The Criminal Verdict by the Beijing Municipal First Intermediate People’s Court

The Criminal Verdict by the Beijing Municipal First Intermediate People’s Court
(2009) First Intermediate Court – Criminal Case- First instance -No. 3901

Public Prosecution: The First Branch of Beijing Municipal People’s Procuratorate.

The Defendant: Liu Xiaobo, male, 53 years old (born on December 28, 1955), Han ethnicity, born in Changchun City, Jilin Province; doctorate education, jobless; household registration at Flat 2-1-2, Qingchun Street 5, , Xigang District, Dalian City, Liaoning Province; temporary residence at Flat 502, Unit 1, Building 10, Residence of the Bank of China, Qixian Village, Haidian District, Beijing City. In January 1991, he was convicted on the offence of counter-revolutionary propaganda and incitement but exempted from criminal punishment; in September 1996, he was sentenced for disturbing public order to three years Re-education Through Labor. For suspicion of inciting subversion of state power, he was summoned for detention on December 8, 2008, put under residential surveillance on December 9, 2008 and arrested on June 23, 2009. He is now detained in No. 1 Detention Center of Beijing City.

• Defense counsel: Ting Xikui, a lawyer at the Mo Shaoping Law Firm, Beijing
• Defense counsel: Shang Baojun, a lawyer at the Mo Shaoping Law Firm, Beijing

According to its Criminal Indictment No. 247 (2009) of Beijing First Branch Procuratorate-Criminal Prosecution, the First Branch of Beijing Municipal People’s Procuratorate charged the defendant Liu Xiaobo on the offence of inciting subversion of state power and filed the public indictment to this court on December 10, 2009. According to law, this Court has formed a collegiate bench that held an open trial on the case. The First Branch of Beijing Municipal People’s Procuratorate assigned Prosecutor Zhang Rongge and Deputy Prosecutor Pan Xuechu to sustain the prosecution while the defendant Liu Xiaobo and his defense counsels Ding Xikui and Shang Baojun came to the trial and participated in the process. The trial has now been concluded.

In its incitement, the First Branch of Beijing Municipal People’s Procuratorate has accused that since 2005, the defendant Liu Xiaobo, due to his dissatisfaction with the state power and socialist system of the people’s democratic dictatorship in our country, published through various Internet websites such as “Observe China” and the “BBC Chinese Net”, the inciting articles such as “The Dictatorial Patriotism of the Communist Party of China”, ” Can it be that the Chinese People Deserve Only ‘Party-Led Democracy’? “, “To Change the Regime by Changing Society”, “The Multiple Faces of the Dictatorship by the Communist Party of China”, “The Negative Effects of the Rise of Dictatorship on World Democratization” and “Further Questions about Child Slavery in China’s Kilns “. In his articles, he instigated the rumors and libels such as ” Since the Communist Party of China (CPC) took power, generations of CPC dictatorship have cared most about their own powers and least about human lives”; “The official patriotism advocated by the CPC dictatorship is a fallacious system of ‘the Party Replacing the State’. The essence of this patriotism is to demand that the people love the dictatorship, the one-party rule, and the dictators. It usurps patriotism in order to inflict disasters on the nation and calamities on the people”; “Thus, all of the tricks used by the CPC are stop-gap measures for the dictators to preserve the last phase of their powers and will not be able to support for long this dictatorial edifice that is already showing countless cracks”; and incited ” to change the regime by changing the society”, and “for the emergence of a free China, to place hope in the rulers’ ‘New Deal’ is far less than in the continuous expansion of the ‘new forces’ among the people”.

During period from September to December 2008, the defendant Liu Xiaobo colluded with others to have drafted and concocted “Charter 08”, that put forward a number of claims such as “to abolish one-party monopolization of ruling privileges” and ” to establish China’s federal republic under the structure of democracy and constitutionalism”, seeking to incite subversion of the current political power. After he had collected the signatures of over 300 people, Liu Xiaobo sent “Charter 08” together with a list of the signatures by email to the overseas websites and got it published at the websites such as “Democratic China” and “The Independent Chinese PEN Center”.

After he had committed the crimes, the defendant Liu Xiaobo was tracked down and brought to justice.

The First Branch of Beijing Municipal People’s Procuratorate provided this court with the evidences including the witnesses’ testimonies to charge the guilt of the defendant Liu Xiaobo, the records of scene examination and inspection, and forensic submissions of electronic data, and was convinced that the defendant Liu Xiaobo’s conducts had violated Items 2 of Article 105 of the PRC’s Criminal Law, and that he had formed the offence of inciting subversion of state power to a serious extent. The Procuratorate handed the case over to this Court for judgment according to law.

