Informe provisional - Informe núm. 383, Octubre 2017

1. 135. The Committee last examined this case at its October 2016 meeting [see 380th Report, paras 193–243].
2. 136. The Government sent its observations in communications dated 3 March and 2 October 2017.
3. 137. The International Trade Union Confederation (ITUC) sent additional information in a communication dated 12 May 2017.
4. 138. 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. 139. At its October 2016 meeting, the Committee made the following recommendations in relation to this case [see 380th Report, para. 243]:
   • (a) The Committee requests the Government to provide the court judgments in cases of Mr Zeng Feyiang, Ms Zhu Xiaomei and Mr Tang Huanxing and to ensure that the three activists can continue providing advisory services to workers without hindrance.
   • (b) The Committee expects that the pending investigation of Mr Deng Xiaoming and Mr Peng Jiayong will be concluded without further delay and that it will also shed light on the alleged attack on Mr Zeng on 20 December 2014 and the beating and detention of several workers of the Lide Shoes Factory and of Mr Meng in April 2015. The Committee requests the Government to keep it informed in this respect and to provide the court judgments in cases of Mr Meng Han, Mr Deng Xiaoming and Mr Peng Jiayong, once they have been handed down.
   • (c) The Committee requests the Government to indicate whether Mr Chen has been charged, as other labour advisers, with “gathering a crowd to disturb social order”, as claimed by the complainant, and if so, to provide detailed information regarding his case.
   • (d) The Committee expects that an independent inquiry will be conducted by the Government into the allegation of the police intervention in the labour dispute at the Cuiheng Bag Factory in March–April 2015 which led to the detention of four factory workers and injuries of many, including Mr Peng Jiayong, volunteer of Haige Labour Services Centre, Mr Chen and Zhu Xinhua, a workers’ representative from another factory. It requests the Government to provide detailed information on its outcome.
   • (e) The Committee requests the Government to provide its observations on the allegations of pressure suffered by the relatives of Mr Zeng and Mr Meng.
2. 140. By its communication dated 12 May 2017, the ITUC rebuts the Government’s previous observations and provides an update on the trial of the four labour activists, namely Mr Zeng Feiyang, Ms Zhu Xiaomei, Mr Tang Huanxing and Mr Meng Han.
3. 141. With reference to the Government’s previous indication that the registration of the Panyu Workers’ Document-Processing Service Centre was revoked in 2007, and that the Centre has not been registered, the ITUC indicates that it was the Migrant Workers’ Cultural Service Centre in Shiqi that had its registration revoked in 2007, not the Panyu Workers’ Centre. According to the complainant, the Panyu Workers’ Centre made repeated unsuccessful registration attempts and was told by the authorities that there were no guidelines on the registration of NGOs defending labour rights. The complainant recalls that the Panyu Workers’ Centre has openly served workers in Guangzhou for 17 years and was well known in the community and to the local government. The ITUC considers that the prosecution of the leaders of the Centre was directly related to the technical support they provided to workers, including those who were on strike.
4. 142. With regard to the Government’s claim that Mr Zeng, Mr Meng, Mr Tang, Ms Zhu Xiaomei, Mr Peng and Mr Deng engaged in work stoppages at Lide Shoes Factory (hereinafter the shoe factory) leading to the mass gathering of people and eventually disruption of public order three times during the period from December 2014 to April 2015, the ITUC argues that the work stoppages where held in and around the shoe factory premises and were completely peaceful and there is no evidence that the public order was disturbed by the strikes. It further indicates that while it is true that over the course of the three strikes, on some occasions, some workers remained at the premises overnight and blocked products from being transported out of the factory, the workers did not threaten or verbally abuse any workers who chose to go to work. According to the ITUC, if the peace was in fact disturbed, it was when the police stormed the factory, beat several workers and dragged away their leaders.
