“The Sorrow of our Era:” Alarming Cycles of Abuses and Impunity in China ——The Persecution of Lawyer Xie Yang Repeats Patterns of Retaliation against Human Rights Defenders
(Chinese Human Rights Defenders – October 9, 2024) More than a quarter of century after signing the International Covenant on Civil and Political Rights, the Chinese government has unrelentingly refused to ratify it, instead, aggressively violating the rights enshrined in the treaty. This can be illustrated in the government’s incessant persecution of human rights lawyer Xie Yang, which further reflects a systematic campaign to suppress human rights defenders with no accountability.
“I’m profoundly saddened by Xie Yang’s ordeal. He has spent most of the prime years in his life and almost all his energy confronting this authoritarian state that relentlessly persecutes him,” said Chen Guiqiu, Mr. Xie’s ex-wife.
Since 2015, Chinese authorities have detained lawyer Xie Yang several times, most recently in January 2022, and he has languished in custody for 32 months without a trial. Authorities charged him with the national security crime of “inciting subversion of state power” in retaliation for his legal work safeguarding persecuted human rights defenders (HRD)’s due process rights, and for his online expression. Xie’s peaceful actions and speech are protected under international human rights law and China’s constitution.
Xie’s case is part of an alarming trend in Beijing’s persecution of rights defenders. Chinese Human Rights Defenders (CHRD) has identified several tactics deployed against Xie, which have been increasingly used by authorities to punish and mistreat activists, independent lawyers, journalists, and critics of the government. These practices include weaponization of national security laws, enforced disappearances, torture, arbitrary detention, denial of due process rights, and collective punishment of families and associates.
CHRD urges the Chinese government to immediately and unconditionally release Xie Yang and other detained or imprisoned HRDs, end the use of torture or ill-treatment and enforced disappearance, and abide by its international human rights obligations.
The Decade-Long Persecution
Lawyer Xie Yang, 52, represented many prisoners of conscience throughout his career, including activists arrested during the “Jasmine Crackdown” in 2011, the suppression of the New Citizens’ Movement in 2013, and the clampdown on mainland supporters of the Hong Kong pro-democracy protests in 2014, among many others. During the “709” crackdown on human rights lawyers that began in July 2015, authorities in Hunan detained Xie and subjected him to torture including while he was in enforced disappearance for six months under “Residential Surveillance at a Designated Location” (RSDL). In May 2017, the Changsha Intermediate Court convicted Xie of “inciting subversion” but exempted him from serving time in prison in exchange for recanting his allegations of torture.
The UN Working Group on Arbitrary Detention (WGAD) issued an opinion in August 2017 stating that Xie Yang’s detention was arbitrary and asked Chinese authorities to release him and provide state compensation.
Instead, Xie Yang continued to face persecution. After being released on bail, authorities kept Xie under tight surveillance and continued to harass him as he tried to conduct his legal work. What has become known as “non-release release” is a trend under Xi Jinping’s rule, where HRDs released after serving full prison sentences remain under police surveillance and face restrictions of movement and speech, harassment and deprivation of the right to work and other controls. In 2020, the Judicial Bureau of Hunan Province revoked Xie Yang license to practice law.
Despite the ongoing harassment, Xie continued to assist other persecuted fellow lawyers and advocate for their fair trial rights, including lawyers Yu Wensheng, Wang Quanzhang and Chang Weiping. Xie’s refusal to be intimidated and silenced may have led to his most recent detention. This time, authorities are punishing him more harshly as they regarded him a “repeat offender,” in a similar manner to the harsh punishment of Ding Jiaxi and Xu Zhiyong. Two former prisoners of conscience, Mr. Ding and Mr. Xu continued to try to defend human rights and were arrested again and sentenced to over-decade long sentences.
Arbitrary Detention for Exercising Free Expression
Xie Yang’s current detention began on January 11, 2022, when Changsha national security officers took him from his home in Hunan. In the two weeks leading to his arrest, Xie had peacefully protested in support of Ms. Li Tiantian, a teacher who was forcibly put in psychiatric detention by authorities. Xie held up signs in front of the school where Li had taught and at local police station in Yongshun county of Hunan province. While this incident appears to be the trigger for Xie’s detention, police formally arrested Xie on February 17, 2022 on the national security crime “inciting subversion of state power” under Article 105(2) of China’s Criminal Law.
On August 23, 2022, the Changsha City People’s Procuratorate indicted Xie Yang for “inciting subversion.” The indictment claimed that Xie’s comments on Chinese and international social media platforms and interviews with international media “attack[ed], denigrat[ed] state power, the socialist system, and the leadership of the Chinese Communist Party,” and that he had “incit[ed] subversion of state power and the overthrow the socialist system.” Even if any evidence could be produced by authorities to support these assertions, Xie’s speech is a peaceful expression of his political views.
