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.23-23231 (E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-eighth session, 13–17 November 2023
Opinion No. 77/2023 concerning Halemaimaiti Yiliyasi, Abudureheman
Kuerwanjiang, Mevlude Hilal and Paliden Yasheng (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 12 July 2023 the Working Group
transmitted to the Government of China a communication concerning Halemaimaiti Yiliyasi,
Abudureheman Kuerwanjiang, Mevlude Hilal and Paliden Yasheng. The Government
submitted a late response on 13 September 2023. 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/2023/77
General Assembly
Distr.: General
8 December 2023
Original: English
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1.
Submissions
(a)
Communication from the source
4.
Halemaimaiti Yiliyasi is a businessman and a citizen of China, born on 30 May 1984.
His usual place of residence is Ili Kazakh Autonomous Prefecture, Xinjiang Uighur
Autonomous Region.
5.
Abudureheman Kuerwanjiang is an architect and a citizen of China, born on 9 January
1977. His usual place of residence is Ili Kazakh Autonomous Prefecture, Xinjiang Uighur
Autonomous Region.
6.
Mevlude Hilal is a teacher and a citizen of Türkiye, born on 1 July 1986. Her usual
place of residence is Gulca (Yining), Xinjiang Uighur Autonomous Region.
7.
Paliden Yasheng is a housewife and a citizen of China, born on 8 May 1989. Her usual
place of residence is Aksu City, Xinjiang Uighur Autonomous Region.
(i)
Arrest and detention of Halemaimaiti Yiliyasi
8.
The source reports that until his arrest in 2017, Mr. Yiliyasi had his own successful
business. On 1 March 2017, Mr. Yiliyasi was arrested at his home by the authorities. No
warrant was shown to Mr. Yiliyasi by the authorities but he was reportedly told that he was
about to be transferred to a re-education camp. The legal basis for the arrest and the charges
against Mr. Yiliyasi have not been disclosed by the authorities and remain unknown.
Furthermore, the authorities did not disclose the length of the detention at the re-education
camp, with Mr. Yiliyasi initially believing that he would remain there for several days before
being allowed to return home.
9.
Mr. Yiliyasi is currently being detained incommunicado in one of the re-education
camps located in the Xinjiang Uighur Autonomous Region. According to the source, he has
been subjected to various forms of torture and ill-treatment.
10.
The source submits that Mr. Yiliyasi’s ongoing incommunicado detention in a re-
education camp is one of the emblematic cases of the alleged persecution against Uighurs
and constitutes violations of a number of his most fundamental rights under the Universal
Declaration of Human Rights.
(ii)
Arrest and detention of Abudureheman Kuerwanjiang
11.
The source reports that until his arrest in 2017, Mr. Kuerwanjiang worked as an
architect. In March 2017, Mr. Kuerwanjiang was arrested at his home by the authorities. No
warrant was shown to Mr. Kuerwanjiang by the authorities but he was reportedly told that he
was about to be transferred to a re-education camp. The legal basis for the arrest and the
charges against Mr. Kuerwanjiang have not been disclosed by the authorities and remain
unknown.
12.
Mr. Kuerwanjiang is currently being detained incommunicado in one of the re-
education camps located in the Xinjiang Uighur Autonomous Region. The exact location of
the camp remains unknown. Grave concerns exist with respect to the health of
Mr. Kuerwanjiang.
(iii)
Arrest and detention of Mevlude Hilal
13.
The source reports that Ms. Hilal, a native of the Xinjiang Uighur Autonomous
Region, undertook university studies in Türkiye and in 2011 graduated from the Istanbul
University School of Business. In 2012, she became a citizen of Türkiye and automatically
lost her Chinese citizenship in accordance with the relevant laws of China. Towards the end
of 2012, Ms. Hilal went back to the Xinjiang Uighur Autonomous Region for family reasons.
Given that she was fluent in the Chinese, English, Turkish and Uighur languages, Ms. Hilal
started working as a teacher at a private school and began a family life in the Xinjiang Uighur
Autonomous Region.
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14.
