Publications

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Annual Report 2004

Civil Liberties

Introduction

The People’s Republic of China signed the International Covenant on Civil and Political Rights (ICCPR) on October 5th 1998. Although this was an important step towards the realization of civil and political rights in China, it must be regretted that to date China has not yet ratified the Covenant.

On March 14th 2004, China’s 10th National People’s Congress adopted a constitutional amendment that included a general provision regarding human rights. Thus, article 33 (3) of the Chinese constitution now states: “The State respects and preserves human rights.” This amendment is welcomed as an important progress towards the advancement of human rights in China. However, as long as the general clause contained in article 33 (3) of the Constitution is not implemented through adequate legislative provisions and, most of all, a sound and well-functioning legal system and a truly independent judiciary, the overall human rights situation in China will not likely see a significant change.

However, the human rights situation inside Tibet continues to deteriorate with no real improvement. The information from Tibet reveals a pattern of systematic violation of Tibetan civil and political rights.

Article 35 and 36 of the Chinese Constitution guarantee the right to freedom of expression, association and religion. But these constitutional guarantees have failed to avert human rights violations from occurring in Tibet, as corroborated by testimonies of Tibetans who have arrived in exile. In fact, severe restrictions continue to be imposed on the freedom of assembly and association and on the freedom of opinion and expression.

With regard to political rights, this year marked the release of some high profile political prisoners by Chinese authorities: Phuntsok Nyidron, the longest serving female political prisoner, was released from Drapchi prison after completing 17 years sentence; Ngawang Woeser and Ngawang Gyaltsen, monks of Drepung monastery who spearheaded the September demonstration of 1987, and Geshe Sonam Phuntsok was released from Chungdong prison No. 3 in Sichuan province. However, the release of some political prisoners and the decline in the number of detainees do not indicate an overall improvement in the human rights situation in Tibet.

TCHRD has documented 146 known political prisoners still serving prison terms in the various Chinese prison networks across Tibet. Of which 55 Tibetans are serving more than 10 years of prison sentence and monks constituting 63 percent of the total prisoners. TCHRD believes that there are many more cases of unconfirmed arrests. According to Amnesty International, there are at least 145 known cases of political prisoners who are currently being held in Tibet for a variety of peaceful activities such as advocating Tibetan independence and also for refusing to renounce their faith in His Holiness the Dalai Lama. The lack of independent access to prisoners and prisons made it difficult to ascertain the number of Tibetan political prisoner.

In this respect, it must be noted that on June 16th 2004 the former United Nations Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Mr. Theo Van Boven, whose mission to China was scheduled to take place from the end of June 2004, announced that the visit was postponed until sometime later that year at the Government’s request. The Government cited the need for additional time to prepare for the two-week visit as a reason for the postponement.¹ Mr. Van Boven’s predecessor, Sir Nigel Rodley, had tried unsuccessfully since 1996 to visit China.

The information contained in this chapter is based on allegations of human rights violations reported to TCHRD by Tibetan refugees and other individuals during 2004. It is believed that those cases represent just a fraction of the actual number of abuses. Human rights violations remain too often unaccounted for, as international human rights monitors traditionally face obstacles in investigating violations of human rights in Tibet. Moreover, in some cases the information on arrests, detentions and prison sentences only comes to light years after the actual incident.

Right to freedom of opinion and expression

Article 19 of Universal Declaration of Human Rights states that

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.

Article 35 of the Constitution of the People’s Republic of China guarantees freedom of expression, publication, demonstration and assembly. It declares:

“Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.”

In addition, the Chinese Constitution guarantees freedom of religious belief, the person’s dignity and inviolability and freedom and privacy of correspondence.²

In practice, throughout 2004 the Tibetan people’s rights guaranteed by article 35 and 36 of the Constitution of the PRC were repeatedly violated. Various punitive and repressive measures were employed to censor independent reporters, writers and artists.

On September 22nd 2003 Dorjee Tsephel from Chabcha County in Tsolho Tibetan Autonomous Prefecture in the Qinghai Province was arrested for composing a song in honor of the Dalai Lama. Qinghai People’s court sentenced him to four years of imprisonment.³

On March 10th 2004, Namkha and Bagocha belonging to nomadic families from Tongde County in the Qinghai Province were arrested by Tongde County Public Security Bureau officials, who suspected that for their songs titled “Amdo Phagod” (Courageous Amdo Man) and “Tsenpoe Phonya” (King’s Messenger)⁴ contained implicit political messages. The authorities confiscated CDs bought by the locals and arrested the singer and the composer. They were released after two months of detention⁵.

In a similar case, TCHRD received information on the arrest of Ghangshun, a Tibetan singer from Qinghai province in February 2004 for singing a song in praise of the Dalai Lama. To date, there is no information on his whereabouts.

Arbitrary arrest and detentions

Article 9 of the Universal Declaration of Human Rights states: “No one shall be subject to arbitrary arrest, detention, or exile.”

Article 71 of China’s Criminal Procedure Law (CPL) makes it mandatory for an arrest warrant to be presented at the time of arrest. Furthermore, article 59 states that

“The arrest of a criminal suspect or an accused shall be approved by the people’s procuratorates or decided by the people’s court.” and article 64 of Criminal Procedure Law adds that “when detaining a person, the public security organs shall present a detention warrant. The family of the detainee of the unit that the detainee works for shall be notified with the reason for detention”.

In practice, too often cases of arrests in Tibet are carried out without the presentation of an arrest warrant, the control of a judicial authority, and failing to communicate to the detainee’s family about his whereabouts.

