s license to practice law.

44.

In relation to the case of Mr. Liu, the source argues that contrary to the

Government’s response, Mr. Liu’s case has involved attempts by public security officials to

extract a criminal confession under duress, particularly through pressure applied to his

family.

45.

It is further reported that, following harassment by national security officers, a

member of Mr. Liu’s family and a family friend urged him to confess to criminal

wrongdoing. In addition, the authorities have closely monitored the content of

communications and the channels of communication between Mr. Liu’s above-mentioned

family member and the outside world.

46.

The source reports that, on 12 December 2017, another lawyer met with Mr. Liu in

detention, and learned from him that he had been indicted a week earlier for “inciting

subversion of State power”, but that the “State secrets” charge against him had been

dropped. The indictment outlined “six major criminal allegations” against Mr. Liu. The

source notes that activities outlined by the prosecutors focus on Mr. Liu’s exercise of his

rights to free expression, assembly and association. They include:

(a)

Writing and publishing articles describing the political system of China as

“autocratic”;

(b)

Writing annual reports critical of human rights violations in China, in

particular during police “stability maintenance” operations, and the ongoing use of forced

psychiatric detention of human rights defenders;

(c)

Publishing articles and commentary about “politically sensitive” events that

expose alleged abuses of human rights by the Government;

(d)

Planning to publish cartoons and posters that expose alleged violations of

human rights by the Government and call for the release of prisoners of conscience;

(e)

Conducting interviews with foreign media that expose alleged abuses of

human rights in China;

(f)

Establishing the Civil Rights and Livelihood Watch human rights website,

with the assistance of foreign entities.

47.

The source maintains that Mr. Liu’s current detention, the criminal charges against

him and any criminal punishment in his regard constitute a gross violation of his rights to

free expression and association.

Discussion

48.

The Working Group notes with appreciation the timely engagement of both the

Government of China and the source in providing submissions in relation to the detention

of Mr. Huang and Mr. Liu.

49.

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

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

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

understood to rest upon the Government if it wishes to refute the allegations (see

A/HRC/19/57, para. 68).

50.

In the present case, the Working Group was convinced that Mr. Huang is a

prominent journalist in China, that he was the director of the Chinese human rights

monitoring website 64 Tianwang Human Rights Centre, which disseminates reports on

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alleged enforced disappearances, trafficking, human rights violations and complaints

against Government officials.

51.

The Working Group was also convinced that Mr. Liu is an activist and a journalist,

that he founded the Civil Rights and Livelihood Watch website, which disseminates reports

on alleged abuses of rights, for example on forced evictions and demolitions, secret

detentions, migrant workers denied of their rights, unpaid teachers, rural children forced to

drop out of school, and activists who were involuntarily committed to psychiatric

institutions.

52.

The Working Group is mindful of the fact that Mr. Huang is accused of the crime of

illegally disseminating State secrets overseas, while Mr. Liu stands accused of the crime of

inciting subversion of State power.

53.

In this regard, the Working Group considers that the above-mentioned charges are so

vague and broad that they could, as in the present case, result in penalties being imposed on

individuals who had merely exercised their rights under international law. As the Working

Group has previously stated, the principle of legality requires that laws be formulated with

sufficient precision so that the individual can access and understand the law, and regulate

his or her conduct accordingly.3 Moreover, the Working Group considers that, in some

circumstances, laws may be so vague and overly broad that it is impossible to invoke a

legal basis justifying the deprivation of liberty.

54.

The Working Group recalls that, following its official visits to China in 1997 and

2004, it emphasized in its reports that vague and imprecise offences jeopardize the

fundamental rights of those who wish to exercise their right to hold an opinion, or exercise

their freedoms of expression, the press, assembly and religion, and that they are likely to

result in arbitrary deprivation of liberty. The Working Group recommended that those

crimes be defined in precise terms, and that legislative measures be taken to introduce an

exemption from criminal responsibility for those who peacefully exercise their rights

guaranteed in the Universal Declaration of Human Rights.4

Category II

55.

The Working Group is aware that Mr. Huang and Mr. Liu both carry out human

rights advocacy work, through the reporting of human rights abuses on the 64 Tianwang

Human Rights Centre and the Civil Rights and Livelihood Watch websites. The Working

Group was also convinced by the allegations of the source, which were not rebutted by the

Government, that Mr. Huang and Mr. Liu were detained for the exercise of their rights as

human rights defenders.

56.

The Working Group notes that the work of human rights defenders is protected by

the Universal Declaration of Human Rights, which recognizes that everyone has the right to

hold opinions without interference, the right to freedom of expression which includes

freedom to seek and impart information and ideas of all kinds through any media of choice,

and the right to freedom of peaceful assembly and of association.5 The work of human

rights defenders is also protected by 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, which states that everyone has the right,

individually and in association with others, to promote and to strive for the protection and

realization of human rights and fundamental freedoms at the national and international

levels.6

3 See, e.g., opinion No. 41/2017, paras. 98–101.

4 See E/CN.4/1998/44/Add.2, paras. 42–53, 106–107 and 109 (b) and (c); and E/CN.4/2005/6/Add.4,

paras. 73 and 78 (e).

5 See Universal Declaration of Human Rights, arts. 19–20.

6 See Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to

Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, arts. 1 and 5

(a); and General Assembly resolution 70/161, para. 8, in which the Assembly called upon States to

take concrete steps to prevent and put an end to the arbitrary arrest and detention of human rights

A/HRC/WGAD/2018/22

10

57.

The Working Group is therefore of the view that the detention of Mr. Huang and Mr.

