The following is based on a communication written by the UN Special Rapporteur on Human Rights Defenders and other UN experts to the Government of China on 20 November 2024. The communication remained confidential for 60 days before being made public, giving the Government time to reply. The Government replied on 13 January 2025, which was recently translated and made available.
After the communication was sent, the Special Rapporteur received information that Xu Zhiyong had stopped his hunger strike on 29 October 2024, mainly because of threats against his family. He was reportedly allowed to meet with his lawyer in late November 2024. According to the information received, the meeting was heavily monitored, with strict restrictions on the topics of discussion. Prison guards reportedly intervened with warnings whenever the conversation touched on his prison conditions, hunger strike, or communication rights, which remain unprotected.
This is a shorter version of the original communication.
BACKGROUND
Topic: the reported dire conditions of human rights defender Mr. Xu Zhiyong in detention, whose health is reportedly deteriorating after he has been on a hunger strike since the beginning of October 2024 to protest the violation of his human rights in prison.
Mr. Xu Zhiyong is a human rights defender and legal activist who has worked since 2003 to promote a culture of peace and non-violence, provide legal assistance to homeless people and individuals facing the death penalty and advocate for legal reform in China. He founded the “Open Constitution Initiative”, which later gave rise to the “New Citizen’s Movement”, a network of human rights defenders, academics, lawyers and other activists promoting human rights, political reform, social justice and democracy.
On 10 April 2023, Mr. Xu was found guilty of “subversion of state power” under article 105(2) of the Criminal Law of the People’s Republic of China and sentenced to 14 years in prison by the Linshu County Court in Linyi City in Shandong province. He was arrested in December 2019 after convening a peaceful gathering of human rights defenders in Xiamen focusing on issues such as the rule of law, democratic reforms, and human rights in China. Before being sentenced, he has been in pre-trial detention since February 2020 for over three years, reportedly without access to a lawyer for the first thirteen months. It has been alleged that, during his pre-trial detention, he was subjected to torture and ill-treatment while undergoing “residential surveillance in a designated location” (RSDL), a form of secret detention without access to family members or a lawyer.
Mr. Xu had previously been sentenced to four years in prison for “gathering crowds to disrupt public order” under article 290 of the Criminal Law of the People’s Republic of China, in connection to his human rights work with the New Citizen’s Movement. He was released in July 2017.
We raised concern about the abovementioned allegations in a number of communications to the Chinese Government, including CHN 5/2023, CHN 2/2022, CHN 4/2021, CHN 8/2020, CHN 12/2013, CHN 8/2013, CHN 29/2010, and CHN 21/2009.
We further recall that the Working Group on Arbitrary Detention issued an opinion in 2020 concerning the detention of Mr. Xu (A/HRC/WGAD/2020/82). In this opinion, the Working Group considered that the deprivation of liberty of Mr. Xu lacks a legal basis and is thus arbitrary, falling under category I; his detention was resulted from his legitimate exercise of the rights and freedoms under articles 19, 20(1) and 21(1) of the Universal Declaration, falling under category II; his detention is in violation of the right to a fair trial and due process, falling under category III; and his detention constitutes a violation of articles 2 and 7 of the Universal Declaration of Human Rights as well as principle 5 of the Body of Principles on the grounds of discrimination based on political views and status as a human rights defender, falling under category V of the criteria for the determination of arbitrary detention.
ALLEGATIONS
On 4 October 2024, Mr. Xu began a hunger strike at the Lunan Prison in Shandong province, where he is held, to protest the inhuman treatment he has reportedly been subjected to while in detention, as well as other violations of his rights, including the restricted contact with his family members. Since then, he has reportedly lost weight. It is unclear whether Mr. Xu has been given access to medical care during his hunger strike. Human rights activists close to Mr. Xu fear that the conditions in which he has been held may lead to permanent complications or seriously put his life at risk.
In recent months, Mr. Xu has been held in a cell with three other inmates, who have allegedly been harassing him and keeping him under continuous monitoring, reportedly upon the request of prison officials, including by escorting him to the toilet. It has also been reported that the prison system refers to Mr. Xu as “prisoner no. 003”, using a code name instead of his real name. Furthermore, his recent attempts to send letters to his family members and partner and to call them have allegedly been often hindered, which limited his capacity to communicate with them. Mr. Xu’s family members are allowed to visit him once a month. However, they have reportedly faced threats, harassment and intimidation, as they were allegedly warned against divulging information about the human rights defender. Mr. Xu has also not been able to have access to a legal representative allegedly since April 2023.
CONCERNS
In the communication, we express our utmost concern about the reported dire condition of Mr. Xu in detention and his deteriorating health. We are particularly preoccupied about Mr. Xu’s health status in light of the allegations received with regards to the ill-treatment he has reportedly been subjected to while in detention, which might have made him more exposed to health issues. We further wish to raise concern about the allegations concerning the constant monitoring of Mr. Xu in detention, which not only places additional pressure on him but also violates his right to privacy and deprives him of his dignity. Mr. Xu’s reported restricted access to his family and a lawyer is also worrisome. We urge the Chinese Government to ensure Mr. Xu has access to adequate medical care during his hunger strike and can regularly and unhinderedly communicate with his family members and receive visits from them.
In this context, we recall that persons deprived of liberty must always be treated in a humane manner and with respect for their inherent dignity. They shall always have access, inter alia, to effective legal representation and adequate medical assistance; prompt judicial review of their initial and continuing deprivation of liberty; remedies for any violations; and have the possibility to communicate with a lawyer of choice, their relatives and to be visited by independent human rights monitoring bodies.
We wish to emphasize that the prohibition of torture and other cruel, inhuman or degrading treatment or punishment is absolute and non-derogable. No circumstances, no matter how exceptional they may be, can ever justify torture or ill-treatment nor any form of impunity for such acts.
Further, we would like to call for Mr. Xu’s immediate and unconditional release, recalling that the arrest, conviction and sentencing of human rights defenders for carrying out their legitimate work, or for exercising their human rights, including for convening a peaceful assembly, under the pretext of national security is incompatible with international human rights law. Given that Mr. Xu was convicted for “subversion of State power”, which falls under China’s national security legislation, we reiterate our alarm at the continued use of national security provisions of the Criminal Code to restrict the rights to freedom of expression, association, and peaceful assembly.
We wish to recall that according to international standards, States must guarantee that those who practice law can do so free from intimidation, obstacles, harassment, or interference. The free exercise of the legal profession contributes to ensuring access to justice, oversight of state power, protection of due process and judicial guarantees.
