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.23-04589 (E) 230323 240323
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-fifth session, 14–18 November 2022
Opinion No. 88/2022 concerning Qurban Mamut, Ekpar Asat and
Gulshan Abbas (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 51/8.
2.
In accordance with its methods of work, 1 on 29 June 2022 the Working Group
transmitted to the Government of China a communication concerning Qurban Mamut, Ekpar
Asat and Gulshan Abbas. The Government has not replied to the communication. 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/2022/88
General Assembly
Distr.: General
24 March 2023
Original: English
A/HRC/WGAD/2022/88
2
GE.23-04589
Submissions
Communication from the source
4.
Mr. Qurban Mamut is a citizen of China, born in 1950. His usual place of residence
is Urumqi, Xinjiang Uyghur Autonomous Region, China.
5.
According to the source, Mr. Mamut is a prominent Uyghur intellectual. Until 2011,
he was the editor-in-chief of a Uyghur-language magazine. In that position, he selected and
edited works by influential writers on Uyghur culture, history, politics and social
development for publication. After retiring, he continued to work part-time as editor-in-chief
at the Xinjiang Science and Technology Publishing House. In 2005, he signed a petition
advocating support for education in the Uyghur language.
6.
Mr. Ekpar Asat is a citizen of China. His usual place of residence is Urumqi, Xinjiang
Uyghur Autonomous Region, China. Mr. Asat was 29 years old at the time of his detention.
7.
The source submits that Mr. Asat is a businessman who founded a popular social
media platform featuring news, history, literature, columns, entertainment, music and legal
updates. He is also a philanthropist working for older people and children with disabilities.
8.
Ms. Gulshan Abbas is a citizen of China, born in 1962. Her usual place of residence
is Urumqi, Xinjiang Uyghur Autonomous Region, China. Ms. Abbas is a retired physician.
Arrest and detention of Qurban Mamut
9.
The source reports that Mr. Mamut was arrested, possibly in November, December or
possibly as early as March or April 2017. His family, who reside in the United States of
America, lost contact with Mr. Mamut in February 2017 after he travelled abroad to visit
them.
10.
It is believed that the arrest was carried out by officials of the Public Security Bureau
in the Xinjiang Uyghur Autonomous Region, possibly at Mr. Mamut’s residence in Urumqi.
It is unknown whether the authorities presented a warrant for his arrest or if there was any
other decision by a public authority with regard to Mr. Mamut. The legal basis for the arrest,
including the relevant legislation applied, also remains unknown.
11.
The source states that the Government has made very little information about Mr.
Mamut’s detention available to the public. In June 2020, during an interview with Radio Free
Asia, an official of the public administration of the government of the Xinjiang Uyghur
Autonomous Region revealed that he had been “classified as a ‘detained person’”. However,
the official provided no further details about the circumstances of the detention. When asked
whether Mr. Mamut was being held in a re-education camp or was serving a prison sentence,
the official declined to answer.
12.
The source believes that the main factor underlying Mr. Mamut’s detention was his
importance as an intellectual and cultural figure within the Uyghur community. It submits
that, after 2016, as part of a wider counter-terrorism operation, the authorities in Xinjiang
launched a campaign targeting intellectual, cultural and professional figures in Uyghur,
Kazakh and other minority communities. The source notes that, as at late 2021, at least 312
prominent intellectual and cultural figures had been detained, although the actual number is
believed to be higher.
13.
The source recalls that, after 2016, detentions of minority intellectuals often featured
previously sanctioned expressions of minority culture being used as potential evidence of
separatism or extremism. Several Uyghur education officials were sentenced to life
imprisonment or suspended death penalties for separatism, inciting ethnic hatred and
promoting religious extremism. In addition to criminal detention, other coercive measures
reportedly used against intellectuals included being held in re-education centres.
14.
