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.22-01254(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. 76/2021 concerning Zhang Shaojie (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 20 August 2021 the Working Group
transmitted to the Government of China a communication concerning Zhang Shaojie. 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/2021/76
General Assembly
Distr.: General
2 February 2022
Original: English
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2
Submissions
Communication from the source
4.
Mr. Zhang is a citizen of China, born in 1965 and usually residing in Nanle County,
Henan Province. According to the source, Mr. Zhang is a Christian pastor who has helped
disadvantaged groups to defend their rights and interests for many years. In particular, he has
accompanied members of his congregation from the Three-Self Patriotic Protestant Church
travelling to Beijing to present grievances to central government officials over the land rights
dispute with the authorities of Nanle County.
5.
The source recalls that the church, for which Mr. Zhang was the chairman and
president, is officially sanctioned by the Government. Mr. Zhang has also served as a member
of the political consultative body of the Communist Party in Nanle County.
6.
The source informs the Working Group that, on 17 November 2013, Mr. Zhang was
taken into police custody without a detention notice, at the Three-Self Patriotic Protestant
Church in Nanle County, Henan Province. Reportedly, Mr. Zhang had gone to the church
premises to meet with the Nanle County Public Security Bureau Chief and a police deputy,
when approximately 12 officers from the Nanle County Public Security Bureau entered the
building and arrested him. Mr. Zhang was placed under criminal detention the next day, when
more than 20 church members were also taken into custody. Mr. Zhang was formally arrested
on 22 November 2013.
7.
The source specifies that the legal basis for the arrest imputed by the authorities was
article 290 of the Criminal Code of China, on gathering a crowd to disrupt social order, which
stipulates that, where people are gathered to disturb public order to such a serious extent that
work in general, production, business operation, teaching or scientific research cannot go on
and heavy losses are caused, the ringleaders shall be sentenced to fixed-term imprisonment
of not less than three years but not more than seven years; the active participants shall be
sentenced to fixed-term imprisonment of not more than three years, criminal detention, public
surveillance or deprivation of political rights. Moreover, another provision which was
invoked was article 277 of the Criminal Code, on obstructing official duties. The latter article
stipulates that whoever, by means of violence or threat, obstructs a functionary of a State
organ from carrying out his functions according to law shall be sentenced to a fixed term of
imprisonment of not more than three years, criminal detention or public surveillance or be
fined.
8.
The source informs the Working Group that Mr. Zhang was initially held at the Nanle
County Detention Centre in Henan Province and later transferred to the Baitiaohe Prison in
the City of Puyang, Neihuang County.
9.
On 4 July 2014, Mr. Zhang was imprisoned, having been sentenced to 12 years in
prison by the Nanle County People’s Court for the crimes of gathering a crowd to disrupt
social order and fraud, stipulated in articles 266 and 290 of the Criminal Code of China,
respectively. The source specifies that article 266 of the Criminal Code stipulates that
whoever, for the purpose of illegal possession, unlawfully raises funds by means of fraud
shall, if the amount involved is relatively large, be sentenced to fixed-term imprisonment of
not more than five years or criminal detention and shall also be fined not less than ¥20,000,2
but not more than ¥200,000; if the amount involved is large, or if there are other serious
circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years,
but not more than 10 years, and shall also be fined not less than ¥50,000, but not more than
¥500,000; if the amount involved is especially large, or if there are other especially serious
circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years
and up to life imprisonment, and shall also be fined not less than ¥50,000, but not more than
¥500,000, or be sentenced to confiscation of property.
10.
The Puyang City Intermediate People’s Court held appellate proceedings on Mr.
Zhang’s conviction and punishment and, on 21 August 2014, upheld the original 12-year
prison sentence. Mr. Zhang’s lawyers reportedly had not been told about the date of the
2 A sum of 6.2 yuan is equivalent to 1 United States dollar (World Bank exchange rate as at 2013).
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appeal hearing or permitted to attend the proceedings. In October 2014, Mr. Zhang was
transferred to Henan Province Prison No. 2 in Xinxiang City. Mr. Zhang’s subsequent
applications for appeal reportedly have not been approved. He is set to be released on 16
November 2025, upon the completion of his sentence.
11.
