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 Also mentioned are internal factors, such as an insufficient number of prison police, a shortage of funds, and outdated facilities.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
Collapse

Tuesday, February 10, 2015

Behind the Rarity of China's Acquittals


Image credit: 163.com

Acquittals are rare in China. The most recent China Law Yearbook, an official compendium, states that for every 10,000 people tried in criminal courts in 2013, just seven were acquitted. Although the number of people found not guilty rose incrementally in 2013, it plummeted from 6,617 to 727 per year between 2000 and 2012. Meanwhile the number of people whose cases were adjudicated trended upward, causing acquittals to account for just 0.07 percent of completed trials in 2013, falling from 1.02 percent in 2000. In comparison to China, Japan and Russia acquit less than 1 percent of defendants, while the Department of Justice reports that since 2001, the United States has convicted more than 90 percent of defendants each year.

Adjudications and acquittals for defendants in criminal trials, 2000-2013
Year Adjudications Acquittals % Acquitted
2000 648725* 6617 1.02
2001 740000* 6597 0.89
2002 706707 4935 0.70
2003 747096 4835 0.65
2004 767951 2292 0.30
2005 844717 2162 0.26
2006 890755 1713 0.19
2007 933156 1417 0.15
2008 1008677 1373 0.14
2009 997872 1206 0.12
2010 1007419 999 0.10
2011 1051638 891 0.08
2012 1174133 727 0.06
2013 1158609 825 0.07
* Dui Hua estimates
Sources: Dui Hua, China Law Yearbook

China Law Yearbook does not typically disaggregate acquittal data by crime, but in select years it has provided the number of people found not guilty in trials for endangering state security (ESS) and dereliction of military duty. (Dui Hua research indicates that ESS accounts for the vast majority of cases when these two crime categories are combined.) In 2002, only one of the 366 people tried in these types of cases was acquitted, while in 2004, there were five in 336. None of the 730 individuals tried for ESS with records in Dui Hua’s Political Prisoner Database was found not guilty.

Indirectly addressing the paucity of acquittals as part of judicial reform efforts, the Central Politico-Legal Committee (PLC) announced its decision on January 20, 2015, to remove indictment and conviction rates from the list of performance indicators applied to judicial officials. While this should reduce pressure to convict, the number of not-guilty verdicts will continue to be influenced by efforts to avoid the payment of state compensation, marginalize defense attorneys, restrict judicial independence, and maintain stability, among others.

Procuratorates

Chinese prosecutors tend to explain low acquittal rates as an indicator of good work. In 2012, a Beijing prosecutor told Legal Daily that a high level of “judicial precision” allowed good prosecutors to “filter out” cases likely to result in acquittal so that the majority of people standing trial were “guilty.” A Guangdong High People’s Court judge reiterated this sentiment by telling the paper that, “The reduction in acquittals, to a very large extent, is a manifestation of increasing awareness about evidence and law in our investigative and prosecutorial units.”

For prosecutors, acquittals signify failure to demonstrate guilt, and at least prior to the implementation of the PLC decision, they have a direct negative impact on performance evaluations. In 2005, the Supreme People’s Procuratorate (SPP) issued evaluation measures stating that acquittal rates should not exceed 0.2 percent. Local procuratorates followed suit by putting forth “zero acquittals” as the ultimate goal in their annual work reports. Among various performance indicators, the acquittal rate was the most important, legal scholar Yuan Yicheng told Legal Daily in 2012.

Rather than risk acquittal, it is an unspoken rule that prosecutors decide to withdraw indictments. The procuratorate may formally drop the charges against a criminal suspect or remand a case for supplementary investigation, both with the approval of the court. If additional investigation is conducted, a suspect may be unable to fully regain their personal freedom during that time. By deciding not to pursue charges, prosecutors not only reduce acquittals but also dodge legal repercussions, since people without not-guilty verdicts face barriers to filing complaints against or winning compensation from government bureaus that wrongfully deprive them of their personal freedom.

