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China Human Rights and Rule of Law Update
Statement of the Chairman and Cochairman on Political Imprisonment in China Today
August 19, 2010
Recent trials of Webmasters, professors, writers, lawyers, and even a geologist in China who is a U.S. citizen have heightened concern that the Chinese government increasingly is using detention and imprisonment to stifle dissent or to advance government objectives, at the expense of human rights. For example, in July, Dr. Xue Feng, an American geologist, was sentenced to eight years in prison for helping a U.S. company purchase commercial information on oil wells in China. Gheyret Niyaz, a Uyghur journalist and the editor of a popular Web site was sentenced to 15 years in prison for apparently giving an interview to the foreign media after the July 2009 demonstrations and riots in Xinjiang and for essays critical of some Chinese government policies in Xinjiang. In addition, Nijat Azat, Dilshat Perhat, and Nureli, have been sentenced to prison in connection to their roles as administrators of three popular Uyghur Web sites.
The threat of political imprisonment affects the work of people and organizations who are engaged in human rights advocacy or who are involved in commercial activity in China, including U.S. citizens. The chilling effects of political imprisonment result in lost opportunities for the Chinese government to make progress on and for Chinese citizens to enjoy the development of human rights and the rule of law.
We note in particular two alarming trends. First, the Internet appears to have spawned a new class of political prisoners in China. Chinese citizens are going to jail for posting essays online critical of the government or for trying to organize political opposition online. Many citizens who criticize the government on blogs and comment boards go unpunished！at most their comment is deleted. But individuals with a track record of human rights advocacy, political activism, grass roots organizing or opposition to the Communist Party are being targeted systematically. The most common charges against these citizens are the crime of subversion, which carries a sentence of up to life imprisonment, and inciting subversion, which carries a sentence of up to 15 years. Individuals are imprisoned on these charges for doing nothing more than criticizing the Communist Party, without any advocacy of violence.
The second trend is the government's harsh crackdown on lawyers and human rights defenders. Over the last two years, several lawyers who represent human rights advocates！including house church members, HIV/AIDS activists, Falun Gong practitioners, and Tibetan and Uyghurs！have been harassed and abused by the government because of their clients and the causes they represent.
Among the most outrageous and cruel examples of abuse by the government is the disappearance of Gao Zhisheng. One of China's greatest human rights lawyers, Mr. Gao endured jail and torture because of his fearless advocacy and commitment to speak the truth as he knew it. Last year, he was then abducted from his home by security agents after his wife and two children left China to seek asylum in the United States.
We now know that for more than a year, security agents moved him from one place to another, and subjected him to psychological and physical abuse. After this Commission and the international community pressed his case, Mr. Gao mysteriously reappeared for two weeks this past Spring. He gave a few interviews, and then security agents abducted him again. His forced "disappearance" by the state reveals a complete disregard for individual rights and the rule of law.
Mr. Gao's photograph and a detailed record of his case can be found in the Commission's newly enhanced political prisoner database. At this time, the Commission's Political Prisoner Database contains about 5,500 records of political prisoners in China. The Commission believes that to promote the rule of law in China, it is vital to publicize and seek the release of these people. It was international pressure that played a critical role in securing the freedom of Nelson Mandela, Lech Walesa, Kim Daejong, and many others who helped lead their countries to greater social justice. Today's imprisoned dissidents are the leading figures of tomorrow's societies built on greater respect for fundamental rights.
China has experienced success on many fronts, including health and education, and the Chinese people justifiably are proud of their successes. But the Chinese government now must lead in protecting the human rights of its people and the integrity of its legal and political institutions with no less skill and commitment than it displayed in opening the doors that allowed the industriousness and entrepreneurial spirit of the Chinese people to lift millions out of poverty. Most importantly, it must open the bars of its jail cells and free its political prisoners, among whom are some of the country's most brilliant and socially-committed citizens, including Liu Xiaobo, Hu Jia, Chen Guangcheng, and many others named in this Commission¨s newly-enhanced Political Prisoner Database and in its Annual Reports.
