Submission to UN on Wu Gan, Wang Fang, and Yin Xu’an – April 17, 2018

April 19, 2018 Comments Off

Submission to:

Working Group on Arbitrary Detention

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

Special Rapporteur on the situation of human rights defenders

Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Communiqué on Behalf of Wu Gan, Wang Fang, and Yin Xu’an,

Citizens of the People’s Republic of China,

Alleging Arbitrary Detention, Torture, and Reprisals against Human Rights Defenders

I. IDENTITY

A) Wu Gan

1. Family name: Wu (吴)

2. First name: Gan (淦)

3. Sex: Male

4. Birth date or age (at the time of detention): February 14, 1972

5. Nationality/Nationalities: People’s Republic of China

6. Identity document (if any): National ID Card

7. Profession and/or activity (if believed to be relevant to the arrest/detention):

Wu Gan is a prominent cyber activist whose unconventional human rights advocacy has incorporated spirited online speech, humor, and street performance. He is widely known by his screen name “Super Vulgar Butcher” (超级低俗屠夫), or “The Butcher” (屠夫) for short. At the time of his current detention, Wu was working as an advisor with the Beijing Fengrui Law Firm, the main target of the “709 Crackdown,” which was launched against China’s human rights lawyers in July 2015. Prior to his current detention, Wu had been detained, threatened, and interrogated many times for his human rights activism. He resigned in 2008 and became a blogger and activist in 2008 and soon became well-known for his campaigns on several high-profile public interest cases. Previously, he had served in the military and worked as a security guard at the Xiamen Gaoji International Airport in Guangdong Province for over a decade.

8. Address of usual residence: Xiamen City, Fujian Province

B) Wang Fang

1. Family name: Wang (王)

2. First name: Fang (芳)

3. Sex: Female

4. Birth date or age (at the time of detention): October 6, 1971

5. Nationality/Nationalities: People’s Republic of China

6. Identity document (if any): National ID Card

7. Profession and/or activity (if believed to be relevant to the arrest/detention):

Wang Fang became a petitioner after her home was forcibly demolished on orders of authorities in 2012, and eventually got involved in human rights advocacy work. Prior to her current period of incarceration, she was active in public protests in support of fundamental human rights, attracting the attention of authorities. In January 2013, she took part took part in demonstrations to support press freedom outside the Southern Weekly headquarters in Guangzhou. She had joined demonstrations in support of several high-profile human rights defenders who had been detained and/or imprisoned, including Wu Gan.

8. Address of usual residence: Wuhan City, Hubei Province, PR China

C) Yin Xu’an

1. Family name: Yin (尹)

2. First name: Xu’an (旭安)

3. Sex: Male

4. Birth date or age (at the time of detention): August 27, 1974

5. Nationality/Nationalities: People’s Republic of China

6. Identity document (if any): National ID Card

7. Profession and/or activity (if believed to be relevant to the arrest/detention):

Yin Xu’an began petitioning in 2007 over a dispute with the local government. Prior to Yin’s current detention, authorities had detained him in black jails, and he received a two-year Re-education through Labor punishment in 2009 for applying for official permission to hold a demonstration during US President Barack Obama’s visit to Beijing. In 2012, Yin began to take part in human rights campaigns, including protests around the Chinese Communist Party’s 18th Party Congress, and later in demonstrations calling for the release of prisoners of conscience, including Wu Gan.

8. Address of usual residence: Daye City, Hubei Province

II. Arrest

A) Wu Gan

1. Date of arrest: May 20, 2015

2. Place of arrest (as detailed as possible): Outside Jiangxi Province Higher People’s Court in Nanchang City, Jiangxi

3. Forces who carried out the arrest or are believed to have carried it out: Police officers from Nanchang City Public Security Bureau

4. Did they show a warrant or other decision by a public authority? Yes

5. Authority who issued the warrant or decision: Xiamen City Public Security Bureau (Fujian Province)

6. Reasons for the arrest imputed by the authorities: “libel” and “picking quarrels and provoking trouble”

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

Article 246 of China’s Criminal Law (“libel”) stipulates a fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights to whoever, by violence or other methods, publicly humiliates another person or invent stories to defame him, if the circumstances are serious.

Article 293 of China’s Criminal Law (“picking quarrels and provoking trouble”) stipulates a fixed-term imprisonment of up to five years to those who (1) willfully attacking another person and the circumstances are serious; (2) chasing, intercepting, or cursing another person, and the circumstances are serious; (3) forcibly taking away, demanding, or willfully damaging or seizing public or private property; and the circumstances are serious; or (4) creating a disturbance in a public place, causing serious disorder.

