Submission to UN on Gao Zhisheng – November 15, 2006

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Communique to UN Special Procedures on Behalf of Gao Zhisheng, Alleging Arbitrary Detention, Interference in Independency of Lawyers, Retaliation against a Human Rights Defender, Violation of Freedom of Expression, and Torture or Cruel, Inhumane, Degrading Treatment

To: Working Group on Arbitrary Detention

 

Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

 

Special Rapporteur on the Independence of Judges and Lawyers

 

Special Representative of the Secretary-General on the Situation of Human Rights Defenders

 

Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression

 

High Commissioner for Human Rights

 

I. IDENTITY

1. Family name: Gao
2. First name: Zhisheng
3. Sex: Male
4. Birth date or age (at the time of detention): 42, born in 1964
5. Nationality/Nationalities: People’s Republic of China
6. (a) Identity document (if any): Identification Card
(b) Issued by: 新疆维吾尔族自治区喀什市公安局 Kashi City Public Security Bureau, Xinjiang Uighur Autonomous Region

7. Profession and/or activity (if believed to be relevant to the arrest/detention):

Criminal defense lawyer. Mr. Gao represented defendants in sensitive cases involving alleged violations of human rights, such as torture of members of the Falun Gong and Christian house church leaders, as well as arbitrary detention of petitioners seeking official accountability for corruption and neglect. He also represented defendants in cases involving freedom of speech and the press, etc.

II. Arrest

1. Date of arrest: August 15, 2006

2. Place of arrest (as detailed as possible):

Mr. Gao was arrested in his sister’s home when visiting Dongying City, Shandong Province.

3. Forces who carried out the arrest or are believed to have carried it out:

State Security Unit, Beijing City Public Security Bureau

4. Did they show a warrant or other decision by a public authority?

Not at the time of the arrest; only later, on October 12, 2006, his lawyer was informed that Mr. Gao was formally arrested and charged with “inciting to subvert the state.”

5. Authority who issued the warrant or decision:

Unknown since no arrest warrant has ever been shown to his family or lawyer, but, if there is such a warrant, it should be issued by the Beijing Municipal Procuratorate.

6. Relevant legislation applied (if known):

Unknown since authorities did not show an arrest warrant or provide any legal basis for arresting him. However, authorities might apply the PRC Criminal Code and the Criminal Procedure Law.

III. Detention

1. Date of detention:

August 18, 2006 (as reported by the official Xinhua news agency)

2. Duration of detention (if not known, probable duration):

Aug. 18, 2006 – Present; duration unknown

3. Forces holding the detainee under custody:

Beijing Municipal Public Security Bureau.
4. Places of detention (indicate any transfer and present place of detention):
Unknown, possibly Beijing Municipal No. 1 or No. 2 Detention Center.

5. Authorities that ordered the detention:

Unknown since no official detention order has been shown to his family or lawyer; probably Beijing Municipal Public Security Bureau, or more likely, PRC Ministry of Public Security, because there have been nationally coordinated actions by PSB in difference provinces to detain and interrogate people who were or might be associated with Mr. Gao.

6. Reasons for the detention imputed by the authorities:
”Inciting to subvert state power”

7. Relevant legislation applied (if known):
The Beijing Municipal Procuratorate has not shown his family or lawyer the legal basis for detaining or charging Mr. Gao. It is unclear what laws authorities will apply in this case; probably the PRC Criminal Procedure Law.

IV. Describe the circumstances of the arrest and/or the detention and indicate precise reasons why you consider the arrest or detention to be arbitrary

According to the methods of work of the WGAD, deprivation of a person’s liberty is arbitrary, if the case falls into at least one, but likely all, of the following three categories (http://www.ohchr.org/english/issues/detention/complaint):

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 sentence or despite an amnesty law applicable to him)(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, 10 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 International Covenant on Civil and Political Rights (Category II); (i.e., rights to free opinion, speech, expression, press, assembly, association, and demonstration, etc.)

C) When the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out 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).

The following is a point-by-point demonstration of how, according to the three criteria, the arrest/detention of Gao Zhisheng is arbitrary:

(a) The reasons why the detention of Mr. Gao falls under Category I of arbitrary detention:
(1)Arrest without warrant: On August 15, 2006, more than 20 plainclothes officers from the Beijing Public Security Bureau entered the home of Gao Zhisheng’s sister in Dongying City, Shandong Province. They did not declare their identity and did not show any identification or legal documents. They did not even say anything. They simply put a hood over Gao Zhisheng’s head, handcuffed him, and forced him away. They also threatened Gao’s sister and told her not to tell anyone about Gao’s abduction. This was a clear violation of China’s Criminal Procedure Law, Article 64: “When detaining a person, a public security organ must produce a detention warrant.”

