CHRD Communiqué Allegeding Arbritrary Detention of Zhang Shaojie – October 16, 2019

November 14, 2019 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 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

Special Rapporteur on freedom of religion or belief

Communiqué on Behalf of ZHANG Shaojie, Citizen of the People’s Republic of China, Alleging Arbitrary Detention, Deprivation of Rights to Expression, Assembly, and Association, and Torture and Reprisal against a Human Rights Defender

I. IDENTITY

1. Family name: Zhang (张)

2. First name: Shaojie (少杰)

3. Sex: Male

4. Birth date or age (at the time of detention): December 30, 1965

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):

Zhang Shaojie, a Christian pastor in Nanle County, Henan Province, had for years helped disadvantaged groups defend their rights and interests. In particular, he had accompanied members of his congregation from the “Three-Self” Patriotic Protestant Church to travel to Beijing to “petition” (present grievances) to central government officials over a land rights dispute with Nanle authorities. The church, for which Zhang had been the chairman and president, is officially sanctioned by the Chinese government. Zhang had also served as a member of the “Political Consultative” body of the Chinese Communist Party in Nanle County.

8. Address of usual residence: Nanle County, Henan Province

II. Arrest

1. Date of arrest: November 17, 2013 (criminal detention); November 22, 2013 (formal arrest)

2. Place of arrest (as detailed as possible): Branch church of the “Three-Self” Patriotic Protestant Church in Nanle County, Henan Province

3. Forces who carried out the arrest or are believed to have carried it out: Officers of Nanle County Public Security Bureau

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

5. Authority who issued the warrant or decision: Nanle County Public Security Bureau

6. Reasons for the arrest imputed by the authorities: “Gathering a crowd to disrupt social order” and “Obstructing official duties”

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

Article 290 of China’s Criminal Law (“Gathering a crowd to disrupt social order”) stipulates: “Where people are gathered to disturb public order to such a serious extent that work in general, production, business operation, teaching or scientific research cannot go on and heavy losses are caused, the ringleaders shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; the active participants shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights.”

Article 277 of China’s Criminal Law (“Obstructing official duties”) stipulates: “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: July 4, 2014 (imprisonment)

2. Duration of detention (if not known, probable duration): Zhang Shaojie has been detained since November 17, 2013. Since he was issued a 12-year prison sentence, Zhang is set to be released on November 16, 2025, if he completes his full sentence according to Chinese law.

3. Forces holding the detainee under custody: Nanle County Public Security Bureau

4. Places of detention (indicate any transfer and present place of detention): Henan Province Prison No. 2 in Xinxiang City (transferred in October 2014); previously detained at Baitiaohe Prison in Neihuang County, Puyang City, and Nanle County Detention Center, Henan Province

5. Authorities that ordered the detention: Nanle County People’s Court

6. Reasons for the detention imputed by the authorities: “Gathering a crowd to disrupt social order” and “Fraud”

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

Article 266 of China’s Criminal Law (“Fraud”) stipulates: “Whoever, for the purpose of illegal possession, unlawfully raises funds by means of fraud shall, if the amount involved is relatively large, be sentenced to fixed-term imprisonment of not more than five years or criminal detention and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan; if the amount involved is huge, or if there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan; if the amount involved is especially huge, or if there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan or be sentenced to confiscation of property.”

IV. Describe the circumstances of the arrest

Zhang Shaojie was taken into police custody without a detention notice on November 17, 2013, at the “Three-Self” Patriotic Protestant Church in Nanle County, Henan Province. Reportedly, he had gone to the church premises to meet with the Nanle County Public Security Bureau Chief and a police deputy, when about a dozen officers entered the building and abducted Zhang. Mr. Zhang was placed under criminal detention the next day, when more than 20 church members were also taken into custody.

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

The detention of Mr. Zhang Shaojie appears to be state retaliation for his advocacy for his church congregation and other individuals, including his efforts to pursue a land rights dispute with Nanle County authorities and for assisting other individuals in seeking justice over their personal grievances. Zhang, as well as his relatives, church members, and others associated with him, have faced various forms of state retaliation for their peaceful exercise of expression, assembly, and association rights.

It is believed local Communist Party officials primarily have retaliated against Zhang due to his efforts in defending rights to land that his church had purchased in order to construct a new chapel, Bible school, and ministry center. Local authorities opposed this development plan and attempted to seize the land from the church. In November 2013, Zhang and church members travelled to Beijing on three occasions to “petition” central authorities to help resolve the land dispute. These peaceful and lawful advocacy efforts were referenced in the indictment against Zhang and cited as evidence of “gathering crowd to disrupt social order.”

Many supporters of Zhang, including congregation members and his relatives, have faced violations of their rights by security forces, including in the forms of surveillance, intimidation, physical assault, and detention. Days after Zhang and congregation members were initially detained, more than two hundred state agents converged to guard the entrance to the church premises, along with police vehicles, and authorities installed surveillance cameras around the building. Police physically assaulted several of Zhang’s relatives and church members who demonstrated for his release. During the protest, police detained Zhang’s sisters.

The above circumstances of Zhang Shaojie’s detention 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.

