Civil Society Follow-Up Report Submitted to UN Committee against Torture – June 2017

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Civil Society Follow-Up Report Submitted to the UN Committee Against Torture:
Responses to the Committee’s Requests & to China’s Follow-up Report

Network of Chinese Human Rights Defenders (CHRD)
in Collaboration with a Consortium of Chinese Civil Society Groups

June 2017

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Table of Contents

Introduction

1. Restrictions on Access to a Lawyer and Notification to Families

(1.1) On Right to Access to a Lawyer 

(1.1.1) Restrictions involving “endangering state security” crimes &

  “residential surveillance at a designated location”…………………………Paras. 1-3

(1.1.2) Access denied in non-state security cases…………………………………….Paras. 4-5

(1.1.3) Access denied to lawyers of detainees’ own choice…………………………Paras. 6-10

(1.2) Failure to Notify Detainee’s Families or Within Legal Time Limit

(1.2.1) Chinese laws & regulations leave room for secret detention…..………..Paras.11-12

(1.2.2) Detainees’ families learn about detention from state media…..………..Paras. 13-14

(1.2.3) Failure to notify families in non-national security or terrorism cases..Paras. 15-16

(1.3) Lax Supervision of Law Enforcement & Accountability for Abusers

(1.3.1) Complaints about abuses rejected or ignored…………………………Paras. 17-21

(1.3.2) Reprisals for complaints about torture or abuses of legal safeguards….Paras. 22-23

2. Crackdown on Lawyers and Activists Continues

(2.1) Government Denies Ongoing Crackdown…………………………………Paras. 24-28

(2.2) Violence against Lawyers & Interference in Independence of Legal Profession………………………………………………………………………………….Paras. 29-33

3. Lack of Independent Investigations into Torture Allegations

(3.1)     People’s Procuratorates Tasked with Investigating Torture Not Independent…………………………………………………………………Paras. 34-35

(3.2)     Chinese Communist Party Bodies Interfere in Judicial System……Paras. 36-37

(3.3)     Investigations into Deaths in Custody Even Rarer………………………..Paras. 38-41

4. State Secrets & Lack of Transparency on Torture

(4.1)     Far-reaching State Secrets Law Could Conceal Information About Torture…………………………………………………………………….Paras. 42-43

(4.2)     Persistent Refusal to Provide Data on Torture ……………………………Paras. 44-45

Notes

 

Introduction

In its December 2015 Concluding Observations (COB) issued after reviewing China’s Fifth Periodic Report, the Committee against Torture requested the Chinese government submit information to address the Committee’s concerns stipulated in paragraphs 13, 19, 23, and 31 of the COB within one year of the review.[1] The Chinese government submitted its follow-up report to the Committee on January 24, 2017.[2] Our joint civil society report is intended to provide the information requested by the Committee and respond to the government’s report. We highlighted persistent discrepancies between the government’s on-going practices and its obligations under the Convention Against Torture.

The government’s report inadequately addressed the Committee’s concerns expressed in those specific paragraphs in the COB. The picture that the government’s report presented of the situation involving torture in China is far from accurate. Provisions in existing legislation that the Committee asked China to amend have not been changed to comply with the Convention. This legislation remains incompatible with the Convention against Torture and other international human rights treaties that China has ratified. New legislation or regulations introduced since 2015 have not provided additional legal protection, and in some cases, have undermined existing safeguards for detainees. In practice, Chinese police and other government personnel routinely sidestep such safeguards in the law with impunity.

In the crackdown on lawyers and activists that began in July 2015, families and lawyers have released accounts of torture that the detained lawyers and activists were subjected to in police custody. The government has not allowed any independent investigations into these torture allegations. The People’s Procuratorates and the People’s Courts cannot independently or impartially conduct such investigations: they are subservient to the Chinese Communist Party. The government continues to refuse to provide comprehensive data on investigation into torture allegations or prosecution of suspected torturers.

In collecting information and conducting research for this report, CHRD worked with many China-based independent groups and over a dozen Chinese lawyers. This report has been jointly-produced with these Chinese groups and lawyers. Their names have been withheld to protect them from government reprisals. We wish to acknowledge their valuable contribution and their courage in cooperating with a UN treaty body at great personal risk.   

1. Restrictions on Access to a Lawyer and Notification to Families (Para. 13, COB)

(1.1) On Access to a Lawyer

(1.1.1) Restrictions involving “endangering state security” crimes & “residential

   surveillance at a designated location”

1. The Chinese government did not amend nor repeal Article 37 of the Criminal Procedure Law (CPL) and related regulations, as recommended by the Committee Against Torture, to ensure that detainees are guaranteed the right to access a lawyer irrespective of the charge.[3] Article 37 of the CPL allows restrictions on the right of counsel to meet with detainees during the investigation stage in cases involving “endangering state security,” “terrorism,” or “serious bribery.” The government highlighted in its follow-up report that the law allows for lawyers to apply for permission to see a detainee suspected of a crime in one of these categories.[4] However, efforts by lawyers to obtain permission to meet their clients accused of crimes under these categories are usually futile.[5] The government claimed that the denial of lawyers’ visits on “national security” or “terrorism” grounds was used “only in a very few, extraordinary cases.”[6] But it did not provide data on the specific instances when authorities invoked this restriction, making it difficult to verify the accuracy of this claim. We have documented numerous cases in which this restriction has been applied.[7]

