Submission to UN on Bian Xiaohui – May 14, 2015Comments Off on Submission to UN on Bian Xiaohui – May 14, 2015
Working Group on Arbitrary Detention
Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
Special Rapporteur on the independence of judges and lawyers
Communiqué on Behalf of Bian Xiaohui, Citizen of the People’s Republic of China,
Alleging Arbitrary Detention, Torture and other cruel, inhuman or degrading treatment or punishment, and Violation of Freedom of Expression, Assembly and Association
1. Family name: Bian (卞)
2. First name: Xiaohui (晓晖)
3. Sex: Female
4. Birth date or age (at the time of detention): July 16, 1990
5. Nationality/Nationalities: People’s Republic of China
6. (a) Identity document (if any): ID card
7. Profession and/or activity (if believed to be relevant to the arrest/detention): Before being detained and later imprisoned, Ms. Bian was repeatedly denied visitation rights to see her incarcerated father, Bian Lichao, who since 2012 has been serving a 12-year sentence in Shijiazhuang Prison in retaliation for practicing Falun Gong, a spiritual meditation practice outlawed by the Chinese government. The denial of visits was in violation of Chinese law (see further details below about the circumstances of Ms. Bian’s arrest). Bian Xiaohui was forcibly seized from her home after she publicly demonstrated several times in the streets near the prison, insisting to see her father. After a yearlong pretrial detention, she was sentenced to 3.5 years in prison. At the time of her initial detention, Bian was a recent graduate of Jilin University of Finance and Economics in Jilin Province and had started working with an NGO in Beijing.
8. Address of usual residence: Haidian District, Beijing, China
1. Date of arrest: March 12, 2014
2. Place of arrest: Xinhua District, Shijiazhuang City, Hebei Province
3. Forces who carried out the arrest or are believed to have carried it out: Officers from the Shijiazhuang City Public Security Bureau (PSB) and national security personnel
4. Did they show a warrant or other decision by a public authority? No
5. Authority who issued the warrant or decision: No warrant is known to have been issued.
6. Reasons for the arrest imputed by the authorities: No reason given at the time of arrest.
7. Legal basis for the arrest including relevant legislation applied (if known): Since no warrant was issued, it is unclear what relevant legislation the police used to conduct the arrest.
1. Date of detention: Ms. Bian was put under criminal detention on March 13, 2014, and formally arrested on April 17, 2014.
2. Duration of detention (if not known, probable duration): Bian has been in detention since March 13, 2014.
3. Forces holding the detainee under custody: Shijiazhuang City PSB Qiaodong Branch
4. Places of detention (indicate any transfer and present place of detention): Bian has been detained at Shijiazhuang City No. 2 Detention Center.
5. Authorities that ordered the detention: Shijiazhuang City PSB Qiaodong Branch
6. Reasons for the detention imputed by the authorities: According to the detention notice dated March 13, 2014, Bian was criminally detained on suspicion of “using a cult to undermine implementation of the law.”
7. Legal basis for the detention including relevant legislation applied (if known): Article 300 of the Criminal Law of the People’s Republic of China, “using a cult to undermine implementation of the law,” stipulates a fixed-term imprisonment of not less than three years but not more than seven years to those who form or use superstitious sects or secret societies or weird religious organizations or use superstition to undermine the implementation of the laws and administrative rules and regulations of the State.
IV. Describe the circumstances of the arrest.
According to Bian Xiaohui, before she was taken away around 5 p.m. on March 12, 2014, more than a dozen police officers and national security guards barged into her home. They yelled at her and forcefully seized her without a warrant. Prior to this—on March 4, 7, and 12—Bian had held a banner in public near Shijiazhuang Prison, where her father is incarcerated, that said, “I want to see my father.” When people asked about her situation, she told them she has not been allowed to see her father for a couple of months and that she worried about his conditions in prison.
Under Chinese law, Bian and her mother should have been allowed at least one visit a month to see Bian Lichao, but their request to visit him had not been granted every month; prison authorities denied some monthly meetings in 2013, including in November and December. The last time Ms. Bian was granted visitation was on January 20, 2015, despite the fact that she and her mother tried to meet Bian Lichao every month up until the time that Ms. Bian was detained.