| Source: -See Summary (2010-08-19 ) |
Posted on: 2010-08-19 |
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| Link directly to this item with: http://www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=146309 |
Beijing Court Sentences American Geologist to Eight Years for State Secrets
July 30, 2010
On July 5, 2010, the Beijing No. 1 Intermediate People's Court sentenced Dr. Xue Feng, a naturalized American citizen, to eight years in prison for allegedly helping the American company he worked for purchase commercial information on oil wells in China. The court said the information was a state secret and the purchase had endangered China's national security. Officials reportedly did not declare the information a state secret until after the transaction occurred; attempted to coerce Dr. Xue into confessing to the crime by allegedly torturing him; violated China's consular agreement with the United States by delaying notification of Dr. Xue's detention and limiting access by American officials; and violated China's Criminal Procedure Law with respect to the handling of Dr. Xue's case. The case also highlights the risk for foreign companies and their employees competing or doing business with China's state-owned enterprises, which can leverage state secrets laws to protect their commercial interests.
Background
Dr. Xue is a geologist who was born in Xi'an city, Shaanxi province, according to a November 19, 2009, Associated Press (AP) article (via Huffington Post). He studied northern China rock formations at the University of Chicago, where he received his Ph.D., the article said. In 2001, a Colorado-based energy consulting firm, IHS Energy (now IHS Inc.), hired Dr. Xue to be the company's Northeast Asia manager, AP reported. In 2005, Dr. Xue allegedly helped IHS purchase from a third party a commercial database containing information on the locations and reserves of 32,115 oil wells and prospecting sites that were mostly owned by PetroChina Co., according to a July 6, 2010, Wall Street Journal (WSJ) article's (registration required) recounting of the court's findings. PetroChina's controlling shareholder is China National Petroleum Corporation (CNPC), a large state-owned enterprise (SOE) under the jurisdiction of the State-owned Assets Supervision and Administration Commission (SASAC), according to PetroChina's Web site. Dr. Xue, a naturalized American citizen, reportedly "disappeared" into official custody in Beijing on November 20, 2007, according to a July 21, 2010, op-ed in the South China Morning Post (via U.S.-Asia Law Institute) by Jerome Cohen, co-director of NYU Law School's U.S.-Asia Law Institute. On July 5, 2010, the Beijing No. 1 Intermediate People's Court sentenced Dr. Xue to eight years in prison plus a fine of 200,000 yuan (US$29,850) for purportedly trafficking state secrets, WSJ reported. (See Article 111 of China's Criminal Law.) Dr. Xue has appealed the verdict, a July 16 WSJ article reported.
Procedural Abuses
During the two-and-a-half year period that Dr. Xue was in custody before his sentencing, Chinese officials reportedly committed numerous procedural abuses. - Consular Notification and Access Violations. Under Article 35(2) of the U.S.-PRC Consular Convention of 1980 Chinese officials were supposed to notify U.S. officials "no later than" four days after "any form of detention" of a U.S. national. In Dr. Xue's case, however, Chinese officials waited three weeks before acknowledging to U.S. officials that Dr. Xue was being held by the Ministry of State Security, according to the Cohen op-ed. Furthermore, the op-ed noted that Chinese officials did not allow American officials to visit with Dr. Xue until the 32nd day of his detention. Article 35(4) of the convention states that officials shall be able to meet with their national "at the latest" two days after notification of the detention.
- Torture Allegations. Dr. Xue reportedly showed American consular officials burn marks on his arms made by investigators, according to the AP article. The op-ed said that police coerced Dr. Xue into "signing false documents," and that in May 2008 an officer injured Dr. Xue by throwing a glass ashtray at his head.
- Criminal Procedure Law Violations. The Ministry of State Security transferred Dr. Xue to the Beijing State Security Bureau detention house on February 4, 2008, and he was formally arrested on April 11, according to the op-ed. Assuming February 4 is the date Dr. Xue was formally detained, officials violated Article 69 of the Criminal Procedure Law (CPL) by not formally arresting him within the 37-day limit. Based on the op-ed, another period of more than seven months passed before state security officials forwarded the case to prosecutors sometime around December 2008. Articles 124, 126, and 127 of the CPL appear to place a seven-month limit on this period. Six months passed between December 2008 and Dr. Xue's indictment in May 2009, according to the op-ed. Articles 138 and 140 of the CPL would appear to limit this period to three-and-a-half months.