In December 2019, Mr. Zhang reportedly presented extreme changes in his
personality. The source expresses concern that the change in personality may be connected
to the medication that the prison medical staff have been giving Mr. Zhang, purportedly for
the treatment of high blood pressure.
12.
On 8 January 2021, Mr. Zhang’s family received a notice stating that he had been
transferred to the Zhengzhou Municipal Prison. The notice also stated that, after being
transferred, he would be subject to two months of “educational measures”. During that period,
his family would be permitted to see him once a month, but he would not be permitted to
receive anything during the visits. The source expresses concern that Mr. Zhang would
thereby be deprived of necessities usually brough by his family members.
13.
The source submits that the deprivation of liberty of Mr. Zhang is arbitrary, falling
under categories II and III of the arbitrary detention categories referred to by the Working
Group when considering cases submitted to it. More specifically, in relation to category II,
the source argues that Mr. Zhang’s detention constitutes a violation of his rights to the
peaceful exercise of free expression, assembly and association, including those guaranteed
under articles 18, 19 and 20 of the Universal Declaration of Human Rights.
14.
The source specifies that Mr. Zhang’s detention appears to be State retaliation for his
advocacy and actions to uphold the rights of the members of his church congregation and
other individuals, including for his efforts to pursue a land rights dispute with the Nanle
County authorities and for assisting other individuals in seeking justice with regard to their
personal grievances. The source recalls that Mr. Zhang and individuals associated with him
have faced various forms of State retaliation for the peaceful exercise of their rights to
freedom of expression, assembly and association.
15.
The source is of the view that the local officials have retaliated against Mr. Zhang
primarily for his efforts to defend rights to land that his church had purchased in order to
construct a new chapel, a Bible school and a ministry centre. The local authorities reportedly
opposed that development plan and attempted to seize the land from the church.
16.
In November 2013, Mr. Zhang and other members of his church travelled to Beijing
on three occasions to petition the central authorities to help to resolve the land dispute. The
source highlights the fact that those peaceful and lawful advocacy efforts were referenced in
the indictment against Mr. Zhang and cited as evidence of “gathering a crowd to disrupt
social order”.
17.
Moreover, the source reports that many supporters of Mr. Zhang advocating for his
release have faced violations of their rights by the security forces, including being subjected
to surveillance, intimidation, physical assault and detention. Several days after Mr. Zhang
and other congregation members were initially detained, more than 200 State agents
congregated to guard the entrance to the church premises, along with police vehicles. The
authorities have also installed surveillance cameras around the building.
18.
The source submits that the deprivation of liberty of Mr. Zhang falls under category
III of the arbitrary detention categories referred to by the Working Group when considering
cases submitted to it and constitutes a violation of article 9 of the Universal Declaration of
Human Rights.
19.
The source maintains that State agents assaulted and intimidated lawyers who have
attempted to defend Mr. Zhang, thereby preventing them from adequately representing him
and depriving Mr. Zhang of his right to legal counsel. The source submits that individuals
hired by the government in Nanle County attacked and harassed Mr. Zhang’s lawyers,
thereby preventing them from meeting with Mr. Zhang.
20.
On 12 December 2013, those individuals reportedly blocked several lawyers from
entering the Nanle County Detention Centre and, later that day, physically attacked the
lawyers at a guesthouse where they were staying. After each incident, the lawyers called the
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police emergency number and requested assistance. However, no police officers were
dispatched, and the officer who answered the call reportedly said that it was not the police’s
responsibility to find the perpetrators.
21.
Furthermore, on 13 December 2013, the same individuals reportedly assaulted the
same group of lawyers and prevented them from entering the Nanle County People’s
Procuratorate, when the lawyers tried to lodge a protest against the alleged police harassment
and denial of Mr. Zhang’s right to legal counsel. One of the lawyers was hit in the head and
suffered bleeding, while another had his glasses knocked off. A third lawyer had his jacket
torn off, while others sustained injuries from the attack. In addition, several cellular
telephones and tablet computers were taken from the lawyers. The lawyers, along with some
foreign journalists, were forced to barricade themselves inside the procuratorate building.
22.
The source submits that the circumstances of Mr. Zhang’s initial detention and the
criminal charges against him raise serious concerns about the legitimacy of his deprivation
of liberty. The source specifies that, when detaining Mr. Zhang, the police officers did not
produce an official notice, in violation of article 83 of the Criminal Procedure Code of China,
which stipulates that public security bureau officers must produce a detention warrant when
detaining an individual.
