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China Human Rights and Rule of Law Update
Chengdu Courts Hold Trials of Earthquake Activists
On August 5 and August 12, 2009, courts in Chengdu city, Sichuan province, held separate trials in the cases of Tan Zuoren and Huang Qi, both of whom sought to help parents of children who died in school collapses following the May 2008 Sichuan earthquake. Although officials originally pledged to investigate the collapses, they instead suppressed attempts by parents to seek redress and blocked media and citizens from independently investigating the role played by shoddy construction. Tan organized an independent investigation into the cause of the collapses, while Huang publicized the parents' demands on his human rights Web site. Officials charged Huang and Tan with endangering national security, Huang for possessing state secrets and Tan for various activities including writing about and commemorating the 1989 Tiananmen protests. In both cases, the trials reportedly were marred by procedural irregularities and official misconduct.
Tan Zuoren Case
August 12 Trial, Defense Not Permitted To Call Witnesses and Present Evidence, Witness and Parents of Quake Victims Held in Custody, Reporters Barred and Harassed
The Chengdu Intermediate People's Court conducted the trial of writer and environmental activist Tan Zuoren on August 12, 2009, on the charge of inciting subversion of state power, according to an August 13 China Daily article and an August 13 Chinese Human Rights Defenders (CHRD) article. The conduct of the trial reportedly was marred by official abuses and procedural violations, including:
- The court reportedly rejected requests by Tan's lawyers to call three witnesses, including Ai Weiwei, a noted artist and blogger who helped design the Beijing Olympics' Bird's Nest Stadium and was investigating the deaths of students in the quake, according to the China Daily article, a second August 13 CHRD article, and an August 12 Human Rights in China (HRIC) report. Ai told various news agencies that he planned to still watch the trial but that police came to his hotel and prevented him and 10 other volunteers from leaving until after the trial ended (see, e.g., August 12 Reuters article, August 12 Guardian article). Ai also indicated that police had used force in the process, including striking him in the face.
- Tan's lawyers, Pu Zhiqiang and Xia Lin, reported that the judge frequently cut them off during the trial and that their request to show video evidence was not accepted, according to the China Daily and second CHRD articles.
- Parents of earthquake victims attempting to attend the trial were detained, according to an August 13 Global Times article.
- The court did not allow reporters into the court, according to the China Daily article. Police reportedly searched the hotel rooms of two Hong Kong reporters attempting to cover the case, claiming that they were acting on reports that the journalists possessed drugs, and did not free them until seven hours later, according to an August 13 Agence France-Presse article (via The Australian).
- Police barred hundreds of supporters from entering the courtroom saying the supporters needed passes, even though court officials earlier had told them that no passes were necessary, according to an August 12 CHRD report.
Tan's Alleged Crimes, Earthquake Activism
The procuratorate's indictment, dated July 17 (translation posted by China Digital Times), said Tan was charged with inciting subversion because he (1) committed libel against the Communist Party by distorting its handling of the 1989 protests in a 2007 online essay, (2) agreed to a telephone interview with the overseas "enemy" radio station "Voice of Hope" in June 2008 and commemorated the 1989 protests that year by making a blood donation, (3) contacted a prominent 1989 student leader now in the United States (i.e., Wang Dan) about holding a global Chinese blood drive to commemorate the 20th anniversary of the protests, and (4) gave interviews to international media after the earthquake in which he severely harmed the image of the Party and Chinese government. According to the defense pleading (in Chinese) posted on CHRD's Web site, Tan's lawyers argued that the inciting subversion crime for which Tan was charged (Article 105(2) of China's Criminal Law) belongs to the category of crimes of endangering national security but that no legislative or judicial interpretation existed in China to define this crime (inciting subversion). Tan's lawyers sought to provide guidance by making reference to the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, which were drafted under the direction of Article 19, a non-governmental organization (NGO) advocating for free expression, and endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression at several sessions of the UN Commission on Human Rights in the late 1990s and 2001. Specifically, the lawyers noted that Principle 6 provides that expression may be punished as a threat to national security only if a government can demonstrate that the expression is intended to incite imminent violence or is likely to incite such violence. Tan's lawyers said that none of Tan's language in the case incited violence and that his motives were not only peaceful but intended to protect national security as opposed to endangering it.