At Ms. Bian’s last prison visit with her father, he informed her of mistreatment he suffered, including deprivation of proper medical treatment for heart disease, and said that prison authorities were trying to coerce him into cooperating with them in unlawful (but unspecified) activities. Bian Lichao told his daughter that family visits had been previously denied due to his resistance to cooperate with the authorities. Both father and daughter agreed that he should not comply with them in engaging in any unlawful activities, a stance that we believe contributed to the eventual deprivation of visitation rights.
V. Indicate reasons why you consider the arrest and/or detention to be arbitrary
It is strongly believed that Ms. Bian’s detention and subsequent prison term have been retaliation for her trying to expose her father’s mistreatment and other unlawful behavior on the part of local authorities, as well as her demands to visit him. Through her public demonstrations and online activities, Bian exposed that authorities were in violation of Article 48 of China’s Prison Law, which stipulates that prisoners be allowed to meet with family and guardians. In addition, according to Article 45 of Measures for the Administration of Convicts Retained at Jails for Execution of Sentences, detainees are allowed visitation by family up to two times a month, a right that Ms. Bian and her mother were not allowed to exercise. Her initial detention is believed to be a pretext to stop Bian from informing the public about her situation and her father’s case, especially after she posted videos of police officers harassing her when she publicly demanded to visit her father and shared information about mistreatment that he has suffered. Police took her into custody around the time of major legislative meetings of the Chinese Communist Party in Beijing—a typically “sensitive” political period in early March when the country’s authorities are on high alert to “maintain stability.”
Authorities blatantly violated laws and deprived human rights throughout Ms. Bian’s case, from the period of initial detention through her trial. When she was first seized, police did not provide a detention notice. This violates Article 83 of China’s Criminal Procedure Law (CPL), which stipulates that public security bureau officers must produce a detention warrant when detaining an individual. In addition, the charge against her, “using a cult to undermine implementation of the law,” is fabricated, and is a trumped-up allegation often used to arbitrarily retaliate against individuals in China who have any involvement in religious or spiritual practice. In fact, however, Bian had not participated in any religious or spiritual activities, and nor did she did mention religious or spiritual beliefs when talking to passersby during her public demonstrations.
In addition, Ms. Bian was deprived of her right to access legal counsel. After nearly two months of incommunicado detention, Bian was only allowed to see her lawyers in early May 2014. Bian told them the violations she had suffered, including torture and other forms of mistreatment. According to Bian, authorities denied visits by her lawyers because she refused to wear prison uniform and shackles. Moreover, she was forced to sleep on the floor for 25 days, from March 19 to April 14, 2014, while forced to use laundry detergent to wash her hair and freezing cold water to wash her body. Prison authorities also force-fed Bian after she staged a hunger strike for a week in protest against the deprived right to legal counsel, despite the fact that she had expressed willingness to eat.
Myriad legal and procedural violations occurred throughout Ms. Bian’s trial, with local authorities obstructing her right to a fair and open trial. Her first-instance trial was held on August 21, 2014, at the Qiaodong District People’s Court in Shijiazhuang, but authorities prevented family members and others (including representatives from the Canadian Embassy) from attending, despite their having received prior permission to observe. Such behavior violates China’s 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). Her lawyers protested the barring of Bian’s family members from the courtroom, and proceedings were temporarily suspended. Most of the people allowed to attend the proceedings were government personnel and people who were paid to observe, according to one individual in attendance. The lack of judicial independence is also evident in testimonies against Bian, as most “evidence” presented in court reportedly was provided by Shijiazhuang Prison personnel and police officers.
On December 12, 2014, the first-instance trial resumed, at the Chang’an District People’s Court in Shijiazhuang. However, only one of her lawyers was allowed to attend while family members and others were again denied entry. Police harassed Bian’s supporters outside the courthouse and blocked them from entering. On April 10, 2015, the court convicted and sentenced Biao Xiaohui to 3.5 years in prison in a closed trial; one of Bian’s lawyers was only informed of the verdict several days later.
The circumstances of Bian’s detention and ongoing imprisonment 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).
VI. 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.
Friends of Bian Xiaohui tried to file a compliant against her unlawful arrest, but it was rejected. To amass public support, her family members, friends, and lawyers posted her case background and updates online. Ms. Bian’s case has received coverage in the media, and foreign diplomats were informed of her case. In particular, representatives from the Canadian Embassy received permission to observe Bian’s trial, but they were denied entry on two separate days of hearings. Recently, a group of people started an online campaign (in both Chinese and English) calling for her release.
Date Submitted: May 14, 2015