October 19, 2020 – Communiqué on Qin YongpeiComments Off on October 19, 2020 – Communiqué on Qin Yongpei
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 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 independence of judges and lawyers
Communiqué on Behalf of Qin Yongpei, Citizen of the People’s Republic of China, Alleging Arbitrary Detention, Deprivation of Rights to Expression and Association, and Torture and Reprisal against a Human Rights Defender
1. Family name: Qin (覃)
2. First name: Yongpei (永沛)
3. Sex: Male
4. Birth date or age (at the time of detention): September 12, 1969
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):
Qin Yongpei is a rights defense lawyer from Guangxi Zhuang Autonomous Region. Judicial authorities disbarred him in May 2018 because of his criticism of officials and state leaders. Qin served as the director of Baiyongming Legal Consulting Services Co., Ltd which had formerly been a law firm until it was forced to dissolve and turned into a consultancy. After being disbarred, Qin and several other disbarred lawyers set up in September 2018 what they satirically named the “Disbarred China Lawyers Club” and he posted online comments criticizing government officials for corruption and abuse of power. Qin is among at least a dozen defense lawyers in China who judicial authorities have stripped of their law licenses in recent years. Before being detained, Qin had openly urged citizens in Guangxi to seek out and share evidence of corrupt practices by judicial and public security officials. He was briefly taken into custody and interrogated by police as part of the widespread crackdown on human rights lawyers launched in July 2015. Qin had also drawn the attention of Nanning authorities for his work advocating for local villagers who had sought rights protection, including residents detained for protesting pollution from state-owned mining companies.
8. Address of usual residence: Nanning City, Guangxi Zhuang Autonomous Region
1. Date of arrest: November 1, 2019 (seized by police on October 31, 2019 and put under criminal detention on November 1, 2019)
2. Place of arrest (as detailed as possible): The office of Baiyongming Legal Consulting Services Co., Ltd in Nanning City, Guangxi
3. Forces who carried out the arrest or are believed to have carried it out: Nanning City Public Security Bureau
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: Nanning City Public Security Bureau
6. Reasons for the arrest imputed by the authorities: “Inciting subversion of state power”
7. Legal basis for the arrest including 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.
1. Date of detention: December 3, 2019 (formal arrest); April 30, 2020 (indicted)
2. Duration of detention (if not known, probable duration): Qin Yongpei has been detained since October 31, 2019. He was formally arrested on December 3, 2019 and indicted on April 30, 2020.
3. Forces holding the detainee under custody: Nanning City Public Security Bureau
4. Places of detention (indicate any transfer and present place of detention): Nanning City No. 1 Detention Center, Guangxi Zhuang Autonomous Region
5. Authorities that ordered the detention: Nanning City Public Security Bureau
6. Reasons for the detention imputed by the authorities: “Inciting subversion of state power”
7. Relevant legislation applied (if known):
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.”
IV. Describe the circumstances of the arrest
More than 10 Nanning City police officers seized Qin Yongpei from the office of Baiyongming Legal Consulting Services Co., Ltd, where he served as director, on October 31, 2019. The police officers searched both the company’s premises and his home, seizing several of his personal possessions. They put him under criminal detention the next day. On December 3, 2019, Nanning City PSB formally arrested him. Nanning City Procuratorate indicted him on April 30, 2020.
V. Indicate reasons why you consider the arrest and/or detention to be arbitrary
Chinese disbarred human rights lawyer Qin Yongpei has been arbitrarily detained in violation of his rights to freedom of expression and freedom of association under international human rights law and Chinese domestic law.
Qin Yongpei has been detained and charged with the politically-motivated criminal offense of “inciting subversion of state power” (105(2) of the Criminal Law)—a crime in the category of “endangering national security.” The Working Group on Arbitrary Detention 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. (Opinion No. 15/2019, para. 33-4) The Working Group described the provisions of the crime as “neither necessary to protect public or private interests against injury nor proportionate to guilt” (Opinion No. 36/2019, para. 45). In Opinion No. 11/2020, the Working Group described the provisions as “vaguely and broadly worded” that “could be used to deprive individuals of their liberty without a specific legal basis and violate the due process of law upheld by the principle of legality in article 11(2) of the Universal Declaration of Human Rights (para. 43-4). The above circumstances related to Qin Yongpei’s detention constitute the deprivation of Mr. Qin’s liberty that lacks legal basis and thus is arbitrary, falling under Category I.
The charge of “inciting subversion of state power” laid against Qin is solely based on his online comments that criticize government officials, as well as his involvement in jointly establishing a group for fellow disbarred human rights lawyers, in violation of Qin’s right to freedom of expression and association, enshrined under Article 35 of China’s Constitution. The prosecutor’s indictment clearly states he is being prosecuted for his online speech and his activities with the group “Disbarred China Lawyers Club”. The detention of Qin Yongpei constitutes state retaliation against his peaceful exercise of his right to free expression and association.
