Submission to UN on Lü Jiaping – November 29, 2012

December 1, 2012       Comments Off on Submission to UN on Lü Jiaping – November 29, 2012

Submission 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 independence of judges and lawyers

Special Rapporteur on the situation of human rights defenders

Special Rapporteur on the right to health

          

Communiqué on behalf of Lü Jiaping, citizen of the People’s Republic of China

 

I. IDENTITY

1. Family name:  Lü (吕)

2. First name: Jiaping (加平)

3. Sex: Male

4. Birth date or age (at the time of detention): June 14, 1941

5. Nationality/Nationalities: People’s Republic of China

6. Profession and/or activity (if believed to be relevant to the arrest/detention): Dissident and military scholar who wrote critically about Chinese Communist Party leadership.

II. Arrest

1. Date of arrest: September 4, 2010.  This is the day Lü was initially taken into custody prior to a period of “residential surveillance” (jianshi juzhu).

2. Place of arrest (as detailed as possible): Lü was taken into his custody at his home in Shaoyang, Hunan (address above) on September 4, 2010, and then taken to Beijing Municipality, where he was placed under “residential surveillance” in an unknown location on September 5, 2010.

3. Forces who carried out the arrest or are believed to have carried it out: Police officers from the Shaoyang City Public Security Bureau (“Shaoyang PSB”) initially detained Lü, and then turned him over to officers from the Beijing Municipal Public Security Bureau (“Beijing PSB”).

4. Did they show a warrant or other decision by a public authority?  Not known.

 

III. Detention

1. Date of detention: January 17, 2011 [date of formal arrest (daibu) following period of “residential surveillance” in an unknown location discussed above.]

2. Duration of detention: From January 17, 2011 through the present (i.e., his detention is ongoing). According to the court’s decision, his 10-year sentence expires on January 14, 2021.

3. Forces holding the detainee under custody: Police officers from the Shaoyang PSB initially seized Lü, and then turned him over to officers from the Beijing PSB, who held Mr. Lü under “residential surveillance,” and then detained him at the Beijing No. 1 Detention Center following his arrest on January 17, 2011. After his conviction on May 13, 2011, Lü was transferred to Shaoyang City Prison in Shaoyang City, Hunan Province to serve out his sentence.

4. Places of detention (indicate any transfer and present place of detention): The Beijing PSB held Mr. Lü under residential surveillance in an unknown location (from September 5, 2010) and then detained him at the Beijing No. 1 Detention Center after arresting him on January 17, 2011. Following his conviction, Lü was transferred on July 19, 2011 to Shaoyang City Prison in Shaoyang City, Hunan Province, where he is currently incarcerated.

5. Authorities that ordered the detention: Beijing No. 1 Intermediate People’s Court, Beijing Municipality

6. Reasons for the detention imputed by the authorities: incitingsubversion of state power (through publishing articles online)

7. Relevant legislation applied (if known): Mr. Lü’s 10-year prison sentence for “inciting subversion of state power” was ordered pursuant to Article 105 (2) of the Criminal Law of the People’s Republic of China, which stipulates fixed-term imprisonment of not less than five years, criminal detention, public surveillance or deprivation of political rights to those who incite others by spreading rumors or slanders or any other means to subvert the State power or overthrow the socialist system.

 

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

Mr. Lü Jiaping, a dissident and military scholar, was taken into custody in Shaoyang City, Hunan Province on September 4, 2010, by officers from the Shaoyang PSB on suspicion of “inciting subversion of state power.” When seizing Lü, officers also took into custody his wife, Yu Junyi (于钧艺), on the same charge. Officers from the Beijing PSB then took the couple to Beijing Municipality, where they were placed under “residential surveillance” in an unknown location the next day. On September 19, Jin Andi (金安迪), a friend of Mr. Lü, was taken into custody in Xi’an City, Shaanxi Province on suspicion of “inciting subversion” in the same case.

Formally arrested on January 17, 2011, Lü was being held incommunicado in Beijing when he was indicted on April 8, 2011. On May 13, 2011, the Beijing Intermediate People’s Court tried and convicted Lü of “inciting subversion” and sentenced him to 10 years in prison.[1] Lü’s family members were never informed of his detention or trial, and thus the family was unable to attend the proceedings or hire a lawyer to represent Lü. The trial proceeded as a de facto closed hearing, in violation of Articles 11 and 152 of the Criminal Procedure Law, which require first-instance trials such as Lü’s be heard in public.

