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.22-01256(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-second session, 15–19 November 2021
Opinion No. 66/2021 concerning Zhang Haitao (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 42/22.
2.
In accordance with its methods of work,1 on 23 August 2021 the Working Group
transmitted to the Government of China a communication concerning Zhang Haitao. The
Government replied to the communication on 18 October 2021. 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).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2021/66
General Assembly
Distr.: General
2 February 2022
Original: English
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2
Submissions
Communication from the source
4.
Zhang Haitao, born in 1971, is a citizen of China, residing in Urumqi, Xinjiang Uighur
Autonomous Region. The source explains that Mr. Zhang worked as a salesman while writing
and posting opinions online that frequently criticized the Government’s policies on current
affairs, particularly on the restrictions on freedom of religion for Uighur Muslims in the
Xinjiang Uighur Autonomous Region. For a brief period, Mr. Zhang also wrote articles for
the website of a Chinese human rights group.
5.
According to the source, Mr. Zhang became involved in human rights defence work
in 2009, when he began submitting complaints to the authorities in the Xinjiang Uighur
Autonomous Region to obtain redress over his alleged wrongful detention, after being
detained for nearly two months on suspicion of fraud, a charge that was dropped upon his
release. Originally from Henan Province, Mr. Zhang moved to the Xinjiang Uighur
Autonomous Region in 1995 after losing his job at a State-owned enterprise.
6.
The source reports that Mr. Zhang was criminally detained on 26 June 2015 at his
residence in the city of Urumqi by officers of the Urumqi City Public Security Bureau after
he posted comments online that were critical of the Government’s policies. The officers
showed a warrant issued by the Urumqi City Public Security Bureau, but did not let the family
keep a copy of the notice. Officers searched Mr. Zhang’s residence and seized computers,
laptops, USB pens, bank cards and his national identity card. Furthermore, the authorities
froze his bank account.
7.
According to the source, the reason for the arrest imputed by the authorities was
inciting ethnic hatred, in violation of article 249 of the Criminal Law of China (“inciting
ethnic hatred”). This provision stipulates that: “Whoever incites national hatred or ethnic
discrimination, if the circumstances are serious, shall be sentenced to fixed-term
imprisonment of not more than three years, criminal detention, public surveillance, or
deprivation of political rights; if the circumstances are particularly serious, they shall be
sentenced to fixed-term imprisonment of not less than three years and not more than ten
years.”
8.
The source adds that Mr. Zhang was formally arrested on 31 July 2015 on the grounds
of “picking quarrels and provoking troubles” in violation of article 293 of the Criminal Law
(“picking quarrels and provoking trouble”). This provision stipulates fixed-term
imprisonment of up to five years for those who: (a) wilfully attack another person, when the
circumstances are serious; (b) chase, intercept or insult another person, when the
circumstances are serious; (c) forcibly take away, demand, or wilfully damage or seize public
or private property, when the circumstances are serious; or (d) create a disturbance in a public
place, causing serious disorder.
9.
Furthermore, it is reported that Mr. Zhang was criminally indicted on 25 December
2015 for “inciting subversion of State power” and “providing intelligence overseas”.
Relevant articles imputed by the authorities were article 105 (2) of the Criminal Law
(“inciting subversion of State power”) and article 111 of the Criminal Law (“providing
intelligence overseas”).
10.
The source clarifies that article 105 (2) stipulates that: Whoever incites others by
spreading rumours or slanders or any other means to subvert 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. Article 111 of the Criminal Law (“providing intelligence overseas”)
stipulates that: If a foreign institution, organization or person steals, spies into, buys, or
illegally provides State secrets or intelligence, the sentence shall be fixed-term imprisonment
of not less than 5 years and not more than 10 years; if the circumstances are particularly
serious, the sentence shall be fixed-term imprisonment of not less than 10 years or life
imprisonment; if the circumstances are less serious, imprisonment for 5 years or less, criminal
detention, public surveillance, or deprivation of political rights.
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11.
The source reports that Mr. Zhang’s trial commenced on 11 January 2016, and on 15
January 2016 he was convicted and sentenced by the Urumqi City Intermediate People’s
Court to 19 years in prison on the same charges of “inciting subversion of State power” (15
years’ imprisonment) and “providing intelligence overseas” (five years’ imprisonment).
Since Mr. Zhang would serve his punishment for the two crimes consecutively, the court
ordered him to serve a total of 19 rather than 20 years. As part of his sentence, Mr. Zhang
was also fined RMB 120,000 – approximately US$18,500. He is set to be released on 25 June
2034.
12.
The source further reports that in February 2016, Mr. Zhang filed an appeal against
his conviction on several grounds, including that he had been tortured to force a confession,
that exercising his right to free expression did not constitute a crime, that giving interviews
to the media was a standard journalistic behaviour and did not constitute a crime of providing
intelligence overseas, and that the prison sentence was excessive.
13.