The Beijing No. 1 Intermediate People's Court held the first hearings in Dr. Xue's trial in July 2009, according to AP, meaning the court had agreed to accept the case before this date. Article 168 of the CPL says a court has up to two-and-a-half months after accepting a case to pronounce a judgment, and Article 166 allows for one-month postponements if prosecutors request supplementary investigations. Cohen said prosecutors had requested two postponements, which would have placed the outer limit between the court's accepting the case and pronouncing the judgment at four-and-a-half months. The judgment was not pronounced until July 2010. As the op-ed noted: "As winter turned to spring, [the court] ran out of legal grounds for further delays and no longer attempted explanation."
- Access to Counsel Violations. According to the op-ed, authorities denied Dr. Xue access to counsel for more than a year.
State Secrets！Impact on Rule of Law and Foreign Companies Doing Business in China
Dr. Xue's case highlights several problems with China's state secrets regime！problems that make it susceptible to abuse if Chinese officials wish to use it to protect commercial interests. - Retroactive Classification. It was only after the transaction took place that officials classified the information as a state secret, according to a July 4 Dui Hua article.
- Commercial Information as State Secret. The line between commercial information and state secrets is blurry under Chinese law. The state secrets law currently in effect provides wide latitude for officials to declare information a state secret, including "secrets in national economic and social development," "secrets concerning science and technology," and "other matters that are classified as state secrets by the state secret-guarding department." Cohen said that in Dr. Xue's case "there was no meaningful way to clarify the line between common, commercial information and state secrets." The blurring of commercial information and state secrets is especially problematic when dealing with SOEs. For example, Jiang Jiemin, General Manager of CNPC, the SOE that controls PetroChina, said in June 2010 that oil is an "important strategic asset," and that the company's work to protect its secrets bears on China's national security and social stability, according to the company's Web site. Chinese regulations make explicit that some commercial secrets of SOEs shall be considered state secrets. In March 2010, SASAC issued Interim Provisions on the Protection of Commercial Secrets of Central Enterprises, Article 3 of which requires central-level SOEs to protect "the operating information and technical information which belongs within the scope of state secrets." According to SASAC's Web site, CNPC is a central-level SOE and is thus subject to this requirement. In addition, according to an April 30 21st Century Business Herald article, since SOEs, especially central SOEs, have "a certain administrative rank," they may themselves possess the power to declare information a state secret.
Dr. Xue's case follows another case involving the Anglo-Australian mining firm Rio Tinto. In July 2009 four employees of that firm were charged with stealing state secrets shortly after Rio Tinto pulled out of a proposed $19.5 billion deal with a major state-owned firm. The charges were reduced to commercial bribery and commercial secrets infringement the following month.
- Lack of Meaningful Judicial Review. In criminal cases involving state secrets, Chinese courts do not have the power to question an agency's classification of information as a state secret, according to a 2007 Human Rights in China report on China's state secrets system. Furthermore, in cases where endangering national security is alleged, such as cases involving the charge of inciting subversion, courts make little to no assessment of the actual harm to national security. In Dr. Xue's case, the July 6 WSJ article reported that the court provided few details regarding the damage the transaction caused to China's national security.
| Source: -See Summary (2010-07-15 / English / Free) |
Posted on: 2010-08-19 |
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| Link directly to this item with: http://www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=144203 |
Ministry of Public Security Launches Seven-Month Nationwide "Strike Hard" Campaign
August 11, 2010
In June 2010, the Ministry of Public Affairs launched a seven-month "strike hard" campaign aimed at quelling "crimes of extreme violence." The official campaign report specifically calls on public security officers to "strengthen strike hard measures" and to "increase efforts to resolve social conflicts." Chinese and international media outlets have noted that the campaign announcement follows highly publicized incidents, including a series of school attacks. Critics of the "strike hard" campaigns claim that the nationwide campaigns signal a step back for human rights protections in China. Some Chinese scholars and lawyers have expressed concerns that efforts to meet law enforcement targets under "strike hard" campaigns lead to wrongful convictions and abuses of criminal procedure.
MPS Launches "2010 Strike Hard" Anticrime Campaign
On June 13, 2010, the Ministry of Public Security (MPS) announced that public security agencies across the country have launched a seven-month "strike hard" campaign (known in Chinese as yanda) to "severely crack down on every type of serious violent crime." According to a June 15, 2010, China Daily article, the campaign focuses on "extreme violent crime, gun and gang crime, telecom fraud, human trafficking, robbery, prostitution, gambling and drugs." Amidst reports of rising crime and high-profile cases of public violence, the MPS announcement states that public security officers must "pinpoint the source, underlying and basic problems that influence local public security." According to the China Daily article, Vice Minister of Public Security Zhang Xinfeng told a national meeting that the campaign aims to target destabilizing developments within China: "China, during a process of social and economic transformation, is facing emerging social conflicts and new problems in social security." The MPS announcement also calls on public security officers to "strive to bring about a favorable public order environment for the successful hosting of the Shanghai World Expo and the Guangzhou Asian Games."
