Submission to UN on Hu Jia – April 9, 2010
Comments Off on Submission to UN on Hu Jia – April 9, 2010Questionnaire to be Completed by Persons Alleging Arbitrary Arrest or Detention of Human Rights Defender, PRC Citizen Hu Jia
To: The Working Group on Arbitrary Detention
I. IDENTITY
1. Family name: Hu
2. First name: Jia
3. Sex: Male
4. Birth date or age (at the time of detention): 34
5. Nationality/Nationalities: People’s Republic of China
6. (a) Identity document (if any): Identification Card
(b) Issued by: Beijing Public Security Bureau, Chaoyang PSB Branch 北京市公安局朝阳分局
(c) On (date): 2007.07.08
7. Profession and/or activity (if believed to be relevant to the arrest/detention):
Hu became an AIDS activist in 2001. He is co-founder of the Beijing Aizhixing Institute of Health Education and Loving Source, two grassroots organizations dedicated to helping children from AIDS families. Due to his criticism of the government’s failures in AIDS prevention and care, he had been repeatedly harassed and beaten by police.
Hu’s activism extended beyond AIDS. He has reported violations of many different human rights, giving interviews to overseas press and writing about other activists’ plight. Prior to his detention on December 27, Hu and his wife, Zeng Jinyan, had been under “residential surveillance” (jianshi juzhu) without legal authorization since April, 2004. Hu was also forcibly “disappeared” by police for 41 days in 2006.
Despite being under residential surveillance, Hu refused to be silenced, continuing to report on rights violations prior to the Games. Hu was taken from his home on December 27, 2007 and formally arrested on January 28, 2008 on suspicion of “inciting subversion of state power”. On March 18, Hu was tried by the Beijing Municipal No. 1 Intermediate People’s Court. On April 3, Hu was sentenced to three-and-a-half years’ imprisonment and one year’s deprivation of political rights for “inciting subversion of state power.”
II. Arrest
1. Date of arrest: Hu was taken into custody on December 27, 2007 and formally arrested on January 28, 2008
2. Place of arrest (as detailed as possible):
At around 3 p.m. on December 27, about 20 policemen forced into Hu’s home. They surrounded Hu’s wife Zeng Jinyan, Hu’s one-month-old daughter and Zeng’s grandmother who was visiting the couple. Police proceeded to cut off their telephone line and internet connections and confiscated their cell phones to prevent them from contacting others. Police then took Hu away. Police issued a detention order stating that Hu was detained on suspicion of “inciting subversion of state power”, without specifying where he was to be detained. After Hu was taken away, several policemen stayed behind at Hu’s home to guard Zeng and her child.
3. Forces who carried out the arrest or are believed to have carried it out:
National Security Unit under Beijing Municipal Public Security Bureau
4. Did they show a warrant or other decision by a public authority?
Yes
5. Authority who issued the warrant or decision:
Beijing Municipal Public Security Bureau
6. Relevant legislation applied (if known):
Hu was arrested on suspicion of “inciting subversion of state power”, a crime stipulated in Article 105(2) of the Chinese Criminal Code
III. Detention
1. Date of detention: December 27, 2007
2. Duration of detention (if not known, probable duration): 106 days (as of April 10, 2008)
3. Forces holding the detainee under custody:
National Security Unit under Beijing Municipal Public Security Bureau
4. Places of detention (indicate any transfer and present place of detention):
Beijing Municipal Detention Center
5. Authorities that ordered the detention:
National Security Unit under Beijing Municipal Public Security Bureau and Beijing Municipal No. 1 Intermediate People’s Court
6. Reasons for the detention imputed by the authorities:
Because Hu is guilty of “inciting subversion of state power”, a crime stipulated in Article 105(2) of the Chinese Criminal Code
7. Relevant legislation applied (if known):
The authorities charge that Hu is guilty of “inciting subversion of state power”, a crime stipulated in Article 105(2) of the Chinese Criminal Code
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).
Hu’s detention is arbitrary because it violates categories B and C, and possibly A.
B) Hu has been incarcerated as a result of exercising his right to freedom of expression
Hu has reported violations of many different human rights, giving interviews to overseas press and writing about other activists’ plight. Six articles he wrote and two press interviews he gave on China’s human rights situation were used as the only evidence to convict Hu of his “crime” of “inciting subversion of state power”.
