Description of the Circumstances of the Arrest and/or the Detention of Shi Tao, and Analysis of Precise Reasons for Considering the Detention to be Arbitrary

I.              Brief Description of the Circumstances of the Arrest and the Detention

On November 23, 2004, Shi Tao was grabbed in the streets near his home in Taiyuan city, Shanxi province, blind-folded and taken into custody by unidentified personnel, who were later identified as police from the Changsha Municipal State Security Bureau of Hunan province. In violation of Chinese Criminal Procedure Law, no arrest warrant was presented to the defendant at the time and nor was a search warrant presented during police search of his home on the same day.  Police then took away personal computer and some written materials from his apartment.  And family was not notified within 24 hours.  Two days later, on November 25, a formal detention order was issued by Changsha Municipal State Security Bureau and Shi Tao was detained at the Detention Center of Hunan Provincial State Security on suspicion of the crime of “providing state secret illegally to [agents] outside the borders.”  On December 14, Shi Tao was formally arrested on suspicion of the same crime after the approval of the Changsha Municipal Intermediate People’s Procurator’s Office.

On March 11, 2005, Changsha Municipal Intermediate People’s Court, in Hunan province, tried Shi Tao in secrecy.  The main defense lawyer for the defendant was barred from attending the trial because government authorities suspended his license, citing un-related reasons. On April 27, the court delivered its verdict.  The court sentenced Shi Tao to 10-year in jail followed by 2-year deprivation of political rights for the crime of “providing state secret illegally to [agents] outside the borders.”  (Appendix 1)

Shi Tao did not accept the verdict of his first trial and filed an appeal to the Hunan Provincial Higher People’s Court on May 4, in which he presented his own defense arguments for innocence.  (Appendices 2 and 3)  Shi Tao’s defense lawyer for the second trial, Mo Shaoping, submitted to the Provincial Higher Court his defense arguments for Shi Tao’s innocence on June 9. (Appendix 4) But the Provincial Higher Court presented to the lawyer its verdict, which is considered final by Chinese law, of turning down the appeal and upholding the lower court’s verdict.  (Appendix 5) The verdict had been delivered at a closed-door review penal convened by the Higher Court on June 2, which the defense lawyer had not been informed of nor asked to attend while the defendant, who was present, was not asked to present his self-defense.

Between November 23, 2004, and April 30, 2005, Shi Tao was not allowed to meet with anybody (including his lawyers) except once with his mother and once with his wife.  Shi Tao was forced undergoing pre-imprisonment training in July and August, during which he was denied any visits by anybody including family and his lawyers.

The lawyers submitted to the Higher Court their “Legal opinion by defense lawyers concerning the final verdict issued by the Hunan Provincial Higher Court” on July 11 (Appendix 6). On August 21, 2005, Shi Tao’s mother, on behalf of Shi Tao, publicly appealed to the highest court, the Supreme People’s Court, as well as the Provincial Higher Court for a review of the final verdict and for retrial. (Appendix 7)  She submitted the appeal to the Hunan Provincial Higher Court on August 21, and to the Supreme Court on October 23.  Neither of these courts has responded to the mother’s request for judicial review.

II.           Reasons Determining the Arbitrariness of Shi Tao’s Detention

Shi Tao’s detention constitutes an arbitrary deprivation of liberty as this case satisfies criteria, especially those under Category II and Category III, established by the U.N. Working Group on Arbitrary Detention.  Shi Tao has been imprisoned and deprived of his liberty in violation of procedures established by Chinese law and in violation of international norms set forth in the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR).

The case satisfies the criterion under Category II,

“When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 10 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights.”

The Chinese courts’ verdict and decision to uphold it violate international human rights standards protecting the freedom of press and expression.  The courts punish Shi Tao for exercising his right to freely express his opinion.   Even if “top state secret” could be technically determined as being leaked in this case (as we argue below, the criterion for determining what counts as “top secret” was never expertly evaluated), Shi Tao’s writings did not reveal any secret unknown on the Internet at the time.  More importantly, the author had no intention to, and his articles’ contents did not, endanger state security.

Moreover, the Chinese state is bound by its obligations to protect Chinese citizens’ right to free press and expression, as required by Article 19 of the UDHR: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”  From the perspective of constitutional rule, which China now aspires to build, in a case such as this one that involves citizens’ rights to know, to freedom of press and expression, when these rights conflict with state secret, a modern state practicing rule of law must prioritize protection of these rights. There was no evidence that international and constitutional obligations of the Chinese state had been taken into consideration in the Chinese courts’ deliberations. 

