Informe provisional - Informe núm. 333, Marzo 2004

1. 363. The Committee examined the substance of this case in March 2003 when it presented an interim report to the Governing Body [see 330th Report, paras. 385-467, approved by the Governing Body at its 286th Session]. The International Confederation of Free Trade Unions (ICFTU) transmitted additional information in a communication dated 5 March 2004.
2. 364. The Government transmitted additional information in a communication dated 21 August 2003, received on 24 October 2003.
3. 365. China has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 366. At its March 2003 session, the Governing Body approved the following recommendations in the light of the Committee’s interim conclusions:
   • (a) The Committee requests the Government to institute an impartial and independent investigation into the allegations of violent police intervention in respect of the demonstrations in relation to the workers’ struggle at the Ferrous Alloy Factory in Liaoyang on 20 March and 15 May 2002. The Government is asked to provide detailed information to the Committee on the outcome of this investigation and to indicate the measures taken to compensate any injured workers.
   • (b) The Committee further requests the Government to institute an independent investigation into the allegations concerning the serious condition of Yao Fuxin’s health and the torture or mistreatment surrounding his detention. The Government is asked to inform the Committee of the outcome of this investigation and of any measures taken in the event that it is found that Yao Fuxin has been mistreated while in detention, including the measures taken to ensure that he receives any necessary medical treatment.
   • (c) The Committee requests the Government to institute an independent investigation into the allegations that Gu Baoshu was beaten during his brief detention and to inform the Committee of the outcome of this investigation and of any measures taken in the event that it is found that he was mistreated. It also requests the Government to provide any information it may have in respect of the whereabouts of Wang Dawei.
   • (d) Given the Government’s indication that the events occurring at the Ferrous Alloy Factory fell within the context of a labour dispute, the Committee requests the Government to drop all charges relating to terrorism, sabotage and subversion.
   • (e) The Committee also requests the Government to provide specific and detailed information on the charges brought against Yao Fuxin, Pang Qingxiang, Xiao Yunliang and Wang Zhaoming. In the meantime, it requests the Government to take the necessary steps for the immediate release of any of the FAF workers’ representatives still detained and to ensure that the charges brought against them are dropped. The Government is requested to keep the Committee informed in this regard.
   • (f) The Committee requests the Government to ensure that due process of the law is guaranteed in respect of all the workers’ representatives named in this complaint.
   • (g) The Committee requests the Government to reply specifically to the allegations that representatives of the PAB Retrenched Workers’ Provisional Union Committee and some 60 other workers involved in protest actions in Daqing City as well as an unidentified 50-year-old woman and a retired worker, Li Yan, were detained on 11 March. It further requests the Government to provide any information at its disposal concerning arrests which may have been made in connection with the protests in Daqing, whether any individuals are still being detained and any charges which may have been brought against them.
   • (h) In light of the numerous allegations in this complaint concerning the excessive use of force by the police in various disputes taking place in different parts of the country, the Committee requests the Government to consider preparing relevant instructions for the forces of law and order aimed at eliminating the danger of resorting to the use of excessive violence when controlling demonstrations.
   • (i) The Committee requests the Government to provide detailed information concerning the two democratic opposition activists, Hu Mingjun and Wang Sen, (and possibly Zheng Yongliang) who have reportedly been sentenced to heavy prison terms for acting on behalf of the organizing workers and on the allegations that an independent labour activist, Di Tiangui, was detained on 1 June 2002 in Shanxi Province for trying to set up a federation for retired workers. The Government is asked, in particular, to provide information concerning Di Tiangui’s health and the allegations of his mistreatment in detention.
   • (j) The Committee requests the Government once again to examine the possibility of a direct contacts mission being undertaken to the country in order to promote the full implementation of freedom of association. The Committee expresses the hope that the Government will respond positively to this suggestion which has been made in a constructive spirit with a view to assisting the Government to find appropriate solutions to the existing problems.

B. The complainants’ additional allegations

1. 367. In a communication dated 5 March 2004, the International Confederation of Free Trade Unions transmitted additional allegations of freedom of association violations in China referring in particular to the violent dispersal by the police on 8 February of workers who were picketing the Tieshu Textile Factory in Suizhou City (Hubel) and the arrest of six workers for disturbing the public order, as well as information that other Tieshu workers were undergoing re-education through labour.

