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‘The Ball Is in Your Court!’ Questions for the Hunan Procuratorate Regarding Its ‘Independent Investigation’ into Xie Yang’s Torture

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Chen Jiangang  |  China Change

This article was first published in ChinaChange web site on March 22, 2017

Lawyer Chen Jiangang (China Change)

The public didn’t know until yesterday that ambassadors from 11 countries wrote a letter to China’s Minister of Public Security on February 27, 2017, expressing their grave concern over recent reports of torture of human rights lawyers, and China’s use of secret detention known as “residential surveillance at a designated location” (RSDL). In light of our knowledge of this letter, China’s massive smear campaign beginning on March 1 — two days after the letter was received — becomes much more disturbing. China made lawyer Jiang Tianyong “confess” on camera that he had made up the reports of Xie Yang’s torture; Jiang was forcibly disappeared on November 21, 2016, and subsequently placed under RSDL, and thus could not have made those statements of his own volition, raising the concern that he has also been tortured. Chinese state media further hinted that Chen Jiangang, Xie Yang’s defense lawyer, worked with Jiang to further the fabrication. Since then, lawyers Chen Jiangang and Liu Zhengqing have been denied several requests to meet their client Xie Yang, and Chen is worried that Xie Yang may be tortured again. Meanwhile, Chen himself has been under significant pressure to keep his mouth shut, and officials from the Beijing Municipal Justice Bureau and the Chaoyang District Justice Bureau have frequently warned of trouble, and requested talks. Today they are conducting an “inspection” of his law firm. “If I can only use my mouth for eating but not for speaking,” Chen said, “you may as well ask me to be a pig or a dog.” We are concerned about lawyer Chen Jiangang’s safety and the reprisals that will inevitably befall him. We remain concerned about Jiang Tianyong and Xie Yang’s circumstances and that of the 709 lawyers and activists still in custody in Tianjin. — The Editors

On March 3, China Central Television published a story titled “The Truth Behind Lawyer Xie Yang’s Claims of Torture: An Intricate Fabrication” in which Yang Zhizhong, a prosecutor in charge of internal supervision of criminal enforcement in the Hunan Procuratorate, was quoted saying that no torture of the Chinese human rights lawyer Xie Yang have taken place during his time in custody.

“The entire mission of our criminal enforcement supervision division is to protect the legal rights of detainees, so we took it upon ourselves to form this eight-person investigation team to conduct an independent investigation,” he said on camera. “Through our investigation, we found that these four claims of ‘torture’ can be said, absolutely, to be false.”

As Xie Yang’s defense counsel who published the transcripts of Xie Yang’s torture, I submit the following points of fact, clarification, and questioning to the Hunan Procuratorate, which I hope it will examine and respond to.

Xie Yang’s Defense Counsel Has Not Seen the Report

The official China Central Television (CCTV) broadcast briefly flashed an image of the Hunan Procuratorate’s report, titled “Investigative Report Regarding Claims by Xie Yang and His Defense Attorney of Torture, Forced Confession, and Abuse During Residential Surveillance at a Designated Location and in Custody at the Detention Center”, henceforth “the report”). Judging from the title, the Hunan Procuratorate opened an investigation into the reports of torture of Xie Yang as a result of Xie Yang’s complaint and that of his defense counsel. In that case, shouldn’t they contact Xie Yang’s defense counsel, the individuals who made public the transcripts? Shouldn’t the conclusion of the report be communicated to Xie Yang’s defense counsel? Xie Yang’s two lawyers, Chen Jiangang and Liu Zhengqing, have not received either oral or written notification concerning the investigation or been subject to questioning by the Hunan Procuratorate. Neither have they even seen a single complete page of the final report.

The Hunan Procuratorate claims that it produced its report to refute allegations by Xie Yang’s defense lawyers, yet it hides the report from those lawyers. Why? Did you go to all that trouble just to flash half a page for one second on CCTV?  

How Was the Report Independent?

From Xie Yang’s case file that I read, Xie Yang was charged with “opposing the Party and opposing socialism.” The indictment of Xie Yang accuses him of publishing “many speeches attacking and defaming the government, judicial organs, and the state justice system.” That is to say, Xie Yang is the attacker, the criminal suspect, and the Communist Party, government departments, and judicial organs, are the victims. The two stand in an oppositional relationship. Thus, the following questions arise:

i. The Hunan Procuratorate is lead by the Party, is it not?

ii. The individuals who participated in the investigation are Party members, are they not? (If any prosecutor at the Hunan Procuratorate is not a Party member, please come forward and refute me.)

iii. The Hunan Procuratorate is a judicial organ, is it not?