In September 2004, during its visit to the People’s Republic of China, a delegation of the United Nations Working Group on Arbitrary Detention headed by the Chairperson-Rapporteur, Ms. Leïla Zerrougui, had access to the Prison No. 1 of the Tibet Autonomous Region (Drapchi prison) and the Lhasa Detention Centre (Gutsa). However, the Working Group regretted that during its visit to Drapchi prison in Lhasa, it was informed that certain individuals on its list could not be interviewed due to an internal regulation. The visit to those detainees was particularly important to the Working Group given incidents that occurred in the aftermath of its 1997 visit. Upon learning this information, the Working Group decided to discontinue its visit to Drapchi prison.⁶

Over the past ten years, the United Nations Working Group on Arbitrary Detention has issued 39 opinions covering 208 cases of individuals who have claimed to be arbitrarily detained in China. The UN Working Group found that 180 of those 208 cases indeed contained, evidence of arbitrary detention. No conclusion could be drawn for the remaining 28 cases, either because the detainees had already been freed before the Working Group’s investigation, or because of lack of information.⁷

The United Nations Working Group on Arbitrary Detention regards deprivation of liberty as arbitrary when it clearly cannot be justified on any legal basis such as ongoing detention beyond the sentence or the presence of an amnesty law. Detention is also considered arbitrary when the deprivation of liberty, is the result of the judgment or sentence for the exercise of the rights and freedoms enshrined in the Universal Declaration of Human Rights. Moreover, detention is regarded as arbitrary when the complete or partial non-observance of the relevant international standards set forth in the Universal Declaration of Human Rights relating to the right to a fair trail, is of such gravity as to confer on the deprivation of liberty, of whatever kind, an arbitrary character.⁸

By these definitions, the majority of arrests of Tibetan political prisoners can be defined as arbitrary as Chinese security forces routinely resort to arbitrary arrest and detention of Tibetans who hold peaceful demonstrations, display the Tibetan flag, distribute political leaflets, posess photographs of the Dalai Lama and pray for his health and well being.

TCHRD received information this year that on October 22nd 2002 Tashi Topgyal, 50, from Ngamring County, Shigatse Prefecture, was arrested for pasting pro-independence posters two months earlier. The PSB officials discovered an autobiography of the Dalai Lama and two copies of the book “Guidelines for the future Polity of Tibet”. Those facts were followed by the arrest of Ngodup Dorjee, a bank staff member on suspicion of having connections with Tashi. It has been reported that in 2003 the Shigatse People’s Intermediate Court sentenced him to six years of imprisonment that he continues to serve at Drapchi prison.

On February 12th 2004, Choeden Rigzin, 25, a monk from Gaden monastery was arrested by Public Security Bureau (PSB) during a secret raid at the monastery. The PSB officials found a portrait of the Dalai Lama and further discovered a banned Tibetan national flag in his room. There has been no information on his whereabouts since then. Following Choeden’s arrest, the PSB detained two of Choeden’s friends, Tsuchung and Dhargay, on grounds of being involved in the alleged “crime”. The two monks were subsequently released and returned to the monastery. The officials later summoned all the monks and declared Choeden Rinzin’s possession of the Dalai Lama’s portrait and the banned Tibetan national flag as “crime.” The officials also warned the gathering of around 500 monks not to participate in activities that “split the motherland”.⁹

On July 27th 2004, 60 people were arrested at a reception ceremony for a monk, Draksey Rinpoche, on his return to Chogri Monastery from Switzerland. The locals raised religious banners which included an image of a snow lion chasing an object resembling the banned Tibetan national flag. Most of those detained were released after spending several days in custody. There were reports of beating during their detention, which left the two men so severely injured that they could not walk.¹⁰

In September 2004 the Chinese authorities sentenced two monks and a layman to three-year jail terms, on suspicion that they were involved in pasting posters advocating Tibetan independence.¹¹

On September 14th 2004, two brothers Nyima Tenzin, 20, and Sonam Nyima, 18, were arrested by the authorities of Sog County, Nagchu Prefecture, “Tibet Autonomous Region”(TAR) for protesting for independence and freedom in Tibet in front of the Sog County Government office.¹²

With regard to the above-mentioned cases of arbitrary detention, it must be noted that the United Nations Working Group on Arbitrary Detention, following its visit to China, stressed the fact that to date no legislative measures have been taken by the government to ensure a clear-cut exception from criminal responsibility for those peacefully exercising their rights under the Universal Declaration of Human Rights.¹³

Another element of concern is the Chinese authorities’ liberal interpretation of legislative provisions aimed at preserving “state security” and “national unification”, which contributes to the practice of arbitrary detentions and arrests.¹⁴

For example, article 103 of the Criminal Law of the People’s Republic of China states:

“Whoever organizes, plots, or acts to split the country or undermine national unification, the ringleader, or the one whose crime is grave, is to be sentenced to life imprisonment or not less than ten years of fixed-term imprisonment; other active participants are to be sentenced to not less than three but not more than 10 years of fixed-term imprisonment; and other participants are to be sentenced to not more than three years of fixed-term imprisonment, criminal detention, control, or deprivation of political rights. Whoever instigates to split the country and undermine national unification is to be sentenced to not more than five years of fixed-term imprisonment, criminal detention, control, or deprivation of political rights; ringleaders or those whose crimes are grave are to be sentenced to not less than five years of fixed-term imprisonment.”

In this regard, the United Nations Working Group on Arbitrary Detention has reiterated its concerns over the fact that to date no definition for the term in criminal law “endangering national security” has been given, hence the application of criminal law provisions using this unduly broad notion may invariably give rise to arbitrariness.¹⁵

Prominent cases of arbitrary detention in Tibet¹⁶

Gedhun Choekyi Nyima Gedhun Choekyi Nyima, the Dalai Lama recognized 11th Panchen Lama of Tibet, who will be 16 years old on 25 April 2005 has been missing from public view for 9 years in a row now. On May 17th 1995, the six-year-old Gedhun Choekyi Nyima, his parents and brother were taken to Nagchu Airport in Nagchu County, Nagchu Prefecture, “Tibet Autonomous Region” by a party of security police and have never been seen since then. The People’s Republic of China has admitted to holding the Panchen Lama “for his own safety”. China Ambassador Wu Jian to UN in Geneva told that, “He has been put under the protection of the government at the request of his parents.”¹⁷

Many UN representatives, government delegations, NGOs and individuals worldwide have expressed concern over the Panchen Lama’s continued detention at every given opportunity, and called for the Chinese authorities to allow access to the boy by an independent body acceptable to the Chinese government and Tibetans to verify his health and living conditions. The former UN High Commissioner for Human Rights, Mary Robinson, also had requested access to the Panchen Lama. Beijing authorities have continued to deny access to the boy stating that he was well and growing up as any normal healthy child of his age.

