opencaselaw.ch

A/HRC/WGAD/2019/20

Opinion no. 20/2019 concerning Zhen Jianghua and Qin Yongmin (China)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2019-05-03 · 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.19-17390(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-fourth session, 24 April–3 May 2019

Opinion No. 20/2019 concerning Zhen Jianghua and Qin Yongmin

(China)

1.

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

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. 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 3 August 2018, the

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

Jianghua and Qin Yongmin. The Government replied to the communication on 21

September 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/2019/20

General Assembly

Distr.: General

9 October 2019

Original: English

A/HRC/WGAD/2019/20

2

Submissions

Communication from the source

4.

Zhen Jianghua, born on 12 December 1985, is a national of China. He usually

resides in Zhuhai City, Guangdong Province.

5.

According to the source, Mr. Zhen is a human rights activist and a journalist, who

has in recent years led campaigns on the online platform “human rights campaign in

China”, which publishes information about alleged human rights abuses in the country. He

has also helped to establish and was active with a group founded in 2012 to provide

technical assistance to bypass the Government’s censorship in cyberspace. In addition,

according to the source, Mr. Zhen has been a vocal supporter of victims of the “709

crackdown” launched in July 2015 against human rights lawyers in China. In this context,

he joined demonstrations to call for the release of detained lawyers and activists.

6.

Qin Yongmin, born on 11 August 1953, is a national of China. He usually resides in

Wuhan City, Hubei Province.

7.

The source states that Mr. Qin is a democracy activist and a dissident whose

advocacy dates back to the late 1970s. At the time of being taken into custody, Mr. Qin was

the head of a group that he had founded, named “Human Rights Watch in China”, also

known as the “Rose Team”, which has promoted democracy and the protection of rights.

The group has issued online statements denouncing governmental policies and occasionally

gathered for discussions about political and social issues. The group, mostly consisting of

citizens who present individual rights complaints to authorities, has repeatedly tried to

register with the authorities in order to operate legally as a formal non-governmental

organization. However, the source states that these efforts were consistently met with police

harassment and persecution of the group’s members.

8.

The source also states that, in 1980, Mr. Qin assisted in establishing the China

Democracy Party. In January 1993, he participated in the launch of the “Peace Charter”

movement in Beijing, which called for democracy in China, demanding redress for victims

of the 1989 Tiananmen massacre and advocating for the release of persons deprived of their

liberty for political reasons. The source further states that, in retaliation for his long-term

rights advocacy, the authorities have previously imprisoned Mr. Qin on two occasions for a

total of 20 years. They also sent Mr. Qin to a camp for re-education through labour for two

years.

Arrest and detention of Zhen Jianghua

9.

The source indicates that, on 1 September 2017, Mr. Zhen was taken from his

apartment in Zhuhai City by police officers in plain clothes. Later that night, approximately

20 officers took Mr. Zhen back to his residence and confiscated his mobile telephones and

computers.

10.

On 2 September 2017, the police returned to Mr. Zhen’s residence to conduct a

second search. It is reported that, on that occasion, the officials took promotional materials

and documents related to the “human rights campaign in China” platform. Allegedly, the

police did not present a detention notice or warrant to search Mr. Zhen’s apartment.

11.

The source states that, on 2 September 2017, Mr. Zhen was detained. Reportedly, his

detention was ordered by the Zhuhai Municipal Public Security Bureau. Mr. Zhen was

initially held at Zhuhai City No. 1 Detention Centre. By mid-December 2017, the police

had placed him under “residential surveillance at a designated place of residence”, the

location of which has not been disclosed.

12.

The source submits that the legal basis for the arrest of Mr. Zhen is article 105 (2) of

the Criminal Law (“inciting subversion of State power”), which stipulates a fixed-term

imprisonment of not more than five years, criminal detention, public surveillance or

deprivation of political rights for those who incite others by spreading rumours or slander

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

A/HRC/WGAD/2019/20

3

13.

According to the source, the detention of Mr. Zhen featured numerous legal

violations. He was taken away on 1 September 2017 and placed in criminal detention the

following day. His whereabouts were unknown for several days after the police took him

into custody, as his family did not receive a detention notice until 7 September 2017. The

source argues that such acts by the authorities violate article 83 of Criminal Procedure Law,

which stipulates that the family of a detainee must be informed within 24 hours of the

individual being taken into custody.

14.

The source also submits that the authorities have held Mr. Zhen incommunicado and

have not allowed him to have access to a lawyer. On 14 September 2017, one of Mr. Zhen’s

lawyers requested to see him, but the police explicitly told him not to return to the detention

centre or to “spread speculation” about Mr. Zhen’s case on social media. Similarly, the

authorities warned Mr. Zhen’s family members and supporters not to speak publicly about

his case.

15.

By mid-December 2017, Mr. Zhen had been placed under “residential surveillance

at a designated place of residence”, a form of detention codified in article 73 of the

Criminal Procedure Law. The source argues that this form of detention amounts to

incommunicado detention.

16.

The source reiterates that, since the detention of Mr. Zhen in September 2017, his

family members and lawyers have requested to see him on many occasions; however, the

authorities have refused all of these requests. International and domestic human rights

groups have reported on the detention of Mr. Zhen and have demanded his release.

17.

According to the source, the period of “residential surveillance” concluded on 29

March 2018. On or around 30 March 2018, Mr. Zhen was likely transferred to the Zhuhai

City No. 2 Detention Centre. The source also notes that neither the lawyer nor family of

Mr. Zhen have received any formal notification of this transfer.

