29 June 2009

The New Youth Study Society Case and the Saga of Li Yuzhou

In 2004 Phil Pan, former Beijing bureau chief for the Washington Post and author of the award-winning Out of Mao's Shadow, wrote a masterfully moving article about the case of the New Youth Study Society, an informal group of young people in Beijing who met to discuss subjects concerning social and political reform. Four key members of the group, Xu Wei, Jin Haike, Yang Zili, and Zhang Honghai, were sentenced in 2003 to seven to ten years on charges of subversion. As Pan revealed, one of the key sources for the prosecution in the New Youth case was Li Yuzhou, a police informant who had infiltrated the group for the Ministry of State Security. When he discovered what his reports on the group had resulted in, Li tried unsuccessfully to recant his testimony and ultimately fled to Thailand, where he sought refugee status.

This weekend, the AP put out an excellent piece by Alexa Olesen that updates the case to the present day. Li Yuzhou, it seems, has lost his refugee status and is in danger of being deported to China, where he fears retribution for his efforts to derail the New Youth prosecution and his pro-democracy organizing activity inside of Thailand. Meanwhile, two of the four New Youth Study Society members he helped imprison have been released at the end of their terms. While they still puzzle over Li's motivation for ratting them out, they express some sympathy for his current plight and don't wish to see him imprisoned in China.

The details of this story are so rich, they would make a good basis for a novel, with themes of youthful idealism betrayed, the weight of guilt and efforts to seek absolution, and the fate of individuals who dare to challenge the authoritarian system.

27 June 2009

Liu Xiaobo Meets with Lawyers, Willing to Take "Full Responsibility" for "Charter 08"

I'm not sure why I didn't think of this earlier: If Liu Xiaobo's case weren't about "Charter 08," then why would the police prevent renowned criminal defense attorney Mo Shaoping (another "Charter 08" signatory) from representing him?

In any case, Liu has now met with two other lawyers from Mo's firm, Shang Baojun and Ding Xikui. Chinese Human Rights Defenders has a good summary of the meeting here (in English), and another summary (in Chinese) can be found here.

It appears I was right to think that "Charter 08" could be used as the basis of an incitement charge against Liu Xiaobo, but it seems that some of his other writings over the years are also in the mix. Liu has reportedly told his lawyers that he's "willing to take complete responsibility" for "Charter 08," but he has denied breaking the law.

I still think there's a possibility that police will turn this case into a "subversion" case and start arresting other "co-conspirators," but in case that investigative thread doesn't pan out, they appear to have someone on whom they can pin blame for this vile act of expressing aspirations for a freer, more transparent, more democratic China.

25 June 2009

Liu Xiaobo and (Inciting) Subversion

Yesterday, I translated part of an analysis by Beijing lawyer Liu Lu concerning the formal arrest of veteran dissident Liu Xiaobo. I agree with most of this analysis but have a different opinion about the significance of the charge—"inciting subversion" (Article 105.2 of the criminal law).

Liu Lu reasons that because Liu Xiaobo has been charged with "inciting subversion," it's most likely that the "crime(s)" in question concern some of the many articles that Liu Xiaobo has written over the years, rather than "Charter 08"—which is what most people have been assuming. If "Charter 08" were the main issue, Liu Lu argues, the charge would be "subversion" and we would see additional arrests.

First of all, I agree that it's quite possible that police are charging Liu Xiaobo on the basis of the many non-"Charter" items he has published on the Internet over the years. But that doesn't mean that the initial decision to detain Liu and the determination to keep him incarcerated is not connected with "Charter 08." The timing of Liu Xiaobo's detention simply doesn't allow for too many other explanations. (To be fair, I don't think Liu Lu is arguing otherwise.)

As I understand it, the key to making a subversion charge under Article 105.1 is proving that some sort of organization—or attempt to create one—lies behind the supposedly subversive activity. I have suspected all along that the police investigating "Charter 08" have been trying to establish that it was created by people who formed or tried to form such an organization, rather than an informal coalescing of like-minded individuals around an expression of common beliefs. I suspect the authorities haven't been able to find any solid evidence of such organization—not least because one doesn't appear to have existed—and thus have keyed in on Liu Xiaobo as a key drafter of the document (whether he actually was or not).

So, I believe it's still possible that the police are actually building their incitement case around "Charter 08," a document that can be (mis-)interpreted as calling for the overthrow of the one-party state. But the question then remains, why is Liu Xiaobo the only one so far who has been treated to this extended stay in police custody?