Trulku Tenzin Delek
On April 7th 2002, Chinese authorities arrested Trulku Tenzin Delek, a prominent religious figure from Lithang County in Sichuan Province. Trulku was charged with alleged involvement in a series of bomb blast incidents that occurred in Kardze “Tibet Autonomous Prefecture” in 2001.

On December 2nd 2002, the Kardze Intermediate People’s Court convicted Trulku Tenzin Delek and his disciple Lobsang Dhondup and sentenced them to death. However, Trulku Tenzin Delek was granted a two-year suspension, while Lobsang Dhondup was executed on January 26th 2003. Trulku Tenzin Delek was known for his social welfare and environmental activities and professed allegiance to the Dalai Lama. It is believed that his rising popularity resulted in Chinese concerns that he might politically influence the local public opinion.

The authorities refused to give information on the reasons of Trulku Tenzin Delek’s arrest and the heavy sentencing, stating that the details of the case are a “state secret”. Almost two years have gone by, and Trulku Tenzin Delek continues to be in detention with his execution date set for January 25th 2005.

Jigme Gyatso
Jigme Gyatso, a former monk from Gaden monastery, is originally from Kersul district in Amdo. In 1985, he came to India and sought an audience with the Dalai Lama. Jigme stayed for a year in Drepung Gomang Monastery in South India and later returned to Tibet where he joined Gaden Monastery. On March 30th 1996, he was arrested on alleged charges of “political activities” and subsequently sentenced to 15 years of imprisonment.

Chadrel Rinpoche
Chadrel Rinpoche is the former abbot of Tashi Lhunpo monastery, and Chairman of the Search Committee for the reincarnation of the 11th Panchen Lama. Chadrel Rinpoche and his assistant Champa Chungla disappeared from Chengdu Airport in Sichuan Province on May 14th 1995. On April 21st1997, the Shigatse Intermediate People’s court sentenced Chadrel Rinpoche to six years of imprisonment. He was charged with “plotting to split the country” and “leaking state secrets”. He was accused of working for and assisting the Dalai Lama in the search for the 11th Panchen Lama. Although his sentence ended on May 13th 2001 following the completion of a six-year prison term, it is believed that he is now kept under house arrest. There is no additional information on his exact whereabouts in Shigatse, or on his state of health.

Jampa Chungla
Jampa Chungla, 56-year-old former assistant of Chadrel Rinpoche, was arrested in 1995 for his participation in the search committee of the 11th Panchen Lama. He was sentenced to a four- year prison term and to a two-year deprivation of political rights. He continues to be held in custody even after the completion of his original four-year prison term.

Lobsang Tenzin
Lobsang was arrested on March 11th 1988 for participating in a pro-independence demonstration against the Chinese rule at the Jokhang Temple in Lhasa. He was accused of involvement in the death of a People’s Army Police officer during the demonstration. On January 19th 1989, Lobsang Tenzin was sentenced to death with a two-year suspension. As a result of international pressure, Lobsang Tenzin’s sentence was commuted to life imprisonment in March 1991.

Ngawang Pulchung
Ngawang Phulchung has advocated for the Tibetan people’s human rights education. On September 27th1987, Ngawang Pulchung and 20 other monks of Drepung monastery staged a peaceful demonstration in central Lhasa demanding respect for human rights, including religious freedom and the right to self-determination for Tibetans. This protest was the first of a series of other important pro-independence demonstrations that were violently repressed by the authorities in the late eighties.

In April 1989 Ngawang Pulchung and three other monks were arrested for forming a “counter revolutionary group” which had clandestinely produced political leaflets. Ngawang was denounced as the leader of the group and was sentenced to nineteen years in prison and to deprivation of political rights for five years. After 15 years he is currently serving his remaining sentence in Drapchi prison in Lhasa.

Jamphel Jangchup
Jamphel Jangchup is a monk from Drepung monastery and a member of the group of ten individuals who organized the famous September 27th 1987 demonstration in Lhasa. On March 8th 1989 he was arrested at Drepung monastery for printing copies of “reactionary literature”, such as the Universal Declaration of Human Rights. He was charged with being a “principle member” of a “Counter revolutionary clique” as well as “spreading counter revolutionary propaganda and was detained in a Lhasa PSB Detention Center. On November 11th 1989, Lhasa Intermediate People’s Court sentenced Jamphel Jangchup to nineteen years in prison with a deprivation of political rights for an additional five years. He was later transferred to Drapchi Prison on January 14th1990. His current state of health is believed to be extremely poor due to severe beatings and other acts of torture that he reportedly faced while in detention.

Bangri Rinpoche
Bangri Rinpoche established an orphanage school at his own expenses. In August 1999, he was arrested for his alleged involvement in attempting to explode a bomb in the Potala Square during the National Minority Games in Lhasa.

The arrest of Bangri Rinpoche was followed by the authorities’ closure of Gyatso orphanage on October 17th1999. At the time of its closure there were 59 destitute children between the ages of two months to twelve years old.

In May 2001, Bangri Rinpoche was sentenced to death with a two-year suspension on charges of “espionage” and “endangering state security” by the Lhasa Municipality ntermediate People’s Court. On May 29th 2001, he was shifted to Drapchi prison in the north of Lhasa City and was kept in solitary confinement for more than a year.

In 2003 Bangri Rinpoche’s death sentence with a two-year suspension was commuted to life imprisonment. It has been reported that due to torture in prison, at present Bangri Rinpoche is unable to move his torso and lost much of his body weight. Moreover, Rinpoche has developed an ulcer and jaundice and his overall health condition is reported to have considerably deteriorated.

Nyima Choedon
Jigme Tenzin Nyima Rinpoche, wife of Bangri Rinpoche and co-director of the former Gyatso orphanage, was detained in August 1999 along with her husband and 21 other Gyatso orphanage staff members. The Lhasa Intermediate People’s court sentenced Nyima Choedon to ten years due to her link with her husband. She received a initial sentence reduction of eighteen months in 2002 and a second sentence reduction of one year in 2003. She is due to be released in 2008.

Torture

The People’s Republic of China (PRC) ratified the CAT in 1988. The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT) defines torture as “Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

Article 2 (1) of the Convention also states: “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”

Moreover, article 11 of the CAT specifies that:

“Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in the territory under its jurisdiction, with a view to preventing any cases of torture.”