18.

On 13 July 2018, another lawyer went to visit Mr. Zhen at Zhuhai City No. 2

Detention Centre, but was stopped from seeing him by a national security officer. The

officer reportedly informed him that the case had already been recommended for indictment

and sent to the local prosecutor’s office. The lawyer, believing that the police had

concluded their investigation of the case, reiterated his request to meet his client.

Subsequently, a police officer in the detention centre produced a copy of a letter that had

been supposedly handwritten by Mr. Zhen, stating that on a date prior to 2 September 2017,

Mr. Zhen had dismissed the legal counsel appointed by his family. The source notes that it

was impossible to verify with Mr. Zhen whether this was true. The authorities at the

detention centre refused both to give the lawyer a copy of the document or take a

photograph of it.

19.

The source maintains that the human rights advocacy activities of Mr. Zhen had for

years attracted the attention of the authorities and that his current detention is retaliation for

those activities. At the time he was taken into custody, Mr. Zhen was leading campaigns on

the “human rights campaign in China” online platform. The source argues that his

detention, which occurred just weeks before the 19th National Congress of the Communist

Party of China, is a sign of an increasing crackdown on civil society by the Government.

More specifically, it is noted that the detention of Mr. Zhen follows the detention of several

heads of advocacy groups that use the Internet to monitor and report on the human rights

situation in the country.

20.

The source adds that, in the past few years, and prior to his current detention, Mr.

Zhen had been detained and harassed by the police in retaliation for his human rights

advocacy. For instance, he was briefly detained in September 2016 when he went to Wukan

village in Guangdong to speak with local residents protesting against alleged corruption and

the detention of a village leader. Beginning in 2010, the authorities in Zhuhai had allegedly

forced Mr. Zhen to change his residence about once a year. Every time Mr. Zhen moved

residence, the police would exert pressure on landlords not to rent accommodation to him.

On several occasions Mr. Zhen was also prohibited to travel overseas.

21.

The source concludes that Mr. Zhen’s detention violates the peaceful exercise of his

rights and freedoms guaranteed under articles 7, 9, 13, 18, 19 and 20 of the Universal

A/HRC/WGAD/2019/20

4

Declaration of Human Rights. It therefore falls within categories I, II and III of the

Working Group.

22.

Mr. Zhen was the subject of a joint allegation letter (AL CHN 2/2018) sent on 24

January 2018 by the Working Group; the Special Rapporteur on the promotion and

protection of the right to freedom of opinion and expression; the Special Rapporteur on the

situation of human rights defenders; and the Special Rapporteur on the independence of

judges and lawyers. The Working Group acknowledges the reply from the Government of

China received on 7 March 2018.

Arrest, detention and conviction of Mr. Qin

23.

The source submits that Mr. Qin was taken into custody on 15 January 2015, at his

residence in Wuhan City, Hubei Province, immediately after completing a 10-day

administrative detention for allegedly organizing an illegal assembly.

24.

The source notes that officials from the Wuhan City Security Bureau and the

Qingshan District Branch of the Wuhan Municipal Public Security Bureau did not show

any arrest warrant or other decision by a public authority.

25.

According to the source, having been taken into custody on 15 January 2015, Mr.

Qin was forcibly disappeared for approximately 70 days. His family did not receive a

detention notice. The source argues that this violated the provisions of article 83 of the

Criminal Procedure Law, which stipulate that a detainee’s family must be informed within

24 hours of an individual being taken into custody. The source states that Mr. Qin was

guarded by Wuhan public security officers and deprived of access to a legal counsel.

26.

The source reports that, after his detention, Mr. Qin was taken to Baxian Island

along with a family member. The family member remained missing until early February

2018. The source notes that Mr. Qin was among more than 10 individuals belonging to the

Rose Team who were forcibly disappeared, criminally detained or formally arrested by the

police in 2015 and 2016.

27.

According to the source, on 30 March 2015, Mr. Qin was criminally detained and

transferred to Wuhan City No. 2 Detention Centre. On 6 May 2015, Mr. Qin was formally

arrested by Wuhan Municipal Public Security Bureau officials in accordance with an

indictment based on suspicion of subverting State power, issued by the Wuhan City

People’s Procuratorate.

28.

The source specifies that the legal basis for the arrest was article 105 (2) of the

Criminal Law, that stipulates a fixed-term imprisonment of not more than five years,

criminal detention, public surveillance or deprivation of political rights to those who incite

others by spreading rumours or slander or any other means to subvert the State power or

overthrow the socialist system.

29.

The source alleges that the legal basis for detention was article 105 (1) of the

Criminal Law, which provides for not less than 10 years’ fixed-term imprisonment or life

imprisonment for those who organize, plot or carry out a scheme to subvert State power or

overthrow the socialist system, and to ringleaders and others who commit major crimes; 3

to 10 years’ fixed-term imprisonment for active participants therein; and not more than 3

years’ imprisonment for participants.

30.

The source submits that Mr. Qin has spent more than three years in police custody

without being brought before a judge and argues that this constitutes an unreasonably

prolonged pretrial detention according to international human rights standards. Before

indicting Mr. Qin on 17 June 2016, the Wuhan City People’s Procuratorate extended the

period of investigation into his case on three occasions. The source argues that this often

indicates weak evidence in a criminal case.

31.

