Tibetans Imprisoned for Text, Images as Immolations Continue

Gyurmey Thabkey, Kalsang Dondrub, and Lobsang stand trial in Qinghai's Haidong Prefecture. Photo credit: people.com.cn

Courts in Tibetan areas of China have been handing down long prison sentences to Tibetans accused of “inciting splittism” for activities connected to the series of self-immolation protests that have escalated over the past year. Just this week, three men were sentenced in Qinghai to between four and six years in prison for unspecified pro-independence text and images connected to the immolations. No detail is provided of the alleged offenses, but the official media report regarding the trial (translated below) goes to great lengths to state that the trial—which was concluded within one day, including sentencing—was carried out in strict accordance with the law and with the defendants’ rights fully protected.

This trial is the latest sign of Chinese authorities’ determination to use criminal prosecution to respond to the serious problem of self-immolation protests by Tibetans. In December 2012, local authorities in Gansu announced that criminal liability would be pursued against both those who commit self-immolations and those who aid and abet such protests.

By the end of 2012, Dui Hua’s Political Prisoner Database included about 5,000 people known or believed to be in custody (including in prison, RTL, detention, etc.). Of these, nearly a quarter were Tibetan, with the number of Tibetan activists recorded in the database growing 28 percent year-on-year largely due to the self-immolation protests. Imprisoned for charges similar to those brought against the men tried this week, prominent monk Yonten Gyatso was sentenced to seven years’ imprisonment in June 2012 for sharing photographs and information about Tibet, while 20-year-old Ngawang Topden, an art student, was reportedly sentenced to two years’ imprisonment in February 2013 for storing images of self-immolations and the banned Tibetan national flag in his mobile phone.

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Haidong Prefecture Intermediate People’s Court Issues Sentences in First-Instance Trial for Inciting Splittism

Kan Wacao and Zhang Rui, People’s Daily Online
March 18, 2013

On the afternoon of March 18, 2013, the Haidong Prefecture Intermediate People’s Court of Qinghai Province publicly tried the inciting splittism case of defendants Gyurmey Thabkey†, Kalsang Dondrub‡, and Lobsang and issued its verdict at the conclusion of the trial. For the crime of inciting splittism, Gyurmey Thabkey was sentenced to five years’ imprisonment with subsequent deprivation of political rights for three years; Kalsang Dondrub was sentenced to six years’ imprisonment with subsequent deprivation of political rights for four years; and Lobsang was sentenced to four years’ imprisonment with subsequent deprivation of political rights for two years.

In the course of the trial, the Haidong Intermediate People’s Court ascertained that defendants Gyurmey Thabkey, Kalsang Dondrub, and Lobsang carried out the actions of inciting splittism by using others’ self-immolation incidents to disseminate text and images relating to Tibetan independence, actions that had a negative effect both locally and internationally and violated the provisions of Article 103 of the Criminal Law, constituting the crime of inciting splittism. The facts charged by the prosecution were clear and the evidence was reliable and sufficient; [therefore] the crime stands as charged. Based on the facts, nature, circumstances, and degree of social harm of the three defendants’ [respective] crimes, and having given full consideration to the opinions of both the prosecution and defense, the court issued the aforementioned verdict.

Furthermore, the Haidong Prefecture Branch of the Qinghai People’s Procuratorate assigned personnel to appear in court for the prosecution, and defendants Gyurmey Thabkey, Kalsang Dondrub, and Lobsang each appeared in court with their defense counsel to participate in the proceedings. The Haidong Prefecture Intermediate People’s Court tried this case in strict adherence with the law and regulations and fully safeguarded the procedural rights of the defendants. In the course of the trial, the court provided the defendants with Tibetan interpreters and the defendants and their defense counsel fully expressed their defense opinions during the investigation and debate over the facts and evidence relevant to conviction and sentencing. More than 100 people including friends and relatives of each defendant and people from all segments of society observed the trial and sentencing hearings.

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† Translated as “Jigme Thabkey” by Tibetan Centre for Human Rights and Democracy (TCHRD)

‡ Translated as “Kalsang Dhondup” by TCHRD

Judicial Independence Debuts in Contentious SPC Work Report

Chinese People’s Political Consultative Conference delegate Wang Junfeng (right) discusses the "Two Meetings." Photo credit: legaldaily.com.cn

One of the major events during the annual lianghui—plenary sessions of the National People’s Congress and the Chinese People’s Political Consultative Conference (CPPCC)—is the day when the heads of the Supreme People’s Court and Supreme People’s Procuratorate (commonly referred to as the “two supremes”) present their work reports to delegates assembled in Beijing. Though short on detail, these overviews of the work done by the national judiciary and procuracy can still help to identify aspects of the legal system that are given special emphasis in China as well as those areas that might be given special priority for future reform.

The reports presented this year by outgoing Supreme People’s Court (SPC) President Wang Shengjun and Supreme People’s Procuratorate Procurator-General Cao Jianming, who will serve a second term, focus on the accomplishments of the previous five years and set out an agenda for their successors for the coming year. To many casual observers, these work reports often seem replete with empty rhetoric and slogans. But those who look carefully can sometimes discern new phrases and subtle shifts in emphasis that may signal important future policy directions.

Such speculation was the subject of a recent interview conducted by the newspaper Legal Weekly with CPPCC delegate and chairman of the All-China Lawyers Association (ACLA), Wang Junfeng. At issue was how much to read into references to “judicial independence” in this year’s SPC work report—especially in light of pronouncements made earlier by new Chinese Communist Party General Secretary Xi Jinping about the importance of governing in accordance with the law and upholding the independence and fairness of the judicial system.

Supreme People’s Court President Wang Shengjun delivers the court's work report during the National People's Congress. Photo credit: China.com.cn

This expression of commitment to judicial independence by SPC President Wang Shengjun is notable, especially considering that many observers feel that under his tenure political control of China’s courts increased and earlier progress towards a more professional, independent judiciary stalled or even eroded. As evidence of dissatisfaction among lianghui delegates, the SPC report was one of several government work reports receiving the most opposition votes it has seen in five years and received more opposing votes than any other government work report, with 2,218 yeas, 605 nays, and 120 abstentions.

Wang Junfeng is clearly hopeful that new leadership in the party and the courts will change the atmosphere of “neglect of rule of law” that he sees as having brought many negative consequences to China over the past decade. But one can sense continued uncertainty in his optimism, as he insists that commitments to judicial independence and rule of law be more than just slogans.

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Judicial Independence Shouldn’t Be Mere Slogan
Interview with CPPCC delegate, ACLA president Wang Junfeng

Chen Xiao and Gao Yuan, Legal Weekly
March 13, 2013

Legal Weekly [hereafter, “LW”]: We’ve noticed that the issue of courts exercising independent, impartial judicial power was mentioned twice in the sections of the Supreme People’s Court (SPC) report discussing the problems and difficulties faced by courts and the section on this year’s work agenda. Legal academics have been talking about this problem for a long time, but past reports seem never to have clearly raised the issue. What do you think about its being raised now?

Wang Junfeng [hereafter, “WJF”]: I think it’s great to bring up (independent judicial authority)! We legal professionals feel extremely gratified to see the SPC report clearly raise this issue. Actually, we knew that it would be mentioned sooner or later. From the beginning of opening and reform, independent judicial authority was one of our important standards. Independent judicial authority is one of the most important cornerstones of a rule-of-law society.

Over the past decade, China’s economy has been very successful and there have been many changes in all industries. We feel extremely proud, as if we had experienced it ourselves. But there’s no doubt that a major regret is the neglect of rule of law. In an era when the economy developed so quickly, [this neglect] is really astonishing.

But lately we’ve seen General Secretary Xi Jinping mention upholding the authority and protecting the dignity of the constitution and say that we ought to hold firm to the independence and fairness of the judicial system. Legal academics and professionals know that this is the way it should be. Of course it shouldn’t merely be mentioned. Our judicial work, including our legal professions must always attach importance to the professional and independent nature of the law. Only by remaining firm on this point will we have true rule of law.

LW: What do you think led [SPC] President Wang Shengjun to mention this problem in this year’s report? What expectations do you have as a result?

WJF: First, the new generation of central leadership is vigorously promoting governance in accordance with the law, which is a fundamental basic plan for China. Because General Secretary [Xi] mentioned this earlier, it’s logical for President Wang to mention it in [the SPC] report. If it continued to go unmentioned, how could [the report] reflect the importance of the credibility of our judicial system? To a great extent, the decline in credibility of the judicial system is a consequence of the inability to uphold judicial independence.