C. The Government’s reply

1. 368. In its communication dated 21 August 2003, the Government indicated that in addition to the information provided in its earlier detailed reply, it had recently instituted another investigation of individuals and incidents relevant to the dispute at the Ferrous Alloy Factory (FAF) in Liaoyang City (Liaoning Province), including visits to the Ministry of Public Security, the Ministry of State Security, the Ministry of Justice, the Supreme People’s Court, as well as the Committee on the Supervision and Control of the State Property under the State Council.
2. 369. The Ferrous Alloy Factory in Liaoyang City (Liaoning Province) is a factory run by the city. In October 2001, a proposal for bankruptcy was accepted after consideration by the Congress of Worker and Staff Representatives of that factory and the bankruptcy process was formally put into motion in November of the same year.
3. 370. Since 2002, Yao Fuxin, Xiao Yunliang and others, workers of the rolling mill affiliated to FAF, took advantage of the fact that some workers did not understand why their factory had gone bankrupt and had appealed against the city government of Liaoyang, carried out planned activities of terrorism and sabotage, which severely threatened public security, disrupted public order and damaged public property, thus violating Chinese law. The public security authorities of Liaoyang summoned them for trial in accordance with the law and applied forceful measures. On 27 December 2002, the Liaoyang City People’s Procurator instituted legal proceedings against Yao Fuxin and Xiao Yunliang on charges of subverting the state power and the Liaoyang City Intermediate People’s Court heard the case in public on 15 January 2003.
4. 371. After hearing the case, the Liaoyang City Intermediate People’s Court held that the accused, Yao Fuxin and Xiao Yunliang, had taken an active part in the organization and plotting of activities aimed at subverting the state power. Having been educated by the public security authorities on many occasions, they continued to create disturbances, fabricate rumours to mislead people and instigate the masses, who were unaware of the facts, to attack the Liaoyang City government office building and damage public property, thereby seriously disturbing the normal working order of the state organ and causing traffic jams in the principal streets of Liaoyang for quite a long time. The Liaoyang City Intermediate People’s Court maintained that the conduct of Yao Fuxin and Xiao Yunliang constituted the crime of subverting the state power, and according to the provisions of paragraph 1 of Article 105 of the Criminal Law of the People’s Republic of China (which stipulates that among those who organize, plot or carry out the scheme of subverting the state power or overthrowing the socialist system, the ringleaders and the others who commit major crimes shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years; the ones who take an active part in it shall be sentenced to fixed?term imprisonment of not less than three years but not more than ten years; and the other participants shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights) and of Article 106 of the same law (which stipulates that “whoever commits the crime as prescribed in Articles ... and 105 of this chapter in collusion with any organ, organization or individual outside the territory of China shall be given a heavier punishment according to the provisions stipulated in these articles respectively), Yao Fuxin and Xiao Yunliang were sentenced respectively on charges of subverting the state power, with Yao Fuxin sentenced to a fixed-term imprisonment of seven years and the deprivation of political rights for three years and Xiao Yunliang to a fixed-term imprisonment of four years and the deprivation of political rights for two years.
5. 372. Both Yao Fuxin and Xiao Yunliang pleaded not guilty and lodged appeals with the Higher People’s Court of Liaoning Province. After hearing the case, the Higher People’s Court of Liaoning Province deemed that the facts established by the original court decision were clear, the evidence irrefutable, the conviction accurate and the measurement of penalty appropriate. It rejected the appeals of Yao Fuxin and Xiao Yunliang on 27 June 2003 and maintained the original court decision.
6. 373. During the court trial, the public procurator presented written evidence, material evidence and a large amount of witness testimony, and the accused and their legal defenders were given opportunities to query the evidence. Yao Fuxin and Xiao Yunliang exercised their right to a defence according to law and each engaged two legal defenders to defend their case in court. The decision in respect of the case of Yao Fuxin and Xiao Yunliang was made according to the relevant provisions stipulated in the criminal law of the country whereas the hearing process strictly followed the procedures as stipulated in the Criminal Procedure Law of the People’s Republic of China.

