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Defense Lawyers Oppose Trying the New Citizens Movement Cases as Arbitrarily Separated Cases

Translation of a report by the Chinese service of Radio France Internationale, originally published on December 20, 2013.

 

 

On December 20, Yang Jinzhu, Wang Xing, Ling Qilei and Zhou Ze, defense participants in the “New Citizens Movement” in Beijing, made a joint call for trying their cases together as one trial.

In this series of cases, Xu Zhiyong (许志永), Ding Jiaxi (丁家喜), Zhao Changqing (赵常青), Yuan Dong (袁冬), Zhang Baocheng (张宝成), Ma Xinli (马新立), Wang Yonghong (王永红), Li Wei (李蔚), Song Ze (宋泽, or 宋光强Song Guangqiang), Hou Xin (侯欣) and others were arrested and subsequently charged with “gathering a crowd to disrupt order in a public place” for displaying banners in several public venues in Beijing and to call for asset disclosure by government officials.

From the indictments filed so far, the prosecutors apparently believe that the aforementioned defendants committed a “joint crime.”

Originally, the aforementioned defendants were all investigated by Beijing Public Security Bureau’s public transportation security branch, approved to be arrested, and their cases reviewed for indictment, by the First Branch of the Beijing Municipality Procuratorate. While Xu Zhiyong was indicted [on December 13, 2013] by the First Branch of Beijing Municipality Procuratorate in the First Intermediate Court of Beijing municipality, the Beijing Municipality Procuratorate assigned the cases of some defendants to the Haidian District Procuratorate for review and indictment. Furthermore, the Haidian District Procutatorate arbitrarily divided the case of joint crime into several independent cases.

The defense lawyers have since voiced the reasons why they object to this practice in a detailed Legal Opinion that has been submitted to the First Branch of Beijing Municipality Procuratorate and the Beijing Municipality Haidian District Procuratorate, while sending copies of the Opinion to the Supreme People’s Court, the Supreme People’s Procuratorate, the Higher People’s Court of Beijing Municipality, and the Beijing Municipality Procuratorate.

The lawyers believe that, arbitrarily grouping defendants in a joint crime into separate cases to try is counterproductive  to finding out the facts of the case, nor does it help to identify each defendant’s role in the event. In addition, such practices also violate the stipulation of related law and legal interpretation.

First of all, article 13 of the “Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of the Criminal Law of the People’s Republic of China” stipulates, “In the case when one person is alleged to have committed multiple crimes or several people are alleged to have committed one crime, or when one case needs to be tried with another case, if one person, or one offense, is being handled by a higher court, then the whole case shall be handled by the same higher court.” According to this article, a case of joint crime is a case that needs to be tried as one case, and to the extent that the offense is committed by multiple persons, the trial of each defendant must be conducted in the same court.

The defense lawyers believe that “such practice is obviously unlawful and inappropriate, and will necessarily affect the cross examinations of the defendants, resulting in failure to clarify the facts of the case. More absurdly and damaging to the credibility of the trials, it could very well result in that, while one fact is still being argued in one case, in another case the same fact has already been examined, the trial is over and a verdict reached. People even have reason to believe that, such practice is a depraved act to facilitate political persecution at the expense of the law.

Secondly, the second item of article 222 of the Criminal Procedure Law of the PRC stipulates that “if an appeal is filed by only some of the defendants in a case of joint crime, the case shall still be reviewed and handled as a whole.” The purpose of this statute is to secure balanced and fair handling of each and every defendant in a joint offense so as to avoid a contradictory situation in which some defendants are proclaimed innocent in a second trial that commutes the original sentence, while other defendants in the same case are convicted and sentenced, or, a situation in which the role of each defendant in the case is inappropriately identified.

Now that the related Procuratorate organs in Beijing have arbitrarily divided a joint offense and filed separate indictments, it could very well lead to a situation where some defendants will appeal and be ruled innocent, while other defendants who do not appeal still will be penalized according to the effective verdict of the first trial of their cases.

