WHITE PAPER On the case of
Dr Wang Bingzhang
Citizen of the People’s Republic of China
v.
The People’s Republic of China
Authors: Wallenberg Advocacy Group at McGill University Faculty of Law1 & Jonah Diamond, Raoul Wallenberg Centre for Human Rights
DATE: 4 September 2020
1Authors: Ayelet Ami, Nicholas Doiron, Camila Franco, Joshua Shapiro, Emma Walsh, and Jeremy Wiener. Thank you to Marie-Laurence Desgagné and Simon Filiatrault for helping to ensure that the footnotes conform to the Canadian Guide to Uniform Legal Citation, 9th ed. Table of Contents 1. Biographical Information 3 2. Pro-Democracy Movement in China 3 3. Political Persecution of Dr Wang Bingzhang 4 4. New Exonerating Evidence: The Falsified Case Against Dr Wang 6 5. Legal Analysis 7 I. Violation of Dr Wang’s Fundamental Freedoms 7 a) Freedom of Expression and Opinion 7 b) Freedom of Association 8 c) Permissible Limitations Are Inapplicable 8 II. Violation of Dr Wang’s Due Process Rights 9 a) The Right to be Free from Arbitrary Arrest 9 b) The Right to a Timely Trial 10 c) The Right to a Fair Trial 10 i) The Right to a Free and Public Hearing 10 ii) The Right to an Attorney at Trial 10 iii) The Right to Present a Defence 11 d) The Right to Non-Interference with Legal Counsel 11 III. Dr Wang’s Prolonged Solitary Confinement Constitutes Torture 12 6. Conclusion 14
ii 1. Biographical Information Family name: Wang First name: Bingzhang Birthdate: December 30, 1947 Nationality/Nationalities: Chinese Profession: Founder of the overseas Chinese democracy movement
2. Pro-Democracy Movement in China
The People’s Republic of China (PRC) affirms that it “attaches great importance to the promotion and protection of human rights,” and that its legal system has “the Constitution as its core and the law […] as its backbone…”.2 Yet since the Tiananmen Square massacre in 1989, violations of international and Chinese domestic constitutional and criminal procedural law have become increasingly prevalent.3 According to Human Rights Watch’s Executive Director, we are witnessing the “most pervasive and brutal oppression in decades” in President Xi Jinping’s China.4
Dr Wang founded the overseas Chinese democracy movement in 1982. He was a self-declared patriot of China who sought to better his country, yet was arbitrarily detained by the PRC in 2002.5 His persecution serves as a looking-glass into the persecution of countless others struggling for democratic reforms in China.
Persecuting ‘Charter 08’ Democracy Activists
In December 2008, 303 Chinese activists issued "Charter 08", a petition calling for greater human rights and democratic freedoms in China, continuing the struggle for freedom Dr Wang engaged in decades earlier.6 Liu Xiaobo was a leader in the Charter 08 movement. He was detained hours before the Charter’s online release,7 and was charged with “inciting subversion of State power” in 2008.8 One year after Liu was awarded the Nobel Peace Prize for his “long and non-violent struggle for fundamental human rights in China,” the UN Working Group on Arbitrary Detention held his detention to be arbitrary, and urged his release.9 Instead, Chinese
2 National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21, UNHRCOR, 31st Sess, UN Doc A/HRC/WG.6/31/CHN/1 (2018) at paras 4, 11. 3 See Arch Puddington, “China: The Global Leader in Political Prisoners” (26 July 2018), online: Freedom House
3 authorities placed his wife under house arrest, where she has since remained, and it is questionable whether Liu received the urgent medical care he required to treat his liver cancer. Liu died on 13 July 2017.10
The Liu Xiaobo Conscience Award was created by Liu’s supporters to highlight the increasing number of imprisoned human rights and democracy activists. The 2018 prize was awarded to human rights activist Qin Yongmin. Qin founded China Human Rights Watch in 1988. He is a leading Chinese human rights advocate, and was nominated for the Nobel Peace Prize.11 Still, the PRC has imprisoned him numerous times. He was most recently detained incommunicado in 2015 for three years before being sentenced to 13 years in prison for “subversion of state power” by the Wuhan Intermediate People’s Court. As in the case of Dr Wang, Qin’s due process rights were wholly violated.12
3. Political Persecution of Dr Wang Bingzhang
Dr Wang Bingzhang is a “pro-democracy activist and the founder of the overseas Chinese democratic movement.”13 After studying and practising medicine in China, Dr Wang obtained a Ph.D. in medicine at McGill University in 1982. Less than one year after completing his studies, Dr Wang published an open letter in the largest Chinese newspaper in America in which he declared: “The road ahead for me in medicine would have been smooth and bright, [but] I have decided to abandon medicine and to devote myself to China’s contemporary democracy movement.”14 He began his activism by organizing a few like-minded people, inside China and out, to start China Spring, a magazine dedicated to reflecting the “ideals of the Chinese democracy movement.”
