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1. The UN WGAD letter concerning CHRD submission about Shi Tao
(For CHRD Oct. 23, 2005 Submission to WGAD, see "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" at: /Article/Class9/Class14/200510/20051023153942_602.html
2. The Chinese government's reponse to WGAD
3. CHRD response to the government's claims
1. The UN WGAD letter
NATIONS UNIES
HAUT COMMISSARIAT AUX DROITS DE L’HOMME |
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UNITED NATIONS
HIGH COMMISSIONER FOR HUMAN RIGHTS |
Téléfax: (41) (0) 22 917 90 06
Télégrammes: UNATIONS, GENEVE
Téléx: 41 29 62
Téléphone: (41) (0) 22 917 92 89
Internet www.unhchr.ch
Email: mdelalama@ohchr.org
Address:
Palais des Nations
CH-1211 GENEVE 10
REFERENCE: G/SO/218/2
YOIR REFERENCE: Your communication dated 20 October 2005
18 August 2006
Dear Mr. XX,
As you know, the Working Group on Arbitrary Detention, in accordance with its methods of work, transmitted the case of the detention of Mr. Shi Tao to the Government of the People’s Republic of China, which has submitted the attached reply.
In order to consider this case during its 46th session, the Working Group would like to know your comments or observations to the Chinese Government’s reply, through our fax N° (41) (0) 22.917.90.06 or our postal address, at your earliest convenience and before 25 August 2006:
Working Group on Arbitrary Detention,
Office of the United Nations High Commissioner for Human Rights,
Bureau P.W.3.010
Palais des Nations,
8-14 Avenue de la Paix,
CH-1211 Genève 10.
Please remind that all information given to you by the Working Group on this matter should be treated with utmost discretion.
Yours sincerely,
Miguel de la Lama
Secretary
Working Group on Arbitrary Detention
2. Chinese Government Response to UN WGAD Communication Concerning Shi Tao
(Translated from Chinese)
Receipt is acknowledged of communication UA G/SO 218/2, dated 22 December 2005, from chair of the Working Group on Arbitrary Detention of the United Nations Commission on Human Rights. The Chinese Government has carefully examined the matters referred to in the communication and wishes to submit the following response.
I. Basic circumstances
Shi Tao, male, born 25 July 1968, ethnic Han Chinese, university graduate, from 11 February to 22 April 1994 employed on the Hunan Province Modern Business Daily, where he was in charge of the editorial department. On 20 April 2004, Shi Tao used his own office Internet equipment to send material that he had transcribed from secret official documents by e-mail to an Internet site abroad.
On 31 January 2005, the Changsha city procurator’s office in Hunan province instituted proceedings against Shi Tao with the Changsha city intermediate level court, for the offence of unlawfully transmitting State secrets to persons outside the country. Because the materials in question involved State secrets, in accordance with the relevant provisions of the Code of Criminal Procedure, the Changsha city court decided, on 11 March 2005, to consider the case in closed session.
In the proceedings the court concluded that the suspect Shi Tao had knowingly supplied highly secret State intelligence in his possession to an organization outside the country, seriously endangering State security and resulting in a situation of extreme gravity, and that his conduct constituted the offence of unlawfully transmitting State secrets to persons or bodies outside the
CHR/NONE/2006/123
GE.06-12298 (E) 140806 150806
country. In accordance with article 111, article 55, paragraph 1, and article 56, paragraph 1, of the Criminal Code, on 30 April 2005 the court sentenced Shi Tao, at first instance, to 10 years’ fixed-term imprisonment, stripping him of his political rights for two years.
During the court proceedings, in accordance with the law, Shi Tao appointed Tong Wenzhong, a lawyer with the Tianyi Attorneys Office in Shanghai, to act in his defence in the trial and he also conducted his own defence. The court fully upheld both Shi Tao’s and his counsel’s defence rights.
Following the proceedings at first instance, Shi Tao did not accept the verdict and lodged an appeal, on the grounds that the circumstances of his offence had not been particularly serious, it had not caused any serious consequences, he had displayed a good attitude in admitting his guilt and the sentence had been excessively severe.
The Hunan provincial high court ruled at second instance that Shi Tao had, by use of the Internet, knowingly supplied highly secret State intelligence which had come into his possession through his work to an organization outside the country, that his conduct had seriously endangered State security and constituted the offence of unlawfully transmitting State secrets to persons or bodies outside the country, that this offence had resulted in a situation of extreme gravity, and that the arguments put forward by Shi Tao in his own defence and those of his defence counsel had no substance, and on 2 June 2005 his appeal was dismissed and the original judgement was upheld.
During the proceedings at second instance, Shi Tao was defended by the lawyers Mo Shaoping and Ding Xikui, from the Mo Shaoping law firm in Beijing.
With regard to the appeal lodged on Shi Tao’s behalf by his mother with the Supreme Court, following an investigation, the Supreme Court determined, in accordance with the rules for the hearing of appeals, that the letter of appeal should be referred to the Hunan provincial high court. The Hunan provincial high court reviewed the case and ruled that grounds for the appeal had no substance; accordingly, no case-file was opened on the matter.