B) Wang Fang

1. Date of arrest: July 28, 2015

2. Place of arrest (as detailed as possible): At a friend’s residence in Wuhan City, Hubei Province

3. Forces who carried out the arrest or are believed to have carried it out: Over 20 police officers from the Wuhan City Public Security Bureau

4. Did they show a warrant or other decision by a public authority? Yes

5 Authority who issued the warrant or decision: Wuhan City Public Security Bureau

6. Reasons for the arrest imputed by the authorities: “Picking quarrels and provoking trouble”

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

C) Yin Xu’an

1. Date of arrest: July 28, 2015

2. Place of arrest (as detailed as possible): At his residence in Daye City, Hubei Province

3. Forces who carried out the arrest or are believed to have carried it out: Public security officers from the Wuhan City Public Security Bureau

4. Did they show a warrant or other decision by a public authority? Yes

5. Authority who issued the warrant or decision: Wuhan City Public Security Bureau

6. Reasons for the arrest imputed by the authorities: “Picking quarrels and provoking trouble”

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

III. Detention

A) Wu Gan

1. Date of detention: July 3, 2015 (formally arrested); December 26, 2017 (sentenced to prison)

2. Duration of detention (if not known, probable duration): Wu Gan has been detained since May 20, 2015 (nearly 35 months at the time of this communication)

3. Forces holding the detainee under custody: Criminally detained by Siming Sub-bureau of Xianmen City Public Security Bureau (PSB), Fujian Province; formally arrested by Xiamen City PSB, Fujian

4. Places of detention (indicate any transfer and present place of detention): Tianjin No. 2 Detention Center, Tianjin Municipality (January 2016 – present); previously Nanchang City Detention Center, Jiangxi Province (May 20 -27, 2015) and Yongtai County Detention Center, Fujian Province (May 27, 2015 – January 2016)

5. Authorities that ordered the detention: Sentenced by Tianjin Municipal No. 2 People’s Court

6. Reasons for the detention imputed by the authorities: “Subversion of state power”

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

Article 105 (1) of China’s Criminal Law (“subversion of state power”) stipulates fixed-term imprisonment of not more than 3 years for participants, 3 to 10 years for active participants, and not less than 10 years or life imprisonment to those who organize, plot or carry out the scheme of subverting the state power or overthrowing the socialist system, and to ringleaders and others who commit major crimes.

B) Wang Fang

1. Date of detention: September 15, 2015 (formally arrested); July 18, 2017 (sentenced to prison)

2. Duration of detention (if not known, probable duration): Wang Fang has been detained since July 28, 2015 (nearly 33 months at the time of this communication)

3. Forces holding the detainee under custody: Wuhan City Public Security Bureau

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

Wuhan City No. 2 Prison (aka Hanyang Prison); previously Wuhan City No. 1 Detention Center (Hubei)

5. Authorities that ordered the detention: Sentenced by Wuchang District People’s Court (Wuhan City, Hubei)

6. Reasons for the detention imputed by the authorities: “Picking quarrels and provoking trouble”

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

C) Yin Xu’an

1. Date of detention: September 26, 2015 (formally arrested); May 27, 2017 (sentenced to prison)

2. Duration of detention (if not known, probable duration): Yin Xu’an has been detained since July 28, 2015 (nearly 33 months at the time of this communication)

3. Forces holding the detainee under custody: Wuhan City Public Security Bureau

4. Places of detention (indicate any transfer and present place of detention): Caidian Prison (Wuhan City, Hubei Province); previously Daye City Detention Center (Hubei)

5. Authorities that ordered the detention: Sentenced by Daye City People’s Court (Hubei)

6. Reasons for the detention imputed by the authorities: “Picking quarrels and provoking trouble”

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

IV. Describe the circumstances of the arrest

A) Wu Gan

Wu Gan was seized outside Jiangxi Province Higher People’s Court in Nanchang City, Jiangxi. Wu had gone to Nanchang to stage a performance protest called “selling my body to raise funds,” to support harassed lawyers working on a death penalty case involving defendants who had been tortured to confess. Police alleged that Wu had cursed at the head of the Jiangxi Province Higher People’s Court and held up protest signs in front of the courthouse, and Wu was issued a 10-day administrative detention. When that punishment was over, police from Fujian Province criminally detained him on May 27, 2015.