The source also notes that, though Mr. Qin was arrested in May 2015 for inciting

subversion, he was indicted for a more serious criminal charge that prescribes a longer

prison sentence. The authorities did not reveal to Mr. Qin’s lawyer the reason for this

change.

A/HRC/WGAD/2019/20

5

32.

According to the source, the authorities scheduled the trial at first instance to take

place on 29 December 2017, but then suddenly cancelled it without setting a new date for

the proceedings.

33.

The source reports that international and domestic human rights groups have

reported on the detention of Mr. Qin and demanded his release. Prior to his trial, Mr. Qin’s

lawyers applied for him to be freed on bail, consistently maintained his innocence and

requested that anyone with evidence against him be allowed to testify in court.

34.

On 11 May 2018, the Wuhan City Intermediate People’s Court initiated proceedings

concerning the case of Mr. Qin. On 12 May 2018, the Court concluded the trial, but did not

announce the verdict.

35.

According to the source, the authorities restricted the movement of several

supporters of Mr. Qin who wished to attend the hearing or to gather outside the courthouse

to show their solidarity. It is also reported that, during the trial, the presiding judge often

interrupted Mr. Qin and his lawyers, thus preventing them from exercising their right to

defence. At one point, after an argument with the presiding judge, Mr. Qin lost

consciousness and was removed from the courtroom. The source notes that this was partly

due to Mr. Qin’s weakened physical state. After returning to the courtroom, Mr. Qin

remained silent for the remainder of the proceedings.

36.

The source adds that, on 11 May 2018, the judge did not allow Mr. Qin’s lawyers to

leave the court in order to eat a meal, thus restricting their freedom of movement. On 12

May 2018, after the trial had ended, Mr. Qin’s lawyers refused to sign the trial transcript in

protest against allegedly unjust court proceedings.

37.

On the morning of 28 May 2018, Mr. Qin’s lawyers went to Wuhan City No. 2

Detention Centre and requested to meet with their client. A detention centre officer told

them that Mr. Qin was continuing to suffer from high blood pressure. The lawyers were

told to go through higher level authorities or the court to request permission to visit Mr.

Qin. The source reports that the lawyers were ultimately not allowed to visit their client.

38.

The indictment alleged that the expression of political beliefs by Mr. Qin through his

writing constituted a criminal act. The source specifies that Mr. Qin advocated for political

change, with the goal of moving China from a one-party dictatorship to political pluralism

and then achieving a fair multi-party system under a constitutional government. In addition,

he wrote about the fundamental principle of national reconciliation, the supremacy of

human rights, positive interaction and peaceful transition.

39.

The source maintains that the main reasons given in the indictment for prosecuting

Mr. Qin reflect the suppression by the Government of his rights to free expression,

assembly and association. It was alleged that Mr. Qin had circulated writings about

democracy and been involved in a series of activities with the aim of subverting State

power, including writing online essays, organizing advocacy for the China Democracy

Party, forming the Rose Team and contacting overseas groups.

40.

The source alleges that, on 11 July 2018, Mr. Qin was sentenced to 13 years in

prison after the Wuhan City Intermediate People’s Court had found him guilty of

“subversion of State power”.

41.

The source observes that, for decades prior to his current detention, Mr. Qin was

targeted by the authorities in retaliation for his exercising his right to freedom of

expression, assembly and association. In addition to being sentenced to two prison terms

and a period in re-education through labour, Mr. Qin was taken into police custody for

questioning or faced some other form of deprivation of liberty on more than 40 occasions in

retaliation for his activities in the field of human rights advocacy.

42.

The source argues that the deprivation of liberty of Mr. Qin violates his rights

guaranteed under articles 7, 9, 10, 13, 18, 19 and 20 of the Universal Declaration of Human

Rights, thus falling under categories I, II and III of the Working Group.

43.

Mr. Qin was previously the subject of a joint urgent appeal (JUA CHN 5/2011) sent

on 3 March 2011 by the Working Group; the Chair-Rapporteur of the Working Group on

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

A/HRC/WGAD/2019/20

6

judges and lawyers; the Special Rapporteur on the promotion and protection of the right to

freedom of opinion and expression; the Special Rapporteur on the situation of human rights

defenders; and the Special Rapporteur on torture and other cruel, inhuman or degrading

treatment or punishment.

Response from the Government

44.

On 3 August 2018, the Working Group transmitted the allegations made by the

source to the Government through its regular communication procedure. The Working

Group requested the Government to provide, before 2 October 2018, detailed information

about the current situation of Mr. Zhen and Mr. Qin and any comments on the source’s

allegations. Moreover, the Working Group called upon the Government to ensure the

physical and mental integrity of Mr. Zhen and Mr. Qin.

45.

According to the Government’s response received on 21 September 2018, Mr. Zhen,

accused of inciting the subversion of State power, was placed under criminal detention in

accordance with the law by Guangdong Province public security on 1 September 2017, and

under “residential surveillance at a designated place of residence” on 29 September 2017.

On 10 August 2018, the Guangdong Province Zhuhai City Intermediate People’s Court held

a first-instance trial and will announce a verdict at a later date.

46.

The Government adds that Mr. Qin, accused of subverting State power, was placed

under criminal detention in accordance with the law in March 2015. His arrest was

approved by the procuratorial organs in May 2015 with an indictment submitted in June

2016. On 11 July 2018, the Wuhan City Intermediate People’s Court held a public verdict

hearing at first instance, finding him guilty of subverting State power and accordingly

sentencing him to fixed-term imprisonment of 13 years and deprivation of political rights

for 3 years.

