CHRD Requests Urgent Action and WGAD Review for Detained Lawyer Xie Yang

November 11, 2024 Comments Off

Chinese Human Rights Defenders Communiqué

Alleging Violations of Human Rights of Xie Yang, a Citizen of

the People’s Republic of China

Requesting Urgent Action and

Review by the Working Group on Arbitrary Detention

Submission to:

Working Group on Arbitrary Detention

Working group on Enforced and Involuntary Disappearance

Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment

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 freedom of peaceful assembly and of association

Special Rapporteur on the independence of judges and lawyers

Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health

I. IDENTITY

A) Xie Yang 谢阳

1. Family name: Xie (谢)

2. First name: Yang (阳)

3. Sex: Male

4. Birth date or age (at the time of detention): 4 February 1972

5. Nationality/Nationalities: PR China

6. (a) Identity document (if any): Chinese NationalID Card

(b) Issued by: Hunan Province

(d) No.:

7. Profession and/or activity (if believed to be relevant to the arrest/detention):

Xie Yang is a human rights lawyer and has represented many fellow human rights defenders (HRDs) in politically sensitive cases, leading to Chinese authorities to target Xie himself. Some of Xie’s previous clients include HRDs arrested during the “Jasmine Crackdown” in 2011, when pro-democracy protestors took to the street; the New Citizens’ Movement crackdown on anti-corruption activists in 2013-4; the “Southern Street Movement” crackdown from 2012, when police targeted grassroot activists for their outspokenness; and the crackdown on mainland Chinese supporters of the “Occupy Hong Kong” pro-democracy protests in 2014. In early 2014, Xie spoke out against violent assaults against human rights lawyers in retaliation for defending their clients and was later himself subject to a physical attack outside a courtroom in 2015.

Xie was detained during the “709” crackdown on human rights lawyers in July 2015 and subjected to torture while being held for six months under the “Residential Surveillance at a Designated Location” (RSDL) system. In May 2017, Changsha Intermediate Court convicted Xie of “inciting subversion” but exempted him from serving time in prison in exchange for recanting his allegations of torture. He was released on bail, but authorities kept Xie under tight surveillance and continued to harass him as he tried to conduct his lawyerly work. In August 2020, the Judicial Bureau of Hunan Province revoked Xie Yang license to practice law after accusing him of disturbing court order. Despite the ongoing harassment, Xie continued to assist other persecuted fellow lawyers and advocate for their fair trial rights.

Xie had been outspoken on Chinese and international social media platforms including Weibo, WeChat and Twitter (now X), expressing his views and critiques about China’s political and judicial system and offering analysis on crimes and human rights. He was frequently interviewed by foreign media for his insight on human rights in China.

Xie Yang has previously been the subject of WGAD Opinion No. 59/2017 and Special Procedure communication JUA CHN 3/2017.

8. Address of usual residence:

II. ARREST

1. Date of arrest: 11 January 2022

2. Place of arrest (as detailed as possible): His home in Yuelu District, Changsha City, Hunan Province

3. Forces who carried out the arrest or are believed to have carried it out:

National security officers from Changsha City in Hunan Province

4. Did they show a warrant or other decision by a public authority? It is unknown if authorities showed a warrant when they seized Xie Yang on 11 January 2022 because he was alone. His family only received a written criminal detention notice on 17 January 2022.

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

6. Reasons for the arrest imputed by the authorities: “Inciting Subversion of State Power” (煽动颠覆国家政权罪) ＆ “Picking quarrels and provoking trouble” (寻衅滋事罪)

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.

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 attack 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.

III. Detention

1. Date of detention: 17 February 2022 (formal arrest); 23 August 2022 (indictment).

2. Duration of detention (if not known, probable duration): Xie Yang has been continuously detained since 11 January 2022.

