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Submission to the 31st Session of the UN UPR Working Group on China October/November 2018 by The China Human Rights Lawyers Concern Group (CHRLCG)

1. In its 2ndUniversal Periodic Review (UPR) in 2013, the Chinese government accepted 207 recommendations which included taking measures against torture, improvement of the legal framework and institution as well as enhanced protection of lawyers’ rights to practice. However, CHRLCG is perturbed to note that there has been little sign of improvement in the criminal justice system. In fact, the situation has gone from bad to worse.

2. There are more than 300,000 lawyers in China, but only 300 to 500 human rights lawyers who persistently and courageously fight for betterment of human rights and access to justice. While the number of prosecutions and convictions of human rights lawyers have stayed high over the past years, hostility against them and human rights defenders has also escalated, amounting to brutal suppression that exposes how the deeply flawed judicial system is manipulated by the executive power, and also how measures under Xi Jinping have been systemically employed leading to grave rights violations.

3. This submission highlights concerns about the defective criminal legal process including prolonged pre-trial detention, residential surveillance at designated location, torture, unfair trial; the profoundly circumscribed status of human rights lawyers as a professional group in China.

I. Prolonged pre-trial detention

4. According tothe 2012 PRC Criminal Procedure Law (CPL), a suspect could stay in the hands of the police without judicial oversight for as long as 37 days before an arrest warrant is issued. The length of detention could be drastically increased to 7 months and 7 days if the suspect is alleged, at the discretion of the police, to have committed state-security related crimes. The additional 6 months is known as “residential surveillance at designated location” (see section II)

5. After the arrest, investigation could last for another 13.5 months before a decision on whether or not to prosecute. This, together with the first 7 months, is a period of detention without charge. If an indictment is made, the case will enter the court stage where the period awaiting trial may go up to 8 months or indefinite detention for cases of “special circumstance” as the CPL does not limit the number of times such cases can be deferred for trial. The CPL has given no details to define “special circumstance”.

6. Throughout the period of time aforesaid, a suspect or defendant is under the direct control of the police without judicial oversight.

7. In this regard, the CHRLCG would like to highlight the case of Wang Quanzhang, 42, Beijing-based rights lawyer, who was seized by the police on 3 August 2015, formally arrested on 8 January 2016 and indicted on 14 February 201 By 11 July 2018, Wang was kept incommunicado for detention of 1148 days. His appointedlawyer Liu Weiguo met Wang on 12 July and 18 July 2018 but withdrew from the case on 31 August. His family has no access to him and written correspondence sent to him by his family have never been replied.

8. Recommendations

  1. The Chinese government should immediately release lawyer Wang Quanzhang.
  2. The Chinese government should immediately reform the Criminal Procedure Law to incorporate all recommendations by the UN Committee against Torture in its 2015 Concluding Observations on the 5thperiodic report of China, in particular paragraphs 11, 13, 21 and 23[1].

II. Residential Surveillance at Designated Location (RSDL)

9. RSDL was added to the CPL in 2012 to target suspects of state-security-related crimes, acts of terrorism and or grave briberies. Accordingly, police is empowered to detain a suspect at a location of their discretion for up to 6 months. The law explicitly forbids suspects to be held at any formal detention facilities or in premises of investigation.

10. The “state-security-related” crimes without clear definitions have been increasingly used against political dissidents, rights lawyers and defenders. To exacerbate the problem, RSDL is invariably used in combination with article 37 of CPL which gives police the discretion to forbid suspects/ defendants’ access to counsel, subjecting them to a higher risk of torture in an incommunicado state of being.

11. Of the 42 individuals who were dealt with under criminal procedure in the 709 Crackdown, 29 were accused of state-security-related crimes (among them 15 lawyers or disbarred lawyers and 4 legal assistants/ defenders). 26 out of 29 were held under RDSL.

12. In addition, it is also not uncommon for RSDL to be arbitrarily applied to non-state-security-related defendants. For the 13 rights defenders charged with non-state-security-related crimes (out of the 42 arrested), at least 5 were given RSDL.