According to the source, Ms. Hilal was arrested for the first time at the end of 2018
and sent to one of the re-education camps in the Xinjiang Uighur Autonomous Region. She
was released in June 2019.
15.
On 12 July 2019, a month after her release, Ms. Hilal was arrested again by the
authorities at her home. No warrant was shown to Ms. Hilal by the authorities, but she was
reportedly told that she was about to be transferred to a re-education camp. The legal basis
for the arrest and the charges against Ms. Hilal have not been disclosed by the authorities and
remain unknown.
16.
The source reports that her family was not able get any information about her
whereabouts for three months. It later became known that she was detained in the camp in
Ciliyüzü. To date, the authorities have not provided information about Ms. Hilal’s current
place of detention or about her health and well-being. She continues to be deprived of her
liberty incommunicado.
17.
The source submits that Ms. Hilal’s ongoing incommunicado detention in a re-
education camp is one of the emblematic cases of the alleged persecution against Uighurs
and constitutes violations of a number of her most fundamental rights under the Universal
Declaration of Human Rights.
(iv)
Arrest and detention of Paliden Yasheng
18.
The source reports that Ms. Yasheng was arrested by the police in October 2016 at
her family home in Aksu City. No warrant was shown to Ms. Yasheng by the authorities. The
legal basis for the arrest and the charges against Ms. Yasheng have not been disclosed by the
authorities.
19.
In addition, the source reports that upon her arrest, Ms. Yasheng was subjected to
torture for two months at the detention centre. It is also reported that the police then requested
$35,000 from the family of Ms. Yasheng as a condition of her release. Ms. Yasheng was
released when that sum had been paid. She reportedly received continuous medical treatment
for three months after her release from custody.
20.
In April 2017, she was sentenced to 10 years of imprisonment, without a trial. She is
currently deprived of liberty at an unknown location.
21.
The source notes that a family member of Ms. Yasheng resides abroad. The rest of
her family, including her minor child, were almost all sent to re-education camps and are still
detained.
22.
The source reports that in the two re-education camps in Aksu City, the detainees have
been subjected to sexual violence, torture and forced sterilization. Grave concerns exist
regarding the life and health of Ms. Yasheng on the basis of these reports.
(v)
Legal analysis
23.
The source submits that detention of Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and
Ms. Yasheng, being in contravention of articles 2, 3, 6, 7, 8, 9, 10 and 11 (1) of the Universal
Declaration of Human Rights, is arbitrary and falls under categories I, III and V of the
Working Group.
24.
In relation to category I, the source recalls that it has been emphasized by the Working
Group that the principle of legality requires that laws be formulated with sufficient precision
so that the individual can access and understand the law and regulate his or her conduct
accordingly.2 Nevertheless, an arrest or detention may be authorized by domestic law and be
nonetheless arbitrary. The notion of “arbitrariness” is not to be equated with “against the law”
but must be interpreted more broadly to include elements of inappropriateness, injustice, lack
of predictability and lack of due process of law, as well as elements of reasonableness,
necessity and proportionality.3 With respect to the “re-education centres”, special procedure
2 Opinion No. 66/2021, para. 54.
3 Human Rights Committee, general comment No. 35 (2014), para. 12.
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mandate holders have stated that, due to their coercive character, these centres amount to
detention centres,4 notes the source.
25.
Moreover, it is recalled that the term “extremism” when operative as a criminal legal
category is irreconcilable with the principle of legal certainty and is therefore, per se,
incompatible with the exercise of certain fundamental human rights. 5 National law
authorizing and setting out the grounds and procedures for arrest and detention must conform
to international legal standards. Any deprivation of liberty outside the context of criminal
charges cannot amount to an evasion of the limits on the criminal justice system by providing
the equivalent of criminal punishment without applicable protections. The source submits
that the internment of persons of Uighur ethnicity, including the above-mentioned
individuals, is arbitrary since it is based on overbroad and notoriously vague
counter-terrorism legislation.
26.
