2020年5月7日，联合国八个人权特别程序 联合向中国政府发函，严重关切中国政府在新冠疫情期间对言论自由的打压，惩罚了包括医疗专业人员、人权维护者在内的个人，尤其关注到郭泉和许志永在此背景下被控“煽动颠覆国家政权罪”，后者还被置于指定居所监视居住之下的情况。
- 八个特别程序分别是：人权维护者处境问题特别报告员、任意拘留问题工作组、强迫或非自愿失踪问题工作组、增进和保护见解和言论自由权问题特别报告员、和平集会和结社自由权问题特别报告员的任务、人人有权享有能达到的最高标准身心健康问题特别报告员、在反恐时促进和保护人权和基本自由问题特别报告员、酷刑和其他残忍、不人道或有辱人格的待遇或处罚问题特别报告员；
- 2020年7月6日，中国政府回复了这封函件，请点击查看
（以下为节选）
郭泉
2020年1月，郭泉先生据称在微信上批评政府对COVID-19疫情的回应。2020年1月31日，郭泉先生被南京警方人员以未披露的罪名带到南京第二看守所。2020年2月26日，郭先生的一名亲属称，他被拘留的罪名是 “煽动颠覆国家政权罪”，根据中国《刑法》第105条第2款，该罪可判处最低5年监禁。
由于受COVID-19疫情的影响，郭先生的律师和家人无法与他见面。然而，被控 “煽动颠覆国家政权罪 “的个人经常被拒绝家人或律师的探视，理由是 “会危及国家安全”。律师们尚未向当局提出关于不便利会见的申诉。
许志永先生
据报道，2019年12月26日，在关于厦门会议的一系列人权打压之后，许志永先生开始在国内隐藏。据称，在2019年12月7日和8日的周末，许志永先生在厦门参加了一次非正式的周末聚会，参加聚会的有多位维权人士和学者。聚会的目的是讨论中国的公民社会和政治。聚会结束后，一些人权维护者被逮捕，其中4人被强迫失踪。
2019年12月31日，许先生的家被便衣人员趁其不在时搜查。搜查时，没有向在屋内的人出示搜查证。据称，警察查获了一个保险柜，里面有他的房契、钱和其他物品。还没收了一些其他个人物品、书籍和信件。
2020年2月4日，许先生在躲藏期间发表了一篇名为《劝退书》的文章，对政府处理COVID-19疫情的做法提出批评，认为习近平主席应该辞职。
2020年2月15日，许先生在广州市一熟人家中被警方找到，并被警方带到一个秘密地点。他被置于指定地点监视居住之下，人权机制认为这是一种强迫失踪的形式。许先生尚未被正式逮捕，但据称被控 “煽动颠覆国家政权”。
许先生的家人自他躲藏起来后，一直在河南省开封市的家中受到监视，2020年2月16日，警方通知他们，由于许先生已被找到，他们将不再受到监视。没有将他的被捕情况、被指控的罪行或拘留地点告知其家人。
2020年2月24日，许先生的家人给昌平区东小口派出所打电话，该派出所离许先生在北京的住所很近(离他的家约650公里)。他们被告知，除非第二天亲自到场并出示许先生的身份证，否则无法获得任何有关此案的信息。据称，2020年2月25日，开封国安人员来到许先生家，告知他们许先生已被置于RSDL之下。他们没有被告知他涉嫌犯下的罪行，并被告知不要聘请律师，因为国家将为他指派律师。
2020年3月5日，许先生的一位亲属前往北京东小口派出所。值班警察告诉她，通知书已经寄给了家属，但家属还没有收到。随后几天，她到北京市公安局昌平区分局查询未果，又两次到派出所查询。2020年3月7日，她获准与东小口派出所所长见面。所长告诉她，许先生因涉嫌 “煽动颠覆国家政权罪 “被关押，由于案情严重，他不可能见律师。
………………
根据人权理事会规定的任务，我们有责任设法澄清提请我们注意的所有案件，因此，我们谨请你就以下事项提出意见：
- 请就上述指控提供任何补充资料和/或评论。
- 请提供资料，说明采取了哪些措施，确保医疗专业人员、人权维护者和记者能够在不受限制、不受报复、威胁或恐吓的情况下行使其言论自由权，包括在新冠疫情的情形下。
- 请说明中国网信办最近采取的行动，包括新的《网络信息内容生态环境治理规定》，如何与中国的国际人权法义务相一致。
- 请说明逮捕和拘留郭泉和许志永的法律依据，并解释这些措施如何符合《世界人权宣言》第九条规定的有关人身自由和安全权的国际标准。请提供资料说明许志永先生的拘留地点。
- 请说明采取了哪些措施确保郭泉和许志永的身心健康，特别是采取了哪些措施确保他们的拘留地点有足够的社会隔离。
- 请说明许志永是否有机会接触他选择的律师，如果没有，请解释原因。
PALAIS DES NATIONS • 1211 GENEVA 10, SWITZERLAND
Mandates of the Special Rapporteur on the situation of human rights defenders; the Working Group on Arbitrary Detention; the Working Group on Enforced or Involuntary Disappearances; the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the rights to freedom of peaceful assembly and of association; the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
We have the honour to address you in our capacities as Special Rapporteur on the situation of human rights defenders; Working Group on Arbitrary Detention; Working Group on Enforced or Involuntary Disappearances; Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; Special Rapporteur on the rights to freedom of peaceful assembly and of association; Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; and Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, pursuant to Human Rights Council resolutions 34/5, 42/22, 36/6, 34/18, 41/12, 42/16, 40/16 and 34/19.
