Beijing Municipal High People’s Court Appeal Decision

Translation by HRIC.

Beijing Municipal High People’s Court Criminal Division, Final Verdict No. 64 (2010)

Original Public Prosecution Organ: Beijing Municipal People’s Procuratorate Branch No. 1

Appellant (defendant of the first instance trial) Liu Xiaobo: male; 54 years old (born December28, 1955); Han ethnicity; born in Changchun, Jilin Province; PhD education; unemployed; registered residence: 2-1-2 No. 5 Qingchun Street, Xigang District, Dalian, Liaoning Province; temporary residence: No. 502, Unit 1, Building 10, Bank of China Dormitory, Qixian Village, Haidian District, Beijing. In January 1991, Liu was found guilty of counterrevolutionary propaganda and incitement but was exempted from criminal punishment; in September 1996, he was ordered to serve three years of Reeducation-Through-Labor on charges of disturbing social order. He was summoned for detention on suspicion of inciting subversion of state power on December 8, 2008; placed under residential surveillance on December 9; and was formally arrested on June 23, 2009. He is now being detained at the No. 1 Beijing Detention Center.

Defense counsel: Ding Xikui, a lawyer with Beijing Mo Shaoping Law Firm.

Defense counsel: Shang Baojun, a lawyer with Beijing Mo Shaoping Law Firm.

The Beijing Municipal No. 1 Intermediate People’s Court tried the case against Liu Xiaobo, defendant of the first instance trial, on charges from Branch No. 1 of the Beijing Municipal People’s Procuratorate that Liu Xiaobo had committed the crime of inciting subversion of state power, and issued the criminal verdict No. 3901 (2009) on December 25, 2009. Liu Xiaobo, defendant of the first instance trial, did not accept the verdict and raised an appeal. This court assembled a collegiate bench of judges in accordance with the law; through its consultation of the [case] files, interrogation of the appellant Liu Xiaobo, and hearing the views of Liu Xiaobo’s defense counsel Ding Xikui and Shang Baojun, [this court] found that the facts were clear and decided to not review the case in open court. The appellate review has concluded.

The criminal verdict of the Beijing Municipal No. 1 Intermediate People’s Court found that:

Between October 2005 and December 2008, the defendant Liu Xiaobo incited others to subvert our country’s state power and the socialist system on many occasions, through methods such as writing essays and issuing them on overseas websites and extensively collecting signatures. The inciting essays that Liu Xiaobo released on the Internet were linked to and reposted by many websites and viewed by many people.

The people’s court of first instance made its factual findings based on: witness testimony, records of the on-scene investigation and examination, conclusive evaluation, material and documentary evidence, and Liu Xiaobo’s confession.

The people’s court of first instance found that Liu Xiaobo, with the intention of overthrowing the state power and socialist system of our country’s people’s democratic dictatorship, used the Internet’s features of rapid transmission of information, broad reach, great social influence, and high degree of public attention, as well as the method of writing and publishing articles on the Internet, to slander and incite others to overthrow our country’s state power and the socialist system. His actions constituted the crime of inciting subversion of state power. Furthermore, the crime was committed over a long period of time, and the subjective malice was immense. The published articles were widely linked, reproduced, and viewed, spreading vile influence. He is a major criminal offender and should be given severe punishment according to the law. The facts in the charge of inciting subversion of state power brought against Liu Xiaobo by the Beijing Municipal People’s Procuratorate Branch No. 1 were clear and the evidence reliable and ample; the criminal charge was well-established. The court thus found that Liu Xiaobo had committed the crime of inciting subversion of state power and sentenced him to a fixed-term imprisonment of eleven years and two years’ deprivation of political rights. All items used by Liu Xiaobo to commit the crime, which had been delivered with the case, were confiscated.

Liu Xiaobo’s grounds for appeal and counsel Ding Xikui and Shang Baojun’s defense were that Liu Xiaobo’s issuing of articles on the Internet was a normal exercise of his civil right to free speech and did not constitute a crime; and that the time that Liu Xiaobo was put under residential surveillance was not deducted from his sentence in the first instance trial verdict, which was inappropriate.

