A/HRC/WGAD/2022/6, Opinion No. 6/2022 concerning Abdurashid Tohti, Tajigul...

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]

Erwägungen (50 Absätze)

E. 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.

E. 2 In accordance with its methods of work,1 on 29 December 2021 the Working Group transmitted to the Government of China a communication concerning Abdurashid Tohti, Tajigul Qadir, Ametjan Abdurashid and Mohamed Ali Abdurashid. The Government has not replied to the communication. The State is not a party to the International Covenant on Civil and Political Rights.

E. 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/2022/6 General Assembly Distr.: General 23 May 2022 Original: English A/HRC/WGAD/2022/6 2 Submissions Communication from the source

E. 4 Abdurashid Tohti is a citizen of China. He was 53 years old at the time of his detention and residing in Saybag town, ShuFu, Xinjiang, China.

E. 5 Tajigul Qadir is a housewife and the wife of Mr. Tohti, also residing in Saybag town, ShuFu, Xinjiang, China. She is a citizen of China and was 48 years old at the time of her detention.

E. 6 Ametjan Abdurashid is the son of Mr. Tohti and Ms. Qadir, a citizen of China, 30 years old at the time of his detention, residing in Saybag town, ShuFu, Xinjiang, China.

E. 7 Mohamed Ali Abdurashid is the son of Mr. Tohti and Ms. Qadir, a citizen of China, 27 years old at the time of his detention, residing in Saybag town, ShuFu, Xinjiang, China.

E. 8 The source states that Mr. Tohti is a retired government worker and an entrepreneur, having worked at an auto-repair shop he owned in Kashgar city with his two sons, Ametjan and Mohamed.

E. 9 According to the information provided by the source, on 6 March 2016, Ametjan Abdurashid was apprehended by the Kashgar police authorities at the auto-repair shop belonging to his family. It is not known whether the officials showed him an arrest warrant or any decision issued by a public authority. He was taken to a detention centre in Kashgar.

E. 10 At the end of 2016, the Kashgar City People’s Court sentenced Ametjan Abdurashid to seven years in prison. It is alleged that prior to the court hearing, he was forced to choose from a list of offences that are shown to persons belonging to the Uyghur minority and to plead guilty. The police reportedly threatened that they would bring his family members living abroad to China and arrest them, should he not choose a crime from the list. Mr. Abdurashid therefore chose a seven-year imprisonment sentence for an unknown offence and was forced to sign an admission of guilt.

E. 11 Upon receiving his sentence, Mr. Abdurashid was sent to prison in Atux city. The exact legal basis for his detention remains unknown.

E. 12 The source further states that Mr. Tohti, his wife, Ms. Qadir, and their other son, Mohamed Abdurashid, were detained by police officers in June 2017 at their usual residence in Saybag town, ShuFu, Xinjiang. It is not known whether the officials showed them an arrest warrant or any decision issued by a public authority.

E. 13 According to the source, the authorities were initially either unwilling to discuss with the family living abroad the disappearance of Mr. Tohti and Ms. Qadir or claimed to lack information about them and urged them to go to China to procure the official documents.

E. 14 On 15 June 2020, three years after the deprivation of liberty of Mr. Tohti, Ms. Qadir and Mohamed Abdurashid, in a phone call statement to members of their family living abroad, officials at the Chinese Embassy in Turkey informed them that on 13 December 2017, Mr. Tohti had been sentenced to 16 years and 11 months’ imprisonment for the “crimes of disturbing social order and preparing to commit terrorist activities”. No reason for the sentencing was mentioned in the document received by the family’s acquaintances in June 2020, which stated only that Mr. Tohti had been imprisoned.

E. 15 On the same occasion, the authorities reported that on 13 December 2017, Ms. Qadir had been sentenced to a 13-year prison term for the “crime of preparing to commit terrorist activities”. The exact legal basis for her detention remains unknown.

E. 16 The authorities also reported that on 20 August 2017, Mohamed Abdurashid had been sentenced to 15 years and 11 months’ imprisonment for “a criminal offence and for the crime of preparing to commit terrorist activities”. The exact legal basis for his detention remains unknown.

E. 17 It is believed that Mr. Tohti, Ms. Qadir and Mohamed Abdurashid were taken to a re- education camp for Uyghurs in Kashgar and then imprisoned. They remain incommunicado. A/HRC/WGAD/2022/6 3

E. 18 It is submitted that Ametjan Abdurashid, Mr. Tohti, Ms. Qadir and Mohamed Abdurashid were deprived of liberty because of their Uyghur minority ethnicity, their religious faith (Islam) and because some of their close family members have been living abroad. Initially, two of their family members were living in Turkey, then in 2018 one of them moved to the United States of America and in February 2020 started working for the Radio Free Asia Uyghur language network.