2. The government has also failed to repeal Article 73 of the CPL as a matter of urgency, which the Committee specifically asked the government to do. Article 73 allows PSB officials to deny detainees access to legal counsel by putting them under “residential surveillance at a designated location” (RSDL). Detainees could be held in secret locations for up to six months (under de facto “enforced disappearance”) if they are suspected of “endangering state security,” “terrorism,” or significant bribery crimes. The government’s report doesn’t provide comprehensive statistics on the number of individuals held under RSDL or the number of RSDL detainees granted a visit by their lawyer. We have not found a single case of RSDL where a lawyers’ visit was granted.

3. Of particular concern is that authorities have continued to put individuals under RSDL since the Committee issued its COB in December 2015. Seven individuals held under RSDL in the 2015 crackdown on human rights lawyers and activists (hereafter, 709 Crackdown) have alleged that police tortured or ill-treated them.[8] Three, prominent lawyer Li Heping (李和平) and activists Gou Hongguo (沟洪国) and Zhai Yanmin (翟岩民), were convicted and given suspended sentences after pleading guilty. Li and Gou told their families that they were subjected to torture to extract their confession.[9] In another case in Hunan Province, detained human rights lawyer Xie Yang (谢阳) told his lawyer in January 2017 of being tortured to extract a confession while he was kept in RSDL.[10] Torture techniques allegedly used against Xie included beatings, sleep deprivation, long interrogations, and death threats. Xie said that the apparent aim was to force him to confess to criminal behavior and to incriminate other lawyers.[11]

 (1.1.2)   Access denied even to detainees who do not face state security charges

4. The government claims that only under strict conditions detainees could be denied access to lawyers, including when an individual is charged with a crime that involves “endangering state security,” terrorism, or bribery. However, we have documented cases of denied access to detainees who have not been charged with such crimes.  For example, police detained nine individuals in Suzhou, Jiangsu Province, between September 2016 to February 2017 for their role in a peaceful demonstration outside a courthouse or for their comments posted online, and denied them access to their lawyers for months.[12] Eight were held under RSDL on charges of “picking quarrels and provoking trouble” (Article 293, Criminal Law (CL)) and “disrupting court order” (Article 309, CL). These crimes fall under the category of “obstructing the administration of public order,” yet police told lawyers they could not visit their clients because their cases involved “national security.”[13]

5. In December 2015, Guangdong police detained several staff members of labor NGOs on suspicion of “gathering a crowd to disrupt social order.”[14] For an extended period of time, Guangzhou PSB refused to allow the lawyers for three of the detainees—Zeng Feiyang (曾飞洋), Peng Jiayong, (彭家勇), and Deng Xiaoming (邓小明)—to meet with them, even though they were held on suspicion of a “obstructing the administration of public order” crime.[15] In another example, Hubei authorities denied human rights defender Liu Yanli (刘艳丽) access to her lawyer for the eight-month duration of her detention from September 2016 until her release in May 2017. She had been held on suspicion of “slander” after she shared posts on social media about former Chinese leader Mao Zedong.[16]

(1.1.3) Access denied to lawyers of detainees’ own choice

6. The Chinese government stated that any restriction on access to legal counsel, even in national security or terrorism cases, are lifted after the detainee is formally indicted by prosecutors as the restrictions “apply only in the investigation stage.”[17] However, we have found that authorities have ignored the law and continue to deprive access to legal counsel for detainees who have been formally charged. For example, detained lawyer Wang Quanzhang (王全章) was indicted in February 2017 but, as of the completion of this report, in June 2017, he has not been granted a single meeting with his lawyers.[18]

7. There has been a dozen or so documented cases where authorities told the detainees’ family-hired lawyers or the families that the detainees have “fired” the family lawyers and instead agreed to be represented by government-appointed lawyers. However, in these cases, authorities refused to provide the legally required written documents or allow for in-person attorney-client meetings to verify that the detainees had decided on their own to switch lawyers.[19] According to our documentation, authorities used this tactic in at least 15 cases in 2016, mainly tied to the detainees in the 709 Crackdown.[20] It has been impossible to confirm if such “decisions” have been made voluntarily by the detainees since their families and lawyers are barred from visiting them. Families and lawyers involved in these cases have strong suspicions that the detainees have been coerced to accept the arrangement. Authorities then used the “dismissals” of the lawyers to justify the ongoing denial of the detainees’ access to legal counsel even after the end of the investigation period.

8. In 2017, authorities continued to use the tactic of forced “firing” of family-hired lawyers in other cases that are not tied to the 709 Crackdown.[21] In one such case, two human rights activists and UNHCR-recognized refugees Dong Guangping (董广平) and Jiang Yefei (姜野飞) were forcibly repatriated from Thailand in November 2015, and then arrested and charged with “inciting subversion of state power” and “illegally crossing national borders.”[22] As their cases headed to trial, Chongqing authorities claimed that the two had dismissed the lawyers hired by their families and denied meetings with these lawyers. There has been no way to verify whether the two had any access to legal counsel or if the government-imposed lawyers have been able to represent them independently from government interference.

