Submission to UN on Chen Xi – March 27, 2012

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Communiqué on behalf of CHEN Xi, citizen of the People’s Republic of China, Alleging Arbitrary Arrest Or Detention, and Violations Of Right To Freedom Of Expression and the Rights To Freedom Of Peaceful Assembly and Of Association

 

To:  Working Group on Arbitrary Detention

Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression,

Special Rapporteur on the rights to freedom of peaceful assembly and of association, and

Special Rapporteur on the situation of human rights defenders

     via the Office of the High Commissioner for Human Rights

 

 

 

I. IDENTITY

1. Family name:  CHEN ()

2. First name:  Xi (西) (also previously known by the first name “Youcai” (友才))

3. Sex:     Male

4. Birth date or age (at the time of detention):  February 28, 1954

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

6. Identity document (if any): N/A

7. Profession and/or activity (if believed to be relevant to the arrest/detention): Activity: promoting democracy, organizing a political party, and promoting human rights (including participation in the 1989 pro-democracy movement and in the organization of the Guizhou chapter of the banned China Democracy Party and the recently banned Guizhou Human Rights Forum). (See background section below for more details.)

 

II. Arrest

1. Date of arrest:  November 29, 2011

2. Place of arrest (as detailed as possible): Jinyang Subdivision of the Guiyang Public Security Bureau (“Jinyang PSB”), Guiyang City, Guizhou Province

3. Forces who carried out the arrest or are believed to have carried it out: Police officers from the Jinyang Subdivision of the Guiyang Public Security Bureau (“Jinyang PSB”)

4. Did they show a warrant or other decision by a public authority? It is unclear whether the police presented Mr. Chen with an arrest warrant on November 29.

III. Detention

Date of detention: Mr. Chen was initially taken into custody on November 29, 2011. On December 26, 2011, the Guiyang Intermediate People’s Court convicted Mr. Chen of “inciting subversion” and sentenced him to 10 years in prison.

2. Duration of detention: From November 29, 2011, through the present (i.e., his detention is ongoing). According to the court’s decision, his prison term expires on November 28, 2021.

3. Forces holding the detainee under custody: The Jinyang PSB detained Mr. Chen on November 29, 2011. On December 26, 2011, the Guiyang Intermediate People’s Court sentenced Chen to 10 years’ imprisonment, including time served.

4. Places of detention (indicate any transfer and present place of detention): Mr. Chen was initially detained at the Guiyang City No.1 Detention Center, and then transferred to Xingyi Prison in Xingyi City, Guizhou Province on January 17, 2012. He is currently incarcerated in Xingyi Prison.

5. Authorities that ordered the detention: Guiyang Intermediate People’s Court

6. Reasons for the detention imputed by the authorities: inciting subversion of state power

 

7. Relevant legislation applied (if known): Mr. Chen’s 10-year prison sentence for “inciting subversion” was ordered pursuant to Article 105 (2) and Article 66 of the Criminal Law of the People’s Republic of China. The court relied on Article 66 to give Mr. Chen, who had prior convictions for similar crimes, a harsher than usual sentence for violation of Article 105(2). (See background section below.)

Article 105 (2) stipulates fixed-term imprisonment of not less than five years, criminal detention, public surveillance or deprivation of political rights for whomever incites others by spreading rumors or slanders or any other means to subvert the State power or overthrow the socialist system, and the ringleaders and others who commit major crimes.

Article 66 stipulates that a criminal of endangering national security shall be dealt with as a recidivist if the individual commits the same crime again at any time after serving his sentence or receiving a pardon.

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 November 29, 2011, Mr. Chen was summoned to appear at the Jinyang Subdivision of the Guiyang City Public Security Bureau (“Jinyang PSB”) to retrieve his computer, which had been confiscated by police officers on October 19, along with other property (see background and additional information below). Once at the police station, however, Chen was arrested and taken into custody. The police did not notify Chen’s wife, Zhang Qunxuan (张群选) of Chen’s arrest until December 11. When Ms. Zhang asked police about the delay in notification, police said the arrest warrant was not delivered until that date because earlier notification might have “hindered the investigation.” Mr. Chen’s case was sent to the Guizhou Intermediate People’s Court on December 16, only five days after Ms. Zhang received notification of his arrest.

 

During Mr. Chen’s trial, the presiding judge repeatedly interrupted Mr. Chen’s lawyer, Sun Guangquan   (孙光权) and Mr. Chen as they attempted to present their defense arguments. In addition, the judge did not allow Mr. Chen to make a final statement as required under Article 160 of China’s Criminal Procedure Law, which stipulates “the defendant shall have the right to present a final statement”. Mr. Chen’s wife later indicated that the court held a de facto closed trial; among the more than 60 individuals who attended the hearing, all but three—herself, the couple’s daughter, and another relative—were government officials. The Criminal Procedure Law stipulates, however, that trials of the first instance, such as Mr. Chen’s, “shall be heard in public” (art. 152).

 

As evidence of “inciting subversion of state power and of the socialist system,” the court’s verdict cited excerpts taken from among 36 articles that Mr. Chen published on several overseas websites since May of 2005. While the principle ideas of the writings called for democracy and human rights, the court found that Mr. Chen’s work had slandered “the Chinese Communist Party as a lawless, underground organization that arbitrarily deprives [its citizens] of human rights” and called the “government ‘evil’ and ‘cruel’.” The court’s decision also cited text that expressed negative views of communism and Marxism.

