Thursday, December 17, 2015

Chinese Court Amends Charges Against Guo Feixiong Before Conviction

Democracy activists Guo Feixiong (a.k.a., Yang Maodong, pictured left) and Sun Desheng (pictured right) were recently sentenced to prison terms. Credit: Weiquanwang

On November 27, Guangzhou’s Tianhe District People’s Court sentenced veteran democracy activists Guo Feixiong (a.k.a., Yang Maodong) and Sun Desheng to six years and two and a half years’ imprisonment, respectively. The court convicted Guo and Sun of public order offenses connected to street protests carried out in Guangzhou and other cities in the early days following Xi Jinping’s accession to power. The crackdown on the “Southern Street Movement,” along with the repression of the New Citizens’ Movement, signaled the new leadership’s resolve to curb grassroots activism, clamp down on criticism, and take control over the political agenda.

As in many other politically motivated criminal cases in China, the allegations appear to exaggerate the social harm caused by the defendants’ actions and ignore rights to free speech and association nominally protected under China’s constitution. Moreover, violations of due process plagued the prosecution of Guo and Sun. These violations include prolonged pre-trial detention, obstruction of defense counsel, and numerous irregularities at trial. There have been allegations of torture and mistreatment.

There are many grounds upon which to criticize and even condemn the convictions of Guo Feixiong and Sun Desheng. In this essay, we focus on a small, but significant, aspect of the trial process: the court’s modification of charges immediately before conviction. We explain court action and inaction with the aim of further understanding China’s criminal process and some of its many weaknesses and challenges.

What Did the Prosecution Allege?

In the indictment submitted to the court in June 2014, prosecutors from Tianhe District charged Guo and Sun with “gathering a crowd to disrupt order in a public place” under Article 291 of the Criminal Law. The allegation was based on two separate sets of material facts and associated evidence.

The first set concerned three days of protests held outside the offices of the newspaper Southern Weekly in January 2013. These demonstrations followed a decision to censor a closely watched “New Year’s Editorial” that supported constitutionalism. Authorities alleged that Guo Feixiong was a chief organizer of the protests, which included speeches, signs, and banners hailing press freedom, and which attracted hundreds of participants and onlookers.

The second set of allegations surrounded a series of “flash mob” protests purportedly initiated by Guo and Sun and carried out in eight cities across China in April and May 2013. Protesters held up signs and banners demanding that officials disclose their assets as part of the fight against corruption and that the government ratify the International Covenant on Civil and Political Rights. Images of these street protests were circulated online, leading prosecutors to claim that they “created false impressions.”

What Did the Court Do?

Many accounts report that, just before it sentenced the defendants, the Tianhe District People’s Court added a charge of “provoking a serious disturbance,” which carries a heavier penalty than those under Article 291. Perhaps more accurately, the court “modified” or “amended” the prosecution’s charges. No additional facts or evidence were introduced to support the addition of a new charge during the trial. The court did, however, take issue with the prosecution’s characterization of “flash mobs” as “gathering a crowd to disrupt order in a public space.”

The court found that, based on the facts and evidence presented at trial, the defendants’ actions should have been prosecuted under the offense of “provoking a serious disturbance” pursuant to Article 293(4) of the Criminal Law. Having identified this error, the court proceeded to amend the charges and issue its verdict accordingly.

Amending the charges meant that the court could impose separate penalties and calculate a combined sentence for the protests outside Southern Weekly (gathering a crowd to disrupt order) and the anti-corruption flash mobs (provoking a serious disturbance). While the maximum penalty under the charges in the prosecution’s original indictment would have been five years’ imprisonment, after modification, the court was able to impose a sentence of between five and ten years—based on a maximum penalty of five years for each charge.

Did the Court Violate Chinese Law?