The case satisfies criterion under Category III,

“When the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character.”

Shi Tao was deprived of a fair trial for reasons given below.  The first trial of Shi Tao before the Changsha Municipal Intermediate People’s Court and the second trial after his appeal before the Hunan Provincial Higher People Court were riddled with violations of Chinese Criminal Procedure Law and international norms:

1. The Chinese Courts violated Shi Tao’s Right to Defense

At the basic level trial, the main defense lawyer was prevented from representing Shi Tao at court and putting on a defense for his client because authorities had found unrelated excuses to suspend the lawyer’s license. 

The Hunan Higher Court refused to give a chance for the defendant Shi Tao and his second-trial lawyer to present their defense arguments for his innocence at court when the court reviewed the case without notifying the lawyer.  On June 9, when the lawyer submitted their defense arguments to the court to be delivered at a re-trial, the Higher Court had already issued its final verdict, which cited defense by other lawyers who represented Shi Tao at the initial trial. The final verdict had been delivered without open a court session.  During a collegial panel held on June 2, the Higher Court never asked the defendant any questions or gave him a chance to present his self-defense.  After the final verdict was issued, during the two months of July and August, the defendant was denied access to legal council of his own choosing and was impeded in his preparation with the lawyer for his appeal to the PRC Supreme Court, because he was forced to undergo harsh pre-prison training at the Hunan Provincial Prison Control Detention Center.

The Hunan Higher Court violated Article 187 of the Chinese Criminal Procedure Law that only “after consulting the case file, interrogating the defendant and heeding the opinions of the other parties, defenders and agents ad litem,” if the collegial panel thinks the criminal facts are clear, the court “may open no court session.”  The court never interrogated the defendant nor heed the opinions of the defense lawyers before it decided not to open a court session. The Hunan Higher Court deprived Shi Tao’s right of defense, which is guaranteed by the PRC Constitution, Article 125, “All cases handled by the people's courts, except for those involving special circumstances as specified by law, shall be heard in public. The accused has the right of defense.”

This irregular procedure violates Article 11(1) of the UDHR, “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense,” and Article 14(3b) of the ICCPR, which guarantees anyone accused of a criminal charge “adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing,” as well as (3d), which requires the accused “to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing.”

2．The Chinese Courts Violated the Defendant’s Right to Appeal

On June 9, Shi Tao’s defense lawyer for his appeal submitted written application to the Hunan Provincial Higher Court requesting re-examining the evidence, subjecting the evidence to expert evaluation, and postponing the second trial.  But the Higher Court never responded. The retrial was replaced by a review panel, which Shi Tao’s defense lawyer was not present because the court had not informed the lawyer until after the fact.

The Higher Court’s failure to respond to appeal lawyers’ requests violated Article 159 of the Chinese Criminal Procedure Law, “During a court hearing, the parties, the defenders and agents ad litem shall have the right to request new witnesses to be summoned, new material evidence to be obtained, a new expert evaluation to be made, and another inquest to be held. The court shall make a decision whether to grant the above-mentioned requests;” Article 165, “A hearing may be postponed if during a trial one of the following situations affecting the conduct of the trial occurs: (1) if it is necessary to summon new witnesses, obtain new material evidence, make a new expert evaluation or hold another inquest; …” and Article 195, “A People's Court of second instance shall try cases of appeal or protest with reference to the procedure of first instance, in addition to applying the provisions in this Chapter.”

Due to these failures and impediments, the Hunan Higher Court violated his right to all facilities necessary for appeal and a fair trial, as stipulated in above-mentioned provisions in the Chinese Procedure Law and according to international norms such as those laid down in Article 11(1) of the UDHR and Articles 14(3b) and (3d) of the ICCPR.  The court fails to respect Shi Tao’s “right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law,” as provided in Article 8 of the UDHR.

3. The Chinese Courts Admission of “Evidence” Was Marred by Irregularities

Shi Tao was found guilty of "leaking state secrets abroad" by the Changsha Intermediate Court.  His “criminal activity” was sending articles to overseas Internet publications, in which he talked about an internal communication the authorities had sent to his newspaper, warning journalists of the dangers of social instability and possible incidents on the occasion of the15th anniversary of the Tiananmen Square massacre.  During the first trial, State Security officials confirmed that the message was "jue mi" (top secret). The prosecutor insisted that sending articles abroad for publication via the Internet was a crime punishable by imprisonment.  Shi admitted that he had sent the articles but contested that the articles contained “top secret” in nature and stated that he had no intention to endanger state security.