Xie’s right to freedom of expression is protected under Article 35 of China’s constitution and Article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). Having signed the ICCPR on October 5, 1998, despite not ratifying it, the Chinese government has since been “obliged to refrain from acts which would defeat the object and purpose of” this treaty, according to the Vienna Convention on the Law of Treaties (1969, Article 18).
This is far from the first time when authorities used the national security crimes of “inciting subversion” or “subversion” to prosecute HRDs (including lawyers) for peaceful expression or association, either in carrying out their lawyerly profession or in their personal capacity, deeming their actions as a threat to national security. Other cases include a previous charge against Xie during his detention from 2015-17. Human rights lawyer Chang Weiping was also convicted of “subversion” and jailed for 3.5 years, his second detention during which he was also forcibly disappeared in RSDL and subjected to torture.
CHRD has documented nearly 100 individuals charged under Article 105 of the Criminal Law since 2019 in the Prisoners of Conscience database, almost all involved persecution for free expression or association. In 48 of these cases, the individuals were accused of “inciting subversion” and 50 individuals accused of “subversion.”
De Facto Enforced Disappearance
After police arrested Xie Yang in early January 2022, they subjected him to enforced disappearance for several months. Although his family had initially received a written criminal detention notice six days after his arrest, they could not find any information about him for months. They had thought he was held in Changsha No. 1 Detention Center, but when they made inquiries there, the guards rejected all their requests to visit Xie. According to Ms. Chen, police had deliberately obscured his identity by entering only his surname into the computer system and used some code to refer to him, making it hard to track Xie’s whereabouts. For the first seven months of detention, authorities blocked Xie’s access to a lawyer.
The Chinese government has systematically used enforced disappearances and Xie Yang’s case reflects a broader trend. According to a recent CHRD analysis, Chinese authorities are using enforced or involuntary disappearances as a tactic to terrorize actual or potential critics into silence.
CHRD has recorded 33 ongoing cases of enforced disappearances in China since 2019 in the database of Prisoners of Conscience. Combined with 168 outstanding cases of forced disappearances in China recorded by the UN Working Group on Enforced and Involuntary Disappearances (WGEID)’s humanitarian mechanism, hundreds of people are estimated to be currently forcibly disappeared in China.
Xie had also previously been forcibly disappeared in 2015 in RSDL, a system of secret detention regularly wielded against HRDs accused of “endangering national security” for their peaceful human rights activity. UN experts have urged China since 2018 to repeal RSDL because it amounts to enforced disappearance and is not compatible with international human rights law, a call joined by six states during China’s fourth Universal Periodic Review at the UN Human Rights Council in January 2024. The government has rejected the call.
Torture and Impunity
After Xie Yang reemerged from enforced disappearance in the fall of 2022 and gained access to his lawyer, Mr. Xie has since been able to tell the lawyer that guards at the Changsha detention center have subjected him to torture. Back in 2015, Xie had also experienced torture during his six-month period incommunicado in RSDL.
According to Mr. Xie’s own account, the forms of torture and other ill-treatment used by his interrogators in 2015-17 included sleep deprivation, long hours of interrogations, beatings, death threats, humiliation, and other methods of psychological torment. He believed that the alleged torture was to force him to confess to incriminating acts and to incriminate other lawyers who were detained in the July 9, 2015 crackdown. Xie sustained multiple injuries from the torture and ill-treatment, including swollen legs, numbness, and dizziness. He never received any comprehensive medical examination or treatment to alleviate his injuries and pain during detention.
In May 2023, at a meeting with his lawyer during his current detention, Mr. Xie said that authorities at Changsha No. 1 Detention Center subjected him to torture and inhumane treatment. He detailed how the officers had beaten him, denied him food, prohibited other prisoners from speaking to him, and tried to force him to confess to criminal acts that he was accused of. On one occasion in December 2022, he said, the interrogators chained and handcuffed him after he protested officials’ denial of his request to meet with his lawyer. Xie filed a complaint with the prosecutor at the detention center, but his family members said no action has been taken.
While the Changsha City Intermediate People’s Court has repeatedly extended Xie’s detention without trial, detention center officers and guards have continued to subject Xie to torture and mistreatment. Xie’s family disclosed in May 2024 more details learning through his lawyer that a police officer had asked for a bribe and sexually harassed him when Xie requested to contact a prosecutor at the detention center to complain about the prolonged pre-trial detention. That same month, Xie said he had been chained by handcuffs and shackles in his cell for 13 days, except for the few hours when he was brought out to meet his lawyers.
Torture is widespread in Chinese detention centers and jails and is often used to punish or coerce confessions from detained HRDs. Currently, other prisoners of conscience, such as Niu Tengyu and Xu Zhiyong, who are both serving 14-year sentences, have also alleged being subjected to torture. The perpetrators accused of torturing them have not been investigated or held criminally responsible. Instead, authorities denied the allegations and tried to silence loved ones who exposed torture and tried to seek justice in these cases.