Striking Hard Against Rising Crime and Emerging Social Conflicts
The 2010 "strike hard" campaign comes as China's violent crime reportedly rose in 2009, according to statistics from the 2010 Rule of Law Blue Book (published by Chinese Academy of Social Sciences (CASS)), which were reprinted in a March 1 People's Daily article. The article reported that "violent crimes such as homicide, rape, and robbery saw sizable growth in 2009, the first increase of such cases since 2001." According to a July 1 Oriental Outlook article, the CASS 2010 Rule of Law Blue Book showed that "criminal cases" [xingshi anjian] increased by more than 10 percent between January and October 2009, while "public security cases" [zhi'an anjian] increased by about 20 percent in the same period. Chinese and international media outlets have also connected the "strike hard" campaign announcement to publicity surrounding other social tensions and conflicts in China. A June 14 Radio Free Asia article, for instance, reported that unspecified "media" outlets have noted that the strike hard campaign！the "longest in China in recent years"！follows recent high-profile school attacks and a series of violent incidents involving law enforcement officials. According to a June 15 Associated Press article (via the Boston Globe), the crackdown appears to be a response to unspecified "experts" who say the crimes appear to be more the result of "simmering and widespread frustration over the growing wealth gap, corruption and too few legal channels for people who have grievances.￣
Background: China's "Strike Hard" Campaigns
In response to an increase in crime and corruption over the past 30 years, the Chinese government has periodically instituted national crackdowns against crime！referred to as "strike hard" anticrime campaigns. (Chinese governments at the provincial-level and below often hold similar "strike hard" campaigns.) The "2010 strike hard campaign" is the fourth round of nationwide "strike hard" campaigns since 1983, according to the June 15 China Daily article. China previously conducted similar national anticrime campaigns in 1983, 1996, and 2001. The China Daily article notes that "[d]uring the campaign, police usually take tough measures against crimes and judicial authorities hand down swifter and harsher penalties." As a result, some Chinese scholars and lawyers have expressed concerns that efforts to meet law enforcement targets under the campaigns have led to wrongful convictions and abuses of criminal procedure. In a July 3 Radio Free Asia interview, Heilongjiang-based lawyer Wei Liangyue described the shortcomings of the "strike hard" policies:
[It] should be said that the most fundamental law of our country is the Constitution; the Constitution also clearly stipulates that the People's Republic of China implements the rule of law and establishes a socialist country ruled by law. However, this type of "strike hard" [campaign] often occurs outside of rule of law and legal provisions！and may even breach the boundaries of the law to carry out a crackdown on crime.
According to the July 1 Oriental Outlook article, some Chinese legal scholars have criticized previous "strike hard" campaigns, whose "severity and speed" have led to criminal procedure violations. The Oriental Outlook article states "the procedural rights of criminal suspects and defendants to a certain extent are deprived！which is not consistent with the spirit of the rule of law."
The "2010 strike hard campaign" signals that the leadership may be backtracking on recent policy changes affecting criminal justice policy and human rights protections. On March 13, 2007, a People's Daily article reported that China's leadership had adopted the criminal justice policy of "balancing severe punishment with leniency" (known in Chinese as kuanyan xiangji) in what appeared to be "a deliberate move away from the 'strike hard' anti-crime policy that has been in place in China for more than two decades." In the 2007 article, Professor Liu Hainian of CASS stated, "Handling all criminal offenses under the sole approach of 'strike hard' is not in the spirit of building a harmonious society, which is based on equity and justice." According to the July 1, 2010, Oriental Outlook article, a number of legal scholars interviewed expressed "great surprise" to see "strike hard" in the news again, since they believed "the term "strike hard" had already faded out of Chinese criminal justice history."
For general information on the national "strike hard" campaign in 2001, see p. 30 of the CECC 2002 Annual Report.
| Source: -See Summary (2010-07-08 ) |
Posted on: 2010-08-19 |
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| Link directly to this item with: http://www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=143701 |
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