In its verdict, the court cited as “evidence” a number of articles allegedly written by Lü that were posted on overseas websites between 2000 and 2010, which allegedly “spread rumors” about and “slandered” the leadership of the Communist Party. In part, the harsh sentence is believed to come in retaliation for Lü’s alleged exposure of scandals involving Chinese officials, including a 2004 article claiming that former Chinese President Jiang Zemin (江泽民)was a “traitor” with questionable background and political credentials, and had engaged in an affair with a famous Chinese singer. Among the articles cited by the court’s ruling were works entitled, “The Origin of the Communist Party’s System of One-Party Rule,” “After Over Twenty Years, Do Chinese Communist Party’s Position of Leadership and Central Role Exist?”

Although Lü’s alleged actions were exercises of his right to freedom of expression and association that are protected under both international human rights law and by China’s Constitution, Lü was arrested and severely punished with a lengthy sentence for “inciting subversion of state power” based on his writings and their online posting and dissemination.

Under the Working Group’s criteria for determining when a deprivation of liberty is arbitrary, the circumstances of Mr. Lü’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, 20, 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).

As the Working Group’s jurisprudence reflects, the crimes of “subversion of state power” and “inciting subversion” (Articles 105(1) and 105(2) of the PRC Criminal Law, respectively) are often used by the Chinese government to prosecute activists and dissidents for peaceful expression in violation of international human rights law. (See, e.g., Opinion No. 7/2012 (Chen Wei), Opinion No. 23/2011 (Liu Xianbin), Opinion No. 15/2011 (Liu Xiaobo), Opinion No. 32/2007 (Jin Haike and Zhang Honghai).) In its recent decision finding the detention of Mr. Chen Wei arbitrary, the Working Group observed:

[He] was arrested and convicted for the exercise of his right to freedom of expression through the publication of articles and reports critical of the authorities. The fact that these peaceful expressions of opinion are criminalized under domestic law as the “incited subversion of State power and overthrow of the socialist system” does not deprive him of his right under article 19 of the Universal Declaration of Human Rights. In this regard, the Working Group recalls that in another Opinion concerning the People’s Republic of China it emphasized that, although national laws might punish such conduct, it is, however, protected by the rights to freedom of opinion and expression and association in international law. (¶ 21, citing Opinion No. 32/2007.)

Mr. Lü —like Mr. Chen and others before him—has been convicted of a crime and given a harsh sentence solely on the basis of the peaceful exercise of his rights guaranteed under the UDHR. Accordingly, his detention is arbitrary under Category II.

 

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.

On several occasions, Mr. Lü’s family has approached authorities in both Beijing and Shaoyang to request his release on medical parole due to his poor health; however, authorities have not yet given any response. In addition, in early June 2012, more than 1,000 supporters of Lü expressed support through a signature campaign for him to be medically paroled.

Lü did not appeal the court’s verdict and sentence, and nor did his wife, who was convicted on the same charge in the case. Their co-defendant, Jin Andi, did appeal but the second-instance court upheld the original verdict against him.

 

Additional information about the case:

Health Condition

In May 2012, CHRD reported that Mr. Lü had suffered a heart attack in Shaoyang City Prison in late 2011, and is in very poor health overall. Following the heart attack, Lü was rushed to a local hospital but only after guards had handcuffed and shackled him. It is known that Lü is suffering from many illnesses, including coronary heart disease, necrosis of caput femoris, diabetes, gallstones, an inflammation of the gallbladder (cholecystitis), and diseases in his lungs (bronchiectasis) and spine (spinal bone hyperplasia). Lü has also spat up blood while in prison, and has had great difficulty sleeping, standing and walking, and has reportedly fallen several times. Due to Lü’s advanced age and poor health, particularly his heart problems, prison authorities have not had him do any labor while incarcerated, but still have not responded to several requests by his family to release him on medical parole.

Reportedly, Lü has also not been allowed access to books, and his family can only provide him with official Chinese newspapers to read.

Harassment

For years before his ongoing detention that is the subject of this appeal, Mr. Lü faced tight surveillance and harassment from authorities over his political writings. As noted in the court verdict, Beijing police in early 2004 searched a location where Lü was staying at the time and confiscated several of his writings, among other items. In August 2010—shortly before taking Mr. Lü into custody—police in Shaoyang intercepted a number of letters written by Lü, and they also searched his home and confiscated several items, including a laptop computer and writings.

After a signature campaign was launched in June 2012 in an effort to seek Lü’s release on medical parole (see section V above), national security officers from Shaoyang questioned Lü’s wife, Yu Junyi, about whether she had initiated the campaign, and they also sought information from her about the signatories. In response, she simply stated she hoped that officers would report Lü’s poor state of health to higher authorities so that her husband would be granted medical parole.

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