Following the earthquake, Tan had been active in calling for the government to investigate the cause of the large number of school collapses. Shortly after the quake, Tan, who worked for Green River, a Chengdu-based environmental NGO, was cited in a May 27, 2008, South China Morning Post (SCMP) article (subscription required) as saying "the government and the public must work together to find an answer" to why so many schools collapsed, and urged local governments to inspect other school buildings for shoddy construction. Prompted by his frustration that local governments and education and building officials had not fully investigated the matter, in February 2009, Tan issued a proposal over the Internet calling on volunteers to travel to Sichuan to compile lists of students killed in the quake, to research the treatment of parents, and to conduct an independent investigation into the quality of school buildings, according to an April 1 CHRD article (in Chinese) and a May 4 CHRD article. In March, Tan and his partner issued a preliminary version of the report (in Chinese, via the CHRD Web site), which Tan hoped to complete by the quake's first anniversary, according to the May 4 CHRD article. The report criticized officials for failing to follow through on a commitment to fully investigate the role that shoddy construction played in the collapses and local officials for being unable to deal with parents' demands. The preliminary report found that problems with the quality of the construction of school buildings were a contributing factor in some of the students' deaths, which according to their tally numbered 5,522 students, with another 78 missing. The tally was incomplete, according to the May 4 CHRD article. In a March 19 SCMP article (subscription required), Tan said that before the earthquake, an inspector had noticed cracks at a middle school that may have made it vulnerable to the quake. Authorities detained Tan on March 28, three days after the report was published, according to the August 12 HRIC report.
Huang Qi Case
August 5 Trial, Kidnapping of Witness
The Chengdu Wuhou District People's Court held a closed trial of rights activist Huang Qi on August 5, 2009, on suspicion of "illegal possession of state secrets," according to an August 5 Human Rights in China (HRIC) article. The underlying activity giving rise to the state secrets charge is unclear but shortly before he was detained on June 10, 2008, Huang had traveled to the earthquake zone and written about parents who lost children in the disaster and their demands for an investigation and compensation (see previous CECC analysis). Huang posted the writings on his human rights Web site, Tianwang Human Rights Center. Huang's lawyer said that during Huang's detention authorities questioned him about interviews he conducted during visits to areas affected by the quake as well as undisclosed issues relating to the state secrets charge. Chinese officials have considerable discretion to declare information a state secret and their power to use such a charge to deny defendants access to counsel and an open trial is subject to few limitations.
At trial, authorities continued to obstruct the ability of Huang's lawyers to make their case. According to HRIC, four police officers kidnapped Pu Fei, a volunteer for the Tianwang Human Rights Center, to prevent him from testifying on Huang's behalf. In February 2009, the district court violated China's Criminal Procedure Law by giving only one day's notice of the trial, and then postponed the trial. Late last year, Huang's lawyers criticized their lack of access to police evidence and case files.
The HRIC article said 40 to 50 supporters had gathered outside the trial, including "farmers who had lost land, evicted petitioners, and other rights defenders that Huang Qi had helped in the past."
Huang's Medical Problems
Huang suffers from numerous medical conditions, but authorities reportedly have refused to treat him. The conditions include two tumors in Huang's abdomen, hepatitis B, an irregular heartbeat, and two lumps in his left breast, according to an August 5 Associated Press article (via Newsday) and an August 5 National Public Radio story. Officials have also denied requests to allow Huang to visit with his seriously ill father, according to the HRIC report.
Huang previously served a five-year sentence from 2000 to 2005 for "inciting subversion of state power." The court in that case cited articles Huang posted on his Web site dealing with topics such as "democracy," "June 4," and "Falun Gong."
Background on Earthquake and Parents' Demands
On May 12, 2008, a magnitude 8.0 earthquake struck Sichuan province, which an official said left 68,712 dead and 17,921 missing, according to a May 8, 2009, People's Daily article. High-level officials traveled quickly to the scene and initially allowed media relatively more freedom to report. The collapse of a large number of schools while nearby buildings continued to stand, however, raised questions of shoddy construction and corruption. (See May 30, 2008, Washington Post report and September 4 New York Times (NYT) report, in which officials acknowledged that poor construction of schools may have contributed to their collapse.) Officials initially pledged to punish anyone responsible for shoddy construction (see, e.g., May 27 SCMP article, subscription required), but parents of the thousands of children who died grew frustrated at officials' unwillingness to fully investigate the school collapses. Officials responded instead with suppression and harassment, using riot police to break up protests and offering parents money in exchange for silence (NYT, Sept. 4), ordering parents to serve reeducation through labor, keeping parents under surveillance, and stopping them from holding memorials (Radio Free Asia, Oct. 8), refusing to hear a lawsuit filed by a group of parents seeking an apology and compensation (Associated Press via ABC News, Dec. 31), and preventing parents from traveling to Beijing to petition the central government (NYT, Jan. 8, 2009). In addition, in the month after the quake, restrictions on the media were tightened, with reporters from less-tightly controlled media forced to leave the quake zone and publications that called into question the construction quality of schools facing criticism, according to a May 12, 2009, NYT article.
Officials did not release the death toll for students until one year later, putting the number at 5,335 (People's Daily, May 8). Associated Press (AP) said at the time in a May 7 article (via AOL News) that "[s]o far no one has been held responsible or punished" and noted that the head of Sichuan's construction department continued to maintain that "[a]ccording to our investigations and samples we have taken, we have not found any case of buildings that collapsed in the earthquake zone mainly because of construction quality." In the AP report, Ai Weiwei expressed disappointment with the death toll announcement, saying officials "didn't give any names or any other information on where they died, which schools or which classes they were in."