Chinese state agents assaulted and intimidated lawyers who had attempted to defend Zhang, preventing them from adequately representing him and depriving Zhang of legal counsel. Government-hired thugs in Nanle attacked and harassed lawyers who were defending Zhang, denying the lawyers the opportunity to meet with Zhang. On December 12, 2013, thugs blocked several lawyers outside Nanle County Detention Center and, later that day, physically attacked them at a guesthouse where they were staying. After each incident, the lawyers called the police emergency number and requested assistance. However, no police officers were dispatched, and the officer on the phone reportedly said it was not their responsibility to find the perpetrators. On December 13, 2013, thugs assaulted the lawyers outside the Nanle County People’s Procuratorate when the lawyers tried to lodge a protest against police harassment and denial of Zhang’s right to legal counsel. Lawyer 1 was hit on the head and suffered bleeding; lawyer 2 had his glasses knocked off; and several other lawyers sustained injuries from attacks. Thugs tore the jacket off of lawyer 3 and took several cell phones and tablet computers from the lawyers. The lawyers, along with foreign journalists (from Sky News of the United Kingdom), were forced to barricade themselves inside the procuratorate building.

The circumstances of Zhang’s initial detention and the development of criminal charges against him raise serious concerns about the legitimacy of his detention. When detaining Zhang, police officers did not produce an official notice, in violation of Article 83 of China’s Criminal Procedure Law (CPL), which stipulates that public security bureau officers must produce a detention warrant when detaining an individual. Zhang was initially detained only on suspicion of “gathering a crowd to disrupt social order,” but the charge of “disrupting official business” was added when he was formally arrested. After police from the Nanle County Public Security Bureau completed an investigation in December 2013, prosecutors in January 2014 recommended a local court put Zhang on trial on another charge, “fraud,” as well as “gathering a crowd to disrupt social order.”

Zhang’s lawyer at trial, lawyer 4, expressed his strong belief that the criminal case against his client was rife with abuses of his legal rights. Zhang’s lawyer argued that police did not have probable cause for detaining the pastor; the lawyer questioned the legality of the detention by suggesting that Zhang was taken into custody as a pretext that would allow police to conduct searches of his home in order to “gather evidence” and create a criminal case against him. Moreover, lawyer Zhang referenced in court the change from the original to eventual criminal charges (i.e. the addition of the “fraud” charge), and pointed out the fact that the government failed to produce records of an investigation substantiating criminal suspicion of “fraud.”

In addition, a female petitioner (a member of Zhang’s congregation) who prosecutors had named as the “victim” of the fraud charge went missing in December 2013, but a statement supposedly from her was still presented at trial as evidence against Zhang. In court, lawyer Zhang requested the woman be called as a witness, and he asked the prosecutor how they were able to produce a written statement by a missing person; however, he was not provided with a response. It is suspected, if the woman had made such a statement, that she had done so due to police coercion. According to Zhang’s lawyer, the woman had never pursued any “fraud” charge against Zhang, and she would have likely testified to his innocence of the charge had she been called as a witness in court. (The woman reportedly had sought Zhang’s help in 2010 to pursue compensation for her son’s death from a workplace accident, but she never received any redress.)

In addition to the 12-year prison sentence, the court also ordered Zhang to pay a fine of 100,000 yuan (over US$ 16,000). In December 2014, local authorities reportedly withdrew several million yuan from Zhang’s church bank account, which apparently were savings for the new church construction, and ordered the removal of the cross atop the church building and blocked the entrance.

Several members of Zhang’s family have been subjected to retaliatory rights violations due to their association with Zhang and the criminal case against him. On June 23, 2014, Zhang’s daughter and family (husband and child) were blocked by Chinese security officials from boarding a plane to the United States, with officials citing “national security” as a pretext for preventing their travel. Officers from the Nanle County Public Security Bureau and the Henan Public Security Bureau then forcibly returned the family to Nanle, where they were disappeared and unlawfully detained in an unofficial detention facility (“black jail”). Once released, the family went into hiding, fled to Thailand, and eventually received asylum in the United States. On September 9, 2014, Zhang’s sister was sentenced to 18 months in prison for “gathering a crowd to disrupt social order” in retaliation for participating in the protest calling for her brother’s release in Beijing in November 2013.

Zhang has been subjected to torture and other forms of mistreatment in prison, in part as retaliation for his not admitting criminal guilt, according to his sister, who provided information about the abuse after a prison visit with him in July 2017. Among the abuses against Zhang included threats, solitary confinement in a small space, deprivation of sleep and natural light, and deprivation of adequate food and nutrition (i.e., he was limited to just one steamed bun daily during one period of his detention).

The above circumstances constitute violations of Mr. Zhang’s rights guaranteed under Category III of the International Covenant on Civil and Political Rights (Article 9) and the Universal Declaration of Human Rights (Article 9).

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 Puyang City Intermediate People’s Court held appellate proceedings on Zhang’s conviction and punishment, and upheld the original 12-year prison sentence on August 21, 2014. His lawyers reportedly had not been told about the date of this appeal hearing or permitted to attend the proceedings.

During the period of Zhang Shaojie’s ongoing detention, his defense lawyers, activists, and both domestic and international non-governmental organizations and stakeholders have advocated for his release. As a recent example, in April 2019, the European Union urged the Chinese government to release Zhang during its EU-China Human Rights Dialogue. A statement released by the EU said that, during the dialogue, the “EU highlighted the deteriorating situation of civil and political rights in China, marked by the arrest and detention of a significant number of human rights defenders and lawyers,” including those, like Zhang, who had been “persecuted for…religious beliefs.” Despite such advocacy, Chinese authorities continue to detain Zhang.

Date of Submission: October 16, 2019