Wednesday, April 27, 2016

China’s Average “Death Row” Prisoner Waits 2 Months for Execution


A court official reads a decision confirming sentence to a death row inmate.

In the United States, men and women sentenced to death typically await execution in “death row” sections of state and federal prisons. Due to complex and time-consuming appeals procedures, that wait can be quite long, averaging roughly 15 years, according to government statistics. This has led to arguments that the “death row phenomenon”—execution after extended delay under the harsh regime applied to condemned prisoners—constitutes cruel and inhumane punishment outlawed under international law.

Though China continues to make liberal use of the death penalty—executing more people than the rest of the world combined—the Chinese public is less aware of “death row.” In part, this is because individuals are not transferred to prisons but remain in detention centers during the period between sentencing and execution. There, they are often housed alongside other detainees rather than being segregated into special units. People sentenced to death often stand out, however, because of the shackles on their hands and feet.

Another reason why China is not typically thought to have a “death row” is because people spend relatively less time awaiting execution. Though there can be lengthy delays while cases bounce back and forth between intermediate courts of first instance and provincial courts of appeal, the wait becomes much shorter once the death sentence is sent to the Supreme People’s Court (SPC) for review and approval.

Just how long or short this wait is remains shrouded in the cloak of secrecy that surrounds many other aspects of the death penalty in China. More detail has become available since the SPC started routinely publishing review decisions on its website in July 2013. The court still has quite a way to go in terms of disclosing information about capital punishment, but even the rather limited information it publishes provides some insight into opaque territory.

As a demonstration, Dui Hua recently reviewed roughly 500 SPC review decisions in an attempt to answer a surprisingly complicated question: How long do Chinese “death row” prisoners wait between the time their sentences are approved by the SPC and execution?

In all, these decisions concerned 525 individuals and were handed down between April 2011 and November 2015. Most of the decisions were from 2013–2015, with 2014 accounting for more than half of the total (see table below). The SPC rejected the death sentences given to only 11 individuals, leaving 514 facing execution.


Supreme People’s Court Death Penalty Review Decisions, Apr 2011- Nov 2015
Outcome
Year issued No. of individuals w/ sentences reviewed Death penalty rejected Execution publicly reported
2015 115 3 22
2014 283 4 41
2013 121 4 37
2012 4 0 1
2011 2 0 1
TOTAL 525 11 102

It can be assumed that all of these individuals have been or will be executed, but in order to confirm exact dates, Dui Hua drew upon public execution reports. Doing so, Dui Hua was able to confirm the executions of 102 of the 514 individuals whose death sentences were approved by the SPC. In other words, no public record of any execution could be found for 80 percent of those whose sentences received final approval. An even smaller fraction of those whose executions were logged by Dui Hua have had their court decisions made public on the SPC website.

Based on Dui Hua analysis of the SPC decisions, China’s average “death row” prisoner can expect to wait roughly two months from the time the court approves their death sentence to the time of execution. But this period can vary considerably, with a small handful of people waiting more than 200 days and others waiting less than a week. Based on our sample, the median length of time on “death row” was 50 days.

This suggests that there is often a gap between the time that the SPC finishes its review and the time that highest court’s president signs a warrant of execution. This is clear because, under the Criminal Procedure Law, courts are required to carry out the death penalty within seven days of receiving such a warrant. The only statutory grounds for altering this strict timeline are when: 1) there is evidence of a possible error in the original judgment; 2) the person sentenced to death provides evidence of other crimes or performs other acts of major meritorious service that could result in leniency; or 3) the person sentenced to death is discovered to be pregnant.

The speed with which execution is carried out may be associated with certain individuals or crimes. For example, all 16 Uyghurs in the sample had their executions for terrorist activity carried out between five and nine days after the SPC approved their sentences. This means that warrants for execution had to have been issued more or less simultaneously with the court’s decision to approve capital punishment. The wait was also very brief for Xu Maiyong (eight days) and Liu Han (13 days). Xu was the former vice-mayor of Hangzhou who was executed for corruption in 2011. Liu was a politically connected business figure executed in 2015 for allegedly leading an organized crime syndicate in Sichuan.

In fact, the timing of executions may be tied to the social and political value of their publicity. Most of the Uyghurs were executed after region-wide mass rallies were covered widely in the national press in 2014 in an apparent attempt to show government resolve to combat violent terrorism. The April 2014 execution of Wang Yunsheng, only five days after SPC approval of his death sentence for murdering a doctor, appears to have been timed to coincide with the release of a judicial opinion on stricter punishment for crimes against medical practitioners.

Timeliness can also mean longer periods in custody. People who commit drug offenses sometimes wait for weeks or even months after their sentences have been approved, apparently in order for their execution to herald the “International Day against Drug Abuse and Illicit Trafficking” commemorated on July 26.

These cases are relatively easy to single out precisely because reporting on the death penalty in China is very selective and incomplete. Most cases receive no publicity at all, while others are used to send messages to the public. By virtue of being reported in some way, the executions reviewed here are more likely to have been carried out according to a schedule not simply determined by the judicial process. Were China to report information about death penalty cases more routinely, it would be possible to test the results of this dataset and learn more about the final days on China’s “death row.”


Monday, November 30, 2015

Ethnic Nationalism Along the China-Burma Border



A map indicating the location of the Wa population within China's Yunnan province, which borders Burma.

Ethnic Nationalism Along the China-Burma Border

China watchers are well aware of ethnic unrest involving Tibetans and Uyghurs, but little is known about independence movements and cultural rights activism among other ethnic minorities. Dui Hua research has explored the suppression of Christianity among China’s ethnic Koreans. Now, based on public security records obtained by Dui Hua (PDF 1.2MB), we expand our understanding of this topic to include the Wa and Lahu.

The Wa and Lahu primarily inhabit mountain villages along the border between China's Yunnan Province and Burma. Today there are an estimated 1.2 million Wa people worldwide, with 800,000 in Burma and 400,000 in China, and 800,000 Lahu, of whom more than half reside in China.

In the latter half of the twentieth century, authorities in Yunnan's Simao Prefecture (or present day Pu'er City) targeted the Wa and Lahu people in efforts to suppress nationalistic sentiments. Official sources trace ethnic nationalism among these groups to Zhadie (扎谍), a Wa man born in a contested territory between China and Burma in 1924. Records describe him as an overseas separatist instructed by the United States and Kuomintang to carry out counterrevolutionary activities on the mainland. (Some Kuomintang forces refused to retreat to Taiwan and instead withdrew to Burma after the Communist Party established the People’s Republic of China in 1949.)

Calling himself “old Buddha,” Zhadie saw increasing support among Burmese Wa and Lahu after the end of World War II. In 1950, he began sending his followers to Pu’er and Lincang, Yunnan, to spread the idea of establishing a Wa-Lahu nation.

Zhadie argued that Wa-Lahu independence was necessary to free the two ethnic groups from Han Chinese oppression. According to government records, one of his slogans was: “Han Chinese repress Wa. Exterminate the Han.” Early on, Zhadie likened himself to the Mao Zedong of the Wa and Lahu people. In the 1980s, he compared himself to the Dalai Lama, as the spiritual leader of Wa and Lahu in China and Burma.

The number of Zhadie's supporters is unknown. Spotty government records state that as many as 3,500 people from more than 30 Wa villages gathered in Yunnan in March 1959 to perform folk dances led by Zhadie's followers and to listen to their nationalist speeches. The government responded by saying that the villagers had been “deceived” and by reinforcing patriotic education in the area.