There is no explicit provision in the Criminal Procedure Law (CPL) that authorizes courts to modify the prosecution’s charges in this way. Instead, this action seems to follow from the Supreme People’s Court (SPC) Interpretation on the Application of the CPL, Article 241(2):

When the facts alleged in the indictment are clear and the evidence is reliable and sufficient but there is a discrepancy between the crime alleged and the crime found in the course of the trial, [the court] shall issue a verdict based on the crime found in the course of the trial.

This provision implies, but does not expressly state, that the court may unilaterally modify the charges under these specified circumstances.

Of course, the question remains whether it is legitimate for the SPC to broaden its powers in this way. As a constitutional matter, the use of judicial interpretations to supplement and elaborate on existing law in a generalized manner appears to exceed the authority granted to the SPC to answer concrete applications of law. As a matter of practice, however, such legislation-through-interpretation is considered legitimate, and courts treat these interpretations as equivalent to law.

In short, while the legal basis for the court’s actions is not free from controversy, practically speaking, no appellate court is likely to accept a challenge on the grounds that the court acted contrary to law.

Did the Court’s Actions Amount to an Unfair Trial?

There is little question, however, that the effect of the court’s action deprived Guo and Sun of their right to a fair trial, which would make the decision illegitimate under Chinese and international human rights law.

By unilaterally modifying the charges just before sentencing, the court deprived the defendants of their right to a fair hearing by denying them adequate time and facilities to prepare a defense. Though much of the defense lawyers’ detailed statements to the court remained applicable, the lawyers could not have anticipated the court’s modification. Thus they were not prepared to present a thorough challenge to the applicability of Article 293(4). Lawyers were instead asked to deliver opinions on the spot and were interrupted by the court when they protested.

One of the principles underlying the idea of a fair judicial hearing is the “equality of arms” between prosecution and defense. Given that criminal defendants have the power of the state arrayed against them, adequate time and facilities to prepare is an essential part of guaranteeing some semblance of parity.

Article 227(3) of the CPL states that where the trial of first instance “deprives or restricts the statutory procedural rights (fading susong quanli) of a party to the case (dangshiren),” the appellate court should remand the case for retrial. Lawyers might try to make this argument when the case is appealed to the Guangzhou Intermediate People’s Court, but if the case is retried and the charges are modified in some other way, it seems highly unlikely that the court would reach a different result.

How to Modify Charges Fairly

There are many circumstances in which a charge might need to be re-characterized in the course of a trial. A charge of homicide might fall apart on the question of the defendant’s intention and need to be modified to intentional injury. There is often ambiguity about whether a defendant caught carrying drugs was trafficking or merely transporting.

Note that in both of these examples modifications would likely benefit the defendant, as the modified offenses are less serious than those originally applied. This is not what happened in the case of Guo Feixiong. Nonetheless, even when the defendant stands to benefit from amended charges, fair-trial principles should require the use of a more elaborate procedure with more of a role for both prosecution and defense.

This is the argument put forward recently by Shandong rights lawyer Xi Xiangdong. He notes that if the prosecution had wanted to modify its indictment, Supreme People’s Procuratorate rules would have required prosecutors to first seek approval from their superiors and submit the amended indictment to the court. Then, the court would notify the defendant, and a new trial hearing would have to be held—complete with investigation of evidence, debate, and final statements from both sides.

If the court identifies the need to modify the charges, Xi says, it can make this recommendation to the prosecution. If the prosecution agrees, the process would follow as described above. If the prosecution rejected the recommendation, then the court could proceed to amend the charges if it was in the interest of justice and proper application of the law. Xi rightly insists, however, that this ought to be the exception, rather than the rule. Finally, he notes that any such decision should only be made after giving due consideration to both prosecution and defense in the form of a hearing where both sides can confront each other’s opinion.

To be sure, such procedures would necessitate extra time and complication for all parties involved. Considering that the court let a year elapse between trial and verdict in the case of Guo Feixiong and Sun Desheng, there really is no excuse for not taking even this small step to provide a measure of protection to the fair-trial rights of the defendants.