3. Forces holding the detainee under custody:

Yuelu Branch of Changsha Public Security Bureau

4. Places of detention (indicate any transfer and present place of detention): Changsha No. 1 Detention Center (, No. 1736 Yuanda 2nd Road, Quantang Street, Changsha County, Hunan)

5. Authorities that ordered the detention:

Changsha Public Security Bureau ordered his detention

Changsha Procuratorate approved and ordered his formal arrest and indictment

6. Reasons for the detention imputed by the authorities: “Inciting Subversion of State Power” (煽动颠覆国家政权罪)

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

IV. Describe the circumstances of the arrest.

Xie Yang was taken away from his home by national security officers in Hunan province in the evening on 11 January 2022 and criminal detained on charges of “inciting subversion of state power” and “picking quarrels and provoking trouble”. Xie was in the middle of a WeChat video call with a law student studying at University of York in the UK who was seeking his views on human right law in China. The line went dead 15 minutes into the call, according to an online account. Xie Yang’s family only received a written criminal detention notice on 17 January, six days after the arrest. During the days when Xie’s whereabouts were unknown, his family went to his household and discovered that the officers had torn Xie’s home apart and confiscated two computers and a safe. His arrest came 17 days after he held a one-person demonstration in support of an activist on 25 December 2021 and posted a photo and video online, including on Twitter (now X).

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

The detention of Xie Yang is due to his exercise of his rights to freedom of expression and peaceful assembly. In the weeks leading to Xie’s arrest in January 2022, Xie demonstrated for the release of Ms Li, a teacher who was forcibly put in psychiatric detention by Chinese authorities after writing online in support of another teacher who questioned the government’s official death toll of the Nanjing Massacre. Xie Yang held up signs in front of the school where Ms Li had taught and at local police station in Yongshun county of Hunan province and posted about his protest on Twitter (now X), where it garnered thousands of likes. While this incident appears to be the trigger for Xie to be detained on charges of “inciting subversion” and “picking quarrels”, Xie was formally arrested on 17 February 2022 on the sole charge of “inciting subversion”.

On 23 August 2022, the Changsha City People’s Procuratorate indicted Xie Yang for “inciting subversion of state power”. The indictment stated that Xie had “published attacks, and denigrated state power, the socialist system, and the leadership of the Chinese Communist Party through his registered domestic and foreign social media accounts or by taking the opportunity of interviews with foreign media, inciting subversion of state power and overthrowing the socialist system.”^[1]

The indictment listed the following so-called evidence:

1. “Since 2018, defendant Xie Yang has used his Twitter (now “X”) and WeChat accounts to spread rumors and defame, posting or forwarding multiple tweets attacking state power, the socialist system, and the leadership of the Chinese Communist Party.”

2. “Since 2020, defendant Xie Yang, taking advantage of interviews with foreign media such as Epoch Times, Deutsche Welle, Voice of America, etc., has published speeches attacking state power, the socialist system, and the leadership of the Chinese Communist Party in ways such as spreading rumors and distorting facts. These speeches were published by the aforementioned media, causing severe political impact.”

The accusations in the indictment reflect the Chinese authorities’ blatant prosecution of Xie Yang for his protected right to freedom of expression. Xie has the right to freedom of expression and opinion guaranteed under Article 35 of China’s Constitution and Article 19 of the Universal Declaration of Human Rights. His posts about politics and human rights are a peaceful expression of his political views.

The indictment also blames Xie for not “repenting” after being convicted of the same charges in 2017, a case which the WGAD opinioned Xie Yang was arbitrarily detained,^[2] which also may indicate he could receive a heavier sentence as a “recidivist’ and illustrates how authorities repeatedly target HRDs in violation of their right to free expression and in defiance of UN human rights mechanisms’ recommendations.

The crime of “inciting subversion” has been repeatedly used to target human rights defenders, lawyers, writers, and others for their online expression. The “evidence” presented by the procuratorate and accepted by courts often consists of no more than the writings or verbal expressions of an individual or simply shows that he/she circulated certain articles containing dissenting views.

The Working Group on Arbitrary Detention, in Opinion No. 11/2020, described the “inciting subversion” provision 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 constitute violations of Xie Yang’s right to peacefully exercise freedom of expression 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.

The circumstances surrounding Xie’s arrest and detention have violated his right to a fair trial as protected by international human rights standards and Chinese law. Xie Yang has been forcibly disappeared, denied access to a lawyer of his choice for seven months and the authorities have attempted on one occasion to force him to accept a state-appointed lawyer. He has been subjected to torture and other ill-treatment, and to unreasonably prolonged pre-trial detention.