In this connection, we would like to bring to the attention of your Excellency’s Government information we have received concerning the penalties faced by individuals during the COVID-19 outbreak, in particular the arbitrary detention of Mr. Guo Quan and the enforced disappearance Mr. Xu Zhiyong, as a result of the legitimate exercise of their right to freedom of expression.
Mr. Guo Quan used to be an associate professor at Nanjing Normal University before he lost his job as a result of his human rights activism. He established the China Xinmin Party (New People’s Party) in 2007, which allegedly has around ten million members. China Xinmin Party pledges to represent those who have been victims of forced evictions from their homes or other threats from the authorities. Mr. Guo Quan was previously detained in 2008 on the charge of “subversion of state power” and released in 2018. The sentence was allegedly related to his work at China Xinmin Party and writings that were critical of the Governmental system. Mr. Guo was the subject of a previous communication addressed to your Excellency’s Government on 19 October 2009 (UA CHN 30/2009). We thank your Excellency’s Government for the reply received on18 January 2010.
Mr. Xu Zhiyong is a human rights defender and legal activist that has worked since 2003 to promote non-violence, respect for the rights of individuals facing the death penalty, provide legal assistance to the homeless and advocate for legal reform in China. He founded the “Open Constitution Initiative”, which later gave rise to the “New
Citizen’s Movement”, a loose network of human rights defenders, academics, lawyers and other activists who meet to discuss human rights, political reform, social justice and democracy. Mr. Xu was previously detained in 2013, along with other members of the New Citizen’s Movement, and released in July 2017. Mr. Xu has been the subject of five communications sent to your Excellency’s Government (UA CHN 12/2013, UA CHN 8/2013, UA CHN 29/2010, UA CHN 21/2009 and UA CHN 10/2006). We thank your Excellency’s Government for the replies received to some of these communications. We regret not having received a response to UA CHN 29/2010. Mr. Xu’s case is also related to the arrest of a number of human rights defenders in December 2019, communicated in UA CHN 6/2020. We thank your Excellency’s Government for the reply received on 2 April 2020 and look forward to receiving the translation.
According to the information received:
Many of those exercising their right to free speech online in relation to the COVID-19 outbreak and pandemic have allegedly faced retaliation from the authorities. On 21 February 2020, the Chinese Government announced that the police had intervened in 5,111 undisclosed cases of alleged “fabricated and deliberately disseminated false and harmful information”. We have received information concerning 897 individuals facing retaliation for publishing information online about the COVID-19 virus. As of 26 March 2020, there were 116 individuals who had been arbitrarily detained, nine in criminal detention and five who had been forcibly disappeared. The remaining individuals had been fined, threatened, subject to interrogations, required to give forced confessions, given educational reprimand or placed in administrative detention. Educational reprimand and administrative detention were the most frequent punishments for individuals charged with “spreading misinformation” or “disrupting public order”.
The Chinese social media platform WeChat was the medium most cited by the authorities when penalising those for speaking online about the COVID-19 outbreak. Some users had their accounts deleted as a result of the opinions expressed online. The deletion of WeChat accounts allegedly caused severe personal, professional and social risk, as the platform is the principal, and sometimes the only, method of payment for food delivery and travel in areas subject to heavy social distancing measures.