The source further recalls that following its visits to China in 1997 and 2004, the
Working Group on Arbitrary Detention emphasized in its reports that charges involving
vague and imprecise offences jeopardized the ability of individuals to exercise their
fundamental rights and were likely to result in arbitrary deprivation of liberty.6 Furthermore,
prolonged detention without charge or trial, and secret, prolonged incommunicado or
indefinite detention without review, as well as keeping a person in any form of detention
without periodic re-evaluation of the justification for continuing the detention, are forms of
arbitrary detention.7
27.
The source states that Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng
are still forcibly disappeared, since the time that they were sent to the re-education camps. It
recalls that the International Convention for the Protection of All Persons from Enforced
Disappearance defines the act in its article 2 as follows: “the arrest, detention, abduction or
any other form of deprivation of liberty by agents of the State or by persons or groups of
persons acting with the authorization, support or acquiescence of the State, followed by a
refusal to acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside the protection of
law”.
28.
The source argues that although China is not a State party to the Convention, it is
bound by the prohibition of committing enforced disappearance under customary
international law. It is submitted that persons taken to re-education camps are effectively
disappeared, including the four above-mentioned individuals – the subjects of the present
communication. The source asserts that the camps constitute a massive case of enforced
disappearance and arbitrary detention.8
29.
The source submits that the internment of persons of Uighur ethnicity, including
Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng, constitutes a prima facie
violation of 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.
Furthermore, the source states that no formal charges have been presented against
Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng, who are furthermore not
provided with access to legal remedies, are denied contact outside the re-education camps
and have been held for unspecified periods of time, circumstances which are tantamount to
enforced disappearance and arbitrary detention. Accordingly, the prolonged ongoing
incommunicado detention of the above-mentioned individuals constitutes a deprivation of
liberty under category I of the Working Group.
4 See CHN 21/2018, available at
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=24182,
p. 6.
5 A/HRC/49/45, paras. 33 and 34.
6 Opinion No. 15/2019, para. 33.
7 Human Rights Committee, general comment No. 35 (2014), paras. 11 and 12.
8 A/HRC/WGEID/115/1, annex I.
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31.
The source submits that enforced disappearance is a prima facie form of arbitrary
detention, and therefore the period during which the four above-mentioned individuals have
been forcibly detained constitutes a violation of the right to be considered a person before the
law, in contravention of article 6 of the Universal Declaration of Human Rights.
32.
The source also submits that in placing Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and
Ms. Yasheng outside of the protection of the law, the enforced disappearance has deprived
them of their legal safeguards as detainees, including the right to habeas corpus and the right
to be promptly brought before a judicial authority, in violation of the petitioners’ rights under
articles 8, 9 and 10 of the Universal Declaration of Human Rights and principles 11, 32 and
37 of the Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment.
33.
In the light of the foregoing, the source concludes that the arrest and ongoing detention
of Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng is arbitrary and falls under
category I as lacking legal basis, in breach of article 9 of the Universal Declaration of Human
Rights.
34.
In regard to category III of the Working Group, the source states that due process is
one of the tenets of the right to a fair trial.
35.
It is recalled that Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng were
arrested without a warrant and were not informed either of the reasons for their arrest or of
any charges against them. They were forcibly sent to re-education camps. They have been
held incommunicado in these camps since the time of their arrest. They did not enjoy their
right to notify and communicate with their families or their right to have a lawyer. These
elements constitute prima facie violations of principles of 15, 16, 17, 18 and 19 of the Body
of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
Furthermore, the Declaration on the Protection of All Persons from Enforced Disappearance
recognizes the right to be brought before a judicial authority promptly after detention in order
to challenge the legality of the detention. Article 10 (2) of the same Declaration establishes
the obligation of the detaining authorities to make available accurate information on the
detention of persons and their place of detention to their family, to their counsel or to other
persons with a legitimate interest. The Declaration, in its article 10 (3), also establishes the
obligation to maintain in every place of detention an official up-to-date register of detained
persons.
36.
