Submission to UN on Liu Xiaobo – June 30, 2009

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

To: The Working Group on Arbitrary Detention

Special Rapporteur on Freedom of Expression

Special Rapporteur on the Situation of Human Rights Defenders
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
(c) On (date): January 3, 2007

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 also the current 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 and organizing 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 formal arrest warrant, issued to Liu Xiaobo and his family on June 23, 2009, Liu has been 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.
3. Forces holding the detainee under custody:
Beijing Municipal PSB.
4. Places of detention (indicate any transfer and present place of detention):
Between December 8, 2008, when Liu was first apprehended, and June 23, 2009, when Liu was formally arrested, he was held in an undisclosed location near Xiaotangshan, Changping District, Beijing. After Liu was formally arrested on June 23, he has been detained at Beijing Municipal PSB Detention Center.
5. Authorities that ordered the detention:
Beijing Municipal PSB and Beijing Municipal Procuratorate. However, when Liu was first apprehended, 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 formal arrest warrant, Liu has been 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. Police also 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. According to Liu Xia (刘霞), Liu Xiaobo’s wife, before the police took Liu Xiaobo away, they presented him with an official document and asked him to sign. The nature of that document –whether it was a summons or a detention warrant– remains unclear. In either case, the document did not state the reason for Liu Xiaobo’s apprehension.
Between December 8, 2008 and June 23, 2009, Liu Xiaobo was subjected to “residential surveillance” (jianshi juzhu), a form of pre-trial detention, at an undisclosed location in Beijing. Liu was barred from contacting the outside world except for two meetings with Liu Xia, arranged by authorities, on January 1 and March 20 in Xiaotangshan, Changping District, Beijing. During this period, Liu Xiaobo was presented with an official document stating that he had been subjected to “residential surveillance”, but the document did not state the reason for his detention either.
On June 24, 2009, police from the BSB National Security Unit delivered Liu Xiaobo’s formal arrest notice dated June 23 to Liu Xia. The arrest notice states that Liu has been formally arrested for “inciting subversion of state power” on June 23. The police also told Liu Xia that Mo Shaoping (莫少平), one of the best-known human rights lawyers in China, cannot represent Liu Xiaobo, even though Liu Xia had retained Mo and Shang Baojun (尚宝军), a lawyer from the Mo Shaoping Law Firm, to be Liu Xiaobo’s defense lawyers. According to the authorities, Mo cannot be Liu Xiaobo’s lawyer because he is also a signatory of Charter 08.
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 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.
The authorities have violated proper legal procedure on a number of occasions while handling Liu’s case. For example:
a. Liu was taken into custody on December 8 but the police did not formally inform his family about his detention until June 23, 2009, over six months after he was first apprehended. This is in violation of Article 64 of China’s Criminal Procedural Law (CPL) 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”.
b. Article 57 of CPL states that a suspect subjected to residential surveillance must be held either in his/her home or a designated dwelling if s/he has no permanent residence. Detaining Liu, who has a home in Beijing, in an undisclosed location therefore breaches this legal provision.
c. According to Article 58 of the CPL, the maximum limit for residential surveillance is six months. Although Liu’s residential surveillance expired on June 8, he was not formally arrested until June 23.
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. On June 26, 2009, when Liu’s lawyers visited him for the first time since his apprehension, Liu told them that the police’s interrogations focused on Charter 08. They also asked him about the 20 articles he authored. 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 over 100 signatories about Liu and the Charter.
Category III:
A number of pre-trial rights were violated regarding the detention of Liu.
a. Neither Liu nor his family were informed of the reason for arrest when he was first taken into custody on December 8, 2008. Only six months after he was first apprehended did Liu and his family given a formal arrest warrant, stating that he has been arrested for “inciting subversion of state power.
b. Liu was deprived of the right to legal counsel between December 8, 2008, and June 26, 2009. The fact that the police did not inform Liu’s family the details of Liu’s detention as required by law during that period precluded the involvement of the lawyers appointed by Liu’s family, Mo Shaoping (莫少平) and Shang Baojun (尚宝军). The lawyers’ repeated requests to meet Liu were also repeatedly denied. After Liu was formally arrested on June 23, Mo was barred from representing Liu on the grounds that Mo also signed Charter 08. Because lawyer Mo is unable to take the case, another lawyer, Ding Xihui (丁锡奎), has been appointed to work with Shang Baojun as Liu’s lawyers.

 

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 was impossible for Liu’s lawyer to take any further legal action between December 8, 2008 and June 23, 2009. Now that Liu has been formally arrested, Liu Xia has appointed two lawyers to represent Liu.
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:

Communique to Special Procedures on Behalf of PRC Citizen Liu Xiaobo, Alleging Arbitrary Detention, Violation of Free Expression, and Persecution of Human Rights Defenders, December 15, 2008

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