Submission to UN on Guo Yushan and He Zhengjun – June 20, 2015

July 2, 2015 Comments Off

Submission to:

Working Group on Arbitrary Detention

Special Rapporteur on the rights to freedom of peaceful assembly and of association

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 situation of human rights defenders

Special Rapporteur on the independence of judges and lawyers

Communiqué on Behalf of Guo Yushan and He Zhengjun, Citizens of China,

Alleging Arbitrary Detention, Torture and other cruel, inhuman or degrading treatment or punishment, and Reprisals against Human Rights Defenders

I. IDENTITY (1)

Family name: Guo (郭)
First name: Yushan (玉闪)
Sex: Male
Birth date or age (at the time of detention): August 2, 1977
Nationality/Nationalities: People’s Republic of China
(a) Identity document (if any): ID Card
Profession and/or activity (if believed to be relevant to the arrest/detention):

A scholar and democracy activist, Guo Yushan founded an independent think tank called Transition Institute (传知行) in 2007. The institute has conducted research and advocacy on tax reform, local elections, business regulations, legal reform, citizen participation, and equal rights to education. In 2010, The Atlas Network awarded the Transition Institute the Templeton Freedom Prize for its exceptional and innovative contributions to the understanding of free enterprise. Mr. Guo graduated from Peking University with a Masters degree in Politics and Economics. He was a commenter for China Business News and an executive editor for a financial magazine, China Review. Guo and other staff played a key role in Chen Guangcheng’s (https://www.nchrd.org/2011/01/prisoner-of-conscience-chen-guangcheng/) rescue operation in April 2012, when they successfully helped Chen seek refuge in the U.S. Embassy in Beijing. He was a former board member of the NGO Gong Meng (Open Constitution Initiative). He was also involved with the independent Liren Group (立人), a charity organization that promotes education. (The government began shutting down many Liren rural library branches in 2011, and by 2014 the libraries had been compelled to completely end operations under government pressure). In recent years, Guo Yushan has been put under tight surveillance, most recently in 2012, when he was under house arrest for several months after helping Chen Guangcheng.

8. Address of usual residence: Haidian District, Beijing, China

I. IDENTITY (2)

Family name: He (何)
First name: Zhengjun (正军)
Sex: Male
Birth date or age (at the time of detention): January 26, 1982
Nationality/Nationalities: People’s Republic of China
Identity document (if any): ID Card
Profession and/or activity (if believed to be relevant to the arrest/detention):

He Zhengjun is a researcher and administrative director at Transition Institute. He also manages the production of documentaries at the institute, and created a film on urban housing demolition and eviction called “Great Country Without Private Homes.”

8. Address of usual residence: Bazhou District, Bazhong City, Sichuan Province, China

II. Arrest (1)

Date of arrest: October 9, 2014
Place of arrest (as detailed as possible): Guo Yushan’s home in Haidian District, Beijing.
Forces who carried out the arrest or are believed to have carried it out: Beijing Public Security Bureau (PSB)
Did they show a warrant or other decision by a public authority?

No warrant is known to have been issued.

Authority who issued the warrant or decision:
Reasons for the arrest imputed by the authorities:

The authorities orally cited the charges of “creating a disturbance.”

Legal basis for the arrest including relevant legislation applied (if known):

Article 293 of China’s Criminal Law, stipulates fixed-term imprisonment of up to five years to those who commits any of the following:

(1) willfully attacked another person and the circumstances are serious;

(2) chased, intercepted, or intimidated another person, and the circumstances are serious;

(3) seized or forcibly demanded, or willfully damaged public or private property; and the circumstances are serious; or

(4) creating a disturbance in a public place, causing serious disorder.

II. Arrest (2)

Date of arrest: November 26, 2014
Place of arrest (as detailed as possible): He Zhengjun’s residence in Beijing.
Forces who carried out the arrest or are believed to have carried it out: Beijing PSB
Did they show a warrant or other decision by a public authority?

Yes, a summons notice was shown. However, no notice was given to family.

Authority who issued the warrant or decision: Beijing PSB
Reasons for the arrest imputed by the authorities:

The authorities cited the charges of “illegal business activity”.

Legal basis for the detention including relevant legislation applied (if known):

Article 225 of China’s Criminal Law, stipulates fixed-term imprisonment of not more than five years to those who, in violation of State regulations, commits any of the following illegal acts in business operation and thus disrupts market order, and if the circumstances are serious (“illegal business activity”):

(1) without permission, dealing in goods that are designated by laws or administrative rules and regulations as goods to be dealt in or sold in a monopoly way or other goods that are restricted in trading;

(2) buying or selling import or export licenses, import or export certificates of origin or other business licenses or approval papers required by laws or administrative rules and regulations; or

(3) without approval of the competent State department, illegally engaging in securities, futures or insurance business;” and the original third sub-paragraph is changed to be the fourth;

(4) other illegal operations that seriously disrupt market order.