CECC Recommendations
Call on the Chinese government to: - Protect Huang Qi's and Tan Zuoren's rights to freedom of speech, expression, and association. Based on the published reports about these cases, Huang and Tan engaged in peaceful activities that are guaranteed under China's Constitution and international law. Specifically:
- China's Constitution guarantees the rights to freedom of speech and association (Article 35) and the right to criticize officials (Article 41).
- The Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), which China has signed and expressed an intent to ratify, guarantee all individuals the right to freedom of expression (Article 19) and association (Article 22 for ICCPR, Article 20 for UDHR).
- Allow parents, concerned citizens, and the news media to conduct their own investigations into the role shoddy construction may have played in the school collapses, free from harassment and official interference. China has pledged to protect such activities in its National Human Rights Action Plan of China (2009-2010), which says "the state will guarantee citizens' rights to criticize, give advice to, complain of, and accuse state organs and civil servants, and give full play to the role of mass organizations, social organizations and the news media in supervising state organs and civil servants." Furthermore, the plan calls for specific measures to guarantee human rights in areas hit by the earthquake, including "respecting earthquake victims" and "registering the names of people who died or disappeared in the earthquake and made [sic] them known to the public."
- Increase transparency regarding the government's own investigations into the school collapses by releasing the details of such investigations and information about victims, including students who died. The Regulations on Open Government Information require government agencies to disclose information that involves the vital interests of citizens (Article 9(1)).
| Source: -See Summary (2009-08-14 / English / Free) |
Posted on: 2009-11-06 |
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| Link directly to this item with: http://www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=128566 |
Xinjiang Authorities Continue Detentions, Announce Arrests Connected to July 5 Incident
Following the forceful police suppression of a demonstration held by Uyghurs in the far western region of Xinjiang on July 5 and outbreaks of violence starting that day, Xinjiang authorities have reported on continuing detentions and arrests in connection to events on July 5. Some reports from official media on people detained or arrested have been inconsistent, and a number of details remain unknown. The procuratorate initiated prosecution in a first group of cases in September. A court in Urumqi has begun preparing for trials and has selected adjudicators with "high proficiency in policy" to try upcoming cases.
Following the forceful police suppression of a demonstration by Uyghurs on July 5 in Urumqi, capital of the Xinjiang Uyghur Autonomous Region (XUAR), and outbreaks of violence starting that day, Chinese media continue to carry reports from XUAR officials on detentions and arrests in connection to events on July 5, as well as a first batch of cases to be prosecuted. Official Chinese media's English-language and Chinese-language services have differed in some cases in their coverage of the detentions and arrests, and some details about the detentions and arrests, including the total number of people in custody, remain unclear. Reports have used varying terms to describe the detentions. The formal term for "detention" that appears in the PRC Criminal Procedure Law (CPL) (English text, Chinese text) is juliu (also frequently rendered in reports more specifically as "criminal detention" (xingshi juliu), which distinguishes it from other formal types of detention, such as administrative detention). The term in the CPL for "arrest" (which requires procuratorate approval) is daibu. Media reports also have used imprecise and informal terms that do not suggest formal criminal detention for the initial act of taking someone into custody, including phrases like "capturing" (zhuahuo) or "catching" (zhuabu) someone. Such people taken into custody may later be placed under formal criminal detention.
Against the backdrop of a criminal law system in which authorities use criminal charges to cast free expression as a crime, a XUAR official stated authorities had held in custody people who were peaceful protesters, and official media reports suggest that some acts of peaceful protest or expression will be subject to formal criminal charges. (See below for details.) While acts of violence during the week of July 5 were reported to have been committed by both Uyghurs and Han, based on wording in the sources cited within this analysis, Chinese authorities appear to have focused on pursuing prosecution of alleged crimes committed on July 5--the day Uyghurs demonstrated and also when acts of violence were primarily reported to be committed by Uyghurs--without explicitly clarifying whether prosecution efforts will extend to criminal acts committed by Han in the days following July 5. An article from official media indicated that Han are among people reported to be formally arrested, but did not provide additional details. (See information below on the first group of arrests for details.) A court in Urumqi has begun preparing for trials and has selected adjudicators with "high proficiency in policy" to try upcoming cases.
The information on detentions, arrests, and trial preparations comes amid reports of steps taken by authorities in the XUAR and in Beijing to curb independent criminal defense activities. The Xinjiang Justice Department has said it will arrange counsel for the suspects, but has left many details unclear. See a related CECC analysis for more information.
