Gao Zhisheng Held Incommunicado, Without Charge or Access to His Defense Lawyer

The Beijing Municipal Public Security Bureau (PSB) continues to hold Beijing lawyer Gao Zhisheng without a formal charge, and has denied him access to a lawyer on the grounds that his case involves "state secrets," according to a September 25 Radio Free Asia (RFA) report (in Chinese). More than 10 plainclothes police officers abducted Gao on August 15 from his sister's home in Dongying city, Shandong province, where he was visiting his critically ill brother-in-law, according to an August 17 RFA report (in Chinese). Beijing PSB officials confirmed through an August 18 Xinhua report (via People's Daily) that they had detained Gao for questioning in relation to his "suspected involvement in criminal activities." Yang Maodong (who uses the pen name Guo Feixiong), a former legal advisor to Gao's law firm, speculated in an August 19 Ming Pao article (in Chinese, subscription required) that authorities are likely to charge Gao with "subverting state power" or other crimes that the Chinese government characterizes as "endangering state security" under the Criminal Law.

Gao, former head of the Beijing Shengzhi Law Firm, has represented numerous activists, religious leaders, and writers. In 2005, Gao took part in the criminal defense of Guo Feixiong, Shanghai lawyer Guo Guoting, house church leader Xiao Yunfei (the wife of Pastor Cai Zhuohua), democracy activist Xu Wanping, and Internet author Zheng Yichun. Authorities ultimately convicted Xu Wanping and Zheng Yichun for "inciting subversion of state power," a crime under Article 105, Paragraph 2, of the Criminal Law. They refused to grant Gao access to Xu Wanping on the grounds that Xu's case involved state secrets, and shut down Gao's law practice while the appeal of Zheng Yichun's conviction was still pending. The Beijing Justice Bureau ordered the shutdown on November 4, 2005, less than three weeks after Gao issued an open letter to President Hu Jintao and Premier Wen Jiabao to expose widespread persecution, including torture, of Falun Gong practitioners.

Abuse of the "State Secrets" Exception

RFA reported (in Chinese) on September 21 that the 37-day limit for detaining a suspect without charge (provided for under Article 69 of the Criminal Procedure Law (CPL)) had already passed in Gao's case. Mo Shaoping, Gao's defense lawyer, said in a September 25 interview with the RFA that on September 22, the Beijing PSB rejected his request to meet with Gao, citing to the exception under Article 96 of the CPL in cases involving "state secrets." Article 96 of the CPL provides a general guarantee that criminal defense lawyers can meet with their client and find out what crime the investigating agency suspects their client of committing. Mo commented: "[The Beijing PSB] has not explicitly told us what crime they suspect Gao Zhisheng of committing, so we have no way of determining whether it may involve state secrets." According to a September 21 Voice of America report (in Chinese), Mo also reported that neither he nor Gao’s family have received a formal notice of detention, and that without this notice, they could not determine where Gao is being held or which agencies are responsible for investigation in his case. Article 64 of the CPL requires the PSB to produce a detention warrant, and to notify Gao's family of the detention location and reasons for detention, unless notification "would hinder the investigation."

Shandong lawyer Li Jianqiang, who has represented at least one other political prisoner accused of "subverting state power," said in a February 2006 interview with the Epoch Times:

In political cases in mainland China, it is typical to not allow the lawyer to get involved during the period of investigation; this is a tacitly understood, unwritten rule. Public security typically uses [the excuse of involving state secrets]. Actually, in many cases the issue doesn't exist, but under present conditions it is not even possible to verify whether a case involves state secrets.

The UN Working Group on Arbitrary Detention (UNWGAD) has identified the Chinese government's use of the "state secrets" exception as an area of particular concern, and stated in a 2004 report on China (available on the UNWGAD's Country Visits Web page): "Where the case concerns charges of endangering State secrets, the rights of the defence are even further restricted [than normal]." The UNWGAD report recognizes that Article 96 of the CPL requires that in cases involving state secrets, a criminal suspect must obtain approval from the investigating agency to appoint or meet with a lawyer. However, the report concludes: "In practice, this provision appears to give rise to numerous abuses, either because the notion of State secret is not defined with sufficient precision, or because it is interpreted in an extensive manner."