E. 19 The source submits that the deprivation of liberty of the four individuals mentioned above is not authorized by law or the Constitution of China. Further, it is submitted that their deprivation of liberty: (a) Breaches article 12 of the Universal Declaration of Human Rights and article 26 of the Covenant, insofar as it is discriminatory and contrary to their right to equal protection under the law. It is argued that their deprivation of liberty is based upon their minority ethnicity (Uyghur), religion (Islam) and also upon the fact that family members have ties with States other than China, namely Turkey and the United States; (b) Breaches article 13 of the Universal Declaration of Human Rights and article 12 of the Covenant insofar as it is contrary to their right to freedom of movement; (c) Is contrary to their right to freedom of thought, conscience and religion in that they have been targeted because of their religion and belief, in breach of article 18 of the Universal Declaration of Human Rights and article 18 of the Covenant; (d) Is contrary to their right to freedom of opinion and expression, as it is based upon their religion, in breach of article 19 of the Universal Declaration of Human Rights and article 19 of the Covenant; (e) Is contrary to their right to freedom of peaceful assembly and association given that their detention is based upon their membership of the Islamic community in China, in breach of articles 20, 21 and 22 of the Covenant; (f) Is in breach of article 27 of the Covenant, which provides that: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”

E. 20 It is further argued by the source that the above-mentioned individuals have not been granted a fair trial with independent representation and that therefore their right to a fair trial has not been observed, in contravention of article 9 of the Universal Declaration of Human Rights and article 9 of the Covenant.

E. 21 The source maintains that they have not been granted a fair and public hearing by an independent and impartial tribunal, as they are entitled to under article 10 of the Universal Declaration of Human Rights and article 14 of the Covenant. Response from the Government

E. 22 On 29 December 2021 the Working Group transmitted the allegations from the source to the Government of China under its regular communications procedure. The Working Group requested the Government to provide, by 1 March 2022, detailed information about the current situation of Mr. Tohti, Ms. Qadir, Ametjan Abdurashid and Mohamed Abdurashid and to clarify the legal provisions justifying their continued detention, as well as its compatibility with the obligations of China under international human rights law. The Working Group also called upon the Government of China to ensure their physical and mental integrity.

E. 23 The Working Group regrets that it has received no reply from the Government, nor did the Government avail itself of the opportunity to seek an extension to provide a reply in accordance with paragraph 16 of the Working Group’s methods of work. Discussion

E. 24 In the absence of a response from the Government, the Working Group has decided to render the present opinion, in conformity with paragraph 15 of its methods of work. A/HRC/WGAD/2022/6 4

E. 25 The Working Group has in its jurisprudence established the ways in which it deals with evidentiary issues. If the source has established a prima facie case for breach of international law constituting arbitrary detention, the burden of proof should be understood to rest upon the Government if it wishes to refute the allegations.2 In the present case, the Government has chosen not to challenge the prima facie credible allegations made by the source.

E. 26 The Working Group notes that the allegations in the present case concern a Chinese family of four: father, mother and two adult sons, all belonging to the Uyghur minority and living in Xinjiang Uyghur Autonomous Region in China. The source has alleged that Ametjan Abdurashid was arrested and sentenced in 2016 and the rest of the family in 2017. It is submitted that the grounds for their arrest and alleged trial, if such a trial ever took place, remain unclear and it is alleged that Ametjan Abdurashid at least was coerced into “choosing” from a list of offences. The four members of the family are allegedly being held incommunicado in a so-called re-education camp in Xinjiang province.

E. 27 All these allegations were transmitted to the Government, which has chosen not to address any of them.

E. 28 In relation to the source’s allegation that the four individuals are being held at a so- called re-education camp, a point not contested by the Government, the Working Group recalls that the deprivation of liberty is not only a question of legal definition, but also of fact. If the person concerned is not at liberty to leave, then all the appropriate safeguards that are in place to guard against arbitrary detention must be respected and the right to challenge the lawfulness of detention before a court afforded to the individual.3 Moreover, the Working Group recalls its visit to China in 1997 and its follow up visit in 2004, and notes that during both missions it visited re-education camps, recognizing them as places of deprivation of liberty.4

E. 29 The Working Group therefore concludes that the re-education camp where the four individuals are being held, is without a doubt a place of detention, as it is clear that they are there against their will and are unable to leave.

