CHRD Communiqué Alleging Arbitrary Detention of 2 HRDs from PRC for Online Expression – 27 July 2020
Comments Off on CHRD Communiqué Alleging Arbitrary Detention of 2 HRDs from PRC for Online Expression – 27 July 2020Submission to:
Working Group on Arbitrary Detention
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 torture and other cruel, inhuman or degrading treatment or punishment
Communiqué on Behalf of Liu Yanli and Zhang Jialong,
Citizens of the People’s Republic of China,
Alleging Arbitrary Detention, Deprivation of Rights to Expression,
and Reprisals against a Human Rights Defender
I. IDENTITIES
A. Liu Yanli
1. Family name: Liu (刘)
2. First name: Yanli (艳丽)
3. Sex: Female
4. Birth date or age (at the time of detention): June 1, 1975
5. Nationality/Nationalities: People’s Republic of China
6. Identity document (if any): ID Card：
7. Profession and/or activity (if believed to be relevant to the arrest/detention):
Liu Yanli, 45, was formerly a staff member of a bank in Jingmen City, Hubei province and a blogger. In recent years, she has repeatedly called for support for the retired soldiers who fought during the Second World War. She also called for disclosure of officials’ assets. She established over 160 WeChat groups to raise awareness about social issues. The messages she sent and forwarded included comments on late and current state leaders, Mao Zedong, Zhou Enlai and Xi Jinping, and thus she became a target of the authorities. She had been detained or placed under “residential surveillance” since September 2016.
8. Address of usual residence: Jingmen City, Hubei Province
B. Zhang Jialong
1. Family name: Zhang (张)
2. First name: Jialong (贾龙)
3. Sex: Male
4. Birth date or age (at the time of detention): May 22, 1988
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 Jialong is a former journalist with Tencent, prominent blogger, and democracy dissident. He reported on issues like the 2008 toxic baby milk powder scandal and the government persecution of artist Ai Weiwei. In 2010, Zhang posted a message on Twitter that a Beijing taxi driver said drivers would go on strike. Afterwards, Beijing police criminally summoned Zhang and then gave him a 10-day administrative detention for “disrupting social order” by sending “false information” on an overseas website. In 2014, he met with then-US Secretary John Kerry and asked Kerry to help “tear down this great firewall that blocks the Internet?” As a result, he was fired from Tencent and returned to his hometown. He continued to make occasional comments on social media but no longer worked as a journalist.
8. Address of usual residence: Guiyang City, Guizhou Province
II. ARREST
A. Liu Yanli
1. Date of arrest: September 27, 2016 (criminal detention)
2. Place of arrest (as detailed as possible): from her home in Jingmen City, Hubei Province
3. Forces who carried out the arrest or are believed to have carried it out:
Dongbao Branch of Jingmen City Public Security Bureau, Hubei province
4. Did they show a warrant or other decision by a public authority? Yes
5. Authority who issued the warrant or decision: Dongbao Branch of Jingmen City Public Security Bureau, Hubei province
6. Reasons for the arrest imputed by the authorities: “Libel”
7. Legal basis for the arrest including relevant legislation applied (if known): Article 246 of China’s Criminal Law (“libel”) stipulates a fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights to whoever, by violence or other methods, publicly humiliates another person or invent stories to defame him, if the circumstances are serious.
B. Zhang Jialong
1. Date of arrest: August 13, 2019 (seized by police in August 12, 2019 and criminally detained on August 13)
2. Place of arrest (as detailed as possible): Zhang’s home in Guiyang City, Guizhou Province
3. Forces who carried out the arrest or are believed to have carried it out: Nanming District Sub-Bureau, Guiyang City Public Security Bureau, Guizhou Province
4. Did they show a warrant or other decision by a public authority? Yes
5. Authority who issued the warrant or decision: Nanming District Sub-Bureau, Guiyang City Public Security Bureau, Guizhou Province
6. Reasons for the arrest imputed by the authorities: “Picking quarrels and provoking trouble”
7. Legal basis for the arrest including relevant legislation applied (if known): Article 293 of China’s Criminal Law (“picking quarrels and provoking trouble”) stipulates a fixed-term imprisonment of up to five years to those who (1) wilfully 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 wilfully damaging or seizing public or private property; and the circumstances are serious; or (4) creating a disturbance in a public place, causing serious disorder.