Background
In December 2019, COVID-19 was first identified by Chinese doctors as “pneumonia of unknown cause”. On 30 December 2019, the Wuhan Health Commission alerted the public to the outbreak of this pneumonia of unknown cause, but also allegedly sent a directive to medical workers, which prohibited them from spreading any additional information about the virus.
On 1 January 2020, a day after the authorities informed the World Health Organisation of the unknown virus, the Wuhan Public Security Bureau announced that it had punished eight individuals for “spreading false information” online
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about the outbreak. On that same day, WeChat allegedly began to censor keywords related to the virus, following another Chinese social media application called “YY”, which began to censor such content the day before.
On 3 January 2020, a group of medical professionals was allegedly arrested for alerting the media about the virus during the previous four days.
According to the information received, medical staff started to become infected with the virus as of 5 January 2020. On 9 January 2020, State-controlled media allegedly continued to claim that there was no evidence of human-to-human transmission of the virus, which by that time had been successfully identified as a novel strain of the coronavirus by an expert evaluation team of the Chinese National Health Commission. By mid-January, 500 medical staff had been infected. However, the Wuhan Health Commission informed the Central Government that there had been no new coronavirus cases between 3 and 16 January 2020. The authorities would claim later that this was not an accurate statement. A number of health professionals, including one from the group of medical professionals that had been arrested on 3 January 2020, subsequently lost their lives as a result of the COVID-19 infection.
On 20 January 2020, the authorities publicly acknowledged for the first time that the so-called novel coronavirus could be transmitted from human to human. Up to 20 January 2020, ten individuals had been punished for their online expressions about the viral outbreak. However, between 21 and 31 January 2020, allegedly 396 individuals were reportedly penalised.
On 28 January 2020, an article from a judge published on the social media account of the Supreme People’s Court of China noted that if law enforcement had not so promptly quelled pertinent health information, China might be in a better position to fight the virus.
On 5 February 2020, the Cyberspace Administration of China issued a statement to request local cyberspace administrative offices to tackle “harmful content”, including videos of the COVID-19 epidemic that contributed to “spread[ing] panic”.
On 1 March 2020, the “Provisions on the Governance of the Online Information Content Ecosystem” came into effect. In addition to reaffirming the criminal law provisions in limiting freedom of expression, the new regulations, issued by the Cyberspace Administration of China, instructed content producers to not publish information with “exaggerated titles” or “sensationalising gossip”. Those considered in breach of the new regulations can have their social media accounts shut down or criminal charges brought against them.
According to the information received, foreign journalists have been facing increased surveillance, personal harassment and harassment of sources since the outbreak of the virus.
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A number of media reporting on the crisis, including interviews with medical doctors or health department directors, have reportedly been censored. On 27 March 2020, 13 foreign journalists were ordered to leave China.
In several countries abroad, Chinese embassies reportedly issued statements denouncing “irresponsible” reporting from journalists and alleged attempts to “politicise” the epidemic and spread “lies” about China’s handling of the COVID- 19 outbreak.
On 17 April 2020, Chinese authorities revised the official death toll in the city of Wuhan, Hubei Province, adding roughly 50% more cases than reported previously. The adjustments were reportedly due to updated reporting methods of deaths that occurred outside of hospitals.
Mr. Guo Quan
In the month of January 2020, Mr. Guo Quan allegedly criticised the Government’s response to the COVID-19 outbreak on WeChat. On 31 January 2020, Mr. Guo Quan was taken by members of the Nanjing police to Nanjing No. 2 Detention Centre on undisclosed charges. On 26 February 2020, a relative of Mr. Guo alleged that his detention was based on the charge of “inciting subversion of State power”, which according to article 105 (2) of China’s Criminal Code is punishable with a minimum of five years in prison.
Mr. Guo’s lawyers and family have not been able to meet with him due to restrictions in place as a result of the COVID-19 pandemic. However, individuals charged with “inciting subversion of state power” are frequently denied visits from their family or lawyers on the grounds that it would “endanger State security”. The lawyers have not yet filed a complaint to the authorities for not facilitating a meeting.
