Submission to UN on Ma Lijun – December 15, 2011

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Communiqué on behalf of Ma Lijun, citizen of the People’s Republic of China, Alleging Arbitrary Arrest of Detention, Torture, and Violation of Right to Freedom of Expression

 

To:  Working Group on Arbitrary Detention,

 

Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, and

 

Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression via the Office of the High Commissioner for Human Rights

 

I. IDENTITY

1. Family name: MA (马)

 

2. First name: Lijun (丽君)

 

3. Sex: Female

 

4. Birth date or age (at the time of detention): December 25, 1958

 

5. Nationality/Nationalities: People’s Republic of China (Hui ethnicity)

 

6. Identity document (if any): (a) ID Card

(b) Issued by the Shijiazhuang Municipal Public Security Bureau

 

7. Profession and/or activity (if believed to be relevant to the arrest/detention): Activity: petitioning (i.e., lodging complaints with government entities about rights abuses and/or unlawful conduct of officials or other functionaries)

 

II. Arrest

 

1. Date of arrest: August 9, 2011

 

2. Place of arrest (as detailed as possible): Near Zhongnanhai (i.e., China’s senior leadership compound) in Beijing Municipality.

 

3. Forces who carried out the arrest or are believed to have carried it out: Police officers from the Beijing Xicheng District Fuyou Street Police Station. The Xicheng District police officers took Ms. Ma to the Jiujingzhuang Relief Station, a black jail‖ in Beijing. On the same day (August 9, 2011), Ms. Ma was forcibly taken from the Jiujingzhuang black jail to Shijiazhuang City, Hebei Province by police officers from the Qiaoxi District Branch of the Shijiazhuang Municipal Public Security Bureau (Shijiazhuang PSB).

 

4. Did they show a warrant or other decision by a public authority? No

 

III. Detention

 

1. Date of detention: Ms. Ma was initially taken into custody on August 9, 2011 as explained above. She was ordered to serve 10 days of administrative detention by officers at the Qiaoxi District Branch of the Shijiazhuang PSB. Before her 10-day term expired, on August 17, the Re-education through Labor (RTL) Management Committee of the Shijiazhuang Municipal Government issued a Re-education through Labor Decision (RTL Decision), ordering Ms. Ma to spend one year and six months in an RTL facility.

 

2. Duration of detention: From August 9, 2011 through the present (i.e., her detention is ongoing). According to the RTL Decision, her RTL term expires on February 8, 2013.

 

3. Forces holding the detainee under custody: Ms. Ma is currently incarcerated at the Hebei Provincial Women’s Re-education through Labor Facility in Luquan, Shijiazhuang City, by the authority of the RTL Management Committee of the Shijiazhuang Municipal People’s Government (Shijiazhuang RTL Committee).

 

4. Places of detention (indicate any transfer and present place of detention): Ms. Ma was first detained for approximately ten hours at the Jiujingzhuang black jail. She was then forcibly taken back to Shijiazhuang and held at the Shijiazhuang Detention House pursuant to the 10-day administrative detention order issued by the Qiaoxi District Branch of the Shijiazhuang PSB. Ms. Ma was then transferred to the Hebei Provincial Women’s Re-education through Labor Facility to serve her RTL term.

 

5. Authorities that ordered the detention: The Qiaoxi District Branch of the Shijiazhuang PSB and the Shijiazhuang RTL Committee.

 

6. Reasons for the detention imputed by the authorities: disruption of order in a public place; “abnormal petitioning”

 

7. Relevant legislation applied (if known): Ms. Ma’s 10-day administrative detention was ordered pursuant to Article 23 (2) of the Public Security Administration Punishment Law of the People’s Republic of China, which authorizes—if the circumstances are ―”serious”—detention of up to 10 days and a maximum 500 RMB fine for―disrupting the public order of train stations, ports, docks, airports, markets, parks, exhibition halls or other public places.

 

The RTL Decision cites the following regulations and measures: Decision of the State Council on the Question of Re-education through Labor, the Supplementary Decision of the State Council on Re-education through Labor, and the Provisional Measures on Re-education through Labor, article 10, paragraph 5, and article 13. The Shijiazhuang Municipal Government’s Administrative Reconsideration Decision (dated November 23, 2011) (Administrative Reconsideration Decision) upholding the RTL Decision also cites the 2005 Regulations on Letters and Visits (i.e., petitioning), articles 14 and 18.

