Submission to UN on Liu Jie – March 6, 2008Comments Off on Submission to UN on Liu Jie – March 6, 2008
Questionnaire completed by Chinese Human Rights Defenders, Alleging Arbitrary Detention of Liu Jie
To The Working Group on Arbitrary Detention
Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Special Representative on Human Rights Defenders
1. Family name: Liu
2. First name: Jie
3. Sex: Female
4. Birth date or age (at the time of detention): January 3, 1952
5. Nationality/Nationalities: People’s Republic of China
6. (a) Identity document (if any): Identification card
(b) Issued by: Xunke County Public Security Bureau, Heilongjiang Province 黑龙江省逊克县公安局
(c) On (date): May 7, 2003
7. Profession and/or activity (if believed to be relevant to the arrest/detention):
Liu contracted a dairy farm from the state-run Xunke farm, part of a military agricultural brigade, in Heilongjiang Province. These farms are not under local government jurisdiction, but under that of the Nongken (Military Farm) Bureau, a parallel administration.
In 1997, the state farm broke the contract and took back the dairy farm which Liu’s family had turned into a profitable enterprise. After exhausting all legal avenues to reclaim the dairy farm, she went on to Beijing to petition the central government. In 2001, with help from human rights lawyers, she successfully obtained an administrative review of local government agencies’ handling of Liu’s case, which ruled in her favor. But local authorities have so far refused to pay for her damages.
Since 2003, Liu has organized petitioners (citizens who bring grievances about lower levels of government to higher authorities for redress) every year to submit open letters addressing Chinese leaders at important meetings, such as the annual National People’s Congress, advocating legal and political reforms. She has set up an advocacy group to assist petitioners/migrant laborers in Beijing. She is instrument to exposing the abuses of petitioners to the media.
Prior to her detention, Liu and other organizers had spent the last two months surveying petitioners and collecting signatures for the open letter addressed to CCP top leaders: “Constitutional Democracy: the Foundation for Addressing Social Grievances.” (https://www.nchrd.org/Article/dzlx/200710/20071008213035_5915.html) They collected 12,150 signatures by petitioners from many provinces, who had been to Beijing to file complaints about their mistreatments by local officials, many of whom suffered official harassment and police brutality.
1. Date of arrest: Liu was not formally arrested. She was seized by the police without an arrest warrant on October 11, 2007
2. Place of arrest (as detailed as possible):
When Liu was leaving after visiting some friends at Zhongding Village, near Beijing South Train Station, she was seized by police from Youanmen Police Station under Beijing Public Security Bureau (PSB) and officers from the Military Farm Bureau from Heilongjiang Province
3. Forces who carried out the arrest or are believed to have carried it out:
Police from Youanmen Police Station under Beijing PSB and officers from the Military Farm Bureau from Heilongjiang Province
4. Did they show a warrant or other decision by a public authority?
5. Authority who issued the warrant or decision:
No warrant was issued
1. Date of detention:
Liu has been detained since she was seized in Beijing on October 11, 2007. She was formally detained on October 13, 2007 on suspicion of “gathering crowds to create trouble”. The charge was dropped. On November 12, 2007, decision was made to send Liu to Re-education through Labor (RTL) on November 12, 2007
2. Duration of detention (if not known, probable duration): Liu has been detained for 117 days (as of February 6)
3. Forces holding the detainee under custody:
On October 11, 2007, Liu was briefly detained by police from Youanmen Police Station under Beijing PSB. She was immediately sent back to Heilongjiang Province where she was held by Beian City Military Farm Bureau PSB. After the decision was made to send her to RTL camp on November 12, 2007, Liu has been held by the RTL Management Committee in Heilongjiang Province.
4. Places of detention (indicate any transfer and present place of detention):
On October 11, 2007, Liu was first briefly detained at Youanmen Police Station under Beijing Public Security Bureau. She was immediately sent back to Beian City Military Farm Bureau Detention Center. After the decision was made to send her to RTL camp on November 12, 2007, Liu has been held at the Qiqihaer RTL camp, Heilongjiang Province
5. Authorities that ordered the detention:
Beian City Military Farm Bureau Public Security Bureau, Heilongjiang Province and RTL Management Committee, Heilongjiang Province
6. Reasons for the detention imputed by the authorities:
On October 13, 2007, Liu was criminally detained on suspicion of “gathering crowds to disturb social order”. The Beian Military Farm PSB sent her case to the Procuratorate, but the Procuratorate did not order the prosecution because it believed that Liu did not commit any crime. The criminal charge was then dropped.
The Beian Military Farm Bureau PSB then sent her to the Re-education through Labor camp with the reasons that she was “Provoking and creating trouble, inciting and creating disturbance of social order”
7. Relevant legislation applied (if known):
Article 10 Clause 4 of the “Trial Methods for the Implementation of Reeducation through Labor.” (Note that this is not a piece of legislation, but a regulation passed the Ministry of Public Security. For more details see answer to Section IV)
IV. Describe the circumstances of the arrest and/or the detention and indicate precise reasons why you consider the arrest or detention to the arbitrary
According to the WGAD’s methods, deprivation of a person’s liberty is “arbitrary,” if the case falls into at least one or all of 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 detention of LIU, Jie is arbitrary because it violates categories A, B and C.