The source submits that the court authorities irregularly delayed the appeal hearing on
multiple occasions, noting also that an appeal is typically a mere procedural formality,
especially in relation to political crimes. The source further states that following his
conviction, the Xinjiang Higher People’s Court should have heard an appeal by 19 April
2016; however, the Supreme People’s Court approved the delay of three months, and
approved another three-month delay on 18 July 2016, thus delaying the appeal date until
October 2016. However, in October 2016 the hearing did not take place either, and in
November 2016, Mr. Zhang’s lawyers received a court notice stating that the appeal would
be conducted in writing only. The court eventually heard the appeal, on 28 November 2016,
in proceedings that lasted 30 minutes. The appellate court upheld the original decision.
14.
The source reports that from 2 December 2016 until the present time, Mr. Zhang has
been deprived of his liberty at Shaya County Prison, located in Akesu Prefecture, Xinjiang
Uighur Autonomous Region. From 26 June 2015 to 2 December 2016, he was detained at the
Xinjiang Uighur Autonomous Region Detention Centre.
15.
The source submits that the deprivation of liberty of Mr. Zhang is arbitrary, falling
under category II of the Working Group, as it constitutes State retaliation against the peaceful
exercise of his right to free expression, in breach of articles 18, 19 and 20 of the Universal
Declaration of Human Rights. The source explains that for years prior to being detained in
2015, Mr. Zhang had used the Chinese social media platform Weibo, as well as WeChat and
Twitter, to post his opinions online that were critical of State policies and practices. The
information that Mr. Zhang posted included allegations including violations of the right to
freedom of religion faced by the Uighur Muslim ethnic minority group in the Xinjiang Uighur
Autonomous Region.
16.
It is further reported that Mr. Zhang also gave interviews to Radio Free Asia and the
Voice of America about the above-mentioned allegations of human rights violations.
Furthermore, for a brief period, he also contributed articles to a website reporting on human
rights conditions in China. The source submits that the harsh 19-year sentence that Mr. Zhang
has received for expressing his opinions appears to reflect the Government’s tendency to
heavily suppress any perceived politically sensitive acts within the Xinjiang Uighur
Autonomous Region, on the grounds of countering terrorism.
17.
The source notes that the court verdict stipulated that Mr. Zhang had sent 274 online
posts from 2010 to 2015 which “resisted, attacked and smeared” the Communist Party and
its policies. The court also stated that Mr. Zhang had damaged ethnic minority unity and
national unity with his posts and had colluded with hostile foreign forces by accepting
interviews from foreign media. The court also reportedly stated that Mr. Zhang had given
interviews to overseas media and had collected information from the Xinjiang Uighur
Autonomous Region about the “stability maintenance” measures undertaken by Xinjiang
Uighur Autonomous Region police, such as photographs of stability maintenance personnel,
police vehicles and armoured vehicles, and sent it in articles, emails and interviews to
overseas “anti-China and anti-Communist Party of China” websites. The court verdict
presented this as evidence of “providing intelligence overseas”, even though the source notes
that the evidence cited only shows that Mr. Zhang had taken photographs on public streets.
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18.
The source submits that the 15-year punishment on the charge of “inciting subversion
of State power” is especially harsh in light of the fact that Mr. Zhang was neither a prominent
activist nor a recidivist – categories for which harsher punishments are stipulated under
Chinese criminal law. At trial, Mr. Zhang’s lawyer asserted that his client had not attempted
to subvert the Communist Party of China. The lawyer argued that information that Mr. Zhang
had provided to overseas entities was either already publicly available or was information
that the Government should release under the public information disclosure regulations of
China.
19.
The source further recalls that the Working Group on Arbitrary Detention has
described the crime of “inciting subversion” as a vague and imprecise offence, and called
upon the Government in 2019 to repeal article 105 (2) of the Criminal Law or bring it into
line with its obligations under international human rights law.2
20.
Furthermore, the source notes that the appellate court stated, in its ruling, that Mr.
Zhang, through Twitter, Weibo and WeChat, had released a large amount of content with
three types of expression: (a) expression that attacked, insulted and vilified the Communist
Party of China and the country’s political system; (b) expression that slandered and distorted
the Communist Party of China and State policy; and (c) expression that incited subversion of
the socialist system. The appellate court also stated that the grounds for appeal of the
defendant – the claim that he had not committed the crime of inciting subversion of State
power – was not to be accepted. The appeal ruling also claimed that Mr. Zhang’s photographs
of aspects of stability maintenance measures by the police, adopted to combat violent terrorist
crimes and prevent violent terrorist cases, had harmed national security and benefit.
21.
Furthermore, the source argues that the deprivation of liberty of Mr. Zhang falls under
category III of the Working Group, since there have been numerous legal irregularities in his
case, from the moment of his detention to the sentencing to the appeal. It is thus argued that
Mr. Zhang’s right to a fair trial has been breached.
22.
It is alleged that Mr. Zhang has been subjected to torture and other forms of
mistreatment since 2015. Furthermore, since April 2018 Mr. Zhang’s family and lawyer have
been restricted in terms of seeing him – a violation of his right to family visits and to legal
counsel, which adds to concerns about his treatment in custody.
23.