47.

The Wuhan City Intermediate People’s Court held that, after his release in 2010

upon completion of his sentence for his previous conviction of subverting State power, Mr.

Qin expressed dissatisfaction with State power and the socialist system. He continued to

subvert State power by writing articles and publishing books, using the Internet and

overseas media, declaring an ideology of subverting State power and pronouncing

objectives, strategies and methods for subverting such power, and founded and ran an

illegal organization to that end. The Government states that the same court issued its verdict

in accordance with the evidence, nature, circumstances and severity of his crime as the

ringleader and repeat offender in a plot to subvert the fundamental system contained in the

Constitution.

48.

The Government adds that Mr. Qin is a criminal sentenced by the judiciary

according to the law and that his sentence is unrelated to the issue of human rights. China is

a country ruled by law, and anyone who violates the law, regardless of their identity, should

be punished according to the law.

49.

Regarding the source’s claim that Mr. Qin’s supporters were not allowed to attend

his trial and that his defence lawyers were not able to fully exercise their rights, the

Government states that a first-instance case trial should be held in public in accordance

with article 183 of the Criminal Procedure Law and article 186 of the Supreme People’s

Court’s judicial interpretation of the Criminal Procedure Law. However, the proceedings

before the Wuhan City Intermediate People’s Court on 11 and 12 May 2018 were not open

to the public since the said provision explicitly provides for exceptions in cases involving

State secrets or personal privacy. However, the judgment was announced on 11 July 2018

in the presence of Mr. Qin’s family and representatives.

50.

According to the Government, the collegial panel of judges convened a pretrial

meeting with the prosecutors, Mr. Qin and his lawyers to consult on the presentation of the

evidence and other trial-related issues, during which his family fully expressed their views.

During the pretrial meeting, Mr. Qin fully expressed his opinions and during the trial

proceedings and through repeated inquiries before the collegial panel, neither Mr. Qin nor

his lawyers expressed new opinions. Following the trial, Mr. Qin’s lawyers again submitted

defence statements to the collegial panel through judicial administrative organs.

A/HRC/WGAD/2019/20

7

51.

The Government rejects the source’s claim that Mr. Zhen and Mr. Qin have faced

retaliation for their human rights activities, as China is a country governed by law in which

no place or person is outside the law. Because the two individuals have been punished in

accordance with the law and the principle of equality before the law, the matter is unrelated

to the issue of human rights.

Further comments from the source

52.

In a response dated 16 November 2018, the source rebuts the claims made by the

Government that the cases of Mr. Zhen and Mr. Qin are unrelated to the issue of human

rights; that they involve “State secrets”, which require proceedings in camera; and that the

two individuals have not been subjected to retaliation for their human rights activities. The

source reiterates that the persecution of Mr. Zhen and Mr. Qin is part of an ongoing and

deepening crackdown against Chinese human rights defenders and their exercise of the

rights to free and peaceful expression, assembly and association. According to the source,

the application of vague charges involving “subversion” reflect the Government’s

systematic practice of charging and prosecuting human rights defenders for political crimes.

53.

The source adds that the Government has not responded to the alleged deprivation of

the legal and human rights of Mr. Zhen. The source states that, in contravention of

international and domestic legal norms, his family has never received notice of his arrest or

detention. Mr. Zhen has been held in continuous incommunicado detention with no access

to the lawyers chosen by his family to represent him. Neither the lawyers hired by his

family nor his family members received any advance notice of the trial from either the court

or from the lawyers appointed by the Government. These lawyers were assigned to him

after he supposedly dismissed his family-hired lawyers in a decision that cannot be

independently verified because of his continued incommunicado detention; the notice of the

trial appeared only for a short time on an official procuratorial website and was posted

nearly two weeks after the proceedings.

54.

With regard to Mr. Qin, the source maintains that the indictment and judgment

against him largely relate to his writings on democracy and human rights, his various

associations with fellow human rights defenders and independent groups, and his activism

in various groups and associations, in particular the Rose Team, which he founded. The

Rose Team is mostly made up of “petitioners”, individuals who present personal grievances

about alleged human rights abuses to officials above the local level of government, and who

themselves are often subjected to further rights violations in retaliation for their search for

justice.

55.

In an statement published online on 5 May 2018, six days before his trial, and

addressed to the Working Group and other human rights bodies, Mr. Qin noted that the

criminal charges against him concerned his demand that the Government respect its

international human rights obligations, including those contained in the Universal

Declaration of Human Rights and the Covenant.1

56.

Contrary to the assertion that during the pretrial meeting, Mr. Qin fully expressed

his opinions; during the trial proceedings and through repeated inquiries before the collegial

panel, neither Mr. Qin nor his lawyers expressed new opinions; and following the trial, Mr.

Qin’s lawyers again submitted defence statements to the collegial panel through judicial

administrative organs, the source submits that such claims do not accurately reflect what

happened. It notes that, during the court hearing on 11 May 2018, Mr. Qin lost

consciousness. His poor physical state severely compromised his ability to take part in the

proceedings, including in responding to the questions of the presiding judge. However, the

court ignored the request made by his defence team to have a qualified physician examine

his condition and insisted that he continue to participate in the proceedings. His lawyers

refused to file defence statements after the trial in protest at the unjust judicial proceedings.