Bringing up the issue after 10 years makes me feel gratified, but that the same time I feel...I don’t know how to put it.

From another angle, it reminds us that this is not a slogan. No matter what changes take place in society, they must not shake the cornerstone of judicial independence.

I anticipate that this is not merely a slogan and hope that independent judicial authority can truly be put into effect in practice.

LW: President Wang mentioned in his report that the problems of difficult litigation and implementation have not yet been fundamentally resolved. As a lawyer, what is the situation? Does the All-China Lawyers Association have any data that reflect these problems? Can you give us one or two examples drawn from your practice [as a lawyer]?

WJF: The difficulties of litigation and implementation are major problems.

On the one hand, the difficulty of litigation has to do with the inability to strictly operate according to legal procedures during the court’s trial process. Sometimes the difficulty can be seen in cases where one side is in the right but cannot win their suit. Other times, it’s difficult even to file the case. In general, judicial work is affected by all sorts of factors that shouldn’t exist, problems with judicial independence, problems with judges themselves, etcetera.

Every year there’s talk of the “difficulties of litigation and implementation.” I sweat with anxiety for China’s judicial system. This shows that even though China has made many advances in rule of law, there is still a long way to go to reach ordinary people’s ideal of rule of law.

So, I look forward to this being improved under the new central party leadership and their promotion of governance in accordance with the law. Many people in legal sectors said they felt there was more hope for the nation after hearing General Secretary Xi Jinping’s speech, first of all, that the spring of rule of law had arrived. Once the spring of rule of law arrives, the glory of a nation can further progress.

I hope that when judicial independence is realized and China’s rule of law progresses further that President Wang or [future] court presidents will [be able to] speak less of these kinds of problems at the NPC and allow ordinary people to live in a bit more dignity. This is what we look forward to.

As far as the difficulties of litigation and implementation are concerned, I don’t have any relevant data. But the data isn’t that important. Now that President Wang has spoken of how difficult things are in front of the NPC, is data really that important?

LW: In the agenda for this year’s work, the SPC report spoke of the need to build up the credibility of the judicial system. This phrasing also seems rather new. Based on your practical understanding, what aspects of the realities [of the judicial system] is this aimed at? From a lawyer’s perspective, how should the credibility of the judicial system be strengthened?

WJF: Ordinary people know what it means to talk about the credibility of the judicial system.

I think that to restore the credibility of the judicial system, it’s important to eliminate bureaucratism. Actually, being a judge is an extremely sacred and honorable position, one with the authority to adjudicate according to national laws and regulations. We must eliminate bureaucratism from this profession, reduce the air of “officialism,” and increase the spirit of professionalism.

First of all, how can there be credibility when there is still no judicial independence, when bureaucratism is so severe, and when there are so many ranks among judges? In foreign countries, judges are called judicial officers and represent fairness. In China’s feudal, traditional consciousness, [the word “judge” was created by] taking the word for “law” and adding “official” at the end. I encourage the media and the courts internally to stop calling [judges] “officials” in the future. “Judicial officers” or “presiding judge” is more appropriate. When you add the word “official,” it not only brings with it seriously feudal ways of thinking, it also desecrates the position of judge itself by wiping out its specialized and professional characteristics. In the feudal society of the past, bureaucrats judged cases; now, [this is done by] judicial officers and presiding judges. If we stop calling them “officials,” perhaps it will enhance the credibility of the judicial system.

There are many factors affecting credibility: the inability to adjudicate independently, interference of all types, various disciplinary problems and derelictions among judges themselves, insufficient respect for professionalism, and so on. But as long as we stand firm on judicial independence and accept society’s public oversight, I think this problem shouldn’t be difficult to resolve.

LW: Ordinary people attach considerable importance to the fight against corruption. Recently, the anti-corruption winds have been blowing rather fiercely. Before they came out, we had hoped that the [SPC and Supreme People’s Procuratorate (SPP)] reports would make a point of describing the results and future plans on this subject, but it seems that not much ink was spilled on this account. Why is this?

WJF: The fight against corruption has already been mentioned many times. I think it’s normal that it wasn’t mentioned and that the court didn’t mention it. When corruption cases occur, the courts should punish them in accordance with the law. Moreover, I don’t think that the court report needs to mention such things as preserving growth or maintaining stability. The law is the law; when [a case] comes, you try it. When courts’ actions follow society or politics too closely, there will be doubts about judicial independence.

The legal system and the courts are like high mountains, standing in the distance. Its ordinary operations are to uphold fairness, punish crime, and support society. It shouldn’t be affected by the blowing wind or the falling rain. Courts ought to stand firm and adjudicate fairly and independently in accordance with the law and regulations and adhere to its professional spirit. That’s enough.

I personally believe that judges are chosen through a certain process and are endowed by the law with a special mission. It’s enough for them to handle the cases they’re given to adjudicate and stick to their responsibilities to the law.

LW: Please share your thoughts on the [SPC and SPP] reports, including positive aspects, what the highlights were, where they were lacking, and your expectations as a lawyer.

WJF: The [reports] explain clearly to the public what work was done in the judicial system over the past five years and what things were achieved. As in the past, I feel that for the most part the reports were factual and honest.

The rare thing here is that we saw that the [SPC and SPP] did not avoid the problems they face. We also saw the efforts being made to restore the credibility of the judicial system.

However, we know that legislation is not an end [in itself]. Laws are meant to be enforced. On this point, lawyers, police, prosecutors, and judges all share the same goal of ensuring that state legislation is truly and correctly enforced. That is the ultimate purpose of legislation and the ultimate objective of the state’s development of rule of law.

What we want to see from the court and procuratorate reports is not only that they say a lot, but even more so we want to see how much they have done. We hope that in the new era of national development we will be able to see the effect of rule of law in all areas of the state. Over the past decade, neglect of rule of law has brought negative consequences: corruption, loss of credibility, a growing gap between rich and poor, poisoned milk powder, collapsing buildings, and so on. I hope that society will not make this mistake again.

Over the past decade, China’s economy developed so fast yet the unfortunate neglect of rule of law brought about consequences. The entire nation should reflect on this and not allow ourselves to make this mistake again. We cannot afford to.

It’s good for us to bring up the issue of independent judicial and prosecutorial power, but we still don’t know how much we can achieve or how quickly. Based on the hopes expressed in [Xi Jinping’s] words and the expectations we legal professionals have, all lead to the hope that the springtime of rule of law could be approaching.

Targeting Evidence to End Wrongful Execution

NPC delegate and Zhejiang High People’s Court President Qi Qi. Photo credit: China.org.cn

Although frequently criticized for being relatively powerless “rubber-stamp” bodies, China’s national legislative body, the National People’s Congress, and its main consultative body, the Chinese People’s Political Consultative Conference, provide delegates from throughout the country a forum to make policy and legislative proposals targeting some of China’s most pressing problems. Most of these proposals are fruitless, but with hundreds of domestic and foreign journalists covering these important annual events, some of these proposals ultimately have the opportunity to gain a wider audience that might result in more broad-based pressure to put actions behind all the talk.

In the March 11 edition of the influential newspaper The Beijing News, NPC delegate and Zhejiang High People’s Court President Qi Qi speaks about his proposal to issue regulations that would govern a new system for the additional investigation of problematic evidence in death penalty trials. In this interview, Qi speaks frankly about the relationship between torture and wrongful conviction. Having spent much of his career as an administrator in the court and procuratorial systems, Qi has a broad perspective on the pressures faced by law enforcement and judicial authorities that make it difficult to eliminate torture completely. Qi has clearly given much thought to these questions recently, as his court is in the process of reviewing a case in which five men have spent nearly 18 years behind bars for homicides that fingerprint evidence now suggests was committed by someone else.

This case, like the Zhao Zuohai case in 2010, highlights the way in which pressure to solve homicide cases leads to an over-reliance on confessions with investigators framing innocent people and courts turning a blind eye to problematic evidence. Fortunately for the defendants in this case, initial death sentences were later suspended on appeal, for, as Qi notes, under the circumstances of the time it would have been easy and expected for these young men to be put to death in order to address the social harm caused by the murders.