13. CHRLCG notes that RSDLas a form of arbitrary and prolonged detention is tantamount to “enforced disappearance” is conducted with no judicial oversight and unchecked police power. It also contravenes the principle of due process, which is to ensure the protection of basic human rights as articulated in International Covenant on Civil and Political Rights (ICCPR) which the Chinese government signed in October 1998 but not yet ratified, in the PRC Constitution and in the CPL (general principles).

14. Recommendation

  1. CHRLCG calls on the Chinese government to immediately repeal RSDL.

III. Torture

15. Torturecontinues to be an issue of grave concern, both as the cause and consequence of the major defects in the criminal justice system and its respective procedures.

16. The absence of a clear definition in China’s laws, in the criminal code and the CPL, makes it impossible for acts of torture to be effectively prevented and prohibited. The lack of judicial oversight over execution of power and effective pursuit for legal accountability have allowed the law enforcers, and the police in particular, to manipulate the deeply flawed criminal justice system for the purposes of extracting confession, intimidation, punishment and retaliation against the targeted groups and individuals including rights lawyers and defenders.

17. As the Chinese courts still largely depend on confession for conviction, CHRLCG is of the view that the Chinese government should include in its judicial system a comprehensive law of evidence that incorporates international norms and standards for criminal justice.

18. The CHRLCG expresses grave concern that torture has become an institutionalised part of detention. The CHRLCG conducted a survey in 2017 documenting testimonies by 14 rights lawyers and defenders detained in the 709 Crackdown. It found systematic use of at least 15 forms/ recurring patterns of torture or inhuman treatments against those held under RSDL. Torture was used to inflict physical damage ranging from weeks and months of prolonged hours sitting or standing at fixed position, any movement would result in beating and assaults. They also included intimidation and threats about hurting family members, drug prescription, and daily deprivation of sleep, food and toiletry.[2] The torture is not only to inflict fear and physical pain but also to humiliate, degrade and shatter self-esteem and personal dignity. (Appendix A)

19. CHRLCG notes with utter dismay the horrible status of physical, mental and psychological well-being of many torture victims upon their release from detention.

20. LawyerYu Wensheng who was held to a mental chair for hours of questioning needed several months of medical treatment, including surgery for a hernia he developed during his 3-month incommunicado detention between 2014 and 2015.

On 19 January 2018 Yu was again taken away by police and was held incommunicado under RSDL for allegedly “inciting subversion of state power”.

21. LawyerLi Yuhan disappeared for one month before she was formally arrested in November 2017 for “picking quarrels and provoking troubles”. She has complained about being beaten up, assaulted and other inmates were instructed to urinate on her food.

22. LawyerLi Chunfu, victim of RSDL in the 709 Crackdown, was diagnosed with symptoms of schizophrenia when he was released in January 2017. He suffered from weight loss, extremely traumatised state of mind, paranoia and strong sense of insecurity after detention of 16 months. Apart from ill treatment, Li also complained of forced drug feeding which also happened to at least 6 other RSDL victims known to the CHRLCG.

23. CHRLCGunderstands from other victims of the 709 Crackdown that they are unable or unwilling to reveal details of their most painful and degrading experiences during detention.

24. Impunityis another significant aspect of torture that the Chinese authorities should be held responsible for.

25. In January2017, lawyer Xie Yang, then charged with “inciting subversion of state power”, was able to publicise, through his counsel lawyer Chen Jiangang, a detailed account of his experiences of being tortured during RSDL with a list of names and ranks of his perpetrators including date, time and venue of torture. However, the authorities swiftly responded with a report of denial after interviewing 8 individuals, largely officials. In the show trial in May 2017, Xie Yang was put up before the state media and categorically denied receiving any ill-treatment.

