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China Human Rights and Rule of Law Update
Beijing Court Sentences Hu Jia to 3 Years 6 Months' Imprisonment
The Beijing Number 1 Intermediate People's Court sentenced activist Hu Jia on April 3 to three and a half years' imprisonment and one year deprivation of political rights for "inciting subversion of state power," according to an April 3 Xinhua article (no longer available via Xinhua, but reprinted via Boxun; shorter English version available via China Daily). Article 105, Paragraph 2 of China's Criminal Law makes inciting others "by spreading rumors or slanders or any other means to subvert the State power or overthrow the socialist system," a crime punishable by up to five years in prison, or no less than five years for "ringleaders and the others who commit major crimes." The Beijing court found that from August 2006 to October 2007, Hu had "incited subversion" through essays he posted on foreign Web sites and telephone interviews he gave to foreign news agencies, according to the Xinhua article. Li Jinsong, one of Hu's lawyers, said it was unlikely that Hu would appeal the ruling, according to an April 3 Reuters article.
The court said that Hu's essays, including "China's Political and Legal Systems Create a Widespread Atmosphere of Fear Ahead of the 17th CPC National Congress," and "One Country Doesn't Need Two Systems," and his comments to foreign journalists, amounted to "malicious rumors, slander, and incitement, in a vain attempt to achieve the goal of subverting China's state power and socialist system," according to the Xinhua article. (Links provided for the articles are from blogs, one of which appears to be Hu Jia's.) The court also pointed out that numerous foreign Web sites had linked to or reprinted Hu's essays and interviews. The two essays mentioned above are critical of the Chinese government and Communist Party's intensified harassment of rights defenders before the 17th Party Congress in October 2007, and their "one country, two systems" approach to governing Hong Kong and mainland China. Hu writes that the government and Party's approach leaves people in Hong Kong vulnerable to the same deprivation of rights that occurs on the mainland, such as the lack of meaningful freedom of speech and the press.
The Xinhua article made no mention of the specific content of the "rumors, slander, and incitement," the potential threat Hu's essays and interviews posed to China's national security, or whether the court considered Hu's right to free speech, as provided for under Article 35 of China's Constitution. Chinese officials have insisted that cases like Hu's are handled in accordance with Chinese laws, but the UN Working Group on Arbitrary Detention and human rights groups have criticized laws such as Article 105 for failing to protect a citizen's right to free expression.
According to the Xinhua article, the court gave Hu a lighter sentence because he "showed penitence and was willing to be dealt with according to the law" (the English article in the China Daily reported that he confessed to the crime and accepted the punishment). While Chinese media reported that Hu "showed penitence" and may have confessed, Hu plead "not guilty" at his trial on March 18. After the verdict's announcement, Hu's lawyers said that Hu had acknowledged "excesses" and accepted that some of his statements "were contrary to the law as it stands," according to the Reuters article. Li Fangping, Hu's other lawyer, maintained that the sentence was unjust, according to the same article. "The law on inciting subversion of state power doesn't have a clear boundary, but the Constitution guarantees citizens freedom of speech," he said.
The Xinhua article reported that during the trial, the court fully protected Hu Jia's procedural rights. The article said Hu's lawyer was able to present an "ample" defense and that Hu's family and others were allowed to observe the trial and sentencing. Hu's lawyer Li Fangping has said, however, that he did not have enough time to advocate on Hu's behalf. Furthermore, only Hu's mother was allowed to attend the trial, even though it appears that under Chinese law the trial should have been open to the public and other people affiliated with Hu should have been allowed to attend. Instead, some were taken into police custody and beaten. Hu's mother and Hu's wife, Zeng Jinyan, were present when the sentence was announced, according to an April 3 Chinese Human Rights Defenders article.
Hu's case highlights how China has sought to counter a regulation giving foreign journalists greater freedom to report in China by in turn targeting citizens who speak to foreign journalists. Under a regulation China issued in order to comply with a commitment for the Olympics, foreign reporters may, at least on paper, more freely interview Chinese citizens. Foreign media and human rights organizations have reported, however, that authorities have warned citizens not to speak to journalists. Internet essayist Wang Dejia was reportedly released on bail in January only after agreeing not to speak to foreign journalists. Also in January, land rights activist Yu Changwu reportedly was sentenced to two years reeducation through labor in part for speaking to foreign reporters.