It is argued that in the present case, the right of Mr. Yiliyasi, Mr. Kuerwanjiang,
Ms. Hilal and Ms. Yasheng not to be deprived arbitrarily of their liberty and to fair
proceedings before an independent and impartial court has been violated. Thus, the
Government has violated, inter alia, articles 9 and 10 of the Universal Declaration of Human
Rights and article 14 of the Covenant.
37.
The source submits that although arrest and prolonged incommunicado detention fall
within category I of the Working Group, such practices constitute violations of right to a fair
trial as well. Secret and incommunicado detention constitutes a very serious violation of the
norm protecting the right to liberty of a person under international law. The inherent
arbitrariness of these forms of deprivation of liberty lies in the fact that the individual is left
outside the cloak of any legal protection.9
38.
The source recalls that incommunicado detention refers to a type of deprivation of
liberty in which a detainee’s communication with other human beings is either highly
restricted or non-existent; and accordingly, the detainee is held outside the reach of the law,
without the possibility of resorting to legal procedures, including habeas corpus. Thus,
denying a detainee contact with his family and legal counsel renders a detention
incommunicado.
39.
Another concern with regard to incommunicado detention is the fact that it may
facilitate or in and of itself constitute torture.10 It is expressly stated in the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment that
9 See the Working Group’s deliberation No. 9 (A/HRC/22/44, sect. III), para. 60.
10 E/CN.4/RES/1999/32, para. 5.
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“communication of the detained or imprisoned person with the outside world, and in
particular his family or counsel, shall not be denied for more than a matter of days”.11
Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng have been denied contact with
their families and legal counsel.
40.
The source notes that it is acknowledged among United Nations human rights bodies
that prolonged incommunicado detention is capable of facilitating and constituting torture.
The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment has deemed that prolonged incommunicado detention in a secret place may
amount to torture as described in article 1 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.12 The source submits that there is credible
information regarding extensive and sustained torture and ill-treatment occurring in the re-
education camps. It is therefore submitted that the pattern of physical and psychological
violence that has been committed in these camps and the prolonged incommunicado
detention of Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng allow it to be
inferred that they have been subjected to torture and ill-treatment, thus rendering their
detention arbitrary under category III of the Working Group.
41.
Finally, in relation to category V, the source submits that the cases of Mr. Yiliyasi,
Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng are representative of a widespread pattern of
detentions in the Xinjiang Uighur Autonomous Region. The source asserts that evidence and
reliable sources suggest that the authorities target ethnic and religious minorities in the region
by conducting an ethnically targeted campaign of mass detention and ill-treatment.
42.
The source recalls that Mr. Yiliyasi is a businessman, Mr. Kuerwanjiang is an
architect, Ms. Hilal is a teacher and Ms. Yasheng is a housewife. They are ordinary people
residing in the Xinjiang Uighur Autonomous Region who happen to be of Uighur ethnicity.
According to the source, they have been targeted and detained because of their Uighur,
Muslim and Turkic identities.
43.
The source therefore submits that the four abovementioned individuals were and still
are deprived of their liberty on discriminatory grounds due to, inter alia, their ethnic origin,
language and religion. It also submits that the deprivation of the aforementioned individuals
is a prima facie case of deprivation of liberty on discriminatory grounds and forms part of a
pattern of persecution against persons with similarly distinguishing characteristics (in this
case the Uighur population in the Xinjiang Uighur Autonomous Region). The source recalls
that more than a million Uighurs are still in detention for reasons of their ethnicity.13
44.
The source therefore concludes that the ongoing detention of Mr. Yiliyasi,
Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng on discriminatory grounds amounts to a
violation of the right to equal protection of the law and freedom from discrimination under
article 7 of the Universal Declaration of Human Rights. It constitutes a violation of
international law on prohibited grounds of discrimination. Their deprivation of liberty is,
thus, arbitrary and falls within category V of the Working Group.
(b)
Response from the Government
45.
On 12 July 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 11 September 2023, detailed information about the current
situation of Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng and to clarify the
legal provisions justifying their continued detention, as well as the compatibility of their
detention with the obligations of China under international human rights law. The Working
Group called upon the Government of China to ensure the physical and mental integrity of
Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng.
46.
