Reply to Chinese Government Response on Zhou Shifeng, Hu Shigen, Xie Yang, Li Heping, Wang Quanzhang, Li Chunfu, and Jiang Tianyong – March 28, 2017

May 19, 2017 Comments Off

To: Working Group on Arbitrary Detention

CHRD reply to Chinese government’s response regarding the cases of Zhou Shifeng, Hu Shigen, Xie Yang, Li Heping, Wang Quanzhang, Li Chunfu, and Jiang Tianyong.

The Network of Chinese Human Rights Defenders (CHRD) hereby respectfully submits this reply to the Government’s response made regarding lawyers Zhou Shifeng (周世锋), Xie Yang (谢阳), Li Heping (李和平), Wang Quanzhang (王全章), Li Chunfu (李春富), Jiang Tianyong (江天勇), and activist Hu Shigen (胡石根). In preparing this reply, in which we strongly refute several points made by the government, CHRD has confirmed the information written below with families and/or lawyers of the concerned individuals.

CHRD would like to affirm that the detentions of these individuals have principally been acts of reprisal against them for their activism and exercising their rights to free association. The lawyers and activist have taken on an increasing number of human rights cases in recent years, with lawyers such as Xie Yang and Wang Quanzhang representing detained human rights advocates. They are part of a loose civil society network of rights lawyers and activists seeking to push forward rule of law in China. This network of solidarity for human rights defense was targeted in July 2015, when over 300 lawyers and activists were abducted, detained, summoned, or questioned, a massive nationwide police operation that became known as the “709 Crackdown.” The lawyers and activist listed above are among the primary targets of the crackdown, because they have taken on some of the most controversial human rights cases. Many had engaged in advocacy campaigns around “politically sensitive incidents,” during which lawyers and civil society actors jointly spoke out about rights abuses or publicly pushed for legal reforms.

Smear tactics against human rights defenders

CHRD strongly refutes accusations made by the Chinese government against these individuals, particularly alleging “they have long been engaged in criminal activities, under the pretense of ‘defending rights.’” Particularly via state media, the government has public smeared rights lawyers and activists in order to delegitimize their activism and undermine their professional reputations. In the concerned cases, the portrayal of rights lawyers and activists as “criminals” started soon after the 709 Crackdown was launched. Without any official notice or explanation given to family member or lawyers, in addition to denying detainees access to legal counsel, state media sources such as Xinhua published articles claiming that police had “broken up a criminal gang” and that those detained were “implicated in serious crimes.” The use of state media has “guided” public opinion of—and vilified—human rights lawyers, and had the effect of “trying” the detainees and publicly depriving them of the presumption of innocence.

Second, Chinese authorities have broadcasted or published “confessions” in state media to vilify detained lawyers and activists. Lawyer Zhou Shifeng is one of several detained Chinese human rights defenders whose videotaped “confession” has been shown on television. In addition, both Xie Yang and Jiang Tianyong were interviewed by state media personnel under circumstances that their lawyers could not confirm, a practice which violates both Chinese law and international human rights norms. The most recent known instance of a “confession” by a Chinese rights defender appearing in state media is an interview by Jiang, who “incriminated” himself in an article published on March 1, 2017. In these cases, the “confessors” have not been granted their due process rights; they are essentially pronounced “guilty” in the eyes of the public without a trial and without having met with their lawyers, conditions that strongly suggest the “confessions” involve coercion, including psychological pressure and possibly torture. In fact, one of the lawyers detained (and subsequently released) during the 709 Crackdown, Zhang Kai (张凯), testified after he was let go that interrogators pressured him, and he was thus under immense duress, when he “smeared” Zhou Shifeng and others in an interview orchestrated by the government.