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Zhejiang High Court President: Basis of Wrongful Convictions Relates to Torture
NPC Delegate Qi Qi recommends public security, procuratorates, and courts jointly issue
regulations to improve procedures for additional investigation of evidence in death penalty cases

Song Shijing, The Beijing News
March 12, 2013

National People’s Congress (NPC) delegate and Zhejiang High People’s Court President Qi Qi presented a proposal at the First Plenary Session of the 12th NPC, recommending that the Supreme People’s Court, Supreme People’s Procuratorate, and Ministry of Public Security jointly enact regulations governing the procedure for additional investigation of evidence during the trial period for death penalty cases in order to resolve problems in the operational mechanisms of the criminal procedure; establish a “trial-centered” system for evidence collection, production, examination, certification and review; and establish corresponding provisions to pursue responsibility for violations of the law and prevent wrongful death penalty convictions.

Qi Qi says that problems with evidence are encountered from time to time in trying death penalty cases. In order to ensure conviction, some investigation authorities do not fully submit evidence that is beneficial to the defendant. Some investigators and prosecutors believe that their investigation work is over and are indifferent to or delay the work of additional investigation. This puts courts in a difficult position between “conviction and sentencing” and “acquittal and release” and directly affects the quality of death penalty trials.

Qi Qi also indicates that wrongful criminal convictions are basically all related to coercion of confessions through torture.

According to media reports, there were two robbery-homicides of two taxi drivers in Xiaoshan, Zhejiang, in 1995. Lacking murder weapons or fingerprint evidence and primarily relying on confessions, four people were sentenced to suspended death sentences and one person was sentenced to life imprisonment. Last December, it was proven that another person may have been the culprit. Currently, the Zhejiang high court has already launched a review of the case.

“Pursuing a 100-Percent Solution Rate is Unrealistic”

The Beijing News [hereafter, “BN”]: In your recommendation, you listed 11 circumstances in which the evidence in death penalty cases may be problematic.

Qi Qi [hereafter, “QQ”]: These circumstances can all lead to mistaken judgements, so it’s necessary for investigative authorities to strengthen their work in these areas.

BN: Sometimes coercion of confessions through torture is used in order to obtain evidence. How do you view [this problem]?

QQ: Objectively speaking, police and crime are antagonistic. Despite this opposition, even when a suspect disavows and denies [criminal activity], his human rights still need to be protected. But sometimes police will get emotional and use brute force or even torture. Even if this brute force leads to confessions that solve some cases, it still can lead to some major negative side effects and forced admissions that lead to wrongful convictions. So, the law in all countries takes a negative view toward the coercion of confession and prohibits it.

BN: Why has it still not been eliminated?

QQ: In the past, there was a one-sided saying that “confession is the king of evidence.” Once there’s a confession, finding some evidence to prove the crime based on that confession seems to have relatively few costs. Moreover, police are often under pressure to solve cases as quickly as possible, and it’s very difficult to go around searching for traces and remnants when time is relatively short. Now we ask police not to be over-reliant on confessions and place more emphasis on using detection and technical methods to gather objective evidence. Confessions are also important, but they must accord with the truth.

BN: Where does the pressure on public security to solve cases come from?

QQ: For example, if there has been a series of major cases involving serious threats to social order, there will be great pressure on public security. When there’s great pressure to solve cases, sometimes one may be misled and biased in the collection of evidence.

In the past, there was a saying that “murder cases must be solved.” This actually was a kind of idealistic target, but blindly pursuing a 100-percent solution rate is unrealistic. From their perspective, courts cannot approve this “murder cases must be solved” notion because it doesn’t accord with [the principle of] seeking truth from facts. The ability to maintain a relatively high solution rate is already pretty good.

BN: If there are problems with the evidence provided by the investigating authority, is it difficult for the court to discover them?

QQ: Besides sending along evidence of the defendant’s criminal charges, [investigators] also must send along any mitigating or exculpatory evidence. When evidence that doesn’t support conviction is not sent, it becomes a choice between subjective and objective evidence. If they don’t submit it, it becomes much harder for us to discover, because there’s no way for us to know about the evidence they haven’t submitted. If we haven’t even seen any evidence that benefits the defendant, this can lead to mistaken judgments.

“Court Acquittals Pressure Police, Prosecutors”

BN: Who should be held responsible for wrongful convictions?

QQ: If one of our judges handled a case improperly, we first need to look at whether he intentionally concealed evidence or there was gross negligence. If [there was], then [the judge] bears major responsibility. If there wasn’t this sort of intent or gross negligence, then mainly we need to analyze the lessons learned, learn from this case, and work hard to raise the level of professionalism.

BN: Can’t lawyers put forward evidence that benefits the defendant?

QQ: If a lawyer discovers evidence that is beneficial to the defendant—including the belief that the defendant was tortured—he or she will provide it. But lawyers don’t have the means to conduct criminal investigations and are generally only able to provide assistance on the basis of the existing evidence.

BN: Can [defendants] afford to retain lawyers in all criminal cases?

QQ: In most instances, no. In recent years, Zhejiang courts have taken the lead in expanding the scope of legal aid. Defendants who face sentences of three years’ imprisonment or more but cannot afford a lawyer are all provided with legal aid. Last year alone, we added more than 10,000 people to the ranks of those getting criminal defense.

In the past, the proportion of indigent defendants who got legal aid was very low because they had to go through a tedious process of providing all sorts of documentation to prove their financial need. Then, we talked things over with the [provincial] justice department, [noting that] anyone whose family had the least bit of economic means would certainly do their best to hire a lawyer. If someone didn’t hire a lawyer, generally it was because their family was poor. Later, the justice department supported legal aid in criminal cases.

BN: Isn’t it more trouble for judges when there is greater participation from lawyers?

QQ: Yes, it’s somewhat troublesome for judges. When defense counsel is present, court hearings are a bit longer. But without defense counsel, there is an imbalance between prosecution and defense in the criminal court. Some say that more than 95 percent of criminal cases are merely a formality [because] the evidence is basically on file and clear and it doesn’t matter whether there’s a defense lawyer or not.

I tell judges that even if 99 out of 100 cases are merely a formality, if we can stop one case where there are real problems with the evidence that may even lead to wrongful conviction, then that would be terrific and protective of human rights.

BN: What is the impact of an acquittal?

QQ: Acquittals are a common occurrence in some developed countries with Anglo-American legal systems. For a long time, based on the inertia of our criminal process, if a court acquits then the public might put a lot of pressure on the prosecutors and the police because it seems really serious. Actually, when a court rules against the procuratorate it doesn’t mean that it is indulging criminals.

If this time the evidence at court wasn’t enough to trap you, we’ll continue to keep an eye on you and when we collect enough evidence we’ll eventually bring you to justice. If only the public thought this way! Now, [judges] are only allowed to be right; they can’t make mistakes. When faced with obstacles, we have very little leeway.

“Conclusions of Xiaoshan Case Review Can’t Be Put Off Indefinitely”

BN: In the Xiaoshan case, there were suspended death sentences instead of immediate death sentences. Why was there no “presumption of innocence”?

QQ: Looking at it from a professional standpoint, at the time it was unthinkable not to impose the death penalty for the murder of two taxi drivers, so it wasn’t easy to suspend those three death sentences. Under the conditions of the time, [death with reprieve] was the only available leeway. If those people had been executed, then now there would be even less ability to remedy the situation. In all fairness, the evidence at the time perhaps wouldn’t have [triggered] a “presumption of innocence.”

BN: How much longer will it take for conclusions in the review of this case?

QQ: I think this case won’t be put off indefinitely, and we won’t have to wait very long. I understand that the media wants things to move more quickly. But I want to explain to the media that conviction of crime needs to be done carefully. It shouldn’t be done in the campaign style of “shooting tigers.” Correcting errors also needs to be done carefully and mustn’t be done in the campaign style of following herd mentality. Give us a bit of time. We’re very serious [about this case].

BN: Do you feel that there are any patterns behind wrongful convictions?

QQ: Wrongful criminal convictions are basically all related to the coercion of confessions through torture. The majority likely involve eagerness to solve the case, following preconceived notions, subjective judgment, listening only to one side, relying on torture to obtain confessions, and confessions made under duress. Recently, an American prosecutor published a book called False Justice: Eight Myths that Convict the Innocent. We have already distributed copies to judges in the higher court and intermediate courts.

BN: What do you hope they’ll learn from this book?