The source believes that Mr. Mamut’s work as an editor of a publication on Uyghur
culture and social issues would therefore make him vulnerable to similar charges, with similar
penalties. Other factors potentially contributing to the decision of the authorities to detain
Mr. Mamut include his family connections abroad and his travels outside China, as a result
of which Uyghur and other individuals from ethnic minorities have also reportedly been
A/HRC/WGAD/2022/88
GE.23-04589
3
detained since 2016. A member of Mr. Mamut’s family works for Radio Free Asia and, prior
to being detained, he travelled to the United States to visit him.
15.
The source submits that Mr. Mamut’s detention falls under categories I, II, III and V.
Firstly, it is argued that his detention is not authorized under the Constitution of China nor
under domestic law, as there is no basis under either for detaining persons based on Uyghur
or other minority identity or for expressions of minority culture.
16.
Nonetheless, it is recalled that the authorities have published security policies that
prescribe detention in re-education centres and imprisonment for expressions of Uyghur and
other minority group identities in Xinjiang. According to the source, the existence of such
policies indicates that Mr. Mamut’s detention is directly connected to his work as an editor
of a prominent journal covering Uyghur culture and social issues. If the authorities have
detained Mr. Mamut as part of the implementation of the security policy in the area, under
which his past work as an editor would be considered evidence of his being a security threat,
the authorities have violated his rights to free expression and religious belief, as well as his
freedom to engage in scientific research, literary and artistic creation and other cultural
pursuits guaranteed under articles 35, 36 and 47 of the Constitution.
17.
The source further submits that the authorities have also violated article 33 of the
Constitution, guaranteeing citizens equality before the law and respect for their rights. If the
authorities have detained Mr. Mamut at a re-education centre, they will have done so in
violation of the article 37 of the Constitution, which guarantees personal freedom and
prohibits restriction of such freedom by any means other than by a decision of a people’s
procuratorate or by a decision of a people’s court. Detentions in re-education centres also
violate articles 8 (5) and 9 of the Law on Legislation (2015), under which restrictions of
freedom of person must be authorized by statutes passed by the National People’s Congress
or its standing committee. The source submits that detention in re-education centres is not
authorized by the Procuratorate or the People’s Courts, nor is qualifying national legislation
applied in the detention of persons for re-education.
18.
Moreover, the source argues that it is possible that Mr. Mamut may have been
criminally detained, prosecuted and sentenced on charges of separatism, inciting ethnic
hatred and promoting religious extremism and for being involved in the publication of
material concerning minority identity and history, given his work as the main editor of a
prominent magazine on Uyghur culture. It submits that such charges would be too vague to
qualify as lex certa and are too broadly applicable to regulate the conduct of individuals. The
source concludes that the authorities have deprived Mr. Mamut of liberty without a specific
legal basis and have thereby violated the due process of law upheld by the principle of legality
in article 11 (2) of the Universal Declaration of Human Rights.
19.
Furthermore, the source submits that Mr. Mamut’s detention is a result of the exercise
of his rights guaranteed by articles 7, 18, 19, and 20 of the Universal Declaration of Human
Rights and, as such, falls under category II. The source states that the authorities have
implemented a security policy of depriving persons of personal liberties for non-threatening
expressions of minority culture in Xinjiang, in particular when such expressions involve
collaboration with others and dissemination to a public audience.
20.
Mr. Mamut was the founder and chief editor of a prominent journal of Uyghur culture
and social issues, working with other Uyghur academic and cultural figures to publicize their
work to a wider audience in the Uyghur language. Consequently, his detention is likely
connected to his exercise of his rights under the Universal Declaration of Human Rights to
freedom of thought (as guaranteed by article 18), opinion and expression (article 19) and
association (article 20). Finally, given that the security policies in Xinjiang under which Mr.
Qurban is likely to have been detained are known to explicitly target Uyghur and other
individuals belonging to minority groups, the authorities have also violated article 7 of the
Universal Declaration of Human Rights, guaranteeing equal protection of the law.
21.