In other words, there is no evidence to suggest that Hu’s expression had any potential or real subversive effect. Hu is punished for peacefully exercising his right to freedom of expression.
C) Hu’s trial was unfair on several grounds. During the 4-hour trial, Hu’s lawyers were allowed only 20 minutes to speak. The lawyers had not finished reading out their defense when they were cut off by the judge. The lawyers attempted to speak four times after that, but they were immediately stopped each time because, according to the judge, their arguments were “irrelevant”. In other words, his lawyers were given much less time to speak compared to his prosecutors, thus violating the principle of equality which is essential in a fair trial.
Although the trial was supposed to be public, Hu’s father, his wife and a number of foreign diplomats were barred from attending it. Hu’s mother was allowed to attend the trial. The courtroom was otherwise packed with a dozen court officials and police officers. Thus Hu’s trial was effectively closed to the public, as Hu’s immediate family members and his supporters were barred from attending it.
The processes of investigation and interrogation prior to Hu’s trial were equally flawed. In the first month of his detention, Hu was deprived of access to legal counsel and to his family. Then, only one of his two lawyers was allowed to visit him. And then, the court gave insufficient time—seven days only—for his lawyers to study the large volume of case files in preparation for his defense.
A) Hu’s detention possibly violates Category A. Hu is incarcerated for “inciting subversion of state power,” a crime frequently invoked to punish free expression (see CHRD report, Inciting Subversion of State Power”: A Legal Tool for Prosecuting Free Speech in China, https://www.nchrd.org/Article/Class9/Class11/200801/20080108225721_7032.html). The legal provisions in the PRC Criminal Procedural Law (Article 61) and PRC Criminal Law (Article 105) justifying this pattern of persecution of speech violate Article 35 of the Chinese Constitution which guarantees freedom of expression.
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: Numerous individuals and groups in and outside of China have appealed for Hu’s release. For example:
1) Since Hu’s detention, dozens of prominent dissidents and human rights defenders have released a number of public letters calling for Hu’s release.
2) Dozens of Hu’s supporters have gone to his home to deliver milk powder and other necessities to his wife and baby daughter under house arrest
3) In early January, at least 800 Shanghai citizens participated in a hunger strike to call for Hu’s release
4) Hu’s wife Zeng Jinyan, an activist in her own right, has been vocal about Hu’s case in her blog despite being under house arrest and police surveillance.
However, none of these actions have resulted in Hu’s release.
Legal action:
1) Prior to Hu’s imprisonment, on January 14, Hu’s lawyers applied for Hu’s release on bail on medical grounds. However, the application was later denied. Authorities cited that releasing Hu on bail would “endanger society”.
Hu was diagnosed in 2006 with cirrhosis of the liver after he was forcibly “disappeared” by police for 41 days. Hu has Hepatitis B and was denied access to medication during his disappearance.
During his current incarceration, Hu is given Lamivadine, a Hepatitis B medication. However, Hu is denied regular medical check-ups and access to liver specialists necessary for providing him with an appropriate course of treatment. Reportedly, Hu had one medical check-up but neither Hu, his family nor lawyers have access to the results. Patients with liver cirrhosis must also be given adequate nutrition, exercise and rest. Early in his detention, Hu was subjected to lengthy (up to 14 hours) interrogations, usually at night. Hu is a vegetarian and his family believes that he is not given adequate food and nutrition. Hu is not in good health: he had a mouth infection earlier and he looked thin and pale when his family visited on March 18.
2) Hu was sentenced on April 3. On April 14, the deadline for submitting an appeal, the lawyers went to consult Hu about his final decision on the appeal. However, detention center authorities told Hu’s lawyers that Hu “was not there” because he had “gone out for a physical check-up”. On April 15, the lawyers returned to the Detention Center but were unable to meet Hu because, according to the authorities, the “deadline for the appeal has passed”.
3）Since then, lawyers have filed for “medical parole”. Mr. Hu’s wife Zeng Jinyan tried to visit Hu Jia at the detention center, but was told that Hu Jia was not allowed any visits. Ms. Zeng is not sure whether Hu Jia has been transferred to a prison.
See more UN work on case of Hu Jia:
Communication on a Victim of an Enforced or Involuntary Disappearance, March 7, 2006