D. The Committee’s conclusions

1. 374. The Committee recalls that the allegations in this case referred to the use of repressive measures, including threats, intimidation, intervention by security forces, beatings, detentions, arrests and other mistreatment meted out to leaders, elected representatives and members of independent workers’ organizations at the Ferrous Alloy Factory (FAF) in Liaoning province and the Daqing Petroleum Company in Heilongjiang Province, as well as violent police intervention in a workers’ demonstration at Guangyuan Textile Factory, the sentencing of workers rights’ advocates in Sichuan province and the detention, arrest and mistreatment in Shanxi province of an independent labour activist for trying to set up a federation for retired workers.
   • Ferrous Alloy Factory (FAF) in Liaoyang
   • (Liaoning Province)
2. 375. In its interim report, the Committee had requested the Government to institute impartial and independent investigations into the allegations of: violent police intervention in respect of the demonstrations at the Ferrous Alloy Factory (FAF); torture and mistreatment in respect of Yao Fuxin; and the beating of Gu Baoshu during his brief detention. The Committee further requested the Government to drop all charges relating to terrorism, sabotage and subversion in respect of the events at the FAF. In addition, it requested the Government to provide specific and detailed information on the charges brought against Yao Fuxin, Pang Qingxiang, Xiao Yunliang and Wang Zhaoming and, in the meantime, to ensure the immediate release of any of the FAF workers’ representatives still detained and to ensure that the charges brought against them were dropped.
3. 376. In its latest reply, the Government indicates that it instituted another investigation into the events surrounding the dispute at the FAF, including visits with the Ministry of Public Security, the Ministry of State Security, the Ministry of Justice, the Supreme People’s Court and the Committee on the Supervision and Control of State Property. From the investigation, it was ascertained that a proposal for bankruptcy had been accepted by the Congress of Workers and Staff Representatives of the FAF in October 2001, but that in 2002, a number of workers of the rolling mill affiliated to the FAF, including Yao Fuxin and Xiao Yunliang, appealed against the bankruptcy and carried out planned activities of terrorism and sabotage, severely threatening public security, disrupting public order and damaging public property, in violation of Chinese law. According to the Government, the authorities of Liaoyang therefore brought them to trial and applied forceful measures. On 27 December 2002, the Liaoyang City People’s Procurator brought further charges of subversion against Yao Fuxin and Xiao Yunliang.
4. 377. The Liaoyang City Intermediate People’s Court found that the accused had taken an active part in the organization and plotting of activities aimed at subverting state power. The Government states that, having been educated by the public security authorities on many occasions, the accused nevertheless continued to create disturbances, fabricate rumours to mislead people and instigate the masses to attack the government office building and damage public property thereby seriously disturbing the normal working order of the state organ and causing a traffic jam. While unaware of the precise meaning behind this reference to public security authorities having “educated” the accused, the Committee must emphasize the importance it attaches to the full respect for those civil liberties essential to the meaningful exercise of freedom of association. In this respect, the Committee wishes especially to recall the rights to freedom and security of person and to freedom of opinion and expression and in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers [see 1970 resolution concerning trade union rights and their relation to civil liberties]. The Committee trusts that the Government will take all necessary measures to ensure full respect for these rights.
5. 378. The accused were thus sentenced under paragraph 1 of Article 105 of the Criminal Law which provides that those who plot or carry out the scheme of subverting the state power or overthrowing the socialist system shall be sentenced to between ten years and life imprisonment and between three and ten years’ imprisonment for those who take an active part in such activities. According to the Government, Yao Fuxin was thus sentenced to seven years’ imprisonment and Xiao Yunliang to four years’ imprisonment. They both pleaded not guilty and appealed to the Higher People’s Court of Liaoning Province, which deemed that the facts established by the original court decision were clear, the evidence irrefutable, the conviction accurate and the penalty appropriate.
6. 379. As regards court procedure, the Government asserts that Yao Fuxin and Xiao Yunliang exercised their right to defence according to the law and each engaged two legal defenders for their case. The court decision was made according to relevant provisions stipulated in the Criminal Law and the procedures followed the rules of the Criminal Procedure Law of the People’s Republic of China.
7. 380. While taking due note of the Government’s efforts to investigate the circumstances surrounding the dispute at the FAF and the subsequent court rulings, the Committee must recall that in its previous examination, noting the Government’s indication that the events fell within the context of a labour dispute, it had requested the Government to drop all charges relating to terrorism, sabotage and subversion. Indeed, the Committee deplores from the Government’s latest reply that the events in connection with the FAF dispute were related to the bankruptcy of the factory and its consequences on the workers, yet Yao Fuxin and Xiao Yunliang were charged with and sentenced for subversion.