During the trial, the defendant Liu Xiaobo argued that he was not guilty as he had merely exercised the civil right to freedom of expression grunted by the Constitution and that the criticisms he expressed had not done any actual harm to anyone nor incitement to subvert the state power.

The counsels for the defendant Liu Xiaobo presented the arguments that there was no content of rumor or libel or slander in any of Liu Xiaobo’s six articles nor in Charter 08 as accused by the prosecution, and that the articles published by Liu Xiaobo fell within the scope of the citizen’s free speech expressing his personal opinions but constituting no incitement to subvert the state power.

The Court found that, during period from October 2005 to August 2007, the defendant Liu Xiaobo, due to his dissatisfaction with the state power and socialist system of the people’s democratic dictatorship in our country, incited others many times to subvert the state power and socialist system in our country in a way of writing at his temporary residence at Flat 502, Unit 1, Building 10, Residence of the Bank of China, Qixian Vellege, Haidian District, Beijing City, and publishing the articles on the websites such as “Observe China” and “BBC Chinese Language Net”. In his published articles, “The Dictatorial Patriotism of the Communist Party of China”, “Can it be that the Chinese People Deserve Only ‘Party-Led Democracy’? “, “To Change the Regime by Changing Society”, “The Multiple Faces of the Dictatorship by the Communist Party of China”, “The Negative Effects of the Rise of Dictatorship on World Democratization” and “Further Questions about Child Slavery in China’s Kilns “, Liu Xiaobo slandered, “Since the Communist Party of China (CPC) took power, generations of CPC dictatorship have cared most about their own powers and least about human lives”; “The official patriotism advocated by the CPC dictatorship is a fallacious system of ‘the Party Replacing the State’. The essence of this patriotism is to demand that the people love the dictatorship, the one-party rule, and the dictators. It usurps patriotism in order to inflict disasters on the nation and calamities on the people”; “Thus, all of the tricks used by the CPC are stop-gap measures for the dictators to preserve the last phase of their powers and will not be able to support for long this dictatorial edifice that is already showing countless cracks”; and incited ” to change the regime by changing the society”, and “for the emergence of a free China, to place hope in the rulers’ ‘New Deal’ is far less than in the continuous expansion of the ‘new forces’ among the people”.

During period from September to December 2008, the defendant Liu Xiaobo colluded with others to have drafted and concocted “Charter 08”, that put forward a number of claims such as “to abolish one-party monopolization of ruling privileges” and ” to establish China’s federal republic under the structure of democracy and constitutionalism”, seeking to incite subversion of the current political power. After he had collected the signatures of over 300 people, Liu Xiaobo sent “Charter 08” together with a list of the signatures by email to the overseas websites and got it published at the websites such as “Democratic China” and “The Independent Chinese PEN Center”. The above articles published by Liu Xiaobo on the websites were linked and copied to several other sites and viewed by many people.

After he had committed the crimes, the defendant Liu Xiaobo was tracked down and brought to justice.

The facts above have been proven by the following evidences presented and cross-examined during the trial of this case, as this Court affirms,

1. The testimony of the witness Liu Xia has proven: she is the wife of Liu Xiaobo and lived together with him at Flat 502, Unit 1, Building 10, Residence of the Bank of China, Qixian Vellege, Haidian District, Beijing City, where there were three computers in their home, one desktop and two notebooks. Because she doesn’t understand anything about computers– Liu Xiaobo used the computers mainly to write articles and to surf on internet. Only two persons, Liu Xiaobo and herself, lived there without anyone else. Only very seldom did guests come to have a visit since Liu Xiaobo always almost had got a meeting beyond his home — she doesn’t know how the computers were connected to Internet. It was Liu Xiaobo who had arranged for Internet connection in late 2001. The daily source of their livelihood came from the royalties of Liu Xiaobo’s writing. Liu Xiaobo opened an account of her name at the bank. Deposits to the account for Liu Xiaobo’s writings came irregularly. Every month she goes to the bank at irregular intervals to withdraw money.

2. “Verification of Account Opening” and “Bank Money Order Receipt” provided by the Beijing Branch and Muxidi Sub-branch of the Bank of China Ltd has proven: the bank account own by Liu Xiaobo’s wife Liu Xia had received and been let withdraw the money orders (in foreign currency) from overseas.

3. “Reply to a request for assistance in conducting an examination of digital data” provided by the Beijing Branch of China United Network Communication Ltd. has proven: Liu Xiaobo had used an ADSL account with a record of his on-line usages.