III. Detention

Date of detention: Guo Yushan was criminally detained on the evening of October 9, 2014, and then put under residential surveillance at an unknown location from November 8, 2014 until his formal arrest on January 3, 2015.

He Zhengjun was criminally detained on November 26, 2014, and formally arrested on January 3, 2015.

Duration of detention (if not known, probable duration): Mr. Guo has been in detention since October 9, 2014 while Mr. He has been detained since November 26, 2014.
Forces holding the detainee under custody:

Beijing PSB

Places of detention (indicate any transfer and present place of detention):

Guo Yushan and He Zhengjun were initially detained at Beijing No. 1 Detention Center. Mr. Guo was detained at an unknown location under residential surveillance for the period between November 8, 2014 and January 3, 2015, before being returned to Beijing No. 1 Detention Center. Both were transferred to Haidian District Detention Center on April 15, 2015 where they are currently held.

Authorities that ordered the detention:

Beijing PSB

Reasons for the detention imputed by the authorities:

The arrest notice cited “illegal business activity” as the criminal charges.

Legal basis for the detention including relevant legislation applied (if known):

(2) buying or selling import or export licenses, import or export certificates of origin or other business licenses or approval papers required by laws or administrative rules and regulations; or

(3) without approval of the competent State department, illegally engaging in securities, futures or insurance business;” and the original third sub-paragraph is changed to be the fourth; or

(4) other illegal operations that seriously disrupt market order.

IV. Describe the circumstances of the arrest.

Beijing Police criminally summoned Guo Yushan from his home at 2 a.m. on October 9, 2014 on suspicion of “creating a disturbance” and officers searched his home for two hours. Around the same time, Transition Institute’s office was raided, and all electronic equipment including computers and hard drives were confiscated.

He Zhengjun was told to meet Haidian District National Security officers at a designated location on November 26, 2014. When Mr. He arrived, he was shown a criminal summons and a notice to search his home. He was then taken back to his residence, where officers searched the premises and confiscated all his electronic equipment. He was then taken to Beijing No. 1 Detention Center.

V. Indicate reasons why you consider the arrest and/or detention to be arbitrary

The detentions of Guo Yushan and He Zhengjun occurred at a time where authorities across China were clamping down on any individual, especially human rights defenders, who voiced support or demonstrated any evidence of support for the pro-democracy protests in Hong Kong that broke out in late September 2014 (For a non-complete list of other individuals detained, see: https://www.nchrd.org/2014/10/individuals-detained-in-mainland-china-for-supporting-hong-kong-pro-democracy-protests/). On October 1, Ling Lisha (凌丽莎), a former volunteer at Transition Institute, was taken into custody for printing papers at a shop with a yellow umbrella on them, a symbol associated with the pro-democracy group in Hong Kong. The receipt was made out to Transition Institute. According to staff at the institute, Ms. Ling was acting on her own accord, not on behalf of Transition Institute. In the subsequent months, aside from Guo and He, other current and former employees were criminally detained or disappeared. The current director of Transition Institute, Huang Kaiping (黄凯平), was forcibly disappeared the day after Guo Yushan was seized. Former employees Liu Jianshu (柳建树) and Chen Kun (陈堃), both of whom were working for the NGO Liren Group (立人) at the time, were held in criminal detention for several months. In addition, one of Mr. Guo’s lawyers, Xia Lin (夏霖), was arrested in November 2014. Guo’s family hired Xia to represent him and Xia attempted to visit his client on multiple occasions, but authorities repeatedly denied his requests and then detained Xia.

The series of detentions and disappearances reflected a systematic crackdown against independent grassroots organizations in China. Over the past several years, the growing number of detained or imprisoned leaders from China’s civil society, along with more frequent police raids of NGO offices and investigations into groups’ finances, have exemplified the Xi government’s “zero tolerance” policy towards outspoken and independent Chinese groups. Some of the figures persecuted by the government include Xu Zhiyong (许志永), founder and director of Gong Meng (Open Constitution Initiative), Chang Boyang (常伯阳), co-founder and legal counsel for Zhengzhou Yirenping, Xue Ye (薜野), a board director of Liren Group, and Wu Rongrong (武嵘嵘), founder of Weizhiming Women’s Center. Many of these organizations have been forced to shut down either through explicit orders by the government or due to the detentions of directors and staff: Gong Meng (2009), Liren Group (2014), and Weizhiming Women’s Center (2015).