The source further recalls that after placing Mr. Zhang under criminal detention on
charges of “inciting ethnic hatred”, on 26 June 2015, the Urumqi police returned to search
his home and confiscated several items. One of Mr. Zhang’s family members was forced to
hand over his phone, to sign a copy of the criminal detention notice (but was not allowed to
keep it) and was then taken to Zhongyanan Street Police Station. The police took
photographs, DNA samples and fingerprints from this family member, as well as enquiring
about the relationship with Mr. Zhang. National security officers in Urumqi later told family
members that they would be able to request a copy of the criminal detention notice at
Zhongyanan Street Police Station. However, when the family went there on 14 July 2015 and
asked for a copy, a police officer stated that the family had already seen and signed the notice
and that the crime was a State secret. The source notes, however, that at that stage, Mr. Zhang
was being held on the charge of “inciting ethnic hatred”, which is not an “endangering State
security” or “State secrets” crime. It also notes that under article 83 of the Criminal Procedure
Law, families should receive a written notice within 24 hours, except in cases involving
“endangering national security” or “terrorism”.
24.
Furthermore, the source notes that Mr. Zhang was criminally detained on different
charges from those for which he was formally arrested and later convicted and sentenced.
The police criminally detained him in June 2015 on suspicion of “inciting ethnic hatred”, but
placed him under formal arrest for “picking quarrels and provoking trouble”. Mr. Zhang was
subsequently indicted and convicted on charges of “inciting subversion of State power” and
“providing intelligence overseas”. The source argues that such changes suggest that the
authorities lacked sufficient evidence to criminally detain Mr. Zhang. It states that there even
2 Opinion No. 15/2019, paras. 34–35.
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5
exists a possibility that authorities had coerced or tortured Mr. Zhang to extract a confession
to charge him with other political crimes.
25.
The source also submits that Mr. Zhang was denied access to his lawyer for several
weeks following his initial detention; his lawyer’s first visit was on either 1 or 2 August 2015.
It is alleged that Mr. Zhang was tortured during this period. His lawyer reported torture
allegations to the judge in the first instance trial. The judge asked Mr. Zhang about the
allegations but dismissed them during the trial.
26.
Furthermore, allegations that national security officers in Urumqi tortured Mr. Zhang
in order to force a confession were one of the grounds for the appeal. Allegedly, national
security officers in Urumqi tortured Mr. Zhang in the 20 days following his detention on 26
June 2015. The torture included sleep deprivation and continuous interrogation, and
depriving Mr. Zhang of food and water, as well as beatings, which included hanging Mr.
Zhang from the ceiling and punching him all over his body.
27.
The source also reports that torture and mistreatment took place following Mr.
Zhang’s conviction in January 2016. It is alleged that following his conviction in January
2016, Mr. Zhang was forced for six months to wear heavy leg shackles continuously, received
less food and water than other inmates and was not allowed outside.
28.
In July 2016, the above-mentioned abuses were reported to the judge at the Xinjiang
Higher People’s Court. The judge did not commit to implementing any changes. However,
later on that month, the Xinjiang Higher Procuratorate stated that it had ordered “punishment
equipment” to be removed from Mr. Zhang. It is reported that, despite this announcement,
Mr. Zhang continued wearing shackles.
29.
Reportedly, Mr. Zhang continued to be subjected to cruel and inhumane treatment. It
is alleged that the detention centre guards would force him to sit in a certain position and
sound a horn if he moved. Mr. Zhang’s personal photos, letters and documents for his legal
defence were confiscated during a safety inspection and he was not allowed pen and paper
for personal use. Mr. Zhang was forced to write a report about his activities for the guards,
and another inmate was forced to sleep directly next to him at night.
30.
Moreover, it is reported that since September 2016, Mr. Zhang suffered from severe
stomach pains that lasted for a few hours, about every ten days. He underwent several medical
tests in late September but he was never informed of the results. The detention centre officials
told him that the pain was because he ate too much and that he should inform them if it
continued as they would make him do exercise. Mr. Zhang was allowed outside a few times
but then authorities stopped him from going outside on the grounds of low temperatures.
Moreover, Mr. Zhang was forced to undergo strip searches before each lawyer’s visit and
had to wear a black hood over his head on the way to the meeting room.
31.
On 17 November 2016, Mr. Zhang’s lawyer spoke with detention centre officials and
the local prosecutor concerning the alleged mistreatment. The officials stated that Mr. Zhang
had to wear shackles because it was the detention centre’s rules with regard to cases of
endangering State security. The same prosecutor later allegedly claimed that Mr. Zhang had
to wear shackles for violating “supervision rules” but was not able to indicate which rules
had been broken. The prosecutor also refused to provide a copy of Mr. Zhang’s medical
reports.
32.
The source reports that since being moved to Shaya County Prison on 2 December
2016, Mr. Zhang has continued to face torture and mistreatment. He was denied visits with
his family for several months. Prison authorities told his family that the reason for that was
that Mr. Zhang was being educated for three months and had to pass an examination before
being allowed to meet his family. His family was able to meet him in prison on 24 April and
27 July 2017.
33.
The source notes that the family visit in April 2017 was the first time that Mr. Zhang’s
family had been able to visit him since the start of his detention in 2015. The authorities also
approved a visit either from his family members or his lawyer on 26 April 2018.