Moreover, it is argued that the authorities have not observed international norms
relating to Mr. Mamut’s right to a fair trial and that therefore his detention falls under
category III. In this context, it is noted that the authorities have not shown that Mr. Mamut’s
due process rights have been respected since he has been taken into custody. Mr. Mamut’s
family has not been able to access any official documentation concerning his detention. There
A/HRC/WGAD/2022/88
4
GE.23-04589
is no publicly available evidence that Mr. Mamut or his family have been shown an arrest
warrant, that he has had access to legal counsel while in custody, that he has been charged or
tried in a timely manner under impartial conditions, including with a fair opportunity to
mount a defence, or that his rights have been respected in any investigation the authorities
may be pursuing in his case.
22.
The source therefore concludes that the criminal detention and prosecution of Mr.
Mamut is in violation of his rights to due process and a fair and public hearing, as guaranteed
under article 10 of the Universal Declaration of Human Rights.
23.
Finally, the source argues that the authorities have deprived Mr. Mamut of his liberty
on discriminatory grounds based on his Uyghur ethnicity and his use of the Uyghur language.
It is likely that he has been detained for his work establishing a magazine on Uyghur cultural
and social issues.
Arrest and detention of Ekpar Asat
24.
The source reports that Mr. Asat was arrested, possibly on 7 April 2016, in the city of
Urumqi. Forces who are believed to have carried out the arrest are officials from the Public
Security Bureau in the Xinjiang Uyghur Autonomous Region. Mr. Asat’s family have never
been provided with an arrest warrant, a decision by a public authority or any other legal
documents pertaining to his arrest, despite requests for such documentation. The reasons and
the legal basis for the arrest of Mr. Asat therefore remain unknown.
25.
According to the source, Mr. Asat remains in detention. It is believed that he was held
in various educational and vocational camps or detention centres until he was transferred to
the Aksu Prefecture prison in January 2019 although it is still not known which authority
ordered Mr. Asat’s detention.
26.
The source states that Mr. Asat’s family has been unable to obtain any legal
documents related to his case and that thus even the nominal official reason for his arrest is
unknown. Nevertheless, the source recalls that Mr. Asat founded a popular social media
application that featured news, history, literature, columns, entertainment, music and legal
updates. Officials at the United States Embassy in Beijing encouraged Mr. Asat to apply for
the State Department’s International Visitor Leadership Programme, a professional exchange
programme run by the State Department, after he met with the Ambassador of the United
States to China in Xinjiang in 2014. The source therefore submits that Mr. Asat’s arrest could
be in connection with his application or related to his participation in the programme.
27.
The source also recalls that the authorities monitor Uyghurs abroad, those who have
been abroad and individuals with ties to individuals abroad. While it is possible that Mr. Asat
may have been targeted owing to his participation in the International Visitor Leadership
Programme, it is also possible that he was detained because he was Uyghur with experience
overseas, with overseas connections and with a family member living abroad.
28.
The authorities have claimed that Mr. Asat was sentenced to 15 years on the charge
of inciting ethnic hatred and ethnic discrimination. His family has had no evidence that a
lawyer was present at the trial, or indeed if there was a trial.
29.
The source submits that Mr. Asat’s detention is arbitrary falling under categories I, II,
III and V of the Working Group.
30.
Firstly, it submits that his detention is not authorized by the Constitution or domestic
law. Given the lack of legal documentation, it is highly likely that the detention and
subsequent arrest and indictment was not carried out with due respect for the provisions of
the Criminal Procedure Law (2018).
31.
Moreover, the source submits that Mr. Asat has been deprived of liberty as a result of
the exercise of his rights and freedoms guaranteed by articles 7, 18 and 19 of the Universal
Declaration of Human Rights and, as such, his detention falls under category II.
32.
The source recalls that Mr. Asat founded a social media application, was an
entrepreneur and, to some extent, was involved in promoting the Uyghur language. He also
had a track record of engaging in charitable activities, such as helping children with
disabilities and the elderly and providing children with access to education. Consequently,
A/HRC/WGAD/2022/88
GE.23-04589
5
his detention is likely to be connected to the exercise of his rights to freedom of thought,
opinion and expression, as guaranteed by articles 18 and 19 of the Universal Declaration of
Human Rights. Moreover, the authorities have also violated provisions under the article 7 of
the Universal Declaration of Human Rights guaranteeing equal protection of the law.
