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A/HRC/WGAD/2023/38

Opinion No. 38/2023 concerning Maimaiti Abulaiti (China)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2023-09-01 · en UN

Opinion; Subjects: CHINA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.23-17787 (E) 260923 260923

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-seventh session,

28 August–1 September 2023

Opinion No. 38/2023 concerning Maimaiti Abulaiti (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 16 May 2023 the Working Group

transmitted to the Government of China a communication concerning Maimaiti Abulaiti. 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/2023/38

General Assembly

Distr.: General

27 September 2023

Original: English

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1.

Submissions

(a)

Communication from the source

4.

Maimaiti Abulaiti is a citizen of China, born on 16 January 1980. Mr. Abulaiti is of

Uighur ethnicity. He is a businessman and a store owner. He usually resides in Wensu

County, Xinjiang Uighur Autonomous Region. He is also a person with a disability and a

member of a religious minority.

5.

Beginning in 2010, Mr. Abulaiti served as an assistant to the imam in the local mosque

during his free time. At the time, that activity was approved by the Government. However,

in 2016, Mr. Abulaiti stopped praying, reportedly because of the new oppressive policies by

the Government.

6.

The source explains that the authorities considered Mr. Abulaiti as a religious person

not registered by the Government, an unauthorized imam. During Ramadan in 2015,

Mr. Abdulaiti was invited to a private residence for Iftar, along with his imam and about

15 other members of the local mosque. After Iftar, they prayed together. Three days after that

gathering, the police interrogated all those involved and arrested Mr. Abulaiti and the imam.

The authorities reportedly stated that Mr. Abulaiti and the other arrested individual were the

leaders of the group and had prayed illegally in a private residence outside the mosque.

However, no warrant, decision or written reasons for Mr. Abulaiti’s detention were presented

at the time.

7.

After the arrest, the authorities from Wensu County National Insurance Brigade were

presented with documents related to Mr. Abulaiti’s health condition and with his psychiatric

disabilities certificate.2 Mr. Abulaiti was released after being detained in Wensu County

Detention Centre for 30 days.

8.

The source states that, on 10 January 2018, Mr. Abulaiti was arrested for the second

time by the local police authorities, without any charges or an arrest warrant. He was released

after three days of interrogation.

9.

On 20 January 2018, Mr. Abulaiti was arrested yet again, at his home in Wensu

County by police officers from Wensu Tuo Feng Community Police Station. The officers did

not show a warrant or other decision by a public authority, nor did they give any official

reasons for Mr. Abulaiti’s arrest.

10.

The source believes that Mr. Abulaiti was arrested because of his arrest record from

2015. The source submits that, even though Mr. Abulaiti stopped praying in the mosque after

his first arrest and announced that he was stopping all his religious activity, the Government

detains members of the Uighur community based on their past record, dating as far back as

10 years. For instance, those who prayed in a corridor of a hospital or in a mosque located in

a city other that of their residence are considered as showing signs of extremism.

11.

After Mr. Abulaiti’s arrest on 20 January 2018, he was held in incommunicado

detention. The authorities have reportedly concealed both the reasons for Mr. Abdulaiti’s

arrest and his whereabouts. One month following his arrest, Mr. Abulaiti’s family submitted

information about his earlier hospitalization and treatment history to Wensu County Public

Security Bureau. However, the authorities did not respond. Sometime in 2020, Mr. Abulaiti’s

family was able to see him by means of a video link at an official location specially designated

for video calling. However, no information was given about his location or the reasons for

his detention at the time.

12.

The source states that, on 11 April 2023, the authorities provided official information

about Mr. Abulaiti’s detention in response to the communication of the Working Group on

Enforced or Involuntary Disappearances. In the reply, the Government confirmed that, on

22 April 2018, Mr. Abulaiti had been sentenced by the People’s Court in accordance with the

law to fixed-term imprisonment of 16 years and 10 months for the crimes of inciting ethnic

2 The source notes that Mr. Abdulaiti was hospitalized over a decade ago for a mental health condition

and was treated for one month in Xinjiang public hospital No. 4 in Urumqi. Since then, he has held a

psychiatric disabilities certificate (second degree, issued by the Wensu County Disabled Persons’

Federation).