26. The episode ended up with Xie’s lawyer Chen being monitored and harassed, Xie held under strict surveillance months after he was released and lawyer Jiang Tianyong being accused as the mastermind in fabricating the story of Xie’s torture. Jiang, convicted of inciting subversion of state power, has been serving a 2-year sentence since November 2017.

27. Recommendations

  1. The Chinese government should ensure and make visible the status of being of all rights lawyers and defenders under detention, and as of 29 March 2018, CHRLCG wishes to highlight the cases of lawyers Wang Quanzhang, Yu Wensheng, and Li Yuhan.
  2. CHRLCG calls on the Chinese government to ratify Optional Protocol to the Convention against Torture on the prevention of torture
  3. CHRLCG urges, as part of its criminal justice reform, the Chinese government to ensure the following:

§ Legislation be enacted to formally criminalise torture

§ Bail system be fully and effectively used to minimise detention, making its criminal due process in compliance with the basic principle of presumption of innocence, as enshrined both in the domestic law and compliant with international human rights standards. In China, the bail system is grossly underused. It is often abused by the police as a form of extended punishment for those whom they fail to formally indict.

§ The Chinese government should provide in its criminal code procedure of “habeas corpus” to allow detainees challenge legality of their imprisonment or the conditions under which they are detained; and an articulation of the legal accountability of perpetrators of torture.

§ A mechanism should be established for independent inquiry into complaints of torture and for the purpose of remedy and redress.

IV. Fair Trial

28. CHRLCG maintains that as a right stipulatedby both domestic and international laws, the protection of the right to fair trial without undue delay is a legal obligation that the Chinese government must respect.

CHRLCG reiterates its grave concerns on Wang Quanzhang regarding his right to fair trial without undue delay.

29. The Chinesecourts have conducted 8 rounds of trials relating to the 709 Crackdown, in early August 2016 and throughout 2017, involving 14 rights lawyers and legal activists with sentencing ranging from exemption from criminal punishment in the case of Xie Yang, suspended sentences in case of Li Heping to jail terms between 20 months and 8 years in the cases of Wu Gan and Jiang Tianyong. We are deeply disturbed by the recurrence of legal irregularities and rights violations in these trials.

30. In a 13-page report that made reference to domestic and international laws, published in August 2016, CHRLCG documented the rights violations ssin the first round of the 4 trials (3 rights defenders and 1 lawyer) that took place in August 2016. CHRLCG referred in particular to the non-compliance with the basic principles of fair and open trial by the Chinese authorities and of the Court. (Appendix B)

31. Ajoint statement initiated by CHRLCG on 23 March 2017and cosigned by 13 international professional legal groups, 5 prominent legal academics and 13 international human rights organisations urged the Chinese government to ensure the people’s right to fair trial. It is regrettable that the trial of lawyer Jiang Tianyong in August 2017 remained a “show trial”. (Appendix C)

32. Theauthorities have never recognised the family-appointed lawyers for Jiang and their right to visit him. Instead, Jiang was represented by 2 state appointed lawyers in the trial and they failed to dispute the accusations and “evidence” presented by the prosecutors.

33. Date of the trial was not publicised pursuant to the CPL but only in the morning of the trial.

34. Members of the publicare not allowed to attend in the court hearing. Friends of Jiang who applied to attend the hearing were rejected. Instead the courtroom was filled with “representatives of the local people’s congress and political consultative committees” and “members of public”. While Jiang’s sister was forbidden to attend, Jiang’s father was seized by police from his home and accompanied by policemen to the courtroom.

CHRLCG has received confirmation from a Chinese language news organization that they received an invitation extended through phone call from the Ministry of Public Security to attend Jiang’s trial. Thetrial which was claimed to be broadcast live on the Court’s webpage was in fact transmitted through a number of edited clips of the hearing.

35. Thetactic of smearing and slandering Jiang took place before Jiang’s trial.

36. As in other show trials, Jiang pleaded guilty in the court hearing and promised not to appeal and reconfirmed his gratitude towards the care and generosity of the CCP.

