Chen Guangcheng Remains in Prison Following Flawed Retrial
The Yinan County People's Court in Linyi city, Shandong province, conducted a retrial of the Chen Guangcheng case on November 27, and on December 1 imposed the same guilty verdict and sentence that they had reached in his original trial, according to a December 1 Xinhua report (via the China Internet Information Center) and various international NGO and news media reports.
The Yinan County People's Court in Linyi city, Shandong province, conducted a retrial of the Chen Guangcheng case on November 27, and on December 1 imposed the same guilty verdict and sentence that they had reached in his original trial, according to a December 1 Xinhua report (via the China Internet Information Center) and various international NGO and news media reports. The court found Chen guilty of "intentional destruction of property" (a crime under Article 275 of the Criminal Law) and "gathering people to disturb traffic order" (a crime under Article 291 of the Criminal Law), and sentenced him to four years and three months in prison. Chen's oldest brother, Chen Guangfu, was the only family member allowed to attend the sentencing and later reported that Chen had reserved his right to an appeal after the judgment was read, according to a December 1 Associated Press article (reprinted in the Washington Post).
Chen Guangcheng is a self-trained legal advocate who drew international news media attention to population planning abuses in Linyi in 2005. Local authorities placed Chen under house arrest in September 2005 and formally arrested him on June 21, 2006. The Yinan County People's Court first tried and sentenced Chen in late August. Li Jinsong, lead counsel on Chen's criminal defense team, filed an appeal in September arguing that at trial, the court had illegally deprived Chen of the right to be represented by criminal defense lawyers of one's own choosing. On October 31, the Linyi Intermediate People's Court vacated the original trial court judgment and remanded the case for a retrial.
The conclusion of Chen's retrial is the latest development in a criminal case that has drawn repeated criticism for its criminal procedure violations. A November 20 Radio Free Asia (RFA) report (in Chinese) quotes Li Fangping, another of Chen's defense lawyers, as saying that, "At the time of the original trial, Chen Guangcheng was deprived of his right to present a defense. Remanding for retrial could, on its surface, be a bit of a remedy, equivalent to saying that the lawyers can now participate. But as long as it is still the Yinan county court and, moreover, the same tribunal that makes the determination [in this case], I am not very optimistic about whether or not [that determination] will change in substance." Before and during Chen's retrial, local authorities took repressive measures that interfered with Chen's ability to present a defense and called into question the fairness of trials under China's criminal justice system. These included:
- Failure to provide timely notification. According to a November 23 RFA report (in Chinese), Li Fangping received court notification of the retrial date by phone on November 22. The report also said that Chen's wife Yuan Weijing, his mother Wang Jinxiang, his brother Chen Guangjun, and several others from Chen's home village received notification of the November 27 date on November 23. According to a November 25 Epoch Times report (in Chinese), Chen did not know about the retrial date until Li Fangping met with him on November 24, three days before the trial. In 2001, the Supreme People's Court (SPC) issued Detailed Provisions on Court Hearing Procedures in Criminal Retrial Cases, and mandated under Article 9(6) that a court deliver notification and subpoenas to the defendant, his legal representative, and witnesses no later than seven days prior to the retrial.
- Harassment of witnesses. Human Rights in China (HRIC) reported in a November 27 press release that local authorities had placed four defense witnesses from Chen's home village (Chen Guangdong, Chen Guangyu, Chen Gengjiang, and cousin Chen Guanghe) under house arrest or in official custody on the eve of his retrial. Unnamed sources told HRIC that Chen Guangdong and Chen Guangyu were "put under house arrest and prevented from appearing in court," and that the Yinan County Public Security Bureau held Chen Gengjiang in custody beginning around noon on November 26. HRIC cited to Beijing legal scholar Teng Biao, a member of Chen's criminal defense team, and oldest brother Chen Guangfu to report that on the same day, "they saw seven or eight men in plain clothes appear and take Chen Guanghe away." Chen Guanghe's family received a formal notice of his criminal detention on December 3, according to a December 4 RFA report (in Chinese). Chen's wife Yuan Weijing testified in court on November 27, according to the HRIC press release. She received formal notification that she was under house arrest on November 28, according to an RFA report (in Chinese) the next day.