Liu, being contrary to articles 19 and 20 of the Universal Declaration of Human Rights, is

arbitrary under category II.

58.

The Working Group refers the matter to the Special Rapporteur on human rights

defenders for further consideration of the circumstances of the case and, if necessary,

appropriate action.

Category III

59.

The Working Group is aware that, on 28 November 2016, Mr. Huang was detained

at his residence by a number of police officers, who did not show an arrest warrant or other

decision by a public authority. Initially, Mr. Huang was subjected to incommunicado

detention. He was formally arrested on 16 December 2016.

60.

As the Working Group has consistently argued, holding persons incommunicado is

not permitted under international human rights law because it violates the right to challenge

the lawfulness of detention before a court. The Special Rapporteur on torture has also

argued that the use of incommunicado detention is prohibited under international law (see

A/HRC/13/39/Add.5, para. 156). The Working Group therefore considers that the

incommunicado detention of Mr. Huang violates articles 9, 10 and 11 (1) of the Universal

Declaration of Human Rights.

61.

The Working Group was also convinced that, on 17 November 2016, Mr. Liu was

arrested by national security officers who did not show any warrant or other decision by a

public authority. He was subsequently placed in criminal detention on suspicion of “inciting

subversion of State power”. On 23 December 2016, Mr. Liu was formally arrested.

62.

The Working Group was persuaded that, during the arrests of Mr. Huang and Mr.

Liu, the authorities did not inform them of the reasons of the arrest. The Working Group

would like to recall that persons deprived of their liberty are to 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 a means,

mode or format that 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 before the court and to obtain

without delay appropriate and accessible remedies.7

63.

The Working Group also was convinced that the authorities denied Mr. Huang the

opportunity to meet with his lawyer for the first eight months after his apprehension, and

that the first meeting between Mr. Huang and his lawyer took place only on 28 July 2017.

The Working Group is also aware that the authorities prevented lawyers from visiting Mr.

Liu for the first six months of his detention. They were thus refused visits on several

instances, including on 6 December 2016, 12 December 2016, 21 January 2017 and 23

March 2017. Mr. Liu was only granted his first meeting with his lawyer on 25 May 2017.

64.

The Working Group would like to recall that persons deprived of their liberty are to

have the right to legal assistance by counsel of their choice, at any time during their

detention, including immediately after the moment of apprehension. Upon apprehension, all

persons are to be promptly informed of this right.8 This right entitles persons deprived of

liberty to be accorded adequate time and facilities to prepare their case, including through

disclosure of information. 9 Legal counsel are to be able to carry out their functions

effectively and independently, free from fear of reprisal, interference, intimidation,

defenders, and in that regard strongly urged the release of persons detained or imprisoned, in violation

of the obligations and commitments of States under international human rights law, for exercising

their human rights and fundamental freedoms.

7 See 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, principle 7, para. 10.

8 Ibid., principle 9, para. 12.

9 Ibid., para. 14.

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11

hindrance or harassment. Authorities are to respect the privacy and confidentiality of legal

counsel-detainee communications.10

65.

The Working Group was convinced that, in the present case, Mr. Huang and Mr. Liu

were not informed of their right to legal counsel at the moment of the arrest, and neither of

them could communicate nor consult with their legal counsel, nor were they allowed

adequate time to prepare their defence in the first eight months of detention, in the case of

Mr. Huang, and in the first six months of detention, in the case of Mr. Liu. The right to

legal representation is a fundamental prerogative of persons deprived of their liberty in

order to be able to guarantee their right to challenge the lawfulness of the detention. Such

acts and omissions by the authorities are a violation of due process of law guarantees, and

are of such gravity that they render the detention of Mr. Huang and Mr. Liu in violation of

articles 9 and 10 of the Universal Declaration of Human Rights. Their deprivation of liberty

is therefore arbitrary under category III.

66.

In view of the allegations of torture and other forms of cruel or inhumane treatment

or punishment by the authorities against Mr. Huang and Mr. Liu, the Working Group refers

this case for appropriate action to the Special Rapporteurs on torture and on health.

67.

Lastly, and given the continuing international concern regarding the deprivation of

liberty of human rights defenders, the Government may wish to 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 an official country

visit to constructively assist the Government of China in this process. Furthermore, the

Working Group encourages the Government of China to accede to and to ratify the

International Covenant on Civil and Political Rights.

Disposition

68.

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

The deprivation of liberty of Huang Qi and Liu Feiyue, being in contravention of

articles 9, 10, 19 and 20 of the Universal Declaration of Human Rights, is arbitrary

and falls within categories II and III.

69.

The Working Group requests the Government of China to take the steps necessary to

remedy the situation of Mr. Huang and Mr. Liu without delay and bring it into conformity

with the relevant international norms, including those set out in the Universal Declaration

of Human Rights.

70.

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

case, the appropriate remedy would be to release Mr. Huang and Mr. Liu immediately and

accord them an enforceable right to compensation and other reparations, in accordance with

international law.

71.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.

Huang and Mr. Liu, and to take appropriate measures against those responsible for

violations of their rights.

72.

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

refers the present case to the Special Rapporteurs on torture, on health and on human rights

defenders, for appropriate action.

Follow-up procedure

73.

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. Liu have been released and, if so, on what date;

10 Ibid., para. 15.

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12

(b)

Whether compensation or other reparations have been made to Mr. Huang

and Mr. Liu;

(c)

Whether an investigation has been conducted into the violation of Mr.

Huang’s and Mr. Liu’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.

74.

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.

75.

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.

76.

The Government should disseminate through all available means the present opinion

among all stakeholders.

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.11

[Adopted on 23 April 2018]

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