Article 10 of the International Covenant on Civil and Political Rights (ICCPR) requires that all persons detained be treated with humanity and with respect for their inherent dignity. The Human Rights Committee has expressed the view that the rights set forth in article 10 constitute norms of general international law that are not subject to derogation.¹⁸

In this respect, article 38 of the Constitution of the People’s Republic of China states: “The personal dignity of citizens of the People’s Republic of China is inviolable.”

In practice, torture continues to be applied routinely and on a wide-scale in Tibet. Torture methods include electric shocks, pricking cigarettes on the face, hand and thumb cuffs, foot shackles, suspension from the ceiling, exposure to extreme temperature, long periods in solitary confinement, hooding, deprivation of food, water and sleep, forced labour and forced exercise drills.

The Human Rights Committee determined that handcuffing, hooding, shaking and sleep deprivation used alone or in combination, violates the prohibition against torture and cruel, inhuman or degrading treatment or punishment.¹⁹ The United Nations Special Rapporteur on Torture has said that the act of prolonged sleep deprivation amounts to torture²⁰ and the United Nations Human Rights Committee found that prolonged solitary confinement might constitute a violation of the right to be free from torture.²¹

Prolonged incommunicado detentions, as well as acts of torture and ill treatment aimed at forcing confessions, are widespread. Testimonies of former political prisoners indicate that acts of torture are a recurring feature of interrogation methods. In this regard, it has been reported that, “officers that rely on torture to break a case are not criticized but are cited for meritorious service and rewarded.” ²² The right to habeas corpus and the right to have access to a lawyer and to the outside world are safeguards that ensure the humane treatment of detainees.²³ The United Nations Commission on Human Rights found that prolonged incommunicado detention “may facilitate the perpetration of torture and can in itself constitute a form of cruel, inhuman or degrading treatment.” ²⁴ Furthermore, article 15 of the United Nations Convention Against Torture provides a safeguard against the use of any statement that is extracted as a result of torture: such statements cannot be used as evidence in any proceedings, except against the person that is accused of torture.

China’s 2003 White Paper “Progress in China’s Human Rights Cause” claimed

“significant progress in judicial guarantee for human rights” and further stated: “Public Security Organs have practiced strict enforcement of the law and emphasized law enforcement in the interest of the public […] firmly dealt with violations of human rights involving the extortion of confessions by torture, the abuse of guns and police instruments and other coercive measures”.

However, testimonies rendered to TCHRD by Tibetan former political prisoners shed light on the degree of physical and mental suffering inflicted on detainees and on the complete absence of measures taken by the authorities in order to redress human rights abuses.

In April 2004, after completing their five-year prison sentence for participating in a peaceful demonstration against the Chinese authorities in Lhasa, Nyima and Nyidron reached Dharamsala and testified to TCHRD of torture and inhuman treatment inflicted upon them at Gutsa Detention center and later in Drapchi prison:

“Three of us were beaten, had boiling water splashed on our bodies, were lashed with belts and our bodies were pricked with cigarette butts. On reaching Drapchi prison, we were made to perform exercise drills and study prison rules and regulations.”

Nyima, a former nun of Phenpo Podo Nunnery in Phenpo Lhundup County, Lhasa Municipality, narrated her experience in Drapchi,

“Jamdron, a nun from Phenpo Gyara Nunnery and I were knocked down with an electric baton. We gained consciousness when the officers splashed water on us, and the beating continued until our body became numb. We were then placed in solitary confinement cell. A daily ration of a dumpling and a bowl of hot water was all that was given to us for the next one year and eight months while we were kept in solitary confinement.

Damchoe Dolma, 29, a former political prisoner who protested against the Chinese authorities’ heavy-handedness in dealing with their Nunnery, was sentenced to six years of imprisonment in July 1995 along with seven other nuns of Shargon Nunnery in Jangkar Township, in Phenpo County. Lhasa People’s Intermediate Court found all the nuns guilty of “counter revolutionary propaganda”. She spoke to TCHRD of the torture she under went in prison.

“While in Drapchi Prison, the policemen gathered all the nuns to teach them a song that had to be performed for the local leaders during their prison visit. However, all of us refused to learn the song. Wewere told that we would be punished if we refused to learn the song. We still refused. We were made to stand still in the sun from nine to five with an hour break at noon. That night, at around 11 p.m., some soldiers came into my room and took me to a room where I was interrogated. There were five of them. They kept asking me why I refused to learn the song. I did not reply. They then beat me with an electric cattle prod all over my body until I fell unconscious. When I regain my consciousness, I was again asked if I was now willing to learn the song. When I replied negatively, they took the electric prod again and started to beat me on my heels, the shock of which again caused me to loose consciousness. When I regained my consciousness I found myself thrown onto my cell bathroom floor. I had wetted and excreted in my pants. I was unable to speak because my mouth was swollen. I found my face all bruised and cut. I was kept in that condition in the bathroom for seven days. I was later moved to solitary confinement cell with only one meal a day. The food was barely enough to keep me alive. The soldiers were careful to give me enough so that I wouldn’t die. I was given a little rice for my meal along with a bowl of water. I stayed there for six months at the end of which I was sent back to my unit. We were subjected to political education classes and we were also forced to do laborious work such as knitting sweaters”²⁶

TCHRD has received reports that two Tibetan political prisoners, Rinzin Wangyal and Lobsang Tenzin, who are currently serving life sentences, are in critical health conditions. Rinzin Wangyal was arrested in 1996 and sentenced to life imprisonment in 1997. Due to continuous acts of torture over the years, his health condition has deteriorated it is reported that he cannot walk and eat without help. Lobsang Tenzin, a Tibet University student, was arrested in 1988 for participating in a pro-independence protest. His life sentence was reduced to 18 years of imprisonment in 1994. While in Drapchi prison, he underwent severe beatings which caused kidney malfunction and psychological disorders.²⁷

Acts of torture are frequently inflicted upon Tibetan political prisoners not only for the purpose of extorting confessions, but also in an attempt to curb the detainees’ nationalist feelings and to serve as exemplary punishments aimed at deterring other Tibetans from challenging the Chinese government’s policies. The majority of Tibetan prisoners arrested have suffered serious physical and mental abuses at the hands of either Public Security Bureau officers or prison guards.

