Submission to UN on Yu Wensheng – November 8, 2018

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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 situation of human rights defenders

Special Rapporteur on the independence of judges and lawyers

Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment

Communiqué on Behalf of Yu Wensheng, Citizen of the People’s Republic of China,

Alleging Arbitrary Detention and Reprisals against a Human Rights Defender

           I. IDENTITY

  1. Family name: Yu (余)
  2. First name: Wensheng (文生)
  3. Sex: Male
  4. Birth date or age (at the time of detention): November 11, 1967
  5. Nationality/Nationalities: People’s Republic of China
  6. (a) Identity document (if any): ID Card

          (b) Issued by: Beijing Municipal Public Security Bureau, PR China

          (c) On (date): November 8, 2004

          (d) No.: N/A

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

Yu Wensheng, a human rights defense lawyer, has represented victims of the Chinese government’s assault on civil liberties, including petitioners, activists, and his fellow rights lawyers. Yu has also been an advocate for change in multiple areas of Chinese society, attracting the ire of government authorities. For example, Yu was among a group of lawyers in 2016 to sue the government over air pollution. Before his current detention, Yu had faced state harassment and intimidation going back several years, such as when he was detained for over three months in 2014 after publicly expressing support for Hong Kong’s Occupy Central movement.

  1. Address of usual residence: Beijing Municipality, People’s Republic of China

II. Arrest

  1. Date of arrest: January 19, 2018 (initial detention); January 20, 2018 (criminal detention)
  2. Place of arrest (as detailed as possible): Outside of his residence in Beijing Municipality (see address above)
  3. Forces who carried out the arrest or are believed to have carried it out: Officers from Shijingshan District Sub-bureau of Beijing Municipality 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: Shijingshan District Sub-bureau of Beijing Municipality Public Security Bureau
  6. Reasons for the arrest imputed by the authorities: “obstructing official duties”
  7. Legal basis for the arrest including relevant legislation applied (if known): “Obstructing official duties” (Criminal Law, Article 277): “Whoever by means of violence or threat, obstructs a functionary of a State organ from carrying out his functions according to law shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, or public surveillance or be fined.”

III. Detention

  1. Date of detention: April 19, 2018 (formal arrest)
  2. Duration of detention (if not known, probable duration): Yu Wensheng has been detained since January 19, 2018 (over nine months at the time of this communication)
  3. Forces holding the detainee under custody: Xuzhou City Public Security Bureau
  4. Places of detention (indicate any transfer and present place of detention): Xuzhou City Detention Center (Jiangsu Province) (January 2018-present); previously Shijingshan Detention Center (Beijing Municipality)
  5. Authorities that ordered the detention: Xuzhou City Public Security Bureau
  6. Reasons for the detention imputed by the authorities: “obstructing official duties” and “inciting subversion of state power”
  7. Legal basis for the detention including relevant legislation applied (if known):

“Inciting subversion of state power” (Criminal Law, Article 105 (2)): “Whoever instigates the subversion of the political power of the state and overthrow the socialist system through spreading rumors, slandering, or other ways are to be sentenced to not more than five years of fixed-term imprisonment, criminal detention, control, or deprivation of political rights; the ringleaders and those whose crimes are grave are to be sentenced to not less than five years of fixed-term imprisonment.”

For the criminal charge of “obstructing official duties,” please see II. 7 above.

IV. Describe the circumstances of the arrest.

Police seized lawyer Yu Wensheng outside his Beijing home on January 19, 2018, as he was taking his son to school. Yu was forced into a police vehicle after an altercation between him and at least one officer. State media outlets put out a heavily edited video soon after lawyer Yu was detained, claiming that Yu had attacked police who were trying to take him in for questioning.

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

The detention of Yu Wensheng is apparent reprisal for his exercise of free expression, legal work as a rights defense lawyer, and association with China’s community of rights defense lawyers. Yu has been detained during a period in which Chinese authorities have heightened suppression of the rights defense legal community and cracked down severely on expression related to “politically sensitive” issues.

On January 18, 2018, the day before police seized him, Yu released an open letter recommending changes to China’s Constitution, including fair elections and the creation of an oversight system for the Chinese Communist Party, among other reforms. In addition, Yu was the victim of several retaliatory acts by authorities in the days just before his detention. He was denied permission to set up a law firm and banned from travelling overseas on “national security” grounds. On January 16, the Beijing Municipal Justice Bureau “de-registered” (注销), or temporarily cancelled, Yu’s law license, essentially disbarring him. As justification for this action, officials cited his lack of employment at a law firm over the previous six months; in July 2017, Beijing Daoheng Law Firm had dismissed Yu under pressure from authorities, who had refused to let Yu and the firm’s director, Liang Xiaojun (梁小军), “pass” the annual license review for lawyers. That punishment appeared to be reprisal for Yu’s attempts to visit a client, detained lawyer Wang Quanzhang (王全璋), the longest-held individual still in pre-trial detention from the 2015 crackdown on human rights lawyers.

