Tuesday, September 24, 2013

Justice Ministry to Silence Lawyers with New Confidentiality Rules

China University of Political Science and Law Professor Wang Jianxun. Photo credit: sohu.com

Months before China’s highest court and prosecutor prescribed imprisonment for online posts that got too popular, the Ministry of Justice introduced information controls in draft regulations targeting criminal defense lawyers. Circulated to province-level judicial administration departments earlier this summer, the rules were met with criticism from those in the legal profession.

Defense lawyers voiced concern that certain provisions would impose upon them absolute obligations to keep various case details confidential. Compared with the Supreme People’s Court’s judicial interpretation of the Criminal Procedure Law that barred the use of social media in the courtroom, the Ministry of Justice rules go further. While the judicial interpretation only covers the conduct of lawyers inside the courtroom and, specifically, their ability to reveal trial proceedings, the rules impose limitations on things like sharing case information with the relatives of defendants or accessing or reproducing court records. As the body mandated with the supervision of lawyers, the ministry also has more direct weapons (e.g., the approval of lawyer licenses) to use as punishment against those who fail to abide by its rules.

The main concern, explains China University of Political Science and Law Professor Wang Jianxun, is that the rules are aimed at preventing defense lawyers from using the media and the Internet to raise public awareness about individual cases that may become miscarriages of justice.

In recent years, Chinese lawyers have increasingly made public details of ongoing criminal cases involving procedural irregularities or other types of injustice. There is a perception among some, however, that such mobilization of public opinion interferes with courts’ ability to adjudicate cases independently and ought to be curbed in an effort to promote rule of law.

But as Professor Wang notes, in an article published by Caijing (translated below), the Chinese judicial system is plagued by insufficient transparency and imperfect attention to procedural rights. Moreover, “coordination” between judicial and law-enforcement bodies under the party’s guidance limits, rather than promotes, judicial independence. Under these circumstances, publicity and public opinion offers an important channel through which courts, prosecutors, and police may be held accountable for their actions in the criminal process. Imposing an absolute ban on revealing case details would further limit lawyers’ ability to defend their clients and could potentially result in sanctions for those lawyers who violate these provisions.

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Lawyers’ Defense Rights and the “Cutthroat” Bill

Wang Jianxun
Caijing, July 29, 2013

In the wake of the promulgation of rules related to the new Criminal Procedure Law by the Supreme People’s Court, Supreme People’s Procuratorate, and Ministry of Public Security, the Ministry of Justice (MOJ) has also drafted a consultation version of Regulations on Several Issues Concerning Criminal Defense by Lawyers, regulations specifically aimed at regulating the criminal defense activities of lawyers. These regulations concern issues related to the appointment of criminal defense lawyers and their abilities to meet with clients, read case files, and carry out defense work. Many provisions tend toward restriction of lawyers’ defense rights, among which a widely criticized one is the requirement that lawyers keep case information confidential.

According to Articles 18, 27, and 42 of these regulations, defense lawyers must not leak notes, audio recordings, video recordings, or photographs to relatives of criminal suspects or defendants or use case-file documents or notes or audio- or video recordings made during the trial for purposes other than defense in that case. Also, any audio- or video recording of the trial or requests to view or reproduce audio- or video recordings of the trial made by the people’s court must first get the court’s approval.

What do these provisions mean, ultimately? Will they constrict the already narrow space available for criminal defense even further? How will lawyers’ criminal defense rights be protected?

There’s no doubt that criminal cases are special, and it’s understandable that lawyers’ activities in criminal litigation be subject to certain regulation and restriction. But the problem is that restrictions on lawyers’ activities ought to be premised on protecting their rights to engage in defense and motivated by protecting the rights of criminal suspects and defendants. After all, the entire system of criminal defense was set up to protect the rights of these persons, and to protect the rights of lawyers to engage in defense is also to protect the rights of suspects and defendants.

In this respect, there is nothing improper about requiring criminal defense lawyers to fulfill certain confidentiality obligations, but complete or unconditional requirements that lawyers keep case information secret are inappropriate.

If in certain special instances secrecy does not benefit a lawyer’s exercise of defense rights or benefit protection of the rights of a criminal suspect or defendant, then there is no reason to require the lawyer to fulfill this kind of confidentiality obligation. For example, the MOJ regulations bar defense lawyers from leaking notes, audio recordings, video recordings, or photographs to relatives of criminal suspects or defendants. Does this mean that defense lawyers may not report information about the case or give a progress report to those relatives? If those things are prohibited, how are they supposed to coordinate on behalf of defending the suspect or defendant?