QQ: This book’s author [The book is authored by Jim and Nancy Petro; Mr. Petro is the former attorney general of Ohio—Ed.] uses his experience as a prosecutor to educate legal professionals about how to prevent miscarriages of justice. There are many patterns, and he summarizes 17 common mistakes that are made. For example, don’t assume that only the guilty confess to crimes, don’t assume that miscarriages of justice occur because of rational human error, and don’t assume that all false convictions get corrected during the appellate process.

Chinese Man Gets "Lenient" Sentence for Online Political Groups

Gansu Qingyang Intermediate People's Court. Photo credit: gscn.com.cn

In February 2011, after protests swept through North Africa and the Middle East in what became known as the “Arab Spring,” Chinese security officials initiated a vigorous and widespread crackdown on potential sources of perceived political instability. This crackdown involved secret detention of human rights lawyers, arrest of Internet users who posted information about China’s elusive “Jasmine Revolution,” and heightened monitoring of social media.

Though not taken into police custody until June 2012, Zhang Shaofeng’s conviction on charges of “inciting subversion” perhaps ought to be seen in the context of the anti-Jasmine crackdown. Little is known about Zhang, in part because the court document that Dui Hua recently discovered excludes all of his personal details. Possibly a student, Zhang lived in Qingyang in the northwestern province of Gansu and, like many young people, appears to have been an active user of social networking sites.

Prosecutors charged that Zhang used these sites to form illegal political organizations that spread anti-government propaganda. They also charged him with using email to join the China Democracy Party and disseminating articles that advocate violent revolution. For his part, Zhang contended that he had no intention of overthrowing the political order and participated in these activities out of a belief that it would help him seek political asylum in the United States.

Ultimately, the Qingyang Intermediate People’s Court gave Zhang a relatively lenient 18-month prison sentence on account of his cooperative and remorseful attitude during investigation and trial. As is routine in verdicts involving the crime of “inciting subversion,” the court dismissed the argument of Zhang’s lawyers that his activities fell under the scope of constitutionally protected free speech by noting that this freedom is limited by constitutional obligations that prohibit the violation of national security.

The court also clearly explains that for the purposes of assessing culpability it is only necessary that an act of expression have the potential to incite others to commit subversion, regardless of whether subversion actually results. Accordingly, whether Zhang’s political postings were well-received or widely disseminated is not discussed. Instead, the court makes an effort to justify the potential for social harm caused by Internet speech in a very general sense. This contrasts with more widely known cases of “inciting subversion,” such as those involving Hu Jia or Liu Xiaobo, in which the courts tally recipients or viewers. This is likely because prosecutors were not attempting to prove that Zhang’s crimes were especially serious, perhaps because they were already prepared to give relatively lenient punishment.

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Qingyang Intermediate People’s Court of Gansu Province Criminal Verdict: click to expand

Qingyang Intermediate People’s Court of Gansu Province
Criminal Verdict

(2012) Qingyang Int. Crim. 1st Inst. No. 35

The prosecuting organ is the Qingyang People’s Procuratorate of Gansu Province [hereafter, “Qingyang People’s Procuratorate”].

Defendant Zhang Shaofeng. [Personal details have been omitted in the electronic version of this verdict—Ed.] Placed under criminal detention by the Qingyang Public Security Bureau on June 13, 2012, on suspicion of inciting subversion and formally arrested on July 19 of the same year.

Defense counsel is Ma Hongbing, lawyer with the Gansu Beidou Law Firm.

Defense counsel is Yan Lin, lawyer with the Gansu Beidou Law Firm.

On October 9, 2012, the Qingyang People’s Procuratorate filed indictment Qingyang Proc. Crim. Indict. (2012) No. 25 with this court, charging defendant Zhang Shaofeng in a case of inciting subversion. This court formed a collegiate bench in accordance with the law and held an open hearing to try this case on November 1, 2012. The Qingyang People’s Procuratorate appointed procurator Li Haiying to appear in court on behalf of the prosecution. Defendant Zhang Shaofeng and his defense counsel Ma Hongbing and Yan Lin all appeared in court to participate in the proceedings. The trial has now concluded.

The Qingyang People’s Procuratorate charged that, beginning in March 2011, defendant Zhang Shaofeng used screen names such as “MZ Xixiang,” “Xixiang Xianzhi,” “MZ Xixiang Sixty-Four,” “MZ China Sixty-Four,” “MZ Xixiang Yasheng,” “Zhang Xiaofeng,” and “MZ Labi Xixiang” (all with the QQ [user] number 630004145) and employed desktop, laptop, and tablet computers and mobile phones to go online in Xifeng District at the “Sunshine Road Bar,” “Pterodactyl Internet Bar,” and “Starry Sky Network” Internet bars and his dormitory to establish the illegal organizations “Chinese People’s Democratic League” [hereafter, CPDL] and “National Freemasons”; to join the hostile organization “China Democracy Party”; and to wantonly carry out reactionary propaganda activities, viciously attack the Communist Party of China [hereafter, CPC] and the government of the People’s Republic of China [hereafter, PRC], and [express] extreme dissatisfaction with the socialist system. In support of these charges, the prosecution produced the following main evidence in court: defendant Zhang Shaofeng’s confession; statements of witnesses Zhang Qingxu, Ma Jizhong, and Zhang Yaozong; documentary evidence and a record of remote inspection and investigation; electronic data; and a certification report. [The prosecution] maintains that defendant Zhang Shaofeng went online to join hostile organizations, participated in the formation of illegal organizations, expressed reactionary speech, and incited subversion of state power and overthrow of the socialist system; [therefore,] in accordance with Article 105.2 of the Criminal Law of the PRC, he should be held criminally responsible for the crime of inciting subversion.

In his defense, defendant Zhang Shaofeng stated that he had only been asked to draft a constitution for the CPDL and did not have any major role in its establishment or participate in the integration or formation of a new CPDL; that the “National Freemasons” was only a QQ group that could not be called an “illegal organization” and that [he had] disbanded the group in December 2011; that his only motivation for joining the China Democracy Party was to be able to apply for political asylum and emigrate to the United States and that he never participated in any of that organization’s activities; that he disseminated articles online mainly to propagate Western democratic ideas in order to pressure the government to carry out political reform and that he had no intention of subverting the government. Zhang Shaofeng reflected in court that he lacked real-life understanding, had been influenced by the overseas anti-China media’s negative news reports, and had a mistaken understanding of Western democratic system, which led him to commit offenses. He expressed regret in court and requested lenient punishment.

[According to] the defense statement of defense lawyers Ma Hongbing and Yan Lin: Zhang Shaofeng joined illegal organizations and published articles purely out of a wish to emigrate to the United States and had no subjective intent to incite subversion of state power or overthrow the socialist system. Objectively, Zhang Shaofeng never committed any acts of inciting subversion of state power or overthrow of the socialist system, and the articles he published were not created or edited by him and did not represent his own subjective thinking or will. Moreover, the content of these articles mostly propagated Western democratic thinking and expressions of displeasure with the current social situation, which falls under the scope of freedom of expression provided in China’s constitution. Merely relying on his expression and his own volition, it would be impossible to violate the state’s political power and the socialist system. Therefore, Zhang Shaofeng’s actions do not meet the constitutive criteria for the offense of inciting subversion of state power. The evidence for the indictment’s charges against Zhang Shaofeng is lacking and flawed. Based on Zhang Shaofeng’s ordinary behavior and his behavior in custody, his overall [degree of] malice is minor and his actions did not have clear harmful consequences for society; [therefore], it is requested that his punishment be mitigated.

It was determined in the course of the trial that: Beginning in March 2011, defendant Zhang Shaofeng used screen names such as “MZ Xixiang,” “Xixiang Xianzhi,” “MZ Xixiang Sixty-Four,” “MZ China Sixty-Four,” “MZ Xixiang Yasheng,” “Zhang Xiaofeng,” and “MZ Labi Xixiang” (all with the QQ [user] number 630004145) and employed desktop, laptop, and tablet computers and mobile phones to go online in Xifeng District at the “Sunshine Road Bar,” “Pterodactyl Internet Bar,” and “Starry Sky Network” Internet bars and his dormitory to participate in the formation of the illegal organizations CPDL and “National Freemasons;” to join the hostile organization “China Democracy Party”; and to wantonly publish articles of reactionary propaganda, viciously attack the CPC and the government of the PRC, and [express] extreme unhappiness with the socialist system.