It has been ascertained by this review that:

From October 2005 to August 2007, appellant Liu Xiaobo, due to his dissatisfaction with the political and socialist system of our country’s people’s democratic dictatorship, repeatedly incited others to subvert our country’s state power and the socialist system by means of articles written and published on websites, including those of Observe China and the Chinese edition of the BBC, from his temporary residence of No. 502, Unit 1, Building 10, Bank of China Dormitory, Qixian Village, Haidian District, Beijing. In the published articles, “The CPC’s Dictatorial Patriotism,” “Can It Be that the Chinese People Deserve Only ‘Party-Led Democracy’?,” “Changing the Regime by Changing Society,” “The Many Aspects of CPC Dictatorship,” “The Negative Effects of the Rise of Dictatorship on World Democratization,” and “Further Questions about Child Slavery in China’s Kilns,” Liu Xiaobo slandered as follows: “since the Communist Party of China (CPC) took power, generations of CPC dictators have cared most about their own power and least about human life”; “the official patriotism advocated by the CPC dictatorship is an institutionalized fallacy of ‘substituting the party for the country’; the essence of this patriotism is to demand that the people love the dictatorial regime, the one-party rule, and the dictators; it usurps patriotism in order to inflict disasters on the nation and calamities on the people”; and “all of the tricks used by the CPC are stopgap measures for the dictators to preserve the last phase of their power and will not be able to support for long this dictatorial edifice that is already showing countless cracks.” He also incited as follows: “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.”

Between September and December 2008, Liu Xiaobo, in collusion with others, drafted Charter 08, putting forward various inciting propositions, such as, “abolish one-party monopolization of ruling privileges,” “establish China’s federal republic under the framework of constitutional democracy,” etc. After colluding with others to collect over 300 signatures, Liu Xiaobo distributed Charter 08 with the signatures via e-mail to overseas websites and posted it on overseas websites, such as the websites of Democratic China and the Independent Chinese PEN Center. The aforementioned text posted by Liu Xiaobo on the Internet was linked to and reprinted by many websites and it was also viewed by many people. After committing the crime, Liu Xiaobo was found and brought to justice.

The aforementioned facts are proved by the following evidence:

