Wednesday, August 10, 2016

Will China Retry Gao Qinrong in Light of Anti-Corruption Campaign?

Gao Qinrong. Photo credit:

The case of Gao Qinrong harkens back to the earliest days of The Dui Hua Foundation, when his name was featured on many prisoner lists ahead of his early release in 2006. Ten years later, Gao is back in the news with a chance at a retrial that could clear his name.

Gao, a former investigative reporter for the Xinhua News Agency based in Shanxi Province, was sentenced in 1999 to 12 years in prison for taking bribes, soliciting prostitution, and fraud. He has long alleged that he was framed by local officials in the city of Yuncheng in retaliation for his exposure of a corrupt irrigation project. Gao sent hundreds of appeal petitions to central and provincial authorities during his eight years in prison, but he never received a reply. Some even speculated that Gao’s letters might have been intercepted before they ever reached their intended recipients.

Gao was released in December 2006 after several sentence reductions and was immediately greeted with sympathetic reports and interviews by some of southern China’s bolder news outlets—despite an apparent ban on reporting in Beijing. He continued to proclaim his innocence and petitioned for judicial authorities to reopen his case. Now, there is word that the Yuncheng Intermediate People’s Court has accepted his petition.

It remains to be seen, however, whether Gao will get that new day in court. As Dui Hua recently wrote, China’s post-conviction appeal mechanism is not clearly defined under the Criminal Procedure Law, and courts have considerable discretion over reopening cases (and often little incentive to do so).

A combination of factors connected with Xi Jinping’s assumption of power in 2012 may work in Gao Qinrong’s favor. Xi’s high-profile anti-corruption drive has brought down many current and former officials in coal-rich Shanxi, which appears to have been a particular target of the campaign. Officials with powerful backing have fallen in Yuncheng as well, possibly creating opportunities to revisit evidence of past corruption—including possible retaliation against Gao.

Righting past wrongful convictions has been another theme of Xi Jinping’s administration. But, as noted by a recent Southern Metropolis Daily editorial (translated below), many of these overturned cases have involved death sentences or life imprisonment. The editorial echoes the call of leading Chinese legal scholars for a more formal post-conviction relief system that would make it easier to get cases of all types reviewed. It also points to something that positive coverage of recent retrials fails to acknowledge: given the systemic causes that have contributed to miscarriages of justice in the past, China needs to do much more than reopen a few selected high-profile cases.


Gao Qinrong’s Post-Conviction Appeal: Correcting Judicial Errors Should Address More Than Just Life-and-Death Cases


Southern Metropolis Daily editorial, July 29, 2016

Jiemian News recently reported a new development in the case of reporter Gao Qinrong, whose story created quite a stir years ago. After 18 years of petitioning to have his case reopened, Gao Qinrong has had his post-conviction appeal petition accepted by Shanxi’s Yuncheng Intermediate People’s Court: “The case has been reported up the chain of command and is slated for review…The adjudication committee has to discuss whether to initiate a new trial or reject the appeal.”

The court’s acceptance of Gao’s petition is a procedural development with next to no legal meaning. But to someone who has been unsuccessfully seeking an appeal for 18 years, this change can be seen as an exceptional, perhaps even hopeful, development.

Gao Qinrong was a reporter for Reporter’s Notes magazine, published out of the Xinhua News Service’s Shanxi bureau. In the 1990s, he exposed shocking details of a scandal involving “fake irrigation projects” in Yuncheng, Shanxi. The story was followed up by CCTV’s “Focus” newsmagazine program and Southern Weekly, and “disciplinary actions” were taken against several local officials.

Then, in December 1998 Gao Qinrong was arrested and subsequently sentenced to 12 years’ imprisonment for taking bribes, soliciting prostitution, and fraud. On December 7, 2006, having lost eight years and four days of freedom, Gao Qinrong left prison insisting that his imprisonment had been an act of “retaliation.” Even in prison, Gao never gave up the effort to petition for post-conviction appeal, and several delegates to the National People’s Congress and Chinese People’s Political Consultative Conference put resolutions forward on his behalf. There was media reporting at the time of Gao’s release from prison, with an editorial in Southern Metropolis Daily calling for “truth in support of the right to speak truth.” Now, a decade later, we find that Gao Qinrong’s effort to reopen his case has been unusually difficult and progress has been slow.