China Spring’s inaugural issue proclaimed the necessity to “firmly raise the flag against feudalism and dictatorship, against bureaucracy and privilege, and to push for the realization of true democracy, rule of law, freedoms and human rights in China.”15 The second issue of the magazine elaborated on the political reform they believed necessary in China, which included lifting bans on free press, the formation of political parties, and freedom from the military’s political interference. Other major goals proposed included abolishing one-party rule, separating the branches of government, and establishing a market economy. Later in 1983, China Spring announced the formation of the Chinese Alliance for Democracy, an organization dedicated to promoting democracy in China. China Spring was widely read around the world, including in the United States and China. In 1997, Dr Wang published a pamphlet titled, The Path to China’s Democratic Revolution, also known as the Handbook of the Democratic Movement.
10 See Chris Buckley, “Liu Xiabo, Chinese Dissident Who Won Nobel While Jailed, Dies at 61” (13 July 2017), online: The New York Times
4
In the mid-1980s, Dr Wang tried to renew his passport with the Chinese Consulate in New York, but was told that his citizenship had been revoked. In 1989, he attempted to go back to China through Japan to participate in the Tiananmen protests, but was again denied access. In 1998, he snuck into China, where he helped lay the groundwork for the founding of the Democratic Party of China (also known as the Chinese Democracy Party). It was the first known attempt to register a formal opposition party in the People’s Republic of China. Many of its members were arrested, and it was banned.
As a pro-democracy activist, Dr Wang advocated for freedom of expression, a free press, protection of human rights, respect for the rule of law and an independent judiciary, workers’ rights, freedom from religious or faith-based persecution and discrimination, and the need for a corruption-free government.
In June 2002, Dr Wang went to Vietnam to meet with people he was led to believe were Chinese labour activists. On 26 June 2002, at a town called Mong Cai near the Vietnam-China border, a group of men claiming to be police assaulted and kidnapped Dr Wang and his two traveling companions and fellow activists. They were ferried across the border to China, where the kidnappers brought the trio to a hotel and separated them. As Dr Wang would later recount, the lead kidnapper told him that the abductors were led to believe he was a corrupt Chinese official and that the original plan was to kill him. However, communicating on slips of paper that they burned—they feared the room was monitored—the lead kidnapper learned Dr Wang’s true identity as a well-known pro-democracy activist and the plan was abandoned. Instead, the kidnappers left him bound up to the two others, blindfolded and gagged, in a deserted temple in Guangxi province, in a small city called Fangchenggang. Shortly thereafter, the Chinese police arrived. At first, Dr Wang was under the impression that the police were investigating his kidnapping, but when he was transferred to the Guangdong province police about two weeks later, it was clear that he was being treated as a suspect. The Chinese Government claims that police rescued the trio from the kidnapping.
It was not revealed to Dr Wang that he was under arrest. Not until 5 December 2002, after five months in detention, was Dr Wang informed of the charges against him, including “offences of espionage” and “the conduct of terrorist activities”.16 Among the specific claims were that Dr Wang spied for Taiwan, and that he had plotted to attack the Chinese Embassy in Bangkok.