Between 1950 and 1961, government sources document 48 instances of infiltration associated with Zhadie. Eleven were small-scale armed rebellions or disturbances that were swiftly suppressed by the much larger joint forces of the People’s Liberation Army (PLA) and public security. The largest of these armed activities took place in June 1951. During the incident two to three hundred of Zhadie's rebels besieged the Wendong District government and kidnapped communist cadres with the support of Kuomintang forces.

Burma agreed to let the PLA fight Kuomintang forces on Burmese soil in 1961, putting Zhadie’s mainland activities on hold for approximately two decades. Zhadie’s influence diminished without the military backing of the Kuomintang, but it had a resurgence during the reform and opening in 1978.

From the mid-1980s to 1998, Simao police arrested 66 people in 20 incidents of subversion and sabotage linked to Zhadie. During the period, he made plans for a Wa-Lahu nation more concrete, stating that it would be established in the year 2000 and that he would serve as president. In March 1990, nearly 200 villagers joined his core supporters in celebrating the establishment of the “Zhadie District government” in Yunnan’s Ximeng County. Between 1991 and 1993, his supporters went to 121 Wa and Lahu villages to hand out photos of Zhadie and seals and flags of the new "regime."

It was not until the mid-1990s that China addressed the problems through diplomacy. In the spring of 1996, Chinese officials traveled to Burma's Mongmao County to meet with Zhadie, then age 72, and announce that he and his adherents had violated Chinese law. China threatened to impose sanctions on Burma and to close the border for religious worship during Chinese New Year. In response, the local Burmese government began imposing restrictions on Zhadie in 1998, greatly diminishing his influence in China.

Nonetheless, nearly ten years later, on December 27, 2006, The People's Daily named Zhadie as an overseas separatist force in Yunnan that was funded by western countries and supported by the US government and religious organizations.


Thursday, September 24, 2015

Xinjiang’s State Security Prisoners: Failing to Reform (Part 2 of 2)

Twelve men accused of ESS are publicly sentenced in Yili (Ili) Kazakh Autonomous Prefecture, Xinjiang, September 18, 2008. Photo credit: iyaxin.com

In 2008 the Xinjiang Rule of Law Leading Small Group published a policy document examining a number of challenges faced by prison authorities in managing the region’s endangering state security (ESS) prisoners. The first two sections of the document, which discuss the situation facing Xinjiang prison work and the psychological profiles of ESS prisoners, are translated here. What follows is a translation of the last two sections of the document. These sections describe attitudes towards reform among ESS prisoners and methods for prisons to improve their reform work. The document emphasizes the “clear hostility” of ESS prisoners, noting that it is “extremely common” for them to resist reform.

The document observes that by concentrating ESS offenders, prisons become fertile grounds for reactionary groups to recruit members and may ultimately become targets for attack. The language used in this paper conveys the sense that prison authorities are engaged in battle with enemy forces on China’s frontier and that, in the interest of “stability above all else,” military-level investments in personnel, equipment, and facilities are necessary.

Prisons are instructed to “strategically despise all enemies but tactically take [them] seriously” and to “divide and demoralize.” In some cases, the document specifically calls for solitary confinement, fixed sleeping positions, and prohibitions on sitting.

Among the groups identified in the document as a proponent of the “three forces” of ethnic separatism, Islamic extremism, and terrorism is the East Turkestan Islamic Party (ETIP). Chinese officials have ascribed a number of bombings and hijackings to the group, which was labeled a terrorist organization by the US government in 2002. As recently as May 2015, Mettursun Eziz was sentenced to four years’ in prison for circulating religious materials produced by ETIP.




Tuesday, August 25, 2015

Xinjiang’s State Security Prisoners: Failing to Reform (Part 1 of 2)

Twelve men accused of ESS are publicly sentenced in Yili (Ili) Kazakh Autonomous Prefecture, Xinjiang, September 18, 2008. Photo credit: iyaxin.com

In 2008 the Xinjiang Rule of Law Leading Small Group published a policy document examining a number of challenges faced by prison authorities in managing the region’s prisoners serving sentences for endangering state security (ESS). The first two sections of the document are translated below. They discuss the climate surrounding Xinjiang prison work and the psychological profiles of ESS prisoners. The last two sections of the document, focusing on how to better reform ESS prisoners, will be translated in an upcoming post.

The document focuses on external factors, like increasing US attention to the “Xinjiang question” and the “three forces” of ethnic separatism, Islamic extremism, and terrorism. Also mentioned are internal factors, such as an insufficient number of prison police, a shortage of funds, and outdated facilities.

Over the years, Dui Hua has drawn on evidence from a variety of open-source documents to conclude that Xinjiang accounts for a considerable proportion of the nation’s ESS arrests, indictments, and trials. In 2008, Xinjiang accounted for more than 75 percent of ESS arrests and 82 percent of ESS indictments nationwide. In the first 11 months of that year, Xinjiang’s procuratorate reported that 1,295 individuals were arrested and 1,154 were indicted for ESS crimes in the region. Between 2008 and 2010, Xinjiang, which accounts for less than two percent of China’s population, accounted for 50 percent of the nation’s first-instance ESS trials. In 2013 and 2014, Xinjiang conducted about 300 ESS trials of first instance each year.

The large number of ESS cases in Xinjiang is connected to the region’s complex history; diverse population; and geo-strategic importance, bordering Russia and Central Asia on China’s northwest. The emergence of independent Central Asian states after the collapse of the Soviet Union and the spread of Islamic ideologies have heightened Chinese authorities’ concerns about stability in the region. Authorities in Xinjiang see themselves as engaging in an ongoing battle against the “three forces.” In their view, what hangs in the balance is the stability of Xinjiang and the allegiance of the region’s 10 million Uyghurs—an ethnically Turkic, culturally distinct, and predominantly Muslim people who have been the main inhabitants of the region for more than 1,000 years.

The document describes the “American Factor” as a “constant threat” to Xinjiang’s social and political stability. It mentions US support for nonviolent resistance movements, or color revolutions, in Central Asia and notes that religious extremism has flourished in countries where color revolutions occurred. US interest in human rights in Xinjiang, particularly its criticism of controversial ESS cases like that of Ilham Tohti, remains a point of contention in US-China relations. China continues to see such attention as interference in its domestic affairs, and accuses the United States of a “double standard” in combatting terrorism for its penchant to draw attention to Chinese policies that marginalize and criminalize Uyghur culture in its response to ethnic clashes in Xinjiang.

Tensions between Han Chinese and Uyghurs flare up periodically as protest. Some of the protests turn violent, as in the deadly riots that erupted in Ürümqi in July 2009. In recent years official media have reported an increasing number of violent incidents in the region. Xinjiang police counted over 190 “terrorist” attacks in 2012. Authorities have also implicated Uyghurs in incidents outside the remote western region, including Beijing’s Tiananmen car crash in October 2013 and knife attacks at Kunming and Guangzhou train stations in 2014 and 2015, respectively. Law enforcement has responded by tightening controls on religious and cultural activities and cracking down on “infiltration” by trans-national radical groups.

One of the radical groups named in the paper is Hizb ut-Tahrir, or Party of Liberation. Many countries have banned the group. Chinese government records show that a substantial proportion of ESS cases are attributed to Hizb ut-Tahrir. For example, in 2010, police in Kashgar identified 522 people for their involvement with Hizb ut-Tahrir, compared with just 47 people involved with the East Turkestan Islamic Party. That said, independent media reports documenting Hizb ut-Tahrir activity in Xinjiang are scarce.