It is clear that the government divided the case into multiple ones to diminish the impact of a large trial comparable to that of the Formosa Trial in Taiwan, and on the other hand, even though it is unlikely the trials will be open to the public, it is something that will make the government dread and lose face to have several defendants provide testimony in the courtroom and give speeches to support each other.

Finally, the defense lawyers pointed out that everyone knows that Xu Zhiyong, Ding Jiaxi, Zhao Changqing, Yuan Dong and the rest of the accused are considered by the judiciary to have violated the Criminal Law is because they were too trusting of China’s Constitution.  They were merely exercising their citizen’s constitutional rights when they called for government officials to disclose their assets, their actions in no way constituted a crime defined by the Criminal Law, and the charges against them by the Beijing police and prosecutors are nothing but “political persecution.”

The defense lawyers called on the authorities to honor at least the “face” of the law and judiciary procedure and to abide by the related criminal laws that are in effect, even if they are determined to use the law for the purpose of political persecution.

——————

Lawyer Xiao Guozhen (肖国珍), who has been an active participant in the New Citizens Movement, wishes to add the following note:  

From left to right: Guo Feixiong, Yang Zili, Xiao Guozhen, and Xu Zhiyong in a dinner gathering in Beijing.

From left to right: Guo Feixiong, Yang Zili, Xiao Guozhen, and Xu Zhiyong in a dinner gathering in Beijing. Photo provided by Xiao Guozhen. 

The day when Xu Zhiyong’s indictment was made public, friends asked me “Why is Xu Zhiyong indicted separately in a singular case, instead of being indicted along with others in one case?” My fellow attorneys were also asking “why is he handled in a stand-alone case in what is described as a joint crime? Are the prosecutors at the First Branch of Beijing Municipality Procuratorate idiots?”

According to the indictment, the authorities have determined that Xu Zhiyong had accomplices and identifies him as one of the lead “organizers” and “inciters” in the series of offenses of “gathering a crowd to disrupt order in a public place,” for which he will be tried and made to assume legal responsibility.

But if you take a look at the article 48 of the Criminal Procedure Law about admissible evidence, you will not find “confessions from defendants in the same case” or “testimonies from defendants in the same case,” and that’s because these confessions and testimonies cannot be admitted as evidence. Now that the authorities have separated Xu Zhiyong from the rest (the rest of the defendants were further divided into separate cases), his co-defendants cease to be co-defendants anymore, and their confessions and testimonies can then be used as evidence against Xu Zhiyong. In other words, in order to convict Xu Zhiyong, the authorities make sure that Xu Zhiyong has no co-defendants. The prosecutors at the First Branch of Beijing Municipality Procuratorate are not idiots; they are treacherous, and they would frame a citizen with total disregard for the law.

 

 

Related reading:

Indictment of Xu Zhiyong by Beijing Municipal People’s Procuratorate, No. 1 Branch

Indictment of Ding Jiaxi and Li Wei by Beijing Municipal Haidian District People’s Procuratorate

Why the World Needs to Roar around the New Citizens Movement Trials, by Xiao Shu

A Joint Statement by Volunteers of the Education Fairness Campaign

Xu Zhiyong Committed No Crime, I Testify.” Parents who were part of the equal education right campaign in Beijing speak out on video [in Chinese].

The Last Ten Years, by Xu Zhiyong, in which he reviews, among other things, how the equal education rights movement started, its triumphs and regrets.

 

 

(Translation by ChinaChange.org)

Chinese original


3 Comments

  1. […] Defense Lawyers Oppose Trying the New Citizens Movement Cases as Arbitrarily Separated Cases […]

  2. […] It arbitrarily divided a legal “joint case” into several cases so that, according the defense lawyers, the court can admit the testimonies of his friends as evidence against him while “diminishing […]

  3. […] Citizens activist and rights-defending lawyerXiao Guozhen speculates that the police and prosecutors sought to separate the trials so that the statements of the other […]

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