CHRD Communiqué Alleging Arbitrary Detention of Three Citizen Journalists for Documenting the COVID-19 Pandemic – November 6, 2020

November 17, 2020 Comments Off

Submission to:

Working Group on Arbitrary Detention

Working Group on Enforced and Involuntary Disappearances

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 Zhang Zhan, Chen Mei and Cai Wei,

Citizens of the People’s Republic of China, Alleging Arbitrary Detention, Deprivation of Right to Free Expression, and Torture and Reprisal against a Human Rights Defender

I. IDENTITY

A. Zhang Zhan

1. Family name: Zhang (张)

2. First name: Zhan (展)

3. Sex: Female

4. Birth date or age (at the time of detention): September 2, 1983

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 Zhan is a former lawyer whose license was suspended due to her activism. She has been active in speaking out about politics and the human rights situation in China and repeatedly harassed and threatened by the authorities as a result. In 2019, she spoke out on the Hong Kong protests by posting comments, writing articles and holding up placards to support the protesters. As a result, in September 2019, she was summoned by Shanghai police and was later criminally detained and arrested on suspicion of “picking quarrels and provoking trouble.” Police released her on November 26, 2019. During her detention, she was reportedly forced to undergo psychiatric examination twice.

8. Address of usual residence: Shanghai Municipality, People’s Republic of China

B. Chen Mei

1. Family name: Chen (陈)

2. First name: Mei (玫)

3. Sex: Male

4. Birth date or age (at the time of detention): February 15, 1993

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):

Chen Mei, a native of Shaanxi province, was a former employee of a public interest NGO in Beijing after he graduated from South China Agricultural University in Guangzhou. Before his detention, he was a volunteer with the Terminus2049 Github website that documented news and articles which included those about the COVID-19 pandemic that were censored by the Chinese government. He has been detained since April 19, 2020 due to his work with Terminus2049.

8. Address of usual residence: Guangzhou Municipality, Guangdong Province, China

C. Cai Wei

1. Family name: Cai (蔡)

2. First name: Wei (伟)

3. Sex: Male

4. Birth date or age (at the time of detention): October 15, 1993

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):

Cai Wei, a native of Hubei province, was a former employee of an internet company. He graduated with a master’s degree in sociology from Tsinghua University in Beijing in 2018 after finishing his undergraduate degree at Central University of Finance and Economics in 2015. He was active in public interest activities. He co-founded the Terminus2049 Github website that documented news and articles which included those about the COVID-19 pandemic that were censored by the Chinese government. He has been detained since April 19, 2020 due to his work with Terminus2049.

8. Address of usual residence: Huanggang City, Hubei Province, China

II. Arrest

A. Zhang Zhan

1. Date of arrest: May 15, 2020 (Zhang Zhan went missing on May 14 and was placed under criminal detention on May 15).

2. Place of arrest (as detailed as possible): Unknown location in Wuhan, Hubei Province.

3. Forces who carried out the arrest or are believed to have carried it out: Shanghai Municipal Public Security Bureau Pudong Sub-District; and unknown Wuhan public security force

4. Did they show a warrant or other decision by a public authority? Yes

5. Authority who issued the warrant or decision: Shanghai Municipal Public Security Bureau Pudong Sub-District

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.

B. Chen Mei

1. Date of arrest: April 19, 2020 (seized by police) and put under “residential surveillance in a designated location” on an unknown date

2. Place of arrest (as detailed as possible): Unknown location in Beijing

3. Forces who carried out the arrest or are believed to have carried it out: Beijing Municipal Public Security Bureau Chaoyang District Branch

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

5. Authority who issued the warrant or decision: Unknown

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):

C. Cai Wei

1. Date of arrest: April 19, 2020 (seized by police) and put under “residential surveillance in a designated location” on an unknown date

2. Place of arrest (as detailed as possible): Unknown location in Beijing

3. Forces who carried out the arrest or are believed to have carried it out: Beijing Municipal Public Security Bureau Chaoyang District Branch

4. Did they show a warrant or other decision by a public authority? Yes, Cai Wei’s family received the RSDL notification from Beijing Municipal Public Security Bureau Chaoyang District Branch on April 23, 2020.