II. Explanation
(a) Article 111 of the Chinese Criminal Code stipulates: "Any person who steals, secretly gathers, purchases, or illegally provides State secrets or intelligence for an organization, institution or individuals outside the country is to be sentenced from not less than 5 years to not more than 10 years of fixed-term imprisonment; when the circumstances are particularly serious, that person is to be sentenced to not less than 10 years of fixed-term imprisonment, or to life imprisonment; and when the circumstances are relatively minor, to not more than 5 years of fixed-term imprisonment, short-term detention in custody, placement under surveillance or deprivation of political rights." Shi Tao’s conduct constituted an offence and had nothing to do with exercise of the freedom of expression or opinion.
(b) Throughout the course of these proceedings, the Chinese judicial authorities strictly respected the legal provisions of the Chinese Criminal Code, the Chinese Code of Criminal Procedure and other instruments, the proceedings were held in open court and Shi Tao’s lawful rights as a person suspected of commission of an offence were upheld.
The Chinese Government respectfully requests that the content of the above response be incorporated in full in a relevant document of the United Nations.
3. CHRD response to the Chinese government's claims
August 30, 2006
Working Group on Arbitrary Detention,
Office of the United Nations High Commissioner for Human Rights,
Bureau P.W.3.010
Palais des Nations,
8-14 Avenue de la Paix,
CH-1211 Genève 10.
Dear Chair of WGAD,
The Network of Chinese Human Rights Defenders (CRD), a non-governmental organization of activists in China and from the international community, is encouraged by the fact that a response, pursuant to our report of arbitrary detention to the UN WGAD of October 2005, from the Chinese government to communication UA G/SO 218/2, dated 22 December 2005, from chair of the Working Group on Arbitrary Detention of the United Nations Commission on Human Rights. CRD has reviewed the Chinese Government’s explanation of the matters referred to in the communication and wishes to submit the following response.
Response to the Government’s "Explanation (a)"
This explanation consists of quoting a stipulation on punitive terms for "stealing" state secret from the Criminal Code. It then concludes, "Shi Tao’s conduct constituted an offence and had nothing to do with exercise of the freedom of expression or opinion." Unfortunately, the government fails completely here to address the key issue of this case: Whether there is any evidence that Shi Tao disclosed any state secret.
The failure to address this question undermines the government’s case for sentencing Shi Tao for 10 years for leaking state secret. It leaves room for arguing, as Shi Tao’s lawyers did in court and as we stated in our reporting to UN WGAD, that, given the lack of any response to the legal argument that what Shi Tao published on the Internet did not involve any state secret, and he was punished for posting articles critical of the government on the internet. Thus we consider that the government has no response whatsoever to the claim we made in our report that
"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.
The imprisonment of Shi Tao, therefore, cannot be ruled as "having nothing to do with" exercising the freedom of expression or opinion.
A more serious and general concern is with a dangerous defect in the Chinese legal system, which allows authorities to use "leaking state secret" or "providing abroad state secret or intelligence" to prosecute people for exercising free speech/expression.
The State Secret Law requires all state secrets to be ascertained by the state secret authority and marked as "state secret." The authority needs to take measure to protect the item deemed as state secret. In Shi Tao’s case, the state secret item in question did not satisfy this requirement but rather through a post facto confirmation by the state secret authority. This invites a question on predictability of this particular state secret. Despite the person who orally delivered the notice in question claimed that he asked the audience to keep it confidential, it by no means assigned the item/notice a status of state secret, as Shi Tao’s lawyers argued.
Article 111 of the Chinese Criminal Code creates a dangerous concept of "intelligence," though not specified in the judgment of Shi Tao’s case, and it subjects many people especially journalists/writers to a undue risk. According to an interpretation of the Supreme People’s Court, virtually any information, even not a state secret, can be categorized as an intelligence if a court find the information so critical to state security/interest. Despite not explicitely mentioning this concept, it did provide some guidance to the court in determining the guilt of Shi Tao.
Response to the Government’s "Explanation (b)"
This explanation fails to address the specific charges by lawyers and in our report of procedural irregularities, where the Chinese judicial authorities failed in multiple accounts to respect the legal provisions of the Chinese Criminal Code, the Chinese Code of Criminal Procedure and other instruments, which resulted in the violation of Shi Tao’s lawful rights. This failure entails that our claims, see below, remain unchallenged:
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."
2The 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."
In addition, 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, 2005. This constitutes cruel, degrading and inhumane treatment.
Based on the above reasons, we believe that Shi Tao’s detention resulted from the charge of leaking state secret and the irregular trial by the Hunan Higher People’s Court should be deemed arbitrary.
CRD respectfully requests that the content of the above response be incorporated in full in a relevant document of the United Nations.
Contact for this communiqué:
Renee Xia
The Network of Chinese Human Rights Defenders
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