37. Recommendations

  1. Reform the CPL to ensure full protection of criminal due process including the right to fair and open trial without undue delay as stipulated by both domestic and international norms enshrined in the UDHR, and the ICCPR.
  1. The Chinese government should immediately ratify ICCPR which it signed in 1998.

V. Lawyers’ Right to Practice

38. Apart from the risk of being criminalised for their work on defending the people’s basic rights, human rights lawyers are also subjected to administrative control and penalties including (1) newly revised Measures on the Administration of Law Firms (2016) as well as the Measures on the Administration of Lawyers’ Practice (2016) (the Two Measures) which give the judicial bureau extensive powers to suspend, cancel or revoke the licence of lawyers and or law firms and; (2) annual inspection system which is applied through the controversial role and power of the judicial bureau, which is an executive branch of the judiciary, to thwart the autonomy of the lawyers both as individuals and as a professional community and this is done in conjunction with the lawyers associations both at national and local levels.

39. The Two Measures, both promulgated by the Ministry of Justice, have been revised to place lawyers and law firms under close scrutiny of the judicial bureau by (1) incorporating law firms as part of the collective control mechanism through the monopolization of politico-ideological stance (art. 3, art. 4) and direct intervention into how “grave cases” are to be handled. (art. 49); and (2), depriving lawyers of their right to freedom of speech and expression with prohibition on a series of broad and vaguely defined behaviour targeting the lawyers.

40. Apart from the lack of substantive improvement in judicial independence with fair treatment for both the prosecutor and the defence, the newly added articles of 37 – 40 of the Measures on the Administration of Lawyers’ Practice could be manipulated to obstruct lawyers in performing their legal duties and to constraint their freedom of speech and expression.

41. TheAnnual Inspection System regulated by Lawyers’ Law of the People’s Republic of China revised in 2007 and Administrative Measures for the Practice of Law by Lawyershave been used to penalise lawyers and law firms for not readily succumbing to the authorities’ “guidance” in the handling of “grave cases” by revoking their licences. In practice, this is done through the self-assumed power of Judicial Bureaus to “stamp and validate” a license which was formalised in 2010, and has been repeatedly challenged as lacking legal basis by the lawyers communities from across the country.

42. Since 2017, more than 23 rights lawyers have been penalised either by having their licence suspended, canceled or revoked by the judicial bureau.Sixteen rights lawyers and 3 law firms have had their licenses revoked or invalidated between September 2017 , i.e. the eve of the 19thPlenary Session of the Communist Party Congress, and May 2018. The figure is alarming when compared to 20 cases from 2004 to 2014 and 9 cases from 2014 to 2016.

43. Recommendations

  1. Repealthe Two Measures and the Annual Inspection which are designed to circumscribe lawyers’ independence and rights of practice.
  2. The judicial bureau should not have the power to discipline the lawyers’ profession as this power should belong to the lawyers associations.
  3. Reformsshould be made in the lawyers associations to incorporate free elections by members to return office-bearers.

 

Encl. Appendix A-G

About CHRLCG

The China Human Rights Concern Group (CHRLCG) is a non-profit organization based in Hong Kong Special Administrative Region (HKSAR). Its objective is to advocate for the protection of the human rights lawyers and legal rights defenders in China. It was established on 20 January 2007 by a group of lawyers, legislators and academics in Hong Kong. Despite their endeavors to fight for the rights of the underprivileged within the legal framework, many lawyers and legal activists in China have been subjected to tremendous political pressure and unfair treatment by the Chinese authorities. They and their families deserve more attention and support from Hong Kong and the international community. We believe that the status and rights of the lawyers must be respected before China can successfully develop constitutionalism and rule of law.

The Concern Group has prepared this briefing for the 31stSession of the UN UPR on China in November 2018. In line with the scope of our organization, this briefing is confined to mainland China and excludes the Special Administrative Regions of Hong Kong and Macau.

 

 

Download: UPR Full Submission (CHRLCG)