Monday, March 11, 2013

Chinese Man Gets "Lenient" Sentence for Online Political Groups

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

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

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

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

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

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



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

Qingyang Intermediate People’s Court of Gansu Province
Criminal Verdict

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

November 7, 2012

Court Clerk: Wang Wei


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

甘肃省庆阳市中级人民法院
刑事判决书

(2012)庆中刑初字35号

公诉机关甘肃省庆阳市人民检察院。

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

辩护人马红兵,甘肃北斗律师事务所律师。

辩护人闫琳,甘肃北斗律师事务所律师。

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

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

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

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

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

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

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

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

上述事实,有公诉机关提交,并经庭审质证、认证的下列证据证实:

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

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

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

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

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

审 判 长 李 瑛
代理审判员 杨维荣
代理审判员 陈 媛

二〇一二年十一月七日

书 记 员 王 微


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