B) Wang Fang

Police seized Wang Fang three days after she and other activists, including Yin Xu’an, had publicly shown support for activist Wu Gan, who had been detained in May 2015. Wang and the rest of the group had worn t-shirts with Wu’s image in front of the Yellow Crane Tower in Wuhan on July 25, 2015, and then posted photos online of their gathering. A group of more than 20 national security officers took Wang into custody from the home of a fellow activist. Reportedly, the residence contained the t-shirts that the activists had worn. Police initially gave Wang a 15-day administrative detention, and police criminally detained her on August 8, 2015.

C) Yin Xu’an

Police seized Yin three days after she and other activists, including Wang Fang, had publicly shown support for activist Wu Gan, who had been detained in May 2015. Yin and the rest of the group had worn t-shirts with Wu’s image in front of the Yellow Crane Tower in Wuhan on July 25, 2015, and then posted photos online of their gathering. Yin was first reportedly issued a 15-day administrative detention, but police did not release him when the punishment ended on August 13. Instead, police told Yin’s family that he was given an additional 10-day punishment for “fighting” in the detention house. When relatives went to see Yin on August 23, 2015—the day that the 10-day detention ended—police said that he had been criminally detained.

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

A) Wu Gan

The circumstances of Wu Gan’s initial detention and current imprisonment constitute violations of his rights to peacefully exercise free expression, assembly, and association, including those guaranteed under Category II of the International Covenant on Civil and Political Rights (i.e., when the deprivation of liberty results from the exercise of the rights under Articles 12, 18, 19, 21, 22, and 26), and freedoms guaranteed by Articles 18, 19, and 20 of the Universal Declaration of Human Rights.

It is believed that Wu’s initial detention and ongoing imprisonment is government retaliation against his acts of free speech, assembly, and association that are protected by the Chinese Constitution and the country’s laws. Wu’s incarceration is tied to the “709 Crackdown” on human rights lawyers that began in July 2015 (the same month he was formally arrested), as at the time of his initial detention he had been working as an advisor with Beijing Fengrui Law Firm, the main target of the crackdown.

After Wu was taken into custody, the Chinese state media agency Xinhua tried to vilify Wu’s advocacy campaigns dating back to 2010. Published reports in government press rebuked him for criticizing officials from Heilongjiang Province, where a policeman had shot dead a male petitioner inside a train station in early May 2015. Wu and others had drawn the ire of authorities by expressing doubts online that the government’s investigation of the killing had any credibility. Beijing Fengrui Law Firm publicly backed him following the media smear campaign, and he was represented in the case by Fengrui lawyer Wang Yu (王宇), whose own detention on July 9, 2015, marked the beginning in earnest of the “709 Crackdown.”

Wu’s detention and court trial have involved procedural violations and legal abuses, including deprived access to legal counsel, incommunicado detention, unreasonably prolonged pretrial detention, delays in trial proceedings for arbitrary reasons, putting Wu on trial and sentencing him in proceedings that were essentially closed to the public, and attempts by police to coerce him to confess to criminal charges. The circumstances described below demonstrate violations of Wu’s rights guaranteed under Category II of the International Covenant on Civil and Political Rights (Article 12) and the Universal Declaration of Human Rights (Articles 5, 9, 11 and 13).

Wu Gan has often been denied access to his legal counsel, and he was held incommunicado and without a lawyer visit until nearly 19 months into his detention. For example, on June 30, 2015, police denied a request for a visit by lawyer Yan Xin (燕薪), citing that Wu’s “inciting subversion of state power” charge fell under the category of “endangering state security” crimes, and that Yan’s meeting him might lead to “leaking state secrets.” Tianjin police denied another request by Yan on February 5, 2016. On August 11, 2016, Tianjin authorities issued a notice to his lawyer refusing his request to visit Wu Gan, citing “national security” reasons and since Wu was being held on suspicion of a “subversion of state power” charge.

The Tianjin No. 2 People’s Procuratorate informed lawyer Yan on August 22, 2016, that police had recommended indictment. Authorities finally allowed Wu Gan to meet lawyers Yan and Ge Yongxi (葛永喜) for the first time on December 9, 2016. That day, he told them he was in relatively good health but had lost about 30 kilograms in detention. He also said that police had kept pressuring him to confess, which Wu had refused to do.

On January 3, 2017, authorities at the Tianjin No. 2 Intermediate People’s Court confirmed to lawyer Ge that Wu had been formally indicted and his case transferred to the court. Lawyer Ge was again denied a meeting with him, on May 2, 2017, and both he and lawyer Yan were reportedly blocked from meeting Wu on at least two other occasions later in May. Ge was allowed to meet Wu Gan on June 12, and lawyer Yan met the activist on June 21.