For more information see previous CECC analyses on Hu's trial, arrest, and detention, and the records of detention for Hu, Wang, and Yu, searchable through the CECC's Political Prisoner Database.
| Source: -See Summary (2008-04-04 / English / Free) |
Posted on: 2008-05-05 |
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| Link directly to this item with: http://www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=104162 |
Land Rights Activist Yang Chunlin Sentenced to Five Years
Yang Chunlin, the land rights activist who organized a petition titled "We Want Human Rights, Not the Olympics," was sentenced to five years in prison on March 24 by the Jiamusi City Intermediate People's Court in Heilongjiang province for "inciting subversion of state power," according to March 24 articles by the Associated Press (AP) and Chinese Human Rights Defenders (CHRD). The court also sentenced Yang to two years deprivation of political rights, according to CHRD. Procuratorate officials claimed that the petition received heavy foreign media coverage and hurt China's image abroad, and accused Yang of writing essays critical of the Communist Party and accepting 10,000 yuan (US$1,430) from a "hostile" foreign group, according to a February 19 Reuters article (via the Guardian) and a March 25 Guardian article. The Civil Rights & Livelihood Watch Web site (CRLW), a site that supports rights defenders in China, reported on March 28 that Yang would appeal the ruling.
According to Yang's lawyer, police scuffled with Yang's son after the sentencing and shocked Yang with electric batons, the AP article reported. Yang has alleged that because he refused to confess to a crime, authorities chained his hands and feet together from August 6 to August 14, 2007, and that he was unable to move during this time, according to the CRLW report. Chinese law prohibits and punishes the use of torture to coerce a confession and China has ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. A March 31 CHRD article reported the allegation that on March 5 prison cadres beat Yang for pointing out their misconduct. The article also said prison officials have refused to allow Yang any time outdoors. Article 25 of China's Regulations on Detention Centers provides that detainees should be allowed one to two hours of outdoor activity each day.
"We Want Human Rights, Not the Olympics" Petition
Yang was first detained on July 6, 2007, after he and land rights activists Yu Changwu and Wang Guilin launched the petition in June, according to a March 24 Human Rights in China statement. The AP article said that Yang had gathered more than 10,000 signatures for the petition, mostly from farmers seeking redress for land that officials allegedly took from them, and that the petition was posted on the Internet. As noted in the Congressional-Executive Commission on China (CECC) Political Prisoner Database, officials formally arrested Yang on August 13 and held his trial on February 19.
The petition is connected to a movement by farmers in Fujin city, Heilongjiang, to reclaim land seized by the government and to challenge China's rural land policy of collective ownership. Yang's February 19 criminal defense pleading, prepared by Yang's lawyers and posted on the CHRD Web site, said the reason behind the petition was the "illegal expropriation of land from 40,000 farmers in Fujin, the failure to set up any social safeguards, and the lack of any resolution despite the farmers representatives' more than 10 years of frequent petitioning." According to a January 14 Washington Post (WP) article, farmers in Fujin have sought to reclaim 250,000 acres of land that local officials took in the 1990s and planned to sell to private agricultural businesses. The article said the farmers have also expanded their claims to include the right to own the collective land they currently lease, and that their efforts sparked similar movements in other parts of China. Both Yu and Wang were recently sentenced to reeducation through labor for two years and one and a half years, respectively, in connection with their advocacy on behalf of the Fujin farmers. (For more information on Yu and Wang, see their records of detention, searchable through the CECC Political Prisoner Database).
Article 105 of the Criminal Law
The language of Article 105, Paragraph 2, the Criminal Law provision on inciting subversion of state power, is vague and overbroad and China's legal institutions have failed to provide clear guidance as to the limits on Chinese citizens' constitutionally protected right to free speech, according to Yang's lawyers. They said that Yang's peaceful expression of a different political viewpoint was protected under Article 35 of China's Constitution, which guarantees freedom of speech, according to the defense pleading. Article 105, Paragraph 2, restricts that right, they said, but the brevity of the provision made it impossible to determine the boundary between subversion and free speech. Furthermore, neither the Supreme People's Court nor the Standing Committee of the National People's Congress had issued any interpretations of Article 105, Paragraph 2. "So what are the boundaries of 'endangering the state'? We have been unable to find any legal principles that could be referenced in any domestic legal precedent or legal interpretations," they wrote. One of the lawyers, Li Fangping, warned that "[i]f everyone who speaks freely is accused of subverting state power, then it will be very difficult to guarantee free speech because people won't know what they can say and what they can't," according to a March 25 WP article.