Moving to psychological profiles, the document distinguishes different segments of Xinjiang’s ESS prisoner population by factors such as age, level of education, and exposure to religious ideas. The profiles suggest the need for differentiated strategies of “education and reform.” Prison authorities put considerable emphasis on the need to “convert” ESS offenders and replace their “bigoted” and “reactionary” ideas about ethnicity, religion, and history with proper Marxist understandings that reduce antagonism towards the party-state.




Thursday, April 23, 2015

Paraplegic Petitioner Jailed for Disturbing Real, Not Online, Space



Police pick up leaflets scattered by Wei Biling (center left, in wheelchair) at Tiananmen Square on October 6, 2013. Image credit: boxun.com

The crime of “provoking a serious disturbance,” Article 293 of China’s Criminal Law, has received a great deal of attention inside and outside China over the past couple of years. This is partly because Chinese authorities appear to have relied on the crime in their recent concerted campaign against rights defenders, civil-society activists, and others deemed to disrupt social order. One recent example is the detention of the “Beijing five” on the eve of International Women’s Day. The five women planned to protest sexual harassment on public transport. Zheng Churan (郑楚然), Wei Tingting (韦婷婷), Wang Man (王曼), Wu Rongrong (武嵘嵘), and Li Tingting (李婷婷) had been released on bail at the time of writing.

Dui Hua has previously pointed out Article 293’s reputation as a “pocket crime,” or a vaguely defined catchall. But as Jeremy Daum at the China Law Translate website points out, even though Article 293 encompasses four different categories of illegal action, most of these are actually quite specific. Moreover, subsequent interpretation by the Supreme People’s Court (SPC) and Supreme People’s Procuratorate (SPP) has made headway in further defining the conditions that constitute the crime.

It is the fourth category of Article 293, namely, “making a commotion and creating a serious disturbance in a public place,” that has been most frequently invoked during the recent crackdown on rights defenders. Petitioners are particularly vulnerable to prosecution under this category—especially those who have resorted to more unconventional methods to gain publicity.

Wei Biling (韦碧玲) is one such petitioner. She was sentenced to four years in prison last October by a court in the city of Liuzhou, Guangxi Zhuang Autonomous Region.

In 1997, Wei Biling was a 25-year-old employee at a state-owned car dealer, when she was hit by a car that was being test-driven outside her office. The accident left her paralyzed and confined to a wheelchair. With the incident ruled a workplace accident, Wei was awarded what she considered to be inadequate compensation. A subsequent divorce left her without a place to live.

Wei began petitioning in Beijing in 2008, becoming a familiar and visible presence as an organizer and spokesperson for the fluid community of individuals seeking justice in the capital. One of the ways that Wei Biling tried to bring attention to her case was to scatter large piles of leaflets in high traffic areas. The leaflets detailed her story and allegations of wrongdoing. Because she often chose to do this at “sensitive” times, such as during the annual gathering of the National People’s Congress, police tasked with preserving the impression of “stability above all else” could wind up on their hands and knees, scrambling to collect the leaflets before they blew into the hands of citizens.

These “abnormal petitioning” techniques are ultimately what led to Wei’s arrest in Beijing in February 2014 and subsequent conviction on charges of “provoking a serious disturbance” in October. At trial, prosecutors brought a total of seven separate charges against her. Four of them focused on “abnormal” petitioning activities like those described above. Three others focused on gathering petitioners to hold up banners and signs in public places as well as sending photographs and videos of those gatherings to people who posted them on Chinese-language websites published overseas.

In their indictment, prosecutors made note of the fact that one of these videos had been viewed more than 6,000 times. This suggests that they may have been trying to argue that the social harm caused by some of Wei’s actions should not be limited to physical space. This follows a controversial 2013 interpretation by the SPC and SPP, which extends the scope of Article 293 to include the use of information networks to, among other things, “disseminate false information ” and organize or incite others to do so.

It is noteworthy, however, that the Yufeng District People’s Court rejected the prosecution’s Internet-related charges, convicting Wei only for scattering leaflets in public places. The judicial panel’s particular reasoning, which appears to have reflected a decision by the court’s sentencing committee, is not especially clear. The court ruled only that there was no evidence to prove that the petitioner’s gatherings (and presumably the online posts as well) caused any serious disruptions to social order.

In the end, the court did not venture into the more nebulous question of whether actions taken in virtual space can be prosecuted under Article 293. Instead, it stuck with incidents in the types of locations that have been explicitly singled out in previous judicial interpretations, such as bus stops, theaters, and busy street corners. Yet the evidence for the seriousness of the disturbances at these street-level locations is quite thin, apparently relying on general witnesses statements about the potential for disruption by petitioners, instead of specific testimony about disruption caused by Wei Biling in particular.

Court verdicts in cases like this are increasingly available online, thanks to recent national efforts at increasing the degree of transparency of China’s judiciary. Before making Wei Biling’s verdict available to the public online, local court authorities evidently went to great efforts to conceal many of the details of her case—particularly in terms of the many locations she had gone to in search of publicity. The zeal with which these redactions were made to the verdict meant that Wei was initially identified only by her surname (common to many of the Zhuang ethnicity who live in Guangxi) and that the facts of the case were nearly incomprehensible in some places. As it turned out, however, an appellate decision from the Liuzhou Intermediate People’s Court was later published without any redaction, making it possible to fill in many details of the original verdict and locate more information about Wei Biling from non-official sources. What follows is a translation of the verdict issued by the Yufeng District People’s Court with details filled in from subsequent documents and research.




Yufeng District (Liuzhou) People’s Court Verdict: click to expand



Yufeng District (Liuzhou) People’s Court, Guangxi Zhuang Autonomous Region Criminal Verdict

(2014) Yu Crim. 1st No. 445

The prosecuting organ is the Yufeng District (Liuzhou) People’s Procuratorate, Guangxi Zhuang Autonomous Region.

Defendant Wei [Biling], unemployed. Given 10-day administrative detention on June 30, 2012, by the Fengtai Precinct of the Beijing Public Security Bureau (PSB) for provoking a serious disturbance. On February 20, 2014, the defendant was placed under criminal detention by the Yufeng Precinct of the Liuzhou PSB on suspicion of provoking a serious disturbance. On March 6 of that year, the Yufeng District People’s Procuratorate approved the defendant’s arrest, which was carried out the next day by the Yufeng Precinct of the Liuzhou PSB. The defendant is currently detained in the Liuzhou No. 1 Detention Center.

Defense counsel is Luo [Hongfeng], lawyer with the Guangxi Yinli Law Firm.

On August 4, 2014, the Yufeng District People’s Procuratorate filed indictment Yu Proc. Crim. Indict. (2014) No. 488 with this court, charging defendant Wei [Biling] with provoking a serious disturbance. This court accepted the case on the same day in accordance with the decision on jurisdiction assignment issued by the Guangxi Zhuang Autonomous Region High People’s Court, formed a collegiate bench in accordance with the law, and held open hearings to try this case on August 26, 27, and 28, 2014. The Yufeng District People’s Procuratorate appointed prosecutors Li Jing, Qin Mengshu, and Huang Xuan to appear in court on behalf of the prosecution. Defendant Wei [Biling] and defense counsel Luo [Hongfeng] also appeared in court to participate in the proceedings. The trial has now concluded.

