Submission to UN on Xie Fulin – April 13, 2012

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Communiqué on behalf of XIE Fulin, citizen of the People’s Republic of China  ALLEGING ARBITRARY ARREST OR DETENTION,  TORTURE, and VIOLATION OF RIGHT TO FREEDOM OF EXPRESSION

 

Submission to:

 

Working Group on Arbitrary Detention,

Special Rapporteur on the situation of human rights defenders,
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: XIE (谢)
2. First name: Fulin (福林)
3. Sex: Male
4. Birth date or age (at the time of detention): June 20, 1950
5. Nationality/Nationalities: People’s Republic of China (Han ethnicity)
6. Identity document (if any):

(a) ID Card
(b) Issued by the Changsha Municipal Public Security Bureau
7. Profession and/or activity (if believed to be relevant to the arrest/detention): Activity: promoting democracy rights (i.e., participating in activities of the banned China Pan-Blue Alliance, organizing and advocating for petitioners to defend their rights, and signing “Charter 08”). (See background section below for more details.)

8. Address of usual residence: No. 136 Liuzheng Street, Furong District, Changsha City, Hunan Province, People’s Republic of China

 

II. Arrest

1. Date of arrest: July 22, 2009
2. Place of arrest (as detailed as possible): At a teahouse in Changsha City, Hunan Province.
3. Forces who carried out the arrest or are believed to have carried it out: National security officers from the Furong District Branch of the Changsha PSB (“Furong PSB”)
4. Did they show a warrant or other decision by a public authority? No. While the officers produced their police IDs, they did not display a detention warrant or any other legal document.

 

III. Detention

Date of detention: July 22, 2009
2. Duration of detention: From July 23, 2009 through the present (i.e., his detention is ongoing). According to the court’s decision, his prison term expires on July 22, 2015.
3. Forces holding the detainee under custody: The Furong PSB held Mr. Xie from July 23, 2009, when he was first apprehended, until his transfer to Changsha Prison. The Changsha Prison Management Bureau is now responsible for holding Xie.

4. Places of detention (indicate any transfer and present place of detention): Mr. Xie was initially detained at the Changsha Muncipal Detention Center, and then transferred to Changsha Prison in Changsha City, Hunan Province following the rejected appeal of his sentence on May 26, 2010. He is currently incarcerated in Changsha Prison.
5. Authorities that ordered the detention: Furong District People’s Court
6. Reasons for the detention imputed by the authorities: larceny (for “stealing electricity”)

7. Relevant legislation applied (if known):
Mr. Xie’s six-year prison sentence for “larceny” was ordered pursuant to Article 264 of the Criminal Law of the People’s Republic of China, which stipulates a fixed-term imprisonment of not less than three years but not more than 10 years and a fine for whoever steals a huge amount of public or private property or commits theft repeatedly, or if there are other serious circumstances.

 

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 the morning of July 22, 2009, three officers from the National Security Unit of the Furong PSB burst into a teahouse where Mr. Xie and his wife, Jin Yan (金焰), were drinking tea, and took him away for “investigation.” The officers produced police IDs but they did not display a detention warrant or any other legal document. The next morning, Mr. Xie was able to telephone his family from the Changsha City Detention Center to report that he and his brother (who was seized separately on the evening of July 22) had been criminally detained on suspicion of “stealing electricity.” Mr. Xie was formally arrested (daibu) on August 14, 2009.

 

On January 14, 2010, the Furong District People’s Court tried Mr. Xie for the crime of “larceny,” and he pleaded not guilty. The presiding judge accepted a request by Xie’s lawyer, Ma Gangquan (马纲权) to continue the trial to a later date, arguing that the evidence must be reevaluated. Although prosecutors produced numerous written statements from witnesses, the judge refused to grant Mr. Ma’s request to call the witnesses to testify at court in violation of Article 47 of the Chinese Criminal Procedure Law (CPL). Mr. Xie also argued that a statement presented by police was an incomplete account of the verbal statement he had given during questioning.

 

On March 26, 2010, the court resumed the proceedings, convicted Xie of “larceny,” and sentenced him to six years’ imprisonment. As evidence of “larceny,” the court’s verdict stated that, beginning in July of 2007, Xie allegedly funneled electricity from an outside source directly into his residence, and that, from October 2008, Xie had used an outside electrical source to provide power to a restaurant that he had opened in August of that year. The power company allegedly warned Xie several times to cease and desist before filing a report with public security authorities, which ultimately led to Xie’s criminal detention on July 23, 2009. (The court’s verdict indicated that Xie’s brother also had allegedly committed the same acts.) Xie contended that the local authorities had given him permission to use the electricity as part of a verbal agreement between him and the authorities because the latter had allegedly illegally confiscated a property that belonged to Xie’s family.