On January 27, 2018, police summoned for questioning Yu’s wife, Xu Yan (许艳), who learned that police had added a second, and more severe, criminal charge against him: “inciting subversion of state power.” On that date, Yu was transferred to Xuzhou City Detention Center in Jiangsu, where police placed him under “residential surveillance at a designated location.”

Legal violations have occurred in Yu Wensheng’s case. Lawyer Yu has been deprived of any visits with a lawyer of his or his family’s choosing during his entire detention, in blatant violation of China’s Criminal Law (Article 37), which states a detainee should be given access to a lawyer within 48 hours of a request. Pursuant to the “Body of Principles for the protection of all persons under any form of detention or imprisonment,” a detainee should be entitled to communicate and consult with his or her legal counsel and allowed adequate time, which also has been denied to Yu.

There have been ongoing concerns that Yu Wensheng has been mistreated in custody, including by being coerced and perhaps even tortured. On April 18, 2018, Yu’s family-appointed lawyers, Chang Boyang (常伯阳) and Xie Yang (谢阳), went to Tongshan District Public Security Bureau in Xuzhou and requested to meet with Yu. Authorities denied the request and presented the lawyers with a note dated April 16, apparently written and signed by Yu, expressing his intent to dismiss the two lawyers and requesting his wife not replace them. Any such statement was likely coerced, as it follows the disturbing pattern of detained rights defenders in China being forced to “fire” their lawyers and take on government-assigned ones. (Recognizing that he may one day meet the same fate, Yu had taken the initiative before being taken into custody to prepare written and video testimonies stating that he would not voluntarily fire his legal counsel if he were ever detained.) On April 19, 2018, the day Yu was formally arrested, Xu Yan, his wife, was granted a video call with him. Ms. Xu subsequently reported that Yu had lost weight and that his hair had grown long and was unkempt. When Xu asked her husband whether he had in fact written the note dismissing his lawyers, Yu was unable to give a clear response.

By mid-July 2018, Yu Wensheng had reportedly met with state-appointed attorneys, Zhao Qiang (赵强) and Yue Song (岳松), who had also been in contact with Xu Yan. It is believed the government-assigned lawyers will not protect the legal rights of Yu nor present an appropriate defense of their client’s rights if Yu went to trial. Yu’s family-appointed lawyers, Chang Boyang and Xie Yang, were not allowed access to Yu or any case materials. On November 7, 2018, police at the Xuzhou City Detention Center refused to allow lawyers Chang, Xie, and Lu Tingge (卢廷阁), along with Xu Yan, to meet with Yu.

In early September 2018, Xuzhou prosecutors sent Yu’s case back to police for further investigation, thus delaying his possible criminal prosecution. The Xuzhou City PSB has twice recommended Yu’s case for indictment, only for the Xuzhou City People’s Procuratorate to return the case each time for further police investigation—often a sign a case lacks sufficient criminal evidence to be prosecuted. Yu’s lawyers believe authorities have extended the period of investigation as a way of depriving Yu of his liberty and his right to a timely trial, while subjecting him to unreasonably prolonged pretrial detention.

Yu Wensheng has been detained solely due to the peaceful exercise of his rights guaranteed under the Universal Declaration of Human Rights (UDHR). The circumstances of his detentions satisfy Category II (i.e., when the deprivation of liberty results from the exercise of the rights) and freedoms guaranteed by articles 1, 2, 6, 9, 10, and 19 of the UDHR.

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.

Family-hired lawyers and family members of Yu Wensheng have appealed repeatedly to Chinese authorities to release Yu on bail, but authorities have not granted their requests. For example, in May 2018, authorities rejected an appeal from Xu Yan to free the lawyer, and police continued to refuse to allow independent lawyers to visit him.

Yu’s wife, Xu Yan, has sent many letters to public security organs to seek information on Yu’s case.

For example, on September 25, 2018, Xu wrote to the Jiangsu Provincial Public Security Department and the Ministry of Public Security to urge those bodies to look into Yu Wensheng’s case, including by determining his detention status and whether or not Yu has been subjected to torture.

In October 2018, Xu Yan wrote to China’s National Lawyers Association, requesting that Zhao Qiang and Yue Song, the lawyers appointed to Yu’s case by the government, be withdrawn from his case, and instead allow lawyers originally chosen by the family, Chang Boyang and Xie Yang, to represent Yu.

VII. Full name, postal and electronic addresses of the person(s) submitting the information (telephone and fax number, if possible).

Submitted: November 8, 2018

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