4. The testimony of the witness Zhang Zuhua has proven: he and Liu Xiaobo produced and completed Charter 08 together at the end of 2008. He also collected the signatures. Afterwards, Liu Xiaobo published Charter 08 on the overseas websites.

5. The testimony of the witness He Yongqin has proven: in early December 2008, he received an email of Charter 08 from Liu Xiaobo who let him sign after reading it. After reading it he replied an email to Liu Xiaobo to express his agreement to sign the Charter.

6. The testimony of the witness Zhao Shiying has proven: in October 2008, Liu Xiaobo sent him Charter 08 through Internet, asked for his advice on revising it, let him find others to sign it. At a gathering, Zhao showed Charter 08 to more than dozens of individuals among whom four agreed to sign it. Liu Xiabo also asked him through Internet to go to Guangzhou for signature collection In Guangzhou, he collected five signatories.

7. The testimony of the witness Yao Bo has proven: in October 2008, Liu Xiaobo met him, and told him about the Charte, and he agreed to sign it.

8. The testimony of the witness Zhou Duo has proven: one day in November 2008, Liu Xiaobo went to his home, showed him the draft of Charter 08, and asked for his help in revising it. After Liu left, he read the draft but did not revise it. They did not talked about signing it at that time, but later he saw the Charter with his signature on internet.

9. The testimony of the witness Fan Chunsan has proven: at the end of October 2008, he had a meal with Liu Xiaobo and others, and Liu took out a copy of Charter 08 for him to read. Liu Xiaobo asked him whether or not to sign it, and he agreed to do so. He knew that Liu Xiaobo had published articles on overseas websites such as “Boxun” and “The Independent Chinese PEN Center”, which had also read on internet and knew that Liu Xiaobo’s articles were in the category of political reviews.

10. The testimony of the witnesses Xu Junliang, Zhi Xiaomin and Teng Biao have proven: in November and December 2008, they received emailed Charter 08 in their mailboxes but did not know who had sent it. They respectively signed Charter 08 and sent it back to the sender’s mailbox.

11. The testimony of the witness Wang Zhongxia has proven: in December 2008, he read Charter 08 on internet, agreed with its content and so signed it. Later, he had printed some shirts with Charter 08, and wanted to wear it himself and give some to others in order to publicize Charter 08.

12. “Search Records” with photographs of material evidences provided by the Public Security organ have proven: On December 8, 2008, in the presence of some witnesses, Public Security organ searched Liu Xiaobo’s residence at Flat 502, Unit 1, Building 10, Residence of the Bank of China, Qixian Vellege, Haidian District, Beijing City, found and withheld the tools that Liu Xiaobo used to write articles and to send them on internet– two notebooks and one desktop computers, and a printed copy of Charter 08 (draft for comments).

13. The Forensic Submission provided by the Forensic Center of Electronic Data at the Beijing Municipality Networking Industry Association has proven: on December 13, 2008, it did a forensic examination of the data stored on the three computers and found the electronic copies of “The Dictatorial Patriotism of the Communist Party of China”, “Can it be that the Chinese People Deserve Only ‘Party-Led Democracy’ “, “To Change the Regime by Changing Society”, “The Multiple Faces of the Dictatorship by the Communist Party of China”, “The Negative Effects of the Rise of Dictatorship on World Democratization” and “Further Questions about Child Slavery in China’s Kilns”, and “Charter 08”. In the records of the software “Skype” on his computers, it found and taken out from the software the records that Charter 08 and its draft for comments had been sent many times during period from November to December 8, 2008.

14. “Records of Scene Examination and Inspection” with the explanations of the work provided by the Public Security organ, have proven:

(1) during December 19 – 23 2008, First Detachment of Public Information Network Security and Supervision Office at the Beijing Municipal Public Security Bureau found and downloaded the article by “Liu Xiaobo”, entitled “Liu Xiaobo: The Dictatorial Patriotism of the Communist Party of China “, existing on a website with the domain name epochtimes.com (Dajiyuan), which server located overseas. The article was indicated to have published on October 4, 2005. Until December 23, 2008, five links to the web page of this article had been found for its publication or republication on internet.

(2) during December 19, 2008 -August 3, 2009, First Detachment of Public Information Network Security and Supervision Office at the Beijing Municipal Public Security Bureau found and downloaded the article by “Liu Xiaobo”, entitled “Liu Xiaobo: Can it be that the Chinese People Deserve Only ‘Party-Led Democracy’”, existing on the websites with the domain names epochtimes.com (Dajiyuan) and www.observechina.net (Observe China), both of which servers located overseas. The article was indicated to have published on January 5, 2006 and January 6, 2006. Until December 23, 2008, five links to the web page of this article had been found for its publication or republication on internet with 402 reads in total.