Mr. Xu Zhiyong
On 26 December 2019, Mr. Xu Zhiyong reportedly went into hiding following the 2019 end-of-year crackdown on human rights defenders in the city of Xiamen. During the weekend of 7 and 8 December 2019, Mr. Xu allegedly attended an informal weekend gathering in Xiamen which was attended by various human rights defenders and academics. The aim of the gathering was to discuss civil society and politics in China. After the gathering, a number of human rights defenders were arrested, and four of them were forcibly disappeared.
On 31 December 2019, Mr. Xu’s home was searched by officers in plainclothes while he was not present. No warrant was presented to the person who was in the house at the time of the raid. The police officers allegedly seized a safe which contained his deeds to the house, money and other items. A number of other personal items, books and letters were also confiscated.
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On 4 February 2020, while in hiding, Mr. Xu released an article called “Dear Chairman Xi; it’s Time for You to Go”. In the article, Mr. Xu was critical of the Government’s handling of the COVID-19 outbreak, arguing that President Xi Jinping should resign.
On 15 February 2020, Mr. Xu was located at the home of an acquaintance in the city of Guangzhou and taken by the police to an undisclosed location. He was placed under Residential Surveillance in a Designated Location (RSDL), which is regarded by human rights mechanisms as a form of enforced disappearance. Mr. Xu has not yet been formally arrested, but is allegedly accused of “inciting subversion of State power”.
Mr. Xu’s family, who were under surveillance in their home in Kaifeng City, Henan Province, since he had gone into hiding, were informed by police on 16 February 2020 that they would no longer be monitored as Mr. Xu had been found. No information about the status of his arrest, the crimes he was accused of committing or his place of detention was communicated to his family.
On 24 February 2020 Mr. Xu’s family called Dongxiaokou Police Station in the Changping District, close to Mr. Xu’s residence in Beijing (approximately 650 km from his family home). They were informed that they could not be provided with any information on the case unless they presented themselves the following day with Mr. Xu’s ID card. On 25 February 2020, Kaifeng national security officers allegedly presented themselves at the family’s home and informed them that Mr. Xu had been placed under RSDL. They were not informed on the crimes he had allegedly committed, and were told not to hire a lawyer, since the State would assign a State counsel to him.
On 5 March 2020, a relative of Mr. Xu travelled to the Dongxiaokou Police Station in Beijing. She was informed by police officers on duty that a notice had already been mailed to the family, although the family had not yet received it. Over the following days she made an unsuccessful inquiry at the Beijing Public Security Bureau Changping District Sub-Bureau and paid two more visits to the police station. On 7 March 2020 she was permitted to meet with the Director of Dongxiaokou Police Station. He informed her that Mr. Xu was being held on suspicion of “inciting subversion of state power” and that it would be unlikely that he would have access to his lawyer due to the severity of the case.
While we do not wish to prejudge the accuracy of the information received, we are deeply concerned by allegations that human rights defenders have been punished and restrictions have been placed on their freedom of expression online in light of the COVID-19 outbreak. We are further concerned that the aforementioned individuals have been charged with “inciting subversion of the State power” in this context. We are concerned that the Chinese authorities punished individuals, including medical professionals, who attempted to inform the public on the spread of the virus where there may not have been widely available State figures. We raise our serious concerns that some steps taken by China to tackle the pandemic may be regarded as a clampdown on
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freedom of expression inconsistent with international human rights law, including with regard to the right of access to information. It is deeply concerning that a large number of medical professionals, civil society actors and human rights defenders allegedly face fines, arrests and enforced disappearance for disseminating information online about the virus and the Government’s response, facilitating public debate on the pandemic or expressing dissenting views.
We are furthermore concerned about recent actions reportedly taken by the Government of China, which appear to restrict freedom of expression online. The statement made by the Cyberspace Administration of China on 5 February 2020 and the new regulations issued by that same authority which came into effect on 15 March 2020, appear to broaden the scope for which freedom of expression online can be considered illegal. We are concerned that the law may further identify speech which could be considered illegal, and human rights defenders, journalists and other individuals may be criminalised, or have their professional and personal activities hindered, as a result.
We again reiterate our alarm at the continued use of Residential Surveillance in a Designated Location. We have raised serious concerns over its use on no fewer than eight occasions in just over three years, most recently with regard to four human rights defenders held under RSDL for participating in the December gathering which Mr. Xu also attended (UA CHN 6/2020). RSDL, as a form of enforced disappearance, without judicial oversight, without formal charges in conditions amounting to incommunicado detention or solitary confinement, contravenes the right of every person not to be arbitrarily deprived of his or her liberty and to challenge the lawfulness of detention before a court without delay. Without access to legal counsel or their families, those placed under RSDL are at risk of cruel, inhuman or degrading treatment or punishment, including torture. We express our deep concern that RSDL is used to silence dissent and prevent human rights defenders from carrying out their legitimate activities.