5. 143. With respect to the Government’s assertion that Mr Zeng and another six persons were punished for engaging in gathering people to disturb public order and other criminal activities causing damage to the interests of other citizens, the complainant affirms that the legitimate purpose of lawful strikes and demonstrations is to firmly but peacefully halt production and to encourage others not to work and that the Government recast the legitimate exercise of freedom of association rights as a criminal charge. The complainant further considers that the detention of persons for reasons connected with those activities constitutes a serious interference with trade union rights, no matter how the acts are characterized. It further argues that the public security authority violated section 14 of the Criminal Procedure Law when it barred lawyers from visiting the detained individuals.
6. 144. The ITUC further indicates that contrary to the Government’s assertion that freedom of association is fully safeguarded in China, its laws and regulations do not allow workers to join or form trade unions unless the local unions have affiliated with the All-China Federation of Trade Unions (ACFTU). It also affirms that the Government has frequently used public order laws to crack down on legal activists and trade unionists and points out that it is not possible for a worker to participate in a legitimate strike or demonstration without violating Chinese law that prohibits the disturbance of public order. Moreover, the ITUC alleges that in China, it is common for the prosecutor and the court to view industrial actions taken by workers as public security violations rather than as the exercise of fundamental rights.
7. 145. Regarding the accusations laid out against Mr Zeng for having organized people to block the gate of the company, stop the circulation of vehicles through the gate, cause troubles in the workshops and offices, obstruct the normal work of others and seriously disturb the normal production order of the company, the complainant argues that contrary to the Government’s accusations, Mr Zeng was a consultant who facilitated collective bargaining, provided workers with legal assistance, helped to organize meetings and taught workers to seek legitimate demands and to defend their rights in a legal way.
8. 146. Regarding the rights of the defendants (Mr Zeng, Mr Tang and Ms Zhu) while in custody, the ITUC alleges that although the defendants pleaded guilty and accepted the sentences, these guilty pleas were made under duress to avoid further prosecution by the authorities. Furthermore, the defendants underwent harsh treatment while in detention and extremely harsh treatment in jail by the authorities. According to the ITUC, Mr Zeng was interrogated 65 times for approximately three hours each session. During his first three days of detention Mr Meng was interrogated every day and only had around three hours of sleep per day; when transferred to another detention centre in Guangzhou, he was interrogated for 13 days straight and allowed to sleep for only around two hours a day; afterwards, Mr Meng was still questioned around once a day. According to the complainant, in the course of the interrogations, the police told Mr Meng that if he implicated Mr Zeng, he would be granted leniency in his case.
9. 147. The ITUC further refers to the publicly available video footage which shows that on 5 May 2016, the apartment of Mr Meng’s parents was vandalized by three masked men who brandished an axe and attempted to break into the apartment. According to the complainant, the vandalization of the apartment was very likely a retribution for Mr Meng’s support for workers’ rights.
10. 148. The ITUC recalls that Mr Zeng, Ms Zhu, Mr Tang and Mr Meng were prosecuted for their involvement in three strikes at the shoe factory. On 29 September 2016, Mr Zeng was found guilty of violating section 290 of the Criminal Code and sentenced to three years of imprisonment, suspended for four years; Mr Tang and Ms Zhu were sentenced to one and a half years of imprisonment, suspended for two years; all three were released on the same day. Mr Meng, accused of organizing workers’ representatives to instigate the second strike in the shoe factory on 15 December 2014, during which workers blocked the company entrance and leading a sit-in on 20 April 2015, was tried on 3 November 2016. He was sentenced to one year and nine months of imprisonment. Previously, in April 2014, he was sentenced to nine months of imprisonment under section 240 of the Criminal Code for having staged a protest of security guards at the Guangzhou Municipal Chinese Medical Hospital to demand compensation for the termination of their contracts by the employment agency. According to the complainant, the judgments in the above cases indicate that the four activists trained workers of the factory, facilitated workers to elect their collective bargaining representatives and instigated workers to stage three strikes between 2014 and 2015. Mr Zeng, as the Director of the Panyu Centre, was found by the court to be “fully in charge” of the three strikes. Mr Meng was found responsible for implementing the strike plan, convening meetings, giving instructions to workers during the strikes and making online updates. Mr Tang was accused of handling the media and Ms Zhu of liaising with workers and their representatives. The judges determined that the actions of the four led to a serious economic loss of RMB2.7 million (approximately US$400,000) and had disrupted public order.