In recent months a number of other Chinese citizens have been punished for "inciting subversion of state power," for peaceful expressions of dissent. These include activist Hu Jia, who was sentenced to three and a half years on April 3, freelance writer Lu Gengsong, who was sentenced to four years on February 5, Internet essayist Wang Dejia, who was released on bail on January 12, and Internet essayist Chen Shuqing, whose four-year sentence was affirmed in October 2007. (For more information on these cases, see their records of detention, searchable through the CECC Political Prisoner Database). At a March 18 press conference (posted on the Ministry of Foreign Affairs Web site, Chinese, English), Chinese Premier Wen Jiabao described as "totally unfounded" the allegation that China is cracking down on dissidents before the Olympics. He said "China is a country under the rule of law" and that cases such as Hu Jia's would be "dealt with in accordance with the law." Foreign Minister Yang Jiechi also recently said that it is "impossible" for someone in China to be arrested for saying "human rights are more important than the Olympics."
The UN Working Group on Arbitrary Detention (UNWGAD) and human rights groups have echoed the concern raised by Yang's lawyers that under Article 105, Chinese officials retain broad discretion to declare peaceful forms of expression "incitement of subversion." In a report on its 2004 mission to China (available on the UNWGAD's Country Visits Web page), the UNWGAD expressed concern that China's Criminal Law had not adopted a definition of the term "endangering national security" (the category of crimes which includes Article 105) and that "no legislative measures have been taken to make a clear-cut exemption from criminal responsibility of those who peacefully exercise their rights guaranteed in the Universal Declaration of Human Rights." In a January 8, 2008, report titled "Inciting Subversion of State Power: A Legal Tool for Prosecuting Free Speech in China," CHRD studied 41 cases from 2000 to 2007 in which Article 105, Paragraph 2, had been used to punish Chinese citizens for exercising their right to freedom of expression. The report found that in such cases: "[T]he 'evidence' often consists of no more than the writings of an individual or simply shows that he/she circulated certain articles containing dissenting views, without any effort to show that the expression had any potential or real subversive effect. That is to say, speech in and of itself is interpreted as constituting incitement of subversion....[T]he text of the law fails to clearly define the key concepts, 'subversion' and 'state power,' and to precisely specify what constitutes 'subversion' and 'state power.' Thus, anything from calling for an end to one-party rule to criticizing corruption has been construed as 'inciting subversion of state power.'" As noted in the CECC Political Prisoner Database, Yang was reportedly detained in 2006 on four occasions for his work with farmers and for taking part in a hunger strike proposed by Beijing lawyer Gao Zhisheng and other rights defenders. For more information on freedom of expression in China, see Section II - Freedom of Expression, in the CECC's 2007 Annual Report.
| Source: -See Summary (2008-04-04 / English / Free) |
Posted on: 2008-05-05 |
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| Link directly to this item with: http://www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=103980 |
New Internet Regulations Tighten State Control Over Audio and Video Content
New regulations, which went into effect January 31, further tighten the state's control over online audio and video content in China. Notably, the Provisions on the Administration of Internet Video and Audio Programming Services (the Provisions) now require state ownership in companies providing these services (hereinafter referred to as A/V companies), although the Chinese government has said it will not impose this requirement on the mostly private companies already in operation. In addition, the Provisions reaffirm the requirement for A/V companies to obtain an "Internet Audio/Visual Program Transmission License" from the government, increase companies' obligation to maintain records of content they host, and extend liability to "major investors and managers." In conjunction with the Provisions, the State Administration of Radio, Film, and Television (SARFT) said it had recently conducted an inspection of select audio and video Web sites, according to a March 20 announcement on the SARFT Web site. As reported in a March 22 Wall Street Journal (WSJ) article (subscription required), the inspection campaign, which lasted from December 20, 2007, to February 20, 2008, resulted in the closure of 25 video Web sites. Another 32 Web sites received warnings about their content. Among the "major problems" cited in the announcement were Web sites posting content containing "obscenity and pornography," "terror and violence," or which "endangered the security and interests of the state," as well as Web sites operating without a license to broadcast video and audio content.
The Provisions, issued jointly by SARFT and the Ministry of Information Industry (MII), require Internet companies engaged in "producing, editing, and integrating video and audio programming and offering it to the public over the Internet" or "offering to others the services of uploading and disseminating video and audio programs" over the Internet to be "wholly state-owned" (guoyou duzi) or "state-controlled" (guoyou konggu). On February 3, however, Xinhua reported that during a question and answer session with the state-run news agency, representatives from SARFT and MII said that a company already offering these services could "re-register and continue operating" without meeting the state ownership requirement, as long as "prior to the release of the Provisions [such company] had been established legally and had broken no laws or regulations." Most A/V companies, including the popular video sharing sites Tudou.com and Youku.com, are privately run and financed by domestic and foreign venture capital, according to a January 7 Beijing Business Today article.