33.
It is further submitted that the authorities have not observed international norms
relating to Mr. Asat’s right to a fair trial and that therefore his detention falls under category
III. The source recalls that there is no evidence that the family of Mr. Asat received notice of
his arrest, that he was brought before a court to challenge the legality of the arrest or that he
ever had access to a lawyer of his choice.
34.
Finally, the source argues that the authorities have deprived Mr. Asat of his liberty for
discriminatory reasons based on his national and ethnic origin and his language, falling under
category V.
35.
In this context, the source states that it is likely that Mr. Asat was targeted as a Uyghur
who took part in the International Visitor Leadership Programme, for being a Uyghur who
had been abroad and who had overseas connections and/or for his prominence as a
businessman promoting social connections within the Uyghur community in the Uyghur
language.
Arrest and detention of Gulshan Abbas
36.
The source states that Ms. Abbas was last heard from on 10 September 2018 and that
her arrest is believed to have occurred on or around that date. The arrest is believed to have
been carried out by officials of the Public Security Bureau officials in the Xinjiang Uyghur
Autonomous Region, possibly from Ms. Abbas’s city of residence, Urumqi.
37.
The authorities have not shown an arrest warrant or other legal documents to the
family of Ms. Abbas. The family, as of the present date, did not know her whereabouts or the
conditions of her detention.
38.
The source notes that the authorities have not provided any information regarding the
circumstances, time or the legal basis of Ms. Abbas’s initial detention, or which authorities
detained her. It is believed that she was sent to a re-education centre. In December 2020, her
family learned that she was sentenced to 20 years on a charge of taking part in organized
terrorism, aiding terrorist activities and seriously disrupting social order.
39.
The spokesperson for the Ministry of Foreign Affairs has confirmed that she was
sentenced on the above charge. According to the statement issued by the Ministry, made on
31 December 2020, Ms. Abbas was imprisoned on charges of participating in terrorist
activities, aiding a terrorist organization and disrupting public order.
40.
The source submits that, as a retired physician, Ms. Abbas has never been involved in
any activity connected to terrorism, nor has she been involved in any terrorist organization.
It is therefore unclear to the source how the authorities determined this charge.
41.
It is believed that Ms. Abbas was deprived of liberty just days after a member of her
family, a Uyghur activist residing in the United States, made a speech alleging that Uyghurs
were being detained in Xinjiang. The family member has since been criticized in the official
media in China, which has accused her of being a separatist and spreading rumours.
42.
According to the source, it is likely that the detention of Ms. Abbas was caused by her
relative’s speech about the situation of Uyghurs. The source reiterates that the authorities
monitor Uyghurs abroad and target anyone who has ties to them. This, according to the
source, is one reason why many Uyghurs in the diaspora have relatives who have been
detained in China. Moreover, many Uyghur journalists and Uyghur activists have had family
members detained in an attempt by the authorities to stop their journalistic activities and
advocacy.
43.
The source further recalls that articles of the Criminal Procedure Law stipulate that
the authorities are required to notify the family of the reasons for detention and the place of
custody of a family member within 24 hours of detention unless there is no way to contact
them or it is a crime endangering national security or a crime related to terrorist activities
where notification might obstruct the investigation. It submits that the authorities have not
A/HRC/WGAD/2022/88
6
GE.23-04589
carried out the detentions in Xinjiang in accordance with due process and that detainees are
denied the right to legal counsel. Furthermore, trials and criminal processes in the Xinjiang
Uyghur Autonomous Region lack transparency. In 2021, information pertaining to almost all
cases related to ethnic minorities was removed from Government websites, making it more
difficult to find information on cases like that of Ms. Abbas.
44.
The source notes that although it is unknown whether Ms. Abbas has been sent to a
re-education centre, this form of detention does not comply with China’s domestic laws or
with international law, since the deprivation of liberty in re-education centres is not
specifically provided for by law.