Dr Wang is the first pro-democracy dissident to be charged with terrorism under the Government’s anti-terrorism laws and is serving one of the harshest sentences ever imposed on a pro-democracy dissident.17
On 22 January 2003, Dr Wang was finally tried by the Intermediate People’s Court in the city of Shenzhen in Guangdong province. The trial was closed to the public and lasted half a day. On 10 February 2002, Dr Wang was convicted. For the terrorism charge, he was sentenced to ten years. For the espionage charge, he was sentenced to life. His appeal was rejected on 28 February 2003. Dr Wang’s detention was later declared arbitrary by the Working Group on Arbitrary Detention.18
16 See Opinions adopted by the UNWGAD, supra note 5 at 27. 17 See ibid at para 26. 18 See ibid at para 27.
5 Dr Wang has spent his life sentence – thus far, 18 years – in solitary confinement. He is kept in an individual cell in Shaoguan Prison in Shaoguan City, Guangdong Province, and is generally not allowed to speak or interact with anyone except the prison guards who monitor his cell.
Dr Wang is allowed one 30-minute family visit a month; however, many of his family members, including his brother, sister, and daughter, have been denied visas to enter China or denied entry upon arrival. In February 2019, his daughter Ti-Anna Wang was denied entry upon her attempt to see him for the first time in a decade, despite having gone through the arduous process of securing a visa before her trip. Moreover, letters sent to Dr Wang by his family are often censored or confiscated.
Dr Wang has been deliberately denied access to independent counsel for at least the last several years.19 His lawyers have been routinely denied access to him and threatened by Chinese authorities with “consequences,” including a revocation of their attorney licences, should they continue to represent Dr Wang. Arbitrary procedural barriers and administrative obstacles have made it incredibly difficult for Dr Wang to access counsel.
Unfortunately, Dr Wang’s physical and mental health has deteriorated dramatically during the past 18 years as a result of his prison conditions, most notably his years of social isolation. He has experienced three debilitating strokes, bouts of depression, and continues to suffer from other chronic diseases, including high blood pressure and deep vein thrombosis.
4. New Exonerating Evidence: The Falsified Case Against Dr Wang
New powerful evidence has recently come to light indicating that the case against Dr. Wang was falsified:
(1) The verdict against Dr Wang relies in part upon the alleged incriminating testimony of Ni Jinbin.20 However, the same Ni Jinbin recently wrote a signed declaration under penalty of perjury asserting that he never gave such testimony, neither in person nor in writing, and that the testimony attributed to him is pure fabrication. Ni Jinbin has issued prior statements regarding the verdict’s fabrication.
(2) The second document is an account of the Thai Royal Police’s 2001 investigation into the claim that Dr Wang plotted to attack the Chinese Embassy in Bangkok, provided by Thai Police Lieutenant Colonel Sunya Thongboos. In July 2001, acting on a tip about the attack from a Chinese national in Thailand with unknown motivations, Colonel Thongboos searched Dr Wang’s apartment in Bangkok. His investigation revealed no evidence of an alleged plot. Instead, Colonel Thongboos realized that Dr Wang was a pro-democracy activist, and that, if he stayed in Bangkok, his life was potentially in danger. After Dr Wang left Thailand, Chinese authorities contacted the Thai Royal Police inquiring about him. The latter informed Chinese officials that it had investigated an accusation against Dr Wang but had determined it baseless.21 This undercuts a major plank of the verdict against him.
19 See Special Rapporteur 2016 Urgent Appeal, supra note 13 at 2. 20 See Annex A of this document. 21 See Annex B of this document.
6 (3) The third document is an official statement from the Taiwanese government that Dr Wang was never a spy.22 This undercuts another major plank of the verdict against him.
