Published: February 8, 2014
Xu Zhiyong submitted an appeal on February 3, 2014, in the Beijing Third Detention Center where he is currently detained. His reasons for appeal are as follows:
I. The court of first instance decided that we had committed the offense of “gathering a crowd to disrupt order;” but we were simply exercising a citizen’s right to freedom of expression, which is guaranteed by the Constitution, and we were asking that a government organ redress its wrong policy. The site where we gathered is the entrance area of a government organ and its nearby sidewalks, and neither are public places defined by the Criminal Law. According to China’s Criminal Law, the impeding of a government organ’s normal work order can only constitute the offense of “gathering a crowd to disrupt social order” or that of “gathering a crowd to assault a State organ,” but not that of “gathering a crowd to disrupt order in a public place.”
Gathering a crowd on public roads to the extent of impeding residents’ use of it can only constitute the offense of “gathering a crowd to disrupt transportation order,” not that of “gathering a crowd to disrupt order in a public place” either.
Finally, our actions constituted no crime whatsoever because they did not hinder the normal work of either the Ministry of Education or the Beijing Municipal Education Commission, nor did they inconvenience the normal goings and comings of the city residents.
II. The court of first instance decided that we had committed the offense of “gathering a crowd to disrupt order” in Chaoyang Park (朝阳公园), Zhongguancun (中关村) and Xidan Plaza (西单广场); but what we did was simply exercise a citizen’s right to freedom of expression that is guaranteed by the Constitution, and citizens have the constitutional right to call for asset disclosure by officials.
“Public order” is a concrete term, not an abstraction, in the Criminal Law. During the trial, the prosecutors had presented no evidence whatsoever to prove that our actions had infringed upon the legitimate rights of any specific resident or any government unit. The court therefore has no right to decide that these actions of calling officials to disclose assets constituted “gathering a crowd to disrupt order in a public place,” and the court cannot make such a ruling according to an abstract idea that social order was affected.
III. The trial was fraught with outrageous procedural violations. According to the indictment, the action brought against Ding Jiaxi, Zhao Changqing, Li Wei, Yuan Dong, Hou Xin, Zhang Baocheng and me ought to be a necessary joint action, and all of us should be tried as one case. But the court not only separated our case into several cases, and more egregiously, it placed their cases at a lower-level court for trials, thus eliminating the second instance’s ability to correct errors of the first instance and review its decision. After my defense lawyer and I made a strong protest, the presiding judge of the first instance said, to my disbelief, that “though we can’t say it is not problematic to handle it so, we will just have to try the case in the manner the procuratorate made indictments.”
The court of first instance had no legitimate reasons to reject witness requests by my defense lawyer and myself. Since I was denied the right to a fair trial, my defense lawyer and I remained silent during the trial.
This case involves basic civil rights, and citizens should have been allowed to have an audience at the trial according to the law. But the court of first instance arranged, in advance, to have irrelevant people occupy the audience seats while refusing to accept requests by the media and by citizens who really cared about the trial, making it not a real open trial but a black-box operation.
IV. In its decision, the court of first instance erred severely in stating the facts. During the trial, the persecutors presented not one single Beijing resident who alleged his or her legitimate rights had been hindered by the New Citizens Movement activities; testimonies by the prosecutors’ witnesses obviously contravened the video recording of the events; and the court didn’t allow any argument and counterargument. Under such circumstances, the court decided that we had seriously disrupted order in a public place. It is a purely fictitious decision.
To sum up, the decision of the first instance distorted the basic facts and applied the law incorrectly. Spare any talk about rule of law in China if the second instance does not correct the decision of the first instance.
First-instance verdict in the Xu Zhiyong case. “In the morning of January 26, 2014, the Beijing Municipal No. 1 Intermediate People’s Court has reached a first-instance verdict in open court concerning the defendant Xu Zhiyong charged with gathering crowds to disrupt order in a public place, confirming Xu Zhiyong has committed the crime of gathering crowds to disrupt order in a public place, and hereby sentences Xu Zhiyong to a fixed term imprisonment of four years.”
(Translation by China Change)