On 14 February 2024, the UN Special Rapporteur on the independence of judges and lawyers, Margaret Satterthwaite, sent a letter to the government of the People’s Republic of China on patterns of human rights violations affecting human rights lawyers inside the country.
In the 12-pages letter, only made public on 14 April 2024 after a two-months confidential period, the UN expert examined two administrative measures on lawyers’ practice and on law firms, determining they are ‘not in line with international standards related to the right to fair trial, and may in their application, limit the functions of lawyers in China by restricting both their work and their freedoms.’
The 2016-amended Administrative Measures for the Practice of Law by Lawyers lists a range of prohibited behaviours for lawyers, including ‘instigating sit-ins, holding banners, shouting slogans, expressing solidarity’, as well as ‘using the Internet or media to provoke dissatisfaction with the [Chinese Communist] Party (CCP) or the government’, or defending ‘evil cults’ (a term employed to refer to Falun Gong practitioners). The 2018-amended Measures on the Administration of Law Firms allows for the revocation of the license of law firms if they do not dismiss or take action to sanction lawyers engaging in these behaviours. Both measures further tighten ideological control over the legal profession, stipulating that ‘lawyers shall have supporting the leadership of the CCP and supporting the socialist rule of law as basic requirements for practice.’
The Special Rapporteur also inquired into the annual inspection system of lawyers by law firms under the oversight of the Ministry of Justice, taking place between March and May each year.
In her letter, the UN expert refers to 12 letters sent to the government on individual cases since 2018, including Li Yuhan, Ding Jiaxi, Xu Zhiyong and Qin Yongpei, Tang Jitian, Chang Weiping, and Yu Wensheng.
She further scrutinises legal provisions and government practices in light of China’s obligations under international human rights law and standards, including to respect and protect the right to a fair trial under the Universal Declaration of Human Rights (UDHR) and binding customary law, and the Basic Principles of the Role of Lawyers.
She raises concerns at patterns of human rights violations resulting from the implementation of these measures ‘taken against lawyers handling sensitive cases’, and interfering in the exercise of the legal profession. This includes the de facto disbarment of human rights lawyers, through suspension or revocation of their licenses. These patterns ‘may open the door to systematic violations of the right to a fair trial and equality before the law’ and create a ‘chilling environment’ for human rights lawyers taking sensitive cases.
The Special Rapporteur finds that:
- China engages in a ‘pattern’ of ‘us[ing] the legal provisions to revoke or suspend the practising license of many human rights lawyers since 2017’, given that ‘the application of these Measures provides the Chinese authorities with the power to deny, temporarily or indefinitely, the right to practice to lawyers’ and that ‘without employment, a lawyer’s license to practice can be invalidated indefinitely after six months.’ These measures are taken ‘without any process for the lawyer to object to or appeal.’
- ‘China has implemented these laws to charge lawyers handling sensitive cases with national security crimes under China’s Criminal Law, in particular for “subversion of State power” or “inciting subversion” (article 105), charges that carry lengthy prison sentences.’
- These Measures ‘may in practice restrict lawyers from exercising their professional duties in defending the rights of clients, as they limit some of the methods lawyers may use, especially public activities aiming at objecting to the treatment of their clients, in the legitimate exercise of their profession.’
- These Measures ‘may also be a deterrent to lawyers considering taking on certain sensitive cases’. As a result, ‘clients, especially human rights defenders and those accused of crimes under national security legislation, may be deprived of independent legal representation if lawyers face consequences for representing them.’
- These restrictions are ‘reinforced by the sanctioning effect of the annual inspection process’ and the ‘imposition of a requirement that law firms assess the work of lawyers.’ The annual inspection system ‘may provide the opportunity to threaten and punish lawyers and law firms that are handling sensitive cases,’ in particular when the authorities ‘delay announcing the results of annual inspections, or suspend or even ban lawyers from participating.’
- The implementation of these Measures ‘risks leaving lawyers without a livelihood’ and places ‘great financial and social pressure’ on lawyers and their law firms.
According to research by The 29 Principles, ISHR and Chinese Human Rights Defenders, at least 42 rights lawyers and three law firms have been penalised either by having their license suspended or revoked between January 2017 and October 2021.