The authorities' wilful falsification of evidence to support Dr Wang’s life sentence undermines China’s Criminal Procedure Law which requires that verdicts be based on verified facts, and at the very least calls for a new trial.23
5. Legal Analysis
As a member state of the U.N., China has pledged to promote universal respect for and observance of human rights and fundamental freedoms, as laid out in the UDHR.24 As a signatory to the International Covenant on Civil and Political Rights (ICCPR),25 China has a good faith obligation to refrain from acts that would defeat the treaty’s object and purpose.26 Finally, the Chinese government must also comply with the Constitution of the People’s Republic of China (PRC’s Constitution)27 and the country’s Criminal Procedure Law (CPL).
I. Violation of Dr Wang’s Fundamental Freedoms
Dr Wang was imprisoned for exercising the rights guaranteed under Articles 19 and 20 of the UDHR, Articles 19, 21 and 22 of the ICCPR, and Articles 35 and 41 of the PRC’s Constitution.28
a) Freedom of Expression and Opinion
The right to freedom of opinion and expression is guaranteed by the UDHR, the ICCPR, and Articles 35 and 41 of the PRC’s Constitution.29 Dr Wang’s 1982 announcement of his intent to work towards a democratic China in the World Journal, his founding of China Spring magazine, the subsequent creation of the Chinese Alliance for Democracy, and his Handbook of the Democratic Movement pamphlet are all examples of him rightfully exercising this freedom.30 By the time Dr Wang was kidnapped and imprisoned by Chinese police in 2002, he was an internationally recognized pro-democracy activist.31 It took the Chinese government
22 See Annex C of this document. 23 See People’s Republic of China, Criminal Procedural Law of the People’s Republic of China, 2nd Sess of the 5th National Congress, 1 July 1979 at arts 53, 59, 242 [CPL]. 24 Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71 at preamble (“Whereas Member States have pledged themselves to achieve, in co- operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms”) [UDHR]. 25 International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976, accession by China 5 October 1988) [ICCPR]. 26 See Vienna Convention on the Law of Treaties, 27 January 1980, UNTS 1155 at arts 12, 18 (entered into force 27 January 1980, accession by China 3 September 1977)). 27 People’s Republic of China, Constitution of the People’s Republic of China, 1982 at preamble [PRC’s Constitution] (“the [Constitution is the] fundamental law of the state and has supreme legal authority”). 28 See UDHR, supra note 24 at arts 19, 20; ICCPR, supra note 25 at arts 21, 22; PRC’s Constitution, supra note 27 at arts 35, 41. 29 See UDHR, supra note 24 at art 19; ICCPR, supra note 25 at art 19(2); PRC’s Constitution, supra note 27 at arts 35, 41. 30 See Part 3 of this document, Political Persecution of Dr Wang Bingzhang, above, for more on this topic. 31 See Opinions adopted by the UNWGAD, supra note 5 at para 27.
7 over five months after detaining Dr Wang to charge him with terrorism and espionage offences.32
Dr Wang’s arrest, insofar as it results from his expression of his pro-democracy views, contravenes not only international law but also the PRC’s Constitution. Article 35 of the Constitution guarantees the freedom of speech for every Chinese citizen, and Article 41 gives citizens the right to criticize the state, and requires that the state respond to “complaints, charges or exposures made by citizens in a responsible manner after ascertaining the facts” without “[retaliating] against the citizen making them.”33
b) Freedom of Association
The freedom of peaceful assembly and association is protected by the UDHR, the ICCPR, and Article 35 of the PRC’s Constitution.34 Dr Wang exercised his freedom of association by coordinating to establish China Spring and the Chinese Alliance for Democracy.35 During his arrest in 2002, Dr Wang was meeting with other activists to discuss issues including workers’ interests, the fight for religious freedoms, and corruption in the Chinese government.36
c) Permissible Limitations Are Inapplicable
The permissible limitations on the freedoms guaranteed by the ICCPR, prescribed in Articles 19(3) and 22(2), are explicitly narrow and do not apply to Dr Wang’s case.