Called a “black-box operation” by Xiaoxiang Morning Post, indictment withdrawals are not covered by the Criminal Procedure Law. Instead they are outlined in judicial interpretations and opinions issued by the SPP and Supreme People’s Court (SPC). After conducting a study on the use of the practice between 2003 and 2005, the SPP reported finding numerous problems, according to legal scholar Gao Tong. These problems included prosecutors opting to withdraw indictments in instances where they feared the defendant would be found not guilty and laxity in carrying out legal oversight. The SPP’s 2005 evaluation measures state that decisions not to pursue charges should occur in less than 0.8 percent of cases, four times the target for acquittals.

Indictment withdrawals are not uncommon in political cases. In Gansu, Chen Pingfu (陈平福) was placed under residential surveillance in June 2012 for writing dozens of blog posts about the social injustices he experienced as a laid-off teacher, petitioner, and street performer. Chen was formally arrested for inciting subversion in August, but following an outpouring of public support for his release, his indictment was withdrawn on December 14, 2012. Chen’s defense lawyer claimed that he never saw the prosecutors’ application for withdrawal and was not informed of the basis for withdrawing the indictment. In a separate case, the Beijing People’s Procuratorate decided not to pursue charges against Wang Gongquan (王功权) on January 21, 2015. The prominent businessman was a cofounder, along with Xu Zhiyong (许志永), of the New Citizens’ Movement, which advocates for education for migrant children and transparency in the assets of government officials. The withdrawal followed a televised confession Wang made in December 2013 and his release on bail in January 2014.

Courts

Prosecutors issue indictments, but it is the courts that hand down convictions. Because convictions are the primary basis upon which their promotions are decided, “prosecutors need to run daily to the courts to beg [judges] not to hand down acquittals,” according to a mid-ranking prosecutor cited in an article published in Contemporary Law Review by legal scholar Zhu Tonghui. Painting a picture of insufficient checks and balances within the judiciary, Zhu notes that judges tend to approve most indictment withdrawals in part because they are aware of the adverse impact acquittals have on prosecutors. Courts and procuratorates tend to work together to rule out the possibility of not-guilty verdicts, according to an article published in the Journal of Hubei Correspondence University in 2014.

Like prosecutors, judges see convictions as a means to career advancement, but they also see them as tools for maintaining stability. Judges worry that finding defendants not guilty causes an uptick in petitioning because victims’ family members may feel that the judiciary failed to deliver justice and punish the real culprits, the SPC Research Office wrote in 2014. Acquittals in appellate trials are equally undesirable because higher-level courts do not want the public to view lower-court verdicts as “wrongful,” said Yuan Yicheng. Gao Tong says that acquittals often spark fierce public sentiments, where judges are denounced as “corrupt” or “abusing power.”

Some legal experts believe that courts reconcile unfounded guilty verdicts by issuing light or suspended sentences or exempting defendants from criminal punishment. China Law Yearbook shows that the percentage of convicted persons who were exempt from criminal punishment remained relatively stable around 1.67 percent from 2003 through 2013, however, the number of people receiving suspended sentences increased annually, going from 18.47 percent in 2003 to 30.78 percent in 2013. Critics argue that a portion of these exemptions and suspensions represent people who should have been acquitted.

Defense lawyers

Within the Chinese criminal justice system, defendants have little support. In 2012, former All China Lawyers Association president Yu Ning publicly stated that defense lawyers participated in fewer than 30 percent of all criminal cases nationwide with participation as low as 12 percent in some provinces. Defense lawyers face political and professional retaliation for performing their duties, and are often barred from routine activities such as meeting with their clients and obtaining case documents from police, prosecutors, and judges. The challenges facing defense lawyers are widely documented.

Stability maintenance

The decision of guilt or innocence is beyond the courts when the PLC intervenes in cases deemed to have far-reaching consequences for social or political stability. In these “stability maintenance” interventions, the PLC encourages coordination between courts, procuratorates, and police. China Youth Daily reported on this type of intervention in January 2014. In this instance, the local PLC in Gushi County, Henan Province, issued a “red-head document” requesting that the county court convict Wu Yunqiang (吴运强) on the grounds that an acquittal would lead to “negative social consequences” and “render local land-administration regulations useless.” The county accused Wu of illegal land use in early 2009 after he sold his kindergarten in Zhongshan, Guangdong Province. Wu was convicted and given a suspended sentence in November 2011, but two years later the Xinyang Intermediate People’s Court overturned the verdict and ordered a retrial due to insufficient evidence. The procuratorate then formally withdrew the indictment in December 2013. However, due in large part to PLC intervention, Wu was re-indicted. In October 2014 he was sentenced to three years in prison for illegal transfer of land-use rights despite the fact that the procuratorate reportedly failed to present new evidence to substantiate his guilt.