The Government submitted a response on 13 September 2023, that is, after the
established deadline. The response is therefore considered late, and the Working Group
11 See principle 15.
12 A/56/156, para. 14; see also opinion No. 55/2019, para. 39.
13 A/HRC/36/37, para. 48.
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7
cannot accept the response as if it had been presented within the time limit. The Government
did not request an extension of the time limit for its response, within the deadline, as provided
for in paragraph 16 of the Working Group’s methods of work.
2.
Discussion
47.
In the absence of a timely response from the Government, the Working Group has
decided to render the present opinion, in conformity with paragraph 15 of its methods of
work.
48.
In determining whether the detention of Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal
and Ms. Yasheng 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 requirements constituting arbitrary detention, the burden of
proof should be understood to rest upon the Government if it wishes to refute the allegations.
Mere assertions by the Government that lawful procedures have been followed are not
sufficient to rebut the source’s allegations.14 In the present case, the Government has chosen
not to challenge in a timely manner the prima facie credible allegations made by the source.
49.
The source has been unable to provide extensive details regarding the detention of
Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng and, in its late response, the
Government only adds the fact that it has custody of these individuals. The Working Group
recalls the assessment of human rights concerns in the Xinjiang Uighur 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 Uighur minority and the
near impossibility for their family members or others to ascertain the fate of the detainees.15
50.
Furthermore, in the 2022 follow-up report16 to the 2010 joint study on global practices
in relation to secret detention in the context of countering terrorism,17 the Special Rapporteur
on the promotion and protection of human rights and fundamental freedoms while countering
terrorism highlighted “the ongoing flow of credible information pointing to a sustained
practice of mass arbitrary detention” of Uighurs in the Xinjiang Uighur Autonomous
Region. 18 The Working Group has also experienced a similar scarcity of information
concerning the detention of Uighurs in the Xinjiang Uighur Autonomous Region.19 This
context of opacity, in which information regarding detainees is not provided by authorities
with control over them, forms a concerning backdrop to the current claims.
51.
The source has submitted that the detention of Mr. Yiliyasi, Mr. Kuerwanjiang,
Ms. Hilal and Ms. Yasheng is arbitrary and falls under categories I, III and V. The
Government, in its late response, while not addressing the categories cited in the source’s
submission, argues that the individuals listed above were detained lawfully under national
law and that all their legal rights are fully guaranteed by the law. The Working Group will
proceed to address the source’s allegations in turn.
(a)
Category I
52.
The source submits that Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng
were arrested without warrants and were not informed either of the reasons for their arrest or
of any charges against them. The Government does not address this specific submission.
53.
Persons who are detained have the right to be promptly informed of the charges
against them. This is inherent in article 9 of the Universal Declaration of Human Rights as
14 A/HRC/19/57, para. 68.
15 “OHCHR assessment of human rights concerns in the Xinjiang Uighur Autonomous Region, People’s
Republic of China”, para. 132. Available at
https://www.ohchr.org/sites/default/files/documents/countries/2022-08-31/22-08-31-final-
assesment.pdf.
16 A/HRC/49/45.
17 A/HRC/13/42.
18 A/HRC/49/45, para. 33.
19 See opinion No. 6/2022.
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well as principles 2 and 10 of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment. The Working Group has previously stated that, for
a deprivation of liberty to have a legal basis, it is not sufficient that there is a law which may
authorize the arrest. The authorities must invoke that legal basis and apply it to the
circumstances of the case.20 This is typically21 done through an arrest warrant or arrest order
(or equivalent document).22
54.
In the light of the source’s submissions and the lack of any specific information from
the Government refuting those submissions, the Working Group concludes that the detainees’
rights under article 9 of the Universal Declaration of Human Rights as well as principles 2
and 10 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment were violated.
55.
The source states that no formal charges have been presented against Mr. Yiliyasi,
Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng. However, in its late reply, the Government
argues that each of these four detainees was convicted for crimes such as disrupting public
order and engaging in illegal and criminal activities and was sentenced for those crimes. On
this basis, the Working Group does not find a violation under category I in this respect.
56.