Even after their release from prison, many political prisoners need long-term medical attention, sometimes including physical and mental rehabilitation. However, those who cannot afford to pay medical expenses are forced to leave the hospital without having received adequate treatment. In some cases, the ordeal of political prisoners does not end with their release. In addition to their physical and psychological trauma, monks and nuns in particular find it difficult to return to their normal lives after being released, as they are constantly kept under surveillance and interrogated by the authorities. This often results in ostracism from their respective monasteries, which are afraid of drawing the attention and the interference of the authorities by taking back former political prisoners. Subsequently ousted by their own communities, those monks and nuns see their conditions further aggravated by the lack of employment opportunities.

In October 1999, Geshe Sonam Phuntsok, popularly known as Kardze Geshe, was convicted on charges of leaving Tibet on illegal papers procured from Lhasa and for conducting a long life prayer ceremony for the Dalai Lama. In October 2004, he was released after the completion of a five-year prison sentence and was prohibited from giving religious discourse to his students. His movements continue to be restricted by the local authorities.²⁸

Nyidron, a former political prisoner who suffered torture and eleven months in solitary confinement at Drapchi prison, told TCHRD:

“I was admitted to a hospital for a long duration but, before I could recover fully, my family had to pull me out as they couldn’t afford the exorbitant medical expenses. Also, my nunnery had been instructed that I couldn’t return to my religious studies and I also couldn’t find a job. In 2002, I ran a small food stall in Lhasa but, after a month, three officers from the Lhasa City PSB ordered us to close the stall saying that it was a meeting point for ‘reactionaries’. It is very difficult for former political prisoners to find jobs in co-operatives or private businesses. The authorities won’t issue registration certificates or other permits to former political prisoners who want to run small businesses. It’s the end of a person in Tibet if he or she has any political incidents in their background. ”²⁹

On September 21st 2003 upon Namdol Lhamo, a member of the so-called “14 singing Nuns”³⁰ was released after completion of her 12 years sentence. She testified to TCHRD about her life outside prison:

“My parents passed away while serving my sentence in Drapchi prison. Life can be so difficult for former political prisoners to find respectable job in the society. I worked at a shop in Lhasa for one and half months with a monthly income of 50 Yuan. Many former political prisoners end up washing dishes in restaurants without job security and could be fired once the owner comes to know about their background. It is particularly difficult for monks and nuns to get readmitted into monasteries and nunneries after their release. The police would keep a constant watch on all movements. ”³¹

Namdol Lhamo suffered from mental instability after her release. She also had to sell her house before fleeing into exile.

Gyaltsen Dolkar, another prominent member of the “14 singing nuns,” who served a 12-year sentence for advocating for Tibet’s independence was released on March 21st 2004. She recounted to TCHRD her austere life after release:

“I was regularly summoned to the local public security bureau office where, officer made me sign a document stating my non participation in any future political activitiy. At the same time my health condition was serious and needed urgent medical attention. After a few days, I left to my hometown but found that my parents had passed away during my imprisonment. I returned back to Lhasa and earned my livelihood selling breads and noodles. Former political prisoners face great hardship after their release. It’s very hard for them to find a proper job in the community. Furthermore, the Public Security Bureau often harasses them. ”³²

Custodial deaths

The severity of torture systems employed by Chinese prison authorities is reflected by the number of deaths that occur inside detention centers or immediately after release from those facilities. According to the TCHRD database, the average age of custodial deaths occurred since 1987 among Tibetan political prisoners is 26.

Article 22 (2) of the Standard Minimum Rules for the Treatment of Prisoners stipulates that: “Sick prisoners who require specialist treatment shall be transferred to specialized institutions or to civil hospitals.” However, officials seem to only act when the prisoner is in a near death situation, and by then it is often too late to save the person’s life.

TCHRD has received many reports from former political prisoners several reports of cases custodial deaths. Since 1987, TCHRD has documented 87 cases of deaths among Tibetan political prisoners as a direct result of torture. In the majority of these cases, the acts of torture and ill treatment, coupled with the authorities’ denial of timely and effective medical attention, resulted in a rapid deterioration of the physical conditions of the detainees. Deaths due to tortures and ill treatment have generally occurred either during detention or immediately after release.

On January 15th 2004, Yeshi Gyatso, 65, died in his home after being released on medical parole from Lhasa Detention Centre. Yeshi was arrested in June 2003 on alleged charges of political activities and was subsequently sentenced to a six-year imprisonment term by Lhasa Intermediate People’s Court.

Right to a fair trial

In Tibet, individuals accused of political crimes are often denied the right to a fair trial enshrined in articles 10 and 11(1) of the Universal Declaration of Human Rights.

China’s legislation guarantees the citizens’ right to receive legal aid with the administrative statute “Regulations on Legal Aid” which was formulated and promulgated in 2003.

In practice, detainees in China are often denied access to legal counsel until the prosecution has concluded the investigation and is ready to go to trial. By that time the accused has usually been detained for a long period of time without trial, varying from several months to over a year. Visits of detainees’ family members are only allowed once the court’s verdict is given and the prisoner is transferred to the facility where he or she is to serve the sentence. Moreover, China’s legal system does not provide sufficient safeguards against the use of evidence gathered through illegal means such as through the use of torture.

An accurate examination of trial documents concerning the cases of political prisoners in China reveals that court verdicts often follow, almost verbatim, the text of the original indictment. Moreover, the appeal process fails to provide an adequate avenue for the review of criminal cases. In fact, Chinese authorities make it difficult for defendants to appeal a sentence before a higher court in Tibet, as there is a constant fear of reprisals against those who appeal on a suspect’s behalf, or against the suspect himself.