1. Actively participated in the organization and establishment of the illegal organizations “China’s CPDL” and “National Freemasons” and participated in the formation of another illegal organization, the new “China’s CPDL.” In March 2011, on the invitation of “Zhao Gang” (basic circumstances unclear), chairman of the illegal organization “China’s CPDL,” defendant Zhang Shaofeng joined [that organization], actively participated in [that organization’s] formation, and personally drafted [its] Constitution. In early May 2011, Zhang Shaofeng established the illegal organization “National Freemasons” and established a “National Freemasons” [QQ] group, periodically advocating Western democratic ideas to members of the group and sending emails containing reactionary propaganda such as “Freemasons Weekly,” “Freemasons Monthly,” “Guide to Non-Violence and Non-Cooperation,” and “Democracy Movement Handbook.” On May 15, 2011, Zhang Shaofeng used anti-firewall software [e.g. a virtual private network] to enter Dynaweb’s “Free China Forum Website” and gather together a “compendium of Chinese underground organizations,” which he compiled into the Latest List of Registered Political Parties and Social Groups.” Then he posted under his personal QQ name: “The ‘National Freemasons’ have compiled a Compendium of Chinese Underground Organizations – write to request a copy.” In July 2011, after Zhang Shaofeng made contact with “Zhi Bi Wen Dao” (basic circumstances unclear), the person responsible for the “Chinese Association for Promotion of Democracy” [hereafter, CAPD], he participated in the integration of the CPDL, the “National Freemasons,” and the CAPD into the new China’s CPDL, with Zhao Gang as chairman, “Zhi Bi Wen Dao” as general secretary, and defendant Zhang Shaofeng as inspector general and head of the Organization Department. Later, defendant Zhang Shaofeng, in his capacity as head of the Organization Department of “China’s CPDL,” appointed Wang Xin (basic circumstances unclear) as the person responsible for [that organization] in Zhejiang. Later, on the invitation of Zhao Gang’s successor Zhang Qingxu (screen name “Zhi Bi Jian Ke”), defendant Zhang Shaofeng consulted documents of the hostile overseas organization “China Democracy Party” to draft CPDL Temporary Measures for the Extraordinary Period and sent them multiple times to his online contacts and actively recruited others to join the illegal organization “China’s CPDL.”

2. Actively applied to join the hostile overseas organization “China Democracy Party.” On September 30, 2011, defendant Zhang Shaofeng used anti-firewall software to enter the “China Democracy Party” website and used his Vietnamese email account “[email protected]” to send an email to “China Democracy Party” chairman Xie Wanjun as an “application to join the party.” On October 23, 2011, Xie Wanjun used email to send a China Democracy Party Cadre Appointment Notice and China Democracy Party Registration Form to Zhang Shaofeng’s Vietnamese email account, appointing Zhang Shaofeng as a “Member of the China Democracy Party Gansu Provincial Committee” and “Chair of China Democracy Party Independent Branch No. 4803.” Subsequently, Xie Wanjun again sent reactionary propaganda such as “China Jasmine Newsletter,” “China Jasmine Action Special,” and “Oppose Communism to Save the Nation, All People Rise Up” to defendant Zhang Shaofeng’s Vietnamese email account.

3. Using Weibo, Qzone [a social networking and blog platform similar to MySpace], mobile text messages, and other methods to wantonly disseminate reactionary propaganda and actively advocate Western democratic thought and ideas about violent revolution. On April 3, 2011, defendant Zhang Shaofeng sent an email containing the “Nine Commentaries” to an online friend named “MZ Lanqing.” On May 7, 2011, Zhang Shaofeng sent an email containing “Chinese Transitional Government Voluntary Training Sessions” to an online friend named “Maple Leaf with no Maple Leaf.” On October 8, 2011, Zhang Shaofeng sent an email with “Democracy Movement Leader’s Training Manual” to an online friend named “309945463.” On April 14, 2011, Zhang Shaofeng posted “Letter to MZ Colleagues” on his blog. On September 2, 2011, Zhang Shaofeng posted “How to Apply for Political Asylum in the United States—Think it Over, Let’s Go Together” on his blog. On September 17, 2011, Zhang Shaofeng posted “How to Join the China Democracy Party” on his blog. On October 8, 2011, Zhang Shaofeng posted “How to Raise Funds for the Democracy Movement” on his blog. On December 3, 2011, Zhao Shaofeng posted “Preliminary Draft Proposal for Establishing a People’s Organization” on his blog. On January 26, 2012, Zhang Shaofeng posted many reactionary articles on his blog, including “CPC Puts Million National Flags and Leaders’ Portraits in Tibetan Village Temples, Angers Public.” The aforementioned articles were hostile to the CPC, expressed hatred for the socialist system, viciously attacked the government of the PRC, and expressed high praise for the “Falun Gong” cult’s slander of our party and government through the “Nine Commentaries on the CPC” and “Three Resigns” and “Liu Xiaobo’s 2010 Nobel win.” At the same time, he incited interest groups in China to take to the streets and express their unhappiness and demands through “rights protection” and other means, to pressure the government, to incite the public to carry out violent revolution rather than color revolution and plot the subversion of the political power of the PRC and overthrow of the socialist system.

The aforementioned facts are confirmed by the following evidence, which was put forth by the prosecution and cross-examined and confirmed in court:

1. A record of remote inspection and investigation work from the Qingyang Public Security Bureau Network Security Monitoring Unit, recording the remote inspection and investigation carried out on the email accounts, personal blogs, and locations where Zhang Shaofeng went online.
2. The statements of witnesses Zhang Qingxu, Zhang Yaozong, and others.
3. Electronic data: An email from Zhang Shaofeng’s Vietnamese mailbox with contents related to the China Democracy Party; an application to join the party, a notice of official posting in the China Democracy Party, and a China Democracy Party membership registration certificate; articles published and email correspondence with others, and the articles of constitution for the Chinese Democratic League [retrieved] from Zhang Shaofeng’s blog.
4. Documentary evidence: A Ministry of Public Security document confirming the “China Democracy Party” to be a hostile organization and other documents.
5. A confirmation report;
6. Defendant Zhang Shaofeng’s confession.

This court finds that defendant Zhang Shaofeng used the Internet to participate in the formation of illegal organizations; joined a hostile organization; used Weibo, Qzone, and mobile text messages to publish reactionary propaganda multiple times; wantonly disseminated speech damaging to state political power and the socialist system; distorted facts; maliciously attacked the CPC and PRC government; and damaged the image of the state political power. Subjectively, he possessed a criminal intent to incite subversion of state political power and, objectively, he committed acts of inciting subversion of state power; [therefore,] his actions constitute the crime of inciting subversion. The criminal facts alleged by the prosecution are clear, and the evidence is reliable and sufficient; [therefore,] he is guilty of the offense. As for defendant Zhang Shaofeng’s defense that he only joined the illegal organization in order to apply for political asylum and immigrate to the United States, that the articles he published only propagated Western democratic ideas and that he had no intention of inciting subversion of the government, these [claims] do not accord with the facts that have been ascertained. Because the Internet has a large user base, criminal information may be disseminated quickly, and the degree of harm to society is extremely great, his actions ought to be punished in accordance with the law. With respect to Zhang Shaofeng’s defense lawyers’ defense argument that Zhang’s acts do not meet the constituent criteria for the offense of inciting subversion, since Zhang Shaofeng bears full criminal responsibility [i.e., he has not been found to be mentally ill or deficient—Trans.], his speech attacking the party, the government, and the socialist system shows his clear criminal motivation, and, objectively, he also committed criminal acts that endanger state security. Moreover, the offense in question is a crime of action in which the actor only needs to commit acts that incite subversion of state power and overthrow of the socialist system and, whether the target of his incitement believes or accepts the inciting content or whether [the defendant] committed the subversive acts being incited has no bearing on whether the crime is constituted. Therefore, this defense argument of defense counsel cannot be accepted. The court [also] cannot accept defense counsel’s argument that the defendant Zhang Shaofeng’s act of publishing articles falls under the scope of the freedom of expression provided for in China’s Constitution. Although freedom of expression is a basic right granted to citizens by the constitution, citizens must exercise this right in accordance with the law and may not damage the interests or security of the state; therefore, this view of defense counsel that only emphasizes the defendant’s rights but ignores the defendant’s obligations cannot be accepted. In light of defendant Zhang Shaofeng’s voluntary disbandment of the “National Freemasons” QQ group, his truthful confession of his crimes during the investigative and trial stages, his voluntary exposure of the criminal activities of other illegal organizations, and that he displayed a relatively good attitude in acknowledging guilt and showing remorse, lenient punishment may be given in accordance with the law. Pursuant to discussion and decision by this court’s adjudication committee and in accordance with Articles 105.2, 56, and 67.3 of the Criminal Law of the PRC and Article 2(1) of the National People’s Congress Standing Committee’s Decision on Preserving Internet Security, [this court] rules as follows:

For the crime of inciting subversion, defendant Zhang Shaofeng is sentenced to one year and six months’ imprisonment, with subsequent deprivation of political rights for one year.

