To the first department of the Criminal Division of Beijing Municipal High People’s Court:
Honorable Presiding Judge Zhao Junhuai and Judges Liu Donghui and Lin Bingbing:
We have been retained in the present case of the appellant Liu Xiaobo and have been designated by the Beijing Mo Shaoping Law Firm; we are continuing to serve as defense counsel during Liu Xiaobo’s appeal against the charge of inciting subversion of state power. We will faithfully fulfill the obligation of defense counsel that is stipulated in Article 35 of the Criminal Procedure Law of the People’s Republic of China (hereinafter referred to as the Criminal Procedure Law); we will, according to facts and law, put forward materials and opinions proving that Liu Xiaobo is innocent, that the crime was light, or that his criminal responsibility should be exempted or mitigated; and we will uphold Liu Xiaobo’s lawful rights and interests in accordance with the law. We have carefully read the criminal verdict by the Beijing Municipal No. 1 Intermediate People’s Court (hereinafter referred to as the “court of first instance”) (2009) No. 3901 (hereinafter referred to as the “verdict”), carefully studied the proof upon which the verdict was based, and have heard at length Liu Xiaobo’s own views on the verdict. In light of the verdict completely accepting all charges and evidence in the indictment put forth by this case’s public prosecutor, the No. 1 Branch of the Beijing Municipal People’s Procuratorate, the defense adheres to its original plea in the first instance, namely that: 1) the existing evidence cannot prove Liu Xiaobo’s subjective intent to incite subversion of state power; 2) the charges of inciting subversion of state power against Liu Xiaobo in the indictment are “sweeping” and “take things out of context”; 3) the charges in the indictment blur the line between a citizen’s free speech and criminal offenses; and 4) there were significant flaws in the investigation, procuracy review and indictment, and trial process. Thus Liu Xiaobo should be found not guilty!
Regarding the verdict, the defense needs only to re-emphasize the following:
The residential surveillance of Liu Xiaobo undertaken by the investigating organ of this case, the Beijing Municipal Public Security Bureau, is actually a disguised method of detention, and the duration of Liu’s surveillance should therefore be set off against his sentence. It is wrong that the verdict did not accept this argument.
While the defense is entering a plea of not guilty and does not agree with the court of first instance’s guilty verdict, the investigating organ’s “ residential surveillance ” of Liu Xiaobo was effectively a disguised method of detention and therefore, on the basis of judicial interpretations of the Supreme People’s Court and the relevant regulations, the period of “residential surveillance” should be set off against the sentence period.
According to the stipulations of Article 57 of the Criminal Procedure Law and the stipulations of Articles 97 and 98 of the Regulations on the Procedures for Handling Criminal Cases by Public Security Organs, investigating organs shall observe the following provisions when adoptingresidential surveillance measures: 1) residential surveillance shall be carried out in the criminal suspect’s domicile (only for those without a fixed domicile can residential surveillance beconducted at a location determined by the investigating organ); 2) those put under residential surveillance have a right to live together with family members with whom they reside; and3) those put under residential surveillance do not need approval to meet with their attorney.
The Beijing Municipal Public Security Bureau, the investigating organ of this case, fundamentally violated the above provisions during Liu Xiaobo’s residential surveillance. The specific facts and reasons are as follows:
In sum, the Beijing Municipal Security Bureau’s residential surveillance of Liu Xiaobo was actually a disguised method of detention. The duration of Liu Xiaobo’s “residential surveillance” should be set off from his prison term per the stipulations set out in the Reply from the Supreme People’s Court Regarding the Question of Whether the Lawful Residential Surveillance Period Can Be Set Off against the Prison Term, “if the criminal acts for which the defendant was sentenced and penalized and the acts for which the defendant was detained or taken into custody prior to arrest are the same acts, then the detention period can be set off against the prison term, regardless of the detention location, provided that there was a complete restriction on his personal freedom.”
As the defense counsel’s defense statement of the first instance expounded amply on the facts, laws, and legal principles of this case, we need not repeat them here. We hereby make the following defense arguments in regards to some common-sense questions touched upon in the verdict of the first instance trial:
I. On state power, the government, and the ruling party
Normally in political science and legal theory, “state power,” the “government,” and the “ruling party” are all different concepts.
“State power” is the specific embodiment of the state. It refers to the political organization that controls national sovereignty and all of the political power that it holds, to uphold the rule and administration of society. Generally this includes armed forces, police, courts, government, and officials.
The “government” is the executor of a state’s administrative power. It specifically refers to the organizational structure that enjoys administrative power according to the law within a state’s political system, i.e., the administrative organs among the institutions of the state’s political power.
The “ruling party” refers to the political party that wields a country’s state power through institutional elections or violent revolution. It can be one political party or an alliance of several political parties.