They also refused to submit opinions about the presentation of evidence and other trial-

related issues in a pretrial meeting convened by the collegial panel in protest against the

1 Mr. Qin’s statement was released by a human rights organization based in China, but has not been

submitted to the special procedures of the Human Rights Council.

A/HRC/WGAD/2019/20

8

provisions of the Criminal Procedure Code that require such submissions to the collegial

panel given that it does not adjudicate the case in practice.

57.

Lastly, the source maintains that the case of Mr. Qin does not involve “State secrets”

that require closed hearings. Among other things, the authorities cited his receipt of

financial contributions through international money transfers, which are a widely used form

of lawful transaction.

Discussion

58.

The Working Group thanks the source and the Government for their submissions in

relation to the arrests and detention of Mr. Zhen and Mr. Qin.

59.

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

with evidentiary issues. If the source has presented 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

(A/HRC/19/57, para. 68).2

60.

The Working Group wishes to reaffirm that the Government has an obligation to

respect, protect and fulfil the right to liberty and that any national law allowing deprivation

of liberty should be made and implemented in conformity with the relevant international

standards set forth in the Universal Declaration and other applicable international and

regional instruments.3 Consequently, even if the detention is in conformity with national

legislation, regulations and practices, the Working Group is entitled and obliged to assess

the judicial proceedings and the law itself to determine whether such detention is also

consistent with the relevant provisions of international human rights law.4

Category I

61.

The Working Group will first consider whether there have been violations under

category I, which concerns deprivation of liberty without any legal basis being invoked.

62.

The source alleges, and the Government does not contest, that Mr. Zhen and Mr. Qin

were not presented with an arrest warrant or informed of the reasons for their arrest at the

time of their arrest, 1 September 2017 and 15 January 2015 respectively, and that they were

not promptly informed of any charges against them. While the Government states that they

were arrested in accordance with its domestic law, that law must meet the threshold of

international human rights standards.

63.

The international norms on detention include the right to be presented with an arrest

warrant to ensure the exercise of effective control by a competent, independent and

impartial judicial authority, which is procedurally inherent in the right to liberty and

security of person and the prohibition of arbitrary deprivation of liberty under articles 3 and

9 of the Universal Declaration of Human Rights and principles 2, 4 and 10 of the Body of

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

2 See, for example, opinions No. 50/2017, para. 54; No. 61/2017, para. 26; No. 62/2017, para. 45; No.

69/2017, para. 24; No. 70/2017, para. 48; No. 75/2017, para. 34; No. 79/2017, para. 47; No. 11/2018,

para. 41; No. 19/2018, para. 25; No. 35/2018, para. 24; No. 36/2018, para. 37; No. 37/2018, para. 27;

No. 40/2018, para. 42; No. 43/2018, para. 71; No. 44/2018, para. 78; No. 45/2018, para. 39; No.

46/2018, para. 45; No. 52/2018, para. 68; No. 67/2018, para. 69; No. 70/2018, para. 31; No. 75/2018,

para. 57; No. 78/2018, para. 67; No. 79/2018, para. 68; and No. 90/2018, para. 29.

3 General Assembly resolution 72/180, fifth preambular paragraph; Human Rights Council

resolution 10/9, para. 4 (b); and opinions No. 41/2014, para. 24; No. 28/2015, para. 41; No. 76/2017,

para. 62; No. 83/2017, paras. 51 and 70; No. 88/2017, para. 32; No. 94/2017, para. 59; No. 38/2018,

para. 60; No. 68/2018; para. 37; No. 82/2018, para. 25; and No. 87/2018, para. 51.

4 See, for example, opinions No. 1/1998, para. 13; No. 5/1999, para. 15; No. 1/2003, para. 17; No.

33/2015, para. 80; No. 94/2017, paras. 47–48; No. 38/2018, para. 60; No. 68/2018, para. 37; No.

82/2018, para. 25; and No. 87/2018, para. 51.

A/HRC/WGAD/2019/20

9

Imprisonment.5 The Working Group finds no valid grounds, such as arrest in flagrante

delicto, to justify an exception to this principle in the present case.

64.

The Working Group also finds that, in order to ascertain a legal basis for deprivation

of liberty, the authorities should have informed Mr. Zhen and Mr. Qin of the reasons for

their arrest, at the time of arrest, and of the charges against them promptly; the failure to do

so violates article 9 of the Universal Declaration of Human Rights and principle 10 of the

Body of Principles, and renders their arrest devoid of legal basis.

65.

The source further maintains, and the Government does not dispute, that Mr. Zhen

and Mr. Qin were held incommunicado for the first 6 days and 70 days, respectively, of

their detention. Such deprivation of liberty, entailing a refusal to disclose the fate or

whereabouts of a person or to acknowledge their detention, lacks any valid legal basis

under any circumstance and is inherently arbitrary as it places the person outside the

protection of the law in violation of article 6 of the Universal Declaration of Human

Rights.6

66.

The Working Group notes that neither Mr. Zhen nor Mr. Qin was brought promptly

before a judge, within 48 hours of the arrest barring exceptional circumstances, in

accordance with the international standard,7 or afforded the right to take proceedings before

a court so that it may decide without delay on the lawfulness of the detention in accordance

with articles 3, 8 and 9 of the Universal Declaration and principles 11, 32 and 37 of the

Body of Principles. In addition, the United Nations Basic Principles and Guidelines on

Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring

Proceedings Before a Court indicates that the right to challenge the lawfulness of detention

before a court is a self-standing human right, the absence of which constitutes a human

rights violation, and is essential to preserve legality in a democratic society (A/HRC/30/37,

paras. 2–3). This right, which is in fact a peremptory norm of international law, applies to

all forms and situations of deprivation of liberty.8

67.

