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On 1 February 2018, RSDLMonitor submitted a communication to the Office of the High Commissioner for Human Rights (OHCHR)'s Working Group on Enforced or Involuntary Disappearances on Chinese lawyer Yu Wensheng (余文生). An edited version of this communication can be found below.
On Yu Wensheng: Yu (male) was born in Beijing, China. He passed the bar exam in 1999, and has been practicing law in Beijing since 2002. Yu rose to prominence within the rights defense community for representing politically sensitive cases, assisting other persecuted lawyers, and for his high-profile advocacy for political reform. On his disappearance: Yu was detained by Beijing police on 19 January 2018.
By 24 January, Beijing police claimed his case had been transferred to another branch, but refused to say which. On 27 January, his wife was shown a document stating that Yu had been placed under 'Residential Surveillance at a Designated Location' under Tongshan PSB, Xuzhou City, Jiangsu Province. On current situation: Yu stands accused of 'inciting subversion of state power', a crime under the category of 'endangering state security'. This means the police have the right to conceal his whereabouts, deny access to family and legal counsel, and to keep him incommunicado. He can legally be kept in RSDL for six months, and will likely be held in solitary confinement.
No court approval is needed for RSDL. Of concern. Based on information from prior victims of RSDL, especially within the rights defense community, and those accused of 'endangering state security', it is very likely that Yu will be kept in prolonged solitary confinement, be kept incommunicado, be denied oversight and supervision by the prosecutors office, and that he will face physical and mental torture.
WORKING GROUP ON ENFORCED OR INVOLUNTARY DISAPPEARANCES
Edited for brevity and clarity for general readership
COMMUNICATION FORM
INFORMATION CONCERNING THE DISAPPEARED PERSON
(a) * Family name(s): Yu (余) (b) Given names(s): Wensheng (文生) (d) Sex: male (e) Occupation/profession: Lawyer ID information removed. (g) Date of birth: 1967-11-11 (h) Place and country of birth: Beijing, China (k) Nationality or nationalities: Chinese
INFORMATION CONCERNING THE FACTS
(a) * Date of arrest, abduction or disappearance
(b) * Place of arrest, abduction or where the disappearance occurred Detention. Yu was detained by Beijing City, Shijingshan District, Public Security Bureau, i.e., Police (PSB) along with a SWAT team on the parking lot next to Gusheng Road, Shijingshan District, Beijing at roughly 06.30am, January 19 (2018). At the time, he was walking his 13-year-old son to school. Yu was taken to Shijingshan District Police Station and charged with “disrupting public service”. Disappearance. Police at Shijingshan District Detention Center (石景山区看守所) holding Yu told lawyers on January 24, and again on January 25 and 26, that his case had been transferred to another organ, and thus Yu was no longer under their control. They refused to provide any other information. On the evening of January 27, Beijing PSB accompanied by the Tongshan District PSB, Xuzhou City in Jiangsu Province, searched Yu’s home between 9pm and 1am the next morning. Xu Yan (许艳), Yu’s wife, was present. During the search on the house, Tongshan District PSB gave Xu a document stating Yu had been placed under Residential Surveillance at a Designated Location (RSDL) under their authority, and his charge had been changed to “inciting subversion of state power” (Article 105 of China’s Criminal Code), which is categorized as a crime of endangering national security. This document did not indicate where Yu was being held and neither was Xu told, then or since.
--- Note on RSDL ---
‘Residential Surveillance at a Designated Location’ is a compulsory measure police can take against a suspect that does not require court approval (Article 72 of China’s Criminal Procedure Law or CPL) and takes place outside of a detention center or case-handling area. The suspect can be kept under RSDL for up to six months. The police may refuse the person access to legal counsel (Article 37, Paragraph 3 of the CPL) and they may also refuse to notify the family of the whereabouts of the person (Article 83 of the CPL) if the charges against them fall under the category of endangering national security. The legal requirement on RSDL oversight stipulated in the Provisions on People’s Procuratorates' Oversight of Residential Surveillance in a Designated Location, only states (Article 17) that the procuratorate may conduct visits to supervise the use of RSDL on the suspect and speak with the suspect and that such supervision should not impede the investigation (Article 19). Police have the authority to determine whether such supervision would impede the investigation. If these exceptions of endangering national security are invoked, the family of someone being held under RSDL will not be notified of their location nor will the suspect have access to a lawyer for the entire duration of RSDL. Furthermore, there will be no oversight from the procuratorate. Based on the prior use of RSDL, this means the detainee will be held in solitary confinement and may also be subjected to physical and mental torture during this period.
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Further actions relevant to the case. The same day as Yu’s detention (January 19), Shijingshan District PSB searched both Yu’s home and his office where they confiscated computers, documents, and cell phones. On January 27, police again raided Yu’s family home. At around 9pm that day, the electricity to the house was cut. When Xu Yan (Yu’s wife) and their son went outside to check, the police (officers from both Shijingshan and Tongshan Districts PSBs) stormed the apartment. They confiscated their mobile phones and spent the next four hours searching the house and confiscating other materials until 1am the next morning (January 28). In violation of Article 138 of the CPL, they did not ask Xu to sign a record of the search. Furthermore, they did not provide Xu with a list of all materials confiscated for inspection and signature, nor give her a copy of such a list, in violation of Article 140 of the CPL.