The Yufeng District People’s Procuratorate alleged that: Defendant Wei [Biling] did not accept the official reply and arrangements made by relevant departments of the people’s government in response to her petition demands and, in order to continue seeking resolution to her demands regarding medical expenses and housing placement, first went to Beijing in 2008 to begin a long period of abnormal petitioning activity. During this period, she gathered many others to participate in abnormal petitioning and took photographs and videos that were posted to overseas websites like “Human Rights Campaign in China” and “Boxun.” Of these, a video of her scattering leaflets at Tiananmen was viewed 6,111 times. Her actions created a serious harm to social and public order.

  1. On March 8, March 11, August 31, September 24, and October 24, 2012, Wei [Biling] went to the area around [Zhongnanhai] in Beijing to engage in abnormal petitioning and was given formal warnings in accordance with the law by the public security organ;
  2. At approximately 1 p.m. on November 8, 2012, Wei [Biling] scattered leaflets containing phrases like “Disabled Petitioner Given Mysterious Injection” and “evil Guangxi government” to passers-by at the [No. 938] bus stop on the west side of the [Liyuan] metro station in Tongzhou, Beijing, resulting in many people gathering to have a closer look. On this occasion, the public security organ seized 388 copies of the leaflets in accordance with the law;
  3. On the afternoon of October 2, 2013, Wei [Biling] took advantage of the many tourists visiting during the National Day holiday to scatter leaflets to people near the bus stop at the plaza north of the [National Performing Arts Center] at [2 West Changan Avenue], Beijing;
  4. At approximately 5 p.m. on October 1, 2013, Wei [Biling] took advantage of the many tourists visiting during the National Day holiday to distribute fliers to passers-by and shout on the sidewalk at the south entrance to [Nanchizi Street], Beijing;
  5. At approximately 1 p.m. on December 14, 2013, Wei [Biling] organized approximately 30 petitioners to hold banners and take photographs outside the petition office at the [redacted] Court on [redacted] Road, Chaoyang District, Beijing. After police officers intervened, Wei [Biling] organized petitioners to gather at the east side of [redacted] Court, blocking the road on [redacted] Street, to hold banners and take photos with the court as backdrop. These photos were then published on the overseas website “Boxun” under the title “Three Elderly Women Petitioners Locked up by Guangxi Public Security (video)”;
  6. At approximately 1 p.m. on December 15, 2013, Wei [Biling] organized approximately 40 petitioners to go to the open space on the west side of an island in the center of the lake inside [Tuanjiehu] Park at [redacted address], Chaoyang District, Beijing, where they held up banners and signs and took photographs that were subsequently uploaded to the overseas website “Boxun” for publication under the title “On Sunday, Beijing Petitioners Keep Demanding Officials Make Assets Public with Park Banner Blitz.” Afterwards, Wei [Biling] organized the petitioners to go to the green space located between the south side of [redacted] office building at [redacted addresss], Chaoyang District, Beijing, and the [redacted] overpass ([redacted] Bridge), where they held up banners and signs and took photographs with the CCTV Tower as backdrop, which were then published on the overseas website “Human Rights Campaign in China” under the title “The Lie of ‘Zero Petitioners’”;
  7. At approximately 1 p.m. on December 11, 2013, Wei [Biling] organized approximately 20 petitioners to gather on the sidewalk across from the north entrance to the [Guangxi] Hotel at 21 [redacted] Road, [Panjiayuan], Chaoyang District, Beijing, where they held banners and signs and took photographs that were published on the overseas website “Boxun” under the title “Guangxi Petitioners in Beijing Demonstrate outside [the Guangxi Hotel] (Beijing Representative Office).”

At approximately 6:30 p.m. on February 20, 2014, the public security organ took Wei [Biling] into custody in the stairwell at [redacted address], Tongzhou District, Beijing.

With respect to the aforementioned charges, prosecutors read aloud or presented the following evidence in court: the defendant’s confession, witness statements, records of identification, written evidence, audiovisual materials, and electronic data. The prosecution maintains that, in order to vent her grievances, defendant Wei used the pretext of petitioning and, finding excuses to make trouble, on multiple occasions gathered others to go to public places such as bus stops, parks, or theaters to stir up trouble and seriously damage social order. Her behavior violated Article 293(2) of the Criminal Law of the PRC, and she ought to be held criminally responsible for the crime of provoking a serious disturbance. Citing Article 172 of the Criminal Procedure Law of the PRC, the prosecution requested that this court deliver punishment in accordance with the law.

Defendant Wei [Biling] did not dispute the facts as alleged in charges 1–3 of the indictment but took issue with charges 5–7, claiming that she did not organize petitioners to go to [redacted] Court, [redacted] Park, or [redacted] Hotel to hold up banners and take photographs. She also denied posting or uploading photographs to overseas websites.

Defense counsel argued that the prosecution had insufficient evidence to prove that defendant Wei [Biling] organized petitioners to engage in illegal assembly or post or upload photos to overseas websites, and he also recommended a suspended sentence in light of Wei’s physical condition.

In the course of the trial, it was ascertained that:

On December 1, 1997, defendant Wei [Biling] was in a vehicular accident that left her paraplegic. After the accident left her disabled, defendant Wei [Biling] made multiple requests to the relevant authorities to resolve issues related to medical treatment and [housing] placement, in response to which the relevant authorities issued a formal reply and proposed a plan. Defendant Wei [Biling] did not accept the plan proposed by the relevant authorities and, starting in 2008, commenced a long period of abnormal petitioning activity in Beijing:

  1. At approximately 1 p.m. on November 8, 2012, Wei [Biling] shouted and scattered leaflets containing phrases like “Disabled Petitioner Given Mysterious Injection” to passers-by at the [No. 938] bus stop on the west side of the [Liyuan] metro station in Tongzhou District, Beijing, resulting in many people gathering to have a closer look and causing chaos at the scene. Afterwards, the public security organ seized 388 copies of her petitioning leaflet in accordance with the law.



    At trial, defendant Wei [Biling] did not dispute the aforementioned facts, which are confirmed by the following evidence that was cross-examined and confirmed in court:



    (1) “Report by the Office of the Guangxi Joint Conference on Handling Conspicuous Petitioning Problems and Mass Incidents on the Matter of [Steps Taken to] Resolve Wei [Biling]’s Petitioning Demands and Her Unlawful Petitioning Activity,” confirming that, beginning in 2008, Wei [Biling] had been engaged in long-term abnormal petitioning in Beijing in the name of problems associated with medical expenses and housing. In reply to Wei’s demands, the Guangxi Commission on Industry and Information Technology ultimately issued a response offering a final opinion on her petition and making arrangements to resolve the problems of medical treatment and cost-of-living allowance raised in her petition.



    (2) Documents and memoranda from the Liuzhou Bureau of Housing and Urban-Rural Development and the Yufeng District Government’s Bureau [for Letters and Visits] regarding resolution of the problem of living expenses, medical treatment, and housing for Wei [Biling] and her parents, confirming that the relevant authorities had already issued formal replies offering resolution to the demands raised by Wei [Biling].



    (3) A memorandum issued by the Yufeng District Bureau [for Letters and Visits], confirming that Wei [Biling] had previously in March, April, and October of 2013 been returned from Beijing to receive treatment by hospitals in Nanning and Liuzhou.