(The prison term is to be calculated from the day the verdict is implemented, with each day spent in detention prior to the verdict’s implementation to count as one day of the prison term; therefore, it will run from June 13, 2012 to December 12, 2013.)

If this verdict is not accepted, an appeal may be filed within 10 days of the second day following the receipt of this verdict, either to this court or directly to the Gansu High People’s Court. In the case of a written appeal, the original appellate petition must be submitted together with two copies.

Presiding Judge: Li Ying
Deputy Judicial Officer: Yang Weirong
Deputy Judicial Officer: Chen Yuan

November 7, 2012

Court Clerk: Wang Wei

Chinese Source（原文）: 《甘肃省庆阳市中级人民法院 - 刑事判决书》 Click on icon to expand

甘肃省庆阳市中级人民法院
刑事判决书

(2012)庆中刑初字35号

公诉机关甘肃省庆阳市人民检察院。

被告人张绍峰。2012年6月13日因涉嫌煽动颠覆国家政权罪被庆阳市公安局刑事拘留，同年7月19日被依法逮捕。

辩护人马红兵，甘肃北斗律师事务所律师。

辩护人闫琳，甘肃北斗律师事务所律师。

甘肃省庆阳市人民检察院以庆检刑诉（2012）25号起诉书指控被告人张邵峰犯煽动颠覆国家政权罪一案，于2012年10月9日向本院提起公诉。本院依法组成合议庭，于2012年11月1日公开开庭审理了本案。庆阳市人民检察院指派检察员李海英出庭支持公诉。被告人张邵峰及其辩护人马红兵、闫琳均到庭参加诉讼。现已审理终结。

庆阳市人民检察院指控，2011年3月份以来，被告人张绍峰以“MZ西乡”、“西乡贤治”、“MZ西乡六十四”、“MZ中国六十四”、“MZ西乡崖生”、“张笑风”、“MZ拉比西乡”等网名（QQ号均为630004145），先后在西峰区“一路阳光吧”、“翼龙网吧”、“网络星空”网吧、宿舍等地，利用台式机、笔记本电脑、平板电脑、手机登录互联网，通过网络建立非法组织“华夏人民民主联盟”、“国民共济会”，加入敌对组织“中国民主党”，并大肆从事反宣活动，恶意攻击中国共产党和中华人民共和国政府，对社会主义制度极度不满。公诉机关针对上述事实，当庭出示了被告人张邵峰的供述，证人张庆旭、马继忠、张耀宗等人的证言，书证远程勘验检查笔录、电子数据、鉴定结论等主要证据。指控认为，被告人张邵峰在网上加入敌对组织，参与组建非法组织，发表反动言论，煽动颠覆国家政权，推翻社会主义制度，根据《中华人民共和国刑法》第一百零五条第二款之规定，应当以煽动颠覆国家政权罪追究其刑事责任。

被告人张邵峰辩称，其只是受托起草了华盟章程草案，未对华盟的成立起主要作用，亦未参与整合组建新的华盟；“国民共济会”只是一个QQ群，不能称之为“非法组织”，且该群已于2011年12月解散；其加入中国民主党的目的，只是为了申请政治庇护，移民美国，未参加过该组织的任何活动；通过网络转载文章，主要是宣传西方民主思想，向政府施压，迫使政府进行政治改革，无颠覆政府之意图。张邵峰当庭反省自己是因对现实生活缺乏了解，受境外反华媒体负面新闻报道的影响，错误的认识西方民主制度，以致走向犯罪，并当庭表示悔过，请求从轻判处。

辩护人马红兵、闫琳的辩护意见：张邵峰加入非法组织、发表文章，只是单纯的希望移民美国，主观上没有煽动颠覆国家政权、推翻社会主义制度的故意；客观上没有实施任何煽动颠覆国家政权、推翻社会主义制度的行为，发表的文章并非其创作、编辑，不能代表张邵峰本人的主观思想和意志，且文章的内容大都是宣传西方民主思想及对社会现状不满的言论，属于我国《宪法》规定的言论自由范畴；仅凭其言论和一己之力，无法侵犯国家政权和社会主义制度。因此，张邵峰的行为不符合煽动颠覆国家政权罪的犯罪构成。起诉书指控张邵峰的犯罪事实证据缺失且证据存在瑕疵。根据张邵峰平时及羁押后的表现，结合其主观恶性小，且其行为没有造成明显的社会危害后果，请求予以减轻处罚。

经审理查明：2011年3月份以来，被告人张绍峰以“MZ西乡”、“西乡贤治”、“MZ西乡六十四”、“MZ中国六十四”、“MZ西乡崖生”、“张笑风”、“MZ拉比西乡”等网名（QQ号均为630004145），先后在西峰区“一路阳光吧”、“翼龙网吧”、“网络星空”网吧、宿舍等地，利用台式机、笔记本电脑、平板电脑、手机登录互联网，通过网络参与组建非法组织“华夏人民民主联盟”、“国民共济会”，加入敌对组织“中国民主党”，并大肆发表反宣文章，恶意攻击中国共产党和中华人民共和国政府，对社会主义制度极度不满。

1. 积极参与组建非法组织“中国华夏人民民主联盟”、“国民共济会”，参与整合其它非法组织为新“中国华夏人民民主联盟”。2011年3月，应非法组织“中国华夏人民民主联盟”主席“赵刚”（基本情况不详）的邀请，被告人张绍峰加入“中国华夏人民民主联盟”，积极参与组建“中国华夏人民民主联盟”，并亲自起草《中国华夏人民民主联盟章程》。2011年5月初，张绍峰创建非法组织“国民共济会”，并建立“国民共济会”群，不时向该群成员宣扬西方民主理念，发送《共济周刊》、《共济月刊》、《非暴力不合作指导》、《民运手册》等反宣文章的电子邮件。2011年5月15日，张绍峰通过翻墙软件进入动态网“自由中国论坛网站”搜集“中国地下组织大全”，整理形成《最新政党社团登记排列》，以个人QQ签名方式，发布信息“《中国地下组织大全》已由“国民共济会”整理汇总，欢迎来文索取”。2011年7月，张绍峰与"中华民主弘扬会"负责人"之笔问道"（基本情况不详）取得联系后，参与将非法组织“华夏人民民主联盟”、“国民共济会”、“中华民主弘扬会”整合，组建新的“中国华夏人民民主联盟”，由赵刚任主席，“之笔问道”任总秘书长，被告人张邵峰任总监察长兼组织部长。后被告人张绍峰以“中国华夏人民民主联盟”组织部长的名义委任王欣（基本情况不详）为“中国华夏人民民主联盟”浙江负责人。后应赵刚继任者张庆旭（网名“之笔剑客”）的邀请，参照境外敌对组织“中国民主党”的文件，被告人张邵峰又制定了《非常时期华盟暂行条例》，多次向其网络联系人发送，积极拉拢他人加入非法组织“中国华夏人民民主联盟”。

2. 积极申请加入境外敌对组织“中国民主党”。2011年9月30日，被告人张绍峰利用翻墙软件进入“中国民主党”网站，通过其越南邮箱“[email protected]”向“中国民主党”主席谢万军发送了“入党申请书”电子邮件。2011年10月23日，谢万军亦通过发送电子邮件的方式，向张绍峰越南邮箱发送了《中国民主党干部任职通知》和《中国民主党党员登记表》，并任命张绍峰为“中国民主党甘肃省委员会委员”兼任“中国民主党第4803独立支部主任”。此后，谢万军又向被告人张邵峰越南邮箱发送了《中国茉莉花通讯》、《中国茉莉花行动专辑》、《反共救国、全民起义》等反宣文章。