Wu was eventually put on trial on August 14, 2017, after he had been in custody for 27 months, a period of time that constitutes unreasonably prolonged pretrial detention under international standards. Authorities informed Wu’s legal counsel in advance that the proceedings would be closed to the public, citing “evidence” in the case that they claimed pertained to “state secrets.” On the trial day, there was a heavy police presence outside the Tianjin courthouse, and officers prevented supporters from observing the proceedings and reportedly detained over a dozen individuals. Fujian national security officers intercepted Wu Gan’s father, Xu Xiaoshun (徐孝顺), in Beijing four days before the trial.

The Tianjin court’s announcement claimed that Wu Gan had admitted criminal wrongdoing. However, Wu Gan insisted on his innocence in a statement released through his lawyers before the trial, which read in part: “I will be convicted not because I am guilty, but because of my refusal to accept a government-appointed lawyer, to plead guilty in a televised propaganda confession, and because I exposed torture, mistreatment, violence, and prosecutorial misconduct.”

On December 26, 2017, the court announced that Wu Gan had been sentenced to eight years in prison, the harshest sentence (at the time of this communication) for an individual detained as part of the “709 Crackdown.” An official summary of the verdict stated that Wu had “used ‘rights defense’ and ‘performance art’ as a ploy” to “seriously harm national security and social stability,” and that he had “used the Internet to disseminate voluminous statements attacking state power and the constitutionally established state order.”

B) Wang Fang

The circumstances of Wang Fang’s initial detention and current imprisonment constitute violations of her rights to peacefully exercise free expression, assembly, and association, including rights guaranteed under Category II of the International Covenant on Civil and Political Rights (i.e., when the deprivation of liberty results from the exercise of the rights under Articles 12, 18, 19, 21, 22, and 26), and freedoms guaranteed by Articles 18, 19, and 20 of the Universal Declaration of Human Rights.

Wang was detained after participating in a peaceful public demonstration calling for the release of the detained activist Wu Gan. As Wang stated in court in February 2017, her right to wear a t-shirt in support of Wu, and also to express support for human rights lawyers detained in the “709 Crackdown,” was protected by the Chinese Constitution and the country’s laws.

Wang’s detention and court trial have involved many procedural violations and legal abuses, including lack of timely disclosure to family members and legal counsel of her indictment, delays in trial proceedings for arbitrary reasons, attempts by police to coerce Wang to confess to criminal charges, putting Wang on trial and sentencing her in proceedings that were essentially closed to the public, and alleged acts of torture. The circumstances described below demonstrate violations of Wang’s rights guaranteed under Category II of the International Covenant on Civil and Political Rights (Article 12) and the Universal Declaration of Human Rights (Articles 5, 9, 11 and 13).

Indicted on December 11, 2015, Wang’s trial was later set for August 18, 2016, but authorities postponed it two days before it was set to start. According to Wang’s lawyer, Liu Zhengqing (刘正清), her trial date may have been postponed after diplomats from the U.S. and some European countries requested to attend the hearing. Lawyer Liu met Wang on September 29, 2016, and learned that an official at the Wuchang District People’s Court had put pressure on Wang to confess during a meeting on September 22, but she refused. To try to persuade Wang, the official raised the case of another activist, Zhai Yanmin (翟岩民), who had confessed to charges, pleaded guilty at his trial in August 2016, and received a suspended prison sentence. The official reportedly told her: “You and Zhai are part of the same case. He confessed and was released.” (Like Wang, Zhai had also been detained in connection to the “709 Crackdown” on human rights lawyers, and in violation of his rights to peaceful expression and assembly.)

On December 5, 2016, lawyer Liu was informed Wang’s trial had been delayed again, as prosecutors had applied to the court to conduct further investigation. Wang was eventually put on trial on February 10, 2017. The hearing lasted one day and ended without a verdict being announced. Lawyer Liu reported that the judges proposed giving her a lighter sentence if she pled guilty, which she refused to do, and her lawyer was going to mount a “not guilty” defense. Police detained over a dozen supporters outside of the courthouse during her trial, including one who received a three-day administrative punishment.

Wang’s sentencing took place in July 2017, after being delayed the previous month, and she was given a three-year sentence. Wang’s mother and child were able to attend the proceedings; however, there was a large police presence around the courthouse, and officers were monitoring many activists and blocked them from coming to the area.

In March 2018, Wang’s family and lawyer revealed that Wang, who has been suffering from cervical cancer, had grown very weak due to the disease, which had worsened due to being deprived of medical treatment while incarcerated. In addition, Wang was being forced to work in prison, further depleting her physical condition.