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34.
The source reports that Mr. Zhang also was held in solitary confinement for a
prolonged period of time, was not allowed outside and could only get fresh air or sunlight
from a small window in his cell.
35.
Mr. Zhang has not been permitted to see his family since 26 April 2018. Since his
detention in June 2015, Mr. Zhang has seen family members three times in total. Requests to
visit Mr. Zhang did not receive a positive reply from the authorities. Up until at least January
2021, money deposited in a prison account for him in 2017 had not been withdrawn, which
may be due to the fact that Mr. Zhang has not been permitted to access it.
36.
Since his family’s last in-person visit, the only information about Mr. Zhang that his
family has received has come through four brief letters dated 2 December 2018, 9 June 2019,
6 October 2020 and 5 November 2020. The letters contain similar phrases and content, stating
that recently everything has been going well. In the first two letters, Mr. Zhang states that his
family does not need to visit him and that he is “studying every day”, and that he is studying
“traditional Chinese culture”.
Response from the Government
37.
On 23 August 2021, the Working Group transmitted the allegations from the source
to the Government under its regular communications procedure. The Working Group
requested the Government to provide, by 22 October 2021, detailed information about the
current situation of Mr. Zhang and to clarify the legal provisions justifying his continued
detention, as well as its compatibility with the obligations of China under international human
rights law, and in particular with regard to the treaties ratified by the State. Moreover, the
Working Group called upon the Government of China to ensure Mr. Zhang’s physical and
mental integrity.
38.
On 18 October 2021, the Government submitted a reply. It explains that on 17 January
2016, Mr. Zhang was sentenced in the first instance to 19 years’ imprisonment and
deprivation of political rights for five years, and confiscation of personal wealth of RMB
120,000 by the Urumqi Municipal Intermediate People’s Court for inciting subversion of
State authority, espionage on behalf of a foreign entity, and illegally providing intelligence.
Mr. Zhang appealed the Court’s judgment, and on 23 November 2016 the Xinjiang Uighur
Autonomous Region High People’s Court issued a final instance judgment, rejecting the
appeal and affirming the original judgment.
39.
The Government submits that after hearing the case, the Court found that the
defendant, Mr. Zhang, had used the Internet to disseminate to an indeterminate Internet
audience a large volume of articles and images slandering the socialist system, and in doing
so wilfully misrepresented facts and concocted rumours in order to subvert State authority
and overthrow the socialist system. Furthermore, he had links to foreign groups,
organizations and people, to which he submitted articles and gave interviews attacking State
authority and seriously harming public security. This behaviour constitutes the crime of
incitement of subversion of State authority. Mr. Zhang illegally gave intelligence that he had
collected to foreign groups, organizations, websites and media, harming national security.
This behaviour constitutes the crime of espionage on behalf of a foreign party and illegally
providing intelligence. Having committed multiple crimes, according to law Mr. Zhang
should be given concurrent punishments. According to the facts, character, circumstances,
and degree of social harm of Mr. Zhang’s crimes, the aforementioned judgment was issued.
40.
The Government notes that after the judgment was issued in the first instance, Mr.
Zhang appealed. The Xinjiang Uighur Autonomous Region High People’s Court heard the
appeal and rejected it, affirming the original judgment. The Court decided this case in strict
accordance with the law and thoroughly protected each and all of Mr. Zhang’s rights to
litigate his case.
41.
The Government states that China is a socialist country with rule of law which respects
and protects human rights in accordance with the law. In the investigation, prosecution and
adjudication, and the serving of Mr. Zhang’s sentence, the Chinese judicial organs handled
the case in accordance with the law and protected Mr. Zhang’s rights in accordance with the
law. There was not any torture, and there have been no instances of so-called “arbitrary
detention” or “torture”. Each and all of the rights of Mr. Zhang himself and the lawyer he
A/HRC/WGAD/2021/66
7
engaged have received complete protection. The People’s Procuratorate monitors the prison’s
actions in executing criminal punishments, guaranteeing that the prisoner’s legal interests are
not infringed upon. Mr. Zhang is currently serving his sentence in the Xinjiang Aksu Shaya
County Prison, and his physical health is normal.
42.
The Government explains that prisons in the Xinjiang Uighur Autonomous Region
follow the Constitution of China, the Criminal Law of China and the Prisons Law of China
in administering prisons according to law, protecting prisoners’ human rights according to
law.
43.
The Government notes that the dignity of prisoners is not undermined, and that their
physical safety, lawful property, and rights to legal defence, to appeal, to file lawsuits, to
report complaints, and other rights that have not been legally denied or limited, are not
infringed upon. Prisoners, while serving their sentences, can meet with their relatives and
guardians, and are able to communicate with their family by phone and by letter. The State
provides for their clothing, food, shelter and health insurance. According to the life
circumstances of the prisoner, the prison guarantees that prisoners are able to eat warm meals
that are adequate and hygienic, and guarantees that living conditions have air circulation and
light, and are clean and insulated. Prisons actively take hygiene measures against disease,
and each prison has an internal hospital that gives free check-ups every six months.