If the answer to any of the above three questions is in the affirmative, then there can be no such thing as an “independent investigation,” because the Hunan Procuratorate and its prosecutors are all parties to a dispute with Xie Yang. You don’t get to be a referee when you are a competing athlete.  

Please Publish the Report

The official broadcast says that Western media began reporting on the prosecution of Xie Yang in October 2016, that Xie Yang’s defense lawyers published two “Transcript of Interviews with Lawyer Xie Yang” on January 19, 2017, and that the Hunan Procuratorate began its own investigation on February 17. But as of today, this investigative report has not been published as far as I know.

Please publish the entire text for public scrutiny. The ball is in your court!

Regarding the Western media reports: in its video, CCTV only showed a few reports by overseas Chinese-language media outlets around October 11, 2016. But mainstream media organizations in the United States, England, France, and Spain only began to report on Xie Yang torture following my transcripts published on January 19, 2017. Perhaps it’s precisely because of the massive international response that the government has gone all out attempting to irrationally and speciously refute it.

Please Clarify the Legality of ‘Residential Surveillance at a Designated Location’

Given that the Hunan Procuratorate has produced an “independent” investigation which exculpated the Changsha Municipal Public Security Bureau, please make public your findings of the legal grounds on which the Changsha public security authorities held Xie Yang in the National University of Defense Technology’s guesthouse for retired cadres, at 732 Deya Road, Kaifu district, Changsha.

Please also provide the legal basis on which Xie Yang’s family members were not notified during this period of captivity.

Please also provide the legal basis on which Xie Yang was prohibited visitation from his family members, and access to his legal counsel, during this period of captivity.

What’s also interesting, and suspicious, is CCTV’s brief shot of some brand new small plastic stools — the kind elementary school students use — in the supposed room in which Xie Yang was held during the “residential surveillance” period. Was the room featured in the shot the same room in which Xie Yang was held? Were those plastic stools the same ones used in the “dangling chair” torture that Xie Yang described? Xie Yang was never asked anything on camera.

For my rebuttal on this question, please consult item 11 in my article “How Xie Yang’s Transcripts of Torture Came to Light.” It needn’t be rehashed here.

Please Make Public the Interrogation Video Made During Residential Surveillance

According to Article 19 of “SPC, SPP, MPS, MSS, MoJ, and the Legislative Affairs Commission of the NPCSC Regulation on Several Questions Concerning the Implementation of the CPL”, and Article 121 of the “Criminal Procedure Law”, as well as Article 203 of the “Public Security Criminal Complaint Regulations”, as well as the fact that Xie Yang stood accused of the crime of “subversion of state power,” all interrogations of Xie Yang are required to have been fully recorded. Moreover, this audio and visual recording must be “from beginning to end, with no interruptions or alterations of integrity. It is not permitted to selectively record, or to edit or redact the film.”

As public prosecutors with the Hunan Procuratorate, you are surely aware of these regulations, and surely you know that the most direct way of ascertaining the truth of the matter is to directly consult those interrogation recordings.

Have you watched and listened to the recordings?

If you have not accessed the recordings, why not?

If the public security authorities said that they do not have the recordings, then this would be a serious violation of the law. How do you intend to deal with it?

In your report, did you include discussion of whether or not you have examined the full recordings of the interrogation sessions?

Have You Questioned the Potential Torturers?

I will repeat once more that it seems, judging by the headline of your report, that you began the investigation after reading the transcripts. Thus, please answer this: of the nearly 50 individuals accused of torture — including  Li Feng (李峰), Li Kewei (李克伟), Wang Dehua (王德华), Hu Yunfeng (胡云峰), Wang Tieta (王铁铊), Zhu Heng (朱恒), Ye Yun (叶云), Xie Leshi (谢乐石), Zhou Liang (周浪), Yin Zhuo (尹卓), Qu Ke (屈可), Li Yang (李旸), Zhou Yi (周毅), Zhuang Xiaoliang (庄晓亮), Yuan Jin (袁进) — did you perform any investigation of any of them at all?

You are determined to tell the public that the torture of Xie Yang was fabricated, but to this date you have not provided the text of the report you wrote.

The CCTV report included nothing about the investigation of these individuals, but instead included remarks by his cellmates. Xie Yang was not transferred to the detention center until January 9, 2016. How would his cellmates have knowledge of torture that took place earlier?

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