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hatred and discrimination and of assembling a crowd to disturb the social order. According

to the authorities, Mr. Abulaiti was currently imprisoned serving that sentence. He was in

good physical condition and all his rights were guaranteed in accordance with the law.

13.

The source notes, however, that no information about which prisons Mr. Abulaiti was

and is being held in or any details about his health have been provided. The source believes

that Mr. Abulaiti was initially held in the Detention Center of Wensu County for the purpose

of “re-education”. However, it is unknown where he was imprisoned after his sentencing.

Furthermore, the source notes that Mr. Abulaiti’s family was not informed about the trial and

that Mr. Abulaiti has no lawyer.

14.

The source recalls that Mr. Abulaiti has a history of a mental health condition and

asserts that that condition could be worsened by detention in prison.

15.

The source submits that Mr. Abulaiti’s detention is arbitrary. It asserts that

Mr. Abulaiti is deprived of his liberty on the basis of his ethnicity and religious affiliation,

noting the governmental policy of curbing liberties of Uighurs because of their identity and

religious beliefs.

(b)

Response from the Government

16.

On 16 May 2023, the Working Group transmitted the allegations from the source to

the Government under its regular communications procedure. The Working Group requested

the Government to provide, by 17 July 2023, detailed information about the current situation

of Mr. Abulaiti and to clarify the legal provisions justifying his continued detention, as well

as its compatibility with the obligations of China under international human rights law, and

in particular with regard to the treaties ratified by the State.

17.

The Working Group regrets that the Government did not submit a reply or seek an

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

2.

Discussion

18.

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.

19.

In determining whether Mr. Abulaiti’s detention is arbitrary, the Working Group has

regard to the principles established in its jurisprudence to deal 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.3 In the present case, the Government has chosen not to challenge the

prima facie credible allegations made by the source.

20.

The Working Group reaffirms that States have the obligation to respect, protect and

fulfil all human rights and fundamental freedoms, including the liberty of person, and that

any national law allowing deprivation of liberty should be made and implemented in

conformity with the relevant international standards set forth in the Universal Declaration of

Human Rights and other applicable international and regional instruments.4 Consequently,

even if the detention is in conformity with national legislation, regulations and practices, the

Working Group is entitled and obliged to assess the circumstances of the detention and the

law itself to determine whether such detention is also consistent with the relevant provisions

of international human rights law.5

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

4 General Assembly resolution 72/180; and Human Rights Council resolutions 41/2, 41/6, para. 5 (b),

41/10, para. 6, 41/17, 43/26, 44/16, 45/19, 45/20, 45/21 and 45/29. See also opinions No. 41/2014,

para. 24; No. 18/2019, para. 24; No. 36/2019, para. 33; No. 42/2019, para. 43; No. 51/2019, para. 53;

No. 56/2019, para. 74; No. 76/2019, para. 36; No. 6/2020, para. 36; No. 13/2020, para. 39;

No. 14/2020, para. 45; and No. 32/2020, para. 29.

5 Opinions No. 1/1998, para. 13; No. 82/2018, para. 25; No. 36/2019, para. 33; No. 42/2019, para. 43;

No. 51/2019, para. 53; No. 56/2019, para. 74; No. 76/2019, para. 36; No. 6/2020, para. 36;

No. 13/2020, para. 39; No. 14/2020, para. 45; and No. 32/2020, para. 29.

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21.

By way of preliminary observation, the Working Group notes that the allegations in

the present case concern an individual from the minority Uighur ethnicity in the Xinjiang

Uighur Autonomous Region in China. Although the source has not provided full particulars

and has not classified the allegations according to the usual categories used by the Working

Group, it is evident that the allegations raised are grave and can be easily classified into the

Working Group’s categories.

22.

The Working Group recalls the assessment of human rights concerns in the Xinjiang

Uighur Autonomous Region in China by the Office of the United Nations High

Commissioner for Human Rights (OHCHR), in which the Office documented the failure of

the authorities to provide any information concerning the detention of individuals belonging

to the Uighur minority and the near impossibility of family members or others to ascertain

the fate of detainees:

While some interviewees seemed to know or suspect that family members had been

taken to a VETC [Vocational Education and Training Centres] 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.6

23.