III. Detention
A. Liu Yanli
1. Date of detention: November 22, 2018.
2. Duration of detention (if not known, probable duration): Liu Yanli was formally arrested on November 22, 2018. On April 24, 2020, she was sentenced to 4 years’ imprisonment. Her prison sentence runs until March 23, 2022.
3. Forces holding the detainee under custody: Dongbao Branch of Jingmen City Public Security Bureau, Hubei Province
4. Places of detention (indicate any transfer and present place of detention): Jingmen City Detention Center, Hubei Province
5. Authorities that ordered the detention: Dongbao Branch of Jingmen City Public Security Bureau, Hubei Province
6. Reasons for the detention imputed by the authorities: “Picking quarrels and provoking trouble”
7. Legal basis for the detention including relevant legislation applied (if known):
Article 293 of China’s Criminal Law (“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.
B. Zhang Jialong
1. Date of detention: September 13, 2019
2. Duration of detention (if not known, probable duration): Zhang Jialong has been detained since August 12, 2019
3. Forces holding the detainee under custody: Nanming District Sub-Bureau, Guiyang City Public Security Bureau
4. Places of detention (indicate any transfer and present place of detention): Nanming District Detention Center, Guiyang City
5. Authorities that ordered the detention: Nanming District Sub-Bureau, Guiyang City Public Security Bureau
6. Reasons for the detention imputed by the authorities: “Picking quarrels and provoking trouble”
7. Legal basis for the detention including relevant legislation applied (if known):
Article 293 of China’s Criminal Law (“picking quarrels and provoking trouble”) stipulates a fixed-term imprisonment of up to five years to those who (1) wilfully 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 wilfully damaging or seizing public or private property; and the circumstances are serious; or (4) creating a disturbance in a public place, causing serious disorder.
IV. Describe the circumstances of the arrest
A. Liu Yanli
Liu Yanli had been detained for many times in regards to this case. On May 30, 2016, Liu was detained for 24 hours for questioning then released. Officers from the Dongbao Branch of Jingmen City Public Security Bureau then criminally detained Liu on suspicion of “libel” on September 27, 2016 and subsequently formally arrested her on this charge on November 3, 2016. She was held in Jingmen City Detention Center. On March 6 and April 27, 2017, the procuratorate returned the case to the police for further investigation due to insufficient evidence. On May 27, 2017, Liu was released on “bail pending further investigation.” Liu had been criminally detained and arrested on charges of “libel” but when Liu was released on bail, the charge of “picking quarrels and provoking trouble” was added to the written notice of release on bail.
On May 25, 2018, when the one-year period of release on bail was about to end, Liu was placed under “residential surveillance” at home, on suspicion of “libel”. On November 22, 2018, when the six-month period of “residential surveillance” ended, Dongbao Branch of Jingmen City Public Security Bureau formally arrested Liu on charges of “picking quarrels and provoking trouble.” She has been held at Jingmen City Detention Center since then.
B) Zhang Jialong
Nanming District Guiyang City Public Security Bureau officers seized Zhang Jialong on August 12, 2019 from his home. The next day he was put under criminal detention on suspicion of “picking quarrels and provoking trouble.”
V. Indicate reasons why you consider the arrest and/or detention to be arbitrary
The detention of Liu Yanli is arbitrary because she has been criminally prosecuted for exercising her right to free expression and has been denied the right to a fair trial. Authorities have discriminated against her for her political views and opinions.
Liu Yanli was criminally detained on suspicion of “libel” by the Dongbao Branch of the Jingmen City Public Security Bureau on September 27, 2016. She was formally arrested on November 3, 2016 but then released on bail pending trial on May 27, 2017. On May 28, 2018, Liu Yanli was placed under “residential surveillance” by the Dongbao Branch of the Jingmen City Public Security Bureau and was formally arrested on November 22, 2018. On December 24, 2018, the Dongbao District Procuratorate in Jingmen City indicted her.