Authorities Report Detentions and Arrests; Some Official Media Accounts Contain Discrepancies
Recent reports of detentions and arrests, as of September 11, and information on a first group of cases to be prosecuted, include:- The procuratorate has approved the arrests (pizhun daibu) of a total of 237 people in 139 cases, and public security officials also have sought approval to arrest 295 people involved in 175 cases, based on information in a September 11 English-language China Daily report and Chinese-language Xinhua report. The procuratorate has initiated prosecution of 51 people in 14 cases, according to the reports, which appears to clarify information reported the previous week (see below) on cases transferred for review for prosecution. Based on the reports, 956 cases in total have been filed for investigation.
- The procuratorate has approved the arrests (pizhun daibu) of 196 people in 121 cases related to July 5, and 14 cases involving 51 people have been transferred by public security organs to the procuratorate for review for prosecution, according to the text of a September 4 Chinese-language Xinhua report citing the XUAR government information office. A September 4 English-language Xinhua report (via China.cn) states, in contrast to the Chinese-language report, that authorities have "prosecuted" the cases. (See Articles 136-149 of the Criminal Procedure Law for general information on reviewing cases and initiating prosecution.) Public security officials have sought approval to arrest an additional 239 people involved in 140 cases, and 825 people are being held in criminal detention (xingshi juliu), according to the reports. The numbers represent the second official statement on arrest figures, following information on a first group of arrests reported in August (see below). The September reports do not clarify whether the 196 arrests include the earlier numbers reported in August.
- Authorities have approved arrests (pizhun daibu) of 83 people in connection to crimes on July 5, according to August 4 English-language and Chinese-language reports from Xinhua. The English-language article said the information was the first official announcement on arrests from Urumqi authorities. The article reported that XUAR procurator Otkur Abduraxman "said those arrested will face charges including murder, intentional injury, arson and robbery." According to the Chinese-language report, however, those arrested are also suspected of "destroying vehicles, gathering crowds to disrupt social order, picking quarrels and making trouble, and inciting ethnic hatred and discrimination," in addition to the crimes listed in the English-language report. The Chinese-language report noted those arrested included both Uyghurs and Han. According to a July 18 report from the Legal Daily, citing a XUAR Party official, suspects' alleged crimes fall into five categories, including endangering state security, and include over 20 suspected crimes, including splittism and armed rebellion.
- Following the report of the 83 arrests, an August 23 English-language report from the China Daily (via People's Daily) said over 200 people had been formally arrested and that trials would begin that week, appearing to cite an unnamed Urumqi procuratorate official as the source of the information. The report said charges included splittism and inciting splittism. Hou Hanmin, a spokesperson for the XUAR government called the China Daily report "totally untrue" in an August 25 Global Times report, and another XUAR government official also denied the report, according to an August 25 New York Times report.
- The head of the Urumqi Public Security Bureau reported that 718 suspects had been placed under criminal detention (xingshi juliu) as of August 4, according to a Chinese-language report that day from Xinhua. See also a report of the detentions in an August 4 English-language Xinhua report. A PRC official later reiterated to the UN Committee on the Elimination of Racial Discrimination that 718 remained in detention and that those who "committed minor offences have been dealt with leniently and released," according to an August 10 Agence France-Presse report (via Yahoo). It is unclear, however, if all other people earlier held in connection to July 5 were outside of some form of custody or oversight as of that date, especially in light of comments from XUAR government chairperson Nur Bekri (below) indicating that some peaceful protesters may remain in a form of unofficial custody or under surveillance. According to an August 6 Xinhua report (via China Daily), "Authorities also admitted that some of the detained suspects in connection with the riot have been released as their offences were minor. But they didn't provide the exact number of those who were released."
- According to August 2 English-language and Chinese-language Xinhua reports, public security officers said they had detained (zhuahuo) 319 people in addition to 253 detentions reported earlier. The detentions (zhuahuo) of 253 "prime suspects" were reported in a July 29 Chinese-language Xinhua report, which also noted that a batch of suspects turned themselves in. A July 29 English-language Xinhua report on the detentions said they were "in addition to the more than 1,000 suspects detained by July 6."
- Xinhua reported in a July 10 Chinese-language article that authorities detained (zhuahuo) 190 people in a series of four operations on July 9 and July 10, in connection to events on July 5. This news appears to have been unreported in official English-language media.
- Xinhua's English-language service reported on July 7 that authorities had "arrested" 1,434 people--1,379 men and 55 women--in connection to events on July 5. The use of the term "arrests" appears to be an incorrect reference to the initial detention of these individuals. (Formal arrests (daibu) of over 1,400 people two days after alleged criminal activity would be unlikely given the usual progression of the criminal process, including the requirement under the CPL that the procuratorate approve all arrests. This terminology is also inconsistent with Chinese reporting. See, e.g., a July 7 Xinhua article (via Nanfang Daily), noting that police had "caught" (zhuabu) 1,434 people.) Some of the detainees "might be released if no serious criminal records were found," according to a paraphrasing of Urumqi Party Secretary Li Zhi's remarks in the English-language article.
