Submission to UN on Liu Xiaobo – December 15, 2008

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Communique to Special Procedures on Behalf of PRC Citizen Liu Xiaobo, Alleging Arbitrary Detention, Violation of Free Expression, and Persecution of Human Rights Defenders

To: The Working Group on Arbitrary Detention
The Special Representative on Human Rights Defenders

 

Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression
I. IDENTITY
1. Family name: Liu (刘)
2. First name: Xiaobo (晓波)
3. Sex: Male
4. Birth date or age (at the time of detention): 53
5. Nationality/Nationalities: People’s Republic of China
6. (a) Identity document (if any): Identification card
(b) Issued by: Dalian City Public Security Bureau (PSB) Xigang Sub-division

7. Profession and/or activity (if believed to be relevant to the arrest/detention):
Liu is a Beijing-based writer, intellectual, dissident and human rights activist. Liu is currently the editor of the online journal Democratic China, the former president of the independent Chinese PEN. Liu is a very vocal critic of the Chinese government and for his criticisms he has been repeatedly harassed and incarcerated. In 1989, Liu was jailed for 18 months for participating in the student democracy movement; in 1995, he was illegally detained (“soft detention” or ruanjin) for eight months in a Beijing suburb for issuing a public petition; in 1996, he was sent to three years of Re-education through Labor (RTL). Since 1999, Liu has been under illegal residential surveillance (“soft detention” or ruanjin).
On December 8, 2008, a day before the issuance of Charter 08, a public appeal calling for bold reforms that promote democracy and human rights in China, Liu was taken away from his home by a dozen of policemen. Liu is one of the 303 Chinese citizens who signed the Charter, and it is believe that he is detained for signing the petition, but police also suspect that he organized others to sign the petition. According to the detention warrant, presented by the police when they took Liu away, he was detained on suspicion of “inciting subversion of state power”.

 

II. Arrest

1. Date of arrest: December 8, 2008
2. Place of arrest (as detailed as possible):

Liu was taken away from his home.
3. Forces who carried out the arrest or are believed to have carried it out:

Local police and the National Security police (guobao) from Beijing Municipal Public Security Bureau (PSB)
4. Did they show a warrant or other decision by a public authority?
Yes
5. Authority who issued the warrant or decision:

Beijing PSB

6. Relevant legislation applied (if known):

According to the detention warrant, presented by the police when they took Liu away, he was detained on suspicion of “inciting subversion of state power”. “Inciting subversion of state power” is a crime stipulated under Article 105(2) of the Chinese Criminal Law.

 

III. Detention

1. Date of detention: December 8, 2008
2. Duration of detention (if not known, probable duration):
Liu has been detailed since December 8, 2008. It has been 8 days since he was taken into custody.
3. Forces holding the detainee under custody:
The National Security Corps at Beijing Municipal PSB.
4. Places of detention (indicate any transfer and present place of detention):
Liu is believed to be detained at the detention center managed by the National Security Corps at Beijing Municipal PSB.
5. Authorities that ordered the detention:

Beijing Municipal PSB. However, Liu’s wife was told by Beijing Municipal PSB that the decision to detain Liu came from the “very high level”.
6. Reasons for the detention imputed by the authorities:

According to the detention warrant, presented by the police when they took Liu away, he was detained on suspicion of “inciting subversion of state power”. “Inciting subversion of state power” is a crime stipulated under Article 105(2) of the Chinese Criminal Law.
7. Relevant legislation applied (if known):

“Inciting subversion of state power” is a crime stipulated under Article 105(2) of the Chinese Criminal Law.

 

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

On December 8, 2008, Liu was taken away from his home by a dozen of policemen. According to the detention warrant, presented by the police when they took Liu away, he was detained on suspicion of “inciting subversion of state power”. Police then searched his home and confiscated his computers, mobile phones, books, magazines, printed papers and a draft of Charter 08, a public appeal for bold reforms that promote democracy and human rights in China. Charter 08, signed by 303 Chinese citizens, was due to be released the next day to coincide with the 60th anniversary of the Universal Declaration of Human Rights.
Liu is believed to be held at the National Security Corps at Beijing Municipal PSB. The police has not informed Liu’s family regarding his detention.
According to WGAD, deprivation of a person’s liberty is “arbitrary”, if the case falls into at least one or all of three categories:
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)
Liu’s detention is arbitrary because it violates Categories II and III and possibly I as well:
Category II:
Liu has been detained for peacefully exercising his rights to freedom of expression and association. It is believed that Liu has been detained for signing, and organizing fellow Chinese citizens to sign, Charter 08. Charter 08 is a declaration that calls for bold political reforms to promote human rights and democracy in China. Liu was taken into custody a day before the planned release of the Charter, signed by 303 Chinese citizens from a broad spectrum of Chinese society.
There is ample evidence suggesting that Liu is detained for Charter 08. In their thorough search of Liu’s home between December 8 and 9, the police confiscated many of Liu’s belongings including a draft copy of Charter 08. Since December 8, police all over China have interrogated and warned many other signatories about Liu and the Charter. According to Chinese Human Rights Defenders (CHRD), a network of human rights activists, at least 19 signatories have been harassed and questioned in relation to Charter 08.
Category III:
Liu was taken into custody on December 8 but the police have not yet informed his family about his detention, the type of detention he is being subjected to or the reasons for the detention. When Liu’s wife enquired the Beijing PSB about her husband’s detention, the police told her that “it was a very high level decision” and they can provide no further information regarding Liu’s detention. This is in violation of Article 64 of the Chinese Criminal Procedure Law which states that the police have to inform the family of “the reasons for detention and the place of custody…within 24 hours after a person has been detained”.
According to Article 96 of the Criminal Procedure Law, a criminal suspect can appoint a lawyer after his first interrogation by the investigative organs, or from the day the detention starts. The fact that the police have not informed Liu’s family the details of Liu’s detention as required by law precludes the involvement of the lawyer appointed by Liu’s family.
Category I
Liu is detained on suspicion of “inciting subversion of state power”, a crime stipulated under Article 105 of the Chinese Criminal Law. Article 105 has been widely used to criminalize freedom of expression in China. It violates Article 35 of the Chinese Constitution, which guarantees freedom of expression, and is therefore unconstitutional.

 

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
Various remedies have been tried but they have so far been ineffective:
1. On December 15, Liu’s wife, Liu Xia, visited Beijing PSB with his lawyer, Mo Shaoping. Police told Liu Xia that the decision to detain Liu was made at “a very high level” and the Beijing police could provide no further information regarding his detention. Without knowing the status of Liu’s detention, it is impossible for Liu’s lawyer to take any further legal action.
2. Many international and domestic human rights organizations, such as Chinese Human Rights Defenders, have issued urgent appeals calling for Liu’s immediate release.
3. A large number of Chinese citizens and international supporters have signed petitions calling for Liu’s immediate release.

 

See more UN work on case of Liu Xiaobo:

Urgent Appeal Alleging Arbitrary Detention to Penalize Freedom of Expression of PRC Candidate/Human Rights Defender Liu Xiaobo, June 30, 2009

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