Policies to manipulate verdicts based upon their social and political outcome undermine judicial independence and justice itself. During a speech at the National Prosecutors’ College in August 2014, SPP Procurator-General Cao Jianming acknowledged the prevention of wrongful convictions as the biggest challenge for prosecutors and urged judicial officials to hold on to the presumption of innocence. Coordinated or not, as wrongful convictions continue to be exposed by Chinese news media, it is increasingly difficult to view China’s acquittal rate as simply good work.

Thursday, December 4, 2014

Riding the Rails: Political Investigations by China’s Railway Police


Guangzhou Railway Police patrolling station, 2011. Image credit: gdwh.com.cn.

China’s railway police are tasked with preventing and handling criminal activity and maintaining safety and order in train stations and on trains. They also cooperate with state security to investigate and detain criminal suspects in political cases. Railroads move people, goods, and ideas, and over the past few decades the focus of political investigations among railway police has shifted from counterrevolution to religion to mass incidents. By reviewing official archives, Dui Hua has uncovered scores of political and religious cases handled by railway police, prosecutors, and courts from 1980 to present.

1980s

“The railway bureaus must not be overlooked as an important sub-battleground [in the fight] against hostile forces.” — Liaoning Province Railway Police Records

During the 1980s, railway police across the country worked closely with state security forces to “safeguard national security, socialism, and the smooth implementation of the Four Modernizations.” Six major areas of political investigation were: (1) espionage and other counterrevolutionary cases; (2) railroad sabotage; (3) stealing state secrets and espionage at bus and train stations; (4) people potentially manipulated by enemies and suspected of counterrevolution; (5) the enemy’s situation, prevention of counterrevolutionary sabotage, and strengthening investigative services; and (6) fighting the enemy at ports and borders. [*]  

The political cases most commonly documented by railway police were counterrevolutionary propaganda and incitement. Official records routinely state that counterrevolutionary propaganda stirs resentment against the people’s dictatorship and tarnishes China’s international image. Whether they criticized the Chinese Communist Party (CCP), local cadres, the abandonment of pre-reform socialism, agricultural taxes, the one-child policy, or simply presented personal grievances, “reactionary” slogans, letters, leaflets, and poems were deemed to have far-reaching, negative consequences. In train stations—high-traffic areas with thousands of idling people, propaganda has a huge potential audience.

Travelers were not the only potential recipients or disseminators of so-called counterrevolutionary rhetoric, and railway police worked to ensure that all railway employees were politically correct and loyal to the CCP. Of particular concern was Taiwanese infiltration of the railways, which were closely linked to economic development. Railway police used surveillance networks to ensure that railway employees were not affected by the “poisonous thoughts of psychological warfare,” i.e., Taiwanese propaganda in the form of radio broadcasts and “reactionary” materials making it across the strait in balloons and floating carriers. In 1983, one of six counterrevolution cases filed by railway police in Shenyang, Liaoning Province, involved a railway electrician who allegedly wrote in his notebook that he hoped Chiang Kai-shek would retake the mainland and kill a few communists. In a separate counterrevolutionary case the same year, a train station employee in Hebei’s Shanhai Pass allegedly spread rumors that “viciously attacked Deng Xiaoping.”

In the northeastern provinces, railway bureaus were more vigilant about secret agents from the Soviet Union than Taiwan. In the two years after China began research to counter Soviet espionage in 1979, Harbin railway police examined 41 suspects. Among them was Ma Wenzhong (马文忠) a Hui man originally from Gansu Province. Harbin Public Security Records state that Ma was paid by Soviet agents to collect political, military, and economic intelligence. He was detained in Mudanjiang Train Station and sentenced to 12 years in prison by the Harbin Railway Transport Intermediate People’s Court in December 1983.