E. 30 In making this finding the Working Group also recalls the recent follow-up report to the joint study on global practices in relation to secret detention in the context of countering terrorism by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. 5 In her report the Special Rapporteur specifically notes the internment of Uyghurs in “re-education camps” and “reiterates and highlights ongoing concerns about the conditions in such facilities including the practice of ‘re-education’ which impinges on the most fundamental of rights”.6

E. 31 The Working Group is disturbed at the exceptionally serious and uncontested allegations presented to it and will address them according to the categories it has adopted. Category I

E. 32 The Working Group observes that all four members of the family were arrested in 2016 or 2017 but the source has been unable to establish whether the requisite arrest warrants were presented at the time. It is also unclear whether they were informed of the reasons for their respective arrests although the Working Group doubts this, given that Ametjan Abdurashid at least was coerced into “choosing” from a list of offences. These allegations were put to the Government, but it has chosen not to contest them.

E. 33 In these circumstances, the Working Group concludes that the arrest of Ametjan Abdurashid at least took place in breach of article 9 of the Universal Declaration of Human Rights. The uncontested submission that he was coerced into “choosing” his offence makes 2 A/HRC/19/57, para. 68. 3 A/HRC/36/37, para. 56. 4 See E/CN.4/1998/44/Add.2 and E/CN.4/2005/6/Add.4, para. 54 in particular. 5 A/HRC/49/45. 6 Para. 33. A/HRC/WGAD/2022/6 5 it clear that the authorities did not have a clear legal basis for his arrest and subsequent detention nor that they notified him of the charges against him.

E. 34 Moreover, according to the source, all four members of the family have been held incommunicado, another very serious allegation not contested by the Government. As the Working Group has stated, holding persons incommunicado violates their right to challenge the lawfulness of detention before a court under article 9 of the Universal Declaration of Human Rights. 7 Judicial oversight of detention is a fundamental safeguard of personal liberty8 and is essential in ensuring that detention has a legal basis. Given that Mr. Tohti, Ms. Qadir and Ametjan and Mohamed Abdurashid were unable to challenge their detention before a court, their right to an effective remedy under article 8 of the Universal Declaration of Human Rights was violated. They were also placed outside the protection of the law, in violation of their right to be recognized as a person before the law under article 6 of the Universal Declaration of Human Rights.

E. 35 In that regard, the Working Group wishes to specifically emphasize its findings following its visit to China in 2004, in which it which clearly stated: “The fact that the legal system of China classifies re-education through labour as an administrative deprivation of liberty as opposed to judicial deprivation of liberty governed by criminal law, does not affect China’s obligation to ensure judicial control over this form of deprivation of liberty.”9

E. 36 The Working Group also observes that all four individuals appear to be in de facto indefinite detention in a so-called re-education camp. Such a situation, as clearly stipulated by the Working Group in its deliberation No. 4, is inherently arbitrary, in violation of article 9 of the Universal Declaration of Human Rights.

E. 37 The Working Group therefore concludes that the arrest and subsequent detention of Mr. Tohti, Ms. Qadir and Ametjan and Mohamed Abdurashid are arbitrary and fall under category I. Category III

E. 38 The Working Group notes that very little appears to be known about the trial proceedings against Mr. Tohti, Ms. Qadir and their sons. The charges against them are unknown and the dates of their trials, as well as details of those proceedings, if they ever took place, are equally unknown. The Government had an opportunity to clarify all this, but it chose not to do so.

E. 39 In these circumstances, noting the opacity of the proceedings as well as the findings above concerning the “choosing” of offences, the Working Group considers that Mr. Tohti, Ms. Qadir, Ametjan Abdurashid and Mohamed Abdurashid were deprived of their right to a fair and public hearing by an independent and impartial tribunal in violation of their rights under article 10 of the Universal Declaration of Human Rights. The fact that to date, some six and seven years after their detention, family members have been unable to find out anything about their respective trials is a striking testament to this.

E. 40 Moreover, the Working Group notes that the source has stated, and the Government does not contest, that Ametjan Abdurashid at least was forced to “choose” from a list of offences and coerced into signing an admission of guilt. The Working Group considers that this amounted to a violation of his rights under articles 10 and 11 of the Universal Declaration of Human Rights.

E. 41 Finally, the source has submitted that all four individuals were deprived of independent representation during their trials, another allegation not contested by the Government. The Working Group recalls that all persons deprived of their liberty have the right to legal assistance by a counsel of their choice at any time during their detention, including immediately after their apprehension, and such access must be provided without 7 See opinions No. 45/2017, No. 46/2017, No. 35/2018, No. 9/2019, No. 44/2019, No. 45/2019, No. 15/2020, No. 16/2020 and No. 36/2020. 8 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, principle 3. 9 E/CN.4/2005/6/Add.4, para. 54. A/HRC/WGAD/2022/6 6 delay.10 The right to legal assistance is an essential element of the right to a fair trial, as it serves to ensure that the principle of equality of arms is duly observed.11 The Working Group therefore finds a breach of articles 10 and 11 of the Universal Declaration of Human Rights.

