Xi's Orwellian state in action: a report from He Xiaobo's lawyer

Xi's Orwellian state in action: a report from He Xiaobo's lawyer

When He Xiaobo, the director of Nanfeiyan - a center helping workers seek compensation for workplace injuries in Foshan - was criminally detained on December 3 (along with 20 other labor activists), his lawyer immediately asked the police to arrange a meeting with He, but all kinds of excuses and methods have been used to prevent the meeting from taking place.

Translated by "Solidarity with Chinese Workers" from 《律师被拒见何晓波警方刁难:「办案单位的要求」》by He Xiaobo's lawyer, edited and published by Red Balloon (reposted in simplified characters below).

For updates about this latest crackdown and related solidarity actions, follow the Facebook page "Free Chinese labour activists now 馬上釋放中國勞權人士". Please sign the petition here (now in multiple languages). For background and more information, see other translations and writings compiled on Libcom under the tag "Solidarity with Chinese Workers."

Background on He Xiaobo in English here.

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Editors (Red Balloon): When He Xiaobo, the director of Nanfeiyan Social Work Service Center in Foshan (an NGO helping workers seek compensation for workplace injuries) was detained as a criminal suspect on December 3, his lawyer immediately asked the police to arrange a meeting with He, but the police have repeatedly come up with various excuses and methods to prevent the meeting from taking place.

At the request of his wife, I am representing He Xiaobo in his defence of the embezzlement charge.

There are just a few meeting room in the Nanhai Detention Centre, and there is a total of 4,000 good guys and bad under detention, it is very troublesome for any lawyers to meet their cilents. I remember there was only 5 meeting rooms, respectively for “slow meeting” and “fast meeting”. There is no time limit for slow meeting, and fast meeting can only last no more than 20 minutes. I heard that now there are 2 more, 7 meeting rooms. This 2, as I heard, is the result of joint petition of lawyers from Foshan. Blessing always came a little abrupt, 2 whole meeting room! Tears of Joy!

As it is well-known that the meeting room quota is hard to grab, I arrived at the gate of the detention centre early at 12:00 noon. Although the scarcity of meeting rooms would indeed lead to difficulty in meeting cilents, this is somewhat different from the past. In the past the difficulty to meet cilents is created by the “joint misconduct” from the case-handling unit and the detention centre, by making things difficult and not allowing lawyers to meet their cilents, violating the lawyers’ right to practice, as well as the suspects’ right to defence. After the amendment of the criminal laws in 2012, the difficulty in meeting did eased in ordinary criminal cases. Therefore, the new “scarcity of meeting rooms” is created. After all, our country is still "in the early phase of socialism”. Moreover, the people around the world are still in dire circumstances, in need of aids from our poor yet benevolent fatherland. Coins sprinkling down and what joy to bring warmth to the people around the world! We should endure! If anyone wants to meeting thier cilents, they have to come early, and no matter there’s a sudden downpour or what, you have to stand fast in the queue. Seeing the difficulties of us “law workers” (hope the migrant workers are okay with this, afterall they are doing honest labour for living), a joke came into my mind: The Rule of Law! Aye! Say no more, lest come the tears.

Though I arrived 12:30 at the gate of the detention centre, I was the forth (actually the third, because the one at second placed a licence for his colleague). What a scene in the hall of the Nanhai detention centre, colleagues arriving at 2:00pm always have to count the head before him: “one, two, three...seventeen, eighteen, nineteen…” with a shake of the head and sigh, he must be regretting his laziness or punctuality. Man, it’s 2 o’clock, even the cops have already arrived at work!

Officer for the meeting arrangment arrived, finished the applications from the two before me. My name was called, and I hurried forward, he asked if it is a fast meeting or slow meeting. I replied it is the first time, so a slow meeting. He was about to reply when realized something, stopped and said, "He Xiaobo, can’t meet today. Requires booking, arrangement within 48 hours.”

I said, “Those two before me don’t require booking and 48 hours, why it’s diffrerent with me?”

He glanced and said, “the case-handling unit requested it.””