Furthermore, every prison has designated to it the best local hospital, to which it can send
prisoners for the diagnosis and treatment of difficult cases, ensuring that prisoners with
medical conditions are able to obtain timely treatment.
Further comments from the source
44.
On 20 October 2021 the Government’s reply was sent to the source for further
comments, which it submitted on 27 October 2021.
45.
The source notes that the Government’s response omits three major issues that render
Mr. Zhang’s detention arbitrary. Firstly, the source reiterates that Mr. Zhang’s lawful exercise
of freedom of expression was used as the basis for the criminal convictions. Such expression
cannot be legitimately curtailed unless needed to ensure due recognition and respect for the
rights and freedoms of others and to meet the just requirements of morality, public order and
the general welfare in a democratic society, as described in article 29 (2) of the Universal
Declaration of Human Rights. The Government has not shown that Mr. Zhang’s free exercise
of expression posed any danger to morality, public order, or general welfare.
46.
Secondly, the source points out that the Government does not contest that the crimes
for which Mr. Zhang was arrested and convicted are too vague and broadly worded to provide
sufficient legal basis for his conviction. The terms “intelligence” and “espionage” are not
defined in article 111 of the Criminal Law, allowing judicial officials to apply the provision
so broadly as to deprive individuals of liberty without a specific legal basis.
47.
Thirdly, it is submitted that the Government fails to rebut accounts of the grave
violations of Mr. Zhang’s rights to a fair trial and due process that have occurred during his
detention and throughout his sentencing and appeal, including holding Mr. Zhang
incommunicado and subjecting him to torture for the purposes of obtaining inculpating
information. General assertions of the Government do not provide specific grounds to
disprove allegations of torture and mistreatment both before and after Mr. Zhang’s
conviction.
48.
The source adds that during the trial, Mr. Zhang’s lawyer argued that the
interrogations carried out under torture should be omitted from evidence. However, the judge
dismissed the argument based on affidavits from the officials responsible for Mr. Zhang in
custody.
49.
Finally, the source notes that, although citing general policy regarding communication
between detainees and their families, the Government does not dispute the specific
circumstances of Mr. Zhang regarding violation of his rights to visitation and
correspondence. Mr. Zhang was last able to see members of his family in person in April
2018.
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Discussion
50.
The Working Group thanks the source and the Government for their submissions.
51.
In determining whether Mr. Zhang’s detention was arbitrary, the Working Group has
regard to the principles established in its jurisprudence to deal with evidentiary issues. If the
source has presented a prima facie case for breach of international law constituting arbitrary
detention, the burden of proof should be understood to rest upon the Government if it wishes
to refute the allegations. Mere assertions by the Government that lawful procedures have
been followed are not sufficient to rebut the source’s allegations.3
Category I
52.
The Working Group notes that it is not disputed that Mr. Zhang was arrested on 26
June 2015, when he was presented with an arrest warrant, and that he was subsequently
charged, tried and sentenced for inciting subversion of State authority, espionage on behalf
of a foreign entity, and illegally providing intelligence. In relation to the charge of “inciting
subversion”, the Working Group notes that this is based on article 105 (2) of the Criminal
Law which it has been called upon to examine previously.4
53.
Following its visits to China in 1997 and 2004, the Working Group emphasized in its
reports that charges involving vague and imprecise offences jeopardize the ability of
individuals to exercise their fundamental rights and 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 by the Universal Declaration of
Human Rights.5
54.
As the Working Group has 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.6 The Working Group had already called upon
the Government to repeal article 105 (2) of the Criminal Law or bring it into line with its
obligations under international human rights law 7 but the circumstances of this case
demonstrate that this has not taken place.
55.
In the present case, Mr. Zhang was charged under a vague and imprecise offence of
inciting subversion of State power under article 105 (2) of the Criminal Law.8 This provision
does not define what conduct amounts to subversion and overthrowing the socialist system
through rumours, slander or other means. The communication of mere thoughts, ideas or
opinions could potentially fall within the prohibited conduct. Moreover, the determination of
whether an offence has been committed appears to be left entirely to the discretion of the
authorities. Indeed, the Government has not explained how Mr. Zhang’s conduct could be
considered as inciting subversion and overthrowing the socialist system. Importantly, there
is nothing to suggest that Mr. Zhang engaged in or incited violence as part of his activities
which might have given cause to restrict his behaviour. On the contrary, he chose to work
peacefully by advocating for reform in various areas of Chinese law and society and by
defending the rights of others.
56.
Recalling that it is not contested that Mr. Zhang was formally arrested on 31 July 2015
on the grounds of “picking quarrels and provoking troubles” in breach of article 293 of the
Criminal Law, the Working Group must make similar observations also in regard to this
crime, as this is yet another provision which it has been called upon to examine previously.9
3 A/HRC/19/57, para. 68.
4 See opinions No. 82/2020 and No. 15/2019.
5 E/CN.4/1998/44/Add.2, paras. 42–53, 106–107 and 109 (c); and E/CN.4/2005/6/Add.4, paras. 73 and
78 (e). See also CAT/C/CHN/CO/5, paras. 36–37 (noting consistent reports that human rights
defenders and lawyers continue to be charged, or threatened to be charged, with broadly defined
offences as a form of intimidation).
