Reply to Chinese Government Response on Huang Wenxun, Yuan Bing, and Yuan Xiaohua – March 28, 2017

April 11, 2017 Comments Off

To: Working Group on Arbitrary Detention

CHRD reply to Chinese government’s response regarding the cases of Huang Wenxun, Yuan Bing, and Yuan Xiaohua.

The Network of Chinese Human Rights Defenders (CHRD) hereby respectfully submits this reply to the Government’s response made to you regarding activists Huang Wenxun (黄文勋), Yuan Bing (袁兵), and Yuan Xiaohua (袁小华). In preparing this reply, in which we strongly refute several points made by the government, CHRD has confirmed the information written below with lawyers of the concerned individuals, and Yuan Xiaohua, who has been released after serving 3.5 years.

Reprisal against peaceful exercise of freedom of expression

CHRD would like to affirm that the detentions of these individuals have principally been acts of reprisal against them for their activism and their exercise of their rights to free expression, assembly, and association. All three activists were seized during an advocacy campaign tour called “Enlightening China,” during which the activists gathered local human rights defenders in the cities that they visited to share meals together and to advocate for reform through peaceful demonstrations. The tour was intended to bring like-minded people together, to inspire citizen activism, and spread ideas about democracy, free expression, and rule of law. The tour was initiated by Huang, and he had stopped at other cities before arriving at Chibi, Hubei Province. At every stop, other defenders joined him and echoed the calls for transparency, accountability, free expression, and rule of law. Yuan Bing and Yuan Xiaohua went to support Huang in-person, and they took photos together holding banners that said “Enlightening China.” According to Yuan Xiaohua, their activities were peaceful and within the bounds of free expression, just holding banners and taking photos.

CHRD strongly refutes accusations made by the Chinese government against these individuals, particularly alleging their actions had endangered national security, social order, and the public interest. According to their lawyers and Yuan Xiaohua, throughout their advocacy activities, they did not encourage the use of language or activities to advocate for the overthrow of the Chinese government, or cause any disruption in a public place. The content of their slogans specifically were about democracy, rule of law, governmental transparency and accountability, anti-corruption, and against political persecution. The activists sought to inspire others to actively participate in civil and public affairs. To label these advocacy efforts as “endangering national security” is to undermine and delegitimize human rights defenders (HRDs). In addition, criminalizing defenders under such pretext runs counter to the Human Rights Council resolution (HRC 27/31), which calls on countries to stop targeting civil society in the name of national security and counter-terrorism. The crimes that Yuan Bing and Yuan Xiaohua have been convicted of, “gathering a crowd to disrupt order of a public place” and “picking quarrels and provoking trouble,” are often used to prosecute demonstrators, and have been increasingly used to prosecute those who have made online commentaries about governmental corruption, non-transparency, the lack of governmental accountability, and problems with government policies or shared information deemed “sensitive” by authorities.

Violations of legal and procedural laws, prolonged pretrial detentions

Contrary to what the Chinese government claimed in its response, the legal and human rights of the detainees in question have not been protected; from the time of their being taken into custody and throughout their detentions, authorities deprived Huang, Yuan, and Yuan of their legal rights. The three men were seized by public security officials in a manner resembling an abduction. Huang Wenxun recounted in a written testimony that as they tried to gather in a park, a group of unidentified men appeared suddenly and immediately grabbed all their belongings, including identification cards and wallets. Then, officials forcibly took them to a police station. No notice or reason was given at the time they were taken into custody, even after the activists had asked repeatedly for the legal basis of their detentions. According to Yuan Xiaohua, they did not obstruct officers from carrying out their work. In fact, they were reminding officers of the legal procedures stipulated by Chinese law. No official notice or explanation was given to family members or lawyers. None of the three individuals’ families had received any notice or been informed of their whereabouts after they were seized, a violation of Article 83 of China’s Criminal Procedure Law (CPL).

