Human Rights in China (HRIC) is extremely concerned about
reports from China that rights defense lawyer Gao Zhisheng has pleaded
guilty to charges of "inciting subversion." Gao went to trial on December 12 at
the Beijing No. 1 Intermediate Court. In light of the lack of transparency
throughout the process, and the climate of intimidation surrounding the case,
including the violent attack on Gao's wife, HRIC urges the international
community to closely monitor this case. "If the rule of law is to mean anything,
defendants should at the very least be afforded effective legal representation
of their choice and access to the evidence against them," said HRIC Executive
Director Sharon Hom.
A letter dated December 8, 2006, from the Mo
Shaoping Law Firm to Gao Zhisheng's brother and wife, who appointed the law firm
to represent Gao Zhisheng, outlines the law firm's three attempts to meet with
Gao Zhisheng in detention, its application to release Gao on bail pending trial
and its attempts to determine the crime with which Gao was charged. According to
the letter, all of these attempts and requests were refused by the authorities,
in clear contravention of Chinese law.
Press Release Supplement:
From: The Mo Shaoping Law Firm
Beijing 100031 P.R.C.
Re: Details of Gao Zhisheng’s Case
To: Mr. Gao Zhiyi and Ms. Geng He
We are the two attorneys hired to act on behalf of Mr. Gao Zhisheng. Having been retained to represent him, we are now providing a written report on our work and views regarding the stages of his lawsuit, as follows:
A. The Investigative Stage
1. On September 19, 2006, we handed over the paperwork retaining us as legal counsel for Gao Zhisheng to the Beijing Municipal Public Security Bureau and requested a meeting with Gao. On September 22, that bureau denied our request for a meeting on the basis that the case “involved state secrets.” On October 13 and October 24, we asked again, on these two occasions, to meet with Gao Zhisheng, and were refused both times.
2. On September 26, we filed an application with the Beijing Municipal Public Security Bureau requesting that Gao Zhisheng be released on bail while awaiting trial. On September 28, that bureau decided that our request for bail could not be granted on the grounds that it “did not accord with the provisions in Article 51 of the Criminal Procedure Law of the People’s Republic of China” (hereafter referred to as the Criminal Procedure Law). On October 24, we again filed an application requesting that Gao Zhisheng be released on bail, and our request was again refused by that bureau.
3. From September 19 to November 21, 2006, we asked the Beijing Municipal Public Security Bureau on several occasions, both orally and in written form, to inform us what crime Gao Zhisheng was suspected of having committed. We were subjected to various kinds of coercive sanctions (if we had not submitted to these, permission for our arrest would have been given). We also inquired into how the investigative process was proceeding. That bureau refused to answer all of our inquiries.
We believe that the above-mentioned actions of the Beijing Municipal Public Security Bureau are serious violations of the law, for the following reasons:
(i) According to Article 9 of the Regulation on Certain Questions Regarding Implementing the Criminal Procedure Law, jointly issued by the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of State Security, Ministry of Justice, and the National People’s Congress Standing Committee’s Legislative Work Committee (hereafter referred to as the Regulation Regarding the Criminal Procedure Law Issued by Six Ministries), “in Article 96 of the Criminal Procedure Law, the phrase ‘cases involving state secrets’ can mean either cases whose case details involve state secrets or cases whose nature involves state secrets. If materials collected while investigating a criminal case and opinions on handling such a case must be protected as secrets, this cannot turn a criminal case into a ‘case involving state secrets.’” In addition, in Paragraph 2, Article 105 of the Criminal Law of the People’s Republic of China, the crime of “inciting subversion” refers to acts of fabricating rumors or using slander or other means to incite the subversion of state power or the overthrow of the socialist system; since acts of fabricating rumors or using slander and so forth are acts that are “carried out in public,” the word “secret” cannot be used in reference to these acts. In the Xiandai Hanyu Cidian (Contemporary Chinese Dictionary), the word “incite” is defined as follows: to encourage other people to commit negative actions (by using words, writing or other means to excite the emotions of others, thereby causing them to undertake an action). Accordingly, since “incitement” must be carried out in public and must involve an unspecified number of people, acts done in secret cannot constitute an act of incitement. Therefore, the Beijing Municipal Public Security Bureau’s reason for not allowing Gao Zhisheng to meet with his lawyers—that the case “involved state secrets”—has no basis from a legal standpoint.
(ii) According to relevant provisions in the Criminal Procedure Law and the Regulation Regarding the Criminal Procedure Law Issued by Six Ministries, as well as Article 24 of the Regulation on Relevant Questions Regarding Lawyers Meeting with Suspects and Defendants in Custody jointly issued by the Beijing Municipal Public Security Bureau and four other departments, “in cases involving state secrets, when lawyers request to meet with criminal suspects in detention…the organ that handles the case should issue a reply to the lawyer within 5 days of the lawyer’s application, indicating whether the application has been approved or not. If permission is granted, the organ must provide the lawyer with a “Permission Letter to Meet with a Criminal Suspect in Custody.” If permission is not granted, the organ should provide the lawyer with a “Notice that Permission is not Granted to Meet with a Criminal Suspect in Custody,” stating the reason why permission was not granted. According to Article 65 of the “Regulation on Procedures for Public Security Organs to Handle Criminal Cases,” if lawyers apply for their client to be released on bail pending trial, they should make this application in writing. After the public security organ receives the application, it should issue a reply within 7 days indicating whether or not the application has been approved. If approval is granted, the appropriate paperwork should be filled out. If bail is not granted, the public security organ must notify the applicant in writing, stating the reasons why the application was rejected.” Regardless of whether or not our request to meet with our client was granted, and regardless of whether or not our application to request bail was granted, the Beijing Municipal Public Security Bureau should have informed us in writing by October 31.
