Full .pdf version (with footnotes)
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 38th Session of the United Nations Human Rights Council
China: Human rights advocates suffer detention, ill treatment and trials in violation of international law
In July 2015 the People’s Republic of China (China) began a campaign (the 709 Crackdown) to repress legitimate human rights advocacy by human rights lawyers and other advocates (HRDs). Criminal laws and executive-controlled courts are used to silence HRDs through arbitrary detentions, illegitimate charges, denial of due process, and prohibited treatment. During the 709 Crackdown, at least 321 HRDs have been subjected to harassment, interrogation, arbitrary detention, illegitimate criminal charges, enforced disappearances, torture and ill-treatment, unfair trials before executive-controlled courts, denial of due process, wrongful convictions and other violations.1 Seven defenders detained during the 709 Crackdown remain imprisoned. Targeting and arbitrary detention of HRDs continues, and an increasing number of human rights lawyers face disbarment for their lawful advocacy. HRDs effectively advocating for clients or causes unpopular with China, are especially vulnerable to severe rights violations including lengthy prison sentences.
These violations represent a continuing pattern of systematic violations of China’s international human rights law obligations arising from: membership in the United Nations (UN); membership on the UN Human Rights Council (Council); the Universal Declaration of Human Rights (UDHR); the International Covenant on Civil and Political Rights (ICCPR), signed 5 October 1998; and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), ratified 4 October 1988. LRWC calls on Council to fulfil its duty to protect fundamental human rights in China, and recommends that Council urge China to:
- Ensure the immediate release of and withdrawal of charges against all HRDs charged or detained;
- Abolish the use of Residential Surveillance at a Designated Place (RSDP);
- Take steps to remedy the systematic and widespread violations against HRDs identified in this report;
- Ensure effective investigations of allegations of torture or ill-treatment of HRDs.
China’s practices and international law obligations
Politically-motivated criminal charges:
These and other HRDs are prosecuted solely for exercising protected rights to engage in peaceful human rights advocacy. They face overbroad charges that violate notice and certainty requirements, preclude both avoidance through foreknowledge and defense, and make convictions virtually certain.
Torture and other Cruel, Inhuman or Degrading Treatment:
At least 15 HRDs arrested during the 709 Crackdown have been tortured. More cases of torture are suspected. Censorship and the absence of independent investigations blocks verification. Since ratifying UNCAT, China has adopted laws prohibiting torture and ill-treatment of detainees. However, in 2016, the UN Committee against Torture (CAT) expressed concern “over consistent reports indicating that the practice of torture and ill-treatment is still deeply entrenched in the criminal justice system.”
Residential Surveillance at the Designated Place:
RSDP was created by a 2012 amendment to the Criminal Procedure Law (CPL) as a form of detention for investigating crimes of “endangering national security, terrorist activities or especially serious bribery cases.” Article 73 of the CPL purports to allow arrest without warrant and detention in undisclosed places outside regulated detention facilities for an initial period of six months with a possible six month extension. Article 73 allows interrogation and treatment unrestricted by rules of regular detention facilities and public scrutiny. Communications with counsel or others is prohibited without investigators’ permission and identification papers are confiscated to restrict movements. During the 709 Crackdown at least 27 HRDs have been subjected to RSDP confinement, jailed in small rooms in secret locations, and held incommunicado without access to lawyers or judicial oversight. On sentencing, no credit for RSDP detention is allowed. In 2016, the CAT expressed “grave concern” that “these provisions, together with the possibility of refusing access to a lawyer…may amount to incommunicado detention in secret places, putting detainees at a high risk of torture or ill-treatment.”
Pre-trial Detention:
The CPL allows up to 8 months detention prior to charges being laid and an additional 6 months in RSDP detention, a total of 14 months. Access to counsel is denied or restricted during investigation of crimes alleged to endanger state security (Article 37). During the 709 Crackdown many HRDs were detained for unreasonably long periods without access to judicial oversight or counsel prior to being charged.
Judicial Independence:
The Chief Justice of China, Zhou Qiang, opens each 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” at a national meeting of chief justices of higher courts. Without access to independent, competent and impartial tribunals, HRDs prosecuted for engaging in lawful human rights advocacy and the peaceful exercise of rights to expression, assembly and association, are automatically convicted and sentenced. Such detentions, prosecutions and trials violate China’s international human rights law obligations arising from customary international law, membership in the UN, Council, and the UDHR, ICCPR and UNCAT.
Conclusion
LRWC asks Council to make the aforementioned recommendations urging China to effectively protect the rights of HRDs and insist that China fulfil its Council membership obligation to “uphold the highest standards in the promotion and protection of human rights.”
