CHRD Communiqué Alleging Arbitrary Detention of Zhang Haitao – January 13, 2020

January 31, 2020 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

Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism

Special Rapporteur on freedom of religion or belief

Special Rapporteur on minority issues

Communiqué on Behalf of ZHANG Haitao, 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: Haitao (海涛)

3. Sex: Male

4. Birth date or age (at the time of detention): March 10, 1971

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 Haitao worked as a salesman while writing and posting opinions online that frequently criticized Chinese government policies on current affairs, particularly restrictions on freedom of religion for Uyghur Muslims in the Xinjiang Uyghur Autonomous Region. For a brief period, he contributed articles to the website of a Chinese human rights group. Zhang became involved in human rights defense work in 2009, when he began submitting complaints (“petitioning”) to authorities in Xinjiang for redress over “wrongful detention” after being detained for nearly two months on suspicion of “fraud,” a charge that was dropped upon his release. Originally from Henan Province, Zhang Haitao moved to Xinjiang in 1995 after losing his job at a state-owned enterprise.

8. Address of usual residence: Urumqi City, Xinjiang Uyghur Autonomous Region

II. Arrest

1. Date of arrest: June 26, 2015 (criminal detention)

2. Place of arrest (as detailed as possible): Residence in Urumqi City, Xinjiang Uyghur Autonomous Region

3. Forces who carried out the arrest or are believed to have carried it out: Officers of Urumqi City Public Security Bureau (Xinjiang Uyghur Autonomous Region)

4. Did they show a warrant or other decision by a public authority? Yes (but did not let the family keep a copy of the notice)

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

6. Reasons for the arrest imputed by the authorities: “Inciting ethnic hatred”

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

Article 249 of the Criminal Law of the People’s Republic of China (“Inciting ethnic hatred”) stipulates: “Inciting national hatred or ethnic discrimination, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, control or deprivation of political rights; if the circumstances are particularly serious, they shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years.”

III. Detention

1. Date of detention: July 31, 2015 (formal arrest); December 25, 2015 (criminal indictment); January 15, 2016 (convicted and sentenced to 19 years)

2. Duration of detention (if not known, probable duration): Zhang Haitao has been detained since June 26, 2015. Since he was issued a 19-year prison sentence, Zhang is set to be released on June 25, 2034, if he completes his full sentence according to Chinese law.

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

4. Places of detention (indicate any transfer and present place of detention): Shaya County Prison, Akesu Prefecture, Xinjiang Uyghur Autonomous Region (December 2, 2016 – present); previously detained at Xinjiang Uyghur Autonomous Region Detention Center (June 26, 2015 – December 2, 2016)

5. Authorities that ordered the detention: Urumqi City Intermediate People’s Court

6. Reasons for the detention imputed by the authorities: “Picking quarrels and provoking troubles” (formal arrest); “Inciting subversion of state power” and “providing intelligence overseas” (indictment and sentencing)

7. Relevant legislation applied (if known):

Formal arrest:

Article 293 of the Criminal Law of the People’s Republic of China (“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.

Criminal indictment and sentencing:

Article 105 (2) of the Criminal Law of the People’s Republic of China (“inciting subversion of state power”) stipulates: “Whoever incites others by spreading rumors or slanders or any other means to subvert the State power or overthrow the socialist system shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention, public surveillance or deprivation of political rights; and the ringleaders and the others who commit major crimes shall be sentenced to fixed-term imprisonment of not less than five years.”

Article 111 of the Criminal Law of the People’s Republic of China (“providing intelligence overseas”) stipulates: “If a foreign institution, organization, or personnel steals, spies, buys, or illegally provides state secrets or intelligence, it shall be sentenced to fixed-term imprisonment of not less than five years and not more than ten years; if the circumstances are particularly serious, it shall be sentenced to fixed-term imprisonment of not less than ten years. Or life imprisonment; if the circumstances are less serious, imprisonment for five years or less, criminal detention, control or deprivation of political rights.

