Communiqué Alleging Arbitrary Detention of Xu Zhiyong – March 9, 2020
Comments Off on Communiqué Alleging Arbitrary Detention of Xu Zhiyong – March 9, 2020Submission to:
Working Group on Arbitrary Detention
Working Group on Enforced and Involuntary Disappearances
Special Rapporteur on the situation of human rights defenders
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 promotion and protection of human rights and fundamental freedoms while countering terrorism
Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
Communiqué on Behalf of Xu Zhiyong, Citizen of the People’s Republic of China, Alleging Arbitrary Detention, Enforced Disappearance, Deprivation of Rights to Expression, Assembly, and Association, and Reprisals against a Human Rights Defender
I. IDENTITIES
1. Family name: Xu (许)
2. First name: Zhiyong (志永)
3. Sex: Male
4. Birth date or age (at the time of detention): March 2, 1973
5. Nationality/Nationalities: People’s Republic of China
6. Identity document (if any): N/A
7. Profession and/or activity (if believed to be relevant to the arrest/detention): Xu Zhiyong is a prominent legal activist. Xu founded the “Open Constitution Initiative” (Gongmeng, 公盟), a pro-democracy movement which later spawned the “New Citizen’s Movement,” (新公民运动) a loose grouping of human rights defenders advocating for democratic and rule-of-law reforms, constitutionalism, human rights, and social justice. Xu Zhiyong and many members of the new Citizens Movement were detained in a crackdown on the movement that began in the spring of 2013. Xu received a four-year prison sentence in 2014 and was released from prison in July 2017. Since starting his rights activism in 2003, Xu has promoted non-violence, defended individuals unjustly sentenced to death, drafted legal reforms, and provided legal consultation and other forms of assistance to homeless petitioners. For his many efforts in rights defence, Xu has been beaten, threatened, and arbitrarily detained by authorities. Xu Zhiyong has previously been the subject of Special Procedure communications, including JUA CHN 12/2013; JUA CHN 10/2013; JUA CHN 8/2013; JUA CHN 29/2010.
8. Address of usual residence: Beijing, People’s Republic of China
II. Arrest
1. Date of arrest: February 15, 2020
2. Place of arrest (as detailed as possible): Home of activist Yang Bin in Panyu District, Guangzhou, Guangdong Province
3. Forces who carried out the arrest or are believed to have carried it out: Beijing Municipality Public Security Bureau (PSB) National Security Team, Guangzhou PSB National Security Team, Guangzhou PSB Panyu District Sub-Bureau National Security officers, and with support from Guangzhou PSB Panyu District Shilou Police Station officers are believed to have carried out the arrest.
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: Unknown
7. Legal basis for the arrest including relevant legislation applied (if known): Unknown
III. Detention
(Submitter’s note: Xu Zhiyong has not yet been formally arrested at the time of submission but put under Residential Surveillance in Designated Location (RSDL), a de facto form of enforced disappearance (OL CHN 15/2018). He may be under this status for up to six months before being formally arrested. We have included the RSDL details under “Detention”).
1. Date of detention: Unknown (residential surveillance at a designated location).
2. Duration of detention (if not known, probable duration): Xu Zhiyong has been continuously detained since February 15, 2020 and under RSDL since an unknown date.
3. Forces holding the detainee under custody: Beijing PSB National Security Team
4. Places of detention (indicate any transfer and present place of detention): Unknown (Current location unknown under Residential Surveillance in Designated Location, previous detention location also unknown; night of February 15, 2020 believed to have been held at Guangzhou No. 1 Detention Center).
5. Authorities that ordered the detention: Beijing PSB National Security Team
6. Reasons for the detention imputed by the authorities: “Inciting subversion of state power”
7. Relevant legislation applied (if known): Article 105 (2) of China’s Criminal Law (“inciting subversion of state power”) stipulates a fixed-term imprisonment of not less than five years, criminal detention, public surveillance or deprivation of political rights to those who incite others by spreading rumors or slanders or any other means to subvert the State power or overthrow the socialist system.
IV. Describe the circumstances of the arrest
Beijing-based activist Xu Zhiyong went into hiding the night of December 26, 2019 (or early morning of December 27) after several attendees of a private meeting which he also attended began to be rounded up by police across China. On February 15, 2020, Beijing and Guangzhou police detained Xu while he was staying at the home of a friend in Guangzhou. Xu, the friend and the friend’s family were taken away; the friend and her family to Shilou Police Station in Guangzhou, and they believed Xu was taken to Guangzhou No. 1 Detention Center. The friend and her family were released the next day. On February 16, Henan Province Kaifeng City national security officers orally informed Xu Zhiyong’s family, who live in Henan, that Xu had been detained in Guangzhou.
Police from Beijing Haidian District searched Xu Zhiyong’s home on December 31, according to his girlfriend Li Qiaochu (李翘楚), who was present during the raid. The officers were in plainclothes and did not show a warrant and only one officer showed her his badge but it was blank. The officers seized a safe from Xu’s home, which inside had the deed to the property, cash and other items, and also took personal letters and books. Afterwards the officers took Li to her home in Haidian District which they searched and seized her computer, phone, and USB drives but again did not provide a warrant or list of items taken. After the search, the officers took Li Qiaochu to Haidian District PSB Center on a criminal summons on suspicion of “picking quarrels and provoking trouble.” Ms. Li was handcuffed, fingerprinted, photographed, forced to take a blood and urine tests. She was questioned three times over a 24-hour period about her relationship with Xu Zhiyong and when she had last seen him, told to distance herself from him, and humiliated and degraded about past relationships, according to a summary she posted online about her experience. She was forced to sign the criminal summons notice and a transcript of the interrogation but was not allowed to keep them. After being released on January 1, national security officers monitored her daily movements for several days. On February 16, around 00:26 in the morning, Li sent out a message to friends saying police were at the door. She has not been heard from since.