1. Witness Liu Xia (Liu Xiaobo’s wife) testified that: Liu Xia resides with Liu Xiaobo at No. 502, Unit 1, Building 10, Bank of China Dormitory, Qixian Village, Haidian District, Beijing. They have three computers in their home, one desktop computer and two notebook computers. Because she does not understand computers at all, she has never used their home computers; it is ordinarily only Liu Xiaobo that uses the computers. Liu Xiaobo mainly used the computers to write his articles and to go online. There are only two people living in their home, just Liu Xia and Liu Xiaobo, no one else, and usually nobody comes to visit them at home. If Liu Xiaobo is having a get-together, he generally does it outside their home. Liu Xia is not clear about how the computers in their home get online; as for the Internet connection, it was set up by someone whom Liu Xiaobo contacted at the end of 2001. The source of Liu Xia’s and Liu Xiaobo’s everyday income is the fees for Liu Xiaobo’s writing. Liu Xiaobo opened a bank account in Liu Xia’s name, and the writing fees are deposited into the account at irregular intervals. Liu Xia goes to the bank every month to withdraw money at irregular intervals.
2. The “Account Opening Certificate” and “Bank Remittance Record” issued by the Beijing branch and Muxidi sub-branch of the Bank of China Limited prove that: Liu Xiaobo’s wife Liu Xia’s bank account has received and drawn foreign remittances (foreign currency).
3. The “Response Regarding Assistance in the Investigation of Related Data,” issued by the Beijing branch office of China United Network Communications Group Company Limited, proves that: There are Internet usage records for the ADSL account used by Liu Xiaobo.
4. Witness Zhang Zuhua testified that: Zhang Zuhua collaborated with Liu Xiaobo to complete the drafting of Charter 08 at the end of 2008; he also collected signatures. Afterwards, Liu Xiaobo published Charter 08 on overseas websites.
5. Witness He Yongqin testified that: At the beginning of December 2008, He Yongqin received an e-mailed copy of Charter 08 from Liu Xiaobo. Liu Xiaobo asked He Yongqin to sign it upon reading. After he read it, He Yongqin responded to Liu Xiaobo by e-mail, expressing his consent to signing his name.
6. Witness Zhao Shiying testified that: In October 2008, Liu Xiaobo transferred the Charter to Zhao Shiying online, soliciting Zhao Shiying’s suggestions for revision, and asking that Zhao Shiying seek other people’s signatures. During a get-together, Zhao Shiying showed the Charter to some ten or more people that were present, of whom four expressed desire to sign it. Liu Xiaobo also asked Zhao Shiying online to go to Guangzhou to collect signatures, and Zhao Shiying collected five signatures while in Guangzhou.
7. Witness Yao Bo testified that: In October 2008, Liu Xiaobo spoke to Yao Bo about the Charter when they met, and Yao Bo agreed to sign his name to the Charter.
8. Witness Zhou Duo testified that: One day in November 2008, Liu Xiaobo came to Zhou Duo’s home and showed Zhou a draft of Charter 08, asking Zhou Duo to help with revisions. After Liu Xiaobo left, Zhou Duo looked at the content of the draft, but did not revise it. They had not talked about signatures at the time, but when Zhou Duo later looked at the Charter online, he noticed that the above had his signature.
9. Witness Fan Chunsan testified that: At the end of November 2008, during a meal that Fan Chunsan had with Liu Xiaobo and others, Liu Xiaobo brought out a copy of Charter 08 for Fan Chunsan to look at. Liu Xiaobo asked Fan if he would sign it, and Fan Chunsan agreed to sign it. Fan Chunsan knew that Liu Xiaobo had published articles on overseas websites, such as those of Boxun and the Independent Chinese PEN Center, and had seen them on the Internet. The contents of the articles by Liu Xiaobo were all commentary on current politics.
10. Witnesses Xu Junliang, Zhi Xiaomin, and Teng Biao each testified that: Between November and December 2008, Xu Junliang, Zhi Xiaomin, and Teng Biao received e-mailed copies of Charter 08 in their respective e-mail inboxes, but they did not know who had sent them. After Xu Junliang, Zhi Xiaomin, and Teng Biao each separately signed their names, they returned Charter 08 to the original sender.
11. Witness Wang Zhongxia testified that: In December 2008, Wang Zhongxia saw Charter 08 online; Wang Zhongxia approved of its content, and signed his name to it. Later on, Wang Zhongxia printed a few shirts with the Charter 08 logo, with the intention of wearing them himself and giving them to other people to wear in order to promote Charter 08.
12. The “Search Record” provided by public security organs and photographs of material evidence prove that: On December 8, 2008, public security organs, as witnessed by eyewitnesses, conducted a search of Liu Xiaobo’s residence at No. 502, Unit 1, Building 10, Bank of China Dormitory, Qixian Village, Haidian District, Beijing. They discovered and impounded the devices used by Liu Xiaobo to write and distribute his articles online—two notebook computers and one desktop computer—and a printout of Charter 08 (Draft for Soliciting Opinions).
13. The “Forensic Evaluation Written Opinion” provided by the Union of Network Beijing Forensic Evaluation Center of Electronic Data Evidence proves that: On December 13, 2009, they conducted a forensic evaluation of electronic data stored on Liu Xiaobo’s three computers obtained during the search, and during the evaluation found and extracted electronic versions of “The CPC’s Dictatorial Patriotism,” “Can It Be that the Chinese People Deserve Only ‘Party- Led Democracy’?,” “Changing the Regime by Changing Society,” “The Many Aspects of CPC Dictatorship,” “The Negative Effects of the Rise of Dictatorship on World Democratization,” “Further Questions about Child Slavery in China’s Kilns,” and Charter 08. Among the information recorded by the Skype chat software on the computers, they found and extracted records showing that between November and December 8, 2008, the said software had sent Charter 08 and its “Draft for Soliciting Opinions” several times.
14. The investigation of the scene, examination record, and job description provided by the public security organs prove that:
    
