Submission to UN on Xia Lin – April 29, 2016Comments Off on Submission to UN on Xia Lin – April 29, 2016
Working Group on Arbitrary Detention
Special Rapporteur on the independence of judges and lawyers
Special Rapporteur on the situation of human rights defenders
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
Communiqué on Behalf of Xia Lin, Citizen of the People’s Republic of China,
Alleging Arbitrary Detention and Reprisals against a Human Rights Lawyer
1. Family name: Xia (夏)
2. First name: Lin (霖)
3. Sex: Male
4. Birth date or age (at the time of detention): September 15, 1970
5. Nationality/Nationalities: People’s Republic of China
6. (a) Identity document (if any):
7. Profession and/or activity (if believed to be relevant to the arrest/detention):
Xia Lin is a well-known rights defense lawyer, having begun his work in 1992, and has worked with the Huayi Law Firm in Beijing, which also employed prominent human rights lawyer Pu Zhiqiang (浦志强). Xia has taken on many “sensitive” cases pro-bono, and his defense work has led to mitigated punishments in some high-profile cases. He first gained prominence in 2006 for defending a migrant worker and street peddler who had killed a City Urban Administrative and Law Enforcement (chengguan) officer who had confiscated his property. A year later, the migrant worker received a death sentence with reprieve instead of immediate execution. In 2009, Xia represented a hotel worker who killed a local official in self-defense when he tried to rape her, and the victim eventually avoided any criminal punishment. That same year, along with Pu Zhiqiang, Xia worked on the case of environmental activist Tan Zuoren (谭作人), who was given five years in prison for wanting to investigate the quality of school buildings that collapsed during the Sichuan earthquake in 2008. Xia also took on several land-grab cases. In addition to his legal defense work, Xia Lin occasionally has given talks at universities and other venues, promoting the rule of law and independence of lawyers and judges.
8. Address of usual residence:
1. Date of arrest: November 8, 2014
2. Place of arrest (as detailed as possible):
3. Forces who carried out the arrest or are believed to have carried it out:
Beijing Municipal Chaoyang District Public Security Bureau (PSB)
4. Did they show a warrant or other decision by a public authority?
No notice was shown at time of detention.
5. Authority who issued the warrant or decision:
No notice was shown at time of detention.
6. Reasons for the arrest imputed by the authorities:
No reason was known to be given at the time.
7. Legal basis for the arrest including relevant legislation applied (if known):
1. Date of detention: Criminally detained on November 8, 2014, then officially arrested on December 15, 2014.
2. Duration of detention (if not known, probable duration): Mr. Xia has been in detention since November 8, 2014.
3. Forces holding the detainee under custody:
4. Places of detention (indicate any transfer and present place of detention):
Mr. Xia was initially held at Beijing No. 3 Detention Center, later he was transferred to Beijing No. 1 Detention Center.
5. Authorities that ordered the detention:
6. Reasons for the detention imputed by the authorities:
Xia Lin was criminally detained and arrested on suspicion of “gambling and fraud.”
7. Legal basis for the detention including relevant legislation applied (if known):
According to the indictment filed by the Beijing Municipal No. 2 People’s Procuratorate, Xia Lin has allegedly defrauded over 10 million RMB (approx. 1.5 million USD). This amount falls under Article 266 (3) of China’s Criminal Law, which stipulates that those defrauding extraordinarily large amounts of money and property or involved in especially serious cases are to be sentenced to 10 years or more in prison or life imprisonment, in addition to fines or confiscation of property.
IV. Describe the circumstances of the arrest.
Police seized Mr. Xia from his home on November 8, 2014, and taken away for questioning, but no warrant or summons was provided at the time.
