OPINION No. 8/2001 (PEOPLE’S REPUBLIC OF CHINA)

Communication addressed to the Government on 12 September 2000

Concerning Jiang Qisheng

The State has signed but not ratified the International Covenant on Civil and Political Rights

1. The Working Group on Arbitrary Detention was established by Commission on Human Rights resolution 1991/42. The mandate of the Working Group was clarified and extended by resolutions 1997/50 and 2000/36, and reconfirmed by resolution 2001/40. In accordance with its methods of work, the Working Group transmitted the above-mentioned communication to the Government.

2. The Working Group regrets that the Government did not reply within the 90-day deadline.

3. The Working Group regards deprivation of liberty as arbitrary in the following cases:
(i) When it manifestly cannot be justified on any legal basis (such as continued detention after the sentence has been served or despite an applicable amnesty act)
(category I);
(ii) When the deprivation of liberty is the result of a judgement or sentence for the exercise of the rights and freedoms proclaimed in articles 7, 13, 14, 18, 19, 20
and 21 of the Universal Declaration of Human Rights and also, in respect of States parties, in articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International
Covenant on Civil and Political Rights (category II);
(iii) When the complete or partial non-observance of the international standards relating to a fair trial set forth in the Universal Declaration of Human Rights and
in the relevant international instruments accepted by the States concerned is of such gravity as to confer on the deprivation of liberty, of whatever kind, an
arbitrary character (category III).

4. In the light of the allegations made, the Working Group would have welcomed the cooperation of the Government. In the absence of any information from the Government, the Working Group believes that it is in a position to render an opinion on the facts and circumstances of the case, especially since the facts and allegations contained in the communication have not been challenged by the Government.

5. According to the source, Mr. Jiang Qisheng, a 52-year-old pro-democracy activist, was arrested by the police at his home in Beijing on 18 May 1999 and transferred to the Beijing Municipal Detention Centre. The charges against him were reportedly not made public.

6. On 1 November 1999, Mr. Jiang Qisheng was tried. According to the information received, the court was called to recess without reaching a verdict. A decision was due to be reached in January 2000 on whether to call a retrial or to hand down a verdict, but no decision apparently has been announced to date. He has since been held in detention.

7. According to the source, Mr. Jiang Qisheng was previously imprisoned for 17 months for his involvement in the 1989 “pro-democracy movement”, and he has reportedly been briefly detained on several occasions since for his dissident activities. His arrest and detention are believed to be linked to an interview he gave to The Boston Globe a day before his arrest, in which he had been critical of the response of the Government of the People’s Republic of China to events in Kosovo, and a statement he published at approximately the same time in which he called for a full investigation into events that occurred on 4 June 1989.

8. Mr. Jiang’s wife, Zhang, was informed of her husband’s arrest only several days later. She was not provided with the exact time of arrest nor with the official arrest notice, in alleged violation of the Criminal Procedure Law of the People’s Republic of China. This denial of access to the official arrest notice, effectively delayed the involvement of Mr. Jiang Qisheng’s lawyer and hindered his ability to prepare the case, thereby restricting Mr. Jiang Qisheng’s right to legal counsel and defence.

9. In the light of the allegations, which the Government has not refuted although it had the opportunity to do so, the Working Group believes that Jiang Qisheng’s arrest and imprisonment were based solely on the free expression of his views in a newspaper interview during which he expounded his ideas and made a public statement in a peaceful manner. In so doing, he was simply exercising the right to freedom of opinion and expression guaranteed by article 19 of the Universal Declaration of Human Rights, including the right of everyone to hold opinions without interference and the right to impart ideas through any media.

10. In the light of the foregoing, the Working Group renders the following opinion: The deprivation of the liberty of Jiang Qisheng is arbitrary, being in contravention
of articles 9 and 19 of the Universal Declaration of Human Rights, and falls within category II of the categories applicable to cases submitted to the Working Group.

11. Consequent upon the opinion rendered, the Working Group requests the Government to take the necessary steps to remedy the situation and to bring it into conformity with the standards and principles set forth in the Universal Declaration of Human Rights, and encourages the Government to ratify the International Covenant on Civil and Political Rights, which it has signed.

Adopted on 17 May 2001
E/CN.4/2002/77/Add.1