“Detention centre cannot fulfill this unlawful request by the case-handling unit, this abstruction to the meeting between lawyer and cilent, is a violation of the layer’s right to practice,” I said.

“The detention centre have the right to arrangement meeting anytime within 48 hours,” he said.

"This is your misunderstanding of the law. According to the Criminal Procedure article 37 section 2, whenever lawyers presented the required documents, detention centre should arrangement meeting as soon as possible, within 48 hours. On 20th September this year, the executive and legal branch of the central autority distributed the ‘Regulations protecting lawyers’ right to practice’, in which article 7 section 1 stated that ‘should arrange as soon as possible. Arrangement should be made immediately after receiving applictaion, if not, detention centre should explain the situation to the lawyer’. Detention centre can arrange within 48 hours only if legitimate reasons are presented. Your reasons are obviously not legitimate, and the two before me can have meeting, but not me, this is an intentional obstruction.”

“I’m aware of what you’ve said, but the case-handling unit has requested.” he replied.

“Do they have the written notice for the request? If you don’t have the written notice, how would I know if it is the misconduct of the case-handling unit or that of the detention centre!” I said.

He seemed annoyed and said, “They said he is to be brought onto court (therefore cannot meet), is there a problem with that?”

“That’s ‘request by case-handling unit’ before, then it’s ‘being brought onto court’, one cannot fabricate reasons at will. I would remark this, and if later on there no record of him being brought onto court today, I will file a complain.” I said.

He seemed more annoyed, waved and said, “Go ahead.”

At this time, another lawyer said to me, while holding a cigarette between his lips, “You go ahead and find their leader, and stop this quarrel!”

“Do we have a quarrel?” I asked.

“No, we don’t,” said the officer arranging meetings. Seemed like a honest guy underneath... How many more do the institution have to forced into prostitution?

I wonder: when a lawyer’s right to practice is violated by the misconduct of both the case-handling unit and the detention centre, that lawyer elaborates the law and tries to reason, that is having a quarrel? I wonder how he would defend the rights of his client. And here’s my advice to fellow lawyers: if you see a lawyer’s right to practice being violated, if you have the backbone, step forward and fight. Today it is my rights being violated, tomorrow it would be yours. If you don’t have the courage, just stay silent, and don’t criticize the resistance of your colleague.

Then he approached me with a different posture, trying to be friendly. I pointed him to stand aside, he took the cue and walked away.

There’s not much more to reason with the officer, so I left the documents and booked for meeting.

Then I went upstairs to find the leader of the detention centre, officer Gao greet me with friendly attitude. After listening to my statement he said that he would reply ASAP, and said that it was not the request from the case-handling unit, it might be the problem from the detention centre management. I request an immediate rectification, and he replied that investigation has to be carried out. Though the friendly attitude, he’s not going to deal with the actual problem.

Eventually, I made two demands: (1) Meeting as soon as possible, (2) Rectify the misconduct and reject any unlawful request. Officer Gao stated that the meeting would be arranged as soon as possible.

Coming down from the stairs, I met the resident prosecutor in the hall, and I stated again about the procrastination of meeting, and filed a complaint. He told me to sit and wait, then went upstairs with the documents.

After about ten minutes, he came down with officer Gao. Gao said that there’s no way for a meeting today, holding the memo with my phone number on it and said, "We would contact you for the arrangement ASAP.”

I said excessive police power would lead to widespread fear. Officer Gao and the resident prosecutor both stood in thoughtful silence.

On the way back, I received a call from the Nanhai Detention Centre, the meeting would take place on Thursday morning. I got home and changed, then went to the Tienhe Sports Centre and played basketball with friend for a while. Though the rule of law is nowhere to be found, life must go on...