As another example, the MOJ regulations also bar lawyers from using case documents or notes or audio- or video recordings of the trial for purposes other than defense in the case at hand. This provision is intended to prevent lawyers from revealing information about cases to outsiders.

The question is: what is the legal basis for this sort of prohibition? If a defendant’s confession is coerced through torture, can’t a lawyer notify relatives of audio or videotapes or make them public? And how does one define “other purposes”? Does discussing details of the case with relatives of a suspect or defendant count as “other purposes”? Does being interviewed about a trial count as “other purposes”? Does publicizing details of the trial online count as “other purposes”?

There is widespread concern among lawyers that these provisions barring defense lawyers from revealing case details will in fact block them from using the media and public opinion to prevent miscarriages of justice. In a society where rule of law is imperfect and the judicial process is not independent, there is already limited space for criminal defense. The rights of lawyers to engage in criminal defense work are unable to receive effective protection, and the rights of criminal suspects and defendants are often violated. For proof, just look at the frequent occurrence of miscarriages of justice and the jailing of some criminal defense lawyers.

If one says that the confidentiality responsibility of lawyers in societies with rule of law does not worry people because of procedural justice, then in a society with imperfect rule of law this kind of confidentiality responsibility has the possibility to deny a wrongly accused criminal suspect or defendant their final hope of obtaining justice.

In fact, when we look at the level of practice, in a society where the judicial process is not independent and procedural justice is not made manifest, the act of a lawyer revealing case details will often enable an unfair case to turn itself around and either prevent or remedy a case of injustice due to false evidence or errors in the law.

Cases like the “Beihai Case” in Guangxi or the “Xiaohe Case” in Guiyang were able to benefit to a considerable degree from timely publicity of case information by defense lawyers in order to avoid an even greater degree of judicial unfairness. As everyone knows, one of the chronic problems of the criminal process is insufficient openness and transparency. Even though trials and verdicts are supposed to be public according to the law, in practice both are regularly done in a non-open manner—especially those so-called sensitive or major and important cases. The court often makes excuses for refusing to try a case in public, whether it’s through the excuse that all observer permits have been distributed already, deliberately holding the trial in a small courtroom, or even making it impossible for the defendant’s relatives to observe.

In essence, these kinds of trials are secret trials, and not only do secret trials violate the law, they are also unfair. Even worse, in many criminal cases, defendants and their relatives don’t even get copies of the verdicts.

In this kind of situation with no open trials or verdicts, what is the crime in a defense lawyer making details of the case public? Otherwise, would there be any openness to speak of in the entire criminal process? Without openness, how can the fairness of the judicial process be guaranteed?

One of the signs of humanity’s becoming more civilized is the shift from secret trials to public trials and the shift from secret decisions to public decisions. Where there are secret trials and secret decisions, there is no reason to bar lawyers from revealing case details; otherwise, it’s unavoidable that defendants’ rights will get trampled upon.

Then if you permit lawyers to reveal case details as they please—especially in those cases that have not yet been tried—what do you do when these actions have negative consequences for adjudication or even judicial independence? Frankly speaking, this sort of worry is not without merit because public opinion has the potential to be a double-edged sword.

However, the way to go about resolving this problem is not to bar lawyers from revealing case details, which could possibly make it so that these cases of injustice have no remedy. Rather, the solution is to establish judicial independence in an institutional way and realize the procedural justice of the Criminal Procedure Law.

Were the judicial process to truly achieve independence, then even if a lawyer reveals details of a case or public opinion exerts pressure on the judicial process the judicial process would be able to handle it calmly, stand firm, and carry on. It thus wouldn’t have to worry about the improper influence of public opinion or the media.

Only a judicial system that is not independent will be vulnerable in the face of public opinion and [state] power.

The author is an assistant professor at China University of Political Science and Law.

Tuesday, September 17, 2013

Veteran Rights Activists and the Quantification of Dissent


The 2011 verdict against Chen Wei (left) quantifies the influence of his "incitement" with page views.

A new judicial interpretation defines the number of hits and reposts necessary for online information to be classified as “serious” slander, but counting page views existed in the judicial equation at least as far back as 2009. In December of that year the Beijing Municipality No. 1 Intermediate People’s Court sentenced Liu Xiaobo to 11 years in prison for inciting subversion.

In the verdict against him, translated by Human Rights in China, the Beijing court listed the number of links, repostings, and/or hits for seven articles he had written or co-authored. The majority had fewer than 800 hits—most far fewer—but one of them was said to have a total of more than 5,000 hits: Charter 08, a political manifesto calling for multi-party government.