During the search, Tongshan District PSB (Xuzhou City) officers gave Xu a notice stating that Yu had been placed under RSDL. The notice also said his charge had been changed to “inciting subversion of state power” and that he was now under the jurisdiction of Tongshan District PSB. At the end of the search, Shijingshan District PSB also summoned Xu related to charges of “inciting subversion of state power”. She was taken to Guang Ning Police Station, Shijingshan District, Beijing, where she was interrogated overnight and again in the morning the next day.
Around 2pm that day, January 28, police took Xu home and again searched the house. This time they collected a number of Yu’s files related to religious cases as well official United Nations materials. At that point, Xu was released, but in violation of Article 84 of the CPL, Xu was neither shown nor given a release notice.
Note: Although the document stating that Yu had been placed under RSDL was dated January 27, 2018, police at the Shijingshan District Detention Center (石景山区看守所) said on January 24, 2018 that Yu’s case had been transferred to another organ, and thus Yu was no longer under their control.
(c) * Date when the person was last seen
Around 06.30am, January 19, 2018 (his 13-year-old son, witnessed his father being detained by police on Gusheng Road, Shijingshan District, Beijing City). Yu’s last known whereabouts, according to the detention warrant, was Shijingshan District Detention Center (石景山区看守所).
(d) * Place where the person was last seen Same as answer to 2(c) above. (e) Please, provide a full description of how the disappearance took place Around 20 police officers from Beijing Shijingshan District PSB, and members of a SWAT team, surprised and surrounded Yu and his son, at around 0630am on January 19, 2018 as he was walking his son to school. A physical encounter between Yu and the police officers then ensued. Yu was placed into a vehicle and driven off. The son rushed home to their apartment to tell his mother what had happened.
(f) * State or State-supported forces believed to be responsible for the disappearance.
Official documents state that Yu Wensheng’s initial detention was carried out by the Beijing City, Shijingshan District PSB. His subsequent transfer to RSDL was under the authority of Tongshan District PSB (Xuzhou City) in Jiangsu Province. This was likely only possible with approval and coordination by a higher-level police authority. Yu’s case has no direct connection with Xuzhou, and the reason for this transfer is also likely because the police want his case to be handled far from Beijing, where Yu was born and has been living and working, and thus has a support network.
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The disappearance of Yu Wensheng stands in violation of numerous counts of the International Convention for the Protection of All Persons from Enforced Disappearance By refusing to acknowledge the whereabouts of Yu after placement in RSDL, Tongshan District PSB (Xuzhou City) stands in violation of Article 2. By refusing to state to which organ Yu has been transferred to Beijing Shijingshan PSB also stand in violation of the same Article. The denial of his whereabouts per definition makes his detention secret, in direct violation of Article 17, Paragraph 1.
Lawyers and his family have been denied the right to communicate with Yu in any form, in violation of Article 17, Paragraph 2, Subsections D, E and F. By concealing Yu’s current whereabouts, Tongshan District PSB (Xuzhou City) are in violation of Article 17, Paragraph 3, Subsection E, while Beijing Shijingshan PSB is in violation of Subsection H. Tongshan District PSB (Xuzhou City) is also in violation of Article 18, Paragraph 1, Subsection B, while Beijing Shijingshan PSB is in violation of Subsection D.
(g) If identification as State agents is not possible, please indicate why you believe that Government authorities, or persons linked to them, may be responsible for the incident. Official documents and his son’s testimony are evidence that Yu Wensheng is under the custody of Chinese police.
(h) If there are witnesses to the incident, please provide their names and relation to the victim. If they wish to remain anonymous, indicate if they are relatives, by-standers, or others. If there is evidence, please specify. Yu’s son, witnessed the initial detention on January 19, 2018. Police showed his wife, Xu Yan, her husband’s detention warrant on January 20 and later the document stating he had been transferred into RSDL on January 27.
(i) Additional Information on the case. Please indicate any other relevant information that could be useful to find the person.
About Yu Wensheng: Yu is one of China’s most well-known lawyers. He passed the bar exam in 1999 and has been working as a lawyer since 2002. Yu was detained twice before, in 2014 and 2015. He attempted to file a lawsuit against Beijing PSB for the torture he endured during his 99-day detention in 2014. In mid-2017, Yu’s application to renew his lawyer license was rejected after he tried to represent fellow lawyer Wang Quanzhang, who disappeared in July 2015. On January 12, 2018, his application to set up a new law firm was rejected, because he had publicly expressed opposition to leadership of the Chinese Communist Party. On January 15, 2018, his lawyer license was revoked, on the grounds that he had not been employed by a law firm for six months (note: in China, you cannot be employed as a lawyer by a law firm without a valid lawyer license). On January 18, 2018, the day before his detention, he posted an open letter online calling for political reform.
INFORMATION CONCERNING ACTIONS TAKEN AFTER THE DISAPPEARANCE
* Indicate any action taken taken by the relatives or others to locate the person. You are required to state the following: when, by whom, and before which organ the actions were taken.
(a) Complaints Between January 19 and January 26, seven (7) different lawyers, several of whom have written powers of attorney to represent Yu, visited the Shijingshan District Detention Center (石景山区看守所) for a total of nine (9) times. All were denied access to Yu either because the detention center was closed or that the visit had not been given prior approval. On January 24 (and again on January 25 and January 26) the center said his case had been transferred to another organ.
(b) Other steps taken Xu Yan, Yu Wensheng’s wife, visited Shijingshan District Detention Center several times, requesting permission to see her husband and to deposit funds for his use inside the detention center. Both requests were denied.