The Chinese legal system does not recognize the principle of “presumption of innocence” enshrined in the Universal Declaration of Human Rights. In this regard, the United Nations Working Group on Arbitrary Detention noted that China has not yet amended the provision which stipulates that no one shall be considered guilty until convicted to clearly stipulate the presumption of innocence until proven guilty.³³

On April 14th 2004 three fact-finding experts of the United Nations Commission on Human Rights, issued a statement expressing their deep concern over the situation of Trulku Tenzin Delek making reference to serious procedural flaws during his closed trial. They particularly called attention to the violation of the right to a public trial; the violation of the right to chose his own lawyer, denial of the right to know and have the opportunity to examine the evidence presented against him in court and incommunicado detention and ill-treatment during the pre-trial period. Moreover, the United Nations experts expressed concern at the alleged lapses in respect for human rights during the trial proceedings and urged the authorities to grant Tenzin Delek Rinpoche a new trial ensuring respect for international norms and standards of due process.³⁴

Independence of the Judiciary

Article 126 of the Chinese Constitutions states that “courts shall, in accordance with the law exercise judicial power independently and are not subject to interference by administrative organs, public organizations, or individuals.” In practice, the judiciary is subject to policy guidance from both the government and the Communist Party. At central and local level, the government and the Communist Party frequently interfere in the judicial system’s proceedings.

Under the Chinese judiciary system three bodies are in charge of enforcing the law: the procuracy³⁵, the courts and the police forces. All of them operate under the close control of the Communist Party. The Chinese system is therefore in clear contrast with the United Nations Basic Principles on Independence of Judiciary, according to which

“The Judiciary shall decide matters before them impartially, on the basis of the facts and in accordance with the law, without any restrictions, improper influence, inducements, pressures, threats or interference, from any quarter for any reason. ”³⁶

The Chinese judiciary system’s lack of independence is clearly displayed in cases involving political accusations. Courts at all levels are subject to close scrutiny and control by parallel and superior organs of the Communist Party known as “politics and law committees”. Furthermore, the Communist Party requires that, within each court, so-called “adjudication committees”, composed of the court president and other senior judicial cadres, not only screen all the most important or sensitive cases but also render a verdict before the trial. In China’s legal press this procedure is openly referred to as “verdict first, trial second”.

At the fourth meeting of the 8th Standing Committee of the People’s Representative Congress of the “TAR” held on September 29th 2004, personnel changes in the “TAR” were announced³⁷. Apart from a few changes within the Congress itself and the People’s Government, most removal and replacements took place with the judiciary, affecting the Intermediary Courts and in particular the procuracy departments of all six prefectures of the “TAR”, except Lhasa, which has a special status. This new appointment reflects the current preference for Chinese over Tibetan cadres and illustrates Beijing’s present perception of regional autonomy as an exercise in integration rather than diversification.

At the recent fourth meeting of the 8th Standing Committee of the People’s Representative Congress of the “TAR”, held on September 29th 2004, personnel turnover was announced in the “TAR”³⁸. Removals and replacements took place within the judiciary, affecting the Intermediary Courts and the procuracy departments of all six prefectures of the “TAR”, except Lhasa, which has a special status. Only two out of thirteen new cadres in the procuracy departments of the various “TAR”’s prefectures are Tibetans. Only one Tibetan out of five appointees has made it into the procuracy at the “TAR” level. Likewise, out of the seven new appointees to various People’s Intermediate Courts, only one is Tibetan.

THRD believes that the ethnic disparity in appointments at the judiciary level, coupled with Beijing’s policy aimed at appointing or transferring Chinese cadres from other provinces and various professional backgrounds to the “TAR” for a certain term, could progressively jeopardize the already precarious political autonomy of Tibet.

Death penalty

According to article 48 of the Chinese Criminal Law, all death sentences should be submitted to the Supreme People’s Court for verification and approval. However, in 1980 the standing Committee of the National People’s Congress of China decided to shift the authority to review and uphold death penalty sentences in cases of murder, robbery, rape, arson and other crimes that could severely jeopardize public security. This system, commonly known as xia fang (send down), was later reaffirmed through the Organic Law and the 1983 Notice and further sanctioned by the Supreme Court in 1997. As a result, the Chinese legal system faces a conflict between the Criminal Law and the laws and directives authorizing the xia fang. An amendment to the Criminal Procedure Law concerning the procedure for review of death sentences has been envisaged in the legislature plan of the 10th National People’s Congress (NPC) on March 2004. As a result, the Supreme Court should be re-established as the ultimate body of appeal in capital cases, as article 48 of the Criminal Law requires.

Article 212 (5) of the 1996 Criminal Procedure Law of the People’s Republic of China states: “Execution of death sentences shall be publicly announced.” However, China continues to regard statistics on the death penalty as a “state secret”. Therefore, it remains impossible to know the number of people executed each year by the Chinese State. In the year 2003, according to some reports, more than five thousand people being were executed for various crimes³⁹.

China is a country that executes more people every year than the rest of the world combined. It must also be noted that the capital punishment, initially introduced for 32 crimes, has been gradually instituted for 73 different crimes.⁴⁰

Anti-terrorism drills in Lhasa

The 3rd International Conference of Asian Political Parties held from the 3rd to the 5th of September 2004 in Beijing and gathered leaders and representatives of 81 political parties from 35 countries, including the Communist Party of China (CCP). The conference adopted the Beijing Declaration, which stated:

“Terrorism, splittism and extremism have already become plagues that do harm to human society. We strongly condemn and oppose all forms of terrorism. We advocate strengthening cooperation among sovereign countries and between regional organizations against terrorism, taking steps to eliminate the root cause of terrorism while giving full play to the role of the United Nations. Double standards should not be practiced and the fight against terrorism must not be linked with any particular ethnic group or religion. ”⁴¹

Under the banner of anti-terrorism the Chinese authorities have cracked down on Tibetan dissent and curbed heavily those they consider involved in “splittist activities”. The Chinese authorities’ concern over terrorism is reflected in continued anti-terrorism exercises in Tibet’s capital, Lhasa. The first daylong anti-terrorism drill “Himalaya 03” was carried out by Chinese military on November 17th 2003. The second drill took place on September 12th 2004. The operations took place with Chinese troops practicing drills on rescuing hostages, handling bombs and biochemical attacks. The maneuvers, which lasted about three hours, also covered anti-hijacking, anti-explosion, anti-biochemical weapons and seizure of terrorists.⁴²

A Chinese official said the drills were meant to keep armed forces ready for a crackdown on what he called separatists allied with the exiled Tibetan spiritual leader, the Dalai Lama. ⁴³ The Chinese official news web portal Xinhua, quoted organizers as saying that “The anti-terrorist maneuvers, in the context of increased acts around the world, were staged to check the region’s response mechanism in case of terror attacks.” ⁴⁴

Any anti-terror measures taken by China need to be conducted in full accordance with international law. TCHRD believes that labeling “terrorists” as those minorities who peacefully engage in cultural or religious activity or peacefully advocate for political independence or autonomy violates the Tibetans’ rights to freedom of opinion and expression, association and religion, as in accordance with international standards. There is, therefore, a clear need to review the legality of counter terrorist measures in the light of international human rights and humanitarian laws.