1989 Protests

In 1989, one major responsibility undertaken by railway bureaus was to help contain the nationwide pro-democracy protests that first began in Beijing on April 15. On May 25, the State Council issued an emergency notice to the Ministry of Public Security and Ministry of Railways condemning the negative social impact and economic losses caused by students who “barged into train stations and forcefully took trains to Beijing.” All railway bureaus were urged to take concrete measures to prevent students from traveling to Beijing by train.

Railway police in Kunming, Yunnan Province, “dissuaded” 683 students from traveling north to Beijing and confiscated 558 copies of reactionary propaganda. In Harbin, the capital of Heilongjiang Province, railway police tracked down a total 284 key suspects who joined the pro-democracy protests and two “ringleaders who created disturbances in Jilin Province and Nanjing” and confiscated 48 leaflets and eight notebooks with reactionary content. Elsewhere, railway police dispersed protesters laying down on tracks; removed barricades; and searched trains, guesthouses, and hotels along the railroads.

Dui Hua’s Political Prisoner Database (PPDB) has information on three individuals who were tried by railway courts for inciting demonstrators to block trains. In Shanghai, Gao Guihong (高贵鸿) and Wang Xia (王霞) were sentenced to five and four years in prison, respectively, for gathering a crowd to disrupt traffic or a public place. In Hunan, Huang Junjie (黄俊杰) was convicted of hooliganism but exempted from criminal punishment due to his advanced age by the Changsha Railway Transport Court in January 1991. Huang was 69 years old in 1989.

1990s

Despite a significant drop in the number of cases of counterrevolutionary sabotage, propaganda, and incitement, the 1990s saw a surge in “anti-socialist and anti-CCP” activities “disguised” as religious outreach. — Harbin Railway Public Security Records

On July 16, 1994, several church members staying at a guesthouse owned by the Harbin railway bureau were found to have gathered 1,000 members of New Testament Church to prepare for the “ascension to heaven.” In November 1995, the State Council labeled New Testament Church a cult. According to official records, the church aimed to “shatter the dysnomy of the Communist Party.”

Between 1995 and 1998, records from Xinjiang railway police reported crackdowns not only on “illegal mosques,” but also on Guanyin Famen; Bloody Holy Spirit; and house church gatherings in Urumqi, Turpan Korla City, and Yu’ergou Village. In 1999, Urumqi railway police intercepted 56 Falun Gong practitioners at train stations and confiscated 1,342 copies of Falun Gong propaganda and 980 copies of audio-video materials.

Cases involving secret political associations are occasionally mentioned in railway police records. In 1992, Yu Jie (于杰), an electrician at Jiamusi Train Station in Heilongjiang Province, was arrested for his involvement in the China Democracy Party. Yu joined people from Beijing and Liaoning Province in designing a new national flag and “conspiring to build an army to overthrow the CCP.” After reading Yu’s private letters, Harbin railway police concluded that Yu and others were in collusion with capitalism and “conspired” to seek help from the West.

In the south, surveillance of “reactionary” individuals and publications connected to Hong Kong continued even after the British returned the territory to China in July 1997. Guangdong railway police investigated Zhang Xuguang (张旭光), a cargo officer at Longchuan Train Station, after he accepted an invitation to meet with members of Tsung Tsin Association, a “pro-rightist” Hakka association based in Hong Kong, in September 1997. Between 1994 and 1999, the Huizhou Railway Public Security Department confiscated 1,637 copies of Hong Kong newspaper Apple Daily and East Week magazine, 89 copies of One Magazine, and more than 50 copies of banned political books.

2000s-present

Railway police often list the suppression of illegal religious activities among their top achievements. In 2010, railway police in Nanchang, Jiangxi Province, tracked down 1,310 members of 48 cults and “a large number of underground religious groups” along the Xiangtang-Putian Railway. In 2012, railway police in Zhengzhou, Henan Province, confiscated more than 26,200 copies of “cult” propaganda. Some of the material discussed qigong and religious sects such as Almighty God, Zhonggong and the Amitabha Society.

