CHRD Letter to UN Legal Expert Regarding Deprivation of Detainees’ Right to Legal Counsel – August 2014

September 1, 2014 Comments Off

Mrs. Gabriela Knaul

Special Rapporteur on the Independence of Judges and Lawyers

August 18, 2014

Dear Mrs. Gabriela Knaul,

Chinese Human Rights Defenders (CHRD) is writing to bring to your attention the increasing use by Chinese authorities of denial of lawyers’ visitation to detained human rights defenders, including both lawyers and activists, in recent months. This pattern violates the detainees’ right to legal counsel and undermines the independence of lawyers in providing legal consultation. The arbitrary detentions and arrests of the human rights defenders and denial of access to legal counsel contravene the Universal Declaration of Human Rights and the Basic Principles on the Role of Lawyers, which China ratified in 1998. (See below a list of 20 individual cases that we have documented.)

The detainees’ lack of access to lawyers also violates China’s Criminal Procedure Law (CPL) and Lawyers Law. Article 37 of the CPL provides that “[d]efense lawyers may meet and correspond with the criminal suspect in custody.” According to this provision, “[w]here a defense lawyer holds a practicing license, law firm certificate and letter of attorney or an official legal aid letter and requests to meet with a detained criminal suspect or defendant, the detention facility should arrange such a meeting promptly and within 48 hours.” Article 33 of the Lawyers Law provides that “[a]s of the date of first interrogation of or adoption of a compulsory measure on a criminal suspect by the criminal investigative organ, an authorized lawyer shall have right to meet the criminal suspect or defendant and learn information related to the case, by presenting his lawyer’s practicing certificate, certificate of his law firm and letter of attorney or an official legal aid letter.”

We therefore urge your mandate to appeal to the Chinese government regarding these violations, and request the government to investigate these allegations to insure protection of the detainees’ right to legal counsel and the lawyers’ right to meet with their clients, so as to fulfill China’s international human rights obligations as a member of the Human Rights Council.

CHRD has documented the following relevant cases of 20 detained individuals in recent months:

Detained lawyers deprived of the right to legal counsel:

-On May 27, 2014, Henan human rights lawyer Mr. Chang Boyang (常伯阳) was criminally detained on a charge of “gathering a crowd to disrupt order of a public place” by police in Zhengzhou City in Henan, for representing three activists who had been detained days earlier for organizing a June Fourth memorial event in February 2014.

-Human rights lawyer, Mr. Ji Laisong (姬来松), was criminally detained on the same charge as Mr. Chang faces for participating in the same event after being seized on May 26. Zhengzhou police have held lawyers Chang and Ji incommunicado since taking them into custody, repeatedly denying requests by their attorneys to meet them at Zhengzhou No. 3 Detention Center. On June 7, attorneys were told by authorities that they were denied access to Chang and Ji because the two men were being held on suspicion of a crime in the category of “endangering state security,” despite neither of them having been charged with a relevant crime. (Lawyer Chang’s family fears that he has been tortured, as Chinese police routinely deny access to detainees in order to prevent family members and lawyers from obtaining and disclosing information on mistreatment inside detention facilities.)

On June 2, lawyer Ji was formally arrested on the original charge made against him, “gathering a crowd to disrupt order of a public place.” On July 3, lawyer Chang was also formally arrested, but on a new charge of “illegal business activity,” which is apparently related to his role as a board director of Zhengzhou Yirenping, an anti-discrimination and health rights NGO. The application of this charge is an abuse of prosecutorial discretion, as Article 225 of China’s Criminal Law strictly relates this crime to profit-making business activities.

Since June 2014, a group of Chinese human rights lawyers has conducted a hunger strike and protested the denial of lawyers Chang and Ji’s access to legal counsel outside of Zhengzhou No. 3 Detention Center. Beginning on July 24, dozens of citizens joined the lawyers’ hunger strike and protest, with at least seven of them being taken into custody on August 1 in retaliation for showing support for lawyers Chang and Ji, as well as several other rights activists being held incommunicado at the detention center (see below cases).

-On May 16, 2014, human rights lawyer Tang Jingling (唐荆陵),who has initiated the “Non-violent Citizens’ Disobedience Movement,” advocating for legal and social reform aiming at bringing about liberal democracy in China, was criminally detained in Guangzhou City, Guangdong Province on suspicion of “creating a disturbance.” Lawyer TangTang’s attorney Liu Zhengqing (刘正清) met with Tang at Baiyun District Detention Center on May 21; however, since Tang was formally arrested on June 20—on a more serious charge of “inciting subversion of state power”—detention center authorities have repeatedly refused lawyer Liu’s requests to meet with Tang, claiming that the case “involves state secrets.”