(iii) According to Paragraph 2, Article 96 the Criminal Procedure Law of the People’s Republic of China, which states that “a lawyer retained by a client has the right to find out from the investigating organ the crime that his client is suspected of having committed,” the Beijing Municipal Public Security Bureau’s refusal to inform us of the crime that Gao Zhisheng was suspected of having committed is in violation of the law.
B. The Indictment Stage
On November 27, attorney Ding Xikui went to the Public Prosecution Office of the No. 1 Branch of the Beijing Municipal People’s Procuratorate to hand in the paperwork retaining us as legal counsel. Saying that the official handling this case was not there at the time, the clerk refused to accept the paperwork but promised to pass on the message to that official. After this, we made several phone calls to the official handling the case, named Zhang Rongge, but we were unable to reach him. On November 30, we sent the paperwork retaining us as legal counsel by express mail to Zhang Rongge. On December 4, we phone Zhang again and he told us that he had received the paperwork but that the case had already gone to trial on December 1 at the Beijing No. 1 People’s Court.
We believe that the above actions by the No. 1 Branch of the Beijing Municipal People’s Procuratorate are in violation of the law. In particular: The actions of the procuratorial organ violate Article 139 the Criminal Procedure Law, which states that, “when a people’s procuratorate investigates a case, it must question the suspect and listen to the opinions of the victim and to the legal counsel retained by the suspect and victim”; Article 251 of the People’s Procuratorate’s Detailed Rules and Regulations on Criminal Litigation, which states that “when a people’s procuratorate investigates a case, it must question the suspect and listen to the opinions of the victim and to the legal counsel retained by the suspect and victim. Said questioning and listening to opinions shall be carried out by two or more persons responsible for handling that case and shall be recorded in writing”; Article 252 of the People’s Procuratorate’s Detailed Rules and Regulations on Criminal Litigation, which states that, “if there is any difficulty in directly listening to the opinions of the victim and the legal counsel retained by the suspect and the victim, the victim and the legal counsel retained by the suspect and the victim may be notified in writing that their opinions may be presented in writing. If no opinions have been made in writing within the specified time period, this must be clearly recorded in writing”; and Article 12 of the Supreme People’s Procuratorate’s Regulation Regarding the People’s Procuratorate’s Protection of Lawyer’s Rights to Carry Out Their Legal Duties During Criminal Proceedings,” which states that, “when a people’s procuratorate investigates a case that had been sent to it for prosecution, it must listen to the opinions of the legal counsel retained by the suspect and the victim, and it must clearly record these in writing in the case file. If there is any difficulty in directly listening to the opinions of the legal counsel retained by the suspect and the victim, the legal counsel retained by the suspect and the victim may be notified in writing that their opinions may be presented in writing. If legal counsel does not present any opinions during the period of investigation and prosecution, this must be recorded in the case files.”
C. The Trial Stage
On December 6, 2006, we submitted the paperwork retaining us as legal counsel to the Beijing Municipal No. 1 Intermediate People’s Court. On the afternoon of December 7, attorney Ding Xikui went to meet with Judge Wang He as scheduled. Judge Wang verbally informed Ding Xikui that Gao Zhisheng refused to have any legal defense. However, this was only an oral message from him and no written documentation signed by Gao was provided. Furthermore, Judge Wang tried to return the submitted paperwork to Ding Xikui, but Ding refused to take it back. On December 8, Ding Xikui phoned Judge Jia Lianchun, who was in charge of Gao’s case. Judge Jia said that he had not received the paperwork retaining Ding as legal counsel, that since Gao Zhisheng refused to have any legal representation there was no need for the lawyers to contact him, and that the lawyers were not allowed to meet with Gao.
We believe that the way in which the Beijing Municipal No. 1 Intermediate People’s Court handled this case is extremely inappropriate, for the following reasons: (1) Since there was no signed documentation stating that Gao refused legal representation, only an oral message, there is no way to verify this claim. (2) According to law, Gao’s family has the right to hire lawyers on his behalf (and, of course, this would have eventually required confirmation by Gao). If only Gao had been allowed to meet his lawyers face-to-face and confirm the appointment, this would have removed his family’s doubts on the matter. (3) Even if Gao did express his wish not to have legal representation to the judge, one cannot dismiss the possibility that Gao may have changed his mind after meeting with the defense lawyers hired by his family (the case of Xu Wenli is a good example). (4) Now, the international community is showing great concern over Gao’s case. If no defense lawyer represents Gao in the trial and the family-appointed lawyers are not even allowed to meet with Gao, the implications of this are extremely serious, and a fair judicial process is out of the question.
We will continue to discuss this matter with the judge in charge of Gao Zhisheng’s case.
Attorney Mo Shaoping
Attorney Ding Xikui
The Beijing Mo Shaoping Law Firm
December 8, 2006
Note: The following materials are attached:
1. The letter retaining us as legal counsel by Mr. Gao Zhiyi, received on September 12, 2006.
2. The letter retaining us as legal counsel by Ms. Geng He, received on December 7, 2006.