Gansu Qingyang Intermediate People's Court. Photo credit: gscn.com.cn
In February 2011, after protests swept through North Africa and the Middle East in what became known as the “Arab Spring,” Chinese security officials initiated a vigorous and widespread crackdown on potential sources of perceived political instability. This crackdown involved secret detention of human rights lawyers, arrest of Internet users who posted information about China’s elusive “Jasmine Revolution,” and heightened monitoring of social media.
Though not taken into police custody until June 2012, Zhang Shaofeng’s conviction on charges of “inciting subversion” perhaps ought to be seen in the context of the anti-Jasmine crackdown. Little is known about Zhang, in part because the court document that Dui Hua recently discovered excludes all of his personal details. Possibly a student, Zhang lived in Qingyang in the northwestern province of Gansu and, like many young people, appears to have been an active user of social networking sites.
Prosecutors charged that Zhang used these sites to form illegal political organizations that spread anti-government propaganda. They also charged him with using email to join the China Democracy Party and disseminating articles that advocate violent revolution. For his part, Zhang contended that he had no intention of overthrowing the political order and participated in these activities out of a belief that it would help him seek political asylum in the United States.
Ultimately, the Qingyang Intermediate People’s Court gave Zhang a relatively lenient 18-month prison sentence on account of his cooperative and remorseful attitude during investigation and trial. As is routine in verdicts involving the crime of “inciting subversion,” the court dismissed the argument of Zhang’s lawyers that his activities fell under the scope of constitutionally protected free speech by noting that this freedom is limited by constitutional obligations that prohibit the violation of national security.
The court also clearly explains that for the purposes of assessing culpability it is only necessary that an act of expression have the potential to incite others to commit subversion, regardless of whether subversion actually results. Accordingly, whether Zhang’s political postings were well-received or widely disseminated is not discussed. Instead, the court makes an effort to justify the potential for social harm caused by Internet speech in a very general sense. This contrasts with more widely known cases of “inciting subversion,” such as those involving Hu Jia or Liu Xiaobo, in which the courts tally recipients or viewers. This is likely because prosecutors were not attempting to prove that Zhang’s crimes were especially serious, perhaps because they were already prepared to give relatively lenient punishment.
Qingyang Intermediate People’s Court of Gansu Province Criminal Verdict: click to expand
Qingyang Intermediate People’s Court of Gansu Province
(2012) Qingyang Int. Crim. 1st Inst. No. 35
The prosecuting organ is the Qingyang People’s Procuratorate of Gansu Province [hereafter, “Qingyang People’s Procuratorate”].
Defendant Zhang Shaofeng. [Personal details have been omitted in the electronic version of this verdict—Ed.] Placed under criminal detention by the Qingyang Public Security Bureau on June 13, 2012, on suspicion of inciting subversion and formally arrested on July 19 of the same year.
Defense counsel is Ma Hongbing, lawyer with the Gansu Beidou Law Firm.
Defense counsel is Yan Lin, lawyer with the Gansu Beidou Law Firm.
On October 9, 2012, the Qingyang People’s Procuratorate filed indictment Qingyang Proc. Crim. Indict. (2012) No. 25 with this court, charging defendant Zhang Shaofeng in a case of inciting subversion. This court formed a collegiate bench in accordance with the law and held an open hearing to try this case on November 1, 2012. The Qingyang People’s Procuratorate appointed procurator Li Haiying to appear in court on behalf of the prosecution. Defendant Zhang Shaofeng and his defense counsel Ma Hongbing and Yan Lin all appeared in court to participate in the proceedings. The trial has now concluded.
The Qingyang People’s Procuratorate charged that, beginning in March 2011, defendant Zhang Shaofeng used screen names such as “MZ Xixiang,” “Xixiang Xianzhi,” “MZ Xixiang Sixty-Four,” “MZ China Sixty-Four,” “MZ Xixiang Yasheng,” “Zhang Xiaofeng,” and “MZ Labi Xixiang” (all with the QQ [user] number 630004145) and employed desktop, laptop, and tablet computers and mobile phones to go online in Xifeng District at the “Sunshine Road Bar,” “Pterodactyl Internet Bar,” and “Starry Sky Network” Internet bars and his dormitory to establish the illegal organizations “Chinese People’s Democratic League” [hereafter, CPDL] and “National Freemasons”; to join the hostile organization “China Democracy Party”; and to wantonly carry out reactionary propaganda activities, viciously attack the Communist Party of China [hereafter, CPC] and the government of the People’s Republic of China [hereafter, PRC], and [express] extreme dissatisfaction with the socialist system. In support of these charges, the prosecution produced the following main evidence in court: defendant Zhang Shaofeng’s confession; statements of witnesses Zhang Qingxu, Ma Jizhong, and Zhang Yaozong; documentary evidence and a record of remote inspection and investigation; electronic data; and a certification report. [The prosecution] maintains that defendant Zhang Shaofeng went online to join hostile organizations, participated in the formation of illegal organizations, expressed reactionary speech, and incited subversion of state power and overthrow of the socialist system; [therefore,] in accordance with Article 105.2 of the Criminal Law of the PRC, he should be held criminally responsible for the crime of inciting subversion.
