SAN FRANCISCO (November 30, 2020) — On November 13, 2012, American citizen Mark Swidan was preparing to leave China after a business trip. Chinese police entered his hotel room in Dongguan Municipality, Guangdong Province. The police found drugs on his driver and translator and took them into custody. No drugs were found on Mr. Swidan or in his room, but the driver and translator blamed him, and he was also taken into custody on suspicion of trafficking and manufacturing methamphetamine.
The police did not act on a warrant. Nor was Mr. Swidan advised of his rights. Shortly thereafter, Mr. Swidan was moved to a detention center in Jiangmen Municipality. More than eight years later, he is still there, the victim of a broken justice system that relies on forced confessions to win convictions, and of his own government’s lack of attention to his case.
Here are the facts:
- The prosecutor’s indictment noted that Mr. Swidan has cooperated with the police and was deemed to have played a minor role in the drug transaction that involved 11 defendants, including two Canadian citizens, four Mexican citizens, and a Hong Kong resident. The prosecutor recommended leniency. The court found that he played a “leading role.” All defendants with the exception of Mr. Swidan eventually pleaded guilty. Several of those who pleaded guilty pointed the finger at Mr. Swidan.
- As mentioned above, no drugs were found in Mr. Swidan’s hotel room. No drugs were found on his person or in his system.
- No forensic evidence was introduced in his trial. Neither were records of any communications uncovered – no emails, text messages, letters.
- Mr. Swidan was convicted of identifying and assisting the transportation of technicians to manufacture the drug and of arranging payments to them, despite the fact that there is no evidence that he was familiar with how to manufacture the drug nor evidence that he personally knew the technicians.
- There is no history of drug use by Mr. Swidan. A high school athlete, he hated drugs and kept those who used drugs at a distance.
The evidence against Mr. Swidan is entirely circumstantial – he was once in a factory which police later identified as having been used to manufacture drugs. His conviction rests on the testimony of the other defendants, all of whom pleaded guilty and some of whom could not even identify Mr. Swidan in court.
During his time in the detention center, Mr. Swidan was deprived of sleep and food. He has lost more than 100 pounds while incarcerated. He has been mistreated by guards and placed in solitary confinement. He has been allowed only one phone call to his mother in the last eight years. She will soon undergo major surgery, but her request for a five-minute call has been denied by the court. He has not received mail from his mother for almost a year. Neither can he send her letters.
In November 2013, Mr. Swidan and 10 other defendants were tried by the Jiangmen Intermediate People’s Court. In April 2019, after 21 delays approved by the Guangdong High Court and the Supreme People’s Court in Beijing spanning more than five years, Mr. Swidan was found guilty and sentenced to death with two-year reprieve. He immediately appealed to the Guangdong High People’s Court.
The court held a hearing on January 19, 2020. Mr. Swidan mounted a vigorous defense pointing out the prosecutor’s weak evidence and the court’s own ignorance of Chinese law. To date, no judgment has been rendered.
On February 20, 2020, the United Nations Working Group on Arbitrary Detention (WGAD) found that Mr. Swidan had been arbitrarily detained, his due process rights violated by his long incarceration without adjudication. It urged the Chinese government to immediately release Mr. Swidan and pay him compensation. Mr. Swidan is only the second American citizen to have been found to be arbitrarily detained by the WGAD in the nearly 30-year history of the group. Because of the way he was treated, the WGAD transferred his file to the Special Rapporteur on Torture. In a strongly worded statement, the WGAD decried the use of arbitrary detention in China and stated that the way Mr. Swidan and others have been treated could constitute crimes against humanity.
Mr. Swidan is supposed to receive monthly consular visits. This right is sometimes suspended due to minor infractions of prison discipline like Mr. Swidan refusing to shave. For most of 2020, visits have been limited to telephone calls due to COVID-19 restrictions. While in-person visits have resumed, the US consulate has not received approval to visit him.
John Kamm, Executive Director of Dui Hua, who has repeatedly raised Mr. Swidan’s case with the Chinese government, has stated that “the treatment of Mark Swidan at the hands of the Jiangmen authorities is outrageous and represents a grave miscarriage of justice.” He goes further to note that the Chinese government often makes gestures when a new American president is elected. “Dui Hua urges President-elect Joe Biden to raise Mark Swidan’s case with Chinese president Xi Jinping at the earliest opportunity, urging his immediate release and return to the United States.”
For questions, please contact Dui Hua at duihua [at] duihua [dot] org.