    (4) The statement of witness Shi [redacted], head of the Yufeng District Bureau [for Letters and Visits], confirming that Wei [Biling] began petitioning in 2007 as a result of a work accident but never went to petition at the Yufeng District Bureau [for Letters and Visits]. The relevant departments in the Yufeng District Government had held multiple meetings to discuss the demands raised by Wei [Biling], out of which they developed a plan that was subsequently approved by the Guangxi Commission [on Industry and Information Technology] to resolve her problems related to housing, allowances, and medical expenses but that Wei [Biling] did not accept the plan.



    (5) The statement of witness Zeng [redacted], deputy head of the [Rongjun] Sub-District Office in Yufeng District, confirming that Wei [Biling] began petitioning in 2007 as a result of a work accident. The relevant departments in the Yufeng District Government had held multiple meetings to discuss the demands raised by Wei [Biling], out of which they developed a plan that was subsequently approved by the Guangxi Commission [on Industry and Information Technology] to resolve her problems related to housing, allowances, and medical expenses but that Wei [Biling] did not accept the plan.



    (6) Statements from the [Rongjun] Police Station and [Rongxin] Residential Community, confirming that Wei [Biling] had been seeking medical treatment outside Liuzhou for a long time and had never resided in their jurisdiction.



    (7) The statement of Lai [redacted], mother of Wei [Biling], confirming that Wei [Biling] had been seeking medical treatment outside Liuzhou for a long time and only occasionally returned home to stay for a few days. Over the past two years, Wei [Biling] had continually been in Beijing to receive medical treatment.



    (8) A memorandum, record of arrest, and inventory of seized items issued by the Tongzhou Precinct of the Beijing PSB, confirming that, at approximately 1 p.m. on November 8, 2012, public security officers on patrol near the [No. 938] bus stop on the west side of the [Liyuan] metro station in Tongzhou, Beijing, saw Wei [Biling] scattering leaflets to passers-by. The officers stopped her and took her to the public security organ for investigation, where they confiscated 388 fliers, which included the phrases “Disabled Petitioner Given Mysterious Injection” and “evil Guangxi government.”



    (9) The statement of witness Ji [redacted], confirming that, at approximately 1 p.m. on November 8, 2012, he was passing a bus stop outside [Liyuan] metro station in Beijing when he saw a flier on the ground containing petitioning information and noticed a group of people gathered around watching.



    (10) The statement of witness Zhang [redacted], confirming that he is the director of [Liyuan] station on the [No. 8] line of the Beijing Metro and began working at that station in 2009. There are bus stops outside that station with considerable pedestrian traffic. Occasionally, there are incidents of people distributing leaflets that can result in people standing around looking and affect the ability of passengers to exit the station.



    (11) Statement of witness Zhang [redacted], confirming that she is the duty officer at [Liyuan] metro station and has worked there since 2010. That station is near the offices of [Liyuan] Town Government and exits onto bus stops, making for a great deal of pedestrian traffic. People frequently come to distribute illegal fliers and hold up banners, which causes the public to stop and look, blocks traffic, and disrupts the order at the bus stops.



    (12) Statement of witness Xu [redacted], administration manager at [Jingtong] International Co. in Beijing, confirming that work often requires him to take the [No. 8] line of the Beijing Metro to [Liyuan] station. There is a commercial center in [Liyuan] Town near the station and a great deal of pedestrian traffic. If someone distributes fliers, it will lead members of the public to stop and look, causing congestion and disrupting the order at the bus stop.

  2. On October 2, 2013, Wei [Biling] distributed petitioning materials near the bus stop at the plaza north of the [National Performing Arts Center] at [2 West Chang’an Avenue], Xicheng District, Beijing, seriously disrupting public safety order in the surrounding area.



    At trial, defendant Wei [Biling] did not dispute the aforementioned facts, which are confirmed by the following evidence that was cross-examined and confirmed in court:



    (1) A memorandum issued by the [National Performing Arts Center] Police Station of the Xicheng Precinct of the Beijing PSB, confirming that, on October 2, 2013, Wei [Biling] was placed under control by public security officers after distributing petitioning documents in front of the bus stop at the plaza north of the [National Performing Arts Center], disrupting public safety order in the surrounding area.



    (2) Statement issued by the [National Performing Arts Center] Security Department, confirming that, apart from serving the general public, the theater often serves national leaders from China and abroad and that the theater and the surrounding area are a key national security control area.



    (3) Statement of witness Zhao [redacted], a deputy squadron leader of the first squadron of the [National Performing Arts Center] Security Department confirming that the theater is located on the western end of [Changan] Avenue in the political heart of the nation. Foreign and domestic leaders often come to see performances there, and petitioners frequently come to scatter leaflets and hold up banners on [Changan] Avenue. In early October 2013, he heard that a petitioner was taken away by police after distributing fliers near the bus stop on [West Changan] Avenue at the north plaza of the theater. This kind of behavior has a detrimental effect on public order.



    (4) Statement of witness Zhang [redacted], confirming that he attended a performance at the [National Performing Arts Center]. Because the [National Performing Arts Center] is geographically located in a political and tourist center, there is a great deal of pedestrian traffic. He believes that distributing fliers in such an area will cause members of the public to stop and look, disrupting normal order.

  3. At approximately 5 p.m. on October 1, 2013, Wei [Biling] shouted and distributed petitioning materials to passers-by on the sidewalk at the southern entrance to [Nanchizi Street], Dongcheng District, Beijing, seriously affecting order on the scene.



    At trial, defendant Wei [Biling] did not dispute the aforementioned facts, which are confirmed by the following evidence that was cross-examined and confirmed in court:



    (1) Memorandum issued by the [Donghuamen] Police Station of the Dongcheng Precinct of the Beijing PSB, confirming that, at approximately 5 p.m. on October 1, 2013, police patrolling the eastern side of the southern entrance to [Nanchizi Street] in Dongcheng District, Beijing, saw Wei [Biling] on East [Changan] Avenue shouting and distributing petitioning materials to passers-by, seriously affecting the order on the scene. They stopped her and took her back to the public security organ for investigation.



    (2) Witness Zhao [redacted], confirming that he is a sanitation worker for a Beijing sub-station of the Beijing Dongcheng Sanitation Bureau who is responsible for cleaning the sidewalk along East [Changan] Avenue to the southern entrance to [Nanchizi] Street. During the National Day holiday in October 2013, he saw a woman in a wheelchair on the sidewalk at the intersection of East [Changan] Avenue and [Nanchizi] Street who was taken away by police responsible for handling petitioners.



    (3) Statement of witness Liu [redacted]’ou, confirming that she works in Beijing’s [Oriental] Plaza and that there are often petitioners on [Changan] Avenue distributing petitioning leaflets and holding up banners. Because [Changan] Avenue is a political center and there are many tourists, it can lead people to stop and look and block traffic, affecting public order.

At approximately 6:30 p.m. on February 20, 2014, public security officers took Wei [Biling] into custody in the stairwell at [redacted address], Tongzhou District, Beijing.

