Submission to:
Working Group on Arbitrary Detention
Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
Communiqué
on behalf of Cao Haibo, citizen of the People’s Republic of China
I. IDENTITY
1. Family name: CAO (曹)
2. First name: Haibo (海波)
3. Sex: Male
4. Birth date or age (at the time of detention): April 23, 1985
5. Nationality/Nationalities: People’s Republic of China
6. Identity document (if any): ID Card, No. 320924198504237177
7. Profession and/or activity (if believed to be relevant to the arrest/detention): Manager of an Internet café, organized a website that promotes democracy and constitutionalism in China through posting articles and founding online discussion group
8. Address of usual residence: Chejiabi, Xishan District, Kunming City, Yunnan Province
(Current address of Cao’s wife Zhang Nian (张念)：Room 8, Unit 1, Building 5, No. 100 North Minjiang Road, Yibin City, Sichuan Province)
II. Arrest
1. Date of arrest: October 21, 2011
2. Place of arrest (as detailed as possible):At the Internet café Mr. Cao worked for, located at Chejiabi, Xishan District of Kunming City, Yunnan Province
3. Forces who carried out the arrest or are believed to have carried it out: National Security officers from the Xishan District Branch of the Kunming Public Security Bureau (“Kunming PSB”)
4. Did they show a warrant or other decision by a public authority? No
III. Detention
1. Date of detention: November 25, 2011
2. Duration of detention: From November 25, 2011 through the present (i.e., his detention is ongoing). According to the court’s decision, his 8-year sentence expires on November 24, 2019.
3. Forces holding the detainee under custody: Kunming PSB
4. Places of detention (indicate any transfer and present place of detention): the Xishan District Detention Center in Kunming City, Yunnan Province
5. Authorities that ordered the detention: Kunming Intermediate People’s Court
6. Reasons for the detention imputed by the authorities: subversion of state power (for trying to set up the “China Republican Party” and founding an online QQ chat group “振华会” or “Society to Strengthen China” to discuss ideas of constitutional democracy)
7. Relevant legislation applied (if known): Mr. Cao’s 8-year prison sentence for “subversion of state power” was ordered pursuant to Article 105 (1) of the Criminal Law of the People’s Republic of China, which stipulates fixed-term imprisonment of not less than 10 years or life imprisonment to those who organize, plot or carry out the scheme of subverting the state power or overthrowing the socialist system, and to ringleaders and others who commit major crimes.
IV. Describe the circumstances of the arrest and/or the detention and indicate precise reasons why you consider the arrest or detention to the arbitrary
Cao Haibo, a worker at an Internet café in Yunnan Province and organizer of a website that promotes democracy, was taken into police custody on October 21, 2011. The police did not present any official document for detaining him, and merely told Cao and his wife that Cao was summoned for “inciting subversion of state power.” When seizing Cao, officers from the Xishan District Branch of the Kunming PSB also searched his home and confiscated a number of items.
The handling of Cao’s case, including his trial and sentencing, was rife with procedural flaws and myriad violations of Chinese law. The Kunming City Intermediate People’s Court tried Cao in closed proceedings on May 22, 2012. That morning, Cao’ s wife, Zhang Nian (张念), applied at the court to observe the hearing. Shortly thereafter, Cao’ s attorney Ma Xiaopeng (马小鹏) received a phone call from a judge who told him that family members would not permitted to attend because “the case involves secrets.”
After the hearing, Zhang Nian and her newborn baby were allowed a five-minute meeting with Cao, the first family visit granted since Cao was detained in October 2011. On October 31, 2012, Cao was sentenced to eight years in prison for “subversion of state power,” a crime more serious than “inciting subversion of state power.” The verdict, which court authorities told lawyer Ma the next morning via a phone call, has not been made public nor delivered to Cao’s family or lawyer. Some news reports have speculated that the change to the more serious “subversion” charge was a warning to other Chinese netizens not to express views on, among other sensitive topics, the wealth of Premier Wen Jiabao’s (温家宝) family, which was exposed in detail by The New York Times in late October 2012.
According to the procuratorate’s indictment, Cao’s alleged “crimes” consisted of expressing his political views online through a QQ group that he created—“Society to Strengthen China” (振华会), where members have discussed democratic reform and constitutional rights—and posting his own articles on such topics. The harsh sentence against Mr. Cao was handed down at an extremely sensitive time in China, just as the top Chinese Communist Party leaders were in the middle of a tense political power transition, and with authorities nationwide staging a strident crackdown against activists and dissidents.
Under the Working Group’s criteria for determining when a deprivation of liberty is arbitrary, the circumstances of Mr. Cao’s detention satisfy both Category II (i.e., when the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20, and 21 of the Universal Declaration of Human Rights (UDHR)) and Category III (i.e., when the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the UDHR 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).
As the Working Group’s jurisprudence reflects, the crimes of “subversion of state power” and “inciting subversion” (Articles 105(1) and 105(2) of the PRC Criminal Law, respectively) are often used by the Chinese government to prosecute activists and dissidents for peaceful expression in violation of international human rights law. (See, e.g., Opinion No. 7/2012 (Chen Wei), Opinion No. 23/2011 (Liu Xianbin), Opinion No. 15/2011 (Liu Xiaobo), Opinion No. 32/2007 (Jin Haike and Zhang Honghai).) In its recent decision finding the detention of Mr. Chen Wei arbitrary, the Working Group observed:
[He] was arrested and convicted for the exercise of his right to freedom of expression through the publication of articles and reports critical of the authorities. The fact that these peaceful expressions of opinion are criminalized under domestic law as the “incited subversion of State power and overthrow of the socialist system” does not deprive him of his right under article 19 of the Universal Declaration of Human Rights. In this regard, the Working Group recalls that in another Opinion concerning the People’s Republic of China it emphasized that, although national laws might punish such conduct, it is, however, protected by the rights to freedom of opinion and expression and association in international law. (¶ 21, citing Opinion No. 32/2007.)
Mr. Cao—like Mr. Chen and others before him—has been convicted of a crime and given a harsh sentence solely on the basis of the peaceful exercise of his rights guaranteed under the UDHR. Accordingly, his detention is arbitrary under Category II.
V. Indicate 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.
Cao Haibo has appealed the verdict against him through his lawyer, Ma Xiaopeng. Ma believes that while the verdict of the first-instance trial would be hard to change, the punishment could possibly be reduced to five years or less.
In November 2012, more than 100 Chinese human rights activists signed an open letter addressed to Ma Ying-jeou (马英九), the Chairman of the Kuomintang in the Republic of China (Taiwan), calling for Ma’s attention to Cao’s case.
Background and additional information relating to previous arbitrary detentions as well as violation of the rights to freedom of opinion and expression:
According to Cao’s wife, Zhang Nian, she has received only one letter from Cao since he was detained in October 2011. Lawyer Ma brought some other letters to her, but she has doubted that those letters were actually written by her husband, since the style of the Chinese characters in those letters were obviously different from those in the letter that she believes he truly wrote. In addition, national security officials went to Zhang’s house to threaten her, and even asked her relatives to threaten her. These officials threatened Zhang to keep silent online, or otherwise her husband’s situation would worsen.