E. 42 Noting all of the above, the Working Group concludes that the detention was thus arbitrary and falls under category III. In making these findings the Working Group is especially mindful of its conclusions related specifically to re-education camps after its follow-up mission to China in 200412 and the absence of a reply from the Government in the present case. Category V

E. 43 The Working Group notes that it is not disputed that Mr. Tohti, Ms. Qadir, Ametjan Abdurashid and Mohamed Abdurashid all belong to the Uyghur minority in the Xinjiang Uyghur Autonomous Region of China. The source has submitted, and the Government has chosen not to contest, that they were arrested and remain detained owing to their belonging to the Uyghur minority and being of the Muslim faith.

E. 44 The Working Group recalls the recent follow-up report on the joint study on global practices in relation to secret detention in the context of countering terrorism by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. In her report, the Special Rapporteur details the “practices of arbitrary mass and secret detention with other serious violations of international law directed at the Uighurs” and records the “ongoing flow of credible information pointing to a sustained practice of mass arbitrary detention”.13

E. 45 In the absence of an explanation by the Government as to the reasons for the arrest and detention of Mr. Tohti, Ms. Qadir and their sons, or any rebuttal of the very serious allegations presented by the source, the Working Group concludes that the arrest and detention of the four individuals was based on discrimination on the basis of their belonging to the Uyghur minority and being of Muslim faith, in violation of article 2 of the Universal Declaration of Human Rights.

E. 46 The Working Group also notes the uncontested allegations by the source that all four individuals were arrested and detained because some of their family members live abroad and some of them work with Uyghur language issues. These allegations further reinforce the findings set out above that the arrest and detention of the four individuals were based on discrimination.

E. 47 The Working Group therefore finds the detention of Mr. Tohti, Ms. Qadir, Ametjan Abdurashid and Mohamed Abdurashid arbitrary, falling under category V. The Working Group refers the present case to the Special Rapporteur on minority issues and the Special Rapporteur on freedom of religion or belief for further consideration. Concluding remarks

E. 48 The Working Group is disturbed at the total secrecy which appears to surround the fate and whereabouts of Mr. Tohti, Ms. Qadir, Ametjan Abdurashid and Mohamed Abdurashid. Their family members abroad have been unable to establish the exact details of their arrests and trials or their exact whereabouts. The Human Rights Council in its resolution 37/3 stressed that no one should be held in secret detention and called upon States to investigate all alleged cases of secret detention, including on the pretext of countering terrorism.14 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 10 A/HRC/45/16, paras. 51–52; A/HRC/30/37, principle 9 and guideline 8. See also the Basic Principles on the Role of Lawyers, paras. 16–22. 11 See, for example, opinions No. 35/2019 and No. 76/2021. 12 E/CN.4/2005/6/Add.4, paras. 54–59. 13 A/HRC/49/45, para. 33. 14 See also A/HRC/13/42, paras. 18–23. A/HRC/WGAD/2022/6 7 in rule 1 of United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).

E. 49 In its 30-year history, the Working Group has found China in violation of its international human rights obligations in numerous cases.15 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.16

E. 50 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 previous 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 request of 15

April 2015.

Disposition

51.

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

The deprivation of liberty of Abdurashid Tohti, Tajigul Qadir, Ametjan Abdurashid

and Mohamed Ali Abdurashid, being in contravention of articles 2, 6, 8, 9, 10 and 11

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

I, III and V.

52.

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

remedy the situation of Mr. Tohti, Ms. Qadir, Ametjan Abdurashid and Mohamed

Abdurashid without delay and bring it into conformity with the relevant international norms,

including those set out in the Universal Declaration of Human Rights.

53.

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

case, the appropriate remedy would be to release Mr. Tohti, Ms. Qadir, Ametjan Abdurashid

and Mohamed Abdurashid immediately and accord them 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. Tohti, Ms. Qadir, Ametjan Abdurashid

and Mohamed Abdurashid.

54.

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

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

Tohti, Ms. Qadir, Ametjan Abdurashid and Mohamed Abdurashid and to take appropriate

measures against those responsible for the violation of their rights.

15 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. 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.

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

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

50/2012, para. 27; and No. 60/2012, para. 21; and No. 35/2019, para. 65.

A/HRC/WGAD/2022/6

55.

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

the present case to the Special Rapporteur on minority issues and the Special Rapporteur on

freedom of religion or belief for appropriate action.