    1. From December 19, 2008 to December 23, 2008, the First Brigade of the Office for the Supervision of Public Information Network Security at the Beijing Municipal Public Security Bureau discovered on the Internet and downloaded the article “Liu Xiaobo: The CPC’s Dictatorial Patriotism,” which bore the signature of “Liu Xiaobo” and was posted on the website with domain name epochtimes.com (Epoch Times), the server for which is located abroad. The article carried the posting date of October 4, 2005. Up until December 23, 2008, there were a total of five webpage links to sites that had posted or reproduced it.
    2. From December 19, 2008 to August 3, 2009, the First Brigade of the Office for the Supervision of Public Information Network Security at the Beijing Municipal Public Security Bureau discovered on the Internet and downloaded the article “Liu Xiaobo: Can It Be that the Chinese People Deserve Only ‘Party-Led Democracy’?,” which bore the signature of “Liu Xiaobo” and was posted on the website with domain name epochtimes.com (Epoch Times) and the website with domain name www.observechina.net (Observe China), the servers for which are located abroad. The article carried the posting dates of January 5, 2006 and January 6, 2006, respectively. Up until December 23, 2008, there were a total of five webpage links to sites that had posted or reproduced it, with a total of 402 hits.
    3. From December 20, 2008 to August 3, 2009, the First Brigade of the Office for the Supervision of Public Information Network Security at the Beijing Municipal Public Security Bureau discovered on the Internet and downloaded the article “Liu Xiaobo: Changing the Regime by Changing Society,” which bore the signature of “Liu Xiaobo” and was posted on the website with domain name epochtimes.com (Epoch Times) and the website with domain name www.observechina.net (Observe China), the servers for which are located abroad. The article carried the posting dates of February 26, 2006 and February 27, 2006, respectively. Up until December 23, 2008, there were a total of five webpage links to sites that had posted or reproduced it, with a total of 748 hits.
    4. From December 20, 2008 to August 3, 2009, the First Brigade of the Office for the Supervision of Public Information Network Security at the Beijing Municipal Public Security Bureau discovered on the Internet and downloaded the article “Liu Xiaobo: The Many Aspects of CPC Dictatorship,” which bore the signature of “Liu Xiaobo” and was posted on the website with domain name www.secretchina.com (“Secret China”) and the website with domain name www.observechina.net (Observe China), the servers for which are located abroad. The article carried the posting date of March 13, 2006. Up until December 23, 2008, there were a total of six webpage links to sites that had posted or reproduced it, with a total of 512 hits.
    5. On December 20, 2008, the First Brigade of the Office for the Supervision of Public Information Network Security at the Beijing Municipal Public Security Bureau discovered on the Internet and downloaded the article “Liu Xiaobo: The Negative Effects of the Rise of Dictatorship on World Democratization,” which bore the signature of “Liu Xiaobo” and was posted on the website with domain name www.secretchina.com (“Secret China”), the server for which is located abroad. The article carried the posting date of May 7, 2006. Up until December 23, 2008, there were a total of seven webpage links to sites that had posted or reproduced it, with a total of 57 hits.
    6. From December 20, 2008 to August 3, 2009, the First Brigade of the Office for the Supervision of Public Information Network Security at the Beijing Municipal Public Security Bureau discovered on the Internet and downloaded the article “Liu Xiaobo: Further Questions about Child Slavery in China’s Kilns,” which bore the signature of “Liu Xiaobo” and was posted on the website with domain name www.minzhuzhongguo.org (Democratic China) and the website with domain name www.renyurenquan.org (Ren Yu Ren Quan), the servers for which are both located abroad. The article carried the posting date of August 1, 2007. Up until December 23, 2008, there were a total of eight webpage links to sites that had posted or reproduced it, with a total of 488 hits.
    7. On December 11, 2008, the First Brigade of the Office for the Supervision of Public Information Network Security at the Beijing Municipal Public Security Bureau discovered on the Internet and downloaded the article entitled Charter 08, which was posted on the website with domain name www.chinesepen.org (Independent Chinese PEN Center), the server for which is located abroad. The article carried the posting date of December 9, 2008, and the author was signed as a group of citizens. On the same day the [brigade] discovered and downloaded an article entitled “Chinese from all Walks of Life Jointly Release Charter 08” on the website with domain name boxun.com (“Boxun”) and the website with domain name www.minzhuzhongguo.org (Democratic China), the servers for which are located abroad. The article carried the posting dates of December 8, 2008 and December 9, 2008, respectively. Up until December 12, 2008, there were a total of 33 webpage links to sites that had posted or reproduced the aforementioned article, 19 of which were to sites abroad, with a total of 5,154 hits and 158 replies. On December 9, 2009, it was discovered that the home page of the website with domain name www.2008xianzhang.info (Charter 08) showed that up until December 9, 2009, Charter 08 had been signed by 10,390 people.
    8. On August 14, 2009, the Office for the Supervision of Public Information Network Security at the Beijing Municipal Public Security Bureau undertook an examination of the e-mail account used by Liu Xiaobo. The examination revealed that the account used by Liu Xiaobo is a foreign one. After verifying the contents through logging in by passwords, it was found that the earliest date on which items were sent from that account was November 25, 2008, and among the sent mail 30 items involved transmission of Charter 08.
15. Articles authenticated by Liu Xiaobo’s signature prove that: Liu Xiaobo identified the articles downloaded and saved by the supervisory department of the public security organs, “Liu Xiaobo: The CPC’s Dictatorial Patriotism,” “Liu Xiaobo: Can It Be that the Chinese People Deserve Only ‘Party-Led Democracy’?,” “Liu Xiaobo: Changing the Regime by Changing Society,” “Liu Xiaobo: The Many Aspects of CPC Dictatorship,” “Liu Xiaobo: The Negative Effects of the Rise of Dictatorship on World Democratization,” “Liu Xiaobo: Further Questions about Child Slavery in China’s Kilns,” Charter 08, and the electronic version of texts extracted from his computers, “The CPC’s Dictatorial Patriotism,” “Can It Be that the Chinese People Deserve Only ‘Party-Led Democracy’?,” “Changing the Regime by Changing Society,” “The Many Aspects of CPC Dictatorship,” “The Negative Effects of the Rise of Dictatorship on World Democratization,” and “Further Questions about Child Slavery in China’s Kilns,” and that Liu Xiaobo confirmed that the identified articles are the articles written by him and published by him on the Internet. The articles that Liu Xiaobo has identified and confirmed by signature contain expressions of incitement as established by the aforementioned facts.
16. Liu Xiaobo confessed that he used his computer to write the aforementioned articles and publish them online. Liu Xiaobo’s confession and the aforementioned evidence are mutually corroborative.
17. The detention procedure report provided by the public security organ proves that: Late on December 8, 2008, the Beijing Municipal Public Security Bureau detained Liu Xiaobo at his residence at No. 502, Gate 1, Building 10, Bank of China Dormitory, Qixian Village, Haidian District, Beijing.
18. The Original Beijing Municipal Intermediate People’s Court’s Criminal Verdict No. 2373 (1990) and the Reeducation-Through-Labor Decision No. 3400 (1996) by the Committee for the Management of Reeducation-Through-Labor of the Beijing Municipal People’s Government prove that: On January 26, 1991, Liu Xiaobo was exempted from punishment for the crime of counterrevolutionary propaganda and incitement. On September 26, 1996, Liu was ordered to serve three years of Reeducation-Through-Labor for disturbing social order.
19. The Identity Verification Material provided by the public security organs bears proof of defendant Liu Xiaobo’s identity, i.e., his name, address, etc.