In 2015, the Committee against Torture raised concerns that torture was “deeply entrenched in the criminal justice system” during the most recent review of the Chinese government’s implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. But the government has not taken steps to investigate or punish alleged perpetrators or to end torture.
Infringement on Fair Trial Rights
Authorities denied Xie access to a lawyer of his own choice until August 2022, seven months after taking him into custody. Hunan authorities attempted to impose on Xie a state-appointed lawyer, whom the authorities deemed obedient or cooperative with prosecutors and judges. A pre-trial hearing on April 11, 2023, was convened without the attendance of Xie’s own lawyer despite Xie’s protest, though his lawyer eventually managed to make her way to the hearing.
The Changsha Intermediate Court called a new pre-trial meeting on September 2, 2024. While authorities allowed Xie’s own lawyer to attend, they refused to give access to the cases files, which prevented the lawyer from being able to prepare. At the meeting, Xie’s lawyer requested the recusal of several members of the Changsha judicial committee, officials from the city’s Communist Party and administration, who were involved in Xie’s previous detention and trial in 2015-17. The lawyer also requested the recusal of the presiding judge involved in ongoing procedural issues. The court ignored the requests, but the lawyer persisted in raising concerns, so proceedings were halted. At the time of writing, the court is yet to provide a date for resuming the pre-trial meeting or a trial date.
These violations of fair trial rights, such as unreasonably prolonged pre-trial detention without seeing a judge, denied access to a lawyer of one’s own choice and efforts to impose government-appointed lawyers, and political interference in the judiciary have been common in cases involving HRDs in the past decade. In February 2024, the UN Special Rapporteur on the independence of judges and lawyers wrote to the Chinese government about these concerns, stating that “government-appointed lawyers often fail to present a substantive defense, relying instead on allegations forwarded by the authorities.” The special rapporteur provided benchmarks to the government on how to bring its laws and regulations into conformity with international human rights law. The government has so far failed to respond or adopt these benchmarks.
Collective Punishment
Chinese authorities have also retaliated against those who provided legal defense to or advocated for the rights of Xie Yang. Xie’s former lawyer Chen Jiangang in the 2015-17 case and his ex-wife Dr. Chen Guiqiu have fled to the US for their own and their families’ safety after experiencing harassment and threats by authorities. Both of them have continued to speak out publicly about the abuses of Xie’s rights and his treatment in custody.
This fits in what CHRD has described in a report as a system of collective punishment by the government in retaliation against HRDs by harassing and abusing their loved ones, especially their children. Detained health rights advocate He Fangmei had her two daughters disappeared into the hands of Henan authorities since April 2024, and human rights lawyer Wang Quanzhang, his wife Li Wenzu, and their 11-year old son have been constantly harassed even after Wang’s release. HRDs families have also been tormented through denied access to detained defenders.
“We feel utterly helpless watching him languish in suffering. Torture has caused the rapid decay and withering of his bright, youthful self over the years. The sorrow for Xie Yang’s fate is both the sorrow of our era and our own,” said Ms. Chen.
Call to Actions
The sustained patterns of persecution of HRDs, epitomized in this analysis of the case of Xie Yang, speak to the urgency to hold the Chinese government accountable, and to end the impunity for violations of international human rights law, including the ICCPR and the Convention against Torture:
- Governments should publicly and privately raise individual cases of torture, arbitrary detention and forced disappearance, like Xie Yang’s, and call for their immediate release in bilateral and multilateral government meetings with Chinese officials.
- Governments and UN Human Rights Council members should urge the Chinese government to submit its state report to the UN Committee against Torture, overdue since December 2019, and allow visits by the Working Group on Enforced or Involuntary Disappearances, Working Group on Arbitrary Detention and several other Special Procedures, whose requests for visits remain ungranted.
- The Human Rights Council should take action to implement the recommendation of over 50 UN independent human rights experts to hold a Human Rights Council special session on China, and establish an impartial and independent UN mechanism, like a Special Rapporteur, to monitor the human rights situation in China.
- Legislatures in concerned democratic countries could adopt or push for implementation of legislation that sanctions Chinese state actors, based on evidence, for perpetrating grave human rights violations, investigating widespread and systematic abuses under the universal jurisdiction statutes.
- Private companies with operations in China or with Chinese state entities should abide by the UN Guiding Principles on Business and Human Rights to respect human rights and conduct human rights due diligence in all their operations, including rights violations that may be linked to their business relationships with Chinese state entities as well as their products or services.
Contact for this press release:
Renee Xia, Executive Director, CHRD, at reneexia@nchrd.org
Shane Yi, Researcher, CHRD, at shaneyi@nchrd.org