23.
It is argued that Mr. Zhang was initially detained only on suspicion of gathering a
crowd to disrupt social order and that the charge of disrupting official business was added
when he was formally arrested. In December 2013, the police from the Nanle County Public
Security Bureau completed an investigation, and, in January 2014, the prosecution
recommended that the local court charge Mr. Zhang with fraud as well.
24.
During the trial, one of Mr. Zhang’s lawyers expressed his strong belief that the
criminal case against his client featured abuses of his legal rights. He also argued that the
police did not have probable cause for detaining Mr. Zhang. Mr. Zhang’s defence thereby
questioned the legality of his detention and submitted that he was taken into custody as a
pretext that would allow the police to conduct searches of his home in order to gather
evidence and to create a criminal case against him.
25.
Moreover, Mr. Zhang’s defence team referenced in court the change from the original
to the eventual criminal charges, i.e. the addition of the fraud charge, and pointed out that the
Government has failed to produce records of an investigation substantiating the criminal
suspicion of fraud.
26.
The source notes that a member of Mr. Zhang’s congregation who prosecutors had
named as the “victim” of the fraud charge went missing in December 2013. However, a
statement supposedly from that individual was still presented at trial as evidence against Mr.
Zhang. Mr. Zhang’s lawyer requested that the person be called as a witness during the
proceedings and asked the prosecution how it was possible to produce a written statement
from a missing person. The lawyer was reportedly not provided with a response. The source
affirms that the alleged witness has never pursued any fraud charge against Mr. Zhang and
would have likely testified to his innocence in court. The source suspects that, even if such a
statement had been made, it was done due to coercion from the police.
27.
In addition to the 12-year prison sentence, the court also ordered Mr. Zhang to pay a
fine of ¥100,000. In December 2014, local authorities reportedly withdrew several million
yuan from the church bank account, which contained savings for the construction of the new
church buildings, ordered the removal of the cross from the top of the church building and
blocked the entrance to the church.
28.
The source recalls that members of Mr. Zhang’s family have been subjected to
deprivation of liberty due to their association with Mr. Zhang and the criminal case against
him.
29.
The source informs the Working Group that Mr. Zhang has been subjected to torture
and other forms of ill-treatment in prison, in part as retaliation for the fact that he did not
admit criminal guilt. Reportedly, Mr. Zhang has been subjected to threats, solitary
confinement in a small space, deprivation of sleep and natural light and deprivation of
adequate food and nutrition.
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Response from the Government
30.
On 20 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 19 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, in particular with regard to the treaties ratified by the State. Moreover, the
Working Group called upon the Government to ensure Mr. Zhang’s physical and mental
integrity.
31.
On 18 October 2021, the Government of China submitted its response, in which it
explained that, on 15 November 2013, the police filed a case for investigation against Mr.
Zhang, who was suspected of crimes. On 17 November, Mr. Zhang was criminally detained
by the police. On 19 November, the police requested that the procuratorate investigate and
arrest him on the suspected charges of obstructing government administration and fraud. On
22 November, officers of the procuratorate arrested him in accordance with the law. On 31
December, the police sent the case to the procuratorate for examination and indictment on
the charges of fraud and gathering a crowd to disturb public order.
32.
The Government explains that, on 14 January 2014, the procuratorate lawfully
indicted Mr. Zhang on the charges of fraud and gathering a crowd to disturb public order. On
2 July, the Nanle People’s Court of Henan Province, in the first instance court hearing, issued
its verdict with regard to Mr. Zhang on the charges of fraud and gathering a crowd to disturb
public order and sentenced him to 10 years’ imprisonment and a fine of ¥100,000 on the
charge of fraud. With regard to the charge of gathering a crowd to disturb public order, the
Court sentenced him to three years’ imprisonment, deciding to implement a cumulative
sentence of 12 years and a fine of ¥100,000, demanding that he reimburse illegally obtained
assets and return ¥700,000 to victims.
33.