11. 149. According to the complainant, none of the evidence proffered by prosecution, including pictures, video clips of the three strikes, tweeted messages, correspondence and meeting documents, support a finding of disruption of public order. The prosecution called 26 witnesses, including four from the management, six from the local government and ten factory workers. None of them provided evidence indicating that the strikes became violent or unruly; rather, they all pointed out that the workers’ actions were confined to the company complex. Some witnesses said that the strikes were “escalating in scale and emotional intensity on the part of the strikers”, referring to workers chanting slogans in a louder voice in the third strike and staging a demonstration at the company offices. Thus, according to the ITUC, the testimony could only support the finding of a work stoppage that brought production to a halt, some shouting aimed at office employees, the sit-in in front of the company entrance and stopping vehicles from leaving the factory. However, while the strikes were animated, there is no evidence that the strikes were violent, disturbed the public order or were otherwise about to spiral out of control. Regarding the Committee’s request to ensure that the three sentenced activists, namely Mr Zeng, Mr Tang and Ms Zhu, could continue providing labour services to workers without hindrance, the ITUC indicates that none of the six labour activists have been able to resume their previous roles and provide labour services: Mr Tang, Mr Peng and Mr Deng ceased working as labour activists and have left Guangdong Province; Ms Zhu and Mr Zeng have to wear GPS devices so as to ensure that the authorities can keep track of their movements and the contacts they make; Mr Meng is still serving his sentence and Mr Chen has not yet been prosecuted.
12. 150. By its communications dated 3 March and 2 October 2017, the Government indicates that it had duly investigated the allegations raised in this case. The Government recalls that Mr Deng and Mr Peng were accused of gathering people to disrupt public order and put under criminal detention by the Panyu Branch of the Guangzhou Public Security Bureau. On 8 January 2016, they were released on bail and sent back to their original places of residence – Leiyang, Hunan Province, and Yichang, Hubei Province, respectively. On 3 January 2017, the Panyu Branch of the Guangzhou Public Security Bureau terminated their bails pursuant to the legislation in force. Mr Deng and Mr Peng left Guangzhou on 5 and 11 January 2017, respectively. Mr Deng is self-employed and Mr Peng now works for another company.
13. 151. The Government informs that on 3 November 2016, the Second Criminal Tribunal of Guangzhou Fanyu District Court heard the case of Mr Meng, accused of gathering people to disrupt public order. The Court held that the facts in this case were clear and corroborated. Mr Meng was sentenced to imprisonment for one year and nine months. According to the Government, he had accepted the judgment and will not appeal it. On 3 September 2017, Mr Meng, having completed his prison sentence, was released.
14. 152. The Government further indicates that during the court hearing, the public prosecutor presented evidence, including videos records, showing that Mr Zeng has organised, led and actively participated in the collective stoppage. The testimonies of several witnesses demonstrated that, during the stoppage, workers collectively insulted and attacked other persons who came in and out of the office, and disturbed employees who were working in the office. The court opined that the shoe factory suffered a loss of production value amounting to approximately RMB2,7 million (approximately 400,000 USD) and a loss of brut profit amounting to RMB933041.2 (approximately 140,000 USD). The court concluded that the workers’ actions during the stoppage seriously disturbed the normal work of others, the production order of the company and led to serious economic loss to the company. Pursuant to section 290(1) of the Penal Code, Mr Zeng and others are criminally liable for having disturbed the normal production order of the company which led to serious economic loss. Mr Zeng, Mr Tang and Ms Zhu are currently on probation and thus have to do community service on a regular basis.