5. Authority who issued the warrant or decision: Beijing Municipal Public Security Bureau Chaoyang District Branch

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):

III. Detention

A. Zhang Zhan

1. Date of detention: June 19, 2020 (formal arrest); September 18, 2020 (indictment)

2. Duration of detention (if not known, probable duration): Zhang Zhan has been continuously detained since May 14, 2020.

3. Forces holding the detainee under custody: Shanghai Municipal Public Security Bureau Pudong Sub-District

4. Places of detention (indicate any transfer and present place of detention): Pudong New District Detention Center, Shanghai Municipality

5. Authorities that ordered the detention: Unknown. No arrest notification was ever given to the family.

6. Reasons for the detention imputed by the authorities: “Picking quarrels and provoking trouble”

7. 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.

B. Chen Mei

1. Date of detention: June 12, 2020 (formal arrest); September 21, 2020 (indicted)

2. Duration of detention (if not known, probable duration): Chen Mei has been detained since April 19, 2020. He was formally arrested on June 12, 2020.

3. Forces holding the detainee under custody: Beijing Municipal Public Security Bureau Chaoyang District Branch

4. Places of detention (indicate any transfer and present place of detention): Beijing Municipal Chaoyang District Detention Center

5. Authorities that ordered the detention: Beijing Municipal Public Security Bureau Chaoyang District Branch

6. Reasons for the detention imputed by the authorities: “Picking quarrels and provoking trouble”

7. 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.

C. Cai Wei

1. Date of detention: June 12, 2020 (formal arrest)

2. Duration of detention (if not known, probable duration): Cai Wei has been detained since April 19, 2020. He was formally arrested on June 12, 2020.

3. Forces holding the detainee under custody: Beijing Municipal Public Security Bureau Chaoyang District Branch

4. Places of detention (indicate any transfer and present place of detention): Beijing Municipal Chaoyang District Detention Center

5. Authorities that ordered the detention: Beijing Municipal Public Security Bureau Chaoyang District Branch

6. Reasons for the detention imputed by the authorities: “Picking quarrels and provoking trouble”

7. Relevant legislation applied (if known):

IV. Describe the circumstances of the arrest

A. Zhang Zhang

Shanghai PSB Pudong Sub-district officers and unknown local Wuhan police detained Zhang Zhan on May 14, 2020 from an unknown location in Wuhan. Zhang had travelled from her home in Shanghai to report on the COVID-19 pandemic in Wuhan in early February. Shanghai PSB brought Zhang back to Shanghai and placed her under criminal detention on May 15 on suspicion of “picking quarrels and provoking trouble.” She is being held at Pudong New District Detention Center in Shanghai. Shanghai PSB Pudong Sub-District officers gave the criminal detention notice and her luggage to Zhang’s family on May 15.

B & C. Chen Mei and Cai Wei

Chen Mei, Cai Wei and a third individual disappeared on April 19, 2020 in Beijing. All three worked as volunteers at the Terminus2049 Github website which documented news and articles about COVID-19 that were censored by the Chinese government. On April 23 and 24, the families of Cai Wei and the third individual received written “residential surveillance in a designated location” notices from Chaoyang District PSB that cited the criminal charge as “picking quarrels and provoking trouble.” The third individual was also criminally held on suspicion of “harbouring a criminal”. Chen Mei’s family did not receive any RSDL notice. The third individual was released on “bail pending further investigation” on May 13, 2020 and returned home. Chaoyang District PSB formally arrested Chen Mei and Cai Wei on charges of “picking quarrels and provoking trouble” on June 12, 2020. Chen Mei was indicted on September 21, 2020 and his case sent to Chaoyang District Court in Beijing.

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

The detentions of Zhang Zhan, Chen Mei, and Cai Wei constitute state retaliation against their peaceful exercise of the right to free expression and freedom of the press in connection with their reporting and documenting the COVID-19 pandemic in China. The Chinese government’s response to the pandemic has included arbitrary detention and enforced disappearance of citizen journalists and human rights defenders like Zhang Zhan, Chen Mei, and Cai Wei. Chinee authorities have intimidated and harassed civil society, engaged in widescale punishment of nearly 900 netizens for sharing information about the pandemic, censored information about the pandemic, and placed restrictions on media reporting, including by expelling foreign reporters.

