Appellate Court Orders Retrial of Chen Guangcheng Case

November 3, 2006

The intermediate people's court in Linyi city, Shandong province, has vacated the trial court judgment and ordered a new trial in the criminal case of Chen Guangcheng, according to reports (in English and Chinese) by Radio Free Asia (RFA) on October 31. Chen Guangcheng is a self-trained legal advocate who drew international news media attention in 2005 to population planning abuses in Linyi. Li Jinsong, who previously led Chen's criminal defense team, will continue to represent Chen and will soon travel to Linyi for a meeting with his client, according to RFA's Chinese-language report.

On August 24, the Yinan County People's Court sentenced Chen to four years and three months in prison for "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). On September 3, news media such as RFA and Voice of America reported (in Chinese) that Li Jinsong had filed an appeal on Chen's behalf. The Network of Chinese Human Rights Defenders (CRD) posted a defense opinion (in Chinese), authored by Li and dated September 25, which requested that the appellate court vacate the original judgment and remand Chen's case for retrial in accordance with Article 191 of the Criminal Procedure Law (CPL). Li argued that the trial court had illegally deprived Chen of the right to be represented by criminal defense lawyers of one's own choosing.

The CPL authorizes an appellate court to review both substantive issues (related to the trial court's findings of fact or law, or to its sentence) and procedural issues. Under Article 189 of the CPL, an appellate court has three options when reviewing substantive issues:

  • If the original judgment was correct in its determination of facts, and in its application of law and sentencing, the appellate court will affirm the judgment.
  • If the original judgment contained no error in the determination of facts, but the trial court either applied the law incorrectly or imposed an inappropriate sentence, the appellate court will correct the judgment.
  • If the facts are unclear or the evidence insufficient, the court will correct the judgment after determining the actual facts or, alternatively, vacate the original judgment and remand the case for a retrial.

Under Article 191 of the CPL, an appellate court will vacate the original judgment and remand the case for a retrial if it discovers that the trial court violated certain litigation procedures, including "depriving the parties of their litigation rights prescribed by law or restricting such rights, which may hamper impartiality of a trial." Under Articles 32 and 33 of the CPL, a criminal defendant's litigation rights include the right to "entrust persons as his defenders."

Li's defense opinion also raised substantive issues in addition to the procedural ones, claiming that the case put together by the local public security bureau and procuratorate lacked both clear facts and sufficient evidence, and that the appellate court should therefore overturn the judgment and declare a not guilty verdict. In addition, Li argued that public security and procuratorate officials should bear criminal responsibility under Articles 397 and 254 of the Criminal Law for the actions that they took against Chen in retaliation for his advocacy work. Article 397 imposes liability on government officials who abuse their authority or neglect their professional duties, and therefore cause heavy losses to the public's interests. Article 254 deals specifically with retaliation against citizens who criticize or file complaints about the government. The Supreme People's Procuratorate issued provisions that went into effect on July 26 and detail the criteria for filing cases related to official abuses and retaliation. The initial reporting by RFA provides no indication that the appellate court addressed these arguments.