- XUAR police chief Liu Yaohua initially reported early on July 7 that officials had detained roughly 700 people and continued to pursue "about 90 other key suspects," according to a July 7 English-language Xinhua report.
Overseas media have cited sources reporting on widespread security sweeps and mass detentions, including reported mass round-ups of Uyghur men, and some reports indicate detention numbers that would exceed those reported by the Chinese government and Chinese media. Some of the people reported to have been detained appear to have no involvement to either acts of protest or violent activity on July 5. (For more information, see, e.g., a July 6 Radio Free Asia article, a July 11 Telegraph article, July 19 New York Times article, and July 19 Financial Times article.)
Authorities have provided limited information on a small number of detainees or suspects (see, e.g., articles cited above and a list of suspects published in a July 30 Chinese-language Xinhua report), but detailed information about most of the people officially said to remain in detention, including the specific grounds for their detentions, appears to remain unreported. In addition, Chinese media have reported information on the arrest of one man "who allegedly spread rumors used to trigger the Urumqi riots on July 5." According to a July 6 Xinhua report (via China Daily), Kurban Khayum "was arrested for exaggerating the death toll of a factory unrest involving Uygurs in Shaoguan, Guangdong province in June." The article reports that Kurban Khayum was a member of the World Uyghur Congress (WUC)--an organization headed by U.S.-based Uyghur rights advocate Rebiya Kadeer and blamed by Chinese authorities for events on July 5--and that after the WUC told him to "gather intelligence on separatist activities in China by Uygurs and people of other ethnic groups ... in order to carry out activities to split China," he fabricated a report on the number of people killed in Shaoguan. Kurban Khayum wrote to the WUC that "a massive protest should be staged to let the world know about this bloody incident," according to the article. See also an August 6 report from the Beijing Times (via People's Daily). For additional information which challenges the facts of the case as reported by Chinese media, see an August 20 report from the East Turkistan Information Center.
Urumqi Party Secretary Li Zhi said at a press conference on July 8 that authorities would use the death penalty for crimes connected to events on July 5. The Supreme People's Court said in late July that the government and court will take steps to reduce the amount of death sentences in China, according to a July 29 Xinhua report.
For additional information, see a July 13 XUAR Public Security Bureau notice (via Xinhua Xinjiang) on "reporting and exposing criminals" connected to events on July 5.
Official Describes Taking Measures Toward Peaceful Protesters
Although authorities and official media largely refer to all events on July 5 as a "riot" or "violent criminal incident of beating, smashing, looting, and burning," a limited number of sources have reported that a demonstration took place, and a XUAR official appeared to acknowledge that some participants had protested peacefully. (See source cited below. See also a July 19 English-language Xinhua report, via China Daily, citing XUAR government chairperson Nur Bekri referring to a "student demonstration" on July 5.) Some participants may have been detained and subjected to surveillance or possibly arbitrary detention after being released from formal police custody. Nur Bekri said on July 24 that people "unaware of the truth" who "took part in the demonstrations but did not join in the beating, smashing, looting, and burning," along with those "not deeply involved," had been returned to their "work unit," "community," or "permanent place of residence" for "further assistance and education," following "education" while in detention and after they "pledged to repent," according to a July 24 Xinhua report via Ta Kung Pao (cached page) and translation of the Xinhua report via Open Source Center (subscription required). The reference to returning people to work units or communities and subjecting them to "assistance and education" suggests such people may remain under surveillance or supervision, or possibly a form of arbitrary detention. Other protesters, including organizers of the demonstration, may remain subject to criminal punishment. Chinese President Hu Jintao and members of the Communist Party Politburo's Standing Committee met on July 8 and issued a statement on July 9 that the government would "firmly crack down on serious crimes" and target "[i]nstigators, organizers, culprits and violent criminals" involved in the "riot," according to a July 9 Xinhua report, while "[t]hose taking part in the riot due to provocation and deceit by separatists, should be given education." During an August 4 visit to the Urumqi procuratorate, Zhu Hailun, standing committee member and secretary of the politics and law commission in the XUAR Party committee, called for "digging deeply to ferret out the organizers, masterminds, conductors, and core members in these cases," according to an August 12 Xinjiang Daily report (via PDF of hardcopy and translation in Open Source Center, subscription required).
Trials Initially Reported to Begin Mid-August, Adjudicators with "High Proficiency in Policy" Chosen
Although later reports indicated that no trial date had been set as of late August, a July 31 China Daily report paraphrased a source as saying trials would start in mid-August, and that the Urumqi Intermediate People's Court "has been preparing for the hearings." See also a Chinese-language July 28 Xinhua Xinjiang report. Under Article 20 of the PRC Criminal Procedure Law, intermediate people's courts have jurisdiction as the court of first instance over counterrevolutionary cases, cases of endangering state security, "ordinary criminal cases punishable by life imprisonment or the death penalty," and cases involving non-PRC citizens. According to the Xinhua report, the XUAR High People's Court has already selected from courts within the XUAR adjudicators who have "a high proficiency in policy" and "professional spirit." The adjudicators are currently undergoing training on state and XUAR policies and regulations toward events on July 5, as well as on the PRC Constitution, Criminal Law, and other relevant laws, according to the report.