Dongbao District Court in Jingmen city put Liu Yanli on trial on January 31, 2019. The court said in the verdict that since September 2010 Liu Yanli posted messages attacking the Chinese Communist Party and state leaders on Qzone (a popular blog-like online platform by Tencent), WeChat Moments and Weibo, which maliciously stirred up attention on social incidents. The court relied on the online posts she posted four years ago as evidence, claiming that she stirred up trouble leading to serious public disorder and thus caused picking quarrels and provoking trouble. On April 24, 2020, Dongbao District Court in Jingmen city convicted Liu Yanli of “picking quarrels and provoking trouble” and sentenced her to four-years imprisonment. The so-called “evidence” used to convict her is within the scope of Liu’s freedom of speech. Liu Yanli’s arrest and sentencing are punishment for Liu expressing her views. Liu Yanli filed an appeal against her conviction on May 4, 2020.
Thus, Liu Yanli had been detained solely due to peaceful exercise of her rights guaranteed under the Universal Declaration of Human Rights (UDHR). The circumstances of her detention satisfy Category II (i.e., when the deprivation of liberty results from the exercise of the rights) and freedoms guaranteed by articles 9,10 and 19 of the UDHR.
Liu Yanli has been denied the right to a fair trial. Since 2016, the police officers from Jingmen city, Hubei province, have arrested Liu Yanli several times and they changed her offences a few times for the same incident. This indicates that police did not have a solid case against Liu. On May 30, 2016, when Liu Yanli was criminally summoned for interrogation, she was released within 24 hours. On September 27, the police criminally detained her on suspicion of “libel” and formally arrested her on November 3. On March 6 and April 27, 2017, the procuratorate twice transferred the case back for further investigation due to insufficient evidence.
On May 27, 2017, Liu Yanli was released on bail. On the decision of release on bail, there was suddenly an additional charge of “picking quarrels and provoking trouble”. Meanwhile, on the notice of release on that day, it only listed “libel” as the offence.
On May 25, 2017, approaching the end of the period of release on bail, Liu Yanli was placed under “residential surveillance” while “libel” was again listed as the only offence.
When the “residential surveillance” was about to end on November 22, 2018, the police applied to formally arrest Liu Yanli, accusing her of violating the requirements of “residential surveillance”. The alleged offence was again “libel”. On the same day, the procuratorate approved the police’s application of formal arrest but no offence was shown on the document. Again, on the same day, Liu Yanli was formally arrested but the offence listed on the arrest warrant was changed to “picking quarrels and provoking trouble”.
On April 24, 2020, Dongbao District Court in Jingmen city sentenced Liu Yanli to four years imprisonment on the sole charge of “picking quarrels and provoking trouble”.
The procedural injustice in her case, including arbitrary criminal compulsory measures of criminal summons and “residential surveillance” and changes of criminal charges without a reason, led to prolonged pre-trial detention and thus deprived her of a fair trial.
Thus, the circumstances of her detention satisfy Category III (i.e., when the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character)
Liu’s political views and convictions are clearly at the center of the criminal case against her. The prosecutor’s indictment states openly that her political comments form the basis of the “evidence” against her, including her criticism of former and current state leaders. Authorities are discriminating against Liu for her political beliefs and convictions. As such, her detention is arbitrary under Category V, when the deprivation of liberty is on the grounds of discrimination based on political or other opinion, and in violation of articles 2 and 7 of the Universal Declaration of Human Rights.
The detention of Zhang Jialong is arbitrary because he is being prosecuted for exercising his right to free expression, and he has been denied the right to a fair trial. Authorities have discriminated against Zhang for his political views and opinions.
Nanming District Sub-Bureau officers from Guiyang City Public Security Bureau seized Zhang from his home on August 12, 2019 and the next day put him under criminal detention on suspicion of “picking quarrels and provoking trouble.” He was formally arrested on September 13, 2019 and indicted by Nanming District Guiyang City Procuratorate on November 27, 2019. On May 13, 2020, Nanming District Court put Zhang on trial. The hearing ended without a verdict being pronounced. Zhang has been held at Nanming District Detention Center since being taken away on August 12.