8. 381. As to the Committee’s request to the Government to provide specific and detailed information on the charges brought against Yao Fuxin, Xiao Yunliang, Pang Qingxiang and Wang Zhaoming, the Committee notes with regret that the Government, referring only to Yao Fuxin and Xiao Yunliang, repeats its earlier general statements that these two workers planned activities of terrorism and sabotage, which severely threatened public security, disrupted public order and damaged public property. The most specific information provided by the Government refers to the creation of disturbances, fabrication of rumours and instigation of masses to attack the Liaoyang City government office building and damage public property, thereby disturbing the normal working order of the state organ and causing a traffic jam. No information is provided as to the specific property that was damaged, or to any clear individual responsibility in this regard. In any event, the Committee cannot comprehend how such vague and general accusations can lead to the conviction of such a serious crime as subversion.
9. 382. Further, the Committee deplores that these two individuals, who were arrested initially simply on charges of illegal demonstration that were transformed several months later into charges of subversion (see 330th Report, para. 452), received a trial that lasted all of one day. Moreover, recalling its previous request to the Government to ensure that due process of the law is guaranteed to all the workers’ representatives named in the complaint, the Committee notes that the Government merely indicates that Yao Fuxin and Xiao Yunliang engaged two legal defenders each to defend their case, but provides no specific information on the allegations made that Xiao Yunliang’s lawyer did not have access to his client. Deploring the serious allegations of blatant disrespect for due process in respect of the trials of Yao Fuxin and Xiao Yunliang, the Committee must emphasize that detained trade unionists, like anyone else, should benefit from normal judicial proceedings and have the right to due process, in particular, the right to have adequate time and facilities for the preparation of their defence and to communicate freely with counsel of their own choosing and the right to a prompt trial by an impartial and independent judicial authority [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 102]. The Committee requests the Government to provide a copy of the court judgement in their case, as well as the appeal heard by the Higher People’s Court of Liaoning Province, and any additional information relevant to the guarantees of due process afforded in this case.
10. 383. Finally, the Committee notes with deep regret that the Government has provided no information in reply to its previous request to institute an independent investigation into the allegations concerning the serious condition of Yao Fuxin’s health and the torture or mistreatment surrounding his detention. The Committee calls upon the Government to ensure that Yao Fuxin receives all necessary medical attention and treatment as a matter of urgency.
11. 384. In the light of the above, the Committee deeply regrets the Government’s disregard for essentially all of its previous recommendations in this very serious case and its perseverance in the punishment of acts related to labour conflict with lengthy terms of imprisonment for acts of subversion on the basis of general and vague accusations. It therefore once again strongly urges the Government to take the necessary measures for the immediate release of Yao Fuxin and Xiao Yunliang and requests the Government to keep it informed of all measures taken in this respect.
    • Other pending matters
12. 385. The Committee notes with regret that the Government has provided no additional information in reply to the Committee’s previous recommendations: to institute an impartial and independent investigation into the allegations of violent police intervention in respect of the demonstrations at FAF and into the allegations that Gu Baoshu was beaten during his brief detention; to provide information on the whereabouts of Wang Dawei; to reply specifically to the allegations that representatives of the PAB Retrenched Workers’ Provisional Union Committee and some 60 other workers were detained on 11 March 2002 and whether any of these individuals are still being detained; to provide detailed information on the sentencing of two democratic opposition activists, Hu Mingjun and Wang Sen (and possibly Zheng Yongliang), who were reportedly sentenced to heavy prison terms for acting on behalf of the organizing workers; and to provide detailed information on the detention and alleged mistreatment of the independent labour activist, Di Tiangui. The Committee strongly urges the Government to institute the independent investigations requested in respect of the abovementioned matters and to provide all detailed information called for above. Finally, the Committee requests the Government to transmit its observations on the allegations recently made by the ICFTU in its communication of 5 March 2004.
13. 386. In these circumstances, in particular the numerous outstanding requests for information and action, and convinced that the development of free and independent trade unions and employers’ organizations is indispensable for social dialogue and to enable a government to confront its social and economic problems and resolve them in the best interests of the workers and the nation [see, in particular, Digest, op. cit., para. 24], the Committee once again strongly urges the Government to respond positively to its previous suggestion for a direct contacts mission.