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原文:

律师被拒见何晓波警方刁难:「办案单位的要求」

编按:劳工工伤维权NGO佛山市南飞雁社会工作服务中心负责人何晓波被刑事拘捕,律师急急促警方安排会见。警方一再故意刁难,说「那是办案单位的要求」。律师都说要帮助遭受政治打压的劳工团体人士,尽是眼泪。

文:何晓波律师
整理:红气球

本律师接受何晓波妻子的委託,担任何晓波涉嫌职务侵占罪一案的辩护人。

南海区看守所的律师会见室极少,而羁押的好人坏人共有4000多,律师会见当事人极其不便。我记得以前只有5个会见室,分别为“慢速会见”和“快速会见”,慢速会见不限时间,快速会见仅能见20分钟。听说现在又增加了两个,有七个会见室,这多的两个,听说是佛山律师联名反映的结果。幸福总是来的有点小突然,整整增加了两个会见室啊,泪奔哦!

lawyers

由於众所周知的原因——会见室难抢,我中午十二点半就到达看守所门口。虽然会见室难抢也会导致实质的会见变得有难道,但这与传统的会见难还是稍稍不同。传统的会见难事指办案机关与看守所“联合违法”,刁难律师,不允许律师依法会见自己的当事人,侵害律师执业权利,侵害嫌疑人的辩护权。 2012年刑诉法修改之後,普通的刑事案件在会见难的问题上确有所改善,於是乎,产生了会见室难抢的“新会见难”的,毕竟咱们国家还处於社会主义初级阶段嘛,更何况南、北美,亚非拉,中东西欧的人民还都处於水深火热之中,时时需要我们贫穷但却伟大祖国的援助。撒币,给世界人民带去温暖,是何等美好的事!咱们就忍忍吧!要想能顺利会见,就必须要早来,哪怕天空忽然下起一阵暴雨,你也得站稳位排好队。看看我们这些“法律民工”艰辛(希望农民工们没意见,毕竟他们是靠辛勤劳动,诚实付出来谋生),我就想到一个笑话:依法治国!嗯!不说了,说多了,都是泪。

虽然是12点半到看守所大门排队,排在第四(实际第叁,因为排第二的人帮他同事摆了个律师證在前面)。南海看守所大厅,热闹非凡,二点钟到的同仁在摆律师證时总要数下前面有多少个:“1、2、3……17、18、19……”,二十几个,他不得不摇摇头,叹口气,心里一定在悔恨自己太懒惰或时间观念太强。老兄,二点了,警察都上班啦!

办理会见的警察来了,拿起前面两个律师的会见手续顺利办完。叫到我的名字时,我赶紧过去,他问要快速会见还是慢速会见。我说第一次见,要慢速的,他张口刚想说什麽,却停住了,略变口型後说:“何晓波,今天见不了,要预约,48小时内安排。”

我说:“前面两位律师不要预约後48小时安排会见,为什麽到我就变了?”

他看了我一眼说:“办案单位送人来时就做了这样的要求。”

我说:“看守所不能满足办案单位的违法要求,阻碍律师会见,侵害律师执业权利。”

他说:“看守所有权利决定在48小时内安排会见。”

我说:“你这是对法律的错误理解,刑诉法第37条第2款规定律师凭叁證,看守所应当及时安排,至迟不得超过48小时。今年9月20日二院叁部发布了《依法保护律师执业权利的规定》第7条1款规定:’应当及时安排会见。能当时安排的,应噹噹时安排;不能当时安排的,看守所应当向辩护律师说明情况’。看守所毫无疑问没有任意安排权,除非有正当理由,才能在48小时内安排会见,并说明理由。现在你的理由显然是违法的,且前面两个人可以会见,独独我不能会见,这是故意刁难律师。 ”

他说:“你说的我都知道,但办案单位有要求。”

我说:“办案单位有要求,那有书面的文件和通知吗?如果你们没有书面的通知,我怎麽知道是办案单位违法,还是看守所违法!”

他开始有些不耐烦了,说道:“办案单位不能说在提审啊?”

我说:“刚才说办案单位要求,现在说提审,咱们不能随意编造理由啊。我现在记录在案,如果到时在案卷没有今天的提审记录,我是要控告你的。"

他更不耐烦了,手一挥道:“告去吧”。

这是,有一个律师叼著烟向我嚷道:“你要去找他们领导,在这里吵什麽!”

我问他:“我吵了吗?”

办理会见的警察说:“我们没有吵”。看来骨子里还是一个诚实的人。哎,体制啊,你要逼多少良为娼?