6 See, for example, opinion No. 41/2017, paras. 98–101.
7 Opinions No. 15/2019, para. 35; and No. 82/2020, paras. 48–52.
8 See also A/HRC/48/55, para. 48.
9 Opinion No. 32/2020, para. 50.
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The Working Group concluded then, also in respect of this provision, that the principle of
legal certainty has not been satisfied, and called upon the Government to address this
provision.10 The Working Group regrets that no action seems to have followed.
57.
Noting all the above, the Working Group concludes that the arrest and subsequent
detention of Mr. Zhang on the basis of articles 105 (2) and 293 of the Criminal Law was
arbitrary and falls under category I as lacking legal basis, in breach of article 9 of the
Universal Declaration of Human Rights. The Working Group makes this conclusion due to
the failure of articles 105 (2) and 293 of the Criminal Law to meet the standards of the
principle of legality. The Working Group once again calls upon the Government to repeal
articles 105 (2) and 293 of the Criminal Law or bring them into line with its obligations under
international human rights law.
Category II
58.
The source has further argued that the arrest and detention of Mr. Zhang was
retaliation for the peaceful exercise of his rights under articles 19 and 20 of the Universal
Declaration of Human Rights. The Government, in its reply, has merely stated that Mr. Zhang
was arrested and sentenced for “inciting subversion of State authority, espionage on behalf
of a foreign entity, and illegally providing intelligence”. It has further explained that Mr.
Zhang “used the Internet to disseminate to an indeterminate Internet audience a large volume
of articles and images slandering the socialist system, and in doing so wilfully misrepresented
facts and concocted rumours in order to subvert State authority and overthrow the socialist
system. He furthermore had links to foreign groups, organizations and people, to which he
submitted articles and gave interviews attacking State authority and seriously harming public
security. This behaviour constitutes the crime of incitement of subversion of State authority.”
59.
The Working Group is unable to accept the description provided by the Government
as a description of a criminal offence, especially one that would entail 19 years of
imprisonment. As already noted above, importantly, the Government has made no suggestion
that Mr. Zhang engaged in or incited violence as part of his activities which might have given
cause to restrict his behaviour. On the contrary, he chose to work peacefully by advocating
for reform in various areas of Chinese law and society. The source has argued that Mr. Zhang
engaged with various issues, including, in particular, the restrictions on and violations of
freedom of religion for Uighur Muslims in the Xinjiang Uighur Autonomous Region, a topic
on which he posted online submissions as well.
60.
The mere fact that the views he expressed challenged the views of the authorities
cannot be a legitimate reason for his arrest and detention. In this regard, the Working Group
wishes to specifically recall Human Rights Council resolution 24/5, which “reminds States
of their obligation to respect and fully protect the rights of all individuals to assemble
peacefully and associate freely, online as well as offline, including in the context of elections,
and including persons espousing minority or dissenting views or beliefs, human rights
defenders, trade unionists and others”.
61.
The Working Group considers that the only plausible explanation for Mr. Zhang’s
arrest and detention is that he is being punished for the exercise of his rights to freedom of
expression and of association protected by articles 19 and 20 of the Universal Declaration of
Human Rights, as he engaged in advocacy for human rights and respect of the freedom of
religion of Uighur Muslims in the Xinjiang Uighur Autonomous Region. The limitations on
these rights and freedoms permitted under article 29 (2) of the Universal Declaration of
Human Rights do not apply in the present case. The Government did not present any
argument to the Working Group to invoke any of these limitations, nor did it demonstrate
why bringing charges against Mr. Zhang was a legitimate, necessary and proportionate
response to his peaceful activities.
62.
Furthermore, according to 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, “everyone has the right, individually and in
association with others, to promote and to strive for the protection and realization of human
10 Opinion No. 32/2020, paras. 60–61.
A/HRC/WGAD/2021/66
10
rights and fundamental freedoms at the national and international levels”, to communicate
with non-governmental organizations, and to have effective access in the conduct of public
affairs.11 The Working Group considers that the source’s allegations demonstrate that Mr.
Zhang was detained for the exercise of his rights under the above-mentioned declaration as a
human rights activist and defender.
63.
The Working Group has determined that detaining individuals on the basis of their
activities as human rights defenders violates their right to equality before the law and equal
protection of the law under article 7 of the Universal Declaration of Human Rights. 12
Accordingly, the Working Group concludes that the deprivation of liberty of Mr. Zhang
resulted from the peaceful exercise of his rights to freedom of expression and of association
as he engaged in advocacy for human rights and respect of the freedom of religion of Uighur
Muslims in the Xinjiang Uighur Autonomous Region, and was contrary to articles 19 and 20
of the Universal Declaration of Human Rights. His deprivation of liberty is arbitrary and falls
within category II. The Working Group refers this matter to the Special Rapporteur on the
promotion and protection of the right to freedom of opinion and expression, the Special
Rapporteur on the rights to freedom of peaceful assembly and of association, the Special
Rapporteur on minority issues, the Special Rapporteur on freedom of religion or belief and
the Special Rapporteur on the situation of human rights defenders.