From today’s vantage point, there are still quite a few things that are strange about the circumstances of Gao’s case and uncertainties about the evidence that was brought against him. According to the lawyer handling Gao’s post-conviction appeal: “The evidence used to convict was unreliable and insufficient, and there were contradictions between the main pieces of evidence used to prove the facts in the case.” Key pieces of evidence were never cross-examined in court, and signatures on transcripts of witness testimony are suspected to be forgeries.

Besides these doubts about the circumstances and evidence, it’s still worth looking into the question of whether Gao’s case had any relation to his exposure of how local government spent hundreds of millions of yuan on “fake irrigation projects.” When the man who tipped Gao off about the projects was released from prison, he was beaten nearly to death less than 100 meters from the prison gate and is still unable to care for himself to this day. The special team investigating Gao Qinrong focused a great deal of its questioning on his source for the “fake irrigation” report, rather than the three crimes for which he was subsequently charged. Li Xiaolin, who served as Gao Qinrong’s defense attorney, recalls: “They dug up some things from years earlier that didn’t amount to crimes and had never been the subject of any police report.” And they really started digging, he recalls, after Gao “uncovered and was the first of many media to report on fake projects that had cost the prefecture 270 million yuan.”

Doubts about this particular case haven’t dimmed after 18 years. Neither have they been answered. The embarrassment surrounding Gao Qinrong’s case is not an isolated incident. So many miscarriages of justice that were eventually corrected were once mired in this same sort of procedural despair: one of the parties in a criminal case appeals over many years, making repeated claims but failing to make “effective progress” by getting procedurally significant review of his or her case. When it comes to miscarriages of justice, rectification or exoneration has become, to a great degree, an “unexpected moment of joy”—no one has any idea when or if it will ever come.

It’s obvious that this is not the way that rule of law is supposed to work. Criminal procedure scholar Chen Weidong has proposed reforms based on changes to the case-filing system that require courts to accept cases as long as they meet certain technical requirements. The idea is that, by putting all post-conviction appeal petitions under a formal review procedure, the process would become more litigation-based and procedural and make correction of judicial errors more transparent and predictable. In other words, it would be an attempt to prevent this “late-arriving justice” from being purely a matter of luck.

The latest round of judicial reforms has brought with it correction of judicial errors in a number of cases. From these cases, the public might get the impression that major criminal cases are being overturned all the time. But a conclusion that is consistent with judicial logic should recognize that errors occur not only in major life-and-death cases. There must also be a certain percentage of wrongly decided cases that are not so life-and-death but have similar implications for the guilt or innocence of citizens and the line between criminal behavior and non-criminal behavior.

If you consider the imprint that social and judicial standards have left on individual cases during certain periods, wouldn’t you expect there to be similarity between major and minor cases in terms of the rate of judicial error and the particular experiences of procedural injustice on citizens? Does extraction of confessions through torture and falsification of evidence only take place in cases where there’s been loss of life but somehow vanish entirely in other cases? Not all miscarriages of justice involve such life-and-death cases, so when it comes to correcting judicial errors, normal judicial logic dictates that you should correct all errors, both major and minor.

Rectifying errors in the judicial system is part of the process of seeking justice—an extremely important part. In this area, there should be no differences in the way that major cases and minor cases are handled. The process of correcting errors should look at the judicial errors in a particular case and not base the urgency or degree of rectification on the severity of the original verdict in that case.

The post-conviction appeal process in cases like Gao Qinrong’s, with its long years of petitioning without initiation of any substantive judicial review procedure, is a good example of why there is urgent need for legal reform to the system of post-conviction relief. As more and more old cases from the past are corrected and the system of correcting judicial errors starts to become more routine and institutionalized, there is one question we must take seriously: can post-conviction appeals by citizens in non-life-and-death cases receive the same sort of timely, fair, and indisputable justice from our legal system?