The Government notes that the court determined that Mr. Zhang, acting with the aim
of unlawfully taking assets, and using means that employed false facts and that covered up
the truth, cheated others out of their wealth, with a sum total that was extremely large, and
that his conduct constituted fraud. With regard to Mr. Zhang and his associates gathering a
crowd to disturb public order on many occasions, the circumstances were serious, resulting
in the situation in which national organs and businesses could not operate normally, resulting
in serious harm, and with Mr. Zhang as the primary culprit, whose behaviour constituted the
crime of gathering a crowd to disturb public order. Mr. Zhang’s having committed crimes on
many occasions resulted in punishment and fines according to the law. According to the facts
of Mr. Zhang’s crimes, their nature and circumstances and the degree of social harm, the
above-mentioned verdict was made in accordance with the law.
34.
The Government notes that, after the verdict in the first instance trial, Mr. Zhang
appealed. On 19 August 2014, the Puyang City Intermediate People’s Court engaged in a
hearing and rejected the appeal in accordance with the law, upholding the original verdict.
Mr. Zhang is currently in prison serving his sentence, and with regard to its prisoners, the
prison is implementing its policies of prisoner reform and protecting their rights according to
the legally defined rights and interests of the prisoners. The prisoner in question has high
blood pressure, and he has been taking medicine for that condition for a long time.
35.
The Government submits that Chinese judicial organs handled the case strictly in
accordance with the law and guaranteed each lawful right of Mr. Zhang. At the investigation
stage, indictment stage and trial stage, Mr. Zhang’s rights of the person, property rights, right
to speak, right to legal representation and other rights were all effectively guaranteed. The
facts regarding Mr. Zhang’s having committed crimes are attested to by witness testimony,
video materials, written materials and physical evidence, with the facts clear, the evidence
solid, the conviction accurate, the sentence appropriate and the procedures lawful. At the
investigation, arrest and indictment stages, the procuratorate told Mr. Zhang about his rights
and guaranteed each component of his procedural rights, and, in the interrogation process,
there was no extracting evidence through torture, nor were there any threats, inducements or
tricking him in any way in order to obtain the oral testimony. The courts strictly heard his
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case in accordance with the law, completely guaranteeing each component of Mr. Zhang’s
procedural rights.
36.
The Government notes that, on 13 December, during the process of Mr. Zhang’s
lawyer arguing the case on behalf of his client at the Nanle County People’s Procuratorate
Reception Hall, and the related dispute that occurred when the crowds gathered, employees
quickly mediated and deescalated the dispute, and each side later left the scene. The
procuratorate, in the process of receiving Mr. Zhang’s lawyer, guaranteed the petitioners’
rights in accordance with the law, and no incident of surrounding and attacking, or of beating,
the lawyer occurred.
37.
According to the Government, the Government of China protects citizens’ rights to
freedom of religion, in accordance with the law, and protects citizens in ensuring that their
lawful rights and interests are not harmed. Mr. Zhang’s relevant behaviour violated the
Criminal Code of China, and the illegality of the facts of the crimes are clear and the evidence
is full and irrefutable, and by reason, he should receive his legal punishment. Whether he is
a Christian or whether he has any religious belief is not of any significance.
Additional comments from the source
38.
On 20 October 2021, the Government’s reply was sent to the source for further
comments, which the source submitted on 26 October 2021, reiterating the points previously
made. The source stresses that Mr. Zhang’s procedural rights were not guaranteed at each
stage of the criminal justice process, but were in fact violated at each stage.
39.
The source underscores the failure of the Government to address the fact that, when
detaining Mr. Zhang, police officers did not produce an official notice, in violation of article
83 of the Criminal Procedure Code of China, which stipulates that public security bureau
officers must produce a detention warrant when detaining an individual. The source retires
that no official notice was produced when Mr. Zhang was arrested.
40.
The source also strictly rejects the claim that Mr. Zhang was ensured legal
representation and that his lawyers were not attacked. In particular, the source contests the
submissions of the Government regarding the events of 13 December as an untrue
representation of the attacks that the lawyers sustained. The source also reiterates other
impediments upon Mr. Zhang’s right to legal assistance.
41.
The source concludes by noting the failure of the Government to address the testimony
of a witness who had disappeared, but which was nevertheless admitted during the trial. The
source asserts that Mr. Zhang was detained purely for his religious beliefs.
Discussion
42.
The Working Group thanks the source and the Government for their submissions.
43.