Category III
64.
Given its finding that the deprivation of liberty of Mr. Zhang is arbitrary under
category II, the Working Group wishes to emphasize that he should not have been tried;
however, he was tried and was sentenced to a very lengthy imprisonment of 19 years. The
source has argued that serious fair trial violations occurred during his trial, while the
Government contends that all of Mr. Zhang’s rights were observed, without addressing any
of the specific allegations.
65.
The Working Group notes the uncontested submission that the trial of Mr. Zhang
started on 11 January 2016 and that he was convicted to 19 years of imprisonment a mere
four days later. Although the length of a trial in itself cannot be a sole indicator of whether it
has been fair, in the present case the Working Group is bound to observe that it would be
impossible for a trial to meet the requisite standard of fairness as encapsulated in articles 10
and 11 of the Universal Declaration of Human Rights when the proceedings lasted a mere
four days, concluding with such a seriously heavy penalty as 19 years of imprisonment.
Moreover, the appellate proceedings, following numerous postponements for which neither
the court at the time nor the Government in its reply provided any legitimate explanation,
finally commenced on 28 November 2016 and concluded on the same day, a mere 30 minutes
later, conforming the original decision. The Working Group considers that such delays,
especially noting its findings under category II above, are entirely incompatible with the
obligations of China under the Universal Declaration of Human Rights. It considers the
appeal proceedings to fall short of the standards of judicial proceedings based on the rule of
law, in clear breach of Mr. Zhang’s rights under articles 10 and 11 of the Universal
Declaration of Human Rights.
66.
The Working Group further notes the uncontested allegations that Mr. Zhang’s right
to legal assistance at all times was not respected, as he was denied access to his lawyer for
several weeks after his detention, and subsequently documents and correspondence with his
lawyers were confiscated. The right to legal assistance is inherent in the right to liberty and
security of person as well as in the right to a fair and public hearing by a competent,
independent and impartial tribunal established by law, in accordance with articles 3, 9, 10
and 11 (1) of the Universal Declaration of Human Rights. The Working Group considers that
11 See General Assembly resolution 53/144, arts. 1, 5 (c), 6, 8–9 (3) (c) and 11. See also General
Assembly resolution 70/161, para. 8, in which the Assembly calls upon States “to take concrete steps
to prevent and put an end to the arbitrary arrest and detention of human rights defenders, and in this
regard strongly urges 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”.
12 See, for example, opinions No. 15/2019, No. 46/2018, No. 45/2018 and No. 36/2018.
A/HRC/WGAD/2021/66
11
this violation substantially undermined and compromised his capacity to defend himself in
any subsequent judicial proceedings.
67.
As the Working Group has stated in principle 9 and guideline 8 of the United Nations
Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone
Deprived of Their Liberty to Bring Proceedings Before a Court, persons deprived of their
liberty have the right to legal assistance by counsel of their choice at any time during their
detention, including immediately after the moment of apprehension, and such access is to be
provided without delay. The Working Group therefore finds that the absence of legal counsel
for Mr. Zhang violated his rights to a fair trial and due process under articles 10 and 11 (1)
of the Universal Declaration of Human Rights and principles 17 and 18 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
68.
The Working Group further recalls principle 19 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment, in which it is stated
that a detained or imprisoned person shall have the right to be visited by and to correspond
with, in particular, members of his or her family, and shall be given adequate opportunity to
communicate with the outside world, subject to reasonable conditions and restrictions as
specified by law or lawful regulations. The Working Group notes the denial of this right to
Mr. Zhang. Giving prompt and regular access to family members, as well as to independent
medical personnel and lawyers, is an essential and necessary safeguard for the prevention of
torture as well as for protection against arbitrary detention and infringement of personal
security.
69.
The Working Group further expresses its concern at the prima facie allegation of ill-
treatment of Mr. Zhang, as submitted by the source and not contested by the Government.
Although it appears that the procuracy attempted to somehow mitigate and address the
situation (see para. 28 above), the Working Group is particularly disturbed at the uncontested
submissions that the lawyer of Mr. Zhang brought the torture and ill-treatment allegations to
the attention of the judge, who took no action.
70.
Not only does ill-treatment and torture constitute a grave violation of human rights
per se in violation of articles 5 and 25 of the Universal Declaration of Human Rights and
article 16 (1) of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, as well as principle 6 of the Body of Principles for the Protection
of All Persons under Any Form of Detention or Imprisonment and rule 1 of the United
Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela
Rules), it also seriously undermines the ability of persons to defend themselves and hinders
their exercise of the right to a fair trial, especially in light of the right not to be compelled to
testify against oneself or to confess guilt under article 11 (1) of the Universal Declaration of
Human Rights. The Working Group refers the present case to Special Rapporteur on torture
and other cruel, inhuman or degrading treatment or punishment and the Special Rapporteur
on the independence of judges and lawyers, for appropriate action.
71.