The “Strike Hard” Campaign

A further attempt to intensify the Chinese government’s hard-line policies against those suspected of undermining China’s unity was the re-launching of the “Strike Hard” campaign in Tibet. The campaign, conceived in 1983 to fight against crime and corruption in mainland China, was initially launched in the Tibetan Autonomous Region (“TAR”) in April 1996. However, in the “TAR” the campaign was carried out essentially with the purpose of thwarting the influence of the Dalai Lama and clamping down on Tibetan dissent.

Under the “Strike Hard” campaign, all signs of reverence for the Dalai Lama – including possessing his portraits, video and audiotapes, as well as making reference to the exiled leader and his government - have been curtailed. Also outlawed and tightly controlled is the possession of the Tibetan national flag, and any material with political connotations, all of which is viewed as an act that “endangers state security” or “affects the stability and the unity of the motherland” and will be punished accordingly.

In the context of monastic communities, the possession of the above-mentioned items is monitored and sanctioned through frequent visits by “work teams” to major religious centers and institutions to conduct regular meetings aimed at politically re-educating and coercing monks and nuns to denounce the Dalai Lama.

China has very recently stepped up its campaign to systematically “Strike Hard” on Tibetan political dissent and religious institutions. On October 19th 2004 the “TAR” main law enforcement bodies met for a week-long meeting in Lhasa and discussed the need to maintain social stability and to take appropriate measures against people suspected of undermining Chinese sovereignty and security. It was therefore decided to intensify the “Strike Hard” campaign in Lhasa during the last two months of the year 2004. The “TAR” Public Security Bureau (PSB) head, Mr. Yang Song, on October 20th 2004, said: “social stability is not only an essential need of society, but also a very important political matter […] to strike hard and suppress the separatists.” ⁴⁵

Since it’s inception, the “Strike Hard” campaign has always had serious human rights implications for Tibetans. There have been numerous cases of arrests and detentions, torture and long-term imprisonment, for the expression of support for Tibetan independence and the Dalai Lama.

Re-education through labour camps

Another area that entails a deprivation of liberty is the use of the re-education through labor system, introduced by the Chinese government in 1957. In accordance with the Chinese Administrative Punishment Law, this system empowers the authorities to arbitrarily arrest and detain individuals without due process of law. A person can be sentenced by a local Public Security Bureau (PSB) or by the Re-education through Labour Management Committee without any judicial control over the decision and without a right to appeal. Re-education through labor sentences range from six months to three years with a further one-year extension if the individual is viewed as having failed to reform.

The United Nations Working Group on Arbitrary Detention has reiterated that that any form of deprivation of liberty - including re-education through labour - must be subject to judicial control.⁴⁶ However, to date no real judicial control is exercised within the procedure to commit someone to re-education through labour.⁴⁷

In 2004, there was an increase in cases of re-education through labour camps of Tibetan political prisoners and Tibetans trying to flee Tibet or trying to return to Tibet from exile.

Although it has been reported that the National People’s Congress intends to put on its agenda the reconsideration of the current legal framework for re-education through labour⁴⁸, it must be noted that in July 2004 a 40,000-square-foot new re-education camp became operational in Senge Township in the Ngari County. Eight million Yuan were allocated by the Development Department for the establishment of the camp, which can accommodate approximately two hundred inmates.⁴⁹ The choice of location for the camp is significant, as it is located on the route followed by Tibetans fleeing Tibet and by those returning from India and Nepal.

Restricting freedom of movement

Article 13 of the Universal Declaration of Human Rights Everyone states that

“Everyone has the right to freedom of movement and residence within the borders of each State” and to “leave any country, including his own, and to return to his country.”

In practice, China makes it difficult for Tibetans wanting to leave Tibet to acquire legal travel documents. Therefore, every year many Tibetans try to flee their homeland to seek freedom of religious practice in monasteries or to join educational institutions set up by the Tibetan government in exile in India without the right papers.

On their journey across the Himalayan passes Tibetans not only face hunger, dehydration, injuries, snow-blindness, and frostbite while fleeing but also risk arrest at the numerous police checkpoints along the route. Moreover, arrest by Nepalese authorities and deportation back to the Chinese border leaves Tibetans extremely vulnerable.

On September 11th 2004, the Nepalese security personnel arrested a group of 34 Tibetans, including six women and six children, who were trying to cross over to Nepal from Tibet. Dhondup Tsering, 22, Tashi Dhargay, 19, and Dhondup Namgyal, three monks from Dhargayling Monastery, started their journey on December 29th 2003 in order to seek an audience with the Dalai Lama in Dharamsala. Dhondup Tsering told TCHRD:

“Once we crossed into Nepal, a strong Nepalese army officer interrogated us in Tibetan and simultaneously kicked and beat us brutally. The army officer also frisked us thoroughly and took 1500 Yuan from me and 2900 from the others. We were subsequently detained in a toilet under strict surveillance with no food for the night. The next morning at around 11 am, the Nepalese army handed us over to the Chinese border security officials at Dram, at Nepal-Tibet border. All of us were interrogated individually by the Chinese officials and were subjected to severe beatings, despite the fact that Tashi Dhargay was having ulcer and heart problems. We were kept in prison with no cot and electricity.”