9. In cases that we have documented involving HRDs, government-appointed lawyers do not act to ensure that the detainees’ rights are safeguarded. Such lawyers often refuse to speak with family members or share case status updates with them.[23] In some instances, government-appointed lawyers act more like security agents than defense attorneys. For instance, the government-appointed lawyer for detained lawyer Li Heping did not even attend the sentencing hearing for his client. Tianjin No. 2 Intermediate People’s Court convicted lawyer Li Heping of “subversion of state power” on April 28, 2017, following a secret trial three days prior, and sentenced him to three years (suspended for four years). Li’s wife, Wang Qiaoling (王峭岭), was not informed of the trial or the sentencing hearing. She only learnt about them after they took place. Instead of attending the hearing at the court in Tianjin, the government-appointed lawyer Wen Zhisheng (温志胜) was in Beijing attempting to force Ms. Wang to come to Tianjin with her daughter. When she refused, Wen cursed at her, attempted to grab her phone, and even tried to hit her.[24]

10. In cases of detained HRDs who were represented at their trials by such government-imposed lawyers, State media reported that these defendants confessed to the crimes as charged, pleaded guilty and vowed not to appeal. This scenario was repeated in the cases of lawyers Li Heping, Xie Yang and Zhou Shifeng (周世峰), activists Gou Hongguo, Hu Shigen (胡石根), and Zhai Yanmin, and NGO director Zeng Feiyang.[25] In comparison, detained HRDs who were represented by their own lawyers very rarely pleaded guilty and most of them filled appeals to contest their convictions. We have not found evidence suggesting that, either during pre-trial detention or court proceedings, the government-appointed lawyers defended or acted in the best interest of their clients.[26] Moreover, as many of the HRDs that pled guilty had also been held in secret detention, their confessions were likely coerced through torture or ill-treatment. The government-appointed lawyers never raised allegations of torture by detainees or filed for such testimony to be excluded from trials. Many individuals held in secret detention then went on to make allegations of torture after they were released.

(1.2) Failure to Notify Detainees’ Families or To Do So Within Legal Time Limit

(1.2.1) Chinese laws & regulations leave room for secret detention

11. The Chinese government did not implement the Committee’s recommendation to repeal Article 83 of the CPL that permits restrictions on notifying families.[27] The government claimed in its follow-up report that there are “strict rules” on the notification of families, but cited Article 83.[28] Article 83 allows restrictions on notification of families if “the notification cannot be processed or where the detainee is involved in crimes endangering state security or crimes of terrorist activities, and such notification may hinder the investigation.” Article 83 does not explicitly say that the family must receive the notification within 24 hours. According to Chinese lawyers interviewed for this report, police have interpreted this to mean that they can send out notifications via the slowest communication channels possible, which means that families may not receive notifications for days or weeks.[29] In some cases, police seem to deliberately send written notices through the post to slow down the notification process, even though they could also use a telephone to alert families.[30]

12. The government cited in its follow-up report the “Rules for Criminal Procedure of the People’s Procuratorate (for Trial Implementation)” (Article 133) and the “Public Security Organs Procedures for Handling Criminal Cases” (Article 123) as containing “clear provisions specifically defining what constitutes a hindrance to the investigation and when notification is impossible.”[31] According to these instruments, police and prosecutors have broad powers to decide if certain conditions are met, which leaves ample room for them to interpret the rules and make arbitrary decisions. Under these rules, families do not need to be notified if “it is impossible to get in touch with the detainee’s family,” a provision that is open to abuse, especially for families in remote or small towns and rural areas.

(1.2.2) Detainees’ families learnt about their detention from state media 

13. The government asserted in its follow-up report that the rules exempting police notification of family members only applied during the investigation stage and that “once the possibility of hindrance of the investigation passes, the family of the detainee must be notified immediately of the situation in question.”[32] In several cases involving detained HRDs, the news of their detention and details of the state’s case against them appeared on state-run media before their families had received any notification. This was the case with the families of detained lawyers Huang Liqun (黄力群) and Xie Yuandong (谢远东), and activists Xing Qingxian (幸清贤) and Tang Zhishun (唐志顺).[33] In some instances, detainees who had been held incommunicado were shown on state TV “confessing” to a crime or criminal activity, without their families having been notified that they were detained or the facts of the case.[34] In all of the above cases, police cited possible “hindrance to an investigation” as grounds for not granting meetings with a lawyer, but broadcast details of the case and “confessions” on state media.