 

Although the court’s verdict only references portions of Mr. Chen’s writings as the basis for its determination to incarcerate him, it is likely that Mr. Chen was also being punished for his ongoing pro-democracy and human rights activism since his release from prison in 2005. These activities have included his participation, since 2006, in the Guizhou Human Rights Forum, a civil society organization, as well as his involvement in Guiyang’s Local People’s Congress elections in 2011 (see background below).

 

Under the Working Group’s criteria for determining when a deprivation of liberty is arbitrary, the circumstances of Mr. Chen’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 (UDHR)) 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).

 

The crime of “inciting subversion of state power” is frequently used by the Chinese government to prosecute activists and dissidents for peaceful expression. Neither the PRC Criminal Law nor relevant regulations or interpretations define “subversion,” or what conduct constitutes “inciting” subversion. (See CHRD’s 2008 report on this issue, “Inciting Subversion of State Power”: A Legal Tool for Prosecuting Free Speech in China, available at https://www.nchrd.org/2008/01/08/inciting-subversion-of-state-power/.)

 

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.

 

After he was sentenced by the Guiyang Intermediate People’s Court on December 26, 2011, Mr. Chen indicated that he would not appeal the decision. Later he explained that given the problems with the Chinese legal system, an appeal would have been futile.

 

 

Background and additional information relating to previous arbitrary detentions as well as violation of the rights to freedom of peaceful assembly and of association:

 

Arbitrary Detention

 

For more than two decades, Mr. Chen has been subjected to numerous instances of arbitrary detention in retaliation for his pro-democracy activism and organizing. Prior to his current sentence, Mr. Chen was imprisoned on two other occasions following convictions for alleged offenses related to his pro-democracy activities. Mr. Chen was imprisoned in 1989 for three years for “counterrevolutionary propaganda and incitement” for allegedly participating in and helping to establish the “Patriotic and Democratic Federation” during the 1989 pro-democracy movement. In 1996, he was sentenced to 10 years in prison for allegedly “organizing and leading a counterrevolutionary group”—the Guizhou chapter of the China Democracy Party—and was released in 2005.

 

Since 2006, Mr. Chen has frequently been arbitrarily detained due to his activities as a member of the Guizhou Human Rights Forum, an informal group of citizens whose goals have been to increase awareness of international human rights by distributing human rights materials to the public and organizing symposiums and annual events marking Human Rights Day each December 10. Most recently, in September 2011 (before his current imprisonment), Guiyang authorities detained Mr. Chen and other members of the Guizhou Human Rights Forum in unofficial detention facilities for three weeks to prevent them from “making trouble” during the 9th National Traditional Games of Ethnic Minorities, which were held in Guizhou Province between September 10 and 18, 2011. On December 5—just days after Mr. Chen’s arrest—government officials in Guizhou Province declared the Guizhou Human Rights Forum an “illegal organization.”

 

Mr. Chen had planned to run as an independent People’s Congress candidate in Guiyang this year, and, as a result, was subjected to arbitrary detention and other rights violations in the run-up to and on the day of the elections, which were held on November 8, 2011. After national security officers in Guiyang learned about Mr. Chen’s plan to run in his local election, they warned him that they would find a way to prevent him from filing as an independent candidate. On October 19, 2011, two employees from a local elections center and a policeman followed Mr. Chen home after he had obtained information from the center. They demanded he turn over a USB he had used—claiming Mr. Chen had copied confidential information—and they forbade anyone in the home from using a computer. At approximately 11 p.m. that evening, the chief of the Jinyang PSB and more than 10 individuals forcibly entered Chen’s home and confiscated three computers, a printer, a USB drive, a camera, and materials related to local elections. They also took Mr. Chen away and held him in a local police station until releasing him on October 25. This nearly week-long detention is believed to have been conducted in order to intimidate Mr. Chen and prevent him from filing as an independent People’s Congress candidate; Mr. Chen was released only after the deadline had passed for nominating local candidates, a process that he had not completed.

 

Just two days before the elections, on November 6, national security officers from Guiyang took Mr. Chen on “forced travel” to Guiding County. Mr. Chen was subsequently brought home and warned against leaving home the next day or else he would be taken on “forced travel” again. Mr. Chen was held under soft detention in his home until after the elections ended on November 8. He was taken into custody again on November 29, 2011, followed by a hasty trial, conviction and 10-year sentence, the subject of this communiqué.

 

Cruel Treatment

 

While serving his current sentence in Xingyi Prison, Mr. Chen reportedly suffered frostbite due to conditions in the facility, according to his wife, Zhang Qunxuan, who visited Mr. Chen on February 3. Ms. Zhang stated that her husband’s hands were frostbitten because of unusually cold temperatures and lack of sufficient blankets and warm clothing. She said that the prison refused to accept the clothing she had brought for Mr. Chen on the day of the visit, demanding that she mail the clothes to the facility instead. She also said that Mr. Chen had grown thin during his incarceration.

 

After Mr. Chen was transferred to Xingyi Prison on January 17, 2011, authorities did not disclose his new place of detention to his family. They only told Ms. Zhang where Mr. Chen was being held after she threatened to go to the media about the officials’ unlawful conduct in failing to notify her of his whereabouts.

 

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