In connection with the above alleged facts and concerns, please refer to the Annex on Reference to international human rights law, attached to this letter, which cites international human rights instruments and standards relevant to these allegations.
As it is our responsibility, under the mandates provided to us by the Human Rights Council, to seek to clarify all cases brought to our attention, we would be grateful for your observations on the following matters:
- Please provide any additional information and/or comment(s) you may have on the above-mentioned allegations.
- Please provide information on the measures taken to ensure that medical professionals, human rights defenders and journalists can exercise their right to freedom of expression without restriction and without retaliation, threats or intimidation of any kind, including in relation to the COVID-19 outbreak.
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- Please provide information on how recent actions taken by the Cyberspace Administration of China, including the new Provisions on the Governance of the Online Information Content Ecosystem, are consistent with China’s obligations under international human rights law.
- Please provide information on the legal grounds for the arrest and detention of Mr. Guo and Mr. Xu, and explain how these measures are compatible with international standards related to the right to liberty and security of the person as enshrined in article 9 of the Universal Declaration of Human Rights. Please also provide information on Mr. Xu Zhiyong’s place of detention.
- Please indicate what measures have been taken to ensure the physical and psychological integrity of Mr. Guo and Mr. Xu, particularly on the measures taken to ensure that there is sufficient social distancing in their place of detention.
- Please indicate whether Mr. Xu had had access to a lawyer of his choice, and if not, please explain why.
We would appreciate receiving a response within 60 days. Thereafter, this communication and any response received from your Excellency’s Government will be made public via the communications reporting website. They will also subsequently be made available in the usual report to be presented to the Human Rights Council.
While awaiting a reply, we urge that all necessary interim measures be taken to halt the alleged violations and prevent their re-occurrence and in the event that the investigations support or suggest the allegations to be correct, to ensure the accountability of any person(s) responsible for the alleged violations.
We would like to inform your Excellency’s Government that having transmitted an allegation letter to the Government, the Working Group on Arbitrary Detention may transmit the case through its regular procedure in order to render an opinion on whether the deprivation of liberty was arbitrary or not. Such letters in no way prejudge any opinion the Working Group may render. The Government is required to respond separately to the allegation letter and the regular procedure.
Please accept, Excellency, the assurances of our highest consideration.
Mary Lawlor
Special Rapporteur on the situation of human rights defenders
Leigh Toomey
Vice-Chair of the Working Group on Arbitrary Detention
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Luciano Hazan
Chair-Rapporteur of the Working Group on Enforced or Involuntary Disappearances
David Kaye
Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
Clement Nyaletsossi Voule
Special Rapporteur on the rights to freedom of peaceful assembly and of association
Dainius Puras
Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
Fionnuala Ní Aoláin
Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism
Nils Melzer
Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
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Annex
Reference to international human rights law
In connection with above alleged facts and concerns, we would like to draw the attention of your Excellency’s Government to the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), signed by China on 5 October 1998.
In particular, without expressing at this stage any opinion on the facts of the case and on whether the reported detentions were arbitrary or not, we would like to appeal to your Excellency’s Government to take all necessary measures to guarantee the right of the abovementioned individuals not to be deprived arbitrarily of their liberty and to fair proceedings before an independent and impartial tribunal, in accordance with articles 9, 10 and 11 of the UDHR.
We would like to refer to article 19 of the UDHR, which guarantees the right to freedom of expression. While certain restrictions may be placed on freedom of expression, for the protection of national security or of public order (ordre public), or of public health or morals, they may not be arbitrarily imposed on those sharing legitimate concerns, observations or opinions on health or Government policy. While China is yet to ratify the ICCPR, As a signatory to the ICCPR, China has an obligation to refrain from any acts which would defeat the object and purpose of the Covenant prior to its entry into force (article 18 of the 1969 Vienna Convention on the Law of Treaties).