The indictment sheet from Nanming District Procuratorate states as evidence of the crime of “picking quarrels and provoking trouble (Article 293, Criminal Law): “from 2016 onwards, the defendant Zhang Jialong used his phone and computer etc. with a ‘scale the Firewall’ tool [e.g Virtual Private Network] many times to log onto the overseas platform Twitter, and through the account ‘张贾龙@zhangjialong’ repeatedly used the platform to post and retweet a great amount of false information that defamed the image of the [Chinese Communist] Party, the state, and the government.”
“This procuratorate believes, the defendant Zhang Jialong fabricated false information which defamed the image of the [Chinese Communist] Party, the state, and the government, frequently sending out, disseminating, and creating a disturbance on the Internet, which brought about serious disorder to public order, and this behaviour violates “People’s Republic of China Criminal Law” Article 293, under suspicion of ‘picking quarrels and provoking trouble,’ the criminal facts are clear, the evidence is reliable, ample, and should find out if there is criminal responsibility for picking quarrels and provoking trouble.”
The Nanming Procuratorate have admitted in the indictment that Zhang is being criminally prosecuted for his online speech. During the period in question (2016-2019), Zhang Jialong posted approximately 200 of his own Tweets and he also retweeted many other accounts. The content consisted of discussion on politics, history, and human rights, including calls for the release of prisoners of conscience. He also posted personal updates, such as when he got married or the announcement of the birth of his daughter.
Zhang has the right to freedom of expression and opinion guaranteed under Article 35 of the Chinese Constitution and Article 19 of the Universal Declaration of Human Rights. His posts about politics and human rights did not constitute “false information” and does not defame the Chinese Communist Party or Government of China.
The above circumstances related to Zhang Jialong’s detention constitute a violation of his right to freedom of expression and falls under Category II, when the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13-14 and 18-21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18-19, 21-22 and 25-27 of the International Covenant on Civil and Political Rights.
Zhang Jialong has been unnecessarily held in detention during the judicial process, violating his right to a fair trial. Zhang’s lawyer applied for bail on the grounds that Zhang’s conduct didn’t constitute a crime during the period after police had completed their investigation and had recommend indictment, and while the procuratorate were reviewing the case. The procuratate replied to reject the bail application. Under international human rights standards, as a general rule, a person awaiting trial should not be held in custody. Zhang Jialong has been kept in detention throughout the entirety of pre-trial detention. Furthermore, Zhang had been accused of a speech crime and there has been not threat to public order reason that justified holding him in detention awaiting trial. He was held for 246 days before being brought before a judge for the first time. On the day of his trial, May 13, supporters outside the courthouse were briefly detained by police and the courthouse was surrounded by plainclothes police.
The above circumstances related to Zhang Jialong’s detention constitute a violation of his right to a fair trial and fall under Category III, when the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character.
Zhang Jialong’s political views and convictions are clearly at the center of the criminal case against him. He had previously received retaliation for meeting with the then-US Secretary of State John Kerry. The prosecutor’s indictment states openly that his political comments form the basis of the “evidence” against. Authorities are discriminating against Zhang for his political beliefs and convictions. As such, his detention is arbitrary under Category V, when the deprivation of liberty is on the grounds of discrimination based on political or other opinion, and in violation of articles 2 and 7 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.
Liu Yanli met with her lawyers for several times. On May 3, 2020, Beijing lawyer Ma Gangquan, one of Liu’s lawyers, issued a public statement denouncing the Dongbao District Court for fabricating the defense lawyer’s position by claiming that Liu “had obviously shown a confession” in the verdict. According to the lawyer, in his written defense statement for Liu, submitted to the court on May 17, 2019, after the trial on January 31, 2019, the lawyer pointed out the procedural problems of the case, the evidence presented against Liu was unclear and thus arguing that Liu’s behaviour could not constitute the offense of “picking quarrels and provoking trouble.” Liu Yanli filed an appeal against her conviction on May 4, 2020.
Zhang Jialong met with his lawyer several times. His lawyer applied for bail but that was not granted. On December 2, 2019, a prosecutor with the Guiyang City Nanming District Procuratorate met with Zhang Jialong after he had been indicted on November 27, 2019 and tried to get him to plead guilty in exchange for a lighter sentence. Zhang refused and the case eventually went to trial in May. Zhang pled not guilty at trial and his lawyer put for a not guilty defence during the trial. However, he remains in custody.
Date of Submission: 27 July 2020