45.
The source submits that the deprivation of liberty of Ms. Abbas is arbitrary and falls
under categories I, II, III and V.
46.
It argued, in relation to category I, that Ms. Abbas’s detention is not authorized by the
Constitution nor by domestic law. Given the lack of legal documentation provided to Ms.
Abbas’s family and the lack of publicly available information on her case, including any
criminal verdict, it is highly likely that the detention and subsequent arrest and indictment
were not carried out in accordance with the provisions of the Criminal Procedure Law.
47.
Moreover, it is submitted that Ms. Abbas has been deprived of liberty as a result of
the exercise of her rights and freedoms guaranteed by article 7 of the Universal Declaration
of Human Rights, which guarantees equal protection before the law. In this context, the
source reiterates that the security policy in Xinjiang under which Ms. Abbas has likely been
detained are known to target Uyghur and other minority individuals.
48.
Moreover, the source argues that the authorities have not observed international norms
relating to Ms. Abbas’s right to a fair trial. There is no evidence that the family received
notice of her arrest, that she was brought before a court to challenge the legality of the arrest
or that she ever had access to a lawyer of her choice.
49.
Finally, it is submitted that the authorities have deprived Ms. Abbas of her liberty for
discrimination based on her Uyghur ethnic origin and Uyghur language. Her detention is
therefore arbitrary, falling under category V.
Response from the Government
50.
On 29 June 2022, 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 29 August 2022, detailed information about the
current situation of Mr. Mamut, Mr. Asat and Ms. Abbas and to clarify the legal provisions
justifying their continued detention, as well as its compatibility with its obligations under
international human rights law. Moreover, the Working Group called upon the Government
to ensure their physical and mental integrity.
51.
The Working Group regrets that the Government did not submit a reply, nor did it
seek an extension in accordance with paragraph 16 of Working Group’s methods of work.
Discussion
52.
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.
53.
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.
54.
The Working Group notes that the allegations in the present case concern three
individuals from China, all belonging to the Uyghur minority in the Xinjiang Uyghur
2 A/HRC/19/57, para. 68.
A/HRC/WGAD/2022/88
GE.23-04589
7
Autonomous Region. The source has alleged that Mr. Mamut was arrested sometime in
March or April 2017 and that, in June 2020, the authorities of the Xinjiang Uyghur
Autonomous Region stated that he had been classified as a detained person. In relation to Mr.
Asat, it is submitted that he was detained at some time in April 2016 and that the authorities
subsequently claimed that he had been sentenced to 15 years in prison. Ms. Abbas was
allegedly detained in September 2018 and, in 2020, the authorities stated that she had been
sentenced to 20 years in prison. The source has been unable to provide any further details
concerning the circumstances of their respective arrests, the charges brought against them,
the trial proceedings or their current whereabouts.
55.
These allegations were all transmitted to the Government, which has chosen not to
address them.
56.
The Working Group regrets the failure of the Government to engage with it
constructively in providing responses to allegations concerning the detention of individuals
in the Xinjiang Uyghur Autonomous Region.3 The details of the detention of Mr. Mamut,
Mr. Asat and Ms. Abbas provided by the source are exceptionally scarce. Nevertheless, it is
alleged that the authorities confirmed that they have custody of these three individuals and
the Government has chosen not to address the submissions. In this regard, the Working Group
recalls the assessment of human rights concerns in the Xinjiang Uyghur Autonomous Region
of China issued by the Office of the United Nations High Commissioner for Human Rights
(OHCHR) in 2022, which documents the persistent failure of the authorities to provide any
information concerning the detention of individuals belonging to the Uyghur minority and
the near impossibility for their family members or others to ascertain the fate of the detainees:
“While some interviewees seemed to know or suspect that family members had been
taken to a VETC [Vocational Education and Training Centre] facility or another form
of detention, most remained unsure of the situation and, despite attempts at clarifying
the whereabouts with the authorities, their fate remained unknown. This lack of
knowledge and any contact has been particularly painful for families living at
geographical distance abroad and requires immediate clarification by the authorities”.4
57.