With respect to the charges on “inciting subversion of State power” to restrict the legitimate exercise of freedom of expression, we would like to underline that any restriction on expression or information that a Government seeks to justify on grounds of national security and counter terrorism must have the genuine purpose and demonstrable effect of protecting a legitimate national security interest (CCPR/C/GC/34). We would like to stress that counter terrorism legislation with penal sanctions should not applied to individuals peacefully exercising their rights to freedom of expression and freedom of peaceful association and assembly. These rights are protected under the UDHR, and their non-violent exercise cannot be regarded as constituting a criminal offence. We would like to refer to Human Rights Council resolution 22/6, which urges States to ensure that measures to combat terrorism and preserve national security are in compliance with their obligations under international law and do not hinder the work and safety of individuals, groups and organs of society engaged in promoting and defending human rights. (OP 10). We would also like to remind your Excellency’s Government that the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism urged States to ensure that their counter-terrorism legislation is sufficiently precise to comply with the principle of legality, so as to prevent the possibility that it may be used to target civil society on political or other unjustified grounds. (A/70/371, para 46(c)).
We would also like to refer to China’s obligations under article 12 (right to health) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which it ratified on 27 March 2001. The right to health is an inclusive right (General Comment
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No. 14 of the Committee on Economic, Social and Cultural Rights, E/C.12/2000/4, para 11) closely linked, and dependent on, other rights, including the right of access to information (para 3). The right to health encompasses the right to request, receive and disseminate information and ideas about health-related issues (para 12.b.iv); violations of the right to health result from, inter alia, the deliberate withholding or misrepresentation of information vital to health protection or treatment (para. 50). In addition, under the right to health, States should respect, protect, facilitate and promote the work of human rights advocates and other members of civil society with a view to assisting in the realisation of this right (para. 62).
Furthermore, we would like to refer to Human Rights Council resolution 24/5, which “[r]eminds States of their obligation to respect and fully protect the rights of all individuals to assemble peacefully and associate freely, online as well as offline, including […] persons espousing minority or dissenting views or beliefs [and] human rights defenders […], seeking to exercise or to promote these rights and to take all necessary measures to ensure that any restrictions on the free exercise of the rights to freedom of peaceful assembly and of association are in accordance with their obligations under international human rights law.” Digital technology is integral to the exercise of the rights of peaceful assembly and association. Technology serves both as a means to facilitate the exercise of the rights of assembly and association offline, and as virtual spaces where the rights themselves can be actively exercised. Indeed, such technologies are important tools for organizers who seek to mobilize a large group of people in a prompt and effective manner, and at little cost, and also serve as online spaces for groups of people that are marginalized by society and are confronted with restrictions when operating in physical spaces (A/HRC/41/41, para. 11).
We would also like to refer your Excellency’s Government to the fundamental principles set forth in the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, also known as the UN Declaration on Human Rights Defenders. In particular we would like to refer to article 6, which guarantees the right to seek, obtain, receive and hold information about all human rights and fundamental freedoms as well as freely publish, impart or disseminate views, information and knowledge and observance of human rights and fundamental freedoms.
With regard to the enforced disappearance of Mr. Xu Zhiyong, the United Nations Declaration on the Protection of All Persons from Enforced Disappearances recognises the right to be held in an officially recognised place of detention, in conformity with national law and to be brought before a judicial authority promptly after detention in order to challenge the legality of the detention. The same Declaration establishes the obligation of the detaining authorities to promptly make available accurate information on the detention of persons and their place of detention to their family, counsel or other persons with a legitimate interest (article 10). The Declaration also establishes the obligation to maintain in every place of detention an official up-to-date register of detained persons (article 10(3)) and provides that no circumstances whatsoever, whether a threat of war, a state of war, internal political instability or any other public emergency, may be invoked to justify enforced disappearances (article 7).
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China has expressed on several occasions its support for the international community’s efforts to eliminate and prevent enforced disappearances, including at the Human Rights Council. The Working Group on Enforced or Involuntary Disappearances observes that RSDL, where it consists of placing individuals under incommunicado detention for investigation for prolonged periods without disclosing their whereabouts amount to secret detention and is a form of enforced disappearance (A/HRC/36/39, para. 71 and A/HRC/19/58/rev.1 pages 36-37).