The aforementioned evidence was cross-examined and verified by the Beijing Municipal No. 1 Intermediate People’s Court in a hearing, and this court has substantiated the evidence through thorough review.

Regarding Liu Xiaobo’s grounds for appeal and counsel’s defense, through reviewing, the evidence in the case has provided sufficient proof of Liu Xiaobo’s use of Internet features to incite subversion of our country’s state power and the socialist system by using the methods of publishing slanderous essays and extensively collecting signatures online. Liu Xiaobo’s actions have conspicuously overstepped the bounds of free speech and constitute a crime. The public security organ’s compulsory measure to put Liu Xiaobo under residential surveillance was in accordance with the stipulations of the law, and was appropriately settled in the original verdict.

This court finds that the appellant Liu Xiaobo, with the intention of overthrowing the state power and socialist system of our country’s people’s democratic dictatorship, used the Internet’s features of rapid transmission of information, broad reach, great social influence, and high degree of public attention, as well as the methods of writing and publishing articles on the Internet and extensively collecting signatures, to openly slander and incite others to overthrow our country’s state power and the socialist system. His actions constitute the crime of inciting subversion of state power. Furthermore, the crime was committed over a long period of time, and the subjective malice was immense. His articles were widely linked, reproduced, and viewed, spreading vile influence. His criminal acts were grave, and he should be punished according to the law. Liu Xiaobo’s grounds for appeal have not been established; his appeal should be overruled. There is insufficient reasoning in the defense appeal statement by Liu Xiaobo’s counsel; therefore, this court does not accept the arguments. The people’s court of first instance made its judgment according to the facts, nature, and circumstances of Liu Xiaobo’s crime as well as the extent of its harm to society. The conviction and application of the law are correct; the penalty and disposal of the items related to the case are appropriate; the trial procedure is lawful; and they should be upheld. On these grounds, in accordance with the stipulations of Article 189, Item 1 of the Criminal Procedure Law of the People’s Republic of China, this court rules as follows:

Liu Xiaobo’s appeal is overruled and the original judgment is affirmed.

This ruling is the final verdict.

Presiding Judge: Zhao Junhuai
Deputy Judge: Lin Bingbing
Deputy Judge: Liu Donghui
February 9, 2010
Clerk: Zhai Shuo