Complaint Against Heyuan Intermediate People's Court and Judges Cui Chunliu, Lei Zhiping, and Xu Ke for Unlawful Handling of Cases and Hindering Lawyers’ Lawful Exercise of Their Litigation Rights

[Translation by Human Rights in China]

Submitted to:

The Heyuan Municipal People's Procuratorate
The Heyuan Municipal Intermediate People's Court

By Complainants:

Defense lawyers for Liu Yao (刘尧)

Li Fangping (李方平), lawyer at Beijing Ruifeng Law Firm and defense lawyer representing Liu Yao and others in their trial of second instance appealing their case where they are charged with extortion and other alleged crimes. Contact phone number: 13901360413.

Yu Pinjian (玉品健), lawyer at Guangdong Zengtai Law Firm and defense lawyer representing Liu Yao and others in their trials of second instance appealing their case where they are charged with extortion and other alleged crimes. Contact phone number: 13392668860.

Defense lawyers for Zou Zhaoxing (Liu Yao’s Son)

Cai Ying (蔡瑛), lawyer at Hunan Daxiang Zhengxing Law Firm and defense lawyer representing Zou Zhaoxing in his trial of second instance appealing the case where Liu and others are charged with extortion and other alleged crimes. Contact phone number: 15807319191.

Wang Fei (王飞), lawyer at Beijing Junben Law Firm and defense lawyer representing Zou Zhaoxing in his trial of second instance appealing the case where Liu and others are charged with extortion and other alleged crimes. Contact phone number: 18801459996.

Complaints:

The Heyuan Intermediate People's Court and Judges Cui Chunliu, Lei Zhiping, and Xu Ke, in handling the trial of second instance of the case where Liu Yao and others are charged with extortion and other alleged crimes, violated the law by hindering lawyers’ lawful exercise of their litigation rights and affected the fairness of the trial.

Facts and Bases:

Liu Yao, because of his exposing relevant Party and government leaders in Heyuan City over a long period, was sentenced at the trial of first instance to ten years in prison on April 24, 2017 by the Heyuan Municipal Yuancheng District Court for committing crimes of extortion, fraud, and buying trafficked children. Zou Yizhong (邹义忠), Huang Wei (黄委), Li Weibin (李伟彬), Li Yongsheng (李永生), and Zou Zhaoxing (邹肇星), son of Liu Yao, were sentenced to fixed-term imprisonment. After the verdict of the trial of first instance, all six did not accept the verdicts and appealed to the Heyuan Intermediate People's Court. Except for Li Weibin and Li Yongsheng, who questioned the excessiveness of the punishment and denied some of the charges, Liu Yao, Zou Yizhong, Huang Wei, and Zou Zhaoxing all maintained their innocence and raised strong objections against the facts and evidence presented in the trial of first instance, protesting the miscarriage of injustice.

After we the complainants joined in the defense for the trial of second instance, we found, through reading case files and meeting with the defendants, that there are serious procedural and substantive issues in this case. They include:

• the abuse of “residential surveillance at a designated place” by public security organs in the name of endangering national security;
• residential surveillance being conducted at the case-handling location;
• the case being filed by the Yuancheng District Branch Public Security Bureau but instead investigated by the police of Heyuan Municipal Public Security Bureau;
• the case-handling authority investigating Zou Zhaoxing’s defense lawyer for the trial of first instance as a case witness;
• the failure of judges of the trial of first instance court to exclude unlawful evidence that should have been excluded;
• violation of the rules on recusal by a judge who presided on a case related to Liu Yao’s and then proceeded to preside over Liu Yao’s case; and
• prohibiting Liu Yao's wife, Lai Wei’e, to attend Liu Yao’s case hearing, in violation of the provisions of open hearings, etc.

In addition, regarding the substance of the case, the trial of first instance clearly failed to ascertain the facts clearly, [contained] insufficient evidence, and erred in the application of laws. The problems described above obviously affected the conviction and sentencing in the case. Based on the above, we the complainants are maintaining a not-guilty defense for Liu Yao and Zou Zhaoxing.

In order [for all parties] to ascertain the facts of the case, we the complainants also submitted new pieces of evidence to the Heyuan Intermediate People's Court regarding the trial of second instance. We also applied at the court to obtain the following:

• information on the progress of the criminal investigation and case filing of Liu Yao and the other five people suspected of illegally providing state secrets overseas,
• simultaneous [unedited] audio-video recordings and other video data of Zou Zhaoxing being interrogated in the (basement) detention room of the Yuancheng District Branch Public Security Bureau,
• financial information on the 50 million-yuan operations  funds of the Guangdong Kangquan Eighteen International Eco-health Travel Co., Ltd (广东康泉十八国际生态健康旅游城公司),
• information on the investigators’ work units, and
• evidentiary materials relevant to the validity of the criminal allegations in this case and the legality of the evidence presented, including the case files of cases linked to the allegation that Liu Yao bought trafficked children.

In addition, since we first handed in the notices of our defense representation, we have been negotiating for an open court hearing, for which we have also made many written applications.

However, the Heyuan Intermediate People's Court and Judges Cui Chunliu, Lei Zhiping, and Xu Ke stalled on their responses to the applications listed above. And on July 11, 2017, they began urging defense lawyers to submit their defense statements. We, the defense lawyers, repeatedly argued that such a major, complicated case of huge controversy—and with so many key facts yet to be investigated—meets the legal requirement for an open court hearing. But the judges ignored our argument and, in violation of provisions of the law, formally issued a notice on July 17, 2017, that the collegiate bench has decided not to hold an open court hearing.