IV. Describe the circumstances of the arrest

Zhang Haitao was seized at his home on June 26, 2015 in Urumqi City in Xinjiang and criminally detained the next day, after he posted comments online that were critical of government policies. Urumqi police searched his residence, and seized computers, laptops, USB pens, his bank cards, national ID card, and froze his bank account.

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

The detention of Zhang Haitao constitutes state retaliation against his peaceful exercise of his right to free expression. For years prior to being detained in 2015, Zhang had used weibo (Chinese social media platform), WeChat and Twitter to post his opinions online that were critical of state policies and practices, including violations of the right to freedom of religion faced by Uyghurs, an ethnic minority Muslim group in the Xinjiang Uyghur Autonomous Region. Zhang had also given interviews to Radio Free Asia and Voice of America about this human rights issue, and for a brief period he contributed articles to Boxun, a website for reporting on human rights conditions in China. The harshness of Zhang’s 19-year sentence for his expression activities appears to reflect the Chinese government’s tendency to heavily suppress any perceived “politically sensitive” acts within Xinjiang, a region which has faced heavy suppression under the guise of countering terrorism.

Urumqi City Intermediate People’s Court put Zhang on trial on January 11, 2016 and sentenced him four days later on January 15 to 19 years in prison for “inciting subversion of state power” (15 years) and “providing intelligence overseas” (5 years). Since Zhang would serve his punishment for the two crimes consecutively, the court ordered him to serve a total of 19, and not 20, years. As part of his sentence, Zhang was also fined 120,000 RMB, or approximately $18,500 USD.

The verdict said Zhang had sent 274 online posts from 2010 to 2015 that “resisted, attacked and smeared” the Communist Party and its policies. The court claimed that Zhang had “damaged ethnic minority unity and national unity” with his posts and had “colluded” with “hostile foreign forces” by accepting interviews from foreign media. The court also said that Zhang had given interviews to overseas media and collected information from Xinjiang streets about Xinjiang police’s “stability maintenance” measures, such as photographs of stability maintenance personnel, police vehicles, armored vehicles, etc, and sent it in articles, emails, and interviews to overseas “anti-China and anti-Chinese Communist Party” websites. The court verdict presented this as evidence of “providing intelligence overseas,” even though the evidence cited only shows that Zhang had taken photographs on public streets.

The 15-year punishment on the charge of “inciting subversion of state power” is especially harsh in light of the fact that Zhang was neither a prominent activist (or “ringleader”) nor a recidivist, both of which stipulate harsher punishments under Chinese Criminal Law. At trial, Zhang’s lawyer asserted that his client did not attempt to subvert the Chinese Communist Party. The lawyer argued that information that Zhang had provided to overseas entities was either already publicly available or information that the government should release under China’s “public information disclosure” regulations.

The Working Group on Arbitrary Detention has described the crime of “inciting subversion” as a “vague and imprecise offence” and called upon the Chinese government in 2019 to repeal article 105(2) of the Criminal Law or bring it into line with its obligations under international human rights law.^[1]

Zhang filed an appeal again his conviction and sentencing in February 2016 on several grounds, including that he had been tortured to force a confession, that exercising his right to free expression does not constitute a crime, that giving interviews with media is standard journalistic behavior and does not constitute a crime of providing intelligence overseas, and that the prison sentence is excessive. Court authorities made the irregular decision to delay on multiple occasions the appeal hearing, though an appeal is typically a mere procedural formality in China’s criminal justice system, especially in relation to political crimes. Following his conviction, the Xinjiang Higher People’s Court should have heard an appeal by April 19, 2016; however, the Supreme People’s Court approved a delay of three months, and approved another 3-month delay on July 18, 2016, pushing the appeal date to October. The hearing did not take place in October, however, and Zhang’s lawyers received a court notice in November 2016 stating the appeal would only be conducted in writing. The court eventually heard the appeal on November 28, 2016, in proceedings that lasted 30 minutes, after which the court issued a decision upholding the original decision.