In Mr. Zhen’s case, he was held incommunicado under “residential surveillance at a

designated place of residence”. The Working Group, in this regard, considers that such a

term lacks clarity since, as in the case of Mr. Zhen, the person subject to it is confined not

to his or her usual place of residence but “a designated place of residence”, which may well

be a prison. The State prosecutors and the public security organs have, in effect, the power

to hold a person incommunicado without judicial oversight. In the Working Group’s view,

such an enabling act for the law enforcement officials is devoid of legal basis.

68.

The Working Group therefore considers that the arrest, detention and imprisonment

of Mr. Zhen and Mr. Qin lack a legal basis and are thus arbitrary, falling under category I.

Category II

69.

The Working Group recalls that the rights to freedom of movement and residence,

freedom to seek asylum, freedom of thought, conscience and religion, freedom of opinion

and expression, freedom of peaceful assembly and association, participation in political and

public affairs, legal equality and non-discrimination, and the protection of persons

belonging to ethnic, religious or linguistic minorities are among the most fundamental

human rights, deriving from the inherent dignity of the human person, reaffirmed and

ensured by the international community in articles 7, 13, 14, 18, 19, 20 and 21 of the

Universal Declaration of Human Rights.

5 See, for example, opinions No. 76/2017, para. 55; No. 83/2017, para. 65; No. 88/2017, para. 27; No.

93/2017, para. 44; No. 3/2018, para. 43; No. 10/2018, para. 46; No. 26/2018, para. 54; No. 30/2018,

para. 39; No. 38/2018, para. 63; No. 47/2018, para. 56; No. 51/2018, para. 80; No. 63/2018, para. 27;

No. 68/2018, para. 39; and No. 82/2018, para. 29.

6 See General Assembly 47/133. See also opinion No. 82/2018, para. 28.

7 See opinions No. 57/2016, paras. 110–111; No. 2/2018, para. 49; No. 83/2018, para. 47; No. 11/2019,

para. 63; and No. 30/2019, para. 30.

8 Opinion No. 39/2018, para. 35.

A/HRC/WGAD/2019/20

10

70.

The source asserts that Mr. Zhen and Mr. Qin have been arbitrarily deprived of their

liberty for legitimately exercising their fundamental human rights as human rights

defenders, while the Government claims that the said exercise constitutes the subversion of

State power and an attempt to overthrow the socialist system for the purposes of its

Criminal Law, a grave offence punishable by imprisonment.

71.

Article 29 (2) of the Universal Declaration of Human Rights provides that the only

legitimate limitations on the exercise of one’s rights and freedoms must be for the purposes

of securing due recognition and respect for the rights and freedoms of others and of meeting

the just requirements of morality, public order and general welfare in a democratic society.

In this connection, the Special Rapporteur on the promotion and protection of the right to

freedom of opinion and expression has reiterated that the right to freedom of expression

includes the expression of views and opinions that offend, shock or disturb (A/HRC/17/27,

para. 37).9 Even the statements considered unacceptable, disrespectful and in very bad taste

by the authorities are entitled to protection. The Special Rapporteur also added that

protection of national security or countering terrorism cannot be used to justify restricting

the right to expression unless the Government can demonstrate that: (a) the expression is

intended to incite imminent violence; (b) it is likely to incite such violence; and (c) there is

a direct and immediate connection between the expression and the likelihood or occurrence

of such violence.10

72.

The Working Group notes that article 105 of the Criminal Law defines subversion of

State power or the overthrow of the socialist system as follows:

Among those who organize, plot or carry out the scheme of subverting State power

or overthrowing the Socialist system, the ringleaders and the others who commit

major crimes shall be sentenced to life imprisonment or fixed-term imprisonment of

not less than 10 years; the ones who take an active part in it shall be sentenced to

fixed-term imprisonment of not less than three years but not more than 10 years; and

the other participants shall be sentenced to fixed-term imprisonment of not more

than three years, criminal detention, public surveillance or deprivation of political

rights.

Whoever incites others by spreading rumours or slanders or any other means to

subvert the State power or overthrow the Socialist system shall be sentenced to

fixed-term imprisonment of not more than five years, criminal detention, public

surveillance or deprivation of political rights; and the ringleaders and the others who

commit major crimes shall be sentenced to fixed-term imprisonment of not less than

five years.

73.

The Working Group finds that such vaguely and broadly worded provisions could be

used to deprive individuals of their liberty without a specific legal basis and violate the due

process of law undergirded by the principle of legality in article 11 (2) of the Universal

Declaration of Human Rights. As the Working Group has previously stated, the principle of

legality requires that laws be formulated with sufficient precision so that an individual can

access and understand the law and regulate his or her conduct accordingly.11

74.

In the Working Group’s view, the principle of legality further requires the substance

of penal law to be present and appropriate in a democratic society that respects human

dignity and rights. Hence, the penal punishment must, at a minimum, satisfy the principle

of necessity, the prerequisite of wrongdoing and the principle of guilt in the interest of

formal and material justice.12

9 In addition, the Human Rights Council, in its resolution No. 12/16 (para. 5 (p) (i)), has stated that

restrictions on discussion of government policies and political debate are not consistent with article 19

(3) of the Covenant.