In addition, authorities have continually disregarded rules and regulations pertaining to detainee’s right to legal counsel. All three activists experienced limited access to their lawyers, including immediately after being taken into custody, in late 2013, and during some parts of 2014, when lawyers’ requests for meeting were denied. Refusing to let lawyers meet with clients is a violation of Article 37 of China’s CPL, which stipulates that a lawyer should be able to visit a client within 48 hours of a request. Moreover, as the Chinese government response noted, authorities changed the charges against the activists multiple times, further demonstrating the arbitrariness of the charges. For instance, all three were initially criminally detained in June 2013, not June 2015, as indicated in Chinese government’s response. When authorities change the criminal charges against an individual, the criminal detention date can also be changed, which in practice prolonged the pre-trial detention of these individuals.

The activists’ prolonged pre-trial detention without being brought before a judge runs counter to international standards; Yuan Bing and Yuan Xiaohua were held in detention for nearly three years and Huang Wenxun was held for three years without being brought before a judge. Although Chinese law allows authorities to hold detainees for a lengthy period of time before any judicial review, such long periods of deprivation of liberty without a trial violate international law on the right to a fair trial within a reasonable time. In some cases, even China’s Supreme People’s Court (SPC) has repeatedly approved three-month extensions of detention before trials, appeal hearings, or announcements of verdicts after a trial. According to international standards, pre-trial detention should be used only as a last resort because it undermines the principle of the presumption of innocence.

While it is accurate that Chinese authorities have approved the extension of pretrial detention, such acts are seemingly concerted efforts by police and prosecutors to exploit loopholes in China’s CPL for political ends. Authorities have arbitrarily applied provisions in the CPL, which should actually be applicable in rare, exceptional cases, to deprive them of due process rights. The CPL permits criminal detention for 37 days before arrest or release (Article 89). Following a formal arrest, a detainee can face periods of investigation of over one year, as a case is built against them. The CPL gives police between three to 10 months (Articles 154, 156-8) before recommending indictment, but the lengthy period of pre-trial detention is applicable only to cases involving “major crimes” or when the suspect has “committed a new crime,” subject to procuratorate review. Without an independent and effective compliant system for detainees and their lawyers to use to make complaints about prolonged detention or other issues, authorities can unilaterally extend pretrial detention.

Obstructions to fair trials and mistreatment contravene government’s claims

All of the individuals’ addressed in this response have faced obstacles to obtaining a fair trial, as hearings were marred by violations of legal rights. Initially, the lawyers were gathered for a pre-trial meeting in March 2014, but the trial proceedings were then extended several times until 2016, when both Yuan Xiaohua and Yuan Bing were tried in April. While the activists were represented by their lawyers, police cordoned off the courthouses and barred other activists from attending, and some would-be observers were even detained, effectively making these trials closed to the public. Furthermore, the judges denied the lawyers full exercise of their profession in court. During Huang’s trial in June 2016 at the Xianning City Intermediate People’s Court, a few months after the prosecutors rescinded the original indictment, the judge repeatedly cut off Huang’s as they tried to present their defense argument and question the prosecution’s “evidence.”

According to interviews and testimony, while in detention, all three were subjected to assault, forced labor, various methods of torture, and tremendous psychological torment. Huang Wenxun was subjected to electric shocks twice in addition to being deprived of food, a blanket, and access to a shower, and forced to do extensive labor. Both Yuan Bing and Yuan Xiaohua were also required to work in detention. All three suffered beatings by cellmates; however, their complaints were ignored by officers and prosecutors stationed at the detention center. In addition to the physical pain and suffering, authorities have subjected the activists to tremendous psychological stress. In Yuan Bing’s case, a video clip of his mother in tears was used during interrogation to pressure him to admit wrong-doing. Reportedly, Yuan Bing has frequently been threatened by his fellow cellmates, but his complaints have gone unanswered. To deny allegations of torture and mistreatment without conducting a full and independent investigation, the Chinese government has breached China’s own laws and procedures regarding prohibition of torture, and is also out of compliance with the Convention Against Torture, which China has signed and ratified.

Note: Regarding the cases of Hu Shigen, Xie Yang, and Zhou Shifeng, CHRD has already made a reply, which was submitted to WGAD on March 28, 2017.

Submitted on: March 28, 2017