3. 利用微博、QQ空间、手机短信等传播方式，大肆散布传播反宣文章，积极宣扬西方民主思想和暴力革命理念。2011年4月3日，被告人张绍峰向其网友“MZ滥情”发送《九评共产党》电子邮件。2011年5月7日，张绍峰向其网友“无枫叶的枫叶”发送《中国过渡政府义工短期培训班》电子邮件。2011年10月8日，张绍峰向其网友“309945463”发送《民运领袖培训手册》电子邮件。2011年4月14日，张绍峰在其空间发表《至MZ同仁的一封信》。2011年9月2日，张绍峰在其空间发表《如何申请美国的政治庇护，参考一下，大家一块去》。2011年9月17日，张绍峰在其空间发表《如何加入中国民主党》。2011的10月8日，张绍峰在其空间上发表《民运经费如何筹措》。2011年12月3日，张绍峰在其空间发表《关于建立人民组织的方案初稿》。2012年1月26日，张绍峰在其空间发表《中共百万国旗领像入藏村寺引民众怒潮》等多篇反宣文章。上述文章敌视中国共产党、仇视社会主义制度，恶意攻击中华人民共和国政府，对“法轮功”邪教组织诋毁我党和政府的“九评共产党”、“三退”、“刘晓波获2010年诺贝尔”表示推崇。同时煽动国内利益群体走向街头，通过“维权”等方式表达不满诉求，向政府施压，煽动民众做暴力革命不做颜色革命，阴谋颠覆中华人民共和国国家政权、推翻社会主义制度。

上述事实，有公诉机关提交，并经庭审质证、认证的下列证据证实：

1. 庆阳市公安局网络安全保卫支队远程勘验检查工作记录对张邵峰使用的电子邮箱、个人空间、上网地点进行的远程勘验检查笔录
2. 证人张庆旭、张耀宗等人的证言。
3. 电子数据：张邵峰越南邮箱内关于中国民主党内容的邮件；入党申请，中国民主党干部任职通知，中国民主党党员登记证。张邵峰空间发表的文章及与他人的邮件往来，发送华夏民主联盟章程等。
4. 书证：公安部确认“中国民主党”为敌对组织的文件等。
5. 鉴定结论；
6. 被告人张邵峰的供述。

本院认为，被告人张绍峰通过网络参与组建非法组织，加入敌对组织，利用微博、QQ空间、手机短信等传播方式，多次发表反动宣传文章，大肆散布有损于国家政权和社会主义制度的言论，歪曲事实，恶意攻击中国共产党和中华人民共和国政府，损害国家政权形象，其主观上具有煽动颠覆国家政权的犯罪故意，客观上实施了煽动颠覆国家政权的行为，其行为已构成煽动颠覆国家政权罪。公诉机关指控的犯罪事实清楚、证据确实、充分，罪名成立。关于被告人张邵峰提出其参加非法组织只是为了申请政治庇护，移民美国，发表文章只是宣传西方民主思想，并无煽动颠覆政府之意图的辩解理由，与查明的事实不符，且由于网络用户多、分布广，犯罪信息传播速度快，社会危害性极大，故对其行为应当依法惩处。关于张邵峰的辩护人提出张邵峰的行为不符合煽动颠覆国家政权罪的犯罪构成的辩护意见，因张邵峰具有完全刑事责任能力，其发表了攻击党、攻击政府、攻击社会主义制度的言论，表明其有明显的犯罪动机，客观上又实施了危害国家安全的犯罪行为，且本罪为行为犯，行为人只要具有煽动颠覆国家政权、推翻社会主义制度的行为，不管其所煽动的对象是否相信或者接受其所煽动的内容，也不管其是否去实施所煽动的有关颠覆活动，均不影响犯罪的构成。因此，辩护人的此项辩护意见不予采纳。关于辩护人提出被告人张邵峰发表文章的行为，属于我国《宪法》规定的言论自由范畴的辩护意见亦不能成立，言论自由虽是宪法赋予公民的一项基本权利，但公民必须依法行使该权利，不得损害国家利益和安全，因此，辩护人只强调被告人权利而忽视被告人义务的观点，不予采纳。鉴于被告人张邵峰能够主动解散其建立的“国民共济会”QQ群，在侦查及法庭审理过程中，能如实供述自己的犯罪事实，并主动揭发其他非法组织的犯罪行为，认罪、悔罪态度较好，依法可从轻处罚。经本院审判委员会讨论决定，依照《中华人民共和国刑法》第一百零五条第二款、第五十六条、第六十七条第三款和全国人大常委会《关于维护互联网安全的决定》第二条第（一）项之规定，判决如下：

被告人张邵峰犯煽动颠覆国家政权罪，判处有期徒刑一年六个月，剥夺政治权利一年。

（刑期从判决执行之日起计算，判决执行前先行羁押的，羁押一日折抵刑期一日，即自2012年6月13日起至2013年12月12日止）。

如不服本判决，可在接到判决书的第二日起十日内，通过本院或者直接向甘肃省高级人民法院提出上诉，书面上诉的，应提交上诉状正本一份，副本二份。

审 判 长 李 瑛
代理审判员 杨维荣
代理审判员 陈 媛

二〇一二年十一月七日

书 记 员 王 微

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Women in Prison Reports Up on International Women’s Day

Women applaud while watching a Women's Day performance at Guangdong Women's Prison. Photo credit: Xinhua

It usually takes a holiday for China’s imprisoned women to end up in the media, and International Women’s Day is one such occasion. Around this time, domestic reporters generally put the spotlight on the festivities in store for March 8, with the bulk of coverage involving sentence reductions or women in costume. This year, Beijing TV took a different approach and entered Beijing Women’s Prison to talk about the emphasis that the prison places on mental health treatment.

The report begins during a sandplay therapy session of a woman serving life imprisonment for intentional homicide. The woman’s serenity and the success of the prison’s therapeutic programs is the focus of the report, which is bolstered by a separate article putting the prison’s recidivism rate at less than 1 percent.

Beijing Women's Prison focuses on providing psychological counseling to inmates. Photo credit: Beijing TV

However, the video does not address the causes and prevalence of mental health issues among women in prison. Histories of abuse are a major trigger of crime among women in China, and as the “two meetings” (i.e., the National People’s Congress and Chinese People’s Political Consultative Congress) unfold, there has been renewed attention to anti-domestic violence legislation as well as data demonstrating its significance. When it comes to intentional homicide, about 10 percent of cases involve love, marriage, or family disputes, according incomplete data cited by Supreme People’s Court Vice President Huang Ermei. A 2005 study revealed that 36 percent of women in Beijing detention centers were victims of domestic violence, as compared to one in four for Chinese women as a whole, according to All-China Women’s Federation Vice President Meng Xiaosi.

Amid the reporting on domestic violence legislation, the Beijing TV report that celebrates the possibility of rehabilitation for a woman convicted of homicide reminds us that capital punishment is not the only sentence possible for Li Yan, a domestic violence survivor who killed her husband. It is unclear why her case is not discussed amid the seasonal upswing in reports on women in prison and domestic violence, but we can only hope that women and women’s rights are acknowledged in the media, and the legal system, on more than one day a year.

Transparency in Xinjiang: Reporting on State Security Trials

Xinjiang Party Secretary Zhang Chunxian speaks with the press during the 11th National People's Congress in March 2012. Photo credit: Chinanews.com

On January 21, 2013, the Xinjiang Uyghur Autonomous Region High People’s Court published its annual work report online, and, with a level of transparency not afforded by other jurisdictions, disclosed the number of endangering state security (ESS) trials in 2012. As is generally the norm, the first section of the report that covers the entire region discusses criminal cases and maintaining state security and social stability. The section states that 314 ESS trials of first and second instance were concluded in Xinjiang during the year. Compared with data in previous reports, the 2012 figure is a decline of 24 percent year-on-year and the second-lowest level in five years—the number of ESS trials peaked in 2009, corresponding with the July 2009 riots in Urumqi (Table 1).

The decline is no cause for celebration, however, since, according to Xinjiang Party Secretary Zhang Chunxian, “the struggle between splittist and anti-splittist forces in Xinjiang [is] long-term, complicated, and intense” and “the insistence on stability maintenance as our first responsibility must not be relaxed.”[*] Splittism and inciting splittism are ESS crimes covered by Article 103 of the Criminal Law. Splittism is defined in the law as “organizing, plotting, or carrying out the splitting of the nation or damaging national unity.”