56.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

57.

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. Tohti, Ms. Qadir, Ametjan Abdurashid and Mohamed

Abdurashid have been released and, if so, on what date;

(b)

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

Qadir, Ametjan Abdurashid and Mohamed Abdurashid;

(c)

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

Mr. Tohti, Ms. Qadir, Ametjan Abdurashid and Mohamed Abdurashid 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.

58.

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.

59.

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

mentioned information within six months of the date of transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action would

enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

60.

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

to cooperate with the Working Group and has requested them to take account of its views

and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.17

[Adopted on 30 March 2022]

17 See Human Rights Council resolution 42/22, paras. 3 and 7.

Volltext (verifizierbarer Originaltext)

GE.22-07760(E)

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-third session, 30 March–8 April 2022

Opinion No. 6/2022 concerning Abdurashid Tohti, Tajigul Qadir,

Ametjan Abdurashid and Mohamed Ali Abdurashid (China)

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.

In accordance with its methods of work,1 on 29 December 2021 the Working Group

transmitted to the Government of China a communication concerning Abdurashid Tohti,

Tajigul Qadir, Ametjan Abdurashid and Mohamed Ali Abdurashid. The Government has not

replied to the communication. The State is not a party to the International Covenant on Civil

and Political Rights.

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/2022/6

General Assembly

Distr.: General

23 May 2022

Original: English

A/HRC/WGAD/2022/6

Submissions

Communication from the source

Abdurashid Tohti is a citizen of China. He was 53 years old at the time of his detention

and residing in Saybag town, ShuFu, Xinjiang, China.

Tajigul Qadir is a housewife and the wife of Mr. Tohti, also residing in Saybag town,

ShuFu, Xinjiang, China. She is a citizen of China and was 48 years old at the time of her

detention.

Ametjan Abdurashid is the son of Mr. Tohti and Ms. Qadir, a citizen of China, 30

years old at the time of his detention, residing in Saybag town, ShuFu, Xinjiang, China.

Mohamed Ali Abdurashid is the son of Mr. Tohti and Ms. Qadir, a citizen of China,

27 years old at the time of his detention, residing in Saybag town, ShuFu, Xinjiang, China.

The source states that Mr. Tohti is a retired government worker and an entrepreneur,

having worked at an auto-repair shop he owned in Kashgar city with his two sons, Ametjan

and Mohamed.

According to the information provided by the source, on 6 March 2016, Ametjan

Abdurashid was apprehended by the Kashgar police authorities at the auto-repair shop

belonging to his family. It is not known whether the officials showed him an arrest warrant

or any decision issued by a public authority. He was taken to a detention centre in Kashgar.

10.

At the end of 2016, the Kashgar City People’s Court sentenced Ametjan Abdurashid

to seven years in prison. It is alleged that prior to the court hearing, he was forced to choose

from a list of offences that are shown to persons belonging to the Uyghur minority and to

plead guilty. The police reportedly threatened that they would bring his family members

living abroad to China and arrest them, should he not choose a crime from the list. Mr.

Abdurashid therefore chose a seven-year imprisonment sentence for an unknown offence and

was forced to sign an admission of guilt.

11.

Upon receiving his sentence, Mr. Abdurashid was sent to prison in Atux city. The

exact legal basis for his detention remains unknown.

12.

The source further states that Mr. Tohti, his wife, Ms. Qadir, and their other son,

Mohamed Abdurashid, were detained by police officers in June 2017 at their usual residence

in Saybag town, ShuFu, Xinjiang. It is not known whether the officials showed them an arrest

warrant or any decision issued by a public authority.

13.

According to the source, the authorities were initially either unwilling to discuss with

the family living abroad the disappearance of Mr. Tohti and Ms. Qadir or claimed to lack

information about them and urged them to go to China to procure the official documents.

14.

On 15 June 2020, three years after the deprivation of liberty of Mr. Tohti, Ms. Qadir

and Mohamed Abdurashid, in a phone call statement to members of their family living

abroad, officials at the Chinese Embassy in Turkey informed them that on 13 December 2017,

Mr. Tohti had been sentenced to 16 years and 11 months’ imprisonment for the “crimes of

disturbing social order and preparing to commit terrorist activities”. No reason for the

sentencing was mentioned in the document received by the family’s acquaintances in June

2020, which stated only that Mr. Tohti had been imprisoned.

15.

On the same occasion, the authorities reported that on 13 December 2017, Ms. Qadir

had been sentenced to a 13-year prison term for the “crime of preparing to commit terrorist

activities”. The exact legal basis for her detention remains unknown.

16.

