Submission to UN on Xu Zhiyong – February 24, 2014

March 12, 2014 Comments Off

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 rights to freedom of peaceful assembly and of association

Special Rapporteur on the situation of human rights defenders

Special Rapporteur on the independence of judges and lawyers

Communique on Behalf of Xu Zhiyong, Citizen of the People’s Republic of China,

Alleging Arbitrary Detention,

Violation of Freedom of Expression, Assembly and Association,

of Independence of Judges & Lawyers,

and Reprisals against Human Rights Defenders

I. IDENTITY

1. Family name: Xu (许)

2. First name: Zhiyong (志永)

3. Sex: Male

4. Birth date or age (at the time of detention): March 2, 1973

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

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

8. Professions and/or activities of the detainees (if believed to be relevant to the arrest/detention): Xu Zhiyong, a prominent Beijing professor and legal rights advocate, founded the “Open Constitution Initiative” (Gongmeng, 公盟), a pro-democracy movement (banned by authorities in 2009) which later spawned the “New Citizens’ Movement,” a loose grouping of human rights activists advocating for democratic and rule-of-law reforms, constitutionalism, human rights, and social justice. Having demanded that top officials disclose their wealth and urged the government to ensure equal education rights, Xu is the most high-profile activist in China who has been detained in the crackdown on assembly, association, and expression that began in earnest in late March 2013. Xu started his rights activism in 2003, and has promoted non-violence, defended individuals unjustly sentenced to death, drafted recommendations for legal reforms, and provided legal consultation and other forms of assistance to homeless petitioners.

II. Arrest

1. Date of arrest: July 16, 2013

2. Place of arrest (as detailed as possible): Xu was taken away from his home in Qinghe, Beijing Municipality.

3. Forces who carried out the arrest or are believed to have carried it out: Beijing Municipal Public Security Bureau (“Beijing PSB”)

4. Did they show a warrant or other decision by a public authority? (Yes) √ (No)

5. Authority who issued the warrant or decision: Beijing PSB

6. Relevant legislation applied (if known): Article 80 of the Criminal Procedure Law of the People’s Republic of China, which provides that “Public security organs may initially detain an active criminal or a major suspect under any of the following conditions: (1) if he is preparing to commit a crime, is in the process of committing a crime or is discovered immediately after committing a crime; (2) if he is identified as having committed a crime by a victim or an eyewitness; (3) if criminal evidence is found on his body or at his residence; (4) if he attempts to commit suicide or escape after committing a crime, or he is a fugitive; (5) if there is likelihood of his destroying or falsifying evidence or tallying confessions; (6) if he does not tell his true name and address and his identity is unknown; and (7) if he is strongly suspected of committing crimes from one place to another, repeatedly, or in a gang.”

III. Detention

1. Date of detention: Xu was criminally detained on July 16, 2013 and formally arrested on August 22, 2013.

2. Duration of detention (if not known, probable duration): From July 16, 2013 2013 through the present (i.e., his detention is ongoing)

3. Forces holding the detainee under custody: Beijing PSB

4. Places of detention (indicate any transfer and present place of detention): Beijing No. 3 Detention Center

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

6. Reasons for the detention imputed by the authorities: “Gathering a crowd to disrupt order of a public place” through “inciting and organizing hundreds of people to appeal for equal access to education in front of the Ministry of Education building.”

7. Relevant legislation applied (if known): For the crime of “gathering a crowd to disrupt the order of a public place,” Article 291 of the Criminal Law of the People’s Republic of China stipulates a fixed-term imprisonment of not more than five years, criminal detention or public surveillance to those who are gathered to disturb order at railway stations or bus terminals, wharves, civil airports, marketplaces, parks, theaters, cinemas, exhibition halls, sports grounds or other public places, or to block traffic or undermine traffic order, or resist or obstruct public security administrators of the State from carrying out their duties according to law, if the circumstances are serious.

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

Xu Zhiyong was criminally detained on July 16, 2013. When seizing Mr. Xu, police searched his residence and took away three computers, a cell phone, and other personal belongings. On July 18, police prevented Xu’s defense lawyer Liu Weiguo (刘卫国) from seeing Xu at Beijing No. 3 Detention Center. Officers then took away lawyer Liu and held him at the Daxing Public Security Bureau’s Sun Village Police Station, where police reportedly beat him before eventually releasing him. Officers also took into custody several of Xu’s supporters who came to the detention center to leave money for him.

The Beijing Municipal No. 1 Intermediate People’s Court tried Mr. Xu on January 22, 2014. No media was allowed to enter the courtroom, and only two families members were allowed to attend the trial. Xu and his lawyers remained silent throughout court proceedings to protest flagrant violations of legal procedures, which included defense witnesses not being allowed to testify (see more details in following paragraph), and those who have been detained for the same alleged crime were unable to speak to “evidence” against Xu presented by prosecutors. On January 26, the Beijing Municipal No. 1 Intermediate People’s Court sentenced Mr. Xu to a four-year prison sentence for “gathering a crowd to disrupt order of a public place.” Xu’s sentence is one year short of the maximum allowed by Chinese law for the alleged crime.

Just prior to Mr. Xu’s trial, police harassed and intimidated Xu’s supporters and others who wished to observe the court proceedings, creating a suppressive atmosphere similar to that before the trials of other prominent Chinese activists. Police blocked several major intersections surrounding the courthouse and restricted the movement of dozens of supporters who had applied to attend the hearing, placing some under house arrest. Beijing authorities also reportedly monitored places where petitioners gather in the capital, conducting searches and detaining many of them. Police blocked supporters—including petitioners, activists, netizens, foreign diplomats, and journalists—from getting close to the courthouse during the hearing. Police took away lawyer Liang Xiaojun (梁小军) and activist Chen Yunfei (陈云飞), who were released several hours later. Many petitioners taken from the scene were held in a police station for days, along with activists from Shanghai, Liaoning, and Beijing. Many petitioners were sent to illegal “black jails” for trying to attend the trial, and released only after the end of the trial. All of these circumstances made the proceedings tantamount to a closed trial. This constitutes a clear violation of the CPL, which stipulates that first-instance trials shall be heard in public (Articles 11 and 152 of the 1996 CPL; Article 183 of the 2013 CPL).

Mr. Xu has been detained and tried solely on the basis of the peaceful exercise of his rights guaranteed under the Universal Declaration of Human Rights (UDHR). Specifically, under the Working Group’s criteria for determining when a deprivation of liberty is arbitrary, the circumstances of their detentions 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 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

Mr. Xu’s defense lawyers have published online updates on Xu’s case, and a joint statement calling for his release has been signed by hundreds of supporters.

Lawyer Liu Weiguo has also published a statement online to protest the injustice that he faced during the process of defending Xu’s case. Rights activists nationwide have showed much support for Xu and protested against authorities in various ways as well, including by: taking to the streets to hold banners, writing joint appeals, and applying in large numbers to observe trial proceedings. In retaliation, authorities have detained or harassed many of these supporters.

On February 3, 2014, Xu appealed the verdict of the first-instance trial to a higher court.

Date submitted: February 24, 2014