In November 2004 TCHRD received information that two minor girls from a group of fleeing Tibetans were assaulted and brutally gang-raped by a group of Nepalese dressed in police uniforms. The interviewee reported:

“We were five men and two girls, one aged 13 and the other 16, in our group. After crossing the Dram town (Nepal-Tibet border town), we reached the woods of Tatopani area. A group of eight men dressed in Nepali police uniform and armed with knives suddenly attacked us. The girls were stripped naked in front of us and the men raped both of them in turn. Some of the men raped the girls repeatedly. The other men laughed and urinated on the side when the girls were being raped. One man in our group was knocked down with a knife on the head when, out of desperation, he tried to fight the armed assailants.” ⁵⁰

Tenzin Nyima, 15, from Totse Village in the Nyingtri County was among the 18 Tibetans who were arrested during his first attempt to flee Tibet. He was imprisoned at Dilli Bazar jail in Katmandu by the Nepalese police and later deported to Tibet on May 31st 2003. He recounted his attempt to escape:

“We were threatened by pointing a gun at our heads and asked about our destination and the name of our group leader. We were also slapped and beaten with electric baton. I felt unconscious for more than one and a half hours after the police struck an electric baton on my back.” He was detained near Dingri and imprisoned in Shigatse prison. “I was later tied completely naked with a rope, and put upside down and ice-cold water was poured on my body. I was jailed for five months in Shigatse Prison and my relatives were able to secure my release after paying 3000 Chinese Yuan to the prison authorities.”

On his second attempt to escape into exile with 27 other Tibetans, he was detained by the Nepalese police and deported back to Tibet.

“While in detention in a small cell at Dram, a transit town at Nepal-Tibet border, five of us suffered severe nose bleeding and were kept without any medical attention for three weeks. After numerous appeals to Chinese officials for our release, I was finally given medical attention. The local police later shifted me to Shigatse prison where treatment of prisoners was slightly better and my parents were able to bribe the prison officials for my release.” On his third attempt Nyima managed to escape into exile and reached Katmandu on May 2004.

The year 2004 also witnessed several cases of Tibetans returning from their exile in India having been arbitrarily detained by the Chinese authorities, and sometimes being forced to pay bribes in order to secure their release.

Tibetans returning from exile, especially highly respected Lamas, are regarded with suspicion by Chinese authorities for their allegiance to the Dalai Lama or for presumed involvement in political activities, which China labels as attempts of “endangering State security”. According to testimonies rendered to TCHRD, the Chinese authorities also ordered the expulsion of monks and nuns returning from exile to their home monasteries in Tibet.

Nevertheless, monks and nuns returning from monasteries in India are not the only Tibetans victims of persecution, as the Chinese authorities routinely target students returning to Tibet after completing their education abroad.

Tibetans returning from India are often kept in custody by Chinese authorities in detention centers located at the Nepal-Tibet border. It is quite common for detainees to undergo interrogation sessions that can include beatings and other forms of physical punishment.

TCHRD received information that two monks from Ragya Monastery, Gedun Rabgyal and Woeser Thaye, who had gone into exile and studied at Jadel Khangtsen, Sera Jhe Monastery in South India, while on their way back to Tibet were detained for four months before being handed over to the authorities of their respective places. They were both fined 4000 Yuan each by the Chinese authorities.⁵¹

In June 2004, Sherab and Tenzin Dadul, two Tibetan individuals who had studied at Jadel Khangtsen, Sera Jhe Monastery in South India, were detained along with two lay persons, Dhombuk and Monlam, at Dram prison at the Tibet-Nepal border while returning to Tibet. Currently there is no information on their whereabouts and well-being.⁵²

TCHRD received information that in 2001 the Chinese authorities arrested four former monks from the Ragya Monastery in Machen, Kunchok Dhargay, Mathok Damchoe, Tsultrim Phuntsok and Sonam Gyatso while they were returning to their native place from India. The four were charged with having contacts with a secret organization called “Freedom in Tibet” and for distributing pictures of Gendun Choekyi Nyima, the 11th Panchen Lama. They were all sentenced to five to six years of imprisonment. TCHRD received confirmation of the news in 2004.

Due to the difficulties in collecting timely information on human rights violations, in some cases reports of arrests and detentions reach TCHRD only after a prisoner has completed his/her sentence and escapes into exile.

Conclusion

There is no doubt that over the past decade China has undergone a profound economic transformation. However, China’s rapid economic development has not been accompanied by an increased awareness of its citizens’ civil and political rights.

Du Zhongxing, member of the Chinese delegation to the 60th session of the United Nations Commission on Human Rights, stated:

“The realization of civil and political rights is a gradual process. No matter what method or model a country adopts in realizing human rights, the enjoyment of civil and political rights by individuals in that country cannot possibly exceed the level of its overall social development. [...] The realization of civil and political rights requires material support and capacity- building. It is closely linked to economic, social and cultural rights and the right to development. At present, there are some misunderstandings about civil and political rights.

Some believe that the protection of these rights requires only political will and that no resources are needed. Yet in actual practice, it is not difficult to find out that protecting these rights does require resources. For example, resources are needed for human rights education, training of law enforcement personnel, provision of legal aid, elections at the grass-roots level, etc. To further promote the cause of human rights, the international community should give due regard to economic, social and cultural rights as well as the right to development. Greater technical support and assistance for the purpose of capacity-building should be provided to the vast number of developing countries which are economically under-developed and facing financial difficulties.”⁵³

This statement clearly reflects the Chinese government’s misconception of the nature of civil and political rights. Chinese authorities consider economic development as a necessary pre-condition for the enjoyment of civil and political rights. However, according to a broadly accepted doctrine, civil and political rights serve to protect the individuals from excesses of the State. Therefore, individuals can enjoy those rights only as long as the State does not encroach upon their liberties. TCHRD believes that the promotion and the protection of certain fundamental rights, as the right to freedom of thought, conscience and religion, the right to hold opinions without interference, the right of peaceful assembly, the right to freedom of association with others, the right to leave as well as to enter one’s own country, does not require “technical and material support and capacity-building, assistance and resources”. While it is indisputable that human rights are interdependent and interrelated, TCHRD believes that the Chinese Government’s view according to which the promotion and protection of the above-mentioned rights should depend on the degree of economic development of the society is totally unacceptable.

The Chinese government’s concern over bringing economic development to Tibet is overlooking that Tibetan people will not be fully developed until they are guaranteed opportunities of enjoying their most fundamental civil and political rights.