Communiqué on CHENG Yuan, LIU Dazhi, WU Gejianxiong – September 19, 2019

October 2, 2019 Comments Off

Submission to:

Working Group on Arbitrary Detention

Special Rapporteur on the rights to freedom of peaceful assembly and of association

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 torture and other cruel, inhuman or degrading treatment or punishment

Communiqué on Behalf of CHENG Yuan, LIU Dazhi, WU Gejianxiong, Citizens of the People’s Republic of China, Alleging Arbitrary Detention and Deprivation of Rights to Expression, Assembly, and Association

I. IDENTITY

A) Cheng Yuan

1. Family name: Cheng (程)

2. First name: Yuan (渊)

3. Sex: Male

4. Birth date or age (at the time of detention): October 18, 1973

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

6. Identity document (if any):

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

Cheng Yuan, a legal activist and non-government professional, began defending the legal rights of vulnerable groups in the late 2000s, first with the organization Tianxiagong (天下公, or Justice for All), and co-founded Changsha Funeng (长沙富能) in February 2016, a public interest advocacy NGO. The group has promoted legal and rights protections for disadvantaged groups, including people with Hepatitis B and AIDS, through policy advocacy and legal empowerment. The organization has often applied for public disclosure of government information as allowed under Chinese law. Prior to his detention, Cheng was a colleague at Changsha Funeng with the other two detainees listed in this communication.

Cheng Yuan has long supported people with Hepatitis B and AIDS in discrimination cases, helping to alleviate systemic bias against these diseases in China. In 2013, Cheng and another lawyer led a HIV employment discrimination lawsuit in Jiangxi Province, which resulted in a landmark court decision to award compensation to the plaintiff, who was denied a teaching position due his HIV-positive status. Cheng also has provided legal support, including through filing influential lawsuits, in cases related to the implementation of China’s household registration (hukou) system and one-child family planning policy.

8. Address of usual residence: Shenzhen City, Guangdong Province, People’s Republic of China

B) Liu Dazhi

1. Family name: Liu (刘)

2. First name: Dazhi (大志)

3. Sex: Male

4. Birth date or age (at the time of detention): March 16, 1977

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

6. Identity document (if any): National ID Card No.

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

Liu Dazhi (aka Liu Yongze, 刘永泽) joined Changsha Funeng (see above description) in 2017, and prior to his detention was a colleague at Changsha Funeng with the other two detainees in this communication. Beyond his work with that group, he helped establish the Changsha Chunyu Mutual Aid Team, which has focused on protecting workers’ rights, assisting victims of occupational diseases, and supporting the education of disadvantaged children whose families were affected by workplace illnesses. He has also worked on environmental health issues; in 2014, Liu sought to have Changsha authorities publicly disclose data on tap water quality, and three years later applied for information disclosure on how, and in what quantities, biomedical waste was being disposed of in the city.

8. Address of usual residence: Changsha City, Hunan Province, People’s Republic of China

C) WU Gejianxiong

1. Family name: Wu (吴)

2. First name: Gejianxiong (葛健雄)

3. Sex: Male

4. Birth date or age (at the time of detention): January 1, 1995

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

6. Identity document (if any): National ID Card No.

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

Wu Gejianxiong, also known as Xiao (“Little”) Wu (小吴), had only recently joined the NGO field with Changsha Funeng (see above description), before he was detained. He had mainly worked in cooperation with lawyers on rights-defense cases. Prior to his detention, Wu had been a colleague at Changsha Funeng with the other two detainees listed in this communication.

8. Address of usual residence: Changsha City, Hunan Province, People’s Republic of China

II. Arrest

A) Cheng Yuan

1. Date of arrest: July 22, 2019

2. Place of arrest (as detailed as possible): His apartment in Shenzhen City

3. Forces who carried out the arrest or are believed to have carried it out: Changsha City National Security Bureau

4. Did they show a warrant or other decision by a public authority? No

5. Authority who issued the warrant or decision: N/A

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

7. Legal basis for the arrest 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) Liu Dazhi

1. Date of arrest: July 22, 2019

2. Place of arrest (as detailed as possible): Changsha City, Hunan Province

3. Forces who carried out the arrest or are believed to have carried it out: Changsha City National Security Bureau

4. Did they show a warrant or other decision by a public authority? N/A

5. Authority who issued the warrant or decision: N/A

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

C) Wu Gejianxiong

Date of arrest: July 22, 2019
Place of arrest (as detailed as possible): Changsha City, Hunan Province
Forces who carried out the arrest or are believed to have carried it out: Changsha City National Security Bureau
Did they show a warrant or other decision by a public authority? N/A
Authority who issued the warrant or decision: N/A
Reasons for the arrest imputed by the authorities: “Subversion of state power”
Legal basis for the arrest 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.