Indeed, the Special Rapporteur on the promotion and protection of human rights and

fundamental freedoms while countering terrorism has highlighted the ongoing flow of

credible information pointing to a sustained practice of mass arbitrary detention of Uighurs

in the Xinjiang Uighur Autonomous Region.7 Lastly, the Working Group itself has received

similar information regarding the detention of Uighurs in the Xinjiang Uighur Autonomous

Region.8

24.

Notwithstanding the fact that the Government has chosen not to challenge the prima

facie credible allegations made by the source, the Working Group notes that official

information about Mr. Abulaiti’s detention was provided by the Government on 11 April

2023 in response to a communication of the Working Group on Enforced or Involuntary

Disappearances. The Government confirmed that, on 22 April 2018, Mr. Abulaiti had been

sentenced by the People’s Court in accordance with the law to fixed-term imprisonment for

16 years and 10 months for the crimes of inciting ethnic hatred and discrimination and of

assembling a crowd to disturb the social order. According to the authorities, Mr. Abulaiti is

currently imprisoned, serving that sentence.

(a)

Category I

25.

From the information supplied by the source, which has not been contested by the

Government, none of the arrests of Mr. Abulaiti were made on the basis of an arrest warrant

and no information on the charges against him was provided; the arrests were followed by

confinement and incommunicado detention.

26.

More specifically, the source has explained that Mr. Abulaiti was arrested on three

occasions. The first arrest was in 2015, during Ramadan, three days after he had been invited

to a private residence for Iftar where he had prayed together with others. However, no arrest

warrant or reasons for the arrest were furnished on that occasion. He was released after being

detained in Wensu County Detention Centre for 30 days.

27.

The second arrest of Mr. Abulaiti by the local police authorities was on 10 January

2018. Similarly, no arrest warrant and no information on the charges he faced were provided.

He was released after three days of interrogation. The third arrest happened at his home on

20 January 2018. Again, no warrant was shown and no reason was furnished for the arrest.

Following that arrest, he was subject to incommunicado detention, with his family only being

6 OHCHR, “Assessment of human rights concerns in the Xinjiang Uyghur Autonomous Region,

People’s Republic of China”, para. 132.

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

8 See, for example, opinion No. 6/2022.

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able, sometime later that year, to see him by means of a video link at an official location

specially designated for video calling.

28.

The Working Group has consistently stated that, for a deprivation of liberty to be

justified, it must have a legal basis. It is not sufficient for there to be a national law or practice

authorizing the arrest and detention of a suspect. The authorities must invoke a legal basis

consistent with international human rights standards, through an arrest warrant, and apply it

to the circumstances of the case. 9 This does not appear to have been the case with

Mr. Abulaiti.

29.

International human rights law requires that arrests be based on a duly issued arrest

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

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

prohibition of arbitrary deprivation under articles 3 and 9 of the Universal Declaration of

Human Rights, as well as principles 2, 4 and 10 of the Body of Principles for the Protection

of All Persons under Any Form of Detention or Imprisonment.

30.

The Working Group has consistently maintained that the practice of arresting persons

without a warrant renders their detention arbitrary.10 The Working Group reiterates that any

deprivation of liberty without a valid arrest warrant, as in the present case, is arbitrary and

lacks legal basis and is therefore arbitrary under category I.

31.

The Working Group notes the unrebutted submission of the source that, following his

third arrest, Mr. Abulaiti was kept in incommunicado detention for an unspecified period

until his family was able to communicate with him by means of a video link. During that

period, he was not brought before a competent judicial authority. He had no access to a lawyer

or his family.

32.

International standards set out in the Working Group’s jurisprudence prescribe that an

arrested person is to be brought before a judge within 48 hours.11 The Working Group finds

that, in failing to bring Mr. Abulaiti before a judicial authority promptly, the Government

violated articles 3 and 9 of the Universal Declaration of Human Rights and principles 11, 37

and 38 of the Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment.12

33.

Moreover, the Working Group has consistently asserted that holding a person at a

secret, undisclosed location and in circumstances unknown to the person’s family violates

that person’s right to contest the legality of his or her detention before a court or tribunal.