Enforced disappearance

Xie Yang’s family did not receive a detention notice until 17 January, six days after he was seized, in violation of Article 85 of China’s Criminal Procedure Law (CPL) which states the family must be notified within 24 hours under the same provision, although a loophole in the law makes national security crimes (like “inciting subversion”) an exception.

Authorities forcibly disappeared Xie Yang for seven months. While the detention notice his family received listed Changsha No.1 Detention Center as the location of his detention, they could not find any information about him for months. When they made inquiries at Changsha No. 1 Detention Center, the guards rejected all their requests to visit Xie. It turned out that police had deliberately obscured his identity by entering only his surname into the computer system and used some code to refer to him, making it hard to track Xie’s whereabouts.

Denial of access to a lawyer of his own choice

Changsha Public Security Bureau denied multiple times meeting requests by Xie’s lawyers after detaining him. His first meeting with any lawyer, who was hired by his family, was on 3 August 2022, nearly seven months into his detention, However, Changsha No.1 Detention Center resumed to block Xie’s access to his own lawyer from October 2022 to May 2023. He was next granted a meeting with his lawyer on 17 May 2023, a period of eight months.

Article 37 of China’s CPL 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, but such a provision is a violation of international human rights law on access to a lawyer.

The Mandate of the Special Rapporteur on the independence of judges and lawyers indicated in the communication AL CHN 1/2024 that “mechanisms for effective and equal access to lawyers must be provided for all persons within Chinese territory and to all individuals subject to Chinese jurisdiction, without distinction of any kind …Further, individuals charged with crimes should have prompt and private access to a lawyer of their choosing.”

Efforts to impose state-appointed lawyer

While Changsha authorities appeared to allow Xie access to a lawyer of his choice on some occasions, they had also attempted to force him into accepting a state-appointed lawyer. In a letter Xie wrote on 25 October 2023 and only received by a friend on 4 January 2024, Xie notes that he had a pre-trial hearing on 11 April 2023, which was convened without the attendance of Xie’s own lawyer despite Xie’s protest, though his lawyer eventually managed to make his way to the hearing.

The Changsha Intermediate People’s Court and Changsha City Procuratorate had been trying to force Xie into being represented by a state-appointed lawyer – a practice that “violates the right to a lawyer of one’s choosing, negates equality of arms, and leads to the imposition of longer sentences,” as described in the communication AL CHN 1/2024 by the Mandate of the Special Rapporteur on the independence of judges and lawyers.

The communication also specifies that government-appointed lawyers often fail to present a substantive defense, relying instead on allegations forwarded by the authorities.

Torture and cruel, inhuman, and degrading treatment

On 16 December 2022, Xie requested to see a new lawyer that he had selected, but the detention center claimed they had contacted for him only that the lawyer didn’t come. Xie protested, and the detention center then chained him up and handcuffed him so that he could not straighten out his body, as a means to torture him.

Changsha No.1 Detention Center blocked Xie’s access to his own lawyer until 17 May 2023, when he met with his own lawyer and alleged that during 13 days of interrogation from 12-25 January 2022, he was tortured and subjected to other ill-treatment in detention. This included being chained up, and beaten on three occasions by his interrogator, police chief Huang Weijia, at the Changsha No.1 Detention Center. During the 13-day period, detention center guard Liang Jie also limited his food, and would not let him buy food or other items and did not allow other prisoners to talk to him, in an effort to get him to confess.

Xie’s family disclosed in May 2024 more details of his torture learned through meeting with his lawyer:

In March 2024 Xie attempted to contact the prosecutor at the detention center to protest the extension of his detention. He ringed from his cell, the control room officer who took his call did not forward his request and instead asked for a 20,000 RMB bribe, to be paid through his lawyer in cash, and that Xie perform an erotic dance and display his genitals in front of the surveillance camera from his cell, in exchange for his request to be proceeded.
Furthermore, from 14 and 27 March 2024, Xie had been chained by handcuffs and shackles in his cell except for the few hours he spent meeting his lawyer on 18 and 19 March 2024.

The torture and ill-treatment violate Chinese and international human rights laws. Xie filed a complaint with the prosecutor at the detention center, but his family members said no action has been taken, in violation of Chinese law and international human rights standards. During Xie’s previous stints in detention between 2015 and 2017, he was tortured by no less than 40 officers and guards during the six months of RSDL and at the Changsha No. 2 Detention Center.