The government is the executor of a state’s administrative power. In the course of exercising its power, it is difficult for the government to avoid shortcomings or mistakes. As the ruling party is the wielder of state power, and it is often said that it “governs,” it is also difficult for the ruling party, in the course of governing, to avoid shortcomings or inadequacies and mistakes. Criticizing or censuring these types of shortcomings, inadequacies, or mistakes is a right due to any citizen, and it is also the foundation of Article 41 of the Constitution of the People’s Republic of China. Specific to this case, that Liu Xiaobo, in his capacity as a citizen, criticized the government and the ruling Communist Party of China (CPC) even to the point of opposition was one method of exercising his constitutional rights. Regardless of whether his criticism or opposition was substantially correct or not, it has no relation to the subversion of state power!
Around 70 years ago in Jiangsu, Zhang Shizhao made an incisive analysis of the relationship between the state, the government, and the party in his plea on behalf of CPC founder Chen Duxiu as he was being tried for endangering the Republic of China: “The ‘government’ is not equivalent to the ‘state.’ The sovereignty of the Republic was with the people; restoring the old system would have been treason and endangering the country. Any attack, regardless of it being toward the government or a person or party within the government, is normal; only a semi-civilized country would subject those who criticize to criminal punishment.” Seventy years later, as the entire world has undergone earth-shaking changes, is it possible that our rule of law common sense has not only not increased but instead declined?
II. On the freedom of speech
Normally in political science and legal theory, freedom of speech is the right to freely discuss with and to hear the opinion of others as one wishes. Freedom of speech generally is regarded as an indispensible value and idea in modern democracies, the most fundamental human right. This means that every person has the right to voice “correct speech” and, moreover, the right to voice “wrong speech.” (If only “correct speech” is allowed and “wrong speech” is prohibited, then it cannot be called “free speech.”) [The exercise of] public power can not only not intervene [in this right], it cannot deprive [someone of this right to voice views] nor can it censor; it can only uphold [this right]. This is the foundation of Article 35 of the Constitution of the People’s Republic of China. In its verdict, the court of first instance, which was exercising government power, not only intervened and deprived Liu Xiaobo of his right to voice “wrong speech” in this case, it also sentenced Liu Xiaobo to a fixed term of eleven years’ imprisonment because he voiced his views. This is an abuse of public power and, moreover, a subversion of the commonly-held definition of “free speech.”
The criminal evidence establishing Liu Xiaobo’s acts of inciting subversion of state power that the verdict sets forth were certain “inciting” phrases from six articles that Liu Xiaobo published on the Internet and from Charter 08. As cited in the verdict, [these included]: “changing the regime by changing society”; “for the emergence of a free China, placing hope in ‘new policies’ of those in power is far worse than placing hope in the continuous expansion of the ‘new power’ among the people”; “abolish one-party monopolization of ruling privileges”; and “establish China’s federal republic under the framework of constitutional democracy.”
Setting aside the suspicion that the “criminal evidence” set forth in the verdict and listed above was taken out of context and wantonly distorted, merely from the perspective of a commonly held understanding of “free speech,” one can easily see that the “criminal evidence” consisted only of Liu Xiaobo’s views and ideas. Putting aside the question of whether or not his views and ideas are correct, but how are they relevant to “inciting subversion of state power”? Specifically:
Extracting about 350 words from the six articles among the approximately 2,100,000 words in a total of 499 articles published by Liu Xiaobo since 2005, and then deciding Liu Xiaobo committed the crime of inciting subversion of state power—isn’t that an enormous ridicule of freedom of speech?
III. On procedural justice
Strictly abiding by due process of law is the crucial guarantee for realizing the equal enjoyment of justice by everyone in front of the law, and also part of the proper meaning of “respecting and safeguarding human rights” as prescribed in the Constitution of the People’s Republic of China. As the legal proverb goes: not only must Justice be done; it must also be seen to be done, namely, visible justice! This is what every judge with the judicial power to take away he lives, freedom, and property of citizens should bear in mind! The judges in this court are no exception. As the court of first instance turned a blind eye to serious procedural violations, including the disguised method of detention that Liu Xiaobo was subjected to in the name of residential surveillance during the investigation, the failure to hear the defense counsel’s argument in accordance with the law during the procuratorate’s examination, and the limiting of Liu Xiaobo’s self-defense speaking time and the oral argument time of defense counsel during the trial, how can we talk about procedural justice? Not to mention judicial fairness!
It is the defense’s firm belief: Liu Xiaobo is innocent, and any verdict that finds Liu Xiaobo guilty cannot withstand the trial of history!
Defense counsel for Liu Xiaobo in the trial of second instance:
Beijing Mo Shaoping Law Firm
Shang Baojun, Attorney at Law
Ding Xikui, Attorney at Law
January 28, 2010
1. All emphasis from source text. ^