10 A/HRC/17/27, para. 36, citing the Johannesburg Principles on National Security, Freedom of

Expression and Access to Information, principle 6, as endorsed in E/CN.4/1996/39.

11 Opinion No. 62/2018, para. 57.

12 Opinion No. 10/2018, para. 53.

A/HRC/WGAD/2019/20

11

75.

The Working Group also considers that the provisions of article 105 of the Criminal

Law, under which Mr. Zhen was sentenced to 13 years in prison and 3 years’ deprivation of

political rights for his advocacy for political change, are neither necessary to protect public

or private interests against injury nor proportionate to the crime.

76.

Therefore, the Working Group finds it difficult to consider the routine human rights

advocacy or calls for political change of Mr. Zhen and Mr. Qin, a natural expression of

their values and beliefs, as well as the creation and management of civil society

organizations to that end, to be criminal acts in a free and democratic society. The

Government in no way states or implies that either of them had committed acts of violence

or incited imminent violence.

77.

In the light of the above, the Working Group is of the opinion that the deprivation of

liberty of Mr. Zhen and Mr. Qin is arbitrary, falling within category II, as it violated articles

18, 19 and 20 (1) of the Universal Declaration of Human Rights.

Category III

78.

Given its finding that the deprivation of liberty of Mr. Zhen and Mr. Qin is arbitrary

under category I, the Working Group wishes to emphasize that their trials should never

have taken place. However, as the trials did take place, the Working Group will now

consider whether the alleged violations of the right to a fair trial and due process were

grave enough to give their deprivation of liberty an arbitrary character so that it falls within

category III.

79.

Both Mr. Zhen and Mr. Qin were denied the right to notify and communicate with

their families and lawyers, contrary to principles 15 to 19 of the Body of Principles, as well

as the right to be brought promptly before a judge, who should decide without delay upon

the lawfulness and necessity of detention, as stipulated in principles 11, 32 and 37 of the

Body of Principles. In the view of the Working Group, such procedural defects severely

compromised their due process and fair trial rights from the beginning of the detention.

80.

Subsequently, the Government failed to respect the right of Mr. Zhen and Mr. Qin to

legal assistance at all times, which is inherent in the right to liberty and security of person,

and their right to a fair and public hearing by a competent, independent and impartial

tribunal established by law with all the guarantees necessary for defence in a criminal case,

in accordance with articles 3, 9, 10 and 11 (1) of the Universal Declaration of Human

Rights and principles 11, 15, 17 and 18 of the Body of Principles.

81.

The interrogations in the absence of their lawyers during their incommunicado

detention deprived them of their right to legal counsel at the critical stage of criminal

proceedings and exposed them to the risk of coercion. The lack of adequate access and

communication between Mr. Zhen and Mr. Qin and their lawyers violate the essence of the

right to legal assistance and preparation for defence. The Working Group does not

understand the reason for the dismissal of family-appointed lawyers under questionable

circumstances in Mr. Zhen’s case and the judge’s failure to allow the defence attorneys to

leave for a meal during the trial of Mr. Qin.

82.

The Working Group further determines that Mr. Zhen’s pretrial detention from 1

September 2017 to 10 August 2018, for almost one year, and Mr. Qin’s pretrial detention

from 15 January 2015 to 11 July 2018, for more than three years, without an individualized

judicial determination undermines the presumption of innocence guaranteed under article

11 (1) of the Universal Declaration of Human Rights and principle 36 (1) of the Body of

Principles.

83.

The prolonged pretrial detention also violated the right of Mr. Zhen and Mr. Qin to

be tried within a reasonable time or to be released pending trial in accordance with principle

38 of the Body of Principles. Such an undue delay in a criminal trial cannot be in the

interests of justice or human rights.

84.

In Mr. Zhen’s case, the determination of the legality of the decision and enforcement

of “residential surveillance at a designated place of residence” by the people’s

procuratorates under article 73 of the Criminal Procedure Law does not qualify as a fair and

public hearing by a competent, independent and impartial tribunal, as stipulated in article

A/HRC/WGAD/2019/20

12

10 of the Universal Declaration of Human Rights. Prosecutors cannot sit in judgment of

their own investigative and prosecutorial conduct.

85.

The Working Group also doubts the necessity of the closed proceedings in Mr. Qin’s

trial, in violation of articles 10 and 11 (1) of the Universal Declaration. The Government

has offered no details or plausible reason to suggest that his case involved “State secrets”

other than vague assertions to that effect. The international money transfers, as the source

suggests, certainly do not justify such a conclusion.

86.

Furthermore, the Working Group considers that forcing the trial to proceed with Mr.

Qin in attendance, despite his visible fatigue resulting possibly from his high blood

pressure, not only threatened his right to health but also compromised his ability to properly

defend himself in court.

87.

In the light of the above, the Working Group concludes that the violations of the

right to a fair trial and due process are of such gravity as to give the deprivation of liberty of

Mr. Zhen and Mr. Qin an arbitrary character that falls within category III.

Category V

88.

The Working Group will now examine whether the deprivation of liberty of Mr.

Zhen and Mr. Qin constitutes illegal discrimination under international law for the purpose

of category V.

89.