The following evidence was also submitted in this case:

  1. Documentary evidence



    1. A reported-case registration form, a jurisdiction-assignment decision, and a case-filing decision, confirming that the Yufeng Precinct of the Liuzhou PSB was assigned jurisdiction over this case on February 13, 2014, and filed the case for investigation the next day.
    2. Record of arrest, confirming that, while handling the case of Tang [redacted] and Qin [redacted] for gathering a crowd to disrupt public order, the Jianpan Criminal Investigation Unit of the Liuzhou PSB Criminal Investigation Division learned through questioning the suspects that a woman named Wei [Biling] always participated [in their protests] and took responsibility for taking photographs of the gatherings and sending them to overseas websites. Through investigation, it was discovered that Wei [Biling] was located in a residential neighborhood in Tongzhou District, Beijing, and a police force was organized to go to Beijing to take her into custody. At approximately 6:30 p.m. on February 20, 2014, investigators captured defendant Wei [Biling] in the stairwell at [redacted address], Tongzhou District, Beijing, and announced that she was being placed under criminal detention.

    3. An administrative penalty decision issued by the Fengtai Precinct of the Beijing PSB, confirming that defendant Wei [Biling] was placed under administrative detention for 10 days after provoking a serious disturbance on January 30, 2012, by destroying the mirror on a car belonging to another person without cause outside the west entrance of the [China Aerospace Science and Technology Corporation] General Hospital.

    4. Household registration documents, confirming the identity details of Wei [Biling].

    5. Written reprimands issued by the Xicheng Precinct of the Beijing PSB, confirming that Wei [Biling] was reprimanded by the public security organ in accordance with the law on March 8, March 11, August 31, September 24, and October 24, 2012, for engaging in abnormal petitioning activity around [Zhongnanhai] in Beijing.

    6. A memorandum issued by the [Fuyou Street] Police Station of the Xicheng Precinct of the Beijing PSB, confirming that Wei [Biling] went to engage in abnormal petitioning in the [Zhongnanhai] area a total of 46 times between April 30, 2008, and February 2, 2014.

    7. Housing registration documents issued by the Tongzhou District Housing Ownership Management Center, confirming that Wei [Biling] became the registered owner of Flat 1203, 2/F [redacted address], Tongzhou District, Beijing, on November 15, 2011.

  2. Witness statements



    1. Witness Wang [redacted], confirmed that he was the maintenance manager for [redacted] Property Company in Tongzhou District, Beijing, and that his company was responsible for property management of the flat owned by Wei [Biling].

    2. Witness Zou [redacted] confirmed that she lived in Flat 1202, next to the flat owned by Wei [Biling] in Beijing, that remodeling of Wei’s flat began around February 2011, and that Wei ordinarily resided there alone.

  3. Defendant’s confession and defense argument



    In her confession to the public security organ, defendant Wei [Biling] said that she had petitioned in Beijing over issues related to a work accident and housing arrangements; that she told petitioners to go to the [Guangxi] Hotel to hold up banners and signs; and that she used her mobile phone to take photographs, which she subsequently sent by QQ to Old Zhang, who wrote articles and sent information about other petitioners to the overseas website “Human Rights Campaign in China.” In her confession to prosecutors, defendant Wei [Biling] said that she had been continuously petitioning in Beijing since February 28, 2008, and had scattered leaflets on the streets on many occasions in order to achieve her petitioning goals, but she denied gathering and organizing people or taking photographs and uploading them to the Internet.

  4. Search records, inventory of seized items, confirming that the public security organ conducted a search of Wei [Biling’s] residence in [redacted] Town, Beijing, on February 20, 2014, seizing a computer, camera, mobile phone, USB recorder, memory cards, SIM cards, leaflets, lists of names, notebooks, and petitioning documents.

  5. Audiovisual materials and electronic data:



    1. A total of 22 optical discs, recording the public security investigators’ questioning of Wei [Biling] and He [redacted]; the search of Wei [Biling’s] Beijing residence; and the gathering of evidence around Beijing’s [Liyuan] metro station, [Tuanjiehu] Park, the greenbelt across from CCTV Tower, and the entrance to the [Guangxi] Hotel.
    2. A record of electronic evidence inspection, photographs, use records, and a list of stored items, confirming the public security organ’s reading; extraction; and storage of photographs, images, and QQ chat records during their inspection of defendant Wei [Biling’s] mobile phone and computer.

The aforementioned evidence is objective and authentic and was obtained in a lawful manner; [therefore,] this court can confirm it.

The facts of this case are clear and the evidence is reliable and sufficient; [therefore,] the defendant may be found guilty of the offense.

This court finds that defendant Wei [Biling] distributed petitioning materials and made a commotion in high-traffic public spaces such as subway stations, bus stops, and theaters, causing the public to stop and look and creating serious disorder at the scene; [therefore], her acts constitute the offense of provoking a serious disturbance. The prosecution’s allegation that Wei [Biling] committed the crime of provoking a serious disturbance is therefore valid. Because defendant Wei [Biling] truthfully admitted her crimes, a more lenient punishment may be imposed in accordance with the law.

As for the prosecution’s allegation that Wei [Biling] engaged in abnormal petitioning on multiple occasions between March 8 and October 24, 2012, this court has determined that these actions have already been handled through reprimand by the public security organ in accordance with the law and may not be punished again.

As for charges 5–7 of the prosecution’s indictment, this court has determined that though there is evidence proving that defendant Wei [Biling] organized petitioners to hold up banners and signs and take photos in front of state organs and symbolic places like [redacted] Court, the CCTV Tower, and the [Guangxi] Hotel and that she sent those photos to a third party to publish on overseas websites, there is no evidence proving that these actions caused serious disorder in a public place. Therefore, based on the principle that there can be no penalty without a law, this court cannot convict defendant Wei [Biling] of the crime of provoking a serious disturbance based on the facts alleged in the prosecution’s charges 5–7.

In summary, defendant Wei [Biling] provoked serious disturbances and undermined social order, thereby constituting the crime of provoking a serious disturbance, which is punishable by up to five years’ imprisonment, penal detention, or public surveillance. This case has been discussed by this court’s sentencing committee, which has issued a decision. In accordance with Articles 293(1)(4), 67(3), and 61 of the Criminal Law of the PRC, [this court] rules as follows:

For the crime of provoking a serious disturbance, defendant Wei [Biling] is sentenced to four years’ imprisonment.

(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 February 20, 2014, to February 19, 2018.)

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 Liuzhou Intermediate People’s Court. In the case of a written appeal, the original appellate petition must be submitted together with two copies.

Presiding Judge: Huang Yu People’s
Assessor: Liu Jian People’s
Assessor: Huang Fengqiong
October 11, 2014
Court Clerk: Chen Yingying


Chinese Source(原文):

广西壮族自治区柳州市鱼峰区人民法院

刑事判决书 (2014)鱼刑初字第445号

http://yj.gxfy.gov.cn

Click on icon to expand

韦某犯寻衅滋事罪一审刑事判决书

公诉机关广西壮族自治区柳州市鱼峰区人民检察院。

被告人韦某,无职业。曾因寻衅滋事,于2012年6月30日被北京市公安局丰台分局行政拘留十日。现因涉嫌犯寻衅滋事罪,于2014年2月20日被柳州市公安局鱼峰分局刑事拘留,同年3月6日经柳州市鱼峰区人民检察院批准逮捕,次日由柳州市公安局鱼峰分局执行逮捕。现羁押于柳州市第一看守所。

辩护人罗某,广西银荔律师事务所律师。

广西壮族自治区柳州市鱼峰区人民检察院以鱼检公刑诉(20某4)488号起诉书指控被告人韦某犯寻衅滋事罪,于20某4年8月4日向本院提起公诉。本院遵照广西壮族自治区高级人民法院指定管辖的决定于同日受理本案,并依法组成合议庭,于20某4年8月26、27、28日公开开庭审理了本案。广西壮族自治区柳州市鱼峰区人民检察院指派检察员李静、覃孟术、黄绚出庭支持公诉,被告人韦某及其辩护人罗某到庭参加诉讼。现已审理终结。