The authorities also reported that on 20 August 2017, Mohamed Abdurashid had been

sentenced to 15 years and 11 months’ imprisonment for “a criminal offence and for the crime

of preparing to commit terrorist activities”. The exact legal basis for his detention remains

unknown.

17.

It is believed that Mr. Tohti, Ms. Qadir and Mohamed Abdurashid were taken to a re-

education camp for Uyghurs in Kashgar and then imprisoned. They remain incommunicado.

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18.

It is submitted that Ametjan Abdurashid, Mr. Tohti, Ms. Qadir and Mohamed

Abdurashid were deprived of liberty because of their Uyghur minority ethnicity, their

religious faith (Islam) and because some of their close family members have been living

abroad. Initially, two of their family members were living in Turkey, then in 2018 one of

them moved to the United States of America and in February 2020 started working for the

Radio Free Asia Uyghur language network.

19.

The source submits that the deprivation of liberty of the four individuals mentioned

above is not authorized by law or the Constitution of China. Further, it is submitted that their

deprivation of liberty:

(a)

Breaches article 12 of the Universal Declaration of Human Rights and article

26 of the Covenant, insofar as it is discriminatory and contrary to their right to equal

protection under the law. It is argued that their deprivation of liberty is based upon their

minority ethnicity (Uyghur), religion (Islam) and also upon the fact that family members have

ties with States other than China, namely Turkey and the United States;

(b)

Breaches article 13 of the Universal Declaration of Human Rights and article

12 of the Covenant insofar as it is contrary to their right to freedom of movement;

(c)

Is contrary to their right to freedom of thought, conscience and religion in that

they have been targeted because of their religion and belief, in breach of article 18 of the

Universal Declaration of Human Rights and article 18 of the Covenant;

(d)

Is contrary to their right to freedom of opinion and expression, as it is based

upon their religion, in breach of article 19 of the Universal Declaration of Human Rights and

article 19 of the Covenant;

(e)

Is contrary to their right to freedom of peaceful assembly and association given

that their detention is based upon their membership of the Islamic community in China, in

breach of articles 20, 21 and 22 of the Covenant;

(f)

Is in breach of article 27 of the Covenant, which provides that: “In those States

in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities

shall not be denied the right, in community with the other members of their group, to enjoy

their own culture, to profess and practise their own religion, or to use their own language.”

20.

It is further argued by the source that the above-mentioned individuals have not been

granted a fair trial with independent representation and that therefore their right to a fair trial

has not been observed, in contravention of article 9 of the Universal Declaration of Human

Rights and article 9 of the Covenant.

21.

The source maintains that they have not been granted a fair and public hearing by an

independent and impartial tribunal, as they are entitled to under article 10 of the Universal

Declaration of Human Rights and article 14 of the Covenant.

Response from the Government

22.

On 29 December 2021 the Working Group transmitted the allegations from the source

to the Government of China under its regular communications procedure. The Working

Group requested the Government to provide, by 1 March 2022, detailed information about

the current situation of Mr. Tohti, Ms. Qadir, Ametjan Abdurashid and Mohamed Abdurashid

and to clarify the legal provisions justifying their continued detention, as well as its

compatibility with the obligations of China under international human rights law. The

Working Group also called upon the Government of China to ensure their physical and

mental integrity.

23.

The Working Group regrets that it has received no reply from the Government, nor

did the Government avail itself of the opportunity to seek an extension to provide a reply in

accordance with paragraph 16 of the Working Group’s methods of work.

Discussion

24.

In the absence of a response from the Government, the Working Group has decided

to render the present opinion, in conformity with paragraph 15 of its methods of work.

A/HRC/WGAD/2022/6

25.

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

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

international law constituting arbitrary detention, the burden of proof should be understood

to rest upon the Government if it wishes to refute the allegations.2 In the present case, the

Government has chosen not to challenge the prima facie credible allegations made by the

source.

26.

The Working Group notes that the allegations in the present case concern a Chinese

family of four: father, mother and two adult sons, all belonging to the Uyghur minority and

living in Xinjiang Uyghur Autonomous Region in China. The source has alleged that

Ametjan Abdurashid was arrested and sentenced in 2016 and the rest of the family in 2017.

It is submitted that the grounds for their arrest and alleged trial, if such a trial ever took place,

remain unclear and it is alleged that Ametjan Abdurashid at least was coerced into “choosing”

from a list of offences. The four members of the family are allegedly being held

incommunicado in a so-called re-education camp in Xinjiang province.

27.

All these allegations were transmitted to the Government, which has chosen not to

address any of them.

28.