- Article 49 of the Criminal Procedure Law mandates that court, procuratorate, and public security officials ensure the safety of witnesses and their close relatives, and also provides for administrative or criminal sanctions against those who intimidate or retaliate against them. A June 1 People's Daily report (in Chinese) noted that one SPC judge has suggested the need for legislative reform to provide greater witness protection to those appearing in court to testify. RFA's November 20 report quotes Li Fangping as saying: "If the judiciary could function independently, a court notice to appear at trial would be a very effective way to put the law into play. A witness would have the duty to appear at trial and should appear at trial. No agency could obstruct him from arriving before the court to testify; otherwise, this would constitute the crime of obstructing witness testimony."
- Reliance on confessions coerced under torture. In its November 27 press release, HRIC reported that none of the four witnesses who were under house arrest or in official custody managed to testify at Chen's retrial. According to HRIC, Chen's brother Chen Guangjun testified at the retrial that police had previously detained him and "coerced him into providing testimony" for the prosecution in Chen's original trial. RFA's November 23 report noted that all five witnesses were charged together with Chen, and that their witness statements had been used to convict him during the first trial. Each witness alleged that his statement was coerced under torture, according to RFA. A November 27 New York Times report quotes Li Jinsong, Chen's lead counsel, as saying that, "Our witnesses were prepared to make clear that the evidence against Chen Guangcheng was based on forced confessions of several people who do not stand by their accusations against him. Those witnesses were prevented from attending the trial, and I believe we are headed toward another wrongful conviction."
Article 247 of the Criminal Law and new provisions issued by the Supreme People's Procuratorate prohibit and punish the use of torture to coerce a confession. The Chinese government is further bound by provisions in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which it ratified in 1988. Wang Zhenchuan, Deputy Procurator-General of the Supreme People's Procuratorate, acknowledged at a November 18, 2006, seminar in Sanya city, Hainan province, that almost all wrongful convictions in China involve police abuse during the investigation stage. Official Chinese statistics show that only about 30 people are wrongfully convicted in China each year due to police abuses, but Wang said that the real number could be higher.
- Denial of opportunities to present and confront evidence during retrial. HRIC's November 27 press release cites unnamed sources as saying that during the retrial, a judge prevented Li Fangping from cross-examining a prosecution witness about contradictions in his statement. HRIC reported, "When Li insisted on being allowed to proceed, he was expelled from the court and was not allowed to return until after an adjournment." HRIC also reported that the judge refused a request by Li Jinsong to adjourn the trial until a later date due to the inability of several witnesses to appear in court.
Article 20 of the SPC's Detailed Provisions on Court Hearing Procedures in Criminal Retrial Cases guarantees the right of the defense to present and argue its own evidence at retrial relating to matters that the defense and prosecution disagree on. Article 21 guarantees the right of the defense to examine and confront the prosecution's evidence at retrial if the defense objects to the evidence upon which the original verdict or sentence was based, or if the prosecution presents new evidence at retrial.
Sharon Hom, Executive Director of HRIC, condemned the results of the retrial in HRIC's November 27 press release and stated that, "Abducting witnesses, obstructing the access of defense counsel to witnesses and preventing witnesses from appearing in court all violate both international and domestic legal standards that guarantee the accused the right to a fair trial by an independent and impartial tribunal." In addition to violating the provisions of domestic law cited above, local authorities deprived Chen of protection under Article 11(1) of the Universal Declaration of Human Rights, which requires that a criminal defendant have "all the guarantees necessary for his [defense]." They also contravened Article 14.3(b) of the International Covenant on Civil and Political Rights, which requires that a criminal defendant have "adequate time and facilities for the preparation of his [defense]," and Article 14.3(e), which requires that he be able "[t]o examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him." Jerome A. Cohen, an expert on Chinese law and legal advisor in the Chen case, testified before a Congressional-Executive Commission on China (CECC) hearing on September 20, 2006, that criminal cases such as Chen's and that of New York Times researcher Zhao Yan "are merely the tip of a criminal process iceberg that is largely concealed from the scrutiny of both Chinese and foreigners and that functions with cynical disdain for the country's criminal justice laws and international human rights standards." In a November 3 Wall Street Journal op-ed (subscription required), Teng Biao and Chinese democracy activist Zhang Zuhua wrote: "While we are relieved that [the decision to remand for retrial] favored Mr. Chen, China's judicial process remains as opaque as ever. Reversals of verdict in politically charged cases are rare."
For additional information on Chen's case, see the CECC's Political Prisoner Database and Section V(b), on the "Rights of Criminal Suspects and Defendants," in the CECC's 2006 Annual Report. Additional information on the "Right to Present a Defense" and the "Fairness of Criminal Trials and Appeals" is also included in the CECC's 2006 Annual Report.