Falun Gong is the religious group most frequently discussed in railway bureau records. In 2006 alone, Guangxi’s Liuzhou railway police investigated a total of 114 Falun Gong propaganda and incitement cases and confiscated 2,425 copies of illegal publications.

The PPDB has information on 18 Falun Gong practitioners who were convicted by railway courts and sentenced to up to six years’ imprisonment. At least a third of these individuals were railway bureau employees in Heilongjiang and Guangxi, while others were passengers in possession of Falun Gong publications while at train stations or traveling by train.

Amid a rising number of mass incidents nationwide, railway police constitute part of the stability-maintenance machine meant to curb potential unrest. In the wake of the deadly high-speed rail accident in Wenzhou on July 23, 2011, Nanchang railway police detained Zhang Qijin (张琦金) and Lin Tao (林涛) for disseminating social media posts in an effort to organize a mass vigil outside Xiamen Train Station. The vigil aimed to further demands that authorities investigate the cause of the accident.


Xuzhou Railway Police check "important travelers" in 2011. Image credit: news.cnr.cn.

Internally, railway police add names to the list of “targeted people” who should be kept under close watch and identify railway bureau employees who might “illegally petition” or protest low wages, layoffs, or poor retirement benefits. In 2000, Zhengzhou railway police resolved 63 incidents of collective petitioning involving 1,282 railway bureau staff and their family members. In 2005, the number of these incidents and the people involved jumped more than six-fold to 419 and nearly threefold to 3,513, respectively. Fifty of the cases in 2005 were mass incidents, including those plotted but not carried out, involving “attacks on the railroad and obstruction of railway transit.”

In close collaboration with local governments and security contractors, railway police intercept tens of thousands of petitioners who are not railway employees, with most of them taken into custody during “sensitive” periods such as the two meetings (i.e., the National People’s Congress and Chinese People’s Political Consultative Conference in March) and June Fourth. In the four-year period from 2008 to 2011, Zhengzhou railway police prevented more than 3,000 petitioners from traveling to Beijing. Further south in Nanning, Guangxi Province, more than 3,300 petitioners were intercepted on their way to Beijing in the seven years between 2004 and 2010. In both places the highest number of annual interceptions was in 2009, which marked the 60th anniversary of the People’s Republic of China. The most recent petitioning statistic Dui Hua uncovered was from 2012, when Xi Jinping replaced Hu Jintao as general secretary during the 18th National People’s Congress. That year a disaggregated total of 7,799 individuals attempting to petition either provincial or central governments were intercepted or inspected by Zhengzhou railway police.

Interception of Petitioners En Route to Beijing by Local Railway Police
Zhengzhou, Henan Nanning, Guangxi
Year No. of petitions No. of petitioners No. of petitions No. of petitioners
2004 - - 38 632
2005 - - 43 414
2006 - - 54 296
2007
2008 46 >380 105 507
2009 137 1,431 103 695
2010 55 579 60 379
2011 69 706 - -
Sources: Dui Hua, Zhengzhou Railway Bureau Yearbook, Nanning Railway Bureau Yearbook

Railway police require ethnic minorities to bear the brunt of more stringent security protocols due to ethnic unrest. In the wake of the Lhasa Riots in 2008, several locales in eastern coastal province of Zhejiang issued a passenger, freight, and delivery safety opinion requesting all transport units to thoroughly check the identity and belongings of each Tibetan, Uyghur, foreign national, and other suspicious persons. In the same year, Zhengzhou railway police singled out 5,422 Uyghur and 608 Tibetan passengers for examination.

While its focus has shifted over the past few decades in response to new challenges to the CCP’s grip on power, political investigation by railway police has continued to be an important part of stability maintenance. From its origins in fighting overseas forces, political work along the rails has come to tackle the homegrown protests and dissent of rights-conscious Chinese citizens.  


* These areas were identified by Luoyang Railway Public Security in Henan Province for the period from 1986 through 1990 and appear consistent with work carried out by railway police nationwide during that time. back to top ↑