While condemning these undue restrictions to lawyers’ rights to freedoms of religion, expression, peaceful assembly, and association, the UN expert reminds the government that restrictions are only permissible under international human rights law if they ‘meet the tests of legality, necessity and proportionality.’
The Special Rapporteur also proceeds to raising specific concerns at a range of practices targeting human rights lawyers, most often on national security grounds. This includes enforced disappearances under Residential Surveillance at a Designated Location (RSDL), detention and closed-door trial of lawyers, the imposition of government-appointed lawyers, deprivation of political rights, and travel bans (see ‘Background’ (below) for an overview of these findings).
China must review its regulations on lawyers and law firms
In light of these elements, the UN Special Rapporteur calls on the Chinese government to ‘review and reconsider these laws and administrative regulations to ensure that they are in compliance with relevant international human rights standards.’ This review must comply with four benchmarks :
- Any laws and measures should allow lawyers to perform their duties without harassment or improper interference, to freely consult their clients, not to be threatened or suffer from prosecution or other sanctions for discharging their functions, and to enjoy their freedom of expression, belief, association and assembly, and right to take part in public discussion of judicial and other matters;
- Mechanisms for effective and equal access to lawyers should be provided to all individuals without distinction, and those charged with crimes should have prompt and private access to a lawyer of their choosing;
- Law firms should not be deputized with the role of assessing the conduct of lawyers and measures implementing such duties should be repealed;
- Lawyers must be able to retain their license to practice regardless of their employment status and this right may only be terminated by an impartial disciplinary committee on the basis of recognised standards and ethics of the legal profession.
The Special Rapporteur further calls on the Chinese government to:
- Repeal Article 105 of the Criminal Law providing for the crimes of ‘subversion of State power’ and ‘inciting subversion’ and any legal provisions allowing for the use of RSDL under China’s Criminal Procedure Law, as previously called for by UN experts;
- Repeal restrictions to the right to counsel and to family notification on national security grounds, as called for by the UN Committee Against Torture in 2015;
- Take all necessary measures to ensure that the pattern of targeting of lawyers is corrected and to extend remedies to those who have already experienced harm as a result of the implementation of these regulations;
- Take all interim measures to halt the alleged violations and prevent their re-occurrence, and to ensure the accountability of those responsible for the alleged violations.
As of 19 April 2024, the Chinese government has not provided an official response to the Special Rapporteur’s letter.
Human rights lawyers are a cornerstone of China’s human rights movement. From Uyghurs, Tibetans and Hong Kongers, to religious minorities, LGBTQI and feminist advocates, journalists, and political dissidents: human rights lawyers defend the full spectrum of civil society. They accompany and empower the most vulnerable against land evictions, discrimination, health scandals, or extra-legal detention. They embody the promise of rule of law and hold the government accountable to its commitments under China’s constitution, laws, and the international human rights treaties it has ratified. They ensure that no one is left behind.
Since 2023, the Chinese government has been carrying out a new crackdown on human rights lawyers inside the country, through new detentions and harsher prisons sentences on national security grounds, disappearances, travel bans, and harassment of family members, with meager international reaction.
Background: other patterns of violations targeting human rights lawyers
In addition to the implementation of the Measures related to lawyers’ practice, law firms, and the annual inspection system, the UN Special Rapporteur raises concerns over a range of patterns of human rights violations targeting human rights lawyers.
Enforced disappearance under RSDL
The UN Special Rapporteur recalls previous concerns expressed by UN experts in several letters to the government about ‘RSDL as a form of enforced disappearance.’ She stresses that ‘lawyers held under RSDL are interrogated and often at risk of being tortured to extract confessions.’
She further determines that ‘the practice of imposing RSDL without judicial oversight, without formal charges, in conditions amounting to incommunicado detention or solitary confinement, contravenes article 9 of the UDHR and the right of every person not to be arbitrarily deprived of liberty and to challenge the lawfulness of detention before a court and without delay.’
For detailed information, see ISHR’s campaign to call on the Chinese authorities to #RepealRSDL.