In his defense, defendant Zhang Shaofeng stated that he had only been asked to draft a constitution for the CPDL and did not have any major role in its establishment or participate in the integration or formation of a new CPDL; that the “National Freemasons” was only a QQ group that could not be called an “illegal organization” and that [he had] disbanded the group in December 2011; that his only motivation for joining the China Democracy Party was to be able to apply for political asylum and emigrate to the United States and that he never participated in any of that organization’s activities; that he disseminated articles online mainly to propagate Western democratic ideas in order to pressure the government to carry out political reform and that he had no intention of subverting the government. Zhang Shaofeng reflected in court that he lacked real-life understanding, had been influenced by the overseas anti-China media’s negative news reports, and had a mistaken understanding of Western democratic system, which led him to commit offenses. He expressed regret in court and requested lenient punishment.
[According to] the defense statement of defense lawyers Ma Hongbing and Yan Lin: Zhang Shaofeng joined illegal organizations and published articles purely out of a wish to emigrate to the United States and had no subjective intent to incite subversion of state power or overthrow the socialist system. Objectively, Zhang Shaofeng never committed any acts of inciting subversion of state power or overthrow of the socialist system, and the articles he published were not created or edited by him and did not represent his own subjective thinking or will. Moreover, the content of these articles mostly propagated Western democratic thinking and expressions of displeasure with the current social situation, which falls under the scope of freedom of expression provided in China’s constitution. Merely relying on his expression and his own volition, it would be impossible to violate the state’s political power and the socialist system. Therefore, Zhang Shaofeng’s actions do not meet the constitutive criteria for the offense of inciting subversion of state power. The evidence for the indictment’s charges against Zhang Shaofeng is lacking and flawed. Based on Zhang Shaofeng’s ordinary behavior and his behavior in custody, his overall [degree of] malice is minor and his actions did not have clear harmful consequences for society; [therefore], it is requested that his punishment be mitigated.
It was determined in the course of the trial that: Beginning in March 2011, defendant Zhang Shaofeng used screen names such as “MZ Xixiang,” “Xixiang Xianzhi,” “MZ Xixiang Sixty-Four,” “MZ China Sixty-Four,” “MZ Xixiang Yasheng,” “Zhang Xiaofeng,” and “MZ Labi Xixiang” (all with the QQ [user] number 630004145) and employed desktop, laptop, and tablet computers and mobile phones to go online in Xifeng District at the “Sunshine Road Bar,” “Pterodactyl Internet Bar,” and “Starry Sky Network” Internet bars and his dormitory to participate in the formation of the illegal organizations CPDL and “National Freemasons;” to join the hostile organization “China Democracy Party”; and to wantonly publish articles of reactionary propaganda, viciously attack the CPC and the government of the PRC, and [express] extreme unhappiness with the socialist system.