Judicial oversight of any detention is a central safeguard for personal liberty and is critical in

ensuring that detention has a legitimate basis. Mr. Abulaiti was unable to challenge his

9 Opinions No. 93/2017, para. 44; No. 10/2018, paras. 45 and 46; No. 36/2018, para. 40; No. 46/2018,

para. 48; No. 9/2019, para. 29; No. 32/2019, para. 29; No. 33/2019, para. 48; No. 44/2019, para. 52;

No. 45/2019, para. 51; No. 46/2019, para. 51; No. 65/2019, para. 59; No. 71/2019, para. 70;

No. 72/2019, para. 40; No. 82/2019, para. 74; No. 6/2020, para. 39; No. 11/2020, para. 37;

No. 13/2020, para. 46; No. 14/2020, para. 49; No. 31/2020, para. 40; No. 32/2020, para. 32;

No. 33/2020, paras. 53 and 71; and No. 34/2020, para. 45.

10 Opinions No. 1/1993, paras. 6 and 7; No. 3/1993, paras. 5 and 6; No. 4/1993, para. 6; No. 5/1993,

paras. 6, 8 and 9; No. 27/1993, para. 6; No. 30/1993, para. 14; No. 36/1993, para. 8; No. 43/1993,

para. 6; and No. 44/1993, paras. 6 and 7. For more recent jurisprudence, see opinions No. 38/2013,

para. 23; No. 48/2016, para. 48; No. 21/2017, para. 46; No. 63/2017, para. 66; No. 76/2017, para. 55;

No. 83/2017, para. 65; No. 88/2017, para. 27; No. 93/2017, para. 44; No. 3/2018, para. 43;

No. 10/2018, para. 46; No. 26/2018, para. 54; No. 30/2018, para. 39; No. 38/2018, para. 63;

No. 47/2018, para. 56; No. 51/2018, para. 80; No. 63/2018, para. 27; No. 68/2018, para. 39;

No. 82/2018, para. 29; No. 6/2020, para. 40; No. 11/2020, para. 38; No. 13/2020, para. 47;

No. 14/2020, para. 50; No. 31/2020, para. 41; No. 32/2020, para. 33; No. 33/2020, para. 54; and

No. 34/2020, para. 46.

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

No. 11/2019, para. 63; No. 20/2019, para. 66; No. 26/2019, para. 89; No. 30/2019, para. 30;

No. 36/2019, para. 36; No. 42/2019, para. 49; No. 51/2019, para. 59; No. 56/2019, para. 80;

No. 76/2019, para. 38; No. 82/2019, para. 76; No. 6/2020, para. 45; No. 14/2020, para. 53;

No. 31/2020, para. 45; No. 32/2020, para. 38; No. 33/2020, para. 75; and No. 34/2020, para. 51.

12 See also articles 14 (1) and (5) and 23 of the Arab Charter on Human Rights.

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detentions before a court. Consequently, his right to an effective remedy under article 8 of

the Universal Declaration of Human Rights was violated.

34.

The act of keeping a detainee at a location unknown to their families and lawyers

entails a wilful refusal to disclose the fate or whereabouts of the persons concerned or to

acknowledge their detention. The detention thus lacks any valid legal basis under those

circumstances and is inherently arbitrary as it places the person outside the protection of the

law, in violation of article 6 of the Universal Declaration of Human Rights. The

Government’s failure to provide notification of the arrest and location of detention to the

family of Mr. Abulaiti also violated principle 16 (1) of the Body of Principles for the

Protection of All Persons under Any Form of Detention or Imprisonment.

35.

For the reasons set out above, the Working Group finds that the Government failed to

establish or assign a legal basis for Mr. Abulaiti’s detention. His detention is thus arbitrary

under category I.

(b)

Category II

36.

Although the source has not specifically argued that the deprivation of liberty of

Mr. Abulaiti resulted from the exercise of the rights or freedoms guaranteed by the Universal

Declaration of Human Rights and is thus arbitrary under category II, it is clear from the

narration of the events preceding his arrest and detention that the actions against him were

based on his religious beliefs and activities.

37.

The source explains that, in 2016, Mr. Abulaiti stopped praying because of the

government policies under which he was considered an unregistered religious person, also

known as a unauthorized imam. His first arrest, in 2015, together with others, was reportedly

because they had prayed illegally in a private residence outside the mosque.