The Working Group notes that Mr. Zhen and Mr. Qin are both prominent human

rights activists and that they have been arrested, convicted and imprisoned for their public

calls for political change, which the Government has characterized and condemned as a

scheme or incitement to subvert State power or overthrow the socialist system. The

Working Group considers that they are entitled to protection as human rights defenders.13

90.

In the above discussion on the application of category II to the present case, the

Working Group established that the deprivation of liberty of Mr. Zhen and Mr. Qin resulted

from their exercise of the rights or freedoms guaranteed under articles 18, 19 and 20 (1) of

the Universal Declaration of Human Rights. Mr. Zhen and Mr. Qin, like their colleagues,

have been the target of official persecution for many years because of their well-known

political views, activities and organizations.

91.

For these reasons, the Working Group considers that the deprivation of liberty of

Mr. Zhen and Mr. Qin constitutes a violation of articles 2 and 7 of the Universal

Declaration of Human Rights on the grounds of discrimination based on political or other

opinion and their status as human rights defenders. Their deprivation of liberty therefore

falls under category V.

92.

The Working Group is concerned that the presence of multiple cases 14 found in

violation of the international norms on detention indicates a systemic problem with

arbitrary detention. The Working Group recalls that, under certain circumstances,

13 See 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, articles 9

and 12.

14 See decisions No. 43/1993, No. 44/1993, No. 53/1993, No. 63/1993, No. 65/1993, No. 66/1993, No.

46/1995 and No. 19/1996, and opinions No. 30/1998, No. 1/1999, No. 2/1999, No. 16/1999, No.

17/1999, No. 19/1999, No. 21/1999, No. 8/2000, No. 14/2000, No. 19/2000, No. 28/2000, No.

30/2000, No. 35/2000, No. 36/2000, No. 7/2001, No. 8/2001, No. 20/2001, No. 1/2002, No. 5/2002,

No. 15/2002, No. 2/2003, No. 7/2003, No. 10/2003, No. 12/2003, No. 13/2003, No. 21/2003, No.

23/2003, No. 25/2003, No. 26/2003, No. 14/2004, No. 15/2004, No. 24/2004, No. 17/2005, No.

20/2005, No. 32/2005, No. 33/2005, No. 38/2005, No. 43/2005, No. 11/2006, No. 27/2006, No.

41/2006, No. 47/2006, No. 32/2007, No. 33/2007, No. 36/2007, No. 21/2008, No. 29/2008, No.

26/2010, No. 29/2010, No. 15/2011, No. 16/2011, No. 23/2011, No. 29/2011, No. 7/2012, No.

29/2012, No. 36/2012, No. 51/2012, No. 59/2012, No. 2/2014, No. 3/2014, No. 4/2014, No. 8/2014,

No. 21/2014, No. 49/2014, No. 55/2014, No. 3/2015, No. 39/2015, No. 11/2016, No. 12/2016, No.

30/2016, No. 43/2016, No. 46/2016, No. 4/2017, No. 5/2017, No. 59/2017, No. 69/2017, No.

81/2017, No. 22/2018, No. 54/2018, No. 62/2018, No. 15/2019 and 36/2019.

A/HRC/WGAD/2019/20

13

widespread or systematic imprisonment or other severe deprivation of liberty in violation of

the rules of international law may constitute crimes against humanity. 15 The Working

Group has referred to this possibility in its past cases concerning arbitrary detention.16

Disposition

93.

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

The deprivation of liberty of Zhen Jianghua and Qin Yongmin, being in

contravention of articles 2, 3, 6, 7, 8, 9, 10, 11 (1) and (2), 18, 19, 20 (1) and 25 of

the Universal Declaration of Human Rights, is arbitrary and falls within categories I,

II, III and V.

94.

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

remedy the situation of Mr. Zhen and Mr. Qin without delay and bring it into conformity

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

of Human Rights.

95.

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

case, the appropriate remedy would be to release Mr. Zhen and Mr. Qin immediately and

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

international law.

96.

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

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

Zhen and Mr. Qin and to take appropriate measures against those responsible for the

violation of their rights.

97.

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

refers the present case to: (a) the Special Rapporteur on the situation of human right

defenders; (b) the Special Rapporteur on the promotion and protection of the right to

freedom of opinion and expression; and (c) the Special Rapporteur on the independence of

judges and lawyers.

98.

The Working Group recommends that the Government accede to and ratify the

International Covenant on Civil and Political Rights and its Optional Protocols.

99.

The Working Group requests the Government to publish and disseminate the present

opinion through all available means and as widely as possible.

Follow-up procedure

100.

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. Zhen and Mr. Qin have been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Zhen and

Mr. Qin;

(c)

Whether an investigation has been conducted into the violation of the rights

of Mr. Zhen and Mr. Qin 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.

15 See, for example, opinions No. 1/2011, para. 21; No. 37/2011, para. 15; No. 38/2011, para. 16; No.

39/2011, para. 17; No. 4/2012, para. 26; No. 38/2012, para. 33; No. 47/2012, paras. 19 and 22; No.

50/2012, para. 27; and No. 60/2012, para. 21.

16 Opinions No. 69/2017, para. 44; and No. 62/2018, para. 80.

A/HRC/WGAD/2019/20

14

101.

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.

102.

The Working Group requests the source and the Government to provide the above-

mentioned information within six months of the date of 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.

103.

The Working Group recalls that the Human Rights Council has encouraged all

States to cooperate with the Working Group and has 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.17

[Adopted on 1 May 2019]

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