1. Actively participated in the organization and establishment of the illegal organizations “China’s CPDL” and “National Freemasons” and participated in the formation of another illegal organization, the new “China’s CPDL.” In March 2011, on the invitation of “Zhao Gang” (basic circumstances unclear), chairman of the illegal organization “China’s CPDL,” defendant Zhang Shaofeng joined [that organization], actively participated in [that organization’s] formation, and personally drafted [its] Constitution. In early May 2011, Zhang Shaofeng established the illegal organization “National Freemasons” and established a “National Freemasons” [QQ] group, periodically advocating Western democratic ideas to members of the group and sending emails containing reactionary propaganda such as “Freemasons Weekly,” “Freemasons Monthly,” “Guide to Non-Violence and Non-Cooperation,” and “Democracy Movement Handbook.” On May 15, 2011, Zhang Shaofeng used anti-firewall software [e.g. a virtual private network] to enter Dynaweb’s “Free China Forum Website” and gather together a “compendium of Chinese underground organizations,” which he compiled into the Latest List of Registered Political Parties and Social Groups.” Then he posted under his personal QQ name: “The ‘National Freemasons’ have compiled a Compendium of Chinese Underground Organizations – write to request a copy.” In July 2011, after Zhang Shaofeng made contact with “Zhi Bi Wen Dao” (basic circumstances unclear), the person responsible for the “Chinese Association for Promotion of Democracy” [hereafter, CAPD], he participated in the integration of the CPDL, the “National Freemasons,” and the CAPD into the new China’s CPDL, with Zhao Gang as chairman, “Zhi Bi Wen Dao” as general secretary, and defendant Zhang Shaofeng as inspector general and head of the Organization Department. Later, defendant Zhang Shaofeng, in his capacity as head of the Organization Department of “China’s CPDL,” appointed Wang Xin (basic circumstances unclear) as the person responsible for [that organization] in Zhejiang. Later, on the invitation of Zhao Gang’s successor Zhang Qingxu (screen name “Zhi Bi Jian Ke”), defendant Zhang Shaofeng consulted documents of the hostile overseas organization “China Democracy Party” to draft CPDL Temporary Measures for the Extraordinary Period and sent them multiple times to his online contacts and actively recruited others to join the illegal organization “China’s CPDL.”
2. Actively applied to join the hostile overseas organization “China Democracy Party.” On September 30, 2011, defendant Zhang Shaofeng used anti-firewall software to enter the “China Democracy Party” website and used his Vietnamese email account “firstname.lastname@example.org” to send an email to “China Democracy Party” chairman Xie Wanjun as an “application to join the party.” On October 23, 2011, Xie Wanjun used email to send a China Democracy Party Cadre Appointment Notice and China Democracy Party Registration Form to Zhang Shaofeng’s Vietnamese email account, appointing Zhang Shaofeng as a “Member of the China Democracy Party Gansu Provincial Committee” and “Chair of China Democracy Party Independent Branch No. 4803.” Subsequently, Xie Wanjun again sent reactionary propaganda such as “China Jasmine Newsletter,” “China Jasmine Action Special,” and “Oppose Communism to Save the Nation, All People Rise Up” to defendant Zhang Shaofeng’s Vietnamese email account.
3. Using Weibo, Qzone [a social networking and blog platform similar to MySpace], mobile text messages, and other methods to wantonly disseminate reactionary propaganda and actively advocate Western democratic thought and ideas about violent revolution. On April 3, 2011, defendant Zhang Shaofeng sent an email containing the “Nine Commentaries” to an online friend named “MZ Lanqing.” On May 7, 2011, Zhang Shaofeng sent an email containing “Chinese Transitional Government Voluntary Training Sessions” to an online friend named “Maple Leaf with no Maple Leaf.” On October 8, 2011, Zhang Shaofeng sent an email with “Democracy Movement Leader’s Training Manual” to an online friend named “309945463.” On April 14, 2011, Zhang Shaofeng posted “Letter to MZ Colleagues” on his blog. On September 2, 2011, Zhang Shaofeng posted “How to Apply for Political Asylum in the United States—Think it Over, Let’s Go Together” on his blog. On September 17, 2011, Zhang Shaofeng posted “How to Join the China Democracy Party” on his blog. On October 8, 2011, Zhang Shaofeng posted “How to Raise Funds for the Democracy Movement” on his blog. On December 3, 2011, Zhao Shaofeng posted “Preliminary Draft Proposal for Establishing a People’s Organization” on his blog. On January 26, 2012, Zhang Shaofeng posted many reactionary articles on his blog, including “CPC Puts Million National Flags and Leaders’ Portraits in Tibetan Village Temples, Angers Public.” The aforementioned articles were hostile to the CPC, expressed hatred for the socialist system, viciously attacked the government of the PRC, and expressed high praise for the “Falun Gong” cult’s slander of our party and government through the “Nine Commentaries on the CPC” and “Three Resigns” and “Liu Xiaobo’s 2010 Nobel win.” At the same time, he incited interest groups in China to take to the streets and express their unhappiness and demands through “rights protection” and other means, to pressure the government, to incite the public to carry out violent revolution rather than color revolution and plot the subversion of the political power of the PRC and overthrow of the socialist system.
The aforementioned facts are confirmed by the following evidence, which was put forth by the prosecution and cross-examined and confirmed in court:
- A record of remote inspection and investigation work from the Qingyang Public Security Bureau Network Security Monitoring Unit, recording the remote inspection and investigation carried out on the email accounts, personal blogs, and locations where Zhang Shaofeng went online.