Furthermore, in the 2022 follow-up report5 on the joint study on global practices in
relation to secret detention in the context of countering terrorism, which was carried out in
2010, 6 the Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism highlighted “[T]he ongoing flow of
credible information pointing to a sustained practice of mass arbitrary detention” of Uyghurs
in the Xinjiang Uyghur Autonomous Region.7 The Working Group has also experienced
similarly scarce information concerning the detention of Uyghurs in the Xinjiang Uyghur
Autonomous Region.8
58.
In the light of the above, the Working Group finds the allegations presented to be
credible and highlights the failure of the Government to respond to them although it was
given an opportunity to do so.
i.
Category I
59.
The Working Group observes that Mr. Mamut was detained sometime in March or
April 2017; Mr. Asat sometime in April 2016; and Ms. Abbas in September 2018. The source
argues that there is no publicly available information regarding the reasons for their detention
though the authorities have acknowledged, at different times, having custody of the three
named individuals. However, to date, their exact whereabouts remains unclear. These
allegations were put to the Government, which chose not to contest them.
3 See, for example, opinion No. 6/2022.
4 OHCHR, Assessment of human rights concerns in the Xinjiang Uyghur Autonomous Region, para.
132, available at https://www.ohchr.org/sites/default/files/documents/countries/2022-08-31/22-08-31-
final-assesment.pdf.
5 A/HRC/49/45.
6 A/HRC/13/42.
7 A/HRC/49/45, para. 33.
8 See opinion No. 6/2022.
A/HRC/WGAD/2022/88
8
GE.23-04589
60.
Under these circumstances, the Working Group considers that Mr. Mamut, Mr. Asat
and Ms. Abbas have all been subjected to enforced disappearance insofar as they were
detained by agents of the State and their fate and whereabouts have been concealed since
then, thus placing them outside the protection of the law. The Working Group recalls that,
according to article 1 (2) of the Declaration on the Protection of All Persons from Enforced
Disappearance, enforced disappearance “constitutes a violation of the rules of international
law guaranteeing, inter alia, the right to recognition as a person before the law, the right to
liberty and security of the person and the right not to be subjected to torture and other cruel,
inhuman, or degrading treatment or punishment”. In particular, as the Working Group has
affirmed on numerous occasions, enforced disappearances are absolutely prohibited by
international law and constitute a particularly aggravated form of arbitrary detention.9
61.
Consequently, the Working Group finds that the detention of Mr. Mamut, Mr. Asat
and Ms. Abbas lacks legal basis, in violation of articles 3 and 9 of the Universal Declaration
of Human Rights. The Working Group further considers that the enforced disappearance of
Mr. Mamut, Mr. Asat and Ms. Abbas placed them outside the protection of the law, in
violation of article 6 of the Universal Declaration of Human Rights. Their detention is
therefore arbitrary under category I. The Working Group refers the present case to the
Working Group on Enforced or Involuntary Disappearances.
ii.
Category III
62.
The Working Group notes that while there is very little detail concerning the
circumstances surrounding the detention of Mr. Mamut, Mr. Asat and Ms. Abbas, even less
is known about the trial proceedings against them. In fact, the source has only been able to
submit with some certainty that Mr. Asat has been sentenced to 15 years and Ms. Abbas to
20 years. It appears that nothing is known about the sentencing of Mr. Mamut. The
Government had an opportunity to clarify this matter but has chosen not to do so.
63.
In these circumstances, noting the opacity of the proceedings against the three
individuals and the failure of the Government to provide any clarifications, the Working
Group considers that the right to a fair and public trial of the three individuals has been
violated. The Working Group recalls that even in cases where the trial of a person is
connected to issues of national security, it has rejected trial proceedings shrouded by secrecy
and opacity whereby absolutely no information concerning the charges and trial proceedings
is provided to the family, let alone made public, insisting that even in such cases, trials must
not only be impartial but must also appear impartial to a reasonable observer.10 In the present
case, the absence of any information concerning the trials of Mr. Mamut, Mr. Asat and Ms.