In determining whether the deprivation of liberty of Mr. Zhang is 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 the
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
(a)
Category I
44.
The Working Group recalls that a detention is considered arbitrary under category I if
it lacks legal basis. As it has previously indicated, for a deprivation of liberty to have a legal
basis, it is not sufficient that there is a law which may authorize the arrest. The authorities
must invoke that legal basis and apply it to the circumstances of the case through an arrest
3 A/HRC/19/57, para. 68.
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warrant.4 Indeed, the international law on deprivation of liberty includes the right to be
presented with an arrest warrant, 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 Imprisonment.5
Any form of detention or imprisonment should be ordered by, or be subjected to the effective
control of, a judicial or other authority under the law, whose status and tenure should afford
the strongest possible guarantees of competence, impartiality and independence, in
accordance with principle 4 of the Body of Principles.
45.
In the present case, the Working Group observes that it is not contested that Mr. Zhang
was taken into police custody on 17 November 2013. The source has clearly argued that that
was done without any formal notice, although such was required by the national law, and the
Government, while it had the opportunity, has not contested that submission. The Working
Group therefore concludes that Mr. Zhang was detained in violation of his rights under article
9 of the Universal Declaration of Human Rights, given that no arrest warrant or other
document legalizing his arrest was presented at the time. Mr. Zhang was also not promptly
informed of the reasons for his arrest, in violation of article 9 of the Universal Declaration of
Human Rights. Consequently, his arrest on 17 December 2013 was arbitrary.
46.
The Working Group notes that it is not disputed that Mr. Zhang was formally arrested
on 22 November 2013 on the basis of articles 290 and 277 of the Criminal Code of China.
He was subsequently charged and imprisoned on the basis of articles 266 and 290 of the
Criminal Code. The Working Group notes that it has previously been called upon to examine
cases concerning charges laid under articles 266 and 277 of the Criminal Code.6
47.
In its reports on its visits to China in 1997 and 2004, the Working Group emphasized
that charges involving vague and imprecise offences jeopardized the ability of individuals to
exercise their fundamental rights and were 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 exercised their rights guaranteed by the Universal Declaration of
Human Rights.7
48.
As the Working Group has noted, 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.8 The Working Group has already called upon the
Government to repeal article 277 of the Criminal Code or bring it into line with its obligations
under international human rights law,9 but the circumstances of the present case evidence that
that has not taken place.
49.
In the present case, Mr. Zhang was arrested under a vague and imprecise offence of
“obstructing official duties” and subsequently charged also with fraud under article 266 of
the Criminal Code, a provision which the Working Group has already previously found to
have been used to silence the peaceful exercise of rights protected by the Universal
Declaration of Human Rights.10 Article 277 of the Criminal Code does not define what
conduct amounts to “obstructing official duties”. 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 to amount to “obstructing official duties”. Importantly, there is nothing to suggest
that Mr. Zhang engaged in or incited violence as part of his activities that might have given
4 See, e.g., opinions No. 46/2017, 66/2017, 75/2017, No. 93/2017, No. 35/2018, No. 79/2018 and No.
35/2019.
5 See opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39.
6 See opinions No. 43/2016 and No. 15/2019.
7 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.
8 See opinion 15/2019.
9 See opinion 15/2019, para. 35.
10 See opinion 43/2016.
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cause to restrict his behaviour. On the contrary, he chose to work peacefully by advocating
for his church.
50.
Recalling that it is not contested that Mr. Zhang was formally arrested on 22
November 2013 on the grounds of, inter alia, “obstructing official duties” in breach of article
277 of the Criminal Code, the Working Group concludes that the arrest and subsequent
detention of Mr. Zhang on the basis of article 277 of the Criminal Code was arbitrary and
falls under category I as lacking legal basis in breach of article 9 of the Universal Declaration
of Human Rights. Due to the failure of article 277 of the Criminal Code to meet the standard
of principle of legality, the Working Group once again calls upon the Government to repeal
article 277 of the Criminal Code or bring it into line with its obligations under international
human rights law.
51.
Given the above, the Working Group considers that the arrest and subsequent
detention of Mr. Zhang was arbitrary and falls under category I, given that it was lacking
legal basis.
(b)
Category II
52.
