Beijing Court Rejects Zhao Yan's Appeal, Affirms Three-Year Sentence

December 8, 2006

The Beijing High People's Court (HPC) upheld the fraud conviction and three-year sentence of Zhao Yan, a Chinese researcher for the New York Times (NYT) on December 1, 2006, the NYT reported (registration required) on the same day. The NYT cited Guan Anping, one of Zhao's lawyers, as saying that the Beijing HPC upheld the lower court's judgment based only on the written materials. The NYT had reported on November 4 that the Beijing HPC had rejected Zhao's request for a hearing in his appeal. Under Article 187 of the Criminal Procedure Law, courts of second instance are not required to hold a hearing in a criminal appeal if a collegial panel makes a determination that the "facts are clear."

The Beijing No. 2 Intermediate People's Court acquitted Zhao of disclosing state secrets on August 25, but sentenced him to three years' imprisonment on an unrelated fraud charge. Sources have said the "state secret" was information that former President and Party General Secretary Jiang Zemin had offered to resign as Chairman of the Central Military Commission. His resignation was later reported in the official press.

With respect to the fraud charge, reports in China's state-run news media said that the court had provided Xinhua with a document saying that Zhao had gone to Jilin province in 2001 to investigate a story for "Baixing Xinbao," a subsidiary of the Legal Daily, a publication of the Ministry of Justice. According to Xinhua, Feng Shanchen, the story's subject, believed he had been prosecuted unjustly (the reports did not specify for what), and paid Zhao 20,000 yuan (US$2,500) to use government connections to get his punishment rescinded.

Jerome A. Cohen, an expert on Chinese law and advisor to the NYT on Zhao's case, testified before a Congressional-Executive Commission on China (CECC) hearing on September 20, 2006, that Zhao was "sentenced to three years in prison after another trial that can only be regarded as a farce, and after highly illegal--according to Chinese law--pre-trial detention, interrogation, et cetera." In his written statement at that hearing, Professor Cohen said that the procedures in Zhao's detention and trial "shamed a great nation."

The CECC has previously noted several procedural problems with Zhao's case. Below is a summary of the timeline of these problems and other major events in the case:

  • September 17, 2004: Officers from the Ministry of State Security detain Zhao.
  • October 20, 2004: Authorities formally arrest Zhao for "providing state secrets to foreigners."
  • May 20, 2005: State security officials complete their investigation and transfer Zhao's case to the Beijing procuratorate for prosecution on charges of providing state secrets to foreigners and fraud.
  • August 31, 2005: The NYT reports that Zhao is forbidden to see his family, has lost 22 pounds, and that the government had denied his request for a biopsy and his lawyer's efforts to post bail. The report also raises questions about whether the state security officials legally acquired key evidence in the state secrets case.
  • December 7, 2005: Reporters Without Borders awards Zhao its 2005 Fondation de France Prize.
  • December 23, 2005: The Beijing procuratorate indicts Zhao for revealing state secrets and fraud.
  • March 17, 2006: One month before President Hu Jintao was scheduled to visit the United States and meet with U.S. President George W. Bush, the Beijing procuratorate receives permission from the Beijing No. 2 Intermediate People's Court to withdraw its case. Mo Shaoping, Zhao's lead defense lawyer (who has represented several other political prisoners including Feng Bingxian, Li Changqing, Xu Zhengqing, and Zhang Lin), is quoted as saying that, "by withdrawing the prosecution, there is no longer anyone to charge [the defendant], and without anyone to charge the defendant, there is no way for a court to find anyone guilty of a crime." Mo adds that under Chinese law, authorities should have released Zhao at that time.
  • May 12, 2006: Three weeks after President Hu's meeting with President Bush, the Beijing procuratorate issues a new indictment that reinstates the prior charges against Zhao. Mo says that no Chinese law or judicial interpretation authorizes the procuratorate to resume prosecution after it has withdrawn a case, and that in Zhao's case, this action was taken with "no basis in law."
  • May 27, 2006: Mo reports that Chinese authorities have set a preliminary date of June 8 to try Zhao.
  • June 16, 2006: The Beijing No. 2 Intermediate People's Court tries Zhao, but prevents the public, news media, potential defense witnesses, and his family from attending, and bars his lawyers from publicly commenting on specifics of the trial.
  • August 25, 2006: The Beijing No. 2 Intermediate People's Court acquits Zhao of providing state secrets, but sentenced him to three years' imprisonment on an unrelated fraud charge. The court also fined Zhao 2,000 yuan (US$250) and ordered him to pay back 20,000 yuan (US$2,500) that it ruled he had acquired through fraud.
  • September 5, 2006: The Associated Press reports (via the Guardian) that Guan has filed an appeal arguing that the prosecution's evidence was insufficient and that the court did not allow a defense witness to testify.