Abbas, who were all arrested well over five years ago, cannot be reconciled with the most
basic guarantees of a fair trial. In fact, it is unclear if they have indeed stood trial at all.
64.
In the present case, irrespective of the substance of the charges against Mr. Mamut,
Mr. Asat and Ms. Abbas, the failure of the authorities to provide any information whatsoever
concerning the proceedings against and trial of the three individuals leads the Working Group
to conclude that the rights of Mr. Mamut, Mr. Asat and Ms. Abbas under article 10 of the
Universal Declaration of Human Rights have been violated.
65.
Noting all the above, the Working Group concludes that the detention of the three
individuals was thus arbitrary and falls under category III. In making these findings the
Working Group emphasizes, in particular, the absence of any reply from the Government in
the present case and is mindful of its conclusions related specifically to re-education centres
following its 2004 follow-up mission to China:
“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”.11
9 See opinions No. 5/2020; No. 6/2020; No. 11/2020; No. 13/2020, No. 77/2020, No. 38/2021 and
No.25/2022.
10 Opinion No. 78/2021, para. 97.
11 E/CN.4/2005/6/Add.4, para. 54.
A/HRC/WGAD/2022/88
GE.23-04589
9
iii.
Category V
66.
The Working Group notes that it is not disputed that Mr. Mamut, Mr. Asat and Ms.
Abbas all belong to the Uyghur minority in the Xinjiang Uyghur Autonomous Region. The
source has submitted, and the Government has chosen not to contest, that they were arrested
and remain detained due their belonging to the Uyghur minority and being of the Muslim
faith.
67.
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.12 In that report the Special Rapporteur detailed “[P]ractices of arbitrary
mass and secret detention with other serious violations of international law directed at the
Uyghurs” and recorded the “ongoing flow of credible information pointing to a sustained
practice of mass arbitrary detention”.13 The Working Group also recalls its own jurisprudence
on the same subject.14
68.
In the absence of any explanation by the Government as to the reasons for the arrest
and detention of Mr. Mamut, Mr. Asat and Ms. Abbas or any rebuttal of the very serious
allegations presented by the source, the Working Group concludes that the arrest and
detention of the three individuals was discriminatory on the basis of their belonging to the
Uyghur minority and being of the Muslim faith, in violation of articles 2 and 7 of the
Universal Declaration of Human Rights.
69.
The Working Group therefore finds the detention of Mr. Mamut, Mr. Asat and Ms.
Abbas arbitrary under category V and refers the present case to the Special Rapporteur on
minority issues and to the Special Rapporteur on freedom of religion or belief for further
consideration.
iv.
Concluding remarks
70.
The Working Group is concerned about the total secrecy that appears to surround the
fate and whereabouts of Mr. Mamut, Mr. Asat and Ms. Abbas. Their families have been
unable to establish the exact details of their arrests, of the proceedings and/or trials against
them and of their current whereabouts. In its resolution 37/3, the Human Rights Council
stressed that no one shall be held in secret detention and called upon States to investigate all
alleged cases of secret detention, including under the pretext of countering terrorism.15 The
Working Group also 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, in accordance with rule 1
of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson
Mandela Rules).
71.
In its 30-year history, the Working Group has found China in violation of its
international human rights obligations in over 100 cases.16 The Working Group is concerned
that this indicates a systemic problem with arbitrary detention in China, which amounts to a
12 A/HRC/49/45.
13 Ibid., para. 33.
14 See, for example, opinion No. 6/2022.
15 Human Rights Council resolution 37/3, paras. 8–9; A/HRC/13/42, paras. 18–23.
16 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; see also opinions No. 30/1998, No. 1/1999, No. 2/1999, No. 16/1999, No.
17/1999, No. 19/1999, No. 21/1999, No. 8/2000, No. 14/2000, No. 19/2000, No. 28/2000, No.
