In a recently released opinion, the United Nations Working Group on Arbitrary Detention (WGAD) found that China has arbitrarily deprived Sandy Phan-Gillis, an American citizen, of liberty because she has been denied access to counsel and not been brought before a judicial authority. See WGAD, Communication Concerning Phan (Sandy) Phan-Gillis, Opinion No. 12/2016 (People’s Republic of China), 3 June 2015, UN Doc. A/HRC/WGAD/2016. Phan-Gillis, a business consultant from Texas who regularly visited China for work, was arrested by Chinese authorities near the border into Macau at the conclusion of a business trip in late March of 2015. [Newsweek] Six months after her arrest, Chinese authorities announced that they detained Pahn-Gillis for suspicion of stealing state secrets, but they have yet to formally charge her. [Newsweek] She has also not had access to counsel and has not appeared before a judge. See WGAD, Communication Concerning Phan (Sandy) Phan-Gillis, para. 18. The Working Group requested China to either release Phan-Gillis from custody or provide her with access to effective legal counsel. See WGAD, Communication Concerning Phan (Sandy) Phan-Gillis, para. 25. This opinion marks the first time in the Working Group’s 25-year history that it has found China responsible for detaining an American citizen arbitrarily. [NYT]
Allegations and the Working Group’s Opinion
The communication to the WGAD alleged that Chinese authorities produced no warrant for Phan-Gillis’s arrest, lacked sufficient evidence to charge Phan-Gillis with a crime, and denied her access to a lawyer and her family, and that the procedures under which she was arrested and detained violate domestic and international law. See WGAD, Communication Concerning Phan (Sandy) Phan-Gillis, paras. 4-11. The complaint asserts that Phan-Gillis was “held under residential surveillance” for six months and then detained at a detention center in Nanning. Failure both to provide a legal justification for residential surveillance and to release someone under residential surveillance after six months, the communication further alleged, violates domestic criminal procedure. See id. at paras. 7, 10. Additionally, the communication alleged that under Chinese criminal procedure the family must be notified within 24 hours of detention, which authorities failed to do. See id. at para. 10.
The Chinese government’s response to the allegations informed the Working Group that it suspects Phan-Gillis was a party to stealing state intelligence and that the government is still investigating. See id. at paras. 15-16. The State also alleged that Phan-Gillis’s rights have been upheld while she has been in custody. See id. at para. 17. The reply of the State, though, did not deny that Phan-Gillis has not had access to counsel and has not been brought before a judicial authority. See id. at paras. 18-19.
The WGAD found that denial of legal counsel for Phan-Gillis and a failure to bring her before a judicial authority violated international human rights principles. The authorities have only allowed Phan-Gillis monthly half-hour visits from U.S. diplomats since the arrest. See id. at paras. 16, 9. The opinion notes that assistance of legal counsel and the right to communicate with counsel are guaranteed by the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles), a soft law instrument adopted by the UN General Assembly in 1988. See id. at para. 18.
In further breach of international human rights norms, the WGAD found, Phan-Gillis’s arrest and continued detention have not been approved by an independent legal authority. See id. at para. 19. Under the Body of Principles, all detainees must have an opportunity to go before a judicial authority or another independent and impartial authority promptly after arrest, and that authority must be empowered to decide whether the detention of the individual is necessary and lawful. See id. However, Phan-Gillis’s detention was only authorized by the District People’s Procuratorate, a Chinese agency that handles prosecutions. The Procuratorate, the WGAD concluded, is not an independent and impartial authority. See id. at para. 20.
Given China’s failure to respect international norms protecting the rights to fair trial, liberty, and security as established in both the Universal Declaration of Human Rights under articles 9 and 10 and the Body of Principles, the Working Group concluded that Phan-Gillis’s detention is arbitrary and asked the State to remedy the situation in line with international human rights standards. See id. at paras. 21, 23. Additionally, the Working Group communicated the allegations of torture to the UN Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment. See id. at para. 26.
The WGAD relied on the Universal Declaration of Human Rights and Body of Principles without applying the International Covenant on Civil and Political Rights because China has not ratified that treaty.
Past Findings of Arbitrary Detention in China
Although this is the first time the Working Group has held that China is arbitrarily detaining a citizen of the United States, the experts have previously examined communications alleging China was arbitrarily detaining South Korean foreign nationals and, in one instance, a Chinese national who was a legal resident of the United States.
In two of the communications involving foreign nationals or a legal resident of another State, the alleged procedure followed during the arrest and detention followed a similar pattern to that of Phen-Gillis. A communication submitted to the WGAD on behalf of four South Korean detainees alleged that they were also arrested in China without formal charges and without being told why they were detained. See WGAD, Communication Concerning Kim Young Hwain, Yoo Jae Kil, Kang Shin Sam and Lee Sang Yong, Opinion No. 51/2012 (China), 15 June 2012, UN Doc. A/HRC/WGAD/2012/51, paras. 5, 11. The WGAD, though, was unable to come to a conclusion on their detention because they were released while the communication was under consideration. See id. at para. 20. Similarly, the legal resident of the United States who was detained upon arrival in China was not provided with formal legal charges or an arrest warrant and was denied access to counsel and his family. Additionally, his family was not notified within 24 hours of his detention. See WGAD, Communication Concerning Yang Jianli, Opinion No. 2/2003, 27 January 2003, UN Doc. A/HRC/WGAD/2003/2, paras. 8, 9, 12. The WGAD found that he was detained arbitrarily. See id. at para. 20.
In the other case involving a South Korean national, the detainee could not understand the charges brought against him due to inadequate language interpretation, the defense attorney was informed of the sentencing date, and the detainee was allegedly not provided with adequate medical care. Accordingly, the WGAD found China was holding the detainee arbitrarily. See WGAD, Communication Concerning Mr. Yong Hun Choi, Opinion No. 20/2005, 11 June 2004, UN Doc. A/HRC/WGAD/2005/20, paras. 5, 7, 8, 9, 12, 23.
Along with these foreign detainees, the Working Group has previously deemed China’s detention of many of its own citizens – largely journalists, activists, human rights lawyers, and members of the Uyghur and Tibetan ethnic minority groups – as arbitrary and in violation of international human rights law. See, e.g., WGAD, Communication Concerning Wang Hanfei, Opinion No. 21/2014, 9 September 2013, UN Doc. A/HRC/WGAD/2014/21; WGAD, Communication Concerning Chen Wei, Opinion No. 7/2012, 16 January 2012, UN Doc. A/HRC/WGAD/2012/7; WGAD, Communication Concerning Mr. Sonam Gyalpo, Opinion No. 33/2007, 7 December 2006, UN Doc. A/HRC/WGAD/2007/33.
The Working Group on Arbitrary Detention is a special procedure of the UN Human Rights Council that has the power to investigate individual cases of allegedly arbitrary detention. The WGAD will then publish its opinion and make recommendations to the State involved. The WGAD may also issue urgent appeals if the detainee’s life or security is under immediate and grave danger. [IJRC]