The judicial interpretation, issued by the Supreme People’s Court and Supreme People’s Procuratorate earlier this month, lists the accrual of at least 5,000 hits or 500 reposts for a single item as “serious circumstances” for cases involving online defamation. The judicial interpretation applies to crimes of defamation, causing a serious disturbance, extortion, and illegal business activity, but not to inciting subversion.

In 2011, at least five men were given lengthy prison sentences for “serious” cases of inciting subversion in which their verdicts quantified the reach of the essays they had authored. Both Chen Wei and Liu Xianbin (March 2011 verdict) were sentenced by the Suining Intermediate People’s Court in Sichuan Province, while Chen Xi (December 2011 verdict) was sentenced by the Guiyang Intermediate People’s Court in Guizhou Province. Writers Lü Jiaping and Jin Andi were sentenced 10 years and 8 years, respectively, for writing articles accusing a former leader of ceding northeast territories to Russia.

In the criminal verdict against Chen Wei (translated below from a posting by Chinese Human Rights Defenders), the Suining court classifies his crime as serious, reasoning that he “published many articles on the Internet [that] had a strong instigatory nature, and their scope of influence was great.” In demonstrating the influence of the articles, the verdict notes that 11 items published on overseas websites by Chen Wei had been linked to by a total of 37 web pages and received 8,524 hits. The verdict states repeatedly that the articles he wrote spread “rumors and slander.”

If linking to articles is proxy for re-posting, Chen’s essays—shared by just 37 web pages—didn’t come close to the threshold introduced this year. If averaged over 11 items, his page views also fell far below the mark, averaging 775 views per article.

But back then, there was no benchmark. And, of course, the number of times information is viewed does not alone determine the severity of exposure. Influence and social context are important. Like Liu Xiaobo, by the time of their latest court hearings, Chen Wei, Liu Xianbin, and Chen Xi were all veteran rights activists with an aptitude for organizing and speaking their minds. Chen Wei and Chen Xi (no relation) were detained in the wake of the Jasmine Revolution—an uprising that was supposed to have been modeled on the popular uprisings of the “Arab Spring,” but never happened.

In 2013, as the crackdown on activists like Xu Zhiyong unfolds around the New Citizen’s Movement, will the numerical guidelines for “rumors and slander” become the yardstick for quantifying dissent?

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Suining Intermediate People’s Court of Sichuan
Criminal Verdict

(2011) Sui. Int. Crim First No. 00054

The prosecuting organ is the Suining People’s Procuratorate of Sichuan.

Defendant Chen Wei, male, born February 21, 1969, in Suining, Sichuan, Han ethnicity, attended university, unemployed, place of household residence at [redacted by translator], Suining, Sichuan, resides at [redacted by translator], Suining, Sichuan. In December 1994, he was sentenced to five years’ imprisonment, with subsequent deprivation of political rights for two years, for the crime of counterrevolutionary propaganda and incitement. He was released from prison at the end of his sentence on May 28, 1997. On February 21, 2011, he was placed under criminal detention on suspicion of inciting subversion and formally arrested on March 28 of that year. He is currently being detained in the Suining Detention Center.

Defense counsel is Zheng Jianwei, attorney with the Chongqing Kangshi Law Firm.

Defense counsel is Liang Xiaojun, attorney with the Beijing Daoheng Law Firm.

On November 25, 2011, the Suining People’s Procuratorate filed indictment Sui. Proc. Indict. (2011) No. 42 with this court, charging defendant Chen Wei with inciting subversion. This court formed a collegiate bench in accordance with the law and held a hearing in open court to try this case. The Suining People’s Procuratorate appointed prosecutor Li Hongzhi and associate prosecutor Li Qin to appear in court on behalf of the prosecution. Defendant Chen Wei and his defense counsel Zheng Jianwei and Liang Xiaojun appeared in court to participate in the proceedings. The trial has now concluded.

The Suining People’s Procuratorate alleged that: Between March 2009 and January 2011, defendant Chen Wei used the Internet to publish “Systemic Illness and the Medication of Constitutionalism and Democracy” and other articles that he had written on overseas websites such as minzhuzhongguo.org, Human Rights in China, and yibaochina.com, spreading rumors and slander [such as] “the people have been deprived of their [freedoms of] thought and belief” and “the Chinese Communist Party uses the machinery of violence to control the people” and inciting “the death knell has tolled for one-party dictatorship” and “[we] must change this system.” His articles were widely linked to, reposted, and viewed, [causing] an extremely bad influence. In court, the prosecution produced evidence including a crime scene inspection record, an inspection work record of electronic evidence, expert verifications, witness testimony, and the defendant’s confession. The prosecution maintains that defendant Chen Wei’s actions constitute the crime of inciting subversion, falling under the category of a serious offense, and it requests that the people’s court issue a verdict in accordance with the law.