(2)Failure to inform family and detention in unknown location: Article 64 of the Criminal Procedure Law also states that, “Within 24 hours after a person has been detained, his family or the unit to which he belongs shall be notified of the reasons for detention and the place of custody.” This provision is also violated. After Mr. Gao’s abduction, he disappeared. For three days, his family did not know his whereabouts. Only until August 18, did the official Xinhua News Agency release an English statement saying that Gao Zhisheng had been arrested “on suspicion of breaking the law,” although no details were provided about the specific crime he was alleged to have committed. His family learned from this piece of news report that Gao had been arrested. But, since then, neither his family nor his lawyer has been notified of where Gao is being detained. His detention incommunicado raises serious concerns about police cover-ups of torture or ill-treatment of Mr. Gao in police custody.

(3) Deprivation of legal council and visitation rights: According to Article 96 of the PRC Criminal Procedure Law, Gao Zhisheng has the right to legal counsel from lawyers of his own choice. However, Beijing Public Security officials several times blocked Gao’s wife and other relatives from hiring a lawyer. Eventually, Mr. Gao’s older brother managed to sign authorization papers to appoint Mr. Mo Shaoping, a criminal defense lawyer in Beijing. However, since Mr. Mo Shaoping accepted the family’s authorization to represent Mr. Gao, authorities have created some obstacles for Mr. Mo to process the necessary paperworks. So far, Mr. Gao’s wife has been prevented from contacting the lawyer. Moreover, citing that the case involves “state secrets,” authorities have refused to let the lawyer to meet with Mr. Gao at the detention facility. However, prosecutors have not charged Gao Zhisheng with “revealing state secrets,” and it is unclear on what legal basis they have any legitimacy to cite “state secrets” to refuse the lawyer’s request to visit the detainee.

In Chinese law and judicial practices, “state secrets” remains a very vague concept. Authorities often interpret it at will and use that as a pretext to carry out secret detentions, interrogations, and torture to force confession. Until now, prosecutors have refused to announce the legal basis for the charges filed against Mr. Gao, “inciting to subvert state power,” and this refusal has made it impossible for Mr. Gao’s lawyer to prepare a legal defense.

(b) The reason why Mr. Gao’s detention also falls under Category II type of arbitrary detention:
If Gao’s case is to be prosecuted on the basis of Article 105, Paragraph 2, of China’s Criminal Law, “Whoever incites others by spreading rumors or slanders or any other means to subvert the State power or overthrow the socialist system shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention, public surveillance or deprivation of political rights; and the ringleaders and the others who commit major crimes shall be sentenced to fixed-term imprisonment of not less than five years,” it would be a violation of guarantees of freedom of speech as stipulated in both Article 35 of the PRC Constitution (“Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration”) and the international human rights treaties (including the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights).

Mr. Gao has simply written articles in the media or on the Internet, given interviews to journalists, and conducted activities necessary for carrying out his profession as a criminal defense lawyer, which are completely within the scope of peaceful expression of one’s opinion and of professional work. He may have expressed political opinion critical of the Chinese government, but none of his activities constituted the crime of “inciting to subvert the state” or had any possibility of causing any real danger to the Chinese state.
At present, according to information we have obtained, the case is likely to be prosecuted according to Paragraph 2 of Article 105 of the Criminal Law. However, if the case is to be prosecuted under Paragraph 1 (“Among those who organize, plot or carry out the scheme of subverting the State power or overthrowing the socialist system, the ringleaders and the others who commit major crimes shall be sentenced to life imprisonment or fixed-term imprisonment of not less than 10 years; the ones who take an active part in it shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years”), the sentence could be longer and it will be even more difficult for Mr. Gao’s lawyer to work on the case without political pressure. But a charge under Article 1 is clearly lacking evidence and such a charge cannot be substantiated.