In a May 7, 2020 Allegation Letter (AL CHN 8/2020) to the Chinese government,[1] 7 Special Procedures raised alarm about restrictions on free expression tied to the COVID-19 pandemic. The Special Procedures stated to the Chinese government, “We raise our serious concerns that some steps taken by China to tackle the pandemic may be regarded as a clampdown on freedom of expression inconsistent with international human rights law, including with regard to the right of access to information.”

Despite this intervention from Special Procedures, Beijing authorities did not release Chen Mei and Cai Wei, who had already been detained in retaliation for their documenting news about the pandemic, and days later Shanghai police detained Zhang Zhan for reporting on the pandemic. In the Chinese government’s response dated July 6, 2020,[2] the government claimed, “There has been no such thing as “restrictions…retaliation, threats or intimidation” for the expression of views related to the pandemic.’ This response is false. In fact, restrictions, retaliation, threats and intimidation for pandemic expression continued, as demonstrated in the ongoing detentions of Zhang Zhan, Chen Mei, and Cai Wei.

Zhang Zhan travelled to Wuhan from her home in Shanghai in early February 2020 to report from the epicenter of the COVID-19 pandemic. She reported numerous stories including the detentions of other independent reporters and harassment of families of victims seeking accountability via her WeChat, Twitter and YouTube accounts. Police detained her on May 14, 2020 and forcibly brought her back to Shanghai where she was placed under criminal detention on May 15 on suspicion of “picking quarrels and provoking trouble.” On June 19 she was formally arrested and in September 18, 2020 criminally indicted and the case transferred to Pudong New District Court for prosecution. The grounds for detaining her on charges of “picking quarrels and provoking trouble” was her Internet speech, mainly on WeChat, Twitter, and YouTube, which closely followed the Wuhan pandemic situation as well as other online speech made before the pandemic.

Chen Mei and Cai Wei are recent university graduates and volunteers of Github website Terminus2049. The website documented censored news and articles from mainstream media, websites, social media Weibo and WeChat. When the COVID-19 pandemic broke in Wuhan City, Hubei Province in January 2020, the website archived the censored news reports and articles about the pandemic. Beijing police disappeared Chen Mei and Cai Wei into RSDL and then formally arrested them on charges of “picking quarrels and provoking trouble” over their volunteer efforts to document the COVID-19 pandemic.

The above circumstances related to the detentions of Zhang Zhan, Chen Mei and Cai Wei constitute a violation of their right to free expression 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.

Zhang Zhan, Chen Mei and Cai Wei’s legal rights have not been protected and they have been denied the right to a fair trial. All three have been denied access to their lawyers. In the case of Zhang Zhan, she has been denied access to her lawyer for periods of time and has been subjected to torture through forced feeding after she went on a hunger strike to protest her detention. In the case of Chen Mei and Cai Wei, they have been denied all access to the lawyers hired by the families. They are represented by government-appointed lawyers.

Shanghai authorities did not grant Zhang Zhan a meeting with her lawyer until June 25, 2020, over a month after she had been detained. The delayed access to her lawyer violated Article 39 of the Criminal Procedure Law, which stipulates that defense counsel can visit and communicate with detained criminal suspects. During a meeting on September 9, her lawyer learnt that Zhang Zhan had begun a hunger strike and Pudong District Detention Center officials were forcibly feeding her. Her health was very poor. Zhang Zhan received another visit from one of her lawyers on September 28, after she had been indicted on September 15. The lawyer reported afterwards that Zhang seemed very thin and weak. She has not been allowed to communicate with her family.

Shanghai Pudong District Procuratorate had refused to recognize one of Zhang’s lawyers’ credentials on August 31, illegally claiming that Zhang herself needed to sign the entrustment papers, even though her family had signed the papers, with the official citing that this was a “Shanghai Procuratorate regulation.” As a result, the lawyer was not allowed to examine any of the case documents. As the time of submission, none of Zhang’s lawyers have been given the criminal indictment.