Defendant Chen Wei and his defense counsel argue in defense that Chen Wei did not have the intention to incite subversion of state power and what he published were all theoretical articles that did not contain rumors or slander. [They further argue that] his views fall within the scope of a citizen’s freedom of speech and do not constitute the crime of inciting subversion and that he is not a repeat offender.

In the course of the trial it was ascertained that: Between March 2009 and January 2011, defendant Chen Wei used the Internet to publish “Systemic Illness and the Medication of Constitutionalism and Democracy,” “The Growth of Civil Opposition is a Crucial Factor in China’s Democratization,” “The Harmony Trap and the Absence of Fairness,” “Reflections on a Hunger Strike on Human Rights Day” and other articles that he had written on overseas websites such as minzhuzhongguo.org, Human Rights in China, and yibaochina.com, spreading rumors and slander [such as] “the people have been deprived of their [freedoms of] thought and belief,” “the Chinese Communist Party uses the machinery of violence to control the people,” “[they] are the enemies of democracy,” and “everyone realizes the Chinese Communists’ anti-human nature” and inciting “the death knell has tolled for one-party dictatorship,” “use street-level opposition to promote civic politics,” and “[we] must change this system.” His articles were widely linked to, reposted, and viewed, [causing] an extremely bad influence.

The aforementioned facts are confirmed by the following evidence, which was cross-examined and confirmed in court:

1. A record of receiving a criminal case, case-filing decision, case-solution report, and report of custody, confirming the source of the case and details about the investigation and manner in which Chen Wei was taken into custody.

2. A search warrant, search record, inventory of seized items, a record of crime-scene inspection, and crime-scene photographs, confirming that the investigating organ seized two laptop computers, a portable hard drive, and some train tickets from Chen Wei’s residence in accordance with the law.

3. Inspection work records of electronic evidence from the Suining Public Security Bureau—Sui. PSB (Int. Sec.) Inspect [2011] No. 011 Inspection Work Record of Electronic Evidence, Sui. PSB (Int. Sec.) Inspect [2011] No. 012 Inspection Work Record of Electronic Evidence, Sui. PSB (Int. Sec.) Inspect [2011] No. 013 Remote Inspection Record, and Sui. PSB (Int. Sec.) Inspect [2011] No. 010 Letter and Reply Regarding Assistance with Inspection of Relevant Data—confirming that “Systemic Illness and the Medication of Constitutionalism and Democracy,” “Reflections on a Hunger Strike on Human Rights Day,” “The Harmony Trap and the Absence of Fairness,” and other articles were discovered on the hard drive of the laptop computer seized from Chen Wei’s residence. Through remote inspection it was determined that as of February 25, 2011, 11 articles published by Chen Wei on overseas websites like minzhuzhongguo.org, Human Rights in China, and yibaochina.com had been linked to by a total of 37 web pages and received 8,524 hits.

4. A forensic verification report (BNIA For. Ctr [2011] Verif. No. 12) and sample use explanation from the Beijing Network Industry Association Electronic Data Forensic Report Center, confirming that on the hard drive implicated in the Chen Wei case were discovered “Systemic Illness and the Medication of Constitutionalism and Democracy,” “Reflections on a Hunger Strike on Human Rights Day,” “The Harmony Trap and the Absence of Fairness,” and other articles written by Chen Wei and a record of the use of his registered Skype account to upload articles that he wrote point-to-point overseas.

5. Hard copies of “Systemic Illness and the Medication of Constitutionalism and Democracy,” “The Growth of Civil Opposition is a Crucial Factor in China’s Democratization,” “The Harmony Trap and the Absence of Fairness,” “Reflections on a Hunger Strike on Human Rights Day,” and other articles published on the Internet, identified with a signature by Chen Wei as articles published by him, confirming that Chen Wei published instigatory articles on the Internet, spreading rumors and slander [such as] “the people have been deprived of their [freedoms of] thought and belief,” “the Chinese Communist Party uses the machinery of violence to control the people,” “[they] are the enemies of democracy,” and “everyone realizes the Chinese Communists’ anti-human nature” and inciting “the death knell has tolled for one-party dictatorship,” “use street-level opposition to promote civic politics,” and “[we] must change this system.”