A common pretext for police to conduct arrests and raids is that independent groups are suspected of violating financial or tax regulations in regards to funding received from either overseas or domestic donors. Transition Institute has been continuously harassed since its establishment in 2007, despite taking a low-profile approach and avoiding sensitive topics, including having staff questioned, its office illegally raided, and unlawful confiscation of financial accounts. Registered as a company, but operating as a non-profit, the government in July 2013 ordered the Transition Institute to close because it was not registered under Ministry of Civil Affairs. It is difficult for independent grassroots NGOs to have their registration approved, as regulations require organizations to obtain a government sponsor, thus terminating their independent status In October 2014, Beijing’s Taxation Bureau summoned He Zhengjun to pick up Transition’s financial accounts and materials that were confiscated the previous year. When he arrived, around eight police officers also showed up and seized all the materials without a warrant.

Guo Yushan and He Zhengjun have been held in ongoing pre-trial detention for over half a year so far, and they have not been brought before a judge in this period. Procedural violations have occurred from the initial custody and continued throughout the prolonged pre-trial detention. According to Mr. Guo and Mr. He’s family members, no criminal detention notice were sent to them within the 24-hour limit stipulated by Article 83 of China’s Criminal Procedural Law (CPL). Also in Mr. Guo’s case, Article 73 states that residential surveillance should be carried out at the detainee’s home. Beijing PSB should have notified his family when they changed the type of detention. However, authorities ignored these legal provisions. Authorities also deprived Guo and He’s right to legal counsel for several months (Article 33(1) of the CPL stipulates a criminal suspect may retain a lawyer from the first day compulsory measures adopted against them.) Authorities repeatedly denied Guo visits from his lawyers, claiming that Guo’s case involved “endangering national security.” (Article 37 China’s Criminal Procedure Law gives police the power, with no oversight, to approve or deny lawyers’ visits to detainees if the case involves “state secrets” or “national security.”) “Illegal business activity” is not considered a crime under the category “endangering national security” in China’s Criminal Law, yet the authorities cited “national security” as a reason to refuse them access to legal counsel for an extended period of time.

He and Guo were finally able to meet with their lawyers on January 7 and 8, 2015, respectively. Even after the initial meetings in January, Guo and He’s attorneys continue to face difficulty when arranging subsequent visits. Authorities at the detention center would often cite the need to “verify paperwork” to delay meetings. According to his wife, Guo Yushan suffers from a congenital lung disease, and he appeared unusually thin when she was able to meet him for the first time in May 2015, acting as one of his defense lawyers. She replaced lawyer Xia Lin, who is still in detention. According to He Zhengjun’s lawyer, He had a black hood placed over his head when he was brought to a meeting room. He was interrogated over twenty times in the first month while Guo was questioned over fifty times in the first two months of detention.

The arbitrariness of Guo Yushan and He Zhengjun’s detentions is also reflected in the police’s recommendation for indictment against them. According to the document, Transition Institute from 2007 to 2014 published 19,000 copies of research reports, which the Beijing PSB considered “illegal.” The crime of “illegal business activity” is defined as for-profit business operations that disrupt the market order, such as producing pirated goods. However, all the research reports were original documents and given free of charge during lectures for dissemination, or made available at Transition Institute’s office. These reports were also sent to officials, and had previously received acclamation by several government bureaus. The Beijing PSB were fully aware of the reports since 2009 when Transition Institute was under investigation due to Guo Yushan’s role as a member of Gong Meng’s board at the time. The sudden change in attitude points to an increasingly repressive environment in China where civil society activism that was accommodated previously has now become intolerable.

Furthermore, the recommendation for indictment also cites Transition Institute’s use of foreign funds from German and Canadian foundations, and the U.S. Embassy in Beijing to support its activities. Although the document does not explicitly state using foreign funding is illegal, it is a concerning reference as such funding associations would be become illegal if the Overseas NGO Management Law (Chinese original text released for public comments in May-June 2015: http://www.npc.gov.cn/npc/xinwen/lfgz/flca/2015-05/05/content_1935666.htm) is passed. The draft law, as written, drastically restricts the operations of overseas non-profit organizations in China. The Ministry of Public Security and provincial public security departments are the authorities with the power to register overseas non-profit entities that intend to engage in any activities in China, and all activities would need approval from then public security departments. The law targets domestic Chinese NGOs by violating the fundamental human right to freedom of association and grant police vast powers to curb civil society activism.

In retaliation for their peaceful advocacy and research activities, Mr. Guo and Mr. He have been detained solely on the basis of the peaceful exercise of their rights guaranteed under the Universal Declaration of Human Rights (UDHR). The circumstances of their 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 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.

Supporters and staff at Transition Institute have published articles on the Internet to advocate for the release of Guo Yushan and He Zhengjun, because they have not committed any illegal activities. Both of their lawyers were barred from seeing them for an extended period of time. Lawyer Xia Lin is still under custody, under the charges of “fraud,” after failed attempts to visit Mr. Guo. He Zhengjun’s lawyer was finally able to see his client after filing complaint against the Beijing PSB. However, bail request for He was rejected. The procuratorate returned the case to the Beijing PSB in May 2015 for further investigation, further delaying their detention.