The Provisions' New Requirements
A/V companies had already been subject to the 2004 Measures on the Administration of Broadcasting Audio/Visual Programs Over the Internet or Other Information Networks (2004 Measures), which required the companies to obtain an "Internet Audio/Visual Program Transmission License" from SARFT, have as its sponsoring agency a radio/television, news, publishing, cultural, or propaganda unit at the local level or higher, and maintain records of audio and video content. The Provisions, while continuing to require the "Internet Audio/Visual Program Transmission License" and imposing the new state ownership requirement, also introduce a number of other changes that could have the effect of strengthening state control over A/V companies:
The Provisions increase licensed companies' recordkeeping responsibilities. The 2004 Measures required companies to maintain a record of the title of the program, summary of its contents, time and length of broadcast, and source, for at least 30 days. The Provisions now require companies to maintain a complete copy of a program for at least 60 days (Article 16).
The Provisions extend liability to "major investors and managers" of the A/V company, who are now expressly responsible for their Web site's audio and video content (Article 18). Such individuals face a fine of up to 20,000 yuan (US$2,850) for, among other things, failing to report and delete "harmful content" (Article 23); in the case of "major" violations by an A/V company, major investors and managers would be barred from investing in or providing online audio or video services for five years (Article 27).
Like the 2004 Measures, the Provisions prohibit A/V companies from disseminating politically sensitive content, including content the state considers "harmful to the honor or interests of the nation," "endangers the unity, sovereignty, and territorial integrity of the nation," or "disturbs social order" (Article 16). Even before the 2004 Measures and the Provisions, A/V companies had been subject to Internet regulations that imposed similar requirements. For example, the Measures for the Administration of Internet Information Services, issued in 2000, had already required all Web sites to be licensed or registered, prohibited the dissemination of content falling within a similar enumerated list, and required maintenance of records of customers' online activity for 60 days. Furthermore, as reiterated in Article 9 of the Provisions, A/V companies that engage in "current events-type video and audio news services" must still apply for a separate "Internet News Information Service License" from the government.
Freedom of Expression Impact
Chinese and outside observers have indicated that the Provisions could lead to greater censorship of politically sensitive audio and video content. According to a January 4 Southern Metropolitan Daily editorial, the regulations "restrain the civil right of social expression in the era of the Internet." The March 22 WSJ report noted that affected businesses "have been scrambling to prove themselves" following the issuance of the Provisions. "[W]e're always working to upgrade our filtering system, to catch things that need to be caught," said Tudou's vice president of business development after his company received a warning in the recent inspection campaign. Much of the problematic content involves pornography, according to a January 4 WSJ article (subscription required), but the Provisions also require removal of politically sensitive content. Following the recent unrest in Tibetan areas of China, Tudou.com and Youku.com were reportedly devoid of any news footage of the protests, according to a March 18 WSJ article (subscription required). At the same time, China reportedly blocked access to the U.S.-based video sharing Web site YouTube.com after videos of the Tibetan protests showed up on the site, according to a March 17 Associated Press (AP) article (via New York Times). The January 4 WSJ article noted that: "Online-video technology potentially poses a major challenge to the Communist Party's control of information. Content-filtering technologies that can identify politically objectionable text on the Internet can't be used to screen videos effectively."
The Provisions' liability for investors and managers, as well as the risk that currently exempted companies may be subject to the state ownership requirement in the future, provide further incentives for A/V companies to exercise effective self-censorship. Chinese officials also continue to urge Internet companies to sign on to "self-discipline pledges" to improve online censorship. In February, at a meeting attended by representatives from more than 40 A/V companies, government officials presided over the announcement of a self-discipline pledge (via the CCTV Web site) that calls on A/V companies to "meet the standards of socialist morals" and to contribute to a database that would allow companies to share information about content they have deleted from their Web sites, according to a February 23 Xinhua article.
Commercial Rule of Law Impact
The Provisions require A/V companies to "respect copyright laws" and to "adopt copyright protection measures, and protect the lawful rights and interests of copyright holders" (Article 15). Under Article 23 of the Provisions, companies that fail to adopt copyright protection measures face warnings and fines of up to 30,000 yuan ($4,280), while major investors and managers face fines of up to 20,000 yuan (US$2,850). It remains to be seen whether these provisions will lead to better enforcement against pirated online audio and video content.