The limitations on freedom of expression and opinion in Article 19(3) cannot be “invoked as a justification for muzzling of any advocacy of multi-party democracy, democratic tenets and human rights.”37 Neither can any of the permissible restrictions under ICCPR Article 22(2) be applied to Dr Wang’s freedom of association.38
Dr Wang was a committed advocate of multi-party democracy and human rights, whose work was neither directly harmful to the rights of others nor constitutive of a threat to national security or public order, public health or morals. Even after he became enamoured by the democratic ideals he was exposed to in North America, he called himself a patriot of China.39 If anything, Dr Wang’s lifework is a testament to his commitment to upholding and furthering the PRC’s Constitutional spirit.
32 See ibid at para 20. 33 PRC’s Constitution, supra note 27 at arts 35, 41. 34 See UDHR, supra note 24 at art 20; ICCPR, supra note 25 at art 21; PRC’s Constitution, supra note 27 at art 35. 35 See Part 3 of this document, Political Persecution of Dr Wang Bingzhang, above, for more on this topic. 36 See Opinions adopted by the UNWGAD, supra note 5 at para 16. 37 See General Comment No. 34: Article 19: Freedom of opinion and expression, UNHRCOR, 90th Sess, UN Doc CCPR/C/GC/34 (1983) at para 23. 38 See ICCPR, supra note 25 at art 22(2) (“[...] those which are prescribed by law and [must be] necessary in a democratic society [for] the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others”). 39 See Bernstein, supra note 14.
8 The permissible limitations on the freedoms guaranteed by the PRC’s Constitution, prescribed in Articles 51 and 54 respectively, likewise do not apply to Dr Wang’s case.40 The PRC reported to the UNWGAD in 2010 that Articles 51 and 54 accord with the ICCPR’s limitations.41 If the permissible limitations on guaranteed rights laid out in the ICCPR do not apply to Dr Wang’s case, then the presumption should be that the limitations laid out in the PRC’s Constitution do not either. Yet the PRC has failed to adequately demonstrate how Dr Wang’s actions were sufficiently contrary to the interests of the state to justify his grossly disproportionate punishment.
II. Violation of Dr Wang’s Due Process Rights
The Chinese Government violated Dr Wang’s due process rights guaranteed by Article 10 of the UDHR, Articles 9(2), 9(3), 9(4), 14(1) and 14(3) of the ICCPR, Principle 16 of the Basic Principles on the Role of Lawyers, Articles 11, 15(1), 32, 51, 53, 59, 91, 154 and 161 of the CPL, and Article 37 of the PRC’s Constitution.42
a) The Right to be Free from Arbitrary Arrest
Articles 9(2) and 14(3)(a) of the ICCPR guarantee anyone who is arrested the right to be informed of the reasons for his arrest and to be informed promptly of the charges against him.43 Articles 51 and 91 of the CPL state that the “public security organ must produce a warrant of arrest” that is faithful to facts when making an arrest, and must notify the arrestee’s family within 24 hours of the arrest. Article 37 of the PRC’s Constitution prohibits the “unlawful deprivation or restriction of [their] personal freedom by detention or other means”.44
Dr Wang was arrested without a warrant, and Chinese officials did not inform him of the reasons for his arrest or the charges being brought against him until his sixth month in detention. By failing to provide Dr Wang with reasons for his arrest, Chinese authorities deprived him of his right to seek release.45 Chinese officials also failed to inform his family for six months that he was indeed arrested. This constitutes a violation of international and Chinese domestic law.