V. Indicate reasons why you consider the arrest and/or detention to be arbitrary
The detention of Xu Zhiyong constitutes state retaliation for his peaceful exercise of the rights to free expression, peaceful assembly, and free association. Xu had attended a private meeting on December 7-8 in Xiamen City where the participants discussed politics and ideas for China’s future, and shared civil society experiences. Xu went into hiding after news emerged on December 26 of the rounding up of participants because of his credible fear he may face detention for his attendance at the meeting. Yantai City PSB in Shandong Province led a crackdown on participants of the meeting and Chinese police detained and summoned for questioning a dozen activists and lawyers in Fujian, Shandong, Beijing, Hebei, Sichuan, and Zhejiang around this time. Activists Ding Jiaxi, Zhang Zhongshun, and Dai Zhenya were detained in the same crackdown and placed under RSDL in Yantai, Shandong.
While Xu Zhiyong was in hiding, he penned an article which was released on February 4, 2020. The article criticized Chinese President Xi Jinping over his handling of the COVID-19 outbreak and called on Xi to resign. (English translation of the letter: https://www.chinafile.com/reporting-opinion/viewpoint/dear-chairman-xi-its-time-you-go). The letter received widespread media attention and may also be used as evidence against Xu.
The above circumstances related to Xu Zhiyong’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.
Xu Zhiyong has been deprived of his right to due process. The family have not received any written notification of his detention as required under Chinese law. After Xu went into hiding on December 26, national security officers in Kaifeng City, Henan Province put Xu’s family under surveillance. On February 16, the day after Xu had been detained in Guangzhou, a Kaifeng national security officer called the family and said they would no longer be under surveillance as Xu has been caught. The family were not informed of Xu’s criminal status, the crime Xu had been accused of committing, or where he was being held, in violation of China’s Criminal Procedure Law (CPL, Article 83), which requires families to be notified within 24 hours. While the CPL allows for loopholes in notifying families of individuals accused of “endangering state security” crimes, police did not reveal that Xu had been accused of “inciting subversion of state power”, a state security crime, until March 7—21 days after he had been detained.
On February 24, 2020, Xu’s family called the local police station closest to Xu’s residence in Beijing, the Dongxiaokou Police Station in Changping District. The officer who answered the phone would not tell the family any information about the case and said they must come in person with his ID card. The day after the call, Kaifeng national security officers arrived at the family’s home and told them Xu had been put under “residential surveillance at a designated location” and they should stop trying to look for him. The police officers would not say what crime he had been suspected of committing or where he was being held. The officers also warned the family to not hire a lawyer and said that the government would appoint a lawyer.
RSDL is a form of detention that constitutes de facto enforced disappearance according to international standards, exposing detainee to greater risk of torture. According to Chinese law, detainees can remain under RSDL, at a secret location, for as long as six months. Requests for meetings with their lawyers must be approved by police and are routinely denied in cases involving human rights defenders. Ten UN Special Procedures called on the Chinese government to repeal the provision in August 2018 (OL CHN 15/2018). The UN Working Group on Arbitrary Detention stated in Opinion No. 15/2019 (China) that placement in RSDL is a violation of articles 6, 9, 10, and 11(1) of the Universal Declaration of Human Rights.
Xu Zhiyong has been held at a secret location since his detention began and has not been granted any access to the lawyers hired by his family. Under China’s Criminal Procedure Law, police are allowed to deprive detainees access to a lawyer beyond 48 hours if they have been accused of a “endangering state security” crime (CPL, Article 37).
On March 5, Xu’s sister travelled to Beijing and went to the Dongxiaokou Police Station. An officer at the station admitted that Xu was being held by Beijing PSB and claimed that a written notice had been sent to the family; though the family has not received any notice. That afternoon, the sister and Xu Zhiyong’s lawyer went to Beijing PSB Changping District Sub-Bureau to report the case. They weren’t allowed to enter the building and when speaking to an official over the phone from the gate, the official claimed there was no Xu Zhiyong in their system.
On March 6, Xu’s sister again went to Dongxiaokou Police Station to try and get more information on where Xu was being held and information about the written notice that they had supposedly sent, but officers would not give her any information. On March 7, Xu’s sister was finally granted a meeting with the director of Dongxiaokou Police Station, who told her that Xu is suspected of “inciting subversion of state power” and under RSDL. He told her this is a “major case” handled by the municipal public security bureau and that it is unlikely Xu will be granted a meeting with his lawyer during the investigation period.
Beijing police have accused Xu with a harsh politically-motivated criminal offense of “inciting subversion of state power”—a crime in the category of “endangering state security.” The Working Group described the crime of “inciting subversion” a “vague and imprecise offence” and called “upon the [Chinese] Government to repeal article 105 (2) of the Criminal Law or bring it into line with its obligations under international human rights law” (Opinion No. 15/2019, para. 33, 25). Beijing authorities have held Xu under incommunicado detention during his entire period in custody, which has put him at significant risk of torture and cruel, inhuman, and degrading treatment.
The above circumstances indicate that Xu Zhiyong had been detained due to the peaceful exercise of rights guaranteed under the Universal Declaration of Human Rights (UDHR), and his ongoing detention constitutes violations of their 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.
Xu’s family attempted to seek out information on his case by calling Dongxiaokou Police Station in Changping District, Beijing on February 24. Xu’s sister travelled to Beijing and on March 5, 6 and 7 went to Dongxiaokou Police Station to speak to police to try and get information. She was not given any information until the third visit on March 7.
Date of Submission: March 9, 2020