14. In one example, disbarred human rights lawyer Jiang Tianyong (江天勇) disappeared from a Hunan train station in November 2016.[35] His family filed a “missing persons” report with the police, but police refused to accept it. Meanwhile, police refused tell Jiang’s family whether Jiang was in custody. On December 16, 2016, state-run media published a report confirming that Jiang had been detained on suspicion of “endangering state security” crimes, and falsely claimed that his family had been notified.[36] Jiang’s father filed a lawsuit against the newspapers for making that false claim, but the courts refused to accept the case.[37] Authorities continued to hold Jiang incommunicado under RSDL and then showed him on state TV “confessing” to criminal activity in March 2017.[38] On April 1, 2017, authorities denied Jiang’s attorney a meeting with him on the grounds that it might “hinder the investigation,” despite the fact that police had previously granted state media access to film Jiang’s “confession.”[39] Once Jiang’s six-month RSDL came to an end in May 2017, authorities claimed Jiang had “fired” his family-appointed lawyers and accepted government-imposed lawyers.[40]

(1.2.3) Failure to notify families of detainees who don’t face “national security” or “terrorism” charges

15. The government claimed that police and prosecutors “strictly implement the relevant provisions of the CPL [Article 83]” related to notifying families.[41] Authorities have, however, have violated Article 83. For instance, some detainees’ families have not been notified even when the detainees did not face “national security” or “terrorism” related charges. In an egregious case of enforced disappearance, Zhao Suli (赵素利) has been missing since January 9, 2015, when Hubei police seized her and her husband, Qin Yongmin (秦永敏), a long-time democracy advocate.[42] Although it was confirmed in 2016 that her husband was held in Wuhan No. 2 Detention Center, Zhao’s whereabouts remain unknown. Police and local government officials have refused to notify her family of her status. Her family’s lawyer filed several “open government information disclosure” requests with the government to seek information about her whereabouts. The government did not respond. The family then filed a lawsuit against the government for violating the Regulation on the Disclosure of Government Information by refusing to provide any information about Zhao. A court decision on this lawsuit is pending at the time of this report, though the family’s lawyer was not optimistic.[43] As of writing, Zhao remains missing and her family has no information about her fate.

16. In two other related cases, the detainees were held on suspicion of “picking quarrels and provoking trouble,” a charge that is unrelated to “national security.” Police did not notify the families of the two detained citizen journalists, Lu Yuyu (卢昱宇) and Li Tingyu (李婷玉), for nine days.[44] Their lawyers were not allowed to meet them for almost one month after their detention.

(1.3) Lax Supervision of Law Enforcement & Accountability for Abuses

(1.3.1) Complaints about abuses rejected or ignored

17. The government claimed that “to ensure effective supervision and provide for redress, law enforcement authorities have also issued dedicated rules and taken the relevant measures.”[45] The problem is that the rules the government referred to have not been effectively implemented. There is also lax implementation of the newer rules released since 2015, which contain provisions prohibiting obstruction of detainees’ access to lawyers and on disciplining guards at detention facilities.[46] Other regulations cited by the government do not comply with international norms. For example, the 2016 “Opinion on Standardization to Improve the Scope of Law Enforcement” requires law enforcement to “preserve” the leadership of the Chinese Communist Party.[47]

18. Procuratorate officials have refused to file complaints about breaches of detainees’ rights or lawyers’ professional rights. In one case, the Suzhou procuratorate refused to accept a complaint filed by lawyer Sui Muqing (隋牧青) in February 2017 over a detention center’s preposterous claim that his client did not want a lawyer while the case was under “investigation.”[48] Procuratorate authorities often do not respond to complaints even if they file them, despite rules stipulating that they must respond within 10 days of the filing of a complaint.[49] In the cases of lawyers Li Heping, Jiang Tianyong and Wang Quanzhang, all held in the 709 Crackdown, the local procuratorate failed to respond to each of their lawyers’ complaints over violations of their right to meet their clients.[50] Lawyer Yu Wensheng (余文生), who represents Wang Quanzhang, was frustrated by the lack of response from Tianjin No. 2 Procuratorate. He sent 21 complaint letters in March 2017 to the National People’s Congress, State Council, and various national level government offices, detailing the failures of Tianjin law enforcement officials to investigate alleged abuses.[51]

19. In another example from the 709 Crackdown, several lawyers filed complaints over the abusive behavior of Tianjin public security officer Li Bin (李斌), who was in charge of the Tianjin No. 1 and No. 2 detention centers, where several of the detained lawyers were held. Officer Li orally told several family-hired lawyers that they had been “fired,” but he did not produce any corroborating documentation nor did his department allow the lawyers to visit their clients to verify this claim.[52] Prosecutors did not respond to the complaints.

20. Some lawyers interviewed for this report told us that, on occasions even when the prosecutors filed the complaints and responded, the responses tend to be brief messages that simply stated that investigators found no unlawful conduct.[53] Their responses did not include an explanation whether there has been an independent and impartial investigation.

21. In some cases, even when the procuratorate accepted the facts of the complaint and asked police to halt illegal activities, the officers ignored the requests and continued the abuses without facing any consequences. In one case in Yunnan Province, the lawyers of detained citizen journalist Li Tingyu filed a complaint about officials at the detention center, who had told the lawyers that their client had “fired” them, but refused to allow them to meet Li to verify this claim.[54] An official at the Dali City People’s Procuratorate later told the lawyers that the procuratorate had accepted their complaint and had “recommended” the detention center allow the lawyers to visit their client. The police at the detention center ignored this recommendation.