In relation to the source’s allegation that the four individuals are being held at a so-

called re-education camp, a point not contested by the Government, the Working Group

recalls that the deprivation of liberty is not only a question of legal definition, but also of fact.

If the person concerned is not at liberty to leave, then all the appropriate safeguards that are

in place to guard against arbitrary detention must be respected and the right to challenge the

lawfulness of detention before a court afforded to the individual.3 Moreover, the Working

Group recalls its visit to China in 1997 and its follow up visit in 2004, and notes that during

both missions it visited re-education camps, recognizing them as places of deprivation of

liberty.4

29.

The Working Group therefore concludes that the re-education camp where the four

individuals are being held, is without a doubt a place of detention, as it is clear that they are

there against their will and are unable to leave.

30.

In making this finding the Working Group also recalls the recent follow-up report to

the joint study on global practices in relation to secret detention in the context of countering

terrorism by the Special Rapporteur on the promotion and protection of human rights and

fundamental freedoms while countering terrorism. 5 In her report the Special Rapporteur

specifically notes the internment of Uyghurs in “re-education camps” and “reiterates and

highlights ongoing concerns about the conditions in such facilities including the practice of

‘re-education’ which impinges on the most fundamental of rights”.6

31.

The Working Group is disturbed at the exceptionally serious and uncontested

allegations presented to it and will address them according to the categories it has adopted.

Category I

32.

The Working Group observes that all four members of the family were arrested in

2016 or 2017 but the source has been unable to establish whether the requisite arrest warrants

were presented at the time. It is also unclear whether they were informed of the reasons for

their respective arrests although the Working Group doubts this, given that Ametjan

Abdurashid at least was coerced into “choosing” from a list of offences. These allegations

were put to the Government, but it has chosen not to contest them.

33.

In these circumstances, the Working Group concludes that the arrest of Ametjan

Abdurashid at least took place in breach of article 9 of the Universal Declaration of Human

Rights. The uncontested submission that he was coerced into “choosing” his offence makes

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

3 A/HRC/36/37, para. 56.

4 See E/CN.4/1998/44/Add.2 and E/CN.4/2005/6/Add.4, para. 54 in particular.

5 A/HRC/49/45.

6 Para. 33.

A/HRC/WGAD/2022/6

it clear that the authorities did not have a clear legal basis for his arrest and subsequent

detention nor that they notified him of the charges against him.

34.

Moreover, according to the source, all four members of the family have been held

incommunicado, another very serious allegation not contested by the Government. As the

Working Group has stated, holding persons incommunicado violates their right to challenge

the lawfulness of detention before a court under article 9 of the Universal Declaration of

Human Rights. 7 Judicial oversight of detention is a fundamental safeguard of personal

liberty8 and is essential in ensuring that detention has a legal basis. Given that Mr. Tohti, Ms.

Qadir and Ametjan and Mohamed Abdurashid were unable to challenge their detention

before a court, their right to an effective remedy under article 8 of the Universal Declaration

of Human Rights was violated. They were also placed outside the protection of the law, in

violation of their right to be recognized as a person before the law under article 6 of the

Universal Declaration of Human Rights.

35.

In that regard, the Working Group wishes to specifically emphasize its findings

following its visit to China in 2004, in which it which clearly stated: “The fact that the legal

system of China classifies re-education through labour as an administrative deprivation of

liberty as opposed to judicial deprivation of liberty governed by criminal law, does not affect

China’s obligation to ensure judicial control over this form of deprivation of liberty.”9

36.

The Working Group also observes that all four individuals appear to be in de facto

indefinite detention in a so-called re-education camp. Such a situation, as clearly stipulated

by the Working Group in its deliberation No. 4, is inherently arbitrary, in violation of article

9 of the Universal Declaration of Human Rights.

37.

The Working Group therefore concludes that the arrest and subsequent detention of

Mr. Tohti, Ms. Qadir and Ametjan and Mohamed Abdurashid are arbitrary and fall under

category I.

Category III

38.

The Working Group notes that very little appears to be known about the trial

proceedings against Mr. Tohti, Ms. Qadir and their sons. The charges against them are

unknown and the dates of their trials, as well as details of those proceedings, if they ever took

place, are equally unknown. The Government had an opportunity to clarify all this, but it

chose not to do so.

39.

In these circumstances, noting the opacity of the proceedings as well as the findings

above concerning the “choosing” of offences, the Working Group considers that Mr. Tohti,

Ms. Qadir, Ametjan Abdurashid and Mohamed Abdurashid were deprived of their right to a

fair and public hearing by an independent and impartial tribunal in violation of their rights

under article 10 of the Universal Declaration of Human Rights. The fact that to date, some

six and seven years after their detention, family members have been unable to find out

anything about their respective trials is a striking testament to this.