It wouldn't be unheard of, however, for the charge to be changed to subversion at a later stage in the investigation and see others charged as well. By formally arresting Liu Xiaobo (as opposed to sending the case directly to prosecutors), police have bought themselves more time to figure it out as they—or the higher-ups actually calling the shots—go along.

24 June 2009

Liu Xiaobo Formally Arrested on Incitement Charges

Word came down earlier today through the Xinhua wire that veteran dissident Liu Xiaobo has been formally arrested on charges of inciting subversion. (See, e.g., this report by the New York Times.) This is a disappointing development, but not totally unexpected.

I'm literally about to run out the door and don't have a lot of time to weigh in here, but I wanted to excerpt from this post by Beijing rights lawyer Liu Lu (刘路), who offers his analysis and predictions:
1. The "criminal facts" for which [Liu] Xiaobo has been charged likely are limited to the articles he has written over the past few years and is not related to "Charter 08." Otherwise, the crime would be subversion and not incitement and the [Xinhua] article would mention ["Charter 08"] in order to frighten the other signatories. Also, there would be other arrests and trials.

2. It's likely that [Liu] Xiaobo will be indicted within a month and tried quickly. I predict that a trial would conclude before the end of July and that Xiaobo's sentence would be five years or less. If the procuratorate decides to prosecute him for "major crimes," the sentence could be greater than five years, but no matter what it would not exceed 10 years.

3. The phrase "Liu Xiabo has confessed to the criminal facts" really means that Xiaobo has acknowledged that he wrote articles but doesn't imply any value judgment regarding whether the articles constitute a crime. In other words, Xiaobo likely just admitted the facts and has not admitted wrongdoing. The authorities are playing word games here.
I agree with most of this, though I don't think that the point made in (1) is as clear-cut as he does. More later.

23 June 2009

News on Revised State Compensation Law Draft

There were a number of reports (e.g., here) over the past couple of days regarding the National People's Congress Standing Committee's second reading of the draft revised State Compensation Law, legislation that has some interesting ramifications for criminal justice matters in China. (Note: Civil law is not an area I feel comfortable opining on at any length, so I'm basically just going to lay out the facts as I understand them.)

The first issue concerns death or disability suffered while in detention. The draft legislation being reviewed would put the burden on the detention center or prison to prove that an individual's death or disability was not a result of its negligence. This seems pretty straightforward, but it actually appears to me to be a fairly big step forward to shift the burden of proof to state institutions here. We'll see if the provision survives into the final legislation.

A second revision concerns the scope of eligibility for compensation on the grounds of wrongful detention. Currently, as I understand it, individuals are only eligible to request compensation if they are detained or arrested for a crime they did not commit. The legislation under consideration would expand eligibility to include anyone detained or arrested whose case was subsequently dropped, whom prosecutors declined to indict, or who was acquitted by a court.

This is very interesting and strikes me as quite a broad definition of "wrongful." I don't know how this compares with similar laws in other countries, but it seems potentially revolutionary for China. For one thing, it seems designed to encourage increased use of non-custodial measures such as bail or—dare I say it, given the fate of Liu Xiaobo—"residential surveillance." This would complement anticipated revisions to the Criminal Procedure Law that are also expected to place more emphasis on the use of bail.

It's important to note, though, that law enforcement agencies have secured safety provisions that would deny compensation to those whose unlawful behavior, if not punished in the formal criminal justice process, is handled through administrative sanctions—presumably including "re-education through labor." So, it's probably too early to send your condolences to China's police over the imposition of restrictions on their broad powers.

09 June 2009

Bad news for Liu Xiaobo, worse news for rule of law in China

According to this report from the BBC, police have informed Beijing lawyer Mo Shaoping that they intend to continue holding veteran dissident intellectual Liu Xiaobo (right) under "residential surveillance" while they continue their investigation into unspecified charges.

This is despite the fact that Chinese law clearly prohibits the police from holding Liu in this manner beyond the six-month period that has just elapsed. As I wrote elsewhere this week, the authorities had lots of other legal options at their disposal for continuing to keep Liu in custody, options that would have, however, carried the inconvenient requirement for them to at least provide Liu's wife with official notice of the charges against him and, in some circumstances, even allow Liu access to a lawyer.

Clearly, none of these options were preferable to the one in which the police simply ignore the law and do whatever they want. In fact, they've been in violation of the law from the beginning in this case with their decision to carry out his "residential surveillance" in what is most likely a police-affiliated guesthouse in the Beijing suburbs, rather than in Liu's actual residence.

This brazen contempt for the law on the part of China's police somehow still manages to surprise me, even after so many cases over all these years.