6. A criminal verdict from the Beijing Intermediate People’s Court, criminal decision from the Beijing High People’s Court, and certificate of release from the Sichuan Province Chuanzhong Prison, confirming that on December 16, 1994, the Beijing Intermediate People’s Court sentenced Chen Wei to five years’ imprisonment, with subsequent deprivation of political rights for two years, for the crime of counterrevolutionary propaganda and incitement. He was released at the completion of his sentence on May 28, 1997.

7. Household registration documents, confirming Chen Wei’s personal identity information.

8. Witness testimony from Wang Xiaoyan (Chen Wei’s wife), Wang Lanfang (Chen Wei’s sister-in-law), Tang Jianlin (Chen Wei’s brother-in-law), Wang Lanying (Chen Wei’s sister-in-law), confirming that Chen Wei and his wife and Wang Lanfang and her husband [Tang Jianlin] reside together at [address redacted by translator], Suining. None of them have relatives living overseas. The documents “List of Sichuan Democracy Movement Activists” and “Activist Liu Xianbin” were not saved by them on the hard drive of the Founder laptop computer or Samsung portable hard drive seized in this case, and they did not publish articles on the Internet under Chen Wei’s name. Chen Wei had Wang Xiaoyan, Wang Lanfang, Tang Jianlin, and Wang Lanying settle overseas wire payments at the bank.

9. Testimony of witnesses Chen Wei [陈伟], Yin Xia, and Yu Yuebo, confirming that they had each read articles written by Chen Wei on websites like minzhuzhongguo.org.

10. Confession of defendant Chen Wei, confirming that he had written “Systemic Illness and the Medication of Constitutionalism and Democracy,” “The Growth of Civil Opposition is a Crucial Factor in China’s Democratization,” “The Harmony Trap and the Absence of Fairness,” “Reflections on a Hunger Strike on Human Rights Day,” and other articles published on overseas websites such as minzhuzhongguo.org, Human Rights in China, and yibaochina.com.

This court finds that defendant Chen Wei wrote and published on the Internet articles that used rumors and slander to incite subversion of state power and overthrow of the socialist system and that his actions constitute the crime of inciting subversion. Chen Wei published many articles on the Internet, [these articles] had a strong instigatory nature, and their scope of influence was great; therefore, his crimes are categorized as serious. Chen Wei was previously convicted of a crime of endangering state security and, after the completion of that sentence, he again committed a crime of endangering state security; therefore, he is a repeat offender and ought to receive heavier punishment in accordance with the law. Chen Wei and his defense counsel claim that the articles he published fall within the scope of a citizen’s right to free speech, that he neither had the subjective intention nor committed the objective acts of inciting subversion of state power, and that his acts [therefore] do not constitute a criminal offense. Upon review, [this court finds that] Chen Wei published numerous articles on the Internet that used rumors and slander in a goal of inciting subversion of state power and overthrow of the socialist system; therefore, his actions do not fall within the scope of a citizen’s right to free speech. He seriously damaged the interests and security of the state; therefore, his defense arguments and justifications are not tenable and this court does not accept them. Chen Wei and his defense counsel claim that he is not a repeat offender. Upon review, [this court finds that] Chen Wei was previously convicted of counterrevolutionary propaganda and incitement and, after the completion of that sentence, he again committed the crime of inciting subversion. These crimes both fall under the category of crimes of endangering state security; therefore, he is a repeat offender and his defense arguments and justifications are not tenable and this court does not accept them. In conclusion, the facts of the prosecution’s charges are clear, the evidence is reliable and sufficient, and the charged offense is valid; this court therefore supports [the prosecution’s charges]. In accordance with Articles 105(2), 55(1), 56(1), 66, and 64 of the Criminal Law of the PRC, [this court] rules as follows:

I. For the crime of inciting subversion, defendant Chen Wei is sentenced to nine years’ imprisonment, with subsequent deprivation of political rights for two years.

(The prison term is to be calculated from the day the verdict is implemented, with each day spent in detention prior to the verdict’s implementation to count as one day of the prison term; therefore, it will run from February 21, 2011, to February 20, 2020.)

II. Items that were used in the crimes in this case shall be confiscated.

If this verdict is not accepted, an appeal may be filed within 10 days of the second day following the receipt of this verdict, either to this court or directly to the Sichuan High People’s Court. In the case of a written appeal, the original appellate petition must be submitted together with two copies.

   

Presiding Judge: Liu Zebin
Judicial Officer: Wei Xiao
Judicial Officer: Deng Gang

 

December 23, 2011

 

Court Clerk: Quan Liguo