16 May 2015

Why Pu Zhiqiang is Facing Eight (not 10 or 20) Years in Prison

On 15 May, the Second Branch of the Beijing People’s Procuratorate posted the following message to its Weibo account:

On May 15, 2015, the Second Branch of the Beijing People’s Procuratorate sent the Beijing Number Two Intermediate People’s Court an indictment in accordance with the law against defendant Pu Zhiqiang on charges of suspected inciting ethnic hatred and provoking a serious disturbance. The bill of indictment charges that defendant Pu Zhiqiang used information networks to publish multiple microblog posts over a period of time that incited ethnic hatred with aggravating circumstances and brazenly insulted others with odious circumstances and damage to social order. [On the basis of these acts,] he should be held criminally responsible in accordance with the law.

At this point, I would like to say that I believe these charges to be an untenable violation of Pu Zhiqiang’s right to free expression under China’s constitution. Unfortunately, as Pu Zhiqiang—a tireless advocate for many people charged with speech-related offenses over the years—knows only too well, that argument will have a difficult time winning the day in a Chinese court.

Below, I want to address a very specific issue. One of the obvious questions that many have asked is: if Pu is convicted of these two charges, what might his sentence be? There’s been a great deal of confusion on this point, with claims of a possible sentence of up to 20 years. But Shang Baojun, one of Pu Zhiqiang’s defense lawyers, told Verna Yu of the South China Morning Post that his client was facing a maximum of eight years in prison.

I believe that Shang Baojun is correct. To explain why, it’s necessary to consider a number of things.

First, let’s look at Art. 249, the offense of “inciting ethnic hatred or discrimination.” Here is the text:

Whoever incites ethnic hatred or discrimination, if the circumstances are aggravated (情节严重), shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights; if the circumstances are especially serious (情节特别严重), he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years.

In general, one could thus say that the maximum possible sentence for the offense is 10 years’ imprisonment. But does that apply in this case?

The summary of the charges given in the indictment makes it pretty clearly that Pu’s alleged offense falls under the category of “aggravated circumstances” not “especially serious” circumstances. I don’t believe that the procuratorate chose that language arbitrarily. So, I think this means that the prosecution is seeking a maximum sentence of three years’ imprisonment for this one charge.

Now, let’s look at Art. 293, “provoking a serious disturbance” (or “picking quarrels and provoking troubles,” if you like):

Whoever disrupts the social order by committing any of the following provocative and disturbing acts shall be sentenced to imprisonment of not more than five years, criminal detention or control:

(1) Assaulting any other person at will, with odious circumstances;

(2) Chasing, intercepting, reviling or intimidating any other person, with odious circumstances;

(3) Taking or demanding forcibly or vandalizing or occupying at will public or private property, with aggravated circumstances; or

(4) Making trouble in a public place, which causes a serious disorder of the public place.

Whoever assembles other people to commit the acts as mentioned in the preceding paragraph many times, which seriously disrupt the social order, shall be sentenced to imprisonment of not less than five years but not more than 10 years and may be fined in addition.

This last clause was added to the statute in 2011. Prior to that, the maximum sentence under Art. 293 was five years’ imprisonment. Since the 2011 revision, a heavier penalty may be imposed for those who “assemble others” to commit offenses “multiple times.” If these conditions are not met, then the heavier sentencing range is not available.

So, do those condition apply in Pu’s case? I doubt it. One of the more ridiculous things about the way this charge is being used against Pu Zhiqiang is the way it applies an offense written to cover behavior in physical space on actions that appear to have taken place solely online. For that, we can thank a “judicial interpretation” on “using information networks to commit defamation and related crimes” issued by the Supreme People’s Court and Supreme People’s Procuratorate in September 2013, which states, in Article 5:

Using information networks to insult or threaten others with odious circumstances and damage to social order shall be convicted of provoking a serious disturbance and penalized in accordance with Criminal Law Article 293(1)(2).

The way this interpretation is constructed, it seems unlikely that Pu is being accused of using the Internet to “gather others” to insult people. I believe that if the prosecution wished to make this allegation, it would have been mentioned in its summary of the indictment. Therefore, I see no reason to believe that the prosecution seeks a sentence of more than five years on this charge.

Based on this analysis, the maximum possible sentence on these two charges should be eight years’ imprisonment. But even if Pu were to receive the maximum sentence on both charges, his combined sentence would most likely fall somewhere between the heaviest of the two and the total of the two—i.e., between five and eight years in prison.

UPDATE: The full indictment has been made public, added here for reference:

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