The appellate court stated in its ruling that “Zhang Haitao, through Twitter, weibo, and WeChat released a large amount of content with three types of expression: (1) expression that attacked, insulted, and vilified the Chinese Communist Party and the country’s political system; (2) expression that slandered and distorted the Chinese Communist Party and state policy; (3) expression that incited subversion of the socialist system” and thus “the grounds of appeal that do not constitute the crime of inciting subversion of state power shall not be accepted.” The appeal ruling also claimed that Zhang’s photographs of aspects of police’s stability maintenance measures, adopted “to combat violent terrorist crimes and prevent violent terrorist cases,” had harmed national security and benefit.

The above circumstances related to Zhang Haitao’s detention constitute violations of his right to free expression, 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.

There have been numerous legal irregularities in Zhang Haitao’s case, from his detention and through his sentencing and appeal, denying him the right to a fair trial. Zhang Haitao has alleged that he has been subjected to torture or other forms of mistreatment since 2015. Concerns about his treatment have grown as Zhang’s family and his lawyer have been restricted from seeing him since April 2018, a violation of his right to family visits and legal counsel.

Urumqi police took Zhang into custody on June 26, 2015 and put him under criminal detention the next day on charges of “inciting ethnic hatred.” Seven plainclothes police returned on June 26 to search the home and confiscated several items. Zhang’s wife Li Aijie (李爱杰), who was several months pregnant at the time, was home and was forced to hand over her phone, sign a copy of the criminal detention notice (but not allowed to keep it), and was then taken to Zhongyanan Street Police Station. Police took her photograph, DNA sample, and fingerprints and interrogated her about her relationship with Zhang Haitao. Urumqi national security officers later told Li she could request a copy of the criminal detention notice at Zhongyanan Street Police Station, but when she went to the station on July 14, 2015, a police officer told her that she had already seen and signed the notice and “the crime is a state secret. Letting you read the detention notice is equivalent to telling you [the state secret].” However, at that stage, Zhang Haitao was being held on the charge of “inciting ethnic hatred” which is not a “endangering state security” or “state secrets” crime. Under Chinese Criminal Procedure Law (art. 83), families should receive a written notice within 24 hours, though there are loopholes for cases involving “endangering national security” or “terrorism.”

Zhang was criminally detained on different charges than those which he was formally arrested and later convicted and sentenced of. Police criminally detained him in June 2015 on suspicion of “inciting ethnic hatred” but placed him under formal arrest for “picking quarrels and provoking trouble.” Zhang was subsequently indicted and convicted on charges of “inciting subversion of state power” and “providing intelligence overseas.” Such changes suggest that authorities lacked sufficient evidence to criminally detain Zhang and even the possibility that authorities had coerced or tortured him to extract a confession to charge him with other political crimes.

Zhang was denied access to his lawyer for several weeks following his initial detention. The first visit with his lawyer was on August 1 or 2, 2015 (exact date unclear). Zhang alleges he was tortured during this period. He told his lawyer during the pre-trial meeting, and his lawyer reported the torture allegations to the judge in the first instance trial. The judge talked with Zhang Haitao about the allegations but dismissed them during the trial. Zhang included the allegations that Urumqi national security officers tortured him to force a confession as one of the grounds for his appeal. During a meeting with his appeals lawyer in November 14, 2016, Zhang described in detail the allegations. He said Urumqi national security officers tortured him in the 20 days following his detention on June 26, 2015, including depriving him of sleep and continuously interrogating him for 20 days, and if he fell asleep, the officers would burn a lighter near his head; they deprived him of food and water; and beat him, including hanging him from the ceiling and punching and kicking him all over his body.

Zhang informed his lawyer of torture and mistreatment allegations that occurred following his conviction in January 2016 during a meeting on July 7, 2016. Zhang said that at Xinjiang Uyghur Autonomous Region Detention Center he had been forced to wear heavy leg shackles continuously for six months since being convicted in January 2016, was receiving less food and water than other inmates, had to sleep in directly next to other inmates (since the January trial), and was not allowed outside. On July 11, 2016, Zhang’s wife, Li Aijie spoke with a Xinjiang Higher People’s Court judge to complain about these reported abuses. The judge did not commit to any changes, though on July 19, 2016, Xinjiang Higher Procuratorate told Li that they had ordered “the punishment equipment” to be removed from Zhang following his wife’s complaint. However, Zhang continued to be subjected to wearing shackles. Zhang’s lawyer met him on November 14, 2016 in the detention center and confirmed with Zhang that officials never ordered the shackled to be removed.