(1.3.2) Reprisals for complaining about torture or abuses of legal safeguards

22. The Committee recommended China ensure that detainees, their legal representatives, and relatives can challenge in court the restrictions on access to clients or notification of families.[55] The government has not implemented this recommendation. In many instances, Chinese courts simply refused to docket lawsuits filed by lawyers on behalf of detainees or their families over blocked access or failures to notify. Moreover, the plaintiffs who filled such lawsuits could face reprisals by government authorities. For example, the 71-year old mother of labor NGO director Zeng Feiyang withdrew her lawsuit two weeks after she had filed it, because she faced police threats.[56] A Beijing court refused to accept a lawsuit brought by Wang Qiaoling (王峭岭), the wife of detained lawyer Li Heping, against police departments for depriving her husbands’ legal right to access lawyers.[57] In retaliation for her lawsuit, police broke into her home on August 6, 2015 and took her in for questioning, warning her to stop taking such actions.

23. Complaining about torture in general may lead to retaliation and punishment in the hands of police. In May 2017, Jiangsu police put activist Zhang Kun (张昆) under criminal detention on suspicion of “picking quarrels and provoking trouble.” He had posted online accusations that police tortured him on multiple occasions during his detention and imprisonment between 2013 and 2016.[58]

2. Crackdown on Lawyers and Activists Continues (Para. 19, COB)

(2.1) Government Denies Ongoing Crackdown

24. In its follow-up response, the government dismissed the Committee’s concerns and claimed that “there has been no ‘crackdown’ by the Government of China on human rights lawyers and activists.”[59] Government officials have on other occasions labelled human rights lawyers as “criminals,” and the chief justice of the Supreme People’s Court cited punishing human rights lawyers as a key achievement of the court’s judicial work in 2016.[60] We have documented numerous cases of detention, trials, imprisonment, torture and intimidation of lawyers and activists since the crackdown began in July 2015. Some of the families of victims of the ongoing crackdown on lawyers and activists have spoken publicly that their relatives have been tortured and ill-treated in detention centers and RSDL.[61] On May 5, 2017, the UN Office of the High Commissioner on Human Rights expressed “dismay by this continuing pattern of harassment of lawyers, through continued detention, without full due process guarantees and with alleged exposure to ill-treatment and coercion into self-incrimination.”[62]

25. We have tracked the detentions in the ongoing 709 Crackdown on lawyers and activists.[63] Six individuals remain in custody (either prison or pre-trial detention or awaiting a verdict). Of the total affected, eight have been put on trial and six of them convicted, of whom three are serving prison sentences and the other three have been released on suspended sentences;[64] one detainee has been put on trial but a verdict has not been issued; and another detainee was released on bail after a trial without a verdict.[65] Another two are in pre-trial detention, awaiting their first hearing.[66] Out of 28 individuals who authorities “released” on bail or on a suspended sentence, we documented 17 who were immediately put under some form of residential surveillance in unknown locations; 11 of these individuals remain under strict police control—they are not allowed to leave their residences, receive visitors, speak to reporters, or go online. Those who are serving suspended sentences could be put in prison at any time if police decide that they have broken certain rules.

26. The Chinese government claimed in its follow-up report that “there have been just a few cases of lawyers who have been held to account and subjected to sanctions because they have violated professional ethics and discipline and have gone beyond the legal and regulatory scope of the practice of their profession.”[67] Many of the detained lawyers were charged with “subversion of state power” or “inciting subversion of state power,” which are classified as “endangering state security” crimes. These grave criminal charges, which carry harsh prison sentences, are a serious escalation of the government’s claim that these lawyers “violated professional ethics,” which in and of itself would not be considered a crime that would “endanger national security” under any stretch of the Chinese law.

27. The government defended its criminal persecution of lawyers by declaring in its follow-up report that “no one can claim any special privileges based on the fact that he or she is a lawyer.”[68] The detained human rights lawyers had tried to defend the due process rights of their clients, such as other human rights defenders, families affected by poisoned milk, dissident writers, labor organizers, victims of land grabs, and members of persecuted religious groups or ethnic minorities.[69] They had tried to do their job despite the government’s abuses of power and interference in the independency of the judiciary. Through state media, the government publicly smeared the detained lawyers and activists to delegitimize their work in promoting and defending human rights and discredit them.[70] These smear campaigns were intended to shape public opinion about these lawyers prior to any court trial, thus depriving them of the presumption of innocence. The government’s case against the lawyers, as published in state media and selected court transcripts from the August 2016 trials of several lawyers and activists, made it clear that the lawyers were being prosecuted for their professional work and the activists for their advocacy for human rights.[71] The State’s case is clear retaliation against these individuals for exercising their rights to free expression, association, and peaceful assembly.