V. Indicate reasons why you consider the arrest and/or detention to be arbitrary.
It is believed the detention of rights lawyer Xia Lin has been an act of reprisal against him for taking on politically sensitive cases, particularly for representing an activist, Guo Yushan (郭玉闪), who was seized in a crackdown on China’s civil society in late 2014. Prior to his detention, authorities in Beijing repeatedly blocked Xia from visiting Guo, the founder of an independent think tank, Transition Institute. Guo was detained during the suppression of supporters of the Hong Kong pro-democracy protests; a month later, Xia himself was taken in for questioning and later criminally detained. Police reportedly had investigated the lawyer’s finances a few days before he was detained, seemingly to gather “evidence” to build a criminal case against him. According to the indictment, the procuratorate alleges that Xia defrauded over 10 million RMB, a claim that Xia has disputed as untrue. According to Xia’s lawyers, police have exploited his personal financial situation in order to concoct accusations against him. If convicted, the lawyer could face 10 years to life in prison.
Mr. Xia’s detention on financial charges is a blatant pretext used by the government to punish him for being a human rights lawyer. Xia Lin has practiced law for over two decades and during the second half of his career, he founded a pro-bono legal service firm to take on public interest cases and represented individuals from marginalized groups. Xia had gained prominence for defending sensitive cases that were widely reported by Chinese media, which led to harassment from authorities. He was detained when the Chinese government was aggressively suppressing mainland support for pro-democracy protests in Hong Kong in 2014; nearly 120 activists were detained in that crackdown, according to CHRD’s documentation. Xia Lin’s detention also served another purpose for authorities: it effectively silenced a prominent human rights lawyer who had been drawing attention to legal violations in the case of his client, Guo Yushan.
At the time of this communication, Xia Lin has been held in pre-trial detention for nearly 18 months without being brought before a judge. For the first six months of Xia’s detention, his lawyer’s requests to meet with Xia were repeatedly denied. Such deprivation of counsel visitation violates China’s Criminal Procedure Law (CPL), which states a defendant should be given access to a lawyer within 48 hours of a request (Article 37). Xia was finally given access to legal counsel after the Beijing PSB transferred his case to the procuratorate, recommending indictment in May 2015. According to CHRD’s records, Xia is one of more than 100 Chinese human rights defenders who spent part or all of 2015 under prolonged pre-trial detention, where police stretched the law to hold these individuals beyond legally permitted periods of time. In Xia’s case, the procuratorate returned his case to the PSB twice for further investigation—in July and September 2015—due to lack of evidence for indictment, and the investigation period was extended three times in 2015. In December of that year, Xia’s lawyers were notified by a court that a trial would take place in January 2016. However, it has not taken place and has been delayed indefinitely, another violation of the CPL, as Article 202 stipulates that a court has to hand down a decision no later than three months after accepting a case from a procuratorate.
As another sign of retaliation against lawyers associated with Xia Lin who also took on politically sensitive cases, his colleagues Pu Zhiqiang and Qu Zhenhong (屈振红) were also arbitrarily detained for unreasonably prolonged periods of time. Pu was a prominent rights lawyer who was detained in May 2014 and tried after 19 months of pretrial detention. He received a three-year suspended sentence, and his license to practice law was revoked by authorities. Lawyer Qu was on Pu’s legal defense team, but she was seized shortly after Pu Zhiqiang, criminally detained for a year without trial, and released on bail pending further investigation.
Xia Lin’s detention mirrors the common fate of human rights lawyers in China, who have become a vulnerable group highly susceptible to arbitrary deprivation of liberty based on trumped-up criminal charges. Suppression against them culminated in a crackdown that began in July 2015, and during which more than 300 lawyers and activists were detained or questioned, with 22 still in custody. In China, discharging duties as a lawyer is not considered professional and neutral in the eyes of the government. Human rights lawyers in particular have attracted the ire of authorities because they constantly monitor and report legal and procedural violations within a criminal justice system controlled by the Chinese Communist Party. Mr. Xia has called his detention political persecution, because he has been detained solely on the basis of the peaceful exercise of his rights guaranteed under the Universal Declaration of Human Rights (UDHR). The circumstances of his 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.
After Xia Lin’s detention was confirmed, his lawyer repeatedly requested to see him but to no avail. Friends and supporters have protested online against the apparent reprisal by the Chinese government for Xia’s legal defense work. Supporters, especially individuals who he has defended, have published statements calling for transparency in his case and demanding China’s judiciary system to follow legal procedures.
VII. Full name, postal and electronic addresses of the person(s) submitting the information (telephone and fax number, if possible).