Furthermore, Zhang told his lawyer during the November 14, 2016 meeting that he continued to be subjected to cruel and inhumane treatment. Detention center guards would force him to sit in a certain position and sound a horn if he moved. Zhang said his personal photos, letters, and defence papers were confiscated during a safety inspection and he was not allowed pen and paper for personal use. He was forced to write a report about his activities for the guards, and another inmate was still forced to sleep directly next to him at night. Zhang also told his lawyer that since September 2016 he had been suffering from severe stomach pains around every ten days that lasted for a few hours. He underwent several medical tests in late September but he was never told the test results. The detention center officials told him the pain was because “he ate too much” and that to tell him if he is in pain as they will make him do exercise. Zhang said he had been allowed outside a few times since the last lawyer’s visit but now was not allowed outside at all on the grounds it was “too cold.” Zhang also told his lawyer that he was forced to undergo a strip search before each lawyer’s visit and had to wear a black hood over his head on the way to the meeting room.

Zhang’s lawyer spoke with detention center officials and a local prosecutor on November 17, 2016 who said Zhang had to wear shackles because it was detention center rules involving cases of “endangered state security.” Zhang’s wife Li Aijie spoke with the same prosecutor the next day who claimed that Zhang had to wear shackles for violating “supervision rules” but could not say which rules he had broken. The prosecutor also refused to give Li a copy of Zhang’s medical reports following the tests related to the pain in his stomach, and again said the pain is because he is “eating too much.”

Since being moved to Shaya Prison on December 2, 2016, Zhang Haitao has continued to face torture and mistreatment. He was denied visits with his family for several months. Prison authorities told his wife it was because he was being “educated” for three months and has to pass an examination before he would be allowed to meet his family. His wife, Li Aijie, met him twice in prison on April 24 and July 27, 2017. The April 2017 visit was the first family visit since his detention began in 2015. Li reported his conditions were good after the April 24, 2017 meeting. However, following the July 2017 meeting in prison, Zhang’s wife reported that he told her had been held in solitary confinement, was not allowed outside, and can only get fresh air or sunlight from a small window in his cell. The last visit authorities approved from either family or lawyer was in April 26, 2018 with his sister. After this visit, the sister reported that Zhang was still being held in solitary confinement, not allowed outside for fresh air or to see the sunshine. Zhang has been denied all family visits since that time and his current conditions are unknown.

The above circumstances indicate that Zhang Haitao had been detained due to the peaceful exercise of his rights guaranteed under the Universal Declaration of Human Rights (UDHR), and his ongoing detention constitutes 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.

Zhang Haitao appealed his conviction and punishment. Xinjiang Uyghur Autonomous Region Higher People’s Court held appellate proceedings on November 28, 2016, and upheld the original 19-year prison sentence. The appellate ruling denied Zhang had been tortured and claimed his free expression and media interviews constituted criminal activity.

In July 2016, Zhang’s wife spoke with a Xinjiang Higher People’s Court judge over mistreatment that her husband had reportedly suffered at Xinjiang Uyghur Autonomous Region Detention Center. Zhang’s situation did not significantly improve.

Zhang’s wife gave birth to their son after Zhang was jailed. As a result of his imprisonment and the large fine handed down, she became destitute. She said her family had received threats from authorities over her continuous campaigning efforts and she reportedly suffered from domestic violence as a result of speaking out about Zhang’s condition. She fled China in December 2017 and sought asylum in the United States with their son, who has never met his father. She continues to campaign for his release from overseas.

During the period of Zhang’s ongoing incarceration, his defense lawyers, activists, and both domestic and international non-governmental organizations and stakeholders have advocated for the protection of his legal and human rights and for his release. Nevertheless, the Chinese government has refused to release him.

Date of Submission: January 13, 2020

^[1] Opinion No. 15/2019, A/HRC/WGAD/2019/15, para. 34-5