广西壮族自治区柳州市鱼峰区人民检察院指控:被告人韦某不接受人民政府有关部门对其信访诉求的批复和安置,而以要求解决其医疗费用、住房安置等问题为由,自2008年起长期到北京市进行非正常上访活动,并多次纠集多人参与非正常上访,拍摄照片、视频,发送网贴至“权利运动”、“博讯网”等境外网站上,其到天安门撒传单的相关视频网贴被点击观看6111次,其行为给社会公共秩序造成严重影响。

1、韦某于2012年3月8日、2012年3月11日、2012年8月31日、2012年9月24日、2012年10月24日到北京市某地区非正常上访,被公安机关依法予以训诫;

2、2012年11月8日13时许,韦某到北某州区某地铁站西侧某路公交车站旁,向过路行人抛撒印有“黑针残害信访人员、广西区害人政府等字样”的传单,造成群众围观,被公安机关依法扣押传单388份;

3、2013年10月2日下午,韦某到北京市某街某号某剧院大门北广场公交车站旁,趁国庆期间游人众多之机,向群众抛撒传单;

4、2013年10月1日17时许,韦某到北京市某街某大街南口人行道上,趁国庆期间游人众多之机,向路人抛撒传单并大声叫喊;

5、2013年12月14日某3时许,韦某组织访民约30人,到北京市朝阳区某路某法院申诉立案大厅信访接待站大门前进行拉横幅、拍照。在被公安民警劝阻后,韦某又组织访民到某法院东面某村某街东口,以法院为背景进行拉横幅、拍照,堵塞该路段,并以《三耄耋老妪上访被广西公安关押/视频》的标题,在境外“博讯网”网站上发布网贴;

6、2013年12月15日13时许,韦某组织访民约40人,到北京市朝阳区某路某公园内湖中心岛西侧空地,进行拉横幅、举牌照相,并以《星期天在京访民继续要求官员公布财产公园里猛打横幅》的标题,在境外“博讯网”网站上发布网贴。随后,韦某又组织访民到北京市朝阳区某路某号北京某中心写字楼南侧与某高架桥(某桥)之间的绿化带上,以央视大楼为背景进行拉横幅、举牌照相,并以《广西访民集体到央视大裤衩抗议“零上访”谎言》的标题,在境外“权利运动”网站上发布网贴;

7、2013年12月11日13时许,韦某组织访民约20人,到北京市朝阳区某园某路21号某大厦北面大门对面人行道上,进行拉横幅、举牌照相,并以《广西赴京访民到某大厦(驻京办)示威》的标题,在境外“博讯网”网站上发布网贴。

2014年2月20日18时30分许,公安机关在北京市通州区某镇某路某小镇某号楼某单元楼梯口处,将被告人韦某抓获归案。

对于上述指控,公诉人当庭宣读和出示了被告人供述、证人证言、辨认笔录、书证、视听资料、电子数据等证据。公诉机关认为,被告人韦某为了发泄情绪,以上访为由,借故生非,纠集他人多次到车站、公园、影剧院等公共场所起哄闹事,严重破坏社会秩序,其行为触犯了《中华人民共和国刑法》第二百九十三条第二款,应当以寻衅滋事罪追究其刑事责任。根据《中华人民共和国刑事诉讼法》第一百七十二条之规定,提请本院依法判处。

被告人韦某对起诉书指控的第1、2、3起犯罪事实无异议,对第5、6、7起犯罪事实有异议,辩称其没有组织访民到某法院、某公园和某大厦进行拉横幅及拍照,也没有在境外网站发帖及上传照片。

辩护人提出,公诉机关指控被告人韦某组织访民进行非法集会及在境外网站发帖和上传照片的证据不足,鉴于被告人韦某的身体状况,建议对其判处缓刑。

经审理查明:

被告人韦某于1997年12月1日遭遇车祸,造成高位截瘫。车祸致残后,被告人韦某多次向有关部门要求解决其医疗和安置问题,有关部门对其诉求进行了批复并提出了解决方案。被告人韦某不接受有关部门对其诉求的解决方案,自2008年起长期在北京进行非正常上访活动:

1、2012年11月8日13时许,韦某在北京市通州区某地区某地铁站西侧某路公交车站旁,向路人抛撒印有“黑针残害信访人”字样的上访传单并大声叫喊,造成群众围观,现场混乱,后公安机关依法扣押其上访传单388张。

上述事实,被告人韦某在庭审过程中无异议,并有以下经庭审质证、查实的证据证实:

(1)《自治区处理信访突出问题及群体性事件联席会议办公室关于韦某有关信访诉求解决及违法上访情况的报告》,证实韦某自2008年以来,以医疗费用、住房等问题为名,长期在北京非正常上访。对韦某提出的诉求,最终由自治区工业和信息化委员会答复,已做出信访终结意见,对其提出的医疗问题、生活费补助问题已予以安排解决。

(2)柳州市住房和城乡建设局、柳州市鱼峰区政府某局关于解决韦某父母生活、医疗、住房问题的文件、情况,证实有关部门已对韦某的诉求予以批复和解决。

(3)柳州市鱼峰区某局出具的说明,证实韦某曾于20某3年3月、4月、10月被从北京接回南宁、柳州医院治疗。

(4)证人史某证实,其系柳州市鱼峰区某局局长。韦某因工伤事故从2007年开始上访,但从未到鱼峰区某局上访。鱼峰政府有关部门对韦某的诉求,多次召开会议,并落实解决方案,经自治区某委答复,解决其住房、补助、医疗费用问题,但韦某不接受。

(5)证人曾某证实,其系鱼峰区某街道办事处副主任。韦某因工伤事故从2007年开始上访,鱼峰政府有关部门对韦某的诉求,多次召开会议,并落实解决方案,经自治区某委答复,解决其住房、补助、医疗费用问题,但韦某不接受。

(6)某派出所、某社区出具的证明,证实韦某因病长期在外治疗,未在其辖区居住。

(7)证人赖某证实,其系韦某母亲,韦某长期在外治病,只是偶尔回家住几日,近两年来,韦某一直在北京居住治疗。

(8)北京市公安局通州分局出具的情况说明、到案经过、扣押物品清单,证实2012年11月8日13时许,公安民警巡逻至北京通州区某地铁站西侧某路公交车站时,见韦某向过路行人抛撒传单,后被民警制止并带回公安机关调查,扣押传单388份,传单内容有:黑针残害信访人员、广西区害人政府等字样。

(9)证人季某证实,其于2012年11月8日13时许,路过北京某地铁站的公交车站旁边时,看到地上有传单,写的是上访情况,现场有一些人围观。

(10)证人张某证实,其系北京地铁某线某站站区长,2009年开始在该站工作。该站出口是公交车站,人流量较大,偶尔发生散发传单情况,容易造成围观,影响乘客出行。

(11)证人张某甲证实,其系某地铁站值班班长,2010年至今在某地铁站工作,该站紧邻某镇政府,出口是公交车站,人流量非常大,经常有人散发非法传单、打横幅,会引起群众围观、堵塞交通,扰乱车站秩序。

(12)证人徐某证实,其系北京某国际公司行政经理,因工作原因经常乘坐地铁某线到某站下,该站附近就是某镇的商业中心,人流量大,如果有人撒传单会引起群众围观,导致人群拥挤,扰乱车站秩序。