The Changsha Intermediate Court admitted the “evidence” provided by the State Security Bureau, which used Yahoo-provided records of email correspondence, without allowing defendant and his lawyers to challenge the legality of such “evidence” and the methods used to obtain it. The ten-year jail sentence was upheld on the same basis of such “evidence” by the Hunan Provincial Higher Court.  Shi Tao’s lawyer for the second trial argued that Shi Tao’s actions had in no way endangered state security. But the lawyer was not given a chance to present these arguments before the Higher Court.  (These arguments were not effectively presented at the initial trial either because the main defense lawyer was barred from attending after authorities suspended the lawyer’s license to practice law.)

Both courts used the prosecutions’ (the State Security) criterion for determining what counts as “top state secret.”  The courts failed to allow defense lawyers to call on independent expert witness to evaluate the legality of this criterion.  Admitting such “evidence” without due examination of its legality violates Shi Tao’s right to “a fair trial.”

Conclusion:

Shi Tao has not been detained in accordance with procedures established by Chinese law. His imprisonment is in violation of the international norm set forth in the ICCPR and the UDHR.  (Although China has not ratified ICCPR, it signed ICCPR and is thus obligated to not undermining the rights protected by ICCPR.)  Under ICCPR, Article 9 (1), “[e]veryone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.” The UDHR protects these fundamental freedoms, providing that “[n]o one shall be subjected to arbitrary arrest, detention, or exile” (Article 9) and that “[e]veryone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” (Article 10)  Given these considerations, particularly according to the Arbitrary Detention Working Group’s criteria set forth under categories II and III, Shi Tao’s imprisonment is arbitrary.  Meanwhile, between his arrest on November 23, 2004, and the delivery of the verdict of his first trial on April 30, 2005, Shi Tao was not allowed to meet with anybody (including his lawyers) except once with his mother and once with his wife.  After the Higher Court issued its final verdict in June, Shi Tao was again barred from seeing his lawyers in the two months of July and August. This constitutes cruel, degrading and inhumane treatment.(6)

III. Internal Steps, Including Domestic Remedies, Taken Especially With the Legal and Administrative Authorities, Particularly for the Purpose of Establishing the Detention and, as Appropriate, Their Results or the Reasons Why Such Steps or Remedies Were Ineffective or Why They Were Not Taken

Shi Tao does not accept the Hunan Provincial Higher Court’s final verdict issued in June 2005, which upheld the Changsha Intermediate Court’s guilty verdict and the sentence of 10-year imprisonment.  On August 21, 2005, Shi Tao (and his mother Gao Qinsheng on his behalf) publicly appealed to the PRC Supreme People’s Court and the Hunan Provincial Higher Court, requesting a review of the case and arguing for Shi Tao’s innocence.  In the appeal paper, Shi Tao’s mother says that the second trial was riddled with irregularities as listed above under IV.  Ms. Gao pleads the Supreme Court to activate the review and retrial procedures and guarantee the defendant his right to a fair trial. Shi Tao’s lawyers submitted to the Provincial Higher Court their “Legal opinion by defense lawyers concerning the final verdict issued by the Hunan Provincial Higher Court,” listing the legal irregularities of the court’s review process and the flaws of its argument for the final verdict.

Chinese law recognizes the second trial in a provincial court as the final trial. However, it allows defendant to seek legal remedy through the appeal procedure to request the Supreme Court to review the case and to grant another re-trial.  But, even if the Supreme Court accepts the appeal, reviews the case, and grants a retrial, such a retrial almost never overturns the provincial court’s final verdict.  There is only a possibility in theory.

So far neither the Supreme Court nor the Hunan Provincial Court has responded to Shi Tao’s appeal. There has been no response from the Higher Court to the lawyers’ legal opinion either.  It is common that these courts never respond to such requests. This irresponsiveness neglects the state’s responsibility to protect Shi Tao’s “right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law,” as provided in Article 8 of the UDHR.

Considering the Chinese judicial system’s failures to protect the fundamental rights and

freedoms guaranteed to Shi Tao under the ICCPR and the UDHR, and that such violations prevented him and those who would provide him legal aid from pursuing any domestic remedies; considering the reasons listed above of violations of the principle of judicial justice in the trials of Shi Tao; also considering the rareness that an appeal after the final verdict was delivered would influence or overturn the verdict, and that such an appeal is rarely even acknowledged, we conclude that domestic legal remedies have so far not been, and will not likely to be, effective.

(This paper was prepared with the legal council of CRD)

CRD

October 23, 2005