40.

Moreover, the Working Group notes that the source has stated, and the Government

does not contest, that Ametjan Abdurashid at least was forced to “choose” from a list of

offences and coerced into signing an admission of guilt. The Working Group considers that

this amounted to a violation of his rights under articles 10 and 11 of the Universal Declaration

of Human Rights.

41.

Finally, the source has submitted that all four individuals were deprived of

independent representation during their trials, another allegation not contested by the

Government. The Working Group recalls that all persons deprived of their liberty have the

right to legal assistance by a counsel of their choice at any time during their detention,

including immediately after their apprehension, and such access must be provided without

7 See opinions No. 45/2017, No. 46/2017, No. 35/2018, No. 9/2019, No. 44/2019, No. 45/2019, No.

15/2020, No. 16/2020 and No. 36/2020.

8 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone

Deprived of Their Liberty to Bring Proceedings Before a Court, principle 3.

9 E/CN.4/2005/6/Add.4, para. 54.

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delay.10 The right to legal assistance is an essential element of the right to a fair trial, as it

serves to ensure that the principle of equality of arms is duly observed.11 The Working Group

therefore finds a breach of articles 10 and 11 of the Universal Declaration of Human Rights.

42.

Noting all of the above, the Working Group concludes that the detention was thus

arbitrary and falls under category III. In making these findings the Working Group is

especially mindful of its conclusions related specifically to re-education camps after its

follow-up mission to China in 200412 and the absence of a reply from the Government in the

present case.

Category V

43.

The Working Group notes that it is not disputed that Mr. Tohti, Ms. Qadir, Ametjan

Abdurashid and Mohamed Abdurashid all belong to the Uyghur minority in the Xinjiang

Uyghur Autonomous Region of China. The source has submitted, and the Government has

chosen not to contest, that they were arrested and remain detained owing to their belonging

to the Uyghur minority and being of the Muslim faith.

44.

The Working Group recalls the recent follow-up report on the joint study on global

practices in relation to secret detention in the context of countering terrorism by the Special

Rapporteur on the promotion and protection of human rights and fundamental freedoms while

countering terrorism. In her report, the Special Rapporteur details the “practices of arbitrary

mass and secret detention with other serious violations of international law directed at the

Uighurs” and records the “ongoing flow of credible information pointing to a sustained

practice of mass arbitrary detention”.13

45.

In the absence of an explanation by the Government as to the reasons for the arrest

and detention of Mr. Tohti, Ms. Qadir and their sons, or any rebuttal of the very serious

allegations presented by the source, the Working Group concludes that the arrest and

detention of the four individuals was based on discrimination on the basis of their belonging

to the Uyghur minority and being of Muslim faith, in violation of article 2 of the Universal

Declaration of Human Rights.

46.

The Working Group also notes the uncontested allegations by the source that all four

individuals were arrested and detained because some of their family members live abroad

and some of them work with Uyghur language issues. These allegations further reinforce the

findings set out above that the arrest and detention of the four individuals were based on

discrimination.

47.

The Working Group therefore finds the detention of Mr. Tohti, Ms. Qadir, Ametjan

Abdurashid and Mohamed Abdurashid arbitrary, falling under category V. The Working

Group refers the present case to the Special Rapporteur on minority issues and the Special

Rapporteur on freedom of religion or belief for further consideration.

Concluding remarks

48.

The Working Group is disturbed at the total secrecy which appears to surround the

fate and whereabouts of Mr. Tohti, Ms. Qadir, Ametjan Abdurashid and Mohamed

Abdurashid. Their family members abroad have been unable to establish the exact details of

their arrests and trials or their exact whereabouts. The Human Rights Council in its resolution

37/3 stressed that no one should be held in secret detention and called upon States to

investigate all alleged cases of secret detention, including on the pretext of countering

terrorism.14 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

10 A/HRC/45/16, paras. 51–52; A/HRC/30/37, principle 9 and guideline 8. See also the Basic Principles

on the Role of Lawyers, paras. 16–22.

11 See, for example, opinions No. 35/2019 and No. 76/2021.

12 E/CN.4/2005/6/Add.4, paras. 54–59.

13 A/HRC/49/45, para. 33.

14 See also A/HRC/13/42, paras. 18–23.

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in rule 1 of United Nations Standard Minimum Rules for the Treatment of Prisoners (the

Nelson Mandela Rules).

49.

In its 30-year history, the Working Group has found China in violation of its

international human rights obligations in numerous cases.15 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.16

50.

The Working Group would welcome the opportunity to conduct a country visit to