28. The government responded to the Committee with information about four such detainees: lawyer Zhou Shifeng and activists Zhai Yanmin, Hu Shigen and Gou Hongguo. The Tianjin No 2. Intermediate People’s Court convicted all four in August 2016 following closed-door trials. The government claimed that the defendants’ rights were protected,[72] which is factually false. The August 2016 trials violated both international standards on fair trials and relevant provisions in Chinese law. Police detained the four men in the summer of 2015 and put them under secret detention in RSDL for six months. Their families did not receive any written notification until their formal arrests in January 2016 and Zhai Yanmin’s family wasn’t notified until April 2016.[73] During their pre-trial detention period, none of the four was granted a single meeting with a lawyer hired by their families. They were represented at trial by government-appointed lawyers. The court 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 social media account either on the day of the trial or the night before.[74] Authorities prevented the men’s family members from attending the trials; police detained Hu Shigen’s brothers and put family members of Gou Hongguo, Zhai Yanmin and Zhou Shifeng under house arrest.[75] Only selected media received permission to attend the trails, while foreign journalists reported that they were met with a heavy police presence after arriving at the courthouse.[76] The court swiftly convicted all four of “subversion.” Each trial lasted for about three hours, despite the severity of the charges against them. The wife of Gou Hongguo has since made public accusations that her husband was tortured in police custody, collaborating strong suspicions that his “confession” during trial was coerced.[77]

(2.2) Violence against Lawyers & Interference in Independence of the Legal Profession

29. The government claimed in its follow-up response to CAT that it “has always respected and protected the rights of lawyers to practice.”[78] There is a large gap between this claim and the reality of how the government treats lawyers who try to practice law independently, uphold rule of law principles, and defend the legal rights of the accused. These lawyers have been subjected to intimidation, harassment, violence, and criminal prosecution.[79] Lawyers should have been protected by the Chinese government from such mistreatment, as the Committee recommended, but they have not been. The government cited in its follow-up report the September 2015 “Provisions on the Legal Protection of Lawyers’ Practicing Rights” as an indication of its protection of lawyers’ rights.[80] In practice, these provisions have been routinely ignored or violated by judicial authorities and law enforcement personnel with little or no accountability.[81] One Chinese lawyer described them to us as “useless.”[82] Another regulation cited by the government as evidence of its protection of lawyers’ rights is the June 2016 “Opinion on the Strengthening of the Reform of the Bar.”[83] However, the Opinion emphasizes that the “guiding ideology” of China’s legal system reform is “adhering to the [Chinese Communist] Party’s leadership” and that the fundamental requirement for a lawyer’s practice is to “support socialist rule of law.”[84]

30. Since 2015, the government has introduced troubling revisions to regulations that govern the legal profession. These revisions provide more room for government interfere in the freedom of lawyers to practice their profession independently. The Ministry of Justice put out revised versions of the “Administrative Measures for Law Firms” and “Administrative Measures for the Practice of Law by Lawyers,” both of which went into effect in November 2016.[85] According to newly added provisions, lawyers can be dismissed by their law firms for challenging violations of their clients’ rights, for gathering to discuss defense strategies, complaining about abusive police behavior, or even expressing dissent with government policies.[86] The amended “Measures on the Practice of Law by Lawyers” includes a new provision (Article 2) that stipulates: “…as a basic requirement to practice, lawyers should endorse Communist Party leadership and socialist rule of law,” and the “Measures for Law Firms” requires lawyers to “support the leadership of the Chinese Communist Party” (Article 3).[87] A new pilot program introduced by the Ministry of Justice on March 31, 2017 in four provinces requires lawyers to be evaluated, in part, on their “political performance.”[88]

31. Chinese authorities have begun prosecuting human rights defenders under the crime “disrupting court order” (Article 309, CL), an amendment to the law in 2015, despite the Committee’s concerns that the amendment is “overbroad, undermines the principle of legal certainty and is open to abusive interpretation and application.”[89] The government claimed in its follow-up report that Article 309 had been reworded in the drafting process to be clearer as applying to “conduct involving the destruction of court facilities or plundering, damaging or destroying litigation documentation or evidence, when the circumstances are serious.”[90] However, as feared, the law has been broadly applied to free speech or peaceful assemblies in or around courts.[91]

32. The government further claimed that Article 309 “ensur[es] the personal safety of participants in legal action, including lawyers.”[92] However, we have documented four incidents of violence against lawyers while they were working in and around the court buildings since the amended Criminal Law went into effect in 2015.[93] None of the alleged perpetrators of violence against lawyers have been investigated or prosecuted for “disrupting court order.” In one incident, which took place in October 2016, bailiffs violently assaulted a lawyer for trying to bring case files into a courtroom. The lawyer’s complaint was dismissed by prosecutors, who said a bailiff hitting a lawyer in court was not a “serious” incident.[94]

33. In September 2016, 115 Chinese lawyers signed a petition addressed to the National People’s Congress.[95] They requested the legislative body introduce legislation to make it a crime to “obstruct lawyers’ defense of their clients,” arguing that such measures are urgently necessary. As they stated in the petition, they have become gravely concerned that lawyers’ speech has often been interrupted in court, and when lawyers protest, they have been accused of “disrupting court order.”

3. Lack of Independent Investigations into Torture Allegations (Para. 23, COB)

(3.1) People’s Procuratorates Tasked with Investigating Torture Not Independent

34. The Committee recommended China establish an independent oversight mechanism to ensure prompt, impartial, and effective investigations into all allegations of torture and ill-treatment. The existing mechanism, the people’s procuratorate, which is tasked with receiving complaints and conduct investigations into torture allegations, lacks impartiality and is not independent from the Chinese Communist Party (CCP) or the CCP-led government.[96] Especially in political cases, the procuratorate tends to ignore or refuse to investigate torture allegations or complaints about obstruction of lawyers’ professional work. International standards state that an independent authority is one with no relation to the body that is investigating or prosecuting criminal allegations.[97] However, people’s procuratorates prosecute cases investigated by public security organs.