38.

The source believes that Mr. Abulaiti’s subsequent arrests were motivated by his

arrest record from 2015. The source submits that, even though Mr. Abulaiti stopped praying

in the mosque after his first arrest and announced that he was stopping all his religious

activity, the authorities detain members of the Uighur community based on their past record

dating as far back as 10 years.

39.

Freedom of thought, conscience and religion, including the freedom to change religion

or belief and the freedom, either alone or in community with others and in public or private,

to manifest religion or belief in teaching, practice, worship and observance, is a fundamental

human right, enshrined in article 18 of the Universal Declaration of Human Rights. The

Government must respect, protect and fulfil the right to practise religion, including religions

that are not in accordance with its official policy, and to think and manifest personal

convictions at odds with the official ideology, under the peremptory norms (jus cogens) of

customary international law.13

40.

In the light of the above, the Working Group finds the allegations presented to be

credible and once again highlights the failure of the Government to respond to them, despite

being given an opportunity to do so. The detention of Mr. Abulaiti is thus arbitrary, in

contravention of article 18 of the Universal Declaration of Human Rights and falling under

category II.

(c)

Category III

41.

The Working Group notes that, while very little information is provided by the source

concerning the circumstances of Mr. Abulaiti’s detentions, even less is known about the trial

proceedings against him. In a reply provided to the Working Group on Enforced or

Involuntary Disappearances, the Government stated that Mr. Abulaiti had been sentenced by

the Peoples’ Court to a custodial sentence of 16 years and 10 months, while giving no details

of the proceedings or the manner in which fair trial guarantees had been respected. In fact,

the Working Group notes that the source was also unable to provide any details concerning

the arrests of Mr. Abulaiti, and whether he had in fact stood trial.

13 See opinions No. 76/2017, para. 62; No. 88/2017, para. 32; and No. 94/2017, para. 59.

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42.

In these circumstances, noting the complete opacity of the proceedings against

Mr. Abulaiti and noting also the failure of the Government to provide any clarification

concerning the trial proceedings, the Working Group considers that Mr. Abulaiti’s right to a

fair and public trial has been entirely disregarded. The Working Group recalls that, even in

cases when the trial of a person has concerned issues of national security or charges of

terrorism and extremism, it has rejected trial proceedings shrouded by secrecy and opacity

whereby no information is provided to the public, let alone family, concerning the charges

and trial proceedings, insisting that even in such cases trials must not only be impartial but

also appear to a reasonable observer to be impartial.14

43.

In the absence of any information concerning the charges against and trial of

Mr. Abulaiti, it is impossible to reconcile them with the most basic guarantees of fair trial.

Indeed, it is only the Government’s response to the Working Group on Enforced or

Involuntary Disappearances that suggests that trial proceedings may have taken place.

44.

In the present case, irrespective of what the charges against Mr. Abulaiti were, the

failure of the authorities to provide any information concerning them leads the Working

Group to conclude that the rights of Mr. Abulaiti under articles 9 and 10 of the Universal

Declaration of Human Rights were violated as he was denied the right to a fair and public

hearing by an independent and impartial tribunal, as well as the fundamental right of habeas

corpus. He was not able to challenge the legality of his detention or defend himself against

any accusations or charges.

45.

Noting all the above, the Working Group concludes that the detention of Mr. Abulaiti

violates articles 6, 8, 9, 10 and 11 (1) of the Universal Declaration of Human Rights and is

thus arbitrary, falling under category III.

(d)

Category V

46.

The Working Group notes that it is not disputed that Mr. Abulaiti belongs to the

Uighur minority in the Xinjiang Uighur Autonomous Region of China. The source has

submitted that he was arrested on the grounds of belonging to the Uighur minority and being

of Muslim faith.

47.

The Working Group recalls that the Special Rapporteur on the promotion and

protection of human rights and fundamental freedoms while countering terrorism has detailed

the practices of arbitrary mass and secret detention and other serious violations of

international law directed at the Uighurs and has recorded the ongoing flow of credible

information pointing to a sustained practice of mass arbitrary detention. 15 The Working

Group also recalls its own jurisprudence on the same subject16 and the assessment of human

rights concerns in the Xinjiang Uighur Autonomous Region in China by OHCHR.