我就不明白,办案单位和看守所联合违法,侵害律师执业权。被侵害的律师讲几跳法律,说几句道理,就算吵架?我真不知道这个律师平时都是怎样维护自己当事人权益的。在此,我也奉劝那些同行,当你看到律师执业权被侵害,如果你有骨气,请站出来一起抗争。因为,今天侵害我的权益,明天就会侵害你的。如果你没有勇气,你最好默默地看著,不要去指责同行的抗争。

这时,他走近我,换了个脸色,要与我套近乎,我指著他让他站到一边去。他识趣地走开。

看来,与办理会见的警察无法继续理论,我只得留下会见文件,先登记预约。

然後,上楼找看守所领导,高层警官和颜悦色地接待我,听完了我陈述後说一定会尽快回复我,并说不是办案单位的要求,可能是看守所的管理问题。我要求立即纠正,他表示要先调查一下。态度虽好,实质问题不解决,对我们老百姓来讲,也没有什麽实质益处。

最後,我提出两点要求:1、尽快安排会见。 2、纠正违法行为,拒绝办案单位的违法要求。高层警官表示会尽快安排。

下楼来,遇到在大厅的驻所检察官,把看守所违法不及时安排会见的事又陈述一遍,并登记控告。他让我坐著等一会,然後他拿著登记的材料上了楼。

大概十多分钟,他和高警官一起下来,高警官还是说今天肯定安排不了,并拿著记下我电话的小纸条。

Posted By

Anonymous
Dec 13 2015 15:57

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Nao
Dec 14 2015 07:45

Background on He Xiaobo (also from Red Balloon):

Red Balloon Editor: The suppression against Guangdong Labour NGO hit hard. Until now 25 Labour NGO leaders and workers were interrogated. Three of them were criminally detained. They were He Xiaobo, Zhang Feiyang and Zhu Xiaomei. How did they engage labour movement? And achieved what they did today? In the road to Weiquan (rights defending), their devotion and persistence were both amazing and heartbreaking

《He Xiaobo–Nanfeiyan Social Service Centre》

Everything started in 2006, when He Xiaobo, the person-in-charge of the Foshan-based Nanfeiyan Social Service Centre, lost 3 fingers on his left hand in a work injury. In the course of fighting for his legal rights, the thought of establishing a NGO concerning labour rights emerged, which entails his bonding with the development of labour NGOs in China later on.

Nanfeiyan is the first civil organisation to provide services for workers in Foshan. Its operation began in 2007, and was formally registered at the municipal-level Bureau of Civil Affairs in 2012. Over the years, more than 30,000 workers injured at work have been approached and trained in labour-related laws and regulations. Almost 10,000 occupationally-injured workers claimed for their legally-abided compensation successfully. Both Nanfeiyan and He Xiaobo himself have been awarded and honoured by local governments for their charitable services.

On the Labour Day on 1st May 2015, Nanfeiyan was supposed to launch a photo exhibition for occupationally-injured workers, which was co-curated with Dongguan Candlelight Public Interest Centre and the Southern Metropolis Daily, but the exhibition was suspended right before the inauguration. Shortly afterwards, Nanfeiyan received a “bare pass" in the annual audit of the municipal Bureau of Civil Affairs. It would face the risk of being “lawfully" closed down if receiving a “bare pass" for 2 consecutive years.

In August 2015, two offices of Nanfeiyan in Shunde and Zumiao, Foshan were forcefully shut down. Ongoing projects outsourced by the government were terminated, and the organisational account was reaudited. As mentioned by Xiaobo in an interview, “the slow progress of social change is frustrating, but we can’t simply criticise, whine or even escape. We should do something substantial to change ourselves at least, if not the society as a whole."

“Maybe you don’t really find this photo of me particularly good, but I am very satisfied with it, since it is taken by the chief photographer of the Southern Metropolis Daily, and will be published in our upcoming photo collection of occupationally-injured workers. This is my story, so is the story of many other workers. Assisted by visual effects, we hope to raise public awareness in the prevention of work injuries."