III. Detention

A) Cheng Yuan

1. Date of detention: August 26, 2019 (formal arrest)

2. Duration of detention (if not known, probable duration): Cheng Yuan has been detained since July 22, 2019

3. Forces holding the detainee under custody: Changsha City National Security Bureau

4. Places of detention (indicate any transfer and present place of detention): Changsha City Kaifu District Detention Center, Hunan Province (previously Hunan Province National Security Detention Hall)

5. Authorities that ordered the detention: Changsha City National Security Bureau

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

7. Legal basis for the arrest 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) Liu Dazhi

1. Date of detention: August 26, 2019 (formal arrest)

2. Duration of detention (if not known, probable duration): Liu Dazhi has been detained since July 22, 2019

3. Forces holding the detainee under custody: Changsha City National Security Bureau

5. Authorities that ordered the detention: Changsha City National Security Bureau

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

7. Legal basis for the arrest 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.

C) Wu Gejianxiong

1. Date of detention: August 26, 2019 (formal arrest)

2. Duration of detention (if not known, probable duration): Wu Gejianxiong has been detained since July 22, 2019

3. Forces holding the detainee under custody: Changsha City National Security Bureau

5. Authorities that ordered the detention: Changsha City National Security Bureau

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

7. Legal basis for the arrest 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.

IV. Describe the circumstances of the arrests

The three detained NGO personnel were taken into custody on July 22, 2019, Cheng Yuan from his residence in Shenzhen City, Guangdong Province, and Liu and Wu from locations in Changsha City.

V. Indicate reasons why you consider the arrests and/or detentions to be arbitrary

Detainees in this communication have been subjected to state retaliation for their efforts to advocate for the rights of individuals who have suffered discrimination in China, particularly people living with HIV and persons with disabilities. The detainees have been deprived of their rights to exercise free expression, peaceful assembly, and free association, and blocked from accessing legal counsel while being held incommunicado during their entire detentions.

Although Changsha police have not provided any evidence for detaining the three men, their deprivation of liberty appears to reflect the government’s growing suppression towards NGO work in China, particularly since the adoption of laws on domestic charities and overseas NGOs in recent years. In the repressive environment for NGOs in China, organizations that had worked in the past with some free space in civil society, including independent anti-discrimination groups such as Changsha Funeng, have faced increased retaliation by the Chinese government. Changsha Funeng had set up a company in Hong Kong through which it had received funding from overseas, which may be related to their detention, though international norms on the right to free association guarantee the right to seek and receive funding. The serious criminal charge against the men (“subversion of state power”), and authorities’ accusation that their cases involve “national security” concerns, suggests an even more strident suppression than has been shown in other cases of deprived liberty of NGO professionals in China.

The men have been deprived of their legal rights since they were initially detained, including in lack of the provision of police documentation concerning their detentions and notification to their families. The three men were initially disappeared on July 22, 2019, the date they were also placed under criminal detention. Authorities did not notify families of their detentions within 24 hours, which is allowed under exemptions in China’s Criminal Procedure Law (CPL, Article 83) for individuals charged with a crime in the category of “endangering state security,” which the three men had been charged with. Among the three detainees, only Cheng Yuan’s family received a written arrest notice, after initially being informed during a call on August 26, 2019 from Changsha authorities indicating that all three men had been formally arrested on charges of “subversion of state power.” The detainees were formally arrested as the 37-day limit for criminal detention was approaching; under Chinese law, the men would have needed to be released if they were not placed under “formal arrest.”

Cheng Yuan, as a co-founder of Changsha Funeng, had been subjected to police harassment before being taken into custody in July 2019. Police had threatened Cheng several times with detention in the weeks just prior to seizing him. Cheng had travelled to Hong Kong to handle some personal and organizational affairs, during a period of time coinciding with public protests calling for political reforms in the territory; however, Cheng is not believed to have been involved in the protests.