We would like to remind your Excellency’s Government that the Committee Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in its Concluding Observations on the Fifth Periodic Report of China (CAT/C/CHN/CO/5) particularly para. 13 (d) recommended that China “repeal the provisions in the Criminal Procedure Law that allow restrictions to the right to counsel and to notifying relatives in cases of “endangering State security”, “terrorism”, serious “bribery” or cases involving “State secrets””. Para. 15 also recommended that the State party repeal, as a matter of urgency, the provisions of the Criminal Procedure Law that allow suspects to be held de facto incommunicado, at a designated location, while under residential surveillance. Pending the repeal of that provision, the Committee recommended to the State party that it ensures that Procuratorate promptly review all the decisions on residential surveillance taken by public security officers and ensure that detainees who are designated for potential prosecution are charged and tried as soon as possible and those who are not to be charged or tried are immediately released. If detention is justified, detainees should be formally accounted for and held in officially recognised places of detention. Officials responsible for abuses of detainees should be held criminally accountable. These recommendations do not seem to have been taken into account by China and we are hereby reiterating them.
We would like to draw the attention of your Excellency’s Government to Principle 19 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment adopted by the General Assembly on 9 December 1988 which states that, “A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world […]”. We would also like to draw your attention to the revised Standard Minimum Rules for the Treatment of Prisoners (as amended and adopted by the UN General Assembly on 17 December 2015 and renamed the “Mandela Rules”) and in particular Rule 58 that provides that prisoners shall be allowed, under necessary supervision, to communicate with their family and friends at regular intervals by corresponding or by receiving visits.
HRC/NONE/2020/SP/54
(Translated from Chinese)
Receipt is hereby acknowledged of joint communication AL CHN 8/2020 of 7 May 2020
from the Special Rapporteur on the situation of human rights defenders; the Working Group on Arbitrary Detention; the Working Group on Enforced or Involuntary Disappearances; the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the rights to freedom of peaceful assembly and of association; the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; and the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment of the United Nations Human Rights Council. The Chinese
Government would like to respond with the following:
1. Regarding the cases of Guo Quan and Xu Zhiyong
Guo Quan is a 52-year-old male from Nanjing, Jiangsu Province, who was taken into criminal detention on 1 February 2020 by the public security authorities, in accordance with the law, on suspicion of committing an offence, and whose arrest was approved on 14
February by the procurator’s office. His case is currently proceeding. Xu Zhiyong is a 47- year-old male originally from Minquan County in Henan Province who was a lecturer at the Beijing University of Posts and Telecommunications. On 15 February 2020, Mr. Xu was
placed under investigation by the public security authorities, in accordance with the law, on suspicion of committing an offence. During the period of detention, the public security authorities handled the case in accordance with the law and guaranteed his legal rights, in accordance with the law. The case is currently proceeding.
2.
Regarding so-called retaliation against citizens for exercising freedom of speech and discussing issues related to the pandemic
The laws and regulations of the People’s Republic of China, including the Constitution, the Criminal Law, the National Security Law, the Cybersecurity Law, the Public Security
Administration Punishments Law and the Administration of Internet Information Services Procedures, clearly establish that Chinese citizens have freedom of expression, and in accordance with the law, China guarantees freedom of expression on the Internet. However,
when citizens make use of their freedoms and rights, they must not harm the State, society, collective interests and other citizens’ legal interests. The Internet is not a lawless space.
Any individual or organization using the Internet must comply with the provisions of the Constitution and the law and must not use the Internet to spread violent, obscene or pornographic content; they must not fabricate or broadcast false information to disrupt the economic and social order; and they must not carry out activities attacking the reputation, privacy, intellectual property rights or other legal rights of others. This is in line with the spirit of international human rights instruments and the common practice in all countries. In recent years, countries all over the world have strengthened legal governance of Internet information content. Through administrative supervision and public-private sector cooperation, they have strengthened the duties of social platforms to delete or block illegal content and to set up complaint mechanisms. False information has become another focus for governance, after terrorism and pornography.
Since the beginning of the COVID-19 pandemic, a few people have fabricated and deliberately disseminated false information on the pandemic on the Internet and are suspected of committing crimes. The Chinese public security authorities, together with the relevant departments, have investigated and cracked down on them, in accordance with the law. The relevant law enforcement actions have been based on the law and the procedures have been legitimate. There has been no such thing as “restrictions … retaliation, threats or intimidation” for the expression of views related to the pandemic.
3.