A) Liu has been detained in a Re-education through Labor (RTL) camp, which is an administrative detention measure, according to which, without any proper legal procedures or trial, individuals can be sent to detention facilities for forced labor for a maximum of four years.
RTL has no legal basis in Chinese law. According to Article 8 of China’s Legislative Law, “the deprivation of citizens’ political rights and compulsory measures and punishments that restrict citizens’ personal freedom…must only be formulated into laws by the National People’s Congress (NPC) and its Standing Committee (NPCSC).” Article 9 of China’s Administrative Punishment Law states that, “administrative punishment which restricts personal freedom can only be promulgated by the law.”
The three documents governing the RTL system do not constitute “laws” in China’s legal system. The first document, “Decision Regarding the Question of Reeducation Through Labor,” was approved by the NPCSC and promulgated by the State Council in 1957. The second and the last document were “Supplementary Regulations Regarding Reeducation Through Labor,” approved and promulgated by the State Council in 1979 and the “Trial Methods for the Implementation of Reeducation through Labor,” approved by the State Council and promulgated by the Ministry of Public Security in 1982. The documents were promulgated either by the State Council or the Ministry of Public Security, thus they are not “laws” promulgated by the NPC or the NPCSC.
In addition, RTL system as an administrative measure that deprives citizens of their liberties is in direct conflict with Article 10 of the Administrative Punishment Law, which states that “administrative legal regulations can formulate administrative penalties except those that restrict personal freedom.”
B) Ms. Liu has been detained as a result of exercising her right to freedom of expression and association.
Liu has been petitioning for years about improper compensation when the Heilongjiang government broke a contract they had signed with her concerning a dairy business. Since 2003, Liu has organized petitioners every year to submit open letters addressing Chinese leaders at important meetings, such as the annual National People’s Congress, advocating legal and political reforms. Prior to her detention, Liu and other organizers had spent the last two months surveying petitioners and collecting signatures for the open letter addressed to CCP top leaders: “Constitutional Democracy: the Foundation for Addressing Social Grievances.” (http://crd–net.org/Article/dzlx/200710/20071008213035_5915.html).
According to a decision letter issued by the Military Farm RTL Management Committee, Heilongjiang Province, Liu was sent to RTL for drafting, organizing and publishing the open letter: “on October 8, 2007…Liu linked up with over ten thousand of petitioners from many provinces, whom signed the ‘Proposal to the 17th Party Congress by Over Ten-Thousand Petitioners’…published by Dajiyuan and Boxun on October 9.” Liu has “many times link-up with and incite petitioners to create incidents; her behavior has seriously disturbed petitioning order and Beijing’s social order”.
C) Although Liu was detained on suspicion of “gathering crowds to create trouble” on October 13, 2007, this suspicion was dropped soon after when the Procuratorate failed to find evidence to prosecute her. Liu was thus never charged or tried when she was sent to the RTL camp.
The decision to send her to a RTL camp was made by the Heilongjiang Military Farm Bureau RTL committee, which is a non-judicial body. When the decision was made, Liu was not given a hearing or a trial. According to the Administrative Procedure Law passed in 1989, individuals sent to RTL have the right to appeal, but that individual is only brought to the judge after it has been decided that he/she be sent to RTL camp. In the case of Liu, she appealed the decision to send her to RTL on March 3, but the court refused to give her a hearing
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
Five rescue remedies have been taken: public appeal, hunger strike, request for an administrative review of the decision to send Liu to a RTL camp, legal action and request for release on medical grounds.
1. Public appeal: On December 12, 2007, 12,149 petitioners signed a public letter which calls for Liu’s release. No visible impact was achieved by this appeal.
2. Hunger strike: Liu has started a hunger strike on February 26 to protest the decision to send her to RTL. It is unclear whether Liu has ceased the strike. So far Liu’s hunger strike has produced no clear impact on her detention.
3. Request for an administrative review: On December 20, 2007, Liu applied for an administrative review of the decision to send her to RTL with the assistance of her lawyers, Li Dunyong and Li Baiguang. However, Heilongjiang RTL Management Committee rejected her application on February 19. The rejection was made on the grounds that the Heilongjiang Military Farm Bureau RTL Management Committee “correctly acted on the procedures when processing the case”.
4. Legal action: After Liu failed to upturn the decision through applying for an administrative review, she appealed to the Heilongjiang Military Farm Bureau Intermediate Court on March 3. On March 4, the Court told Liu’s husband that it would not hear her case, without giving any reasons or a written rejection letter. According to the Administrative Procedure Law passed in 1989, individuals sent to RTL have the right to appeal. In most cases, individuals who exercise this right usually get a hearing. It is therefore unusual that Liu was rejected such hearing.
5. Request for release on medical grounds. According to a doctor who examined her on December 20, 2008, Liu suffers serious eye injuries and will go blind if she does not receive proper treatment immediately. Liu’s eye injuries require treatment unavailable in Heilongjiang Province, so she must be sent to Beijing for treatment. Since then, Liu’s family has demanded her release for medical treatment but has not received a response from the authorities.
The Heilongjiang Military Farm Bureau RTL Management Committee has continued to delay a decision over Liu’s application for release for medical treatment. On February 5, when it was scheduled to decide on Liu’s application, they cited the Chinese New Year holiday as reason for inability to respond to the application. Then, they are now claiming that they have not received the doctor’s report confirming Liu’s illness, even though it has already been two months after the doctor’s examination on December 20, 2007.