Liu Xiaobo Appeals Sentence; Official Abuses Mar Case From Outset
Prominent intellectual Liu Xiaobo submitted an appeal of his 11-year sentence to the Beijing High People's Court on December 29, 2009. The court will have until mid-February to make its decision, although a ruling could come at any time. As detailed below, Liu was sentenced on Christmas Day 2009 for his peaceful use of the Internet to advocate for political reforms and human rights. Liu argued in his appeal that he was exercising his constitutional right to free speech and that the court should have credited his more than six months under "residential surveillance" toward his time served.
Prominent intellectual Liu Xiaobo submitted an appeal of his 11-year sentence to the Beijing High People's Court on December 29, 2009, according to a January 4, 2010, New York Times (NYT) article. Article 196 of the PRC Criminal Procedure Law gives the high court until mid-February (one and a half months after accepting an appeal) to make its decision, although a ruling could come any time before then. Article 196 also allows the high court to extend its time to decide a case by an additional month, but only under special circumstances.
Freedom of Expression
Liu's main argument on appeal is that he was exercising his constitutional right to free speech and therefore committed no crime, according to one of Liu's lawyers, Shang Baojun, in an interview with Radio France Internationale (RFI) published on January 5, 2010. The Beijing No. 1 Intermediate People's Court earlier found Liu guilty of "inciting subversion of state power" (a crime under Article 105, Paragraph 2, of the PRC Criminal Law). The court, citing six essays Liu wrote and his participation in Charter 08, a document calling for political reform and human rights, said that Liu had incited subversion by publishing "slanderous articles online." The court emphasized that Liu had taken advantage of the special features of the Internet, including the medium's "rapid transmission of information, broad reach, great social influence, and high degree of public attention." The court cited specific passages in Charter 08, which was circulated online, and Liu's essays that were critical of the Communist Party and supportive of democracy, and concluded without further explanation that the words amounted to slander or incitement. The court provided no evidence that Liu advocated violence in his works. Without explaining how the court distinguished words protected as free speech and words constituting incitement of subversion, the court concluded that "Liu Xiaobo's actions have obviously exceeded the freedom of speech category and constitute a crime." Human Rights in China has published an English translation of the trial court's December 25 judgment.
In his interview with RFI, Shang echoed a common concern of defense lawyers handling free speech cases in China, which is the lack of any authoritative guidance on when speech crosses the line from protected speech under Article 35 of the Constitution to the crime of inciting subversion under Article 105 of the Criminal Law. (Other recent cases where Chinese defense lawyers have raised the same concern include those of earthquake activist Tan Zuoren and land rights activist Yang Chunlin). Shang suggested that the court look to international documents for guidance, including the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, which were endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression at several sessions of the UN Commission on Human Rights in the late 1990s and 2001. The Johannesburg Principles provide that expression may be punished as a threat to national security only if a government can demonstrate that the expression is intended to incite imminent violence or is likely to incite such violence. Shang told RFI that Liu's essays advocated non-violence and posed no imminent danger. He said that no acts of violence had resulted from anyone reading Liu's essays.
The Chinese government's application of its subversion provisions, which fall under the category of crimes that endanger national security, violates international human rights standards. Both the International Covenant on Civil and Political Rights (Article 19) and the Universal Declaration of Human Rights (Article 29) require that any restriction on free expression be limited to that which is "necessary" to protect national security, or "solely for the purpose of" protecting national security. The UN Special Rapporteur on Torture has said that the vague wording of China’s national security crimes leaves their application open to abuse of freedom of speech (March 2006 report searchable by date on the UN Office of the High Commissioner for Human Rights Web site). A 2008 study of "inciting subversion" cases by the human rights non-governmental organization Chinese Human Rights Defenders (CHRD) found that "speech in and of itself is interpreted as constituting incitement of subversion" and that "anything from calling for an end to one-party rule to criticizing corruption has been construed as 'inciting subversion of state power.'" For a summary of the content of the six essays by Liu cited in the trial court opinion, see a previous CECC analysis.
De Facto Detention Under "Residential Surveillance" Not Counted Toward Time Served
According to the January 4 NYT article, Liu argued on appeal that the trial court should have counted the more than six months he served under "residential surveillance" from December 9, 2008, to June 23, 2009, toward his 11-year sentence. Article 47 of the Criminal Law provides that time "held in custody" prior to a judgment shall count toward time served, but does not specify whether "residential surveillance" is considered being "held in custody." In the absence of clear guidance on this issue, courts in China have ruled both ways on whether residential surveillance should be counted, according to a September 8, 2009, op-ed in the Procuratorial Daily written by an employee of a prosecutor's office in Jiangsu province. In what appears to be a commentary from a district-level court in Chongqing municipality posted on the Chongqing Courts Web site on August 17, 2009, the court was considering whether time that a convicted drug dealer spent under "residential surveillance" at a drug rehabilitation clinic prior to his sentencing should be credited toward his sentence as time served. The drug dealer forcibly was confined to the rehabilitation clinic during this time. The commentary cited the 1984 Supreme People's Court Reply Regarding the Question of Whether the Period of Residential Surveillance in Accordance With Law Can Be Set Off Against Prison Term, which stated that residential surveillance, if applied legally, is not a "complete restriction" on personal freedom (criminal suspects may, for example, leave their domicile with permission), and as such should not count toward time served. The reply further noted, however, that there may be situations where authorities claim they are holding a person under "residential surveillance" but in essence are "completely restricting" the suspect's personal freedom. The reply found this was the case when authorities confined a suspect in a detention house but claimed it was "residential surveillance." In applying this rule, the Chongqing court commentary found that the drug dealer's personal freedom had been "completely restricted" by being forcibly held at a drug rehabilitation clinic and that the time should therefore count against his sentence.