Regarding the recently adopted Provisions on the Governance of the Online
Information Content Ecosystem
| Cyberspace is the shared virtual space of millions and millions of people. Ensuring the |
| health and propriety of the cyberspace environment is in line with the interests of the people. |
China is committed to promoting web management and administration and Internet access in accordance with the law, allowing for full action by civil society associations, companies, experts and scholars, netizens and others, establishing a model of network governance involving the collaboration of numerous stakeholders and promoting the healthy development of the country’s Internet and safeguarding citizens’ legitimate rights and interests in cyberspace.
4.
In accordance with article 38 (4) of the Law of the People’s Republic of China on Prevention and Treatment of Infectious Diseases, “the publication of information on infectious disease pandemics shall be timely and accurate”; article 25 (3) of the Public
Health Emergency Response Regulations states that “information shall be provided in a timely manner and be accurate and comprehensive”; article 19 of the Regulations on the Implementation of the Statistics Law states that “if the statistical data are incomplete or there are obvious errors, the subject of the statistical survey shall supplement or correct them, in accordance with the law”; article 14 of the Regulations on the Registration and Management of Information on Deaths in the Population (pilot regulations) sets out that “medical and health institutions shall establish systems for the correction of data”, and article 15 stipulates that “medical and health institutions shall establish a system for the comparison and verification of information and supplementing of reports”. In line with the principle of responsibility to the historical record, to the people and to the deceased, and to ensure that the entire city’s information on the COVID-19 pandemic is transparent and made public and that the data are accurate, the COVID-19 pandemic prevention and control centre in Wuhan, Hubei Province, set up a big data epidemiological investigation unit for the pandemic and organized the city’s health, disease control, public security, civil
administration, justice and statistics services. Online, the number of cases of the virus was compared, verified, purged of duplications, cross-checked and completed by the Wuhan COVID-19 big data information system, the municipal funeral and burial service information system, the municipal medical administration and management system for COVID-19 and the municipal COVID-19 coronavirus nucleic acid test system. Offline, in order to meet the requirement for full coverage, with no omissions, data were collected from all pandemic-related places, including fever clinics, hospitals, patient shelters, isolation centres, districts affected by the pandemic and specific facilities such as prisons and nursing homes under the jurisdiction of the public security, justice, civil administration and other departments. For all cases, the patient’s personal information was collected and checked by the medical facilities, neighbourhood and district administrations, local police stations, the patients’ work units and families, with screening and checking for each person, ensuring that the information on each patient’s case was verified as accurate, error-free and objectively correct.
As at midnight on 16 April, the number of confirmed deaths in Wuhan initially stood at 2,579, of which 164 cases should be subtracted because they involved repeat registrations or cases unrelated to COVID-19; a number of deaths outside of hospitals had not been reported to the disease prevention information system, and there was a lag or omission in the reporting of deaths by some medical facilities, accounting for an increase of 1,454 deaths, and bringing the revised cumulative number of confirmed deaths to 3,869.
| The reasons for the discrepancies in the above numbers are as follows: first, early on, a surge in the number of pandemic patients led to a rush on the medical facilities, whose |
| capacity for admission was gravely insufficient; a number of patients were not hospitalized for treatment and died at home. Secondly, at the peak of the treatment phase, the hospitals |
| were overloaded and medical staff were occupied with treatment, so there were delays, omissions and errors in their reporting, for reasons beyond their control. Third, due to a rapid increase in the number of medical facilities designated for treating patients, including those reporting to a ministry, provincial, municipal and district hospitals, as well as |
| company facilities, private hospitals and patient shelters, a few medical facilities failed to |
2
Regarding the revision of the number of confirmed COVID-19 pneumonia cases and deaths in Wuhan
As at midnight on 16 April, the number of confirmed cases in Wuhan initially stood at 50,008. Some patients consulted facilities in more than one district or consulted at more than one hospital, resulting in double registrations, so the number should be reduced by 217;
there was also a lag or omission of reporting for 542 cases, which should be added, thus bringing the revised total number of confirmed cases to connect with the pandemic information network and failed to submit information on time. Fourthly, registration information on some of the deceased was incomplete, and there was also repeated or erroneous reporting.
The safety of the people’s lives and their health are their most fundamental need and universal aspiration. Behind the numbers for the pandemic are the lives and health of the public, and also the public’s trust in the Government. The timely revision of the number of confirmed cases and of the number of confirmed deaths in the COVID-19 pandemic not only upholds the people’s rights and interests; it is beneficial in making rational decisions on pandemic prevention and control and is the way to meet the public’s concerns, and above all to show respect for each and every life.