35. In the aforementioned case of detained lawyer Xie Yang (para. 3), family and lawyers do not know of any independent investigation into his allegations of torture.[98] Xie and his lawyers filed complaints twice with the procuratorate demanding investigations into torture, once in November 2016 and again in January 2017.[99] Since they filed these complaints, there has been no indication that any of the accused perpetrators had been suspended pending an investigation. Instead, Xie Yang, his family, and his lawyers faced retaliation. Changsha City officials summoned Xie’s wife Chen Guiqiu for questioning; judicial authorities made surprise “inspections” of the law firm where one of the lawyers works; and Xie’s lawyers were blocked from visiting him at the detention facility.[100] Authorities also attempted to refute the accusations through an elaborate propaganda campaign in state media.[101] A state media report from March 3, 2017 stated an investigation had been conducted, though this was only after international media had widely reported on the case.[102] However, Xie’s lawyers never received a report from such an investigation, nor has such a report been made public. Xie’s lawyers filed a complaint, asking for a copy of the report, but did not receive a response.[103] Under these circumstances, it is impossible to verify if a genuinely independent and impartial investigation was ever conducted. No individual has been charged with torture in relation to Xie Yang’s case. In May 2017, Xie Yang, represented by government-imposed lawyers, appeared in a close-door trial.[104] He confessed to “crimes” and denied he was tortured, according to clips broadcast by state media. Xie was released on bail following his “confession,” but has since disappeared into police custody and his current whereabouts are unknown.[105]

(3.2) Chinese Communist Party Bodies Interfere in Judicial System

36. The government asserted “The people’s procuratorates are not subordinate to the public security organs.”[106] However, procuratorates are subordinate to the Chinese Communist Party (CCP). CCP functionaries directly interfere in legal cases. The government did not deny in its report that the Central Politics and Law Committee (PLCs) play a role in meddling with legal cases, stating that they “carry out such tasks as coordinating the functions of the various organs, supervising and urging the performance of duties in accordance with the law and establishing appropriate conditions for the proper administration of justice.”[107] However, the government’s claim that “they [PLCs] do not coordinate individual cases” is false.[108] For example, in a case in Guiyang, Guizhou Province, prosecutors told defence attorneys they could not approve medical parole for a prisoner without authorization from the local PLC.[109]

37. The so-called “610 Office,” a CCP-directed body that is led by the Central Politics and Law Committee, interferes in cases involving members of the Falun Gong spiritual group. Named for its date of creation (June 10, 1999), this Office has no legal authority in the criminal justice system. Yet, Chinese lawyers who have represented detained members of Falun Gong reported encountering many incidents of interference by the “610 Office,” which ultimately decides the outcome of the trials and the severity of the punishment.[110] According to one Chinese lawyer interviewed for this submission, who has handled many such cases, the “610 Office” played a role in deciding every single Falun Gong case he defended.[111] Another lawyer said that the “610 Offices” “control and manipulate [sensitive cases] from behind the scenes.” [112]

(3.3) Investigations into Deaths in Custody Even Rarer

38. In 2016-2017, there have been several cases involving death in police custody, which raised strong suspicion of torture. The way in which government authorities have handled these cases demonstrates a pattern of lax investigations, which shelters perpetrators from punishment that fits the severity of the crime. In May 2016, an environmental researcher, Lei Yang (雷洋), died in custody following a police operation outside a Beijing brothel. Police initially said he died of a heart attack, but following widespread public outrage challenging the official narrative, prosecutors opened an investigation.[113] According to state media, the investigation found that Lei had died from choking on his own vomit, which may have been caused by the officers involved using excessive force.[114] The procuratorate recommended the five officers face “dereliction of duty” charges.[115] However, a month later, prosecutors declined to press criminal charges, claiming that Lei had “disrupted” police work by trying to flee, and that officers’ breach of duty was “minor,” even though it resulted in the death of the suspect.[116] The police officers reportedly admitted wrongdoing and regretted their actions, which apparently was cited for leniency and the dropping of charges.

39. In March 2017, Henan police released a statement on social media about a detained criminal suspect’s death in custody. The statement said that police were suspected of using torture to coerce a confession, which led to the death.[117] Chinese state media reported that the case had been transferred to the local procuratorate for investigation and that four officers involved were suspended and under criminal detention. However, since then there has been no information made public about the investigation or any outcome.

40. Other cases indicate that credible investigations into deaths in detention are rare. In two cases from November 2016, families raised concerns after their loved ones died in police custody. Authorities had kept the bodies from the families, who had demanded an autopsy by credible medical professionals, which raised suspicion that torture was involved. In one of these cases, petitioner and a former Re-Education through Labor camp victim, Chen Shenqun (陈沈群), died on November 21, 2016 as she was being escorted home to Liaoning by police from petitioning in Beijing.[118] Police claimed that her death was the result of a “road accident” but then reportedly detained Chen’s sister when she tried to view her body. In the other case, dissident Peng Ming (彭明) died in November 2016 while serving a life sentence in Hubei Province for his democracy advocacy.[119] His brother told a journalist that, within 24 hours of his death, his body had reportedly already been prepared for burial with cosmetics covering his face.