Following the July 5 demonstration in Urumqi, the Party leading group in the Urumqi Intermediate People's Court launched anti-separatism education in the court, as well as in eight district courts in the municipality. The Party leading group called for cadres and police in the courts to carry out the policy deployments of the Party central committee and XUAR government, according to a July 25 People's Court Daily article (via Xinhua Xinjiang).
UPDATE (2009-10-30): Chinese media reported in late September and mid-October on prosecutions and trials related to events in July. For more information, see the following articles:- 21 Suspects Involved in Urumqi Riot Prosecuted (Xinhua, September 25. Click here for Chinese-language reporting from Xinhua.)
- 108 Stand Accused in Urumqi Riot (China Daily, October 9. Click here for Chinese-language reporting from Xinhua and Yangzi Evening News, via Sanming Information Net.)
- Six Sentenced to Death over Xinjiang Riot (Xinhua, October 12. Click here for Chinese-language reporting from Xinhua.)
- Legal Scholars and Procurator Answer Reporters' Questions about Trial Conditions in Three Major Criminal Cases from "7-5" Incident (People's Daily, October 12, in Chinese. Includes background information, including limited details on legal defense.)
- China Sentences Six to Death over Xinjiang Riot (Xinhua, October 15. Click here for Chinese-language reporting from Xinhua.)
- Court Upholds Penalties to Xinjiang Riot Convicts (Xinhua, October 30. Click here for Chinese-language reporting from Xinhua, via Sina.)
For other news reports, see, e.g.:For more information on events in the XUAR starting July 5, see previous Commission analysis (1, 2). For background information on conditions in the XUAR, see Section VI--Xinjiang in the CECC 2008 Annual Report.
| Source: -See Summary (2009-08-11 ) |
Posted on: 2009-11-06 |
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| Link directly to this item with: http://www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=128326 |
Authorities Impose Restrictions on Lawyers Defending Xinjiang Suspects Amid Official Announcements on Arranging Legal Defense
In the aftermath of the forceful police suppression of a demonstration held by Uyghurs in the far western region of Xinjiang on July 5 and outbreaks of violence starting that day, authorities in Xinjiang and Beijing have taken steps to restrict lawyers' activities defending people accused of committing crimes on July 5. The steps come as authorities continue to detain and formally arrest suspects in connection to events on July 5 and prepare for trials. The Xinjiang Justice Department has said it will arrange lawyers for the suspects, but has left many details unclear. Against a backdrop of systemic barriers to adequate legal defense in China, the developments raise questions about the likelihood suspects will receive fair trials. The developments also raise questions about the effectiveness of the recently revised Lawyers Law.
Following the forceful police suppression of a demonstration by Uyghurs on July 5 and outbreaks of violence starting that day in the Xinjiang Uyghur Autonomous Region (XUAR) capital of Urumqi, authorities in Xinjiang and Beijing have taken steps to restrict lawyers' activities defending people accused of committing crimes on July 5. The steps precede an announcement in late July that the XUAR Justice Department will select and train lawyers to provide criminal defense to suspects alleged to have links to crimes committed on July 5 when they go to trial. Chinese media reports on the nature of the legal defense are inconsistent, however, and a number of details remain unknown. The announcement comes as authorities continue to report on detentions, arrests, and preparations for trials in connection to events on July 5. For more information on the detentions and arrests, see a related CECC analysis. For more information on the curbs imposed on lawyers and the link between the restrictions and recent amendments to the PRC Lawyers Law, see below.
Xinjiang and Beijing Authorities Impose Curbs on Lawyers; Xinjiang Authorities Announce Plans To Organize Legal Defense
Authorities in at least two localities, Xinjiang and Beijing, have taken steps to prevent lawyers from independently accepting legal defense cases connected to alleged crimes committed on July 5. As also discussed in a previous Congressional-Executive Commission on China analysis, on July 8, the Beijing Municipal Judicial Bureau issued a notice on its Web site (copy available on the Chinese Human Rights Defenders Web site) calling on justice bureaus, the Beijing Municipal Lawyers Association, and law firms in Beijing to "exercise caution" in representing cases related to events in the XUAR. Characterizing events on July 5 as a "typical, premeditated, organized beating, smashing, looting, and burning incident organized overseas and executed at home," the notice calls on lawyers to stand on the side of protecting "national integrity and ethnic unity" and stresses as motivation for the notice factors including "establishing a good image for Beijing lawyers." The notice specifies that before accepting cases, partners in law offices should look into the issue, "report the matter," and "take initiative to accept supervision and direction from judicial organs and the lawyers association." While the language in the notice does not explicitly bar lawyers from accepting cases related to July 5, according to sources cited in a July 10 Amnesty International press release, authorities warned some law firms employing human rights lawyers that those lawyers were not to work on cases related to events in the XUAR.