2、2013年10月2日,韦某在北京市西城区某街某号某剧院北广场公交车站前抛撒上访材料,严重影响周边治安秩序。

上述事实,被告人韦某在庭审过程中无异议,并有以下经庭审质证、查实的证据证实:

(1)北京市公安局西城分局某剧院派出所出具的情况说明,证实2013年10月2日,韦某在某剧院北广场公交车站前抛撒上访材料,影响周边治安秩序,后被公安控制。

(2)某剧院安保部出具的证明,证实该剧院除接待人民群众外,还经常接待中外国家领导人,剧院及周边为国家重点治安管控区域。

(3)证人赵某证实,其系某剧院安保部一中队副中队长。某剧院位于国家政治中心某街西边,经常有国内外领导人来看演出,时常有上访人员在某街抛撒传单、拉横幅。2013年10月初,其听说有上访人员在大剧院北广场某街公交车站附近抛撒传单,后被警察带走,行为给公共秩序造成影响。

(4)证人张某证实,其系到某剧院观看表演的观众,由于某剧院地理位置处于政治、旅游的中心地段,人流量大,其认为撒传单的行为会造成人群围观,影响正常秩序。

3、2013年10月1日17时许,韦某在北京市东城区某大街南口处,向路人抛撒上访材料并大声叫喊,严重影响现场秩序。

上述事实,被告人韦某在庭审过程中无异议,并有以下经庭审质证、查实的证据证实:

(1)北京市公安局东城分局某派出所出具的情况说明,证实2013年10月1日17时许,巡警在北京市东城区某南口东侧,见韦某在东某街向路人抛撒上访材料并大声叫喊,严重影响现场秩序,遂制止并带回公安机关审查。

(2)证人赵某证实,其系北京东城环卫局一所北京分站环卫工人,负责东某街至某街南口路段人行道的保洁工作。2013年10月国庆期间,其见到有一名坐轮椅的女子在东某街某街口人行道上,被处理上访人员的警察带走。

(3)证人刘某鸥证实,其在北京市某广场内上班,经常有上访人员在某街上撒上访传单、拉横幅,因某街是政治中心、游客量大,会造成围观而堵塞交通,影响公共秩序。

2014年2月20日18时30分许,公安人员在北京市通州区某镇某小镇小区某号某单元楼梯口处将被告人韦某抓获。

本案还有以下证据:

一、书证

1、受案登记表、指定管辖决定书、立案决定书,证实柳州市公安局鱼峰分局于2014年2月13日被指定管辖本案,该局于次日决定立案侦查。

2、到案经过,证实柳州市公安局刑事侦查支队箭盘责任区刑侦大队在办理唐某、秦某等人聚众扰乱公共秩序案中,经调查审讯,均反映有一叫韦某的女子每次都参与其中,并负责在聚众时用相机照相,之后发到境外网站上,经侦查,发现韦某身处北京市通州区一小区内,后组织警力赶赴北京进行抓捕。20某4年2月20日18时30分许,侦查人员在北京市通州区某镇某小镇小区某号某单元楼梯口处将被告人韦某抓获,并当场宣布刑事拘留。

3、北京市公安局丰台分局行政处罚决定书,证实被告人韦某于2012年1月30日在某总医院西门无故毁坏他人汽车反光镜寻衅滋事,被行政拘留10日。

4、户籍证明,证实韦某的身份情况。

5、北京市公安局西城分局训诫书,证实韦某于2012年3月8日、2012年3月11日、2012年8月31日、2012年9月24日、2012年10月24日,到北京某周边非正常上访被公安机关依法训诫。

6、北京市公安局西城分局府某派出所出具的工作说明,证实韦某自2008年4月30日至2014年2月2日期间,到某地区非正常上访共计46次。

7、北京市通州区房屋产权籍管理中心出具的房屋档案材料,证实北京市通州区某东里某号楼某2层某单元1203号房所有人为韦某,登记日为2011年11月15日。

二、证人证言

1、证人王某证实,其系北京市通州区某物业公司秩序维护部经理。其物业公司负责对韦某房屋的物业管理。

2、证人邹某证实,其系韦某北京住房的邻居,住1202号房。韦某房屋于2011年2月左右开始装修,平日一个人居住。

三、被告人供述和辩解

被告人韦某在公安机关供述,其因工伤和改制安置问题在北京上访,其叫访民到某大厦拉横幅举牌子,并用其手机进行拍摄,后通过QQ发送给老张,撰写文章以及将其他访民情况上传至境外“权利运动”网站。被告人韦某在检察机关供述,其从2008年2月28日起一直在北京上访,多次在大街上抛撒传单以达到上访目的,但否认纠集、组织人员以及拍照传送上网的事实。

四、搜查笔录、扣押清单,证实公安机关于2014年2月20日搜查韦某位于北京某镇的住处,扣押电脑、相机、手机、录音机U盘、储存卡、手机卡、传单、名单、笔记本、上访资料等物品。

视听资料、电子数据

1、光碟22张,证实公安人员讯问被告人韦某、何某的过程,搜查被告人韦某北京住处的过程,以及在北京市某地铁站附近、北京市某公园、北京市央视大楼对面路边绿化带、北京市某大厦门前取证的过程。

2、电子证据检查笔录、照片、使用记录、封存清单,证实公安机关对查获的被告人韦某手机、电脑内的照片、图片、QQ聊天记录进行读取、提取和封存。

上述证据,内容客观真实,来源合法,本院予以确认。

本案事实清楚,证据确实、充分,足以认定。

本院认为,被告人韦某在地铁站、公交车站、影剧院等人流量大的公共场所抛撒上访材料、起哄闹事,引起群众围观,造成现场秩序严重混乱,其行为构成寻衅滋事罪。公诉机关指控被告人韦某犯寻衅滋事罪成立。被告人韦某如实供述自己的罪行,依法可以从轻处罚。关于公诉机关对被告人韦某自2012年3月8日至2012年10月24日多次到某地区非正常上访的指控,经查,该行为已被公安机关依法予以训诫,不应再被处理。对于公诉机关指控的第5、6、7起事实,经查,虽然有证据证实被告人韦某组织访民以某法院、央视大楼、某大厦等国家机关及标志性建筑为背景,进行拉横幅举牌照相,并将照片发送给他人上传至境外网站,但没有证据证实该行为已造成公共场所秩序严重混乱,根据罪刑法定原则,不能认定公诉机关指控被告人韦某的第5、6、7起事实中的行为构成寻衅滋事罪。综上所述,被告人韦某因其寻衅滋事行为,破坏了社会秩序,构成寻衅滋事罪,依法应处五年以下有期徒刑、拘役或者管制。本案经本院审判委员会讨论决定。依照《中华人民共和国刑法》第二百九十三条第一款第(四)项、第六十七条第三款、第六十一条之规定,判决如下:

被告人韦某犯寻衅滋事罪,判处有期徒刑四年。

(刑期从判决执行之日起计算。判决执行以前先行羁押的,羁押一日折抵刑期一日,即自2014年2月20日起至2018年2月19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广西壮族自治区柳州市中级人民法院提出上诉。书面上诉的,应当提交上诉状正本一份,副本二份。

审判长   黄宇
人民陪审员   刘健
人民陪审员   黄凤琼
二〇一四年十月十一日
书记员 陈莹莹
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