 

Although the court’s verdict only references Xie’s alleged acts of “larceny” as the basis for its determination to incarcerate him, CHRD believes that the incarceration as well as the torture he has suffered in prison (see below for more details) are related to Xie’s rights activism. These activities have included defending his own property rights (which his brother, Xie Shulin, also participated), being a member of the banned political party China Pan-Blue Alliance of Chinese Nationalists, organizing and advocating for petitioners to defend their rights, and signing “Charter 08.” For many years, Xie had been frequently harassed and temporarily detained by authorities in retaliation for these activities. A police source reportedly told the Xie family after the verdict was announced that the case and conviction were political and stemmed from Xie’s petitioning and rights activities.

 

Under the Working Group’s criteria for determining when a deprivation of liberty is arbitrary, the circumstances of Ms. Xie’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).

 

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.

 

Following his conviction on March 26, 2010, Mr. Xie filed an appeal in the Changsha Intermediate People’s Court challenging the original sentence. On May 26, 2010, the court rejected Xie’s appeal. According to Xie’s family, the court upheld the original decision to incarcerate Xie for six years without convening a court hearing or notifying Xie’s lawyers or relatives. Xie’s wife, Jin Yan, only learned of the court’s decision after she personally went to the Changsha Intermediate People’s Court on June 9, 2010. Xie’s lawyer, Ma Gangquan, stated that the court violated relevant regulations by failing to publicly announce its ruling, and that by doing so, it “obviously had something to hide.”

 

Additional information relating to torture/cruel treatment while imprisoned:

 

During his ongoing detention, Mr. Xie has suffered from numerous serious illnesses that have gone inadequately treated, leaving his health in urgent peril. With Xie’s illnesses only worsening as of the time of this communiqué, both Xie and his wife have expressed concern that he may not live through his prison term, which is set to expire in the summer of 2015. Prison authorities have consistently refused to allow Xie to receive outside medical treatment—which is of much better quality—claiming that “higher authorities have not approved.” As of the summer of 2011, one application for Xie to be released on medical parole had been rejected. Besides struggling with health problems, Xie has also been subjected to physical violence, intimidation, and threats while in prison.

 

In May 2010, a doctor at the Changsha Municipal Detention Center informed Jin Yan that Xie was suffering from dangerously high blood pressure, and the doctor asked Jin to bring her husband medication. During a visit later that month, lawyer Ma Gangquan found Xie in very poor health, and he noted that Xie’s hands and feet were swollen and discolored. Shortly thereafter, Jin reported that Xie was suffering from fainting spells. In March 2011, Jin Yan visited her husband at the Changsha Municipal Prison and found that his health had declined further; his body was swollen, and he had been unable to obtain effective treatment for his heart disease or high blood pressure and was frequently experiencing sharp chest pains. Visits by Jin in September and December of 2011 revealed that some of Xie’s illnesses (heart disease and high blood pressure) had worsened, and that he had also developed intestinal problems due to poor nutrition.

 

As of January 2012 Jin Yan was reportedly no longer allowed to bring medicine to her husband. In February 2012, Jin noted that Xie was so weak that three individuals were needed to carry him out of his cell to visit with her. Xie again told her that his illnesses were getting worse and reiterated that prison authorities refused to provide him with adequate medical care. However, prison officials have reportedly pressured Xie to admit his guilt, and if he does so, they told him that his sentence might be reduced. Xie has refused the deal.

 

Besides not providing Mr. Xie with adequate medical care, prison authorities have also subjected him to violence. In early November 2010, Xie told visiting family members that he had been attacked by a “jail bully” the previous week, and that prison officials had taken no action against the assailant. The attack caused Xie to suffer an episode of high blood pressure and chest pains for which he spent four days receiving treatment in the prison hospital. In May 2011, Xie was beaten by a prison guard. Xie told his wife that he was lying on his bed, having just taken his blood pressure medication, when a guard came to his cell for an inspection. Xie was feeling ill and was unable to stand when the guard demanded he do so, and the guard, reeking of alcohol, proceeded to drag Xie down a flight of stairs, hitting him along the way. Xie was taken to the prison infirmary, where he spent the night.

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