- The statements of witnesses Zhang Qingxu, Zhang Yaozong, and others.
- Electronic data: An email from Zhang Shaofeng’s Vietnamese mailbox with contents related to the China Democracy Party; an application to join the party, a notice of official posting in the China Democracy Party, and a China Democracy Party membership registration certificate; articles published and email correspondence with others, and the articles of constitution for the Chinese Democratic League [retrieved] from Zhang Shaofeng’s blog.
- Documentary evidence: A Ministry of Public Security document confirming the “China Democracy Party” to be a hostile organization and other documents.
- A confirmation report;
- Defendant Zhang Shaofeng’s confession.
This court finds that defendant Zhang Shaofeng used the Internet to participate in the formation of illegal organizations; joined a hostile organization; used Weibo, Qzone, and mobile text messages to publish reactionary propaganda multiple times; wantonly disseminated speech damaging to state political power and the socialist system; distorted facts; maliciously attacked the CPC and PRC government; and damaged the image of the state political power. Subjectively, he possessed a criminal intent to incite subversion of state political power and, objectively, he committed acts of inciting subversion of state power; [therefore,] his actions constitute the crime of inciting subversion. The criminal facts alleged by the prosecution are clear, and the evidence is reliable and sufficient; [therefore,] he is guilty of the offense. As for defendant Zhang Shaofeng’s defense that he only joined the illegal organization in order to apply for political asylum and immigrate to the United States, that the articles he published only propagated Western democratic ideas and that he had no intention of inciting subversion of the government, these [claims] do not accord with the facts that have been ascertained. Because the Internet has a large user base, criminal information may be disseminated quickly, and the degree of harm to society is extremely great, his actions ought to be punished in accordance with the law. With respect to Zhang Shaofeng’s defense lawyers’ defense argument that Zhang’s acts do not meet the constituent criteria for the offense of inciting subversion, since Zhang Shaofeng bears full criminal responsibility [i.e., he has not been found to be mentally ill or deficient—Trans.], his speech attacking the party, the government, and the socialist system shows his clear criminal motivation, and, objectively, he also committed criminal acts that endanger state security. Moreover, the offense in question is a crime of action in which the actor only needs to commit acts that incite subversion of state power and overthrow of the socialist system and, whether the target of his incitement believes or accepts the inciting content or whether [the defendant] committed the subversive acts being incited has no bearing on whether the crime is constituted. Therefore, this defense argument of defense counsel cannot be accepted. The court [also] cannot accept defense counsel’s argument that the defendant Zhang Shaofeng’s act of publishing articles falls under the scope of the freedom of expression provided for in China’s Constitution. Although freedom of expression is a basic right granted to citizens by the constitution, citizens must exercise this right in accordance with the law and may not damage the interests or security of the state; therefore, this view of defense counsel that only emphasizes the defendant’s rights but ignores the defendant’s obligations cannot be accepted. In light of defendant Zhang Shaofeng’s voluntary disbandment of the “National Freemasons” QQ group, his truthful confession of his crimes during the investigative and trial stages, his voluntary exposure of the criminal activities of other illegal organizations, and that he displayed a relatively good attitude in acknowledging guilt and showing remorse, lenient punishment may be given in accordance with the law. Pursuant to discussion and decision by this court’s adjudication committee and in accordance with Articles 105.2, 56, and 67.3 of the Criminal Law of the PRC and Article 2(1) of the National People’s Congress Standing Committee’s Decision on Preserving Internet Security, [this court] rules as follows:
For the crime of inciting subversion, defendant Zhang Shaofeng is sentenced to one year and six months’ imprisonment, with subsequent deprivation of political rights for one year.
(The prison term is to be calculated from the day the verdict is implemented, with each day spent in detention prior to the verdict’s implementation to count as one day of the prison term; therefore, it will run from June 13, 2012 to December 12, 2013.)
If this verdict is not accepted, an appeal may be filed within 10 days of the second day following the receipt of this verdict, either to this court or directly to the Gansu High People’s Court. In the case of a written appeal, the original appellate petition must be submitted together with two copies.
Presiding Judge: Li Ying
Deputy Judicial Officer: Yang Weirong
Deputy Judicial Officer: Chen Yuan
November 7, 2012
Court Clerk: Wang Wei
《甘肃省庆阳市中级人民法院 - 刑事判决书》
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审 判 长 李 瑛
代理审判员 陈 媛
书 记 员 王 微