41. Two other cases in 2017 follow the same pattern. In March, bus driver Hu Shiyu (胡树义) died in custody in Wuxi City, Jiangsu Province.[120] His family said local police tried to cover it up and claimed that he died of “sudden cardiac arrest.” The family viewed visible injuries to his body. Officials denied torture was involved but claimed that there were no video recordings for the period when he was in custody, even though Chinese law requires that video cameras be installed in all detention facilities and interrogation chambers. In May 2017, an ethnic Zhuang villager, Luo Jibiao (罗继标), died in a detention center in Guangxi.[121] His family said his body had numerous bruises and injuries on his head, neck, chest, arms and legs, and blood around his nose and mouth. The family alleged that Luo was tortured to death during police interrogation. After Luo’s family and lawyers demanded an investigation, authorities immediately removed Luo’s body to an unknown location and deployed dozens of armed riot police officers to surround the family’s village. Police visited the law firms of lawyers representing the family to intimidate them, forcing one lawyer to drop the case.

4. State Secrets Law & Lack of Transparency on Torture (Para. 31, COB)

(4.1) Far-reaching State Secrets Law Could Conceal Information About Torture

42. In its follow-up response to CAT, the government tried to clarify that information about torture “does not fall within the scope of state secrets” as laid out in relevant provisions of the Law on Guarding State Secrets.[122] However, the government did not indicate if there were other laws, regulations, rules, policies, or CCP documents that did or did not classify information about torture as “state secret.” The Law on Guarding State Secrets includes a catchall category of “other matters that are classified as state secrets by the state secret-guarding department” (Article 9(7)). Information on torture or cases involving torture could potentially be retroactively classified as a state secret under this provision. One lawyer interviewed for this report said that while he does not think data related to torture is technically classified as a state secret, authorities never make public data about torture.[123]

43. When authorities systematically block lawyers’ access to meet with their clients at detention facilities, any information about the detainees’ conditions, including being subjected to torture, is effectively hidden. A common justification given is that granting access to the detainee might leak “state secrets.” For example, NGO director Huang Qi (黄琦) was arrested for “illegally providing state secrets to foreign entities” for publishing a photo of a government document that listed Huang as a target of an upcoming crackdown; authorities then retroactively classified the document as a “state secret” and arrested Huang.[124] Police have denied every meeting request from Huang’s lawyers since detaining him in November 2016, citing as grounds that his case involves “state secrets.” Huang suffers from an incurable and potentially fatal kidney disease and had been repeatedly hospitalized prior to his arrest; however, his lawyers cannot find out whether he has received adequate medical treatment or whether he has been subjected to torture. Deprivation of medical care has been found to be a systemic form of torture used against some incarcerated HRDs.[125]

(4.2) Persistent Refusal to Provide Data on Torture

44. The Chinese government has consistently ignored the recommendation from the Committee made in 2008 and again in 2015 requesting detailed and broken-down information related to torture and torture investigations.[126] In response, the government made the claim in it’s follow-up report that “owing to the country’s vast size, large population and uneven level of development among regions, and the fact that human and other resources are limited, the statistics produced by the regions are of different calibers. It is thus difficult in a short time frame to collect and synthesize detailed, analytical data.”[127] One lawyer interviewed for this report called such a claim made to a UN body “beyond belief,” citing the expansive and complicated nationwide control the government has over China’s media, Internet, and mobile networks.[128] The government’s refusal to provide concrete data and specific information requested by UN human rights bodies has been a longstanding problem. This lack of cooperation with UN human rights mechanisms operations effectively undermines treaty body reviews and efforts to assess China’s implementation of human rights treaties and UPR recommendations.[129]

45. The government claimed it “attaches great importance to public access to information” and cited the Regulation on the Disclosure of Government Information as a venue for citizens to file a lawsuit if they believe their right to information has been infringed.[130] One Chinese lawyer described this claim as “deliberately deceptive.”[131] The lawyer said that the government has refused to provide information about torture when lawyers filed “government information disclosure” requests.[132] Another lawyer interviewed for this report told us that, in general, government departments respond to such requests with uniform rejections; courts routinely refuse to docket lawsuits against government agencies for rejecting requests for information on torture related issues; and even if a lawsuit was initially accepted, it would normally be quickly dismissed.[133] In June 2017, the government released new draft revisions to the Regulations which would greatly expand the list of causes that officials could cite in denying requests from citizens for government information disclosure. The draft expanded list includes information that is not fit for public disclosure if it touched upon foreign affairs, ethnic minorities, religion, territorial affairs, and a vaguely defined “national interests.”[134] It appears that the revisions are retroactive justification for previous practices of government officials’ refusals to disclose information and the persistent lack of transparency. Prior to the Committee’s 2015 review, the government had categorically rejected dozens of requests filed by Chinese citizens for information and data concerning the claims made by the government in its state report submitted for CAT review. Authorities retaliated against some of the citizens who had made the requests.[135]

Notes