The source has argued that Mr. Zhang was detained due to the peaceful exercise of
his religious freedom and specifically due to defending the land rights of his church. The
Government, however, argues that Mr. Zhang was not detained due to his religious rights,
but rather due to the commission of crimes, and notes that Mr. Zhang was charged with
obstructing government administration and fraud. The Working Group observes that the
Government has provided no account of the actions of Mr. Zhang that lead to the charges. It
recalls that the present case is not the first time that it has seen a peaceful exercise of the
rights protected by the Universal Declaration of Human Rights being punished under article
266 of the Criminal Code as “fraud” in China.11
53.
Noting that fact, the Working Group considers that Mr. Zhang was detained purely
for the peaceful exercise of his freedom to religion, in a clear violation of article 18 of the
Universal Declaration of Human Rights. In that regard, the Working Group recalls that article
29 (2) of the Universal Declaration of Human Rights provides that the only legitimate
limitations to 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 the general welfare in a democratic society.
Article 1 (3) of the Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief also stipulates that freedom to manifest one’s
religion or belief may be subject only to such limitations as are prescribed by law and are
necessary to protect public safety, order, health or morals or the fundamental rights and
freedoms of others.
54.
In the present case, the Government has offered no explanation as to what Mr. Zhang
did that amounted to the alleged crimes, especially noting that the church to which Mr. Zhang
belongs, and on behalf of which he acted, is an officially recognized church, duly registered
in the country, as submitted by the source and not contested by the Government.
55.
The Working Group therefore concludes that the detention of Mr. Zhang was arbitrary
and falls under category II, given that it is in violation of article 18 of the Universal
Declaration of Human Rights. In accordance with paragraph 33 (a) of its methods of work,
the Working Group refers the present case to the Special Rapporteur on freedom of religion
or belief and the Special Rapporteur on the situation of human rights defenders, for
appropriate action.
(c)
Category III
56.
Given its finding that the deprivation of liberty of Mr. Zhang is arbitrary under
category II, the Working Group wishes to emphasize that no trial of Mr. Zhang should have
taken place. However, the trial did take place, and Mr. Zhang was sentenced to a very lengthy
term of imprisonment. The source has submitted that there were severe violations of the fair
11 Ibid.
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trial rights of Mr. Zhang, especially with regard to his right to legal counsel of his own
choosing, and that his subsequent detention therefore falls under category III of the arbitrary
detention categories referred to by the Working Group when considering cases submitted to
it.
57.
In its reply to the source’s submission, the Government only addresses part of the
allegations, arguing that there was an altercation outside the court on 13 December which
involved lawyers of Mr. Zhang, but denying any interference with the lawyers. The Working
Group notes that the Government has not addressed the specific allegations of acts of
intimidation against Mr. Zhang’s lawyers, which in fact prevented the lawyers from meeting
with Mr. Zhang. The Government also has not addressed the specific allegations that the
lawyers were attacked on both 12 and 13 December 2013 and that the lawyers tried to lodge
a complaint about the police harassment and denial of Mr. Zhang’s right to legal counsel.
58.
In the light of the above, the Working Group considers that Mr. Zhang’s right to legal
assistance was denied, in violation of his right under articles 10 and 11 of the Universal
Declaration of Human Rights. All 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 their apprehension, and such access must be provided without delay.12 The
right to legal assistance is an essential element of the right to fair trial, given that it serves to
ensure that the principle of equality of arms is duly observed.13
59.
Moreover, the Working Group is deeply concerned about the acts of violence and
intimidation against Mr. Zhang’s lawyers, which were further violations also of Mr. Zhang’s
rights under articles 10 and 11 of the Universal Declaration of Human Rights. The Working
Group recalls that it has previously highlighted, on numerous occasions, that such acts against
lawyers are entirely unacceptable and violate articles 10 and 11 of the Universal Declaration
of Human Rights.14 It is the legal and positive duty of the State to protect everyone on its
territory or under its jurisdiction against any human rights violation and to provide remedy
whenever such a violation occurs.15 The Working Group recalls that principle 9 of the United
Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone
Deprived of their Liberty to Bring Proceedings Before a Court states that legal counsels are
to be able to carry out their functions effectively and independently, free from fear of reprisal,
interference, intimidation, hindrance or harassment.16 Moreover, the Working Group has also
highlighted, on numerous occasions, the unacceptability of reprisals against lawyers who
represent human rights defenders,17 as in the present case. The Working Group refers the
present case to the Special Rapporteur on the independence of judges and lawyers, for
appropriate action.