40 PRC’s Constitution, supra note 27 at arts 51, 54 (Article 51 states that citizens’ exercise of rights “may not infringe upon the interests of the state, of society or of the collective, or upon the lawful freedoms and rights of other citizens”; Article 54 states that citizens “must not commit acts detrimental to the security, honor and interests of the motherland.”) 41 Working Group on Arbitrary Detention, Report of the Working Group on Arbitrary Detention, UNHRCOR, 22nd Sess, UN Doc A/HRC/22/44/Add.1 (2012), Opinion No. 15/2011 at paras 15, 22. 42 See UDHR, supra note 24 at art 10; ICCPR, supra note 25 at arts 9(2), 9(3), 9(4), 14(1),14(3); UN, Basic Principles on the Role of Lawyers at principle 16 (7 September 1990) [BPRL]; CPL, supra note 23 at arts 11, 32, 51, 53, 59, 91, 154 & 161; PRC’s Constitution, supra note 27 at art 37. 43 See ICCPR, supra note 25 at arts 9(2), 14(3)(a). 44 CPL, supra note 23 at arts 44, 71; PRC’s Constitution, supra note 27 at art 37. 45 See General Comment No. 35: Article 9 (Liberty and Security of the Person), UNHRCOR, 112th Sess, UN Doc CCPR/C/GC/35 (2014) at para 27 [General Comment No. 35]. (“One major purpose of requiring that all arrested persons be informed of the reasons for arrest is to enable them to seek release if they believe that the reasons given are invalid or unfounded. The reasons must include not only the general legal basis of the arrest, but enough factual specifics to indicate the substance of the complaint, such as the wrongful act and the identity of an alleged victim”).
9 b) The Right to a Timely Trial
Article 9(3) of the ICCPR ensures that “anyone arrested or detained on a criminal charge [be] brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.”46 Article 9(4) states that anyone who is arrested or detained “shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” Article 14(3)(c) likewise guarantees the right to be tried “without undue delay.” According to the UNHRC, “delays should not exceed a few days from the time of arrest,” and delays exceeding 48 hours must remain “absolutely exceptional and be justified under the circumstances."47
Article 154 of the CPL prescribes a two-month limit to the custody of criminal suspects during investigation which may only be extended with approval, and Article 161 requires that suspects be released if it is found that they should not be investigated for criminal responsibility during the investigation.48
Dr Wang was detained for six months before charges were brought against him. His six-month detention far exceeds the two-months limit imposed by the CPL, let alone those deemed acceptable by international standards, and there is no evidence that applications to extend Dr Wang’s detention were made, as the CPL requires.
The lack of evidence against Dr Wang, and the Thai Royal Police’s findings, which Chinese officials are assuredly aware of, should have given way to his release, per Article 161 of the CPL.
c) The Right to a Fair Trial
i) The Right to a Free and Public Hearing
Dr Wang’s right to a fair and public hearing is guaranteed by Article 10 of the UDHR, Article 14(1) of the ICCPR, and Article 11 of the CPL.49 Dr Wang’s trial lasted half a day and was closed to the public. No members of the public, including his family and reporters, were permitted to attend,50 nor were any witnesses called to testify. As such, the PRC has failed to meet the international and domestic requirement that his proceeding be made public, denying Dr Wang’s right to a fair and public hearing.
ii) The Right to an Attorney at Trial
Dr Wang’s right to an attorney at trial is guaranteed by Article 14(3)(d) of the ICCPR and Article 32 of the CPL, the latter further guaranteeing the right to be informed of this right.51
46 ICCPR, supra note 25 at art 9(3). 47 General Comment No. 35, supra note 45 at para 33. 48 See CPL, supra note 23 at arts 154, 161; 49 See UDHR, supra note 24 at art 10; ICCPR, supra note 25 at art 14(1); CPL, supra note 27 at art 11. 50 See Opinions adopted by the UNWGAD, supra note 5 at para 23. 51 See ICCPR, supra note 25 at art 14(3)(d); CPL, supra note 23 at art 32.
10 Article 14(3)(b) provides for his right to adequate time and facilities to prepare his defence and to communicate with counsel of his choosing.52
During his pre-trial detention, Dr Wang was denied access to a lawyer and was never informed of his right to one. The Chinese Government also violated his right to have adequate time and facilities to prepare a defence, as Dr Wang had no knowledge of the charges against him and had no lawyer. At trial, Dr Wang was further denied representation by legal counsel,53 in violation of the rights guaranteed by the CPL.