Changsha authorities have held the men under incommunicado detention during their entire period in custody, increasing the detainees’ risk of suffering torture and other forms of ill-treatment. Authorities have charged the men with an unusually harsh criminal offense of “subversion of state power”—a crime in the category of “endangering state security.” Thus, authorities are able to take advantage of a Chinese legal provision which allows authorities to deprive detainee access to a lawyer beyond 48 hours, the legal limit set for such access for virtually all other criminal charges (CPL, Article 37). National security officers directly informed the families that, since the case allegedly involves “national security,” it will be difficult for defense lawyers and relatives to meet with the detainees. Authorities have refused several applications by the detainees’ lawyers to visit the men in detention, and also refused to allow any communication between the men and their lawyers or family members, in violation of their communication rights.

Cheng Yuan’s family members have faced police harassment and deprived liberty due to Cheng’s case, despite their having no ties to his advocacy work. Cheng’s elder brother, Cheng Hao, was brought in for questioning by police in July, soon after Cheng was taken into custody, and again in late August, on suspicion of “picking quarrels and provoking trouble.”Cheng’s wife, Shi Minglei, who was seized by police on the same day as Cheng, has endured ongoing harassment and deprived liberty. On July 22, police handcuffed and interrogated Ms. Shi, put a hood over her head, and issued threats about her three-year-old daughter. She was let go after 18 hours in custody and following interrogation, and she was then placed under “residential surveillance” at her home on “subversion of state power” charges. Police confiscated some of her personal property, including identity documents, bank cards, cell phone, and computer, and froze her bank account on July 23, 2019. On August 3, 2019, Ms. Shi sent a letter of complaint about her mistreatment by police to the Hunan Province People’s Procuratorate, Changsha City People’s Procuratorate, and Hunan Province State Security Department, accusing the Changsha State Security Department of unlawful abuse of power in initiating a criminal case against her, and demanding they “terminate” the “compulsory measures” against her, particularly the deprivation of freedom under “residential surveillance.”

In addition, the lawyer for Cheng has indicated that he is concerned about official retaliation if he discusses Cheng’s case publicly. The lawyer has declined interview requests, including from international media, stating that he would risk being disbarred, citing regulations and warnings from the Changsha City National Security Bureau, which has reportedly “banned” the “sensationalizing of legal cases.”

In mid-August 2019, national security personnel from Changsha City reportedly went to Shi Minglei’s home and showed her a video of Cheng Yuan that was recorded inside his detention center, in which Cheng appeared thin and lethargic, according to Shi. This has prompted concerns about his treatment while in custody, as well as concern for the other two detainees, as all three men are being held incommunicado and thus are at greater risk of torture and other forms of mistreatment.

The detentions of the three men listed in this communication constitute violations of their rights to exercise peaceful assembly and free association, which are protected under Article 35 of China’s Constitution. Furthermore, the circumstances of these individuals’ detentions constitute violations of their rights to peacefully exercise free expression, assembly, and association guaranteed under Categories I, II, and III 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 1, 7, 9, 15, 19, 21, and 22), and freedoms guaranteed by Articles 3, 5, 9, 19, 20, and 23 of the Universal Declaration of Human Rights.

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.

The detainees’ lawyers and family members inquired about their whereabouts on July 24, 2019, two days after the three men had been disappeared, at Wangcheng District Public Security Bureau in Changsha. Wangcheng police denied their bureau had ordered the detentions, and the families only began to receive information from authorities on July 25, 2019, indicating that national security officers had taken the men into custody.

Defense lawyers for the detainees have on several occasions requested information and updates on the case from Changsha National Security Bureau; however, officials have refused to reveal information on the criminal case against the men.

Human rights stakeholders both inside and outside of China have actively called for the release of the men, who nonetheless remain in custody. A prominent joint campaign urging the Chinese government to free the men, who have come to be known as the “Changsha 3,” was launched on July 30, 2019, by human rights advocacy groups and individual advocates. Their letter requests that the UNAIDS Programme Coordinating Board (PCB), which China currently chairs, investigate the men’s case, and calls on the Chinese government to adhere to legal procedures and protect the rights to due process and legal counsel of the “Changsha 3.” The campaign signatories have pointed to the board’s goal of eliminating HIV-related discrimination by 2030 in urging the Chinese government to release the three legal advocates, who are themselves dedicated to such anti-discrimination work.

Date: September 19, 2019