15. 153. The Government indicates that it has forwarded a copy of the court verdicts in the cases of Mr Zeng, Mr Tang, Mr Meng and Ms Zhu (not attached). As to the question of whether Mr Zeng and others could continue providing advisory services, the Government indicates that any such activity would be subject to its conformity to the national laws and regulations.
16. 154. The Government reiterates that there is no evidence of Mr Chen’s involvement in the crime of gathering people to disrupt public order and, thus, no compulsory measures have been imposed on him.
17. 155. According to the Government, an investigation into the case of the Cuiheng Bag Factory (hereinafter the bag factory) labour dispute revealed that, on 2 March 2015, workers in the factory in Nanlang village (Zhongshan, Guangdong Province) demanded that the original salary scales be maintained or buyouts be offered due to the reduced normal and extra working time caused by the decrease in orders. Some of the workers engaged in the work stoppage obstructed those not participating in the action from working. Four leaders were accused of disrupting production order and were thus put under administrative detention on 24 March 2015 by the Nanlang Branch of the Zhongshan Public Security Bureau. Thereafter, production order in the bag factory was restored.
18. 157. The Government further indicates that there are no police records pertaining to the alleged intimidation of relatives of Mr Zeng. As concerns similar allegations involving Mr Meng, the Government indicates that in mid-September 2015 Mr Meng rented a residence in Nantou village, Zhongshan, Guangdong Province, together with his partner on a two-year lease. On 3 December 2015, when Mr Meng had been placed under criminal detention, the landlord requested to terminate the lease, given Mr Meng’s involvement in illegal activities. However, his partner refused to move out and put forward various unreasonable demands. She had Mr Meng’s parents move in to live with her. On 7 May 2016, Mr Meng’s father reported to the local police station that an unknown person chopped down the door of their rented residence by using an axe. The case was accepted and is currently under investigation.
19. 158. Referring to its Constitution and legislation, the Government reaffirms that it protects the freedom of association rights of its citizens. It points out, however, that as in other countries, when exercising these rights, workers and their organizations shall abide by the national legislation and shall not undermine the normal public order, or damage the interests of other citizens. None of the persons involved in this case was punished for establishing workers’ organizations or participating in workers’ activities; rather, they were punished for using illegal measures to resolve labour disputes. The Government emphasizes that in dealing with these cases, Chinese judicial and public security authorities followed the existing procedures; the rights of the relevant persons were well safeguarded.

D. The Committee’s conclusions

1. 159. The Committee recalls that this case concerns allegations of arrest and detention, on charges of “gathering a crowd to disturb public order”, of seven advisers and paralegals (Mr He Xiaobo, Mr Zeng Feyiang, Mr Meng Han, Ms Zhu Xiaomei, Mr Deng Xiaoming, Mr Peng Jiayong and Mr Tang Huanxing) who have provided support services to workers and their organizations in handling individual and/or collective labour disputes.
2. 160. It recalls, in particular, that it expressed its concern over the heavy sentences, albeit suspended, imposed on Mr Zeng (three years), Ms Zhu (18 months) and Mr Tang (18 months), and requested the Government to provide a copy of the court judgments. It further requested the Government to ensure that the three activists could continue providing advisory services to workers without hindrance. The Committee also expected that the pending investigation of Mr Deng Xiaoming and Mr Peng Jiayong will be concluded without further delay and that it will also shed light on the alleged attack on Mr Zeng on 20 December 2014 and the beating and detention of several workers of the shoe factory and of Mr Meng in April 2015. It requested the Government to keep it informed in this respect and to provide the court judgments in cases of Mr Meng Han, Mr Deng Xiaoming and Mr Peng Jiayong, once they have been handed down.
3. 161. The Committee notes the Government’s indication that copies of the court judgments in the cases of Mr Zeng, Mr Tang, Mr Meng and Ms Zhu have been forwarded to the Office. The Committee regrets, however, that these have not yet been received. The Committee further notes the Government’s indication that on 3 November 2016, the Second Criminal Tribunal of Guangzhou Fanyu District Court heard the case of Mr Meng, accused of gathering people to disrupt public order, and held that the facts in this case were clear and corroborated. Mr Meng was sentenced to imprisonment for one year and nine months. According to the Government, he had accepted the judgment and will not appeal it. The Committee notes that on 3 September 2017 Mr Meng was released from prison after the completion of his sentence.
