Chen Kegui Serving Criminal Sentence, Legal Experts Refute Conviction
On November 30, 2012, the Yinan County People's Court in Linyi city, Shandong province, sentenced Chen Kegui, nephew of prominent legal advocate Chen Guangcheng, to three years and three months in prison for "intentional injury," following a trial marred by procedural violations, including problems with access to counsel, pre-trial family visits, trial notice, and access of witnesses to the trial. According to some Chinese and U.S. legal experts, Chen Kegui's wielding of a knife against plainclothes officials and hired personnel who broke into his home in the middle of the night on April 26, 2012, constitutes legitimate self-defense under Chinese law and therefore does not warrant criminal punishment. Domestic and international observers have raised Chen Kegui's case repeatedly since his detention, highlighting concerns that he may be the object of authorities' attempts to protect "national interests" and retaliate against his uncle Chen Guangcheng, who left China for the United States after escaping illegal home confinement. Authorities continue to subject Chen Kegui and his family to official threats, abuse, and harassment while he serves his sentence.
Chinese and U.S. Lawyers Allege Wrongful Conviction
Some Chinese and U.S. lawyers have called into question the conviction of Chen Kegui in a range of public statements. On December 1, 2012, Si Weijiang, one of the lawyers hired by Chen Kegui's wife to represent him, drafted a statement in response to the sentencing of Chen Kegui (Si Weijiang's personal blog, via Caijing, 1 December 12, link appears to be no longer available; English translation available at Seeing Red in China blog, 17 December 12). In his statement, Si Weijiang asserts that Chen Kegui's actions were "lawful self-defense and in no way criminal." He describes Chen Kegui's clash with officials as follows:
On April 26, 2012, Chen Kegui, just like any other man, was at home with his parents and child. His child had a fever. After midnight, a group of people climbed over the walls and stormed in, breaking the locks on the doors, and used clubs to beat Chen Kegui. [They] beat him from the interior of the house to the exterior. Chen Kegui called out to his mother for help because the intruders were numerous. Faced with circumstances in which his body and life were threatened, Chen Kegui extemporaneously grabbed a knife from his kitchen and cut the face of the man who led the invasion and beating, town government official Zhang Jian. When Zhang Jian and the others stopped the offense, [Chen Kegui] immediately halted use of the knife, and Zhang Jian and the others left of their own volition. This was in complete accordance with provisions under Article 20 of the PRC Criminal Law regarding legitimate self-defense.
Prominent Chinese human rights lawyer Teng Biao, who has previously aided Chen's family, told Time magazine prior to the trial, "According to what actually happened, this should be a case of self-defense, and he should be found not guilty" (Time, 30 November 12).
U.S. expert on Chinese law Jerome Cohen, who has worked closely with Chen Guangcheng and his family for years, also expressed disagreement with the charges against Chen Kegui, noting, "If Chen's case could be decided by an impartial court, he would very likely be acquitted, even without helpful lawyers, because he obviously acted in self-defence against a lawless, life-threatening attack." (US-Asia Law Institute, 30 October 12). Cohen also points to a number of other holes in the process, noting that his trial was not handled by an impartial court, but rather "a court controlled by the same political-legal commission that controls the police and procuracy bringing this case," and that the county procuracy failed to investigate the "illegal police-sponsored raid on the Chen family home," as well as the "illegal exclusion [of the lawyers whom Chen's family had retained] from the case."
Chen Wuquan, another of the lawyers hired by Chen Kegui's family but prevented from representing him, also refuted the verdict saying, "Chen Kegui is not guilty at all. His behaviour was legitimate self-defence, not the crime of intentional injury. From a legal perspective, the result is unacceptable" (Guardian, 30 November 12).
Chen Kegui Claims Self-Defense
In a recording which is reportedly a telephone conversation between blogger Yaxue Cao and an agitated Chen Kegui a few hours after his altercation with Zhang Jian and the intruders, Chen shared the details of the evening (Chinese recording available at freecgc.blogspot.com, 27 April 12; English translation available at Seeing Red in China, 27 April 12). He highlighted the fact that he picked up the knives [he claims he took two knives] "in defense" against the intruders, who were reportedly in plainclothes and showed no documentation of the purpose of their midnight visit. After the intruders had left his home, Chen fled the home as well, reportedly for fear of being captured and "beaten to death or beaten senseless." He later turned himself into police, hoping they would be able to help his child, who was suffering from a high fever. Chen reportedly was waiting for the police at the time of the call.
"Justifiable Defence" Protected Under PRC Criminal Law
Persons who inflict harm while acting in self-defense are protected from criminal responsibility under Chinese Law, as long as their actions do not exceed "the limits of necessity." Article 20 of the PRC Criminal Law provides, in relevant part,
An act that a person commits to stop an unlawful infringement in order to prevent the interests of the State and the public, or his own or other person's rights of the person, property or other rights from being infringed upon by the on-going infringement, thus harming the perpetrator, is justifiable defence, and he shall not bear criminal responsibility.
If a person's act of justifiable defence obviously exceeds the limits of necessity and causes serious damage, he shall bear criminal responsibility; however, he shall be given a mitigated punishment or be exempted from punishment.
If a person acts in defence against an on-going assault, murder, robbery, rape, kidnap or any other crime of violence that seriously endangers his personal safety, thus causing injury or death to the perpetrator of the unlawful act, it is not undue defence, and he shall not bear criminal responsibility. [Emphasis added]
Observers Point to Political Reasons for Chen's Conviction
Lawyers, scholars, non-governmental organizations, and a United Nations official, have made reference to apparent political motives behind the court's conviction of Chen Kegui. According to Si Weijiang, "Judicial officiers involved in [Chen Kegui's] case have 'ravaged' common citizens in the name of national interests" (Si Weijiang's personal blog, via Caijing, 1 December 12). Professor Jerome Cohen also described this as a case of "politics before justice," stating, that Chen Kegui is "plainly not guilty," and his case represents one more example of a "political prosecution" under the Chinese legal system (US-Asia Law Institute, 30 October 12). In an interview with the National Review Online (14 March 13), Professor Martin Flaherty of Fordham University Law School confirmed, "There is no doubt that the arrest and conviction of Chen Guangcheng's nephew, Chen Kegui, came about in direct retaliation for Guangcheng's escape..." Advocates from Human Rights Watch (1 December 12) and Chinese Human Rights Defenders (via Amnesty International, 4 December 12) have made similar allegations of retaliation; as has the United Nations Special Rapporteur on Human Rights Defenders, Margaret Sekaggya, who stated, "It is difficult to see the conviction of Chen Kegui as anything else but retaliation against Chen Guangcheng for defying the Chinese Government...I condemn in the strongest terms the conviction of Chen Kegui and urge the Chinese Government to ensure that human rights defenders and their families do not face violations of their fundamental rights as a result of their peaceful human rights activities." (United Nations Office of the High Commissioner for Human Rights, 7 December 12). The Commission previously reported that several others of Chen Guangcheng's relatives and supporters have faced harassment, beating, and detention in connection with his escape.