iii) The Right to Present a Defence
Dr Wang’s right to present a defence by examining his own witnesses and those testifying against him is guaranteed by Article 14(3)(e) of the ICCPR and Article 59 of the CPL.54 Article 59 of the CPL further guarantees defendants the right to question all witnesses, whose testimony cannot be used as a basis for settling the case until all witness evidence has been heard and verified.55 Article 53 of the CPL similarly requires verifying all evidence at trial to be factual before it is used to judge the case.56
At trial, Dr Wang was not only denied legal representation but was altogether precluded from presenting a defence. In particular, he was barred from adducing evidence, notably by calling witnesses on his behalf, challenging testimony against him,57 or speaking on his own behalf, in violation of each of his above-stated rights.
d) The Right to Non-Interference with Legal Counsel
Principle 16 of the Basic Principles on the Role of Lawyers (BPRL) proclaims that:
Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.58
Since his sentencing, Dr Wang has been deprived of access to counsel numerous times. Guangzhou-based lawyer, Xiao Xionghui, hired in 2012 by Dr Wang’s family, was refused access to Dr Wang at least four times between late 2012 and end of 2013,59 contrary to Principle 16(b) of the BPRL.60 The Guangdong Justice Department has also barred Liu Zhengqing, another lawyer of Dr Wang, from visiting him.61
52 See CPL, supra note 23 at art 14(3)(d). 53 See Opinions adopted by the UNWGAD, supra note 5 at para 20. 54 See ICCPR, supra note 25 at art 14(3)(e); CPL, supra note 23 at art 59. 55 CPL, supra note 23 at art 59. 56 Ibid at art 53. 57 See Opinions adopted by the UNWGAD, supra note 5 at para 27. 58 BRPL, supra note 41 at principle 16. 59 See Special Rapporteur 2016 Urgent Appeal, supra note 13 at 12; Yaxue, supra note 15. 60 BRPL, supra note 42 at principle 16(b). 61 See Yaxue, supra note 15.
11
Further, Chinese authorities have threatened Mr. Xiao with “consequences” for continuing to represent Dr Wang, including the revocation of his attorney license. This runs afoul of Principles 16(a) and (c) of the BPRL,62 signaling yet another illicit attempt by the Chinese Government to hinder access to justice for those, like Dr Wang, who challenge its authority and peacefully advocate for democracy.
III. Dr Wang’s Prolonged Solitary Confinement Constitutes Torture
Torture is categorically prohibited by the UN Convention Against Torture (UNCAT), which China has acceded to, Article 5 of the UDHR, Article 7 of the ICCPR, and customary international law.63 The UNCAT defines torture as the following:
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions” (emphasis added).64
During his life sentence, Dr Wang has clearly been subjected to severe physical and mental pain and suffering. Dr Wang has spent the vast majority of his life sentence – thus far, 18 years – in solitary confinement. Reportedly, his only contact is with prison guards and family meetings once-per-month. Under the United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), prolonged solitary confinement, or solitary confinement lasting beyond 15 days, amounts to torture and/or cruel, inhuman or degrading treatment or punishment.65 While Dr Wang may be entitled to a family meeting once-per- month, in practice, these meetings rarely occur as most of his eligible visitors have been denied access.66 In denying even family contact, the Chinese Government effectively prevents any form of relief from solitary confinement. Even if these meetings took place, human interaction once every 30 days is still considered prolonged solitary confinement under the minimum international standards.
62 See BRPL, supra note 42 at principle 16(a), 16(c). 63 See Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, UNTS 1465 at 85 (entered into force 26 June 1987, accession by China 4 October 1988) at art 1.1 [UNCAT]; UDHR, supra note 24 at art 5; ICCPR, supra note 25 at art 7; Prosecutor v Anto Furundzija, IT-95-17/1-T10, Judgement (10 December 1998) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber) (the International Criminal Tribunal for the former Yugoslavia (ICTY) suggested that “torture is prohibited by a peremptory norm of international law” at para 155). 64 See UNCAT, supra note 63 at art 1.1. 65 See United Nations Standard Minimum Rules for the Treatment of Prisoners, GA Res 70/175, UNGAOR, 17th Sess, UN Doc A/RES/70/175 at rules 43.1, 44 (entered into force 17 December 2015) [Nelson Mandela Rules]. 66 See Part 3 of this document, Political Persecution of Dr Wang Bingzhang, above, for more on this topic.