Based on public reports on the conditions of Liu's "residential surveillance," it would appear that his personal freedom was "completely restricted." Instead of being confined to his home in Beijing, which Chinese law would appear to require, Liu was taken to a secret location. There is no indication that he was allowed any opportunity to leave, and officials restricted Liu's access to his lawyer, in violation of legal provisions allowing suspects under residential surveillance to meet with their lawyer without official permission. Moreover, officials kept Liu under this form of "residential surveillance" beyond the six-month legal limit, before formally arresting him on June 23, 2009. In early June, Liu's lawyer at the time, noted defense attorney Mo Shaoping, told Agence France-Presse that "basically, [Liu's] entire residential surveillance has not conformed with laws and regulations."
Following Liu's arrest, officials continued to ignore legal protections for suspects and defendants and to make it difficult for Liu to mount his defense.
- Liu was denied the right to hire the attorney of his choice. After Liu's arrest, officials barred Mo Shaoping from representing Liu because Mo was a fellow signatory of Charter 08.
- Liu's defense attorneys were denied the right to present their opinions to prosecutors before the indictment was issued, as required by law, and were not given adequate time to prepare for trial.
- Officials barred Liu's wife and foreign diplomats from attending the December 23 trial, according to a December 25 CHRD report.
- Judges reportedly limited Liu's defense lawyers to less than 20 minutes to present their arguments for Liu's innocence, according to the December 25 CHRD report. The report also said that the presiding judge cut Liu off while he was delivering his prepared statement, preventing him from finishing his remarks.
- No witnesses appeared in court, a common occurrence in China. Most criminal cases proceed solely on the basis of written witness statements for the prosecution, leaving the defense with no opportunity to cross-examine the witnesses and challenge such statements. (See p. 106 of the CECC 2009 Annual Report.) According to the trial court judgment, there were 11 witnesses for the prosecution, including Liu's wife. The other 10 were human rights activists who allegedly participated in Charter 08. At least one witness has denied making the statements that the prosecution had attributed to him. In a December 25 statement published on CHRD's Web site, prominent intellectual Zhang Zuhua said he never told police that Liu had published Charter 08 on overseas Web sites, pointing out that both he and Liu had been apprehended by authorities before the charter was released online. "How could I have said that 'Liu Xiaobo posted Charter 08 on foreign Web sites'? Clearly, this characterization has no basis," Zhang said. Another witness, human rights defender Teng Biao, said in a December 26 essay (via Boxun) that the statements from his police interrogation cited in the court judgment were not relevant since he had never mentioned Liu Xiaobo. Teng noted that in his experience authorities often cited family and friends as witnesses not for evidentiary purposes, but rather to sow discord among them and to raise suspicions about the moral character and integrity of the "witnesses."
Selected Responses From Chinese and International Community to Liu's Case and Recent Verdict
- "We Are Willing To Share Responsibility with Liu Xiaobo" (December 10 statement from Chinese citizens who co-drafted or signed Charter 08, via Independent Chinese Pen Center)
- Online Yellow Ribbon Campaign (see December 23 Radio Free Asia article)
- "The Dirtiest of Political Trials" (December 23 statement by Ding Zilin, leader of the Tiananmen Mothers, translated by Human Rights in China)
- U.S. State Department (December 24 Statement by Mark Toner, Acting Spokesman) - "[W]e call on the Government of China to release him immediately and to respect the rights of all Chinese citizens to peacefully express their political views."
- UN High Commissioner for Human Rights Navi Pillay (December 25 Remarks via UN News Centre) - "The conviction and extremely harsh sentencing of Liu Xiaobo mark a further severe restriction on the scope of freedom of expression in China."
- European Union Presidency (Undated Statement on the Sentencing of Liu Xiaobo) - "The verdict against Mr Liu gives rise to concern with respect to freedom of expression and the right to a fair trial in China."
- Former Czech President Vaclev Havel (January 6 Letter to Chinese President Hu Jintao, which Havel attempted to deliver to Chinese Embassy in Prague, as reprinted in the Washington Post) - "There is nothing subversive to state security or damaging to future prosperity when citizens act guided by their own will and according to their best knowledge and conscience, when they associate among themselves to discuss and express peacefully their concerns and visions about the future development of their society."
- Joint Statement by CECC Chairman Byron Dorgan and Cochairman Sander Levin (December 23)