(3) during December 19, 2008 -August 3, 2009, First Detachment of Public Information Network Security and Supervision Office at the Beijing Municipal Public Security Bureau found and downloaded the article by “Liu Xiaobo”, entitled “Liu Xiaobo: To Change the Regime by Changing Society”, existing on the websites with the domain names epochtimes.com (Dajiyuan) and www.observechina.net (Observe China), both of which servers located overseas. The article was indicated to have published on February 26, 2006 and February 27, 2006. Until December 23, 2008, five links to the web page of this article had been found for its publication or republication on internet with 748 reads in total.

(4) during December 19, 2008 -August 3, 2009, First Detachment of Public Information Network Security and Supervision Office at the Beijing Municipal Public Security Bureau found and downloaded the article by “Liu Xiaobo”, entitled “Liu Xiaobo: The Multiple Faces of the Dictatorship by the Communist Party of China”, existing on the websites with the domain names www.secretchina.com (Secret China) and www.observechina.net (Observe China), both of which servers located overseas. The article was indicated to have published on March 13, 2006. Until December 23, 2008, six links to the web page of this article had been found for its publication or republication on internet with 512 reads in total.

(5) during December 19, 2008 -August 3, 2009, First Detachment of Public Information Network Security and Supervision Office at the Beijing Municipal Public Security Bureau found and downloaded the article by “Liu Xiaobo”, entitled “Liu Xiaobo: The Negative Effects of the Rise of Dictatorship on World Democratization”, existing on the website with the domain name www.secretchina.com (Secret China), which server located overseas. The article was indicated to have published on May 7, 2006. Until December 23, 2008, seven links to the web page of this article had been found for its publication or republication on internet with 57 reads in total.

(6) during December 19, 2008 -August 3, 2009, First Detachment of Public Information Network Security and Supervision Office at the Beijing Municipal Public Security Bureau found and downloaded the article by “Liu Xiaobo”, entitled “Liu Xiaobo: Further Questions about Child Slavery in China’s Kilns”, existing on the websites with the domain names www.minzhuzhongguo.org (Democratic China) and www.renyurenquan.org (Human Rights in China), both of which servers located overseas. The article was indicated to have published on August 1, 2007. Until December 23, 2008, eight links to the web page of this article had been found for its publication or republication on internet with 488 reads in total.

(7) on December 11, 2008, First Detachment of Public Information Network Security and Supervision Office at the Beijing Municipal Public Security Bureau found and downloaded the article entitled “Charter 08”, existing on the website with the domain name www.chinesepen.org (The Independent Chinese PEN Center),which server located overseas. The article was indicated to have published on December 9, 2008 and signed as A Group of Citizens. On the same day, an article entitled “Chinese People From All Walks of Life Join Together to Issue Charter 08” was found and downloaded from the websites with the domain names boxun.com (Bo Xun) and www.minzhuzhongguo.org (Democratic China), both of which servers located overseas and which showed the publication dates of December 8, 2008 and December 9, 2008. Until December 12, 2008, 33 links to the web pages of this article had been found for its publication or republication on internet, among which 19 copies were located on overseas wibsites with 5154 reads in total and 158 replies. On December 9, 2008, it was found that the website with the domain name www.2008xianzhang.info (Charter 08) had so far got 10,390 individuals having signed “Charter 08”.

(8) on December 11, 2008, First Detachment of Public Information Network Security and Supervision Office at the Beijing Municipal Public Security Bureau examined Liu Xiaobo’s e-mails, and found that Liu Xiaobo’s email mailboxe was located overseas. After using a password to get into that mailbox to check it, it was found that the earliest email sent from that mail box had been dated November 25, 2008 and that 30 of the sent emails had been involved in sending “Charter 08”.

15. The articles confirmed by Liu Xiaobo with his signature have proven: Liu Xiaobo verified the articles downloaded and preserved by the Network Security and Supervision department of the Public Security organ, “Liu Xiaobo: The Dictatorial Patriotism of the Communist Party of China”, ” Liu Xiaobo: Can it be that the Chinese People Deserve Only ‘Party-Led Democracy’ “, ” Liu Xiaobo: To Change the Regime by Changing Society”, ” Liu Xiaobo: The Multiple Faces of the Dictatorship by the Communist Party of China”, ” Liu Xiaobo: The Negative Effects of the Rise of Dictatorship on World Democratization”, ” Liu Xiaobo: Further Questions about Child Slavery in China’s Kilns” and “Charter 08”, and the electronic copies taken from his computers, “The Dictatorial Patriotism of the Communist Party of China”, “Can it be that the Chinese People Deserve Only ‘Party-Led Democracy’ “, “To Change the Regime by Changing Society”, “The Multiple Faces of the Dictatorship by the Communist Party of China”, “The Negative Effects of the Rise of Dictatorship on World Democratization” and “Further Questions about Child Slavery in China’s Kilns”. Liu Xiaobo confirmed that the articles for his verification were those written and published by him on the Internet. The articles verified and confirmed by Liu Xiaobo contain the inciting statements identified by the facts described above.