(c) The reason why Mr. Gao’s detention is a Category III type of arbitrary detention:
According to Article 10 of the Universal Declaration of Human Rights, “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” Judging by the circumstances, we are concerned that Gao Zhisheng will not receive a “fair a public hearing by an independent and impartial tribunal.”
Chinese courts are under the political and administrative control of the government and the Chinese Communist Party that monopolized the power of the state. Mr. Gao was arrested precisely because of his public criticisms of this government and the Party for their violation of human rights. By the way authorities have deprived Mr. Gao’s legal rights to due process so far, it is unlikely that lawyers and judges’ independent professional judgments are to be considered. Political cases like this one are decided politically at all levels.

Mr. Gao’s license to practice law was suspended one year ago, in November 2005, after he wrote an open letter to the country’s top leaders, asking them to intervene to stop the torture and persecution of members of the Falun Gong, a Buddhist sect, which was officially banned since 1999. Mr. Gao’s appeal to review the decision to suspend his license by the Beijing Municipal Bureau of Judiciary Affairs did not succeed. Since November 2005, Mr. Gao had been under close police surveillance and constant harassment and intimidation. His arrest in August 2006 was followed by nation-wide, well-coordinated detentions and interrogations and house arrests of many individuals who were suspected to have had associations with Mr. Gao. Political considerations at highest levels, probably in Beijing, seem to have come into play in the arrest and detention of Gao Zhisheng.

Article 9 (1) of the International Covenant on Civil and Political Rights stipulates that, “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.”

Article 14 (3) of the ICCPR states that “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing.” After Mr. Gao’s formal arrest, the procuratorate has not notified Gao himself or his lawyer “in detail” about “the nature and cause of the charge against him,” nor have authorities allowed him “to communicate with counsel of his own choosing.” The lawyer has so far been refused any visit to Mr. Gao at the detention facility.

As detailed above, the deprivation of Gao’s freedom violates the procedures established by Chinese law and has no grounds even within the Chinese legal system.

To sum up Section IV, as the arguments presented above show, Gao Zhisheng’s arrest and detention are clearly arbitrary in nature according to the three categories adopted by the United Nations Working Group on Arbitrary Detention, and they also violate relevant international human rights standards as specified above.

V. Indicate internal steps, including domestic remedies, taken especially with the legal and administrative authorities, particularly for the purpose of establishing the detention and, as appropriate, their results or the reasons why such steps or remedies were ineffective or why they were not taken

(1) Mainland Chinese intellectuals, human rights activists, and lawyers signed several petitions calling on the government to uphold the law in their handling of the case of Gao Zhisheng, and to guarantee that Mr. Gao’s basic legal and human rights are respected. Authorities never responded to these calls nor have they changed their abusive ways of handling the case.

On the contrary, state police put Mr. Gao’s family, relatives, and many individuals who spoke out openly for Mr. Gao’s freedom under house arrest or residential surveillance or detention for questioning. Police also expelled many friends or activists who campaigned for Mr. Gao from Beijing, the nation’s capital, followed them, or threatened them. Gao’s wife, Ms. Geng He, has been put under house arrest. She was repeatedly interrogated and threatened. Police moved into their apartment and then set up a permanent watch post outside. Their 13-year daughter can only go to school in police cars and is watched all day by policemen at school. Police cut off the family’s phone and Internet connections and stopped anyone who tried to visit the family. At one point, police withheld food and other basic supplies to Ms. Geng He and the children. Mr. Gao’s relatives have been kept away from the family, warned to stay out of Beijing, and threatened them with detention. These acts of intimidation and deprivation of liberty constitute torture, cruel, inhumane, and degrading treatment. Police have reduced family members and relatives to an utterly helpless and powerless state and created an atmosphere of fear and intimidation.

(2) The human rights lawyer Mo Shaoping agreed to act as Mr. Gao’s lawyer and applied for permission to visit Mr. Gao at the detention facility to discuss his case. Citing that the case “involves state secrets,” authorities rejected the lawyer’s request for meeting. Mr. Mo has also applied for a bail for Mr. Gao to wait for trial outside prison, but so far authorities have failed to respond.

(3) International human rights organizations have protested the abuses of Mr. Gao’s basic rights and foreign government leaders have raised this case with Chinese officials. These actions have not yet had any clear effects. There is so far no indication that violations of Mr. Gao’s legal and human rights have been reversed or corrected.

 

See more UN work on case of Gao Zhisheng:

Communication on a Victim of an Enforced or Involuntary Disappearance, April 15, 2009

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