12 Solitary confinement is considered a form of torture because of the detrimental and irreparable long-term damage that prolonged social isolation inflicts on one’s mental health.67 The current UN Special Rapporteur on torture, Nils Melzer, has highlighted that “[t]he severe and often irreparable psychological and physical consequences of solitary confinement and social exclusion are well documented and can range from progressively severe forms of anxiety, stress, and depression to cognitive impairment and suicidal tendencies.”68 Human Rights Watch has reported that the use of indefinite solitary confinement is a common pattern in China’s use of torture.69 During his isolation, Dr Wang’s mental fortitude has been significantly negatively impacted. His family has reported that he has developed depression.70 The few items meant to act as a source of comfort, like letters from loved ones, are even censored and confiscated. Dr Wang’s prolonged solitary confinement and isolating conditions clearly constitute severe pain and suffering.
This pain and suffering cannot be characterized as a result of “lawful sanctions.”71 As established in the previous section and in the 2003 Working Group on Arbitrary Detention opinion, Dr Wang’s arrest is arbitrary.72 Compounding this, during the course of his arrest, trial, and conviction, Dr Wang’s due process rights were repeatedly violated, rendering any form of punishment unlawful per se.
Worse, this severe pain and suffering has been “intentionally inflicted” on Dr Wang.73 Whether the state actors have either intentionally committed the act or intentionally omitted acting on it is legally and morally relevant – it makes it worse.74 The use of solitary confinement is, in itself, a positive act, or a commission. Dr Wang’s indefinite solitary confinement is the Government’s punishment for his alleged crimes, stemming from his pro-democracy advocacy work.75 It is intentional.
Building on this, the Chinese Government has intentionally inflicted this pain and suffering for at least two purposes outlined in UNCAT, namely “punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind.”76 Of primary importance, punishing Dr Wang for his pro-democracy work functions to intimidate other pro-democracy activists.
67 See Christy Carnegie Fujio & Mike Corradini, “Buried Alive: Solitary Confinement in the US Detention System” (2013) at 2–3, online (pdf): Physicians For Human Rights
13 Chinese public officials are directly responsible for inflicting and instigating the ongoing torture against Dr Wang. This includes the prosecutors and judge who presided over his closed court proceedings and sentenced him to life in a solitary cell, and the prison guards who continue to subject him to conditions amounting to torture.77
6. Conclusion
Dr Wang Bingzhang remains imprisoned for peacefully exercising his rights under international and Chinese domestic law. Following his illegal abduction and arbitrary arrest, a number of Dr Wang’s due process rights were violated. He was subsequently convicted of terrorism and espionage offences on the basis of fabricated evidence. He now languishes in solitary confinement under conditions amounting to torture. Over the course of these events, beginning in 2002, the Chinese Government violated the UDHR, the ICCPR, the BPRL, the UNCAT, the Nelson Mandela Rules, and its own law, namely the CPL and the PRC’s Constitution.
Dr Wang should be released immediately.
77 See Part 3 of this document, Political Persecution of Dr Wang Bingzhang, above, for more on this topic.
14
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S , I .
5. A - , I C
.
6. I J 1998, I B (王炳章).
7. - C - S
C - ,
.
8. O S , I . A
(张 ).
9. T I B .
10. O A 1, 1998, I C S . I C
.
11. I 2003, I C
.
12. I , S I P
C , F 10, 2003, I
T N J ( 人倪 彬的 ). T
J 1998 , , ,
, I .
13. I C . I
. I . T ,
.
14. A , I, , .
15. I L P , C P
1989. O
, L 1989 , I
I L .
16. A , I
S . N , ,
,
.
17. O F 12, 2003, I . A
E A.
18. O F 14, 2003, I . A
E B.
19. I , I I
C .
20. O M 26, 2003, I . A
E C.
Annex B
Annex C