16. The defendant Liu Xiaobo’s confession has proven: Liu Xiaobo confessed that he had used his computers to write and publish on Internet the articles described above. Liu Xiaobo’s confession and the evidences presented above are mutually confirmatory.

17. The account on the case process provided by the Public Security organ has proven: in the evening of December 8, 2008, the Beijing Beijing Municipal Public Security Bureau, went to Liu Xiaobo’s residence at Flat 502, Unit 1, Building 10, Residence of the Bank of China, Qixian Vellege, Haidian District, Beijing City, and captured Liu Xiaobo.

18. The previous Criminal Verdict of (1990) Intermediate Court- Criminal Case No. 2373 issued by the Beijing Municipal Intermediate People’s Court and the Decision on Re-education Through Labor of (96) Beijing RTL Case No. 3400 issued by the Re-education Through Labor Management Committee of the Beijing Municipal People’s Government have proven: on January 26, 1991 Liu Xiaobo was convicted on the offence of counter-revolutionary propaganda and incitement but exempted from criminal punishment; on September 26, 1996, he was sentenced for disturbing public order to re-education through labor for three years.

19. The document of identification provided by the Public Security organ has proven: the name, residence and other information on the defendant Liu Xiaobo.

This Court believes that the defendant Liu Xiaobo, for a purpose to overthrow the state power and socialist system of the people’s democratic dictatorship in our country, by using the Internet’ features of fast information transmission, widespread communication, large social impact and high degree of public concerns, in a way of writing publishing his articles on internet, has slandered and incited others to overthrow the state power and socialist system in our country. His conducts have already formed the offence of inciting subversion of state power. Moreover, his crime has lasted for a long time based on large subjective malignancy. His publications have been widespread through links, republications and browses and made adverse influence. He is a criminal of a major offence and must be severely punished according to law. The First Branch of Beijing Municipal People’s Procuratorate has charged the defendant Liu Xiaobo on the offence of inciting subversion of state power based on the clear facts and the reliable and sufficient evidences to prove the defendant guilty as charged. As for the defence arguments presented by Liu Xiaobo and his defense counsels at the trial, the Court found through its examination that the facts and evidences clarified at the trial have sufficiently proven that Liu Xiaobo made use of the media features of Internet by publishing slanderous articles on Internet to carry out his conducts of inciting subversion of the state power and social system in our country. Liu Xiaobo’s conducts went beyond the scope of freedom of expression to have formed a crime. Therefore, none of the defence arguments presented by Liu Xiaobo and his defense counsels can be established to be accepted by this Court. Due to the facts, natures and circumstances of the crime committed by the defendant Liu Xiaobo and its degree to harm the society, this court, according to Article 105 (2), Article 55 (1), Article 56 (1) and Article 64 of the PRC’s Criminal Law, has made the following verdict:

1. The defendant Liu Xiaobo is guilty for the crime of inciting subversion of state power, and sentenced to eleven years imprisonment and two years deprivation of political rights. (The sentence is counted from the day of executing the sentence, setting off against the sentence in detention on a day for day basis, that is, serving from June 23, 2009 to June 21, 2020.)

2. All of the materials handed in this case that Liu Xiaobo used to commit the crime shall be confiscated (list follows).

If the defendant does not accept this verdict, an appeal can be submitted within ten days starting from the next day after issuing this verdict, either through this Court or directly to the Beijing Municipal High People’s Court. The appeal should be submitted with its original and two copies.

Jia Lianchun, Chief Judge
Bang Jiaowei, Acting judge
Zhai Changxi, Acting judge

December 25, 2009

Gu Xin, Court Clerk

A list of the items in holding to be dealt
The following items shall be confiscated:
1. Notebook computer (IBM model T43): one
2. Notebook computer (Lianxiang model Chaoyang 700Cfe): one
3. Desktop computer (Lianxiang model Jiayue): one
4. Charter 08 draft for comments (sealed together with the case files): 7 pages

From: Reporters Without Borders

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