48.

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

and detention of Mr. Abulaiti or any rebuttal of the very serious allegations presented by the

source, the Working Group concludes that the arrest and detention of Mr. Abulaiti were based

on discrimination on the basis of his belonging to the Uighur minority and to the Muslim

faith, in violation of articles 2, 7 and 9 of the Universal Declaration of Human Rights.

49.

The Working Group therefore finds that the detention of Mr. Abulaiti is 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.

(e)

Concluding remarks

50.

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

and whereabouts of Mr. Abulaiti. His family has been unable to establish the exact details of

his arrest and trial or his exact whereabouts. Indeed, it is only the Government’s response to

14 Opinion 78/2021, para. 97.

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

16 See, for example, opinions No. 6/2022 and No. 88/2022.

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the Working Group on Enforced or Involuntary Disappearances that provides some

information, as scarce as it is, concerning his fate and whereabouts.

51.

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

international human rights obligations in over 90 cases.17 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.18

52.

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

China. Given that a significant period of time has passed since its last visit to China, in

September 2004, the Working Group considers that it is an appropriate time to conduct

another visit. The Working Group looks forward to a positive response to its country visit

request of 15 April 2015.

3.

Disposition

53.

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

The deprivation of liberty of Maimaiti Abulaiti, being in contravention of articles 2,

3, 6, 7, 8, 9, 10, 11 (1) and 18 of the Universal Declaration of Human Rights, is

arbitrary and falls within categories I, II, III and V.

54.

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

remedy the situation of Mr. Abulaiti without delay and bring it into conformity with the

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

Rights.

55.

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

case, the appropriate remedy would be to release Mr. Abulaiti immediately and accord him

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

law.

56.

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

investigation of the circumstances surrounding the arbitrary deprivation of liberty of

Mr. Abulaiti and to take appropriate measures against those responsible for the violation of

his rights.

57.

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 further consideration.

58.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

17 Opinions No. 43/1993, No. 44/1993, No. 53/1993, No. 63/1993, No. 64/1993, No. 65/1993,

No. 66/1993, No. 46/1995, No. 19/1996, 30/1998, No. 1/1999, No. 2/1999, No. 16/1999,

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

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

No. 5/2002, No. 15/2002, No. 2/2003, No. 7/2003, No. 10/2003, No. 12/2003, No. 13/2003,

No. 21/2003, No. 23/2003, No. 25/2003, No. 26/2003, No. 14/2004, No. 15/2004, No. 24/2004,

No. 17/2005, No. 20/2005, No. 32/2005, No. 33/2005, No. 38/2005, No. 43/2005, No. 11/2006,

No. 27/2006, No. 41/2006, No. 47/2006, No. 32/2007, No. 33/2007, No. 36/2007, No. 21/2008,

No. 29/2008, No. 26/2010, No. 29/2010, No. 15/2011, No. 16/2011, No. 23/2011, No. 29/2011,

No. 7/2012, No. 29/2012, No. 36/2012, No. 51/2012, No. 59/2012, No. 2/2014, No. 3/2014,

No. 4/2014, No. 8/2014, No. 21/2014, No. 49/2014, No. 55/2014, No. 3/2015, No. 39/2015,

No. 11/2016, No. 12/2016, No. 30/2016, No. 43/2016, No. 46/2016, No. 4/2017, No. 5/2017,

No. 59/2017, No. 69/2017, No. 81/2017, No. 22/2018, No. 54/2018, No. 62/2018, No. 15/2019 and

36/2019.

18 Opinions, No. 1/2011, para. 21; No. 4/2012, para. 26; No. 38/2012, para. 33; No. 47/2012, paras. 19

and 22; No. 50/2012, para. 27; No. 60/2012, para. 21; and No. 35/2019, para. 65.

A/HRC/WGAD/2023/38

GE.23-17787

9

4.

Follow-up procedure

59.

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. Abulaiti has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Abulaiti;

(c)

Whether an investigation has been conducted into the violation of

Mr. Abulaiti’s rights and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of China with its international obligations in line with the

present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

60.

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.

61.

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.

62.

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.19

[Adopted on 29 August 2023]

19 Human Rights Council resolution 51/8, paras. 6 and 9.