China: Arrest, Detention, Conviction and Imprisonment of Lawyers and Human Rights Defenders | Written Statement to the 37th Session of the UN Human Rights Council

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Item 4 – Human rights situations that require Council’s attention

Written Statement by Lawyers’ Rights Watch Canada an NGO in Special Consultative Status to the 37h Session of the United Nations Human Rights Council

The arrest, detention, conviction, and imprisonment of lawyers and human rights defenders in China: the silencing of human rights defenders through criminal law and executive controlled courts

In a nationwide roundup, commencing as early as July 2015, the People’s Republic of China (China) launched a campaign to repress lawyers and human rights activists and used criminal laws and executive controlled courts to silence them through arrests, detention, conviction, and imprisonment.  In the following months, at least 320 Human Rights Defenders (HR Defenders) were harassed, arbitrary arrested, forcibly disappeared, tortured or criminally charged.  The campaign was known as the “709 Crackdown” (the Crackdown).  The HR Defenders affected by the Crackdown were, and continue to be, those who advocate for vulnerable groups or politically sensitive clients and causes within China.  As of January 31, 2018, seven HR Defenders detained in the Crackdown remain in prison. Among them, Wang Quanzhang has been detained and held incommunicado for approximately 1,000 days.

It is widely believed that the Crackdown was a state-sanctioned response to the tens of thousands of Falun Gong practitioners who filed criminal complaints  against the former Chinese dictator Jiang Zemin in May 2015 for his role in instigating the persecution of the Falun Gong and the state-sanctioned forcible organ removal from detainees and sales for profit.

Zhou Qiang, China’s Chief Justice, in an annual report to the China’s National People’s Congress asserted that the “severe punishment” in the Crackdown was one of the top achievements of the judicial system in 2016.

Lawyers’ Rights Watch Canada (LRWC) calls on the United Nations Human Rights Council (Council) to fulfill its duty to protect fundamental human rights in China, and recommends that Council:

  • Request that China ensure the immediate release of and withdrawal of charges against all HR Defenders detained or charged during the Crackdown;
  • Urge China to comply with its international human rights obligations and abolish the use of Residential Surveillance at a Designated Place (RSDP);
  • Take steps to prevent and remedy the systematic and widespread violations against HR Defenders referred to in this report; and
  • Insist on effective investigations of allegations of torture of HR Defenders during the Crackdown.

The Crackdown has been widely criticized as a gross and systematic violation of China’s criminal and constitutional law and an example of non-compliance of its international obligations.  The Crackdown was implemented to control and silence an increasing number of HR Defenders who advocated for clients and causes that the communist regime disagreed with. 

China’s practices and international law obligations

Politically-motivated criminal charges

As of July 9, 2017, most HR Defenders affected by the Crackdown were investigated on the grounds of politically-motivated offences.  This has been achieved through the vague statutory language of the Criminal Code and a broad interpretation of the legislation, enabling authorities to charge people for peacefully exercising their freedom of expression.  None of the targeted HR Defenders advocated for, or engaged in violence.

Torture and other Cruel, Inhuman or Degrading Treatment  

Fifteen HR Defenders are known to have been tortured during the Crackdown.  It is believed that there have been many more cases of torture; however, these have not been verified due to the inability to conduct independent investigations and heavy censorship of the Crackdown, including censorship of search engines and social media.

The UN Committee against Torture (CAT) previously expressed that they “remain seriously concerned over consistent reports indicating that the practice of torture and ill-treatment is still deeply entrenched in the criminal justice system.”  This is notwithstanding that China signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1986, ratified it in 1988, and has implemented laws that prohibit torture and mistreatment of detainees.  These international obligations and national laws are not strictly enforced, and political and religious dissidents are singled out for “particularly harsh punishment.”

Residential Surveillance at the Designated Place

RSDP, a form of detention for investigating crimes of “endangering national security, terrorist activities or especially serious bribery cases,” was introduced by a 2012 amendment of the Chinese Criminal Procedure Law.  The amendment purports to allow authorities to arrest suspects without a warrant and to detain suspects in an undisclosed place outside regulated detention facilities for a maximum length of 6-months.  The de-facto incommunicado detention may extend after the 6-month RSDP period and is in effect legalizing enforced disappearance.  This amendment allows investigators to interrogate suspects without being restricted by rules of regular detention facilities or being detected by the outside world and ensures that a suspect does not leave, meet or communicate with others without the investigator’s permission. The identification papers of suspects are held by police to restrict their movements.

During the Crackdown at least 27 HR Defenders were subjected to RSDP confinement. They were jailed in small rooms in secret locations, unable to communicate with the outside world, and denied access to family visits and their legal representatives. When sentenced, no credit for RSDP detention was allowed for sentencing.

On 3 February 2016, CAT stated, “these provisions, together with the possibility of refusing access to a lawyer for these types of crimes, may amount to incommunicado detention in secret places, putting detainees at a high risk of torture or ill-treatment.”

Pre-trial Detention

Unusually long pre-trial detention is a feature of the Chinese criminal law system.  Before a person is officially indicted, they could be held in custody for 8-months for criminal investigation and for 6-months in RSDP detention, a total of 14-months.  The legal system allows for extensions; e.g., if the investigator discovers a new crime during the investigation, the custody period will be re-calculated from the date of discovery.  During the Crackdown, many HR Defenders were detained for unreasonably long periods, without bail hearings, before being charged.

Judicial Independence

The Chief Justice of China Zhou Qiang, opens each year’s annual report to the National People’s Congress by stating that the Supreme Court of China is under the leadership of the Party Central.  On 14 January 2017, the Chief Justice urged China to fight against “Western Judicial Independence,” while addressing a national meeting of chief justices of higher courts.  Without judicial independence, the suspects of politically sensitive cases and their HR Defenders are in extremely vulnerable positions.

Conclusion

LRWC calls on Council to take the aforementioned steps to effectively protect the rights of HR Defenders in China and to ensure fulfillment of China’s obligation to uphold “the highest standards in the promotion and protection of human rights.” Pending release of and withdrawal of charges against all HR Defenders detained or charged during the Crackdown and adequate remediation of rights violations, LRWC requests that China’s membership on Council be suspended.