30/2000, No. 35/2000, No. 36/2000, No. 7/2001, No. 8/2001, No. 20/2001, No. 1/2002, No. 5/2002,
No. 15/2002, No. 2/2003, No. 7/2003, No. 10/2003, No. 12/2003, No. 13/2003, No. 21/2003, No.
23/2003, No. 25/2003, No. 26/2003, No. 14/2004, No. 15/2004, No. 24/2004, No. 17/2005, No.
20/2005, No. 32/2005, No. 33/2005, No. 38/2005, No. 43/2005, No. 11/2006, No. 27/2006, No.
41/2006, No. 47/2006, No. 32/2007, No. 33/2007, No. 36/2007, No. 21/2008, No. 29/2008, No.
26/2010, No. 29/2010, No. 15/2011, No. 16/2011, No. 23/2011, No. 29/2011, No. 7/2012, No.
29/2012, No. 36/2012, No. 51/2012, No. 59/2012, No. 2/2014, No. 3/2014, No. 4/2014, No. 8/2014,
No. 21/2014, No. 49/2014, No. 55/2014, No. 3/2015, No. 39/2015, No. 11/2016, No. 12/2016, No.
30/2016, No. 43/2016, No. 46/2016, No. 4/2017, No. 5/2017, No. 59/2017, No. 69/2017, No.
81/2017, No. 22/2018, No. 54/2018, No. 62/2018, No. 15/2019 and No. 36/2019.
A/HRC/WGAD/2022/88
10
GE.23-04589
serious violation of international law. It 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.17
72.
The Working Group would welcome the opportunity to conduct a country visit to
China. Given that a significant period of time has passed since its last visit to China in
September 2004, it considers that it is an appropriate time to conduct another visit. The
Working Group looks forward to a positive response to its country visit request of 15 April
2015.
Disposition
73.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Mr. Qurban Mamut, Mr. Ekpar Asat and Ms. Gulshan
Abbas, being in contravention of articles 2, 3, 6, 7, 9 and 10 of the Universal
Declaration of Human Rights, is arbitrary and falls within categories I, III and V.
74.
The Working Group requests the Government of China to take the steps necessary to
remedy the situations of Mr. Mamut, Mr. Asat and Ms. Abbas without delay and to bring
their situations into conformity with the relevant international norms, including those set out
in the Universal Declaration of Human Rights.
75.
The Working Group considers that, taking into account all the circumstances of the
three cases, the appropriate remedy would be to release Mr. Mamut, Mr. Asat and Ms. Abbas
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. Mamut, Mr. Asat and Ms. Abbas.
76.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Mamut, Mr. Asat and Ms. Abbas and to take appropriate measures against those responsible
for the violation of their rights.
77.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Working Group on Enforced or Involuntary Disappearances, the
Special Rapporteur on minority issues and the Special Rapporteur on freedom of religion or
belief for appropriate action.
78.
The Working Group recommends that the Government accede to the International
Covenant on Civil and Political Rights.
79.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
80.
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. Mamut, Mr. Asat and Ms. Abbas have been released and, if so,
on what date.
(b)
Whether compensation or other reparations have been made to Mr. Mamut,
Mr. Asat and Ms. Abbas;
(c)
Whether an investigation has been conducted into the violation of the rights of
Mr. Mamut, Mr. Asat and Ms. Abbas and, if so, the outcome of the investigation;
17 See opinions No. 35/2019, para. 65; No. 1/2011, para. 21; No. 37/2011, para. 15; No. 38/2011, para.
16; No. 39/2011, para. 17; No. 4/2012, para. 26; No. 38/2012, para. 33; No. 47/2012, paras. 19 and
22; No. 50/2012, para. 27; and No. 60/2012, para. 21.
A/HRC/WGAD/2022/88
GE.23-04589
11
(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.
81.
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.
82.
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.
83.
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.18
[Adopted on 18 November 2022]
18 Human Rights Council resolution 51/8, paras. 6 and 9.