This kind of cruel, inhumane, and unlawful treatment is just one method that authorities have used to denounce individuals or groups in civil society, and to control public narratives about government-perceived “political threats.” Not only is it inhumane and cruel to put a detainee on television “confessing” before any hearing by an independent court has taken place, such an action also violates international standards. Forced confessions extracted through mistreatment of criminal suspects remain rampant in China, and are of great concern to the international community. In its Concluding Observations for the 2015 review of China’s implementation of its commitments related to the Convention against Torture, the UN Committee Against Torture (CAT) expressed concern over reports “indicating that the practice of torture and ill-treatment is still deeply entrenched in the criminal justice system, which overly relies on confessions as the basis for convictions.”

Violations of legal and procedural laws, and no protection of legal and human rights

Contrary to what the Chinese government claimed in its response, the legal and human rights of detainees have not been protected and ensured from the beginning, and rights deprivations have continued throughout their detentions. Egregious violations of legal rights include incommunicado detention during “residential surveillance at a designated location” (RSDL) for all the detainees. Both Li Heping and Wang Quanzhang have been denied access to legal counsel since they were seized in July 2015, while Jiang Tianyong remains under incommunicado residential surveillance since his disappearance in November 2016. None of the seven 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).

RSDL, which is stipulated under Article 73 of the CPL, has been widely criticized as constituting “enforced disappearance.” The above circumstances grossly violate Principles 14, 15, 16, 17, and 18 of the “Body of Principles.”

Authorities have continually disregarded rules and regulations pertaining to detainee’s right to legal counsel. Out of the currently six detained or imprisoned individuals (Li Chunfu was released on January 12, 2017), only Xie Yang has been able to meet with his lawyers. The first meeting took place after one year of incommunicado detention, in late July 2016. More recently, Xie’s two attorneys made public information from two other meetings that occurred in January 2017, describing in detail torture and other mistreatment that Xie has suffered (see more below). Since reporting these violations, however, the lawyers have not been granted permission for further meetings; they submitted multiple requests to meet Xie since February 28, 2017, but have not received any response. Refusing to let lawyers meet with clients is a blatant 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. Furthermore, both of Xie’s lawyers have faced threats and intimidation from local authorities after making public Xie’s testimonies in January. The firm at which one of the lawyers work now suffer harassment by authorities from the Bureau of Justice.

Another gross violation in these seven cases has been prolonged pre-trial detention without being brought before a judge—for over a year in Hu and Zhou’s cases, and ongoing for Li, Wang, Xie, and Jiang. All of them have faced obstacles to a fair trial, primarily by being smeared in state media as “criminals” even before any hearing has taken place. In the cases of Zhou Shifeng and Jiang Tianyong, their “confessions” to criminal allegations were either broadcasted or published in state media. These “confessions” also violate Chinese law, which stipulates that suspects cannot be pronounced guilty without having been judged as such by a court (CPL, Article 12). They taint any possible independent investigations and interfere with judicial procedure, virtually assuring that prosecutions will not be conducted fairly or legally.

Show trials contravene government’s claims of “open trial” in accordance with laws and procedures

The two individuals who have been convicted, lawyer Zhou Shifeng and activist Hu Shigen, were subjected to de facto closed trials that violate Chinese laws and international norms. Thus, the claims made by the Chinese government, that the trials were “open” and in “strict accordance with laws and procedures,” are manifestly untrue, as revealed by reported circumstances surrounding the trials. The Tianjin Municipal No. 2 Intermediate People’s Court, which tried and convicted both men, failed to give three-day advance public notice of the trials as required by Chinese law; instead, the court posted the trial notices on its weibo account either on the day of the trial or the night before. Without the presence at trial of a defense lawyer of a detainee’s choosing, family members, and independent observers, statements made by defendants in court could not be verified as declarations made without duress. The court quickly convicted both men of “subversion of state power,” each in hearings which lasted for about 3 hours, despite the severity of the charges the individuals faced.

