Submission to UN on Fan Yanqiong – March 10, 2010

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Questionnaire Completed by Chinese Human Rights Defenders Alleging Torture, Arbitrary Detention of Human Rights Defender, PRC Citizen Fan Yanqiong

To: The Special Rapporteur on Torture or Cruel, Inhumane and Degrading Treatment or Punishment

 

The Working Group on Arbitrary Detention

 

I. Identity

1. Family name: Fan (范)
2. First name: Yanqiong (燕琼)
3. Sex: Female
4. Birth date or age (at the time of detention): December 6, 1960
5. Nationality/Nationalities: People’s Republic of China
6. (a) Identity document (if any): Identification card
7. Profession and/or activity (if believed to be relevant to the arrest/detention):
Fan is a human rights defender, a cyber activist. For over a decade, Fan has petitioned for redress of her own grievances and dedicated herself to helping other disadvantaged individuals and groups (especially petitioners), exposing official corruption, helping those who have suffered injustices draft their petitions and documenting rights abuses. Fan has also worked with the imprisoned Fujian activist Ji Sizun (纪斯尊). For her efforts, Fan has been repeatedly threatened by the authorities as well as the local triads.

 

II. Arrest

1. Date of arrest: June 26, 2009
2. Place of arrest (as detailed as possible):
Fan was seized by over a dozen Fujian policemen while investigating a human rights case at the home of a petitioner Huang Caipiao (黄财漂) in Lianjiang County, Fujian Province.
3. Forces who carried out the arrest or are believed to have carried it out:
Policemen from Mawei Public Security Bureau (PSB), Fuzhou City, Fujian Province
4. Did they show a warrant or other decision by a public authority?
No
5. Authority who issued the warrant or decision:
There was no warrant when Fan was first taken into custody. Fan’s daughter has repeatedly asked the police at Mawei PSB for a detention notice, but she was refused. The police told her that no notice could be issued because the case was being investigated and that notifying Fan’s family would “obstruct the investigation.” Finally, 27 days after Fan was first seized, Mawei PSB sent out a detention notice to Fan’s family, stating that Fan had been detained for “libel.” However, when Fan’s daughter received a formal arrest warrant for Fan dated July 31, the charge was changed from “libel” to “making false accusations.”
6. Relevant legislation applied (if known):
The detention notice states that Fan was detained for “libel”, a crime stipulated under Article 246 of the Chinese Criminal Law, while the arrest warrant states that Fan was arrested for “making false accusations,” a crime stipulated under Article 243 of the Chinese Criminal Law Article 243.

 

III. Detention

1. Date of detention: June 26, 2009
2. Duration of detention (if not known, probable duration): Fan has been detained since she was first seized on June 26, 2009
3. Forces holding the detainee under custody:
Mawei PSB, Fuzhou City, Fujian Province

4. Places of detention (indicate any transfer and present place of detention):
Fuzhou City’s No. 2 Detention Center
5. Authorities that ordered the detention:
The detention notice was issued by Mawei District PSB, Fuzhou City, Fujian Province while the arrest warrant was issued by Mawei District Procuratorate, Fuzhou City, Fujian Province
6. Reasons for the detention imputed by the authorities:
The detention notice states that Fan was detained for “libel”, a crime stipulated under Article 246 of the Chinese Criminal Law, while the arrest warrant states that Fan was arrested for “making false accusations,” a crime stipulated under Article 243 of the Chinese Criminal Law Article 243.
7. Relevant legislation applied (if known):
See above
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 arrest and detention of Fan is arbitrary because it violates at least Categories II and III.
Category II: Fan together with two other Fujian activists, Wu Huaying (吴华英) and You Jingyou (游精佑, known online as He Suoge [赫索格]), were taken into custody between June 26, 2009, and July 5, 2009, after they posted articles online in which they accused local officials of misconduct in handling the suspicious death of Yan Xiaoling (严晓玲), a young woman from Minqing County, Fujian. The case, which touched on corruption, ties between local officials and organized crime, and the abuse and death of a young woman, was widely discussed by Chinese netizens. Fan, Wu, and You were then formally arrested on July 31 and charged with “making false accusations.” The three activists were tried on November 11, 2009 but the court has yet to deliver a verdict.
According to the Letter of Prosecution issued by the Mawei District Procuratorate, Fuzhou City, Fujian Province, the three activists have violated Article 243(1) of the Chinese Criminal Law because they “intentionally fabricated facts”, “colluded with websites based abroad such as Canyu and Boxun,” “exploited the internet to hype up the incident of Yan Xiaoling’s death…with the intention to subject other people to criminal accountability.” The person against whom they have allegedly “fabricated facts” is a man the three named as a local gang boss responsible for Yan’s death, who has strong support from and close ties with local officials.
It is also believed that the authorities retaliate against Fan for her years of human rights activism, which has made her a thorn in the eye of local officials. This is also a case of government abuses of a human rights defender.
CHRD believes that Fan has been detained and arrested solely for peacefully exercising her right to defend human rights and especially her freedom of expression. The police and the Procuratorate are using the crime of “making false accusations” to punish Fan for exposing and drawing attention to official corruption and misconduct in Fujian Province.
Category III: Fan’s right to fair trial was violated in a number of ways:
● Officials from the Mawei District, Fuzhou City Procuratorate requested that Fujian’s Fawei Law Firm dismiss lawyer Lin Zhong (林忠) from Fan’s case. According to the Procuratorate, Lin should be removed from the case because he formerly served as a public prosecutor; however, as his law firm pointed out, the law states only that a former public prosecutor is prohibited from acting as a defense lawyer for two years following the end of service for the state. Lin left the procuratorate over 20 years ago.
● The Fujian authorities barred Fan’s lawyer, Lin Zhong, from meeting with Fan on July 15, 2009, because the case involves “state secrets.” Lin was finally allowed to meet Fan on July 26, a month since she was first incarcerated.
● Fan has been barred from family visits ever since she was taken into custody.
● Fan was mistreated when she were first taken into custody. Fan was not allowed to use the restroom and as a result had to defecate on herself. Fan is also ill with serious kidney and neurological diseases. Fan’s family and lawyers have submitted five applications for bail for medical treatment to the Fujian authorities but the applications have either been rejected or received no response.
● Fan’s trial on November 11 was essentially a close trial. Officials allowed only the lawyers and two family members of each defendant to attend the trial, while supporters and journalists were barred from entering the courthouse.
For these reasons, we also allege that Fan has been subjected to cruel, inhumane and degrading punishment.

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

Two rescue remedies have been taken: public appeal and legal action
Public appeal: Individuals and groups in and outside of China have appealed for Fan’s release. For example:
● Human rights organizations, such as the Chinese Human Rights Defenders (CHRD), has released urgent appeals calling for his release with no avail.
● A protest letter signed by hundreds of netizens was delivered to the Beijing Liaison Office of the Fujian Provincial Government on January 20. The letter was addressed to the Fuzhou People’s Congress and it protested against the extended detention of Fan, You and Wu.
● The families of Fan, You and Wu have written letters to Fujian People’s Congress demanding their release but the letters were returned unopened.
Legal action:
● Fan is ill with serious kidney and neurological diseases. Fan’s family and lawyers have submitted five applications for bail for medical treatment to the Fujian authorities but the applications have either been rejected or received no response.

 

 

 

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