The source submits that Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng
were all sent to re-education camps and have been held in these locations incommunicado.
Noting that they have been denied contact with their families and legal counsel, it submits
that this amounts to them being forcibly disappeared and has undermined their ability to
challenge their detention. In relation to Ms. Hilal, after three months the family learned that
she was detained in the camp in Ciliyüzü, but she remained incommunicado. The
Government does not address these specific submissions.
57.
The Working Group recalls that giving prompt and regular access to family members,
as well as to independent medical personnel and lawyers, is an essential and necessary
protection against arbitrary detention as proscribed under article 9 of the Universal
Declaration of Human Rights as well as a safeguard for the prevention of torture.23 Moreover,
prohibiting contact with the outside world may violate rule 58 of the United Nations Standard
Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)24 and principles
15, 16 (1) and 19 of the Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment.
58.
Given the lack of a response to this argument from the Government, the Working
Group considers that Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng have been
held incommunicado. Moreover, there is no information demonstrating that any of these
detainees were able to challenge the legality of their detention before a legal authority. This
is in violation of their rights under article 6 of the Universal Declaration of Human Rights,
whereby “everyone has the right to recognition everywhere as a person before the law”.
Additionally, being unable to contact lawyers during this time has undermined their right to
challenge the lawfulness of their detention and enjoy fair trial rights under articles 9, 10 and
11 of the Universal Declaration of Human Rights and principles 11 (1), 32 and 37 of the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.
59.
The Working Group further considers that the removal of Mr. Yiliyasi,
Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng to re-education camps without allowing them
contact with the outside world amounts to enforced disappearance in breach of article 9 of
the Universal Declaration of Human Rights. Enforced disappearances are prohibited by
international law and constitute a particularly aggravated form of arbitrary detention.25 The
20 In cases of flagrante delicto, the opportunity to obtain a warrant will typically not be available.
21 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39.
22 See, for example, opinion No. 30/2017, paras. 58 and 59.
23 Opinion No. 19/2022, para. 52.
24 Opinions No. 35/2018, para. 39; No. 44/2019, paras. 74 and 75; and No. 45/2019, para. 76.
25 See opinions No. 5/2020, No. 6/2020, No. 11/2020 and No. 13/2020. See also Human Rights
Committee, general comment No. 35 (2014), para. 17.
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Working Group refers the present case to the Working Group on Enforced or Involuntary
Disappearances.
60.
In the light of the preceding considerations, the Working Group considers that the
deprivation of liberty of Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng is
arbitrary under category I.
(b)
Category III
61.
As noted above, the source submits that the detainees have not been able to contact
lawyers. The Government does not refute this allegation.
62.
Article 11 (1) of the Universal Declaration of Human Rights provides that “everyone
charged with a penal offence has the right to be presumed innocent until proved guilty
according to law in a public trial at which he has had all the guarantees necessary for his
defence.” Moreover, under principle 9 and guideline 8 of the United Nations Basic Principles
and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their
Liberty to Bring Proceedings Before a Court, all persons deprived of their liberty have the
right to legal assistance by counsel of their choice at any time during their detention,
including immediately after their apprehension, and such access is to be provided without
delay.
63.
The Working Group has already noted that denying access to lawyers undermined the
detainees’ ability to challenge their detention under article 9 of the Universal Declaration of
Human Rights. Additionally, noting that the Government asserts that each of them was
convicted of charges along the lines of disorderly conduct, the Working Group considers that
denying Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng access to lawyers
violated their right to legal assistance guaranteed under article 11 (1) of the Universal
Declaration of Human Rights.
64.
The source argues that the four detainees were deprived of their right to proceedings
before an independent and impartial court. The Government asserts that all their rights were
respected. The Working Group notes that information is lacking regarding the proceedings
against the detainees, other than the claim by the Government that they were each convicted
of charges such as public disorder. In these circumstances and noting that no information has
been disseminated to the families of these detainees, the Working Group is satisfied that Mr.
Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng were not afforded public trials, in
violation of their rights under articles 10 and 11 of the Universal Declaration of Human
Rights.