-In a case previously submitted for your attention in May 2014, lawyers Mr. Jiang Tianyong (江天勇), Mr. Tang Jitian (唐吉田), Mr. Wang Cheng (王成), and Mr. Zhang Junjie (张俊杰) went to Jiansanjiang County, Heilongjiang Province on March 21, 2014, to investigate the case of individuals illegally held in a “black jail” mostly used to lock up religious practitioners. On March 22, they were taken from their guesthouse and brought to the Daxing District Branch of the Heilongjiang Province Public Security Bureau. Jiang, Tang, and Wang eventually served 15-day detentions, while Zhang served a five-day detention. No one was allowed to meet them while they were held in the detention center. (While being held at the Daxing District Branch of the PSB, the four lawyers were also subjected to severe torture, as described in the previous communiqué.)

Detained human rights defenders deprived of the right to legal counsel:

-Six Henan human rights activists detained since May 2014 have been held incommunicado in Zhengzhou, without access to their lawyers: Mr. Liu Diwei (刘地伟), Mr. Yu Shiwen (于世文), Ms. Chen Wei (陈卫), Mr. Dong Guangping (董广平), Mr. Hou Shuai (侯帅),and Ms. Fang Yan (方言, also known asFang Hongwei, 方鸿维). In addition, another Henan activist detained in May, Ms. Jia Lingmin (贾灵敏), was only allowedto see her lawyer for the first time on August 5. All formally arrested between May 30 and July 3, these activists were taken into custody due to suppression around the 25^th anniversary of the Tiananmen Massacre. They are being held at the Zhengzhou No. 3 Detention Center except for Liu Diwei, who is at Xingyang Detention Center.

-On July 8, Lü Gengsong (吕耿松), a Hangzhou rights defender and member of the China Democratic Party, was criminally detained on suspicion of “subversion of state power” and formally arrested on that charge on August 13. Authorities have not allowed lawyer Ding Xikui (丁锡奎) to meet with Lü at Hangzhou City Detention Center since Lü was taken into custody.

-In July 2014, Guangdong activist Mr. Huang Wenxun (黄文勋), who was originally seized in late May 2013 for “unlawful assembly” while on an “advocacy tour” that was intended to encourage civic activism and promote democracy and rule of law, was said to have been secretly tried and sentenced to four years in prison for “inciting subversion of state power” in Hubei Province. Prior to the news of Mr. Huang’s suspected trial and sentence, authorities had not allowed Huang’s lawyers to visit him for six months, leading the lawyers to fear back in November 2013 that Huang might be tried in secret. Mr. Huang’s lawyer only happened to see a reference to Huang’s sentence as he was reviewing court files for another case in Jiangxi Province.

In addition, Guangdong activists Mr. Yuan Fengchu (袁奉初, aka Yuan Bing,袁兵) and Mr. Yuan Xiaohua (袁小华), who were also criminally detained in late May 2013 while on the “advocacy tour” with Huang Wenxun, have been held incommunicado and denied access to legal counsel since March 2014.

-On January 15, 2014, Mr. Ilham Tohti (伊力哈木土赫提), a Uyghur scholar and leading advocate on Uyghur issues, was taken into custody by Beijing police. Tohti was formally arrested on February 20 after Xinjiang authorities had held him incommunicado for five weeks on a charge of “splittism.” Lawyers who initially represented Tohti, Li Fangping (李方平) and Wang Yu (王宇), were blocked from visiting him for more than six months; they were only allowed their first visit with him on June 26 at Xinjiang Autonomous Region Public Security Bureau Detention Center. Tohti’s current lawyers, Li Fangping and Liu Xiaoyuan (刘晓原), were only allowed to see him on August 5, a week after the Urumchi City People’s Procuratorate had submitted Tohti’s case for prosecution.

-On May 30, 2014, dissident journalist Ms. Gao Yu (高瑜) was formally arrested on a charge of “illegally disseminating state secrets overseas,” about one month after she disappeared in late April. Despite repeated requests, Gao’s attorney Zhang Sizhi (张思之) was only able to visit with her at Beijing No.1 Detention Center for the first time on June 27.

In light of the above cases of deprived right to legal counsel, CHRD requests your mandate to address an appeal to the Chinese government, requiring the government to abide by international human rights law and its domestic laws, and to end and investigate these violations as soon as possible.

Thank you for your attention, and please do not hesitate to contact me should you have any questions.

Submitted: August 18, 2014