Some industry participants have praised the regulations for clarifying China's policy toward A/V companies. Tudou's chief executive, Gary Wang, said that three years ago, "we couldn't tell who the governing body was and might be" and "[n]ow this is at least clearly a joint effort," according to the January 4 WSJ article. At the same time, the state ownership requirement led some companies to seek clarification from the government over how the Provisions would be implemented, according to the WSJ article and a January 10 AP article (via Seattle Times). Even though the Provisions provide no express exemption for the state ownership requirement, analysts said that the Chinese government would let private companies sidestep the rule for business reasons, according to the AP report. Chinese officials ultimately announced the exemption, but in the form of a question and answer session with a Xinhua reporter, as opposed to a more formal legally binding document, and three days after the Provisions went into effect.
Finally, the state ownership requirement may act as a further barrier for foreign companies to invest in the industry. The Provisions expressly encourage state-owned strategic investors to invest in the industry (Article 15). Under the 2004 Measures, wholly foreign-owned companies, Chinese-foreign joint ventures, and Chinese-foreign cooperative ventures "could not engage in work to disseminate online audio and video programs," but it is not clear how widely enforced this policy was. The January 10 AP article reported that as of November, Youku.com had raised $40 million from U.S. and Chinese venture capital investors.
| Source: -See Summary (2008-03-31 / English / Free) |
Posted on: 2008-05-05 |
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| Link directly to this item with: http://www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=103734 |
Foreign Minister "Freedom of Speech" Comments At Odds With Arrests, Detentions
Chinese Foreign Minister Yang Jiechi said that it is "impossible" for someone in China to be arrested for saying "human rights are more important than the Olympics," a statement that conflicts with the recent arrest, detention, and questioning of a number of Chinese citizens who have publicly criticized China's human rights record in relation to the Olympics. According to a February 28 Reuters article, Yang told reporters that Chinese citizens enjoy "extensive freedom of speech." His comments followed a meeting that day in Beijing with Britain's foreign minister. "No one will get arrested because he said that human rights are more important than the Olympics. This is impossible. Ask 10 people from the street to face public security officers and ask them to say 'human rights are more important than the Olympics' 10 times or even 100 times, and I will see which security officer would put him in jail," Yang reportedly said.
Yang's statements appear inconsistent with the recent arrests of HIV/AIDS and environmental activist Hu Jia and land rights activist Yang Chunlin (no relation to Yang Jiechi). Officials accused both of "inciting subversion of state power," after each made public statements tying their criticism of China's human rights record to the Olympics. In Hu's case, Beijing public security officials detained him just one month after he criticized China's hosting of the Olympics and its human rights record before a European Parliament Human Rights Subcommittee hearing in November. Hu is set to go on trial on March 18, according to a March 14 Reuters article (via The Guardian). In Yang Chunlin's case, the main piece of evidence against him appears to be a petition he helped organize titled "We Want Human Rights, Not the Olympics," which the procuratorate claimed tarnished China's international image, according to Yang's lawyer as reported in a February 19 Reuters article (via The Guardian). Yang was arrested in August 2007. His trial took place on February 19 but the court has not yet issued its verdict.
Short of formally arresting citizens, Chinese officials have also detained citizens or held them for questioning in an apparent effort to prevent them from publicly criticizing the Chinese government and the Olympics. Earlier this month, law professor Teng Biao went missing for two days after plainclothes police officers seized Teng outside his home in Beijing, placed a sack over his head, and drove him away to be questioned, according to a March 14 Wall Street Journal article. Authorities warned him to stop writing articles criticizing China's human rights record and the Olympics or risk losing his university post and going to jail. In September, Teng and Hu co-wrote a letter titled "The Real China Before the Olympics" (Chinese, English), which criticized Beijing for failing to live up to its promise to improve human rights for the Olympics. Internet essayist Wang Dejia was recently detained after he used the Internet to air his criticisms of the government and gave an interview to a foreign newspaper in which he said China was focusing too much on hosting the Olympics and not enough on caring for its own citizens. Before releasing him on bail on January 12, officials reportedly required Wang to agree to stop posting online essays critical of the government and told him not to speak to foreign journalists.
For more information on freedom of expression in China, see Section II - Freedom of Expression, in the CECC's 2007 Annual Report.
| Source: -See Summary (2008-03-17 ) |
Posted on: 2008-05-05 |
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