To put Xinjiang data in the context of national estimates of ESS trials, which are limited to trials of first instance, first and second instance trials need to be disaggregated. Xinjiang Yearbook provides data on first-instance trials for 1997‒2003 and 2008‒2010 (Table 1) and shows that, in recent years, first-instance ESS trials accounted for an average of 85.9 percent of combined first- and second-instance trials. This percentage is consistent with that of criminal trials in Xinjiang but higher than that of criminal trials nationwide. For example, in 2010 and 2011, second-instance trials accounted for about 16 percent of criminal trials in Xinjiang but only about 11 percent of those in the nation as a whole.

Accordingly, Dui Hua estimates that between 2008 and 2010, Xinjiang, which accounts for less than 2 percent of China’s population, accounted for 50 percent of first-instance ESS trials nationwide (Table 1). Given that splittism is the focus of stability maintenance, the great majority of defendants in these trials are almost certain to be Uyghurs, a Turkic-speaking Muslim ethnic group that accounts for 46 percent of Xinjiang’s population. More than 90 percent of Xinjiang ESS cases recorded in Dui Hua’s Political Prisoner Database (PPDB) is of Ugyhurs convicted of splittism or inciting splittism for asserting their cultural identity through speech, association, and assembly. In fact, of the more than 800 people charged with splittism or inciting splittism in the PPDB, over 80 percent are Tibetans and more than 15 percent are Uyghurs. Dui Hua is aware of three Han Chinese who have been charged with inciting splittism, but all three were ultimately convicted of other crimes.

Table 1: ESS/CR* Trials Concluded in Xinjiang, Nationwide, 1997‒2012 

	First- and Second-Instance	First-Instance
Year	Xinjiang	Nationwide†	Xinjiang
	No. of Trials	No. of Trials	No. of Trials	% of National
1997	-	271	83	30.63
1998	-	208	109	52.40
1999	-	220	138	62.73
2000	-	324	192	59.26
2001	-	305	205	67.21
2002	-	252	77	30.56
2003	-	328	183	55.79
2004	-	336	-
2005	-	299	-
2006	-	310	-
2007	-	306	-
2008	268	466	235	50.43
2009	437	698	378	54.15
2010	376	670	314	46.87
2011	414	1314§	356‡	27.09
2012	314	**	270‡

Source: Dui Hua, Xinjiang Courts Annual Work Report, Xinjiang Yearbook, China Law Yearbook

Notes: * Counterrevolution (CR) was a category of crimes in China’s Criminal Law until 1997. In that year, the ESS category entered the Criminal Law and encompassed most of the crimes previously list under CR.

"-" indicates data unavailable

† China Law Yearbook disaggregates first-instance trial data by crime category, listing eight of the 10 categories enumerated in the Criminal Law (Part 2, chapters 1‒10) along with a category referred to as “other.” Dui Hua believes that the unlisted categories of ESS and dereliction of military duty are combined under “other.” Since indictment statistics have indicated that dereliction of military duty generally accounts for less than 1 percent of indictments when placed in a separate category with only ESS, we believe that military dereliction trials account for a similarly low percentage of trials when combined with ESS and thus use “other” trials as a proxy for ESS trials.

‡ Dui Hua estimate based on the assumption that 85.9 percent of combined first- and second-instance trials are trials of first instance. First-instance trials accounted for 87.7 percent of combined first- and second-instance trials in 2008, 86.5 percent in 2009, and 83.5 percent in 2010.

§ Given the discrepancy between this number and historical data, we do not include 2011 figures in our analysis.

** Data expected to be released later this year.

Many Defendants per Trial

In 2012, there was a decline in ESS trials in Xinjiang, but in light of Zhang’s comments, it is unlikely that there was a change in the political climate and, depending on the number of defendants per trial, there may not have been an equivalent decline in the number of people tried. Xinjiang has not reported the number of defendants in ESS trials since 2003, but between 1996 and 2003, there was an average of 2‒4 defendants per trial (Table 2) and more recent data suggests that current figures may be higher. In 2009, Kashgar, which accounted for more than 60 percent of Xinjiang’s most serious ESS cases between 2001 and 2009, heard 49 ESS trials involving 225 defendants, with 33 of the trials involving 171 defendants allegedly linked to Islamic separatist organizations such as Hizb ut-Tahrir. In restive Hotan, where Uyghurs make up more than 90 percent of the population, 8 first-instance trials involved a total of 39 defendants in 2011. If each of Xinjiang’s ESS trials involves 2‒5 defendants, the 270 trials estimated for 2012 included between 540 and 1,350 defendants in total.

Table 2: Xinjiang ESS/CR* Trials and Defendants, 1996‒2003 

Year	First-Instance, Concluded Trials	Defendants	Defendants per Trial
1996	40	85	2.13
1997	83	227	2.73
1998	109	473	4.34
1999	138	367	2.66
2000	192	514	2.68
2001	205	751	3.66
2002	77	248	3.22
2003	183	655	3.58

Source: Dui Hua, Xinjiang Yearbook Note: * Counterrevolution (CR) was a category of crimes in China’s Criminal Law until 1997. In that year, the ESS category entered the Criminal Law and encompassed most of the crimes previously list under CR.

Of the hundreds of people tried for ESS in Xinjiang in 2012, information has been made public about only two—both are Uyghurs sentenced to more than 10 years’ imprisonment by the Kashgar Prefecture Intermediate People’s Court. Sidik Kurban (斯迪克库尔班) is a Muslim leader who oversaw religious homeschools throughout Xinjiang. He was convicted of inciting splittism and sentenced to 15 years’ imprisonment with 5 years’ deprivation of political rights, according to Radio Free Asia. Abdirahman Yimer (阿布都热合曼依米尔) allegedly disseminated separatist ideas via removable storage devices and CD-ROM. He was sentenced to 13 years’ imprisonment with 5 years’ deprivation of political rights, according to Xinjiang Daily.

In Xinjiang, harsh sentences are routine. In 2009, the conclusion of 437 ESS cases resulted in 255 people sentenced to more than 10 years’ imprisonment, life imprisonment, or death. The respective maximum sentences for inciting splittism and splittism are fixed-term imprisonment of more than five years and death.

Looking Beyond Xinjiang

Xinjiang is unique in its willingness to routinely publish ESS trial statistics online, but a handful of other provincial-level jurisdictions publish these figures in annual yearbooks. Dui Hua’s survey of available material shows that most reporting jurisdictions only have a few ESS trials per year (Table 3). Figures may be higher in Guangdong, which heard 14 ESS trials (including first and second instance) in 2008, according to a Xinhua report.

Table 3: First-Instance ESS Cases Filed by Location, 1999‒2011 

Year	1999	2000	2001	2002	2003	2004	2005	2006	2007	2008	2009	2010	2011
Chongqing Municipality	-	-	-	-	-	-	-	-	-	2	3	3	1
Guizhou Province	-	-	3	1	2	2	3	3	1	1	0	2	2
Hebei Province	4	5	3	2	2	4	3	4	1	2	3	-	-
Henan Province	4	5	5	0	1	0	2	1	1	-	1	4	1

Source: Dui Hua, Hebei Legal Yearbook, Chongqing Statistical Yearbook, Guizhou Statistical Yearbook, Henan Statistical Yearbook

Note: "-" indicates data unavailable

Given splittism data in the PPDB, the number of ESS trials is also likely to be higher in areas with large Tibetan populations, including Tibet, Sichuan, Gansu, Qinghai, and Yunnan. However, Tibetan regions rarely disclose data on ESS arrests and trials, and last year, Sichuan news media reported that only 11 ESS cases were concluded in the province in 2011, despite the high frequency of self-immolation incidents, which have been characterized as “splittist” acts. That said, recent guidelines for handling self-immolation cases show that authorities are not necessarily using ESS charges to counter the protests.

What about 2011?

Based on our existing model, the percentage of nationwide ESS trials held in Xinjiang dropped to 27 percent in 2011. While the number of ESS trials in Xinjiang grew modestly, national figures soared to over 1,300 trials, compared with 408-trial average for the previous decade. The spike underscores the huge deficit of public information in the vast majority of jurisdictions and raises more questions than answers. It may indicate that Tibetan self-immolations and calls for “Jasmine Revolution” in China precipitated unprecedented numbers of ESS trials, but it may also indicate that there has been a change in official accounting to include more types of trials in the category that Dui Hua has attributed to ESS since 1998. Until more jurisdictions follow Xinjiang’s model of transparency, we cannot know for sure.

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* “必须认识到新疆分裂和反分裂的斗争是长期的、复杂的、尖锐的……坚持维护稳定第一责任不放松” ⇑