Chen Mei and Cai Wei have been denied access to their lawyers and no contact with their families. On April 26, 2020, Chen Mei’s family hired a lawyer for him. On May 8, when the lawyer went to seek Chen Mei’s whereabouts, he was blocked at the entrance of Chaoyang District Branch of Beijing Public Security Bureau (PSB). When the lawyer called the various departments of the Chaoyang District Branch, no official would provide information on the case. The lawyer was repeatedly denied access to Chen Mei. Eventually two government-appointed lawyers called Chen Mei’s mother on June 28 and claimed to legally represent Chen Mei.

Cai Wei’s father hired a lawyer for Cai Wei on April 27, 2020. On April 29, the lawyer went to Chaoyang District Branch of Beijing PSB to seek information about Cai Wei’s whereabouts and details about his detention but officials refused to provide any information. The lawyer filed a complaint to the Chaoyang District Procuratorate but still was not granted access to his client. After May 1, the procuratorate contacted the lawyer and said that they accepted the lawyer’s application and the matters would be handled within three months. On June 12, the procuratorate called the lawyer and said they confirmed the information about the investigation unit and the officers in charge of investigating Cai Wei’s case. Yet, on the same day, the police officer in charge of Cai Wei’s case informed Cai Wei’s father that Cai Wei had been formally arrested and detained at Beijing Chaoyang District Detention Center. The officer also claimed that Cai Wei applied for legal aid and hired two government-appointed lawyers to represent him. Cai Wei’s father called the two lawyers who claimed that they had obtained the legal representation agreement at the detention center. The lawyer hired by Cai Wei’s father has not been able to visit or communicate with Cai Wei.

According to article 34 of China’s Criminal Procedure law, criminal suspects have the right to hire their legal representatives during the investigation stage and the investigation unit should inform the criminal suspects about their right to legal representation. Article 39 of the Criminal Procedure Law also stipulates that defense counsel can visit and communicate with detained criminal suspects. Chen Mei and Cai Wei’s right to a fair trial has been violated and they are at risk of torture and ill-treatment. Denial of access to a lawyer places the detainee at high risk of torture or other ill-treatment.

Both Chen Mei and Cai Wei were placed under “residential surveillance in a designated location” for approximately 54 days. The written notice given to Cai Wei’s family listed a criminal charge of “picking quarrels and provoking trouble.” China’s Criminal Procedure Law (article 75) stipulates that RSDL applies to crimes involving “endangering national security,” “terrorist activities,” and “serious bribery”; “picking quarrels and provoking trouble” is a public security crime and does not belong to any of these categories of crimes. The use of RSDL, a de facto form of enforced disappearance, was not legal even under Chinese law in this case.

The above circumstances indicate that the ongoing detention Zhang Zhan, Chen Mei, and Cai Wei constitutes violations of her right to a fair trial, 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.

After Chen Mei was formally arrested on June 12, he was transferred to Beijing Chaoyang Detention Center. On June 28, two government-appointed lawyers called Chen Mei’s mother and claimed that Chen Mei applied for legal aid and they accepted to represent Chen Mei. Chen Mei’s mother told the two lawyers that Chen Mei’s family hired a lawyer for Chen Mei in April and asked the two lawyers to withdraw their legal representation. But the two lawyers refused. Chen Mei’s mother and Chen Mei’s older brother repeatedly called the two lawyers’ office dozens of times for more than one month, but they were not able to reach them. On August 6, one of the two lawyers called Chen Mei’s mother informing her that Chen Mei’s case had been transferred to the procuratorate for review. Chen Mei’s mother asked the lawyer if he had visited Chen Mei and if he knew about Chen Mei’s situation in the detention center. The lawyer only said that he could not visit Chen Mei due to the pandemic. The detention center repeatedly denied the requests from the lawyer hired by Chen Mei’s family to visit Chen Mei because the two government-appointed lawyers claimed to legally represent him.

On August 12, Cai Wei’s father filed a complaint to Beijing Chaoyang Supervisory Commission asking the commission to investigate the Chaoyang District Branch of Beijing Municipal Public Security Bureau and Beijing Chaoyang District Procuratorate for abuse of power in handling Cai Wei’s case in blocking Cai Wei’s family to hire a lawyer for Cai Wei and manipulating the legal aid system to appoint government lawyers.

Date of Submission: November 6, 2020

[1] https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25211

[2] https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=35423