60.
The Government has failed to address the allegation that, although one of the
witnesses in Mr. Zhang’s case has disappeared, the written testimony of that witness was still
allowed in court, despite the challenges made by Mr. Zhang’s lawyers. At the very least, that
denied Mr. Zhang and his lawyers the possibility to cross examine the witness, as required
by the principle of the equality of arms, as encapsulated in articles 10 and 11 of the Universal
Declaration of Human Rights. In that regard, the Working Group recalls that the essence of
the right to a fair trial is the basic legal principle of equality of arms, under which the accused
has the right to defend himself or herself effectively, either in person or through legal
representation, which, in turn, presumes that the defendant is able to examine the evidence
against him or her and to cross-examine any witnesses that are presented by the prosecution.18
That was denied to Mr. Zhang.
12 A/HRC/45/16, paras. 51–52; and A/HRC/30/37, principle 9 and guideline 8; See also the Basic
Principles on the Role of Lawyers, paras. 16–22.
13 See, for example, opinion 35/2019.
14 Opinions No. 14/2017, No. 29/2017, No. 32/2017, No. 34/2017, No. 36/2017, No. 70/2017, No.
28/2018, No. 66/2019 and No. 42/ 2020. See also A/HRC/45/16, para. 54.
15 See deliberation No. 10 (A/HRC/45/16, annex I).
16 See also the Basic Principles on the Role of Lawyers, paras. 16–22.
17 A/HRC/48/55, para. 47.
18 Opinion No. 35/2019, para. 57.
A/HRC/WGAD/2021/76
10
61.
The Working Group takes note of the uncontested allegations that Mr. Zhang’s
lawyers were not told about the date of his appeal hearing or permitted to attend the
proceedings. Noting that the right to appeal, and the ability to effectively exercise that right,
is an integral part of the right to a fair trial, the Working Group finds a further breach of
articles 10 and 11 of the Universal Declaration of Human Rights.
62.
Given the above, the Working Group considers that the detention of Mr. Zhang is
arbitrary and falls under category III.
(d)
Concluding remarks
63.
The Working Group is disturbed about the allegations that Mr. Zhang has been ill-
treated and tortured as a punishment for not confessing to his alleged crimes, that there have
been changes in his personality, possibly due to the medication administered to him, and that
“educational measures” have been ordered in relation to him. The source has also alleged that
Mr. Zhang’s family and relatives have suffered, and even been deprived of their liberty,
because of their connection to his case.
64.
Although the Government denies those 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 United Nations Standard
Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). The Working
Group refers the case to the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, for appropriate action.
65.
The Working Group wishes to place on record that it is disturbed over the uncontested
allegations that Mr. Zhang’s supporters have suffered from harassment and persecution, and
even detention, at the hands of the security forces (see para. 17 above). The Working Group
considers such acts to be incompatible with the obligations of China under the Universal
Declaration of Human Rights.
66.
In its 30-year history, the Working Group has found China in violation of its
international human rights obligations in over 100 cases.19 The Working Group is concerned
that that 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.20
67.
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 most recent 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.
19 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.
20 See 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; No. 60/2012, para. 21; and No. 35/2019, para. 65.
A/HRC/WGAD/2021/76
11
Disposition
68.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Zhang Shaojie, being in contravention of articles 9, 10,
11 and 18 of the Universal Declaration of Human Rights, is arbitrary and falls within
categories I, II and III.
69.
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.
70.
The Working Group requests the Government to bring its laws, in particular article
277 of the Criminal Code, into conformity with the recommendations made in the present
opinion and with the commitments made by China under international human rights law.
71.
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.
72.
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.
73.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on freedom of religion or belief, the Special
Rapporteur on the situation of human rights defenders, the Special Rapporteur on the
independence of judges and lawyers and the Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment, for appropriate action.
74.
The Working Group recommends that the Government accede to the International
Covenant on Civil and Political Rights.
75.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
76.
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.
77.
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.
78.
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
A/HRC/WGAD/2021/76
12
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.
79.
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 that they have taken.21
[Adopted on 18 November 2021]
21 Human Rights Council resolution 42/22, paras. 3 and 7.