4. 162. The Committee notes with concern that according to the complainant, the judgments in the cases of Ms Zhu, Mr Zeng, Mr Tang and Mr Meng actually refer to the four activists having trained workers of the factory, facilitated workers to elect their collective bargaining representatives and instigated workers to stage three strikes between 2014 and 2015. Mr Zeng, as the Director of the Panyu Centre, was found by the court to be “fully in charge” of the three strikes. Mr Meng was found responsible for implementing the strike plan, convening meetings, giving instructions to workers during the strikes and making online updates. Mr Tang was accused of handling the media and Ms Zhu of liaising with workers and their representatives. According to the complainant and as indicated by the Government, the judges determined that the actions of the four led to a serious economic loss of RMB2.7 million (approximately $400,000) and had disrupted public order. The complainant further alleges that none of the evidence proffered by prosecution, including pictures, video clips of the three strikes, tweeted messages, correspondence and meeting documents, support a finding of disruption of public order. The prosecution called 26 witnesses, including four from the management, six from the local government and ten factory workers. According to the ITUC, none of them provided evidence indicating that the strikes became violent or unruly; rather, they all pointed out that the workers’ actions were confined to the company complex. The ITUC states that some witnesses said that the strikes were “escalating in scale and emotional intensity on the part of the strikers”, referring to workers chanting slogans in a louder voice in the third strike and staging a demonstration at the company offices. Thus, according to the ITUC, the testimony could only support the finding of a work stoppage that brought production to a halt, some shouting aimed at office employees, the sit-in in front of the company entrance and stopping vehicles from leaving the factory. However, the complainant concludes, while the strikes were animated, there is no evidence that the strikes were violent, disturbed the public order or were otherwise about to spiral out of control. The Committee notes that the Government states that it has been proven that Mr Meng led and actively participated in the collective stoppage and testimony demonstrated that, during the stoppage, workers collectively insulted and attacked other persons who came in and out of the office, and disturbed employees who were working in the office. The Government adds that the court opined that the shoe factory suffered an important loss of production value. It further notes the Government’s indication that Mr Zeng, Mr Tang and Ms Zhu are currently on probation and thus have to do community service on a regular basis.
5. 163. The Committee considers that the complainant’s allegations would seem to indicate that the four activists were indeed indicted for having exercised genuine workers’ representative activities. It further recalls that taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. Given the serious nature of the allegations, to allow it to undertake an objective examination, the Committee urges the Government to transmit a copy of the judgments in the abovementioned cases which were not attached as had been indicated. While noting that the Government generally states that the police and the courts deal with cases before them in accordance with the national legislation and that the rights of the accused and their lawyers were guaranteed, the Committee requests the Government to provide detailed information on the alleged harsh treatment of the labour activists while in custody, and in particular, the alleged numerous interrogations and their severe nature to which the accused were subjected. In this respect, the Committee considers that detained trade unionists, like all other persons, should enjoy the guarantees enunciated in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights according to which all persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the human person. The detention of trade unionists for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 54 and 64].
6. 164. The Committee notes the Government’s indication that the above advisers can continue providing advisory services, subject to conformity to the national laws and regulations. It notes, however, with concern that the complainant to the contrary indicates that none of the labour activists have been able to resume their previous roles and provide labour services: Mr Tang, Mr Deng and Mr Peng ceased working as labour activists and have left Guangdong Province; Ms Zhu and Mr Zeng have to wear GPS devices so as to ensure that the authorities can keep track of their movements and the contacts they make; Mr Chen has not yet been prosecuted; and, at the time of the complainant’s communication, Mr Meng was still serving his sentence. The Committee further observes with concern the complainant’s reference to the national laws and regulations which do not allow workers to join or form trade unions unless the local unions have affiliated with the ACFTU and its allegations that the Government has frequently used public order laws to crack down on legal activists and trade unionists; that it is not possible for a worker to participate in a legitimate strike or demonstration without violating Chinese law that prohibits the disturbance of public order; and that it is common for the prosecutor and the court to view industrial actions taken by workers as public security violations rather than as the exercise of fundamental rights. Given the serious nature of these allegations, the Committee urges the Government to provide detailed observations thereon.