C) Yin Xu’an

The circumstances of Yin Xu’an’s initial detention and current imprisonment constitute violations of his rights to peacefully exercise free expression, assembly, and association, including rights guaranteed under Category II of the International Covenant on Civil and Political Rights (i.e., when the deprivation of liberty results from the exercise of the rights under Articles 12, 18, 19, 21, 22, and 26), and freedoms guaranteed by Articles 18, 19, and 20 of the Universal Declaration of Human Rights.

Yin was detained after participating in a peaceful public demonstration calling for the release of the detained activist Wu Gan, acts of free speech and assembly that are protected by the Chinese Constitution and the country’s laws. According to his lawyer, Lin Qilei (蔺其磊), the police accusations against Yin claimed that he also participated in other “sensitive” demonstrations in addition to the Wu Gan protest, including to: commemorate dissident Lin Zhao (who was executed in 1968 after being convicted of “counterrevolutionary” crimes), call for the freedom of imprisoned human rights defender Liu Ping (刘萍), and protest a prison sentence given to a man who supporters say had been unjustly punished for allegedly killing two members of a demolition crew that destroyed his residence on government orders.

Yin’s detention and court trial have involved procedural violations and legal abuses, including lack of timely disclosure to family members and legal counsel of his indictment, delays in trial proceedings for arbitrary reasons, lack of proper notice to lawyers about court hearings, putting Yin on trial and sentencing him in proceedings that were essentially closed to the public, and alleged torture. The circumstances described below demonstrate violations of Wang’s rights guaranteed under Category II of the International Covenant on Civil and Political Rights (Article 12) and the Universal Declaration of Human Rights (Articles 5, 9, 11 and 13).

After Yin was seized in July 2015, Hubei police held him incommunicado for 10 months, during which he was allegedly tortured. In January 2016, one of his lawyers filed a complaint with the Huangshi City People’s Procuratorate on the denial of legal counsel in the case, but the procuratorate took no action. Yin was eventually granted a meeting with his lawyer in May 2016, when he told his lawyer Lin Qilei about torture he had suffered in detention. Yin said he has repeatedly been physically assaulted by fellow inmates and also abused by guards, especially after he filed an application to have a police officer removed from his interrogation.

Prosecutors formally indicted Yin in March 2016. His case was subsequently transferred to the Daye City People’s Court for prosecution. The trial had initially been set for August 18, 2016, but authorities postponed it two days before the hearing was set to start. Authorities tried Yin on September 13, 2016, in a hearing that his family were not allowed to attend the trial, no advance public notice was made, and the courthouse was surrounded by a heavy police presence. No verdict was announced at the end of the trial, and Yin was only sentenced on May 27, 2017.

Yin has suffered from serious and inadequately treated health problems while in prison, including hypertension and heart disease. After prison officials had initially denied his request for a comprehensive physical exam, they reportedly sent Yin to a prison hospital in January 2018 after his physical condition had worsened, though his family had requested he receive care outside the prison, where facilities are more advanced and treatment would possibly be better. In April 2018, Yin’s family found that his health problems were still serious, and that his severe hypertension had caused intermittent blindness in both of his eyes. They are very concerned that some complication from Yin’s hypertension may lead to his death in prison, prior to his expected release on December 27, 2018.

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.

A) Wu Gan

During Wu Gan’s first visit with lawyers Yan and Ge, on December 9, 2016, Wu revealed mistreatment that he had received from police since he was initially taken into custody, including coercion to attempt to force him to confess to criminal behavior. On December 16, Wu’s lawyers filed a complaint to prosecutors over such mistreatment, as well as his extended period of deprived legal counsel, but they did not receive a response from authorities. In addition, following Wu’s sentencing in December 2017, he appealed his punishment but was still being restricted from visits with his legal counsel, including in January 2018.

B) Wang Fang

Wang Fang filed a complaint of mistreatment with detention center authorities, including behavior constituting torture, on November 3, 2015. In the complaint, Wang claimed, among other allegations, that guards had kept an inmate who suffered from tuberculosis in the same cell as other women, in violation of detention center regulations on infectious diseases. Authorities did not respond to this complaint. Due to Wang’s poor health and ill-treatment, including her worsening and untreated cervical cancer, her family and lawyer submitted applications for her release on medical grounds, but authorities have rejected the requests.

C) Yin Xu’an

After Yin Xu’an’s September 2016 trial, the Hubei Province No. 3 People’s Procuratorate refused to investigate his lawyers’ multiple filed complaints regarding denied access to their client as well as the failure of the detention center to provide Yin with adequate medical treatment. However, authorities have not provided any response to the lawyers.

Date: April 17, 2018