In addition, the Xinjiang Lawyers Association reportedly ordered lawyers not to take cases on their own initiative and instead let authorities "arrange" all defense efforts, according to a July 14 Radio Free Asia report and July 15 report from the China Human Rights Lawyers Concern Group. The news precedes an announcement, reported in a July 24 English-language report from the Global Times, that the XUAR Justice Department will arrange criminal defense efforts for suspects who go to trial in connection to events on July 5. The report quotes Mao Li, general secretary of the Xinjiang Lawyers Association, as saying that "[t]he Department of Justice in Xinjiang will choose dozens of Uygur lawyers from local law offices to act as free criminal-defense attorneys." The lawyers chosen will receive three to five days of training in criminal law, according to Mao, suggesting the XUAR Justice Department may be including lawyers without extensive experience in criminal defense and it is unclear whether authorities are using the opportunity to appoint and train lawyers to enforce political agendas during the criminal process.
It is not clear whether authorities have informed suspects of the stated availability of defense counsel, especially in light of Chinese-language reports that differ from the Global Times account of the defense efforts. According to August 5 CCTV and Xinhua reports, XUAR Government Information Office spokesperson Hou Hanmin said that criminal suspects and defendants "can receive legal assistance and defense in accordance with the law," but that to date, no criminal suspects or defendants or their families had made any requests for legal assistance or defense. In addition, it is unclear how far in advance of the trial the state-appointed lawyers will be made available to meet with suspects and whether suspects could retain their own lawyer or other legal defender if state-appointed lawyers are not provided until the trial stage. The Global Times article paraphrased authorities as saying that the legal defense "will be given to all those suspected of participating in the Xinjiang riots when they face trial" (emphasis added). Elsewhere in the article, Mao is paraphrased as noting that formal arrests will begin soon and that "judicial departments promised to ensure that each suspect is represented by a lawyer," which may indicate representation earlier in the process. In response to questions including whether suspects could hire lawyers on their own, Hou said in the CCTV article that "China's judicial organs will, in strict accordance with laws and regulations, fully ensure [criminal suspects and defendants'] various procedural rights," according to the CCTV report.
Under Article 96 of the PRC Criminal Procedure Law (CPL) (English text, Chinese text), suspects may hire a lawyer after their first police interrogation or from the day when compulsory measures [such as a summons or detention] are first taken against them. Suspects must receive approval to appoint a lawyer where cases involve state secrets. Lawyers may meet with suspects, though advance approval is necessary for cases involving state secrets, and all meetings may be monitored by investigating organs. According to Article 33, criminal suspects have the right to entrust a defender (youquan weituo bianhuren) from the day a case is transferred to the procuratorate for review for prosecution, and the procuratorate must notify them of this right within three days from receiving the case record for examination. In addition, under Article 33 of the recently revised PRC Lawyers Law (see discussion below on the relationship between the CPL and Lawyers Law), a lawyer entrusted to a case, based on her or his lawyer's practice certificate, law office certificate, and power of attorney or official legal aid letter, has a right (youquan) to meet with a criminal suspect as of the first police interrogation or from the day when compulsory measures are first taken. Under this article, the lawyer meeting with a suspect is not to be monitored (bubei jianting). Chinese law also guarantees pro bono legal defense, but only if the defendant is a minor, faces a possible death sentence, or is blind, deaf, or mute. In other cases in which defendants cannot afford legal representation, courts may appoint defense counsel or the defendant may apply for legal aid. (See Articles 33-34 of the CPL and Articles 11-12 of the Regulations on Legal Aid.)
Amid conflicting reports from Chinese media, questions also remain about the languages to be used in trial and the availability of qualified lawyers and personnel who could speak or interpret into the languages of the defendant. (Han Chinese are among those formally arrested, according to an August 4 Xinhua report, but the Global Times report cited above suggests most suspects are Uyghur.) Under Chinese law, citizens are guaranteed the right to use their own language in court proceedings. (See, e.g., Article 9 of the CPL and Article 47 of the Regional Ethnic Autonomy Law.) According to a February 7, 2006, report from Tianshan Net, however, personnel shortcomings in XUAR courts have meant that "there is no way to guarantee the use of ethnic minority languages to carry out litigation." (See also a November 22, 2007, report from Legal Daily, reprinted in Xinhua Xinjiang.) According to August 14 and October 18, 2007, reports from Xinhua, out of 4,552 judges in the XUAR--where non-Han ethnic groups comprise approximately 60 percent of the total general population according to official Chinese statistics--1,948 (43 percent) of judges were ethnic minorities, and as of September of that year, 380 lawyers, or 17 percent of the total number in the region were ethnic minorities. The reports did not identify the lawyers' language capabilities. An August 23 report from China Daily (via People's Daily) said, "More than 170 Uygur and 20 Han lawyers have been assigned to the suspects; the trials will be carried out in their native languages," but XUAR government authorities later refuted the report, which also said trials would begin that week and listed the number arrested as higher than previously reported. See August 25 reports from the Global Times and New York Times.