Despite legal provisions, including that torture to extract confessions and ill-treatment of detainees are criminal offences in China (Article 247 and 248 of the Criminal Code) and the Criminal Procedure Law (CPL) prohibits the use of torture to extract confessions (Article 52) and excludes evidence obtained by torture (Article 56), the use of torture against human rights defenders is rife. The Committee against Torture raised concerns that torture was “deeply entrenched in the criminal justice system” (para. 20) during the Chinese government’s last review of its implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Unreasonable prolonged pre-trial detention without bail

Since the beginning of Xie’s detention, Xie’s lawyers have applied for bail on several occasions. In late January 2022 and the Changsha Public Security Bureau denied the application on the grounds that Xie might “destroy or falsify evidence” or “badger witnesses or collude with them to fabricate testimony”. Other applications have been denied but the judges have not provided the response in writing.

Xie’s detention has been extended nine times between 29 November 2022 and 27 May 2024. The official notices on the extension of detention have been riddled with typos or were missing information and have not followed Chinese laws while denying his right to a trial without undue delay.

Out of the nine notices, two were issued by Changsha City Public Security Bureau and Changsha City Procuratorate respectively, with the remaining seven notices by the Changsha Intermediate People’s Court. However, two notices, dated 29 November 2022 and 28 February 2023 respectively, showed the name of the issuing court as “Changsha City First Changsha Intermediate People’s Court,” which appeared to be typos, as the remaining five showed the issuer as “Changsha Intermediate People’s Court.” On the sixth notice dated 28 February 2024, the description didn’t indicate an approval by the Supreme People’s Court, as required by Chinese law.

On 2 September 2024, the Changsha Intermediate People’s Court called a pre-trial meeting. While Xie was represented by his own lawyer, there were several procedural flaws. The court didn’t send the indictment 10 days ahead of the meeting as required under Article 197 in the CPL, to one of Xie’s lawyers appointed in May 2024. This lawyer had requested in writing and via telephone with a judge that he may view and copy case files, as guaranteed by Article 40 in the CPL. The court never allowed the lawyer to do so before the meeting in September.

The above circumstances demonstrate multiple violations of Xie Yang’s right to a fair trial, under Category III, when the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights (Article 9) 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.

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.

Xie told his lawyer in a meeting on 23 May 2023 that he had provided a written opinion about his extended detention in March the same year to the detention center and never heard back. In April the same year he filed a written application to the Changsha Intermediate People’s Court for change of compulsory measures to release on bail pending trial and requested the court to answer in three days as regulated by law. According to Xie’s family, the court never replied,

During the pre-trial meeting on 2 September 2024, Xie’s lawyers contested the procedural violations with the court, including lack of access to indictment and case files ahead of the meeting, and the fact that the judge insisted to conduct the meeting knowing the defense has not been able to prepare for it.

Given Xie has been tortured during previous and current detention, the defense requested at the pre-trial meeting recusal of several members in the judicial committee who were involved in Xie’s previous proceedings in 2015-17, including Lan Zhilong, the head of the Second Criminal Division, to prevent the possibility of retaliation.

The defense also requested the former presiding judge, Liang Feng, and the current judge Yu Dan to also recuse themselves. Yu has refused bail application without issuing a written decision. At the pre-trial meeting, Yu attempted to continue the agenda without addressing the defense’ requests, which were met with strong opposition and forced the meeting to end.

Xie’s ex-wife Dr. Chen Guiqiu who fled to the US in 2017 continues to advocate for his release. In May 2024 she wrote online on Twitter (Now X) about eight violations in Xie’s rights to raise awareness of his situation. Chen further named those who should be held accountable for Xie’s torture, including the head of Changsha Public Security Bureau Liu Xinliang, head of Changsha #1 Detention Center Yin Zhiliang, Prosecutor Wang Zan of Changsha Procuratorate, and head of the Changsha Intermediate People’s Court, Li Lixin.

VIII. Full name, postal and electronic addresses of the person(s) submitting the information (telephone and fax number, if possible).

Renee Xia

Executive Director

Chinese Human Rights Defenders (CHRD)

^[1] CHRD’s translation

^[2] WGAD Opinion No. 59/2017