The Working Group considers that the failure of the court to take action when
allegations of ill-treatment and torture were brought to its attention is a further violation of
the right of Mr. Zhang to an independent and impartial tribunal as required by article 10 of
the Universal Declaration of Human Rights.
72.
Given 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. Zhang
an arbitrary character that falls within category III.
Category V
73.
Furthermore, the Working Group is convinced that Mr. Zhang was targeted because
of his activities as a human rights activist and defender. The source alleges, and the
Government has not contested, that Mr. Zhang was subject to a pattern of harassment,
intimidation and retaliation by the authorities over several years, including detention for
nearly two months in 2009, and subsequently when he challenged the authorities over the
legality of this detention. Mr. Zhang’s current deprivation of liberty appears to be part of this
pattern.
A/HRC/WGAD/2021/66
12
74.
The Working Group has previously concluded that being a human rights defender is
a status protected by article 7 of the Universal Declaration of Human Rights.13 Accordingly,
the Working Group finds that Mr. Zhang was deprived of his liberty on discriminatory
grounds, that is, due to his status as a human rights defender, as well as on the basis of his
political or other opinion in challenging the actions of the Government. This amounts to a
violation of articles 2 and 7 of the Universal Declaration of Human Rights. His deprivation
of liberty is arbitrary and falls within category V.
Concluding remarks
75.
The Working Group is disturbed at the allegations concerning the state of health of
Mr. Zhang and denial of appropriate medical treatment, and at his conditions of detention
and his treatment in detention, including the denial of food and the requirement for him to
wear heavy leg shackles, and also that “educational measures” have been ordered in relation
to him. The source has also alleged that Mr. Zhang has been denied family contact. Although
the Government denies these allegations, the Working Group recalls that it is the duty of all
Governments to treat their detainees with humanity and respect for their inherent dignity as
a human being, as stipulated in rule 1 of the Nelson Mandela Rules.
76.
The Working Group also wishes to highlight the fact that in addition to 19 years of
imprisonment, Mr. Zhang was sentenced to five years’ deprivation of political rights. The
Working Group considers this entirely incompatible with the obligations of China under the
Universal Declaration of Human Rights, especially in the light of its findings in the present
opinion.
77.
In its 30-year history, the Working Group has found China in violation of its
international human rights obligations in over 100 cases.14 The Working Group is concerned
that this indicates a systemic problem with arbitrary detention in China, which amounts to a
serious violation of international law. The Working Group recalls that, under certain
circumstances, widespread or systematic imprisonment or other severe deprivation of liberty
in violation of the rules of international law may constitute crimes against humanity.15
78.
The Working Group would welcome the opportunity to conduct a country visit to
China. Given that a significant period of time has passed since its last visit to China in
September 2004, the Working Group considers that it is an appropriate time to conduct
another visit. The Working Group looks forward to a positive response to its country visit
request of 15 April 2015.
Disposition
79.
In the light of the foregoing, the Working Group renders the following opinion:
13 See, for example, opinions No. 15/2019, para. 50; No. 83/2018; No. 19/2018; No. 50/2017 and
No. 48/2017; and A/HRC/36/37, para. 49.
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,
No. 20/2019, No. 35/2019, No. 36/2019, No. 72/2019, No. 76/2019, No. 11/2020, No. 32/2020,
No. 78/2020, No. 82/2020, No. 25/2021 and No. 30/2021.
15 Opinions No. 35/2019, para. 65; 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.
A/HRC/WGAD/2021/66
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The deprivation of liberty of Zhang Haitao, being in contravention of articles 2, 7, 9,
10, 11, 19 and 20 of the Universal Declaration of Human Rights, is arbitrary and falls
within categories I, II, III and V.
80.
The Working Group requests the Government of China to take the steps necessary to
remedy the situation of Mr. Zhang without delay and bring it into conformity with the
relevant international norms, including those set out in the Universal Declaration of Human
Rights.
81.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Zhang immediately and accord him an
enforceable right to compensation and other reparations, in accordance with international
law. In the current context of the global coronavirus disease (COVID-19) pandemic and the
threat that it poses in places of detention, the Working Group calls upon the Government to
take urgent action to ensure the immediate unconditional release of Mr. Zhang.
82.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Zhang and to take appropriate measures against those responsible for the violation of his
rights.
83.
The Working Group requests the Government to bring its laws, particularly articles
105 (2) and 293 of the Criminal Law, into conformity with the recommendations made in the
present opinion and with the commitments made by China under international human rights
law.
84.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression, the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, the Special Rapporteur on the situation of human rights
defenders, the Special Rapporteur on minority issues, the Special Rapporteur on freedom of
religion or belief, the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment and the Special Rapporteur on the independence of judges and
lawyers, for appropriate action.
85.
The Working Group recommends that the Government accede to the International
Covenant on Civil and Political Rights.
86.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
87.
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. Zhang has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Zhang;
(c)
Whether an investigation has been conducted into the violation of Mr. Zhang’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.
88.
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.
89.
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.
A/HRC/WGAD/2021/66
14
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.
90.
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.16
[Adopted on 17 November 2021]
16 Human Rights Council resolution 42/22, paras. 3 and 7.