7. 165. The Committee further recalls that Mr Deng and Mr Peng were released on bail for up to 12 months, pending investigation. The Committee notes the Government’s indication that their respective bails were terminated on 3 January 2017 and that the activists left Guangzhou (where they were first detained) on 5 and 11 January 2017, respectively. The Committee notes the Government’s indication that Mr Deng is self-employed and Mr Peng works for another company and understands this to mean that they are no longer under investigation and will not be prosecuted. The Committee requests the Government to confirm that this is the case.
8. 166. The Committee notes that according to the Government, there is no evidence of Mr Chen’s involvement in the crime of gathering people to disrupt public order and thus, no compulsory measures have been imposed on him.
9. 167. The Committee regrets that no information has been provided by the Government regarding the alleged beating of several workers of the shoe factory and requests the Government to conduct an independent inquiry into this allegation and to provide detailed information on the outcome without delay.
10. 168. Regarding the allegation of police intervention in the labour dispute at the bag factory in March–April 2015, which led to the detention of four factory workers and the injury of many, including Mr Peng Jiayong, Mr Chen and Zhu Xinhua, a workers’ representative from another factory, the Committee notes the Government’s indication that an investigation into the events which occurred during the labour dispute at the factory revealed that, on 2 March 2015, workers demanded that their original salary scales be maintained or buyouts be offered due to the reduced normal and extra working time caused by the decrease in orders; that some workers engaged in the work stoppage obstructed those not participating in the action from working; that four leaders were accused of disrupting production order and were thus put under administrative detention on 24 March 2015; and that thereafter, production order in the factory was restored. The Committee further notes the Government’s indication that an investigation into the allegations of assaults on Mr Peng and others revealed that on 2 April 2015, around 7 p.m., Mr Peng resisted being questioned by the Nanlang Branch of Zhongshan Public Security Bureau. He was then summoned to the local police station for inquiry and re-education. On 3 April 2015, Mr Peng reported to the police that he was kidnapped and assaulted by seven to eight unknown persons after leaving the police station but was not able to provide any evidence. After reviewing the video record, no relevant evidence was found. Upon a preliminary medical examination, he reported minor skin abrasions. Recalling that according to the complainant in this case, Mr Chen and Zhu Xinhua have also suffered injuries, the Committee requests the Government to provide detailed information on the outcome of the investigation in relation to these two individuals.
11. 169. Regarding the allegations of pressure suffered by the relatives of Mr Zeng and Mr Meng, the Committee notes the Government’s indication there are no police records pertaining to the alleged intimidation of relatives of Mr Zeng. As concerns similar allegations involving Mr Meng, the Government indicates that in mid-September 2015, Mr Meng rented a residence together with his partner on a two-year lease. On 3 December 2015, when Mr Meng had been placed under criminal detention, the landlord requested to terminate the lease, given Mr Meng’s involvement in illegal activities. Mr Meng’s partner, however, refused to move out and put forward various unreasonable demands. She had Mr Meng’s parents move in to live with her. On 7 May 2016, Mr Meng’s father reported to the local police station that an unknown person chopped down the door of their rented residence by using an axe and the case is currently under investigation. The Committee notes the information provided by the complainant and, in particular, a publically available video of the attack. The Committee requests the Government to keep it informed of the outcome and, in particular, to indicate whether any link is established with Mr Meng and his allegations of detention due to his engagement in workers’ rights advocacy activities.