According to the indictment, the authorities accused Qin of “using Weibo and Twitter to degrade and spread rumours about state leaders with malicious intent, attack the regime and socialist system, and incite the mass who are not familiar with the real situation to initiate doubts about the regime and socialist system since 2014”. The prosecution also accused him of “stirring up with malicious intent, distorting the facts and defaming the judicial authorities for corruption, accusing the law enforcement officers of wrongdoings and discrediting the judicial system”.
In addition, the procuratorate accused him in the indictment that after Qin was disbarred in May 2018, he established the “illegal organization” of “Disbarred China Lawyers Club” and planned to organize “moot court”, which the indictment said “openly challenged the public authority of the state judicial authorities”.
Qin, who was disbarred in May 2018, was among several state-persecuted lawyers who set up in September 2018 what they satirically named the “Disbarred China Lawyers Club”. The lawyers, though prohibited from representing clients at trial or visiting them in detention, vowed to keep providing legal consultation to victims of rights abuses and to push for rule-of-law reforms. By November 2018, Chinese authorities had targeted the group and declared it an “illegal organization,” and officers raided one location of the club in January 2019.
In the months prior to his detention, Qin had commented online about “politically sensitive” topics, including the pro-democracy protests in Hong Kong. He also had actively called for the release of several detained lawyers, including a former colleague, Chen Jiahong, who was taken into custody in April 2019 and, like Qin, was accused of “inciting subversion of state power.” Resorting to a high level of harassment with his case, police in February 2020 interrogated Qin’s two daughters about his online activities and any “sensitive” comments that he may have made at home.
The above circumstances related to Qin Yongpei’s detention constitute violations of his 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.
There have been numerous legal irregularities in Qin Yongpei’s case, including a lack of consistent access to his lawyers and no contact with his family. Qin’s right to a fair trial has been violated and he is also at risk of torture and ill-treatment. Nanning officials on multiple occasions have blocked Qin’s lawyers from meeting with him, claiming that his case “might involve state secrets.” Article 37 of China’s Criminal Procedure Law allows police to deprive the detainee’s right to access to a lawyer beyond 48 hours if the detainee is accused of an “endangering national security” crime, in violation of international human rights law on access to a lawyer. Denial of access to a lawyer places the detainee at high risk of torture or other ill-treatment.
Authorities granted Qin his first meeting with his lawyer on May 25, 2020, approximately six months after he was detained. Qin’s lawyer said Qin’s condition was fine. The lawyer said he had applied to visit Qin several times but the authorities cited the COVID-19 pandemic as the reason for halting all lawyers’ visits at the detention center, despite Qin being detained before the coronavirus outbreak and the lawyer applying before the outbreak. Qin was granted a second meeting with his lawyers on August 31, 2020, with authorities citing because the case had entered the “trial” phase he could meet his lawyers. There are no laws in China which allow lawyers visits to be restricted based on the investigation phase. His lawyers reported that Qin’s mental state appeared to be good though he was being held in overcrowded conditions, with over 30 inmates in the same cell, making the heat unbearable during summer. The detention center in Nanning has also reportedly refused to give Qin clothes for cold weather, which were provided by his family. Qin maintained his innocence on all charges.
The above circumstances indicate that the ongoing detention of Qin Yongpei constitutes violations of Mr. Qin’s 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.
Qin Yongpei’s wife filed an open government information complaint on June 15, 2020 as her husband had been repeatedly denied access to his lawyers after being detained on October 31, 2019. During the period when authorities denied Qin visitation rights with his lawyers, one of Qin’s lawyers wrote a letter to Qin, in the hope of asking more information about his situation in detention. The lawyer asked the detention center to pass it to Qin. The detention center did not pass it to Qin and instead sent it to national security team of Nanning City Public Security Bureau. At that time, the lawyer also filed a complaint about this to the local authorities demanding an investigation of the incident and rectification of the practice.
Qin’s wife sent the application to Nanning City Government and requested the Nanning City No. 1 Detention Center disclose why the letter from Qin’s lawyer written to Qin was passed on public security bureau but not given to Qin himself, depriving Qin of his right to communicate with his lawyers. The city government ruled that the public security bureau exercised its action within its responsibilities and claimed that it did not fit in the requirements of the Regulations on Open Government Information. Qin’s wife filed an administrative appeal against the government’s decision, but the Nanning City Government upheld its decision on September 17, 2020.
Date of Submission: October 19, 2020