Restrictions Contravene Domestic and International Protections for Lawyers and Criminal Suspects
The orders issued by the Beijing Municipal Judicial Bureau and the Xinjiang Lawyers Association, whether explicit or indirect, contravene both domestic law and international protections for lawyers and criminal suspects. Article 14 of the International Covenant on Civil and Political Rights, which China has signed and pledged to ratify, provides for fair trials including through legal assistance of one's choice. General Comment Number 13 to this article provides, "Lawyers should be able to counsel and to represent their clients in accordance with their established professional standards and judgement without any restrictions, influences, pressures or undue interference from any quarter." The UN Basic Principles on the Role of Lawyers promotes "effective access to legal services provided by an independent legal profession." (See also Articles 1 and 16.) Article 28(3) of the PRC Lawyers Law specifies that lawyers may represent suspects in criminal cases, and Article 33, as discussed above, gives lawyers entrusted to the case the right to meet with suspects and defendants as of the first instance of interrogation or from the day compulsory measures are taken. (In addition, see above for discussion of other legal provisions on hiring lawyers and retaining legal defense.)
Revised PRC Lawyers Law Continues To Face Barriers to Effective Implementation
The July 5 demonstration and subsequent outbreaks of violence in Urumqi came approximately one year after the Chinese government undertook legal reforms designed to reduce barriers to the work of defense attorneys. In June 2008, revisions to the Lawyers Law took effect, and in August 2008, the Legislative Affairs Commission of the National People's Congress Standing Committee said that where provisions of the Lawyers Law differ from ("alter," xiugai) CPL provisions, the provisions in the Lawyers Law are to be followed. (See a copy of the Legislative Affairs Commission statement on the All China Lawyers Association Web site.) As discussed in the CECC 2008 Annual Report, the Lawyers Law was revised largely to address the "three difficulties" (san nan) faced by defense attorneys: gaining access to detained clients, reviewing the prosecution's case files, and collecting evidence. An April 2008 Human Rights Watch report, also citing broader problems in China's legal system, including a lack of judicial independence, noted that courts and police often created obstacles to defense attorneys by claiming that a particular case was "exceptional" or "especially complicated." In addition, the report also found, "Only a fraction of criminal suspects are able to meet their counsel before they are charged. In some cases, lawyers have been entirely unable to secure even a single meeting before the trial takes place." Despite the reforms formally implemented in the past year, the effectiveness of enforcement remains unclear, as does the impact of the NPC Standing Committee statement on conflicts between laws. In addition, many criminal suspects continue to lack defense attorneys, and attorneys working on sensitive issues in particular continue to face harassment. (For more information, see, e.g., a June 18 report from China Youth Daily and July 17 New York Times report.) The continuing problems suggest that in addition to shortcomings criminal suspects in the XUAR may face through government-organized legal defense, broader systemic problems within China's legal system also hinder the likelihood of a fair criminal trial.
Restrictions in Xinjiang Follow Efforts To Block Legal Defense in Tibetan Trials
The actions taken by XUAR and Beijing authorities continue a wider trend in hindering criminal defense efforts especially in cases deemed to involve sensitive issues in ethnic minority areas. After the March 2008 Tibetan protests and riots, the government denied criminal suspects the right to independent counsel, as discussed in the CECC 2008 Annual Report and a March 9, 2009, Human Rights Watch report. A July 20, 2009, Radio Free Asia article quotes defense attorney Li Fangping, who traveled to Gansu province after being hired by the families of two Tibetan monks to represent them in a criminal case, as saying, "The authorities not only refused my request to meet those two men, they also refused my involvement in the case by saying they already had lawyers. They effectively denied the families' rights to independently hire attorneys." The UN Committee on the Elimination of Racial Discrimination, which examined the Chinese government's compliance with the International Convention on the Elimination of All Forms of Racial Discrimination in August 2009, "[noted] with concern reports on the harassment of defense lawyers taking up cases of human rights violations, especially those introduced by members of ethnic minorities." (August 28 concluding observations available via download from Web site of the Office of the UN High Commissioner for Human Rights.)
For more information on events in the XUAR starting July 5, see previous Commission analysis (1, 2). For more information on conditions in the XUAR, see Section IV--Xinjiang in the CECC 2008 Annual Report. For more information on lawyers in China, see Section II--Rights of Criminal Suspects and Defendants, as well as Section III--Access to Justice in the CECC 2008 Annual Report.
| Source: -See Summary (2009-08-12 ) |
Posted on: 2009-11-06 |
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| Link directly to this item with: http://www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=128444 |
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