65.
Additionally, the source claims that, upon her arrest, Ms. Yasheng was subjected to
torture for two months at the detention centre. It adds that in the two re-education camps in
Aksu City, the detainees have been subjected to sexual violence, torture and forced
sterilization, but does not provide any further details regarding the detainees subject to the
present opinion. More broadly, it notes that there is credible information regarding extensive
and sustained torture and ill-treatment occurring in the re-education camps and that this
allows for the inference that the detainees have all been subjected to torture and ill-treatment.
66.
The Working Group is gravely concerned at these reports of torture. It recalls that the
Committee against Torture has made it clear that incommunicado detention creates
conditions that may lead to violations of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.26 However, noting the lack of specific
information linking any potential torture to fair trial rights, the Working Group declines to
enter a finding in this respect in relation to arbitrary detention. Nonetheless, in the light of
the serious concerns in this respect, it refers the case to the Special Rapporteur on torture and
other cruel, inhuman or degrading treatment or punishment.
67.
Given the preceding findings, the Working Group considers that the violations of the
four detainees’ fair trial rights are of sufficient gravity to meet the threshold for an additional
finding of arbitrariness under category III.
26 A/54/44, para. 182 (a).
A/HRC/WGAD/2023/77
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GE.23-23231
(c)
Category V
68.
The source submits that the ongoing incommunicado detention of Mr. Yiliyasi,
Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng in re-education camps is emblematic of the
persecution by China against persons of Uighur ethnicity. The Government, in its late reply,
did not address this specific submission.
69.
The Working Group notes that the present case follows a series of instances in which
it has found there to be persecution by China against Uighurs.27 Given the source’s unrefuted
arguments that the detainees were all also targeted because of their Uighur ethnicity, and
given the similar circumstances in the other cases involving the detention of Uighurs for
transfer to re-education camps, the Working Group considers that the source has
demonstrated that these detentions were carried out on a discriminatory basis.
70.
On this basis, it concludes that the arrest and subsequent detention of Mr. Yiliyasi,
Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng violated article 7 of the Universal Declaration
of Human Rights, and fall under category V.
(d)
Concluding remarks
71.
Beyond the four named detainees, the Working Group notes the source’s unrefuted
submission that Ms. Yasheng’s family, including her minor child, were almost all sent to re-
education camps and are still detained. The allegations underline the seriousness of the
context and of the violations that have been established above.
72.
In its 30-year history, the Working Group has found China in violation of its
international human rights obligations in numerous cases, particularly in relation to Uighur
citizens. 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.28
73.
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.
3.
Disposition
74.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Halemaimaiti Yiliyasi, Abudureheman Kuerwanjiang,
Mevlude Hilal and Paliden Yasheng, being in contravention of articles 7, 9, 10 and 11
of the Universal Declaration of Human Rights, is arbitrary and falls within categories
I, III and V.
75.
The Working Group requests the Government of China to take the steps necessary to
remedy the situation of Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng without
delay and bring it into conformity with the relevant international norms, including those set
out in the Universal Declaration of Human Rights.
76.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal
and Ms. Yasheng immediately, quash their convictions and accord them an enforceable right
to compensation and other reparations, in accordance with international law.
27 See, for example, opinions No. 3/2014, No. 66/2021, No. 6/2022, No. 64/2022 and No. 88/2022.
See, generally, “OHCHR assessment of human rights concerns in the Xinjiang Uighur Autonomous
Region, People’s Republic of China”; and A/HRC/36/37, para. 48.
28 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/2023/77
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11
77.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng and to take appropriate
measures against those responsible for the violation of their rights.
78.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment and the Working Group on Enforced or Involuntary Disappearances.
79.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
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. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng have
been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Yiliyasi,
Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng;
(c)
Whether an investigation has been conducted into the violation of the rights of
Mr. Yiliyasi, Mr. Kuerwanjiang, Ms. Hilal and Ms. Yasheng 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.
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 of 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.29
[Adopted on 17 November 2023]
29 Human Rights Council resolution 51/8, paras. 6 and 9.