 

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

 

Ms. Ma was taken into custody by police officers from the Beijing Xicheng District Fuyou Street Police Station on August 9, 2011 while she was petitioning in Beijing near Zhongnanhai –the central compound for top government and Party leadership. Ms. Ma was then taken to Jiujingzhuang, a black jail in Beijing, where she was held until public security officers from Shijiazhuang arrived to take her back to Shijiazhuang. Officials from the Qiaoxi District Branch of the Shijiazhuang PSB promptly issued a decision ordering Ms. Ma to spend 10 days in administrative detention at the Shijiazhuang Detention House. While Ms. Ma was serving the 10-day administrative detention, the Shijiazhuang RTL Committee issued its decision on the same “offense,” requiring Ms. Ma to serve one year and six months in an RTL facility (with the 10 days of administrative detention for the same “offense” deducted from the 18-month RTL term). Both the initial 10-day detention and the subsequent 18-month RTL term were punishment not only for the exercise of Ms. Ma’s constitutional right to petition Chinese authorities, but also her right to freedom of expression enshrined in Article 19 of the Universal Declaration of Human Rights (UDHR), which includes the freedom “to seek, receive, and impart information.”

 

Under the Working Group’s criteria for determining when a deprivation of liberty is arbitrary, the circumstances of Ms. Ma’s detention satisfy both Category II (i.e., 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 Category III (i.e., when the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the UDHR 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).

 

With respect to Category II, Ms. Ma was exercising her right to freedom of expression guaranteed in the UDHR when she was taken into custody while petitioning near Zhongnanhai in an effort to seek redress for her grievances. Her activities are protected not only by the UDHR, but also by Chinese domestic law. Article 41 of the PRC Constitution guarantees Chinese citizens the right to make complaints to relevant state organs, ―or exposures of, violation of the law or dereliction of duty by any state organ or functionary. Article 41 also prohibits the suppression of complaints and retaliation against citizens who make such complaints. Moreover, Article 3 of the 2005 Regulations on Letters and Visits stipulates that “no organization or individual may persecute or retaliate against a petitioner.”

 

Regarding Category III, as the Working Group is well aware, the Re-education through Labor (RTL) system is a form of administrative detention that operates completely outside of the judicial system, and hence the institution itself contravenes, at a minimum, Articles 9 and 10 of the UDHR. Public security authorities are authorized to detain Chinese citizens for up to four years without regard for even the most basic of fair trial rights—including the right to a fair and public hearing by an independent and impartial tribunal and the opportunity to challenge the lawfulness of the detention before a court.  Ms. Ma’s detention in an RTL facility thus also satisfies the criteria set forth in Category III, and hence her deprivation of liberty is arbitrary under both Category II and Category III.

 

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.

 

A lawyer challenged the RTL Decision in Ms. Ma’s case through the administrative reconsideration (xingzheng fuyi) process. On November 23, 2011, the Shijiazhuang Municipal Government rejected the administrative reconsideration petition and upheld the original RTL Decision. In early December, after learning that the RTL Decision had been upheld, the lawyer filed a lawsuit against the RTL Committee pursuant to the Administrative Litigation Law (ALL). As of December 14, 2011, the court had not yet formally docketed the ALL suit. As with administrative reconsideration, ALL challenges to RTL decisions are rarely successful.

Additional information on the case, including information relating to allegations of arbitrary detention, torture/mistreatment:

 

Freedom of expression

 

According to Ms. Ma’s husband, Jin Qi (金琪), various local authorities have threatened him for giving interviews to the media about Ms. Ma’s case.

 

Arbitrary detention

 

Prior to her current RTL term, Ms. Ma was arbitrarily detained for short periods on several occasions in retaliation for petitioning about alleged unlawful judicial conduct. According to the RTL Decision’s recitation of her prior ―unlawful conduct‖ in the RTL Decision, on July 15, 2005, the Chaoyang District Branch of the Beijing Public Security Bureau ordered Ms. Ma to serve seven days of administrative detention for petitioning in front of the U.S. Embassy in Beijing. Ms. Ma was administratively detained on three other occasions in 2005 for petitioning in front of the United Nations Development Programme Office in Beijing. On June 13, 2011, Ms. Ma was detained for five days after petitioning near Zhongnanhai in Beijing.

 

Torture/ Mistreatment

 

On August 9, when the Shijiazhuang (plainclothes) police officers seized Ms. Ma at the Jiujingzhuang black jail forcibly pulling her into a vehicle, she resisted. The officers then beat Ms. Ma severely, causing injuries to her chest, abdomen and arms. After the RTL Decision was issued, and Ms. Ma was in the process of being transferred to the Hebei Provincial Women’s RTL Facility, the RTL facility thrice refused to take her because of her injuries. Eventually, however, the facility was compelled to admit her. Ms. Ma is currently in poor physical health as a result of her injuries, and suffers from extensive edema. She has not received adequate medical treatment, and is forced to labor every day in the RTL facility.

 

 

 

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