Hu Shigen was convicted of “subversion of state power” on August 3, 2016, and sentenced to 7.5 years. Hu pled guilty and promised not to appeal his sentence, according to state media. Police took his brothers into custody on July 31, 2016, apparently to prevent them from attending his trial, while his family-appointed lawyer was never granted access to Hu. On August 4, 2016, Zhou Shifeng was sentenced to 7 years for the same crime and by the same court. According to state media, Zhou also pled guilty and stated he would appeal the verdict. Zhou’s family was held under house arrest to prevent them from attending his trial, and Tianjin police detained some of his supporters. Zhou was never granted access to his family-appointed lawyer, who authorities claim he had “fired” in January 2016, but provided no written verification of any such “decision.” (See more information on the forced “firing” of lawyers, including in the cases of Zhou and Li Heping: https://www.nchrd.org/2016/03/chrb-forced-switch-to-police-appointed-lawyers-further-erodes-protections-for-detained-rights-defenders-315-321-2016/.)

These show trials contravene Principle 36 of “Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,” which stipulates that a trial must be conducted in public and that a detainee must be ensured the means necessary to present a defense. Zhou Shifeng and Hu Shigen’s convictions are a mockery of justice. Both had been denied basic due process rights and the right to a fair trial, and the government held hearings that lacked any credibility. The detainees had been held in secret locations for a year; denied access to a lawyer of their own choice, access to their family, and prompt notification of the charges against them; and were not given public hearings by an independent court. Authorities blocked the families and supporters from attending the trials. Both pled guilty without any independent verification of their treatment during the incommunicado period.

Lawyer’s visit with detainee revealed torture and other mistreatment

While it is true that torture is officially forbidden under Chinese law, as the government has claimed in its response, authorities in these cases have failed to enforce measures meant to prohibit ill-treatment and coerced confessions. In fact, the information that Xie Yang provided during meetings with his lawyers in January 2017 revealed that police officers deliberately violated the law when they attempted to extract a confession from him (see: https://www.nchrd.org/2017/02/january-31-2017-chrd-update-on-arbitrary-detention-and-torture-of-chinese-lawyer-xie-yang/). During his six-month incommunicado RSDL period, Xie Yang was reportedly subjected to many methods of torture and various forms of cruel mistreatment by officers, prosecutors, and other officials. Torture techniques included sleep deprivation, long interrogations, beatings, death threats, humiliation, and other methods of psychological torment. The apparent intention of the alleged torture was to force Xie to confess to criminal behavior and to incriminate other lawyers.

In addition to torture, ineffective legal remedies for redress contradict what the Chinese government asserted in its response, that “the litigation rights and other legitimate rights of the individuals concerned are safeguarded by judicial organs in strict accordance with law.” According to information Xie provided, as many as 40 individuals have been involved in committing torture and other cruel mistreatment against him. Xie has identified by name and position over half of the suspected perpetrators, several of whom are officials from municipal and provincial procuratorates. In other words, individuals responsible for investigating allegations of torture have actually mistreated Xie Yang and tried to coerce him into admitting guilt for crimes. Furthermore, the Changsha City People’s Procuratorate has not replied to a torture complaint that Xie’s lawyers submitted, much less conducted any investigation into the allegations.

CHRD believes the alleged incidence of Xie Yang’s torture increases the likelihood that other detainees included in the response have been subjected to similar mistreatment. To some degree, this concern has been confirmed following the release of lawyer Li Chunfu, who was released on bail pending further investigation in January 2017. Li’s poor physical condition shocked his wife, and he reportedly has been in psychological distress, displaying symptoms of what appears to be severe trauma. Li has not told his family what he endured during his incommunicado detention of over 500 days, including both under RSDL and at Tianjin No. 2 Detention Center; however, his family fears that he may have also been tortured, considering the behavior he has exhibited.

Access to legal counsel is a paramount measure for torture prevention. However, Chinese authorities have failed to ensure this basic right in all these cases, contravening China’s legal commitment to international human rights, as spelled out in the seven human rights-related treaties that China has signed or ratified. The government is also bound by the Universal Declaration on Human Rights, which demands that states respect basic rights, including freedom of expression, assembly, and association, and the rights to just conditions of work, freedom from arbitrary detention, a fair trial, and an absolute prohibition of torture. Chinese authorities have violated or are suspected of violating all these rights in their conduct during the 709 Crackdown.