In light of this, we the complainants believe that the Heyuan Intermediate People's Court and Judges Cui Chunliu, Lei Zhiping, and Xu Ke handled the case unlawfully, hindered lawyers’ lawful exercise of their litigation rights, and affected the fairness of the trial. Specific circumstances are as follows:

1. The case is of a type that requires an open court hearing for the trial of second instance; the decision to not hold an open court hearing was a violation of the law.

Article 223 of the Criminal Procedure Law of the People's Republic of China stipulates that the people's court of the trial of second instance should form a collegiate panel and try certain types of cases in open court hearings, including: “(1) A case in appeal where the defendant or plaintiff, and his or her legal representatives raise objections to the facts and evidence ascertained in the trial of first instance, which objections may affect the conviction and sentencing . . . .”[1]

In their appeal of the present case, six people, including Liu Yao, raised strong objections to the facts and evidence ascertained in the trial of first instance, and four of them categorically rejected the verdict of the trial of first instance and definitively stated their innocence. We the defense lawyers, after reading the case files, believe that the trial of first instance failed to ascertain facts clearly and contained insufficient evidence, and we are maintaining a not-guilty defense [for their clients]. The objections described above are sufficient to affect the conviction and sentencing [of the defendants]. In light of such huge controversy, the most basic procedural justice simply cannot be realized without an open court hearing.

In addition, without an open court hearing, the new evidence offered by we the defense lawyers, their relevant applications to obtain new evidence, and their applications for the evaluation [of the new evidence] and for the exclusion of unlawful evidence cannot move forward, and the effective introduction and examination of evidence cannot be achieved. This will inevitably lead to a failure to ascertain the facts of the case, thus seriously affecting the substantive results.

2. The judge should have voluntarily recused himself but did not.

After we the complainants consulted documents related to the verdict, we found that Cui Chunliu, the presiding judge of this case, had participated in the trial of second instance of the case of Liu Yao's wife, Lai Wei'e, who was accused of buying trafficked children, and found Lai guilty as charged. Cui should have been no longer eligible to try the case of Liu Yao, who is a so-called accomplice. Cui’s final verdict on a connected case with implications for this case [Liu Yao’s case] would have inevitably generated in him a preconceived view that would affect the fairness of this trial. Therefore, he should have voluntarily recused himself. Not recusing oneself when one should is obviously a violation of the law.

3. Not obtaining relevant evidentiary materials when they should be obtained prevents the thorough investigation of the facts of the case.

As described above, we the complainants, during the defense of the trial of second instance, filed a number of applications to obtain evidence, but the court and the collegiate panelists have so far ignored the applications. Although they initially agreed to provide the case files of Lai Wei’e, who was charged with buying trafficked children, the files finally obtained were only the verdicts of the trials of first and second instance—a completely perfunctory response. In a situation where they have already clearly decided not to hold an open court hearing, they have refused to respond to other applications [for us to obtain other materials], and those materials have not been obtained thus far.

4. Not initiating the process to exclude unlawful evidence when the process should be initiated.

In the present case, the case files show that during the phase of investigation by public security, a large number of investigative activities were conducted by the police of the Heyuan Municipal Public Security Bureau who were not part of the investigative unit.[2]Appellant Zou Zhaoxing also disclosed that during the period of residential surveillance he was detained in the Yuancheng District Public Security Bureau’s detention room for 108 days. According to stipulations of the law, the evidence obtained by an unlawful investigating entity cannot be used as the basis for the verdict in the case. Evidence such as interrogation records obtained during the period in which the defendant is under residential surveillance detention at a location where the case is being handled also cannot be used as the basis for the verdict in the case, and should be excluded in accordance with the law. The trial of second instance, as an error-correction procedure, should have initiated the process of excluding unlawful evidence in accordance with the law. But since the collegiate bench decided not to hold an open court hearing in violation of the law. As a result, that process could not be initiated objectively.

In sum, Liu Yao being sentenced to 20 years' imprisonment has great impact on him individually and on his family. A sentence of 20 years is perhaps at the uppermost limit of sentences handed out by a grassroots-level court. However, in a case of such enormous controversy that also meets the conditions for an open court hearing, the collegiate panelists still persisted in their determination, going beyond the limits of their discretionary power, to not hold an open court hearing. This not only seriously infringes on the party's important litigation rights, but also objectively hindered we the defense lawyers’ realization of our litigation rights, including the right to investigate and obtain evidence, the right to submit and examine evidence, and the right to argue in defense.

Therefore, in accordance with the “Provisions on Protection of Lawyers' Practicing Rights in Accordance with the Laws” of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of National Security, and the Ministry of Justice, we the complainants hereby submit our complaint that the Heyuan Intermediate People's Court and Judges Cui Chunliu, Lei Zhiping, and Xu Ke unlawfully handled cases and hindered lawyers’ lawful exercise of their litigation rights. We urge you to perform your supervision duties in accordance with the law and order them to correct their mistakes.

Complainants:

Liu Yao’s defense lawyers: Li Fangping, Yu Pinjian

Zou Zhaoxing’s defense lawyers: Cai Ying, Wang Fei