Designation of ‘government-appointed lawyers’
The UN expert finds that lawyers appointed by arrested or indicted individuals or their relatives ‘are impeded from accessing court documents and representing the victim.’ Instead, the government assigns lawyers, whose identities ‘are not disclosed to families,’ who ‘often refuse to communicate with relatives,’ and who ‘often fail to present a substantive defense, relying instead on allegations forwarded by the authorities.’
ISHR has documented this practice during previous detentions of lawyers Yu Wensheng and Chen Jiahong.
Closed-door trials
The UN expert finds that ‘detained lawyers are often convicted during closed-door trials, without notification to families nor disclosure of court verdicts, often for prolonged periods.’ She determines that ‘guarantees of the rights to a fair trial [in Article 11 of the UDHR and customary law] are violated by the pattern of practice that China is using in relation to detention and trial of lawyers.’
ISHR research finds that sentences are often notified orally through the defense lawyer, or directly through a government official; yet, in most occasions, relatives do not receive the written sentence. This appears to contravene provisions of China’s Criminal Procedure Law stipulating that written judgments shall be sent ‘within 5 days’ (article 202).
ISHR has documented this practice for the trials of Chang Weiping, Ding Jiaxi, Li Yuhan, Yu Wensheng, and Xu Zhiyong: in these cases, the authorities released the sentences nearly one year after the trial. The sentence was released two years after the date of trial in the case of lawyer Li Yuhan.
Deprivation of political rights
The UN expert describes patterns of supplemental sentences of deprivation of political rights handed to convicted lawyers. Under China’s Criminal Law, these sentences ‘deprive’ individuals of their electoral rights, rights to freedom of speech and press, assembly and association, and to take part in public affairs.
Yet, the UN expert clarifies it is ‘not in line with international human rights standards’ as the latter ‘forbids the “deprivation” of political rights, and allows for limits on such rights only in exceptional and narrow circumstances,’ which excludes the ‘expression of political opinion.’
ISHR has documented this practice for the trials of Chang Weiping, Ding Jiaxi, Qin Yongpei, Chen Jiahong, Yu Wensheng, Xu Zhiyong, and Jiang Tianyong. UN experts have publicly denounced police harassment and surveillance of Jiang Tianyong during and after this period of deprivation of political rights as a ‘gratuitously punitive and legally unjustified treatment’, and condemned the legal provision as ‘nothing but an instrument of oppression.’
Travel bans
The UN expert explains that supplemental punishments of deprivation of political rights have often translated into de facto travel bans, which ‘impinge on freedom of movement guaranteed by Article 13 of the UDHR.’ In these situations, ‘individuals are unable to receive information about the bans or to access meaningful and fair appeals to their imposition.’
Article 12 of the Entry and Exit Administration Law allows the government to ban those who “may endanger national security or interests” from exiting the country.
On 2 June 2021, lawyer Tang Jitian was prevented from exiting China at Fuzhou airport to see his ill daughter in Japan on grounds that his travel ‘may endanger national security.’ Tang was subsequently placed under strict police surveillance. He has been forcibly disappeared since January 2023, and, thus, unable to attend his daughter’s funeral on 2 March 2024.
Pressures on families and relatives of lawyers
The UN expert reports that ‘relatives [of lawyers], including underage children, also experience deleterious consequences resulting from the detention and sentences placed on their family members.’ These include: eviction, the obligation to move numerous times under duress, constant threats and repeated cuts to their gas and electricity supply.
This also includes ‘pressure on schools to not allow the children of these families to register, leading to a violation of the right to education of lawyers’ children.’
The UN expert underscores that ‘the UDHR protects the right to an adequate standard of living, which includes housing and the right to security in the event of unemployment’ as well as ‘the ability of children to obtain special care in article 25’ and ‘the right to education protected in article 26.’ She stresses that ‘none of these rights should be infringed on the basis of the exercise of the legal profession.’
In 2023, Beijing-based lawyer Wang Quanzhang and his family have been forced to move more than 10 times, reporting constant threats and repeated cuts to their gas and electricity supply. Over the past year, his son has been repeatedly forced out of different schools.
The Network of Chinese Human Rights Defenders (CHRD) has documented in detail the harassment of family members as a form of collective punishment in a report released on 15 April 2024.
