Wednesday, March 29, 2017

Court Cites GFW Circumvention Software in Convicting Man for Three Tweets That Incited Ethnic Hatred

According to a judgment issued by the Xinjiang Uighur Autonomous Region Kuitun Municipal People's Court in March 2016 (translated below) Tian Weiguo was sentenced to three years imprisonment for three posts he made on Google Plus and Twitter that "incited ethnic hatred." In its judgment the court specifically noted that Tian had used software to circumvent China's Great Firewall in order to make his posts on overseas websites.

The issues that Tian was posting about related to an outbreak of violence in Xinjiang in 2014 that was reported by Chinese state run media outlet the Global Times in an article entitled "Xinjiang Vows Unceasing Terror Crackdown." Some excerpts:
Xinjiang authorities revealed details of the Shache county terror attack on July 28 in a Saturday meeting chaired by its Party chief, putting the death toll at 96 and calling for a resolute crackdown to eradicate terrorists believed to be linked to overseas masterminds. 
In one of the largest attacks since the July 5 riot in 2009, extremists in Shache, Northwest China's Xinjiang Uyghur Autonomous Region attacked civilians, police stations and government offices on July 28, authorities announced.  
According to news portal ts.cn, a website administered by the Xinjiang government, police gunned down 59 terrorists and arrested 215 others in the attack on July 28 in Shache, Kashi prefecture. 
The original decision is available on the court's website here: http://wenshu.court.gov.cn/content/content?DocID=287fbd99-4a9e-46cd-ba86-543de7b374a3

Tian Weiguo Inciting Ethnic Hatred First Instance Criminal Judgment Document

Xinjiang Uighur Autonomous Region Kuitun Municipal People's Court

Criminal Judgment Document

(2016) 4003 Criminal First Instance No. 5

Public Prosecutorial Agency Kuitun Municipal People's Procuratorate.

Defendant Tian Weiguo.

In the Kuitun Public Criminal Prosecution Indictment Document No. 5[2016] the Kuitun Municipal People's Procuratorate charged the defendant Tian Weiguo with the crime of inciting ethnic hatred, and filed an indictment with this court on January 7, 2016. after accepting the case this court convened a collegiate panel, and held a hearing in open court. The Kuitun Municipal People's Procuratorate appointed Procurator Zhao Xiaobin and Procurator Li Yuzhen to appear in court in support of the indictment, and the defendant Tian Weiguo appeared in court and participated in the procedures. Hearings in this case have concluded.

The Kuitun Municipal People's Procuratorate charged:

On August 3, 2014, defendant Tian Weiguo used wall climbing software to register on the overseas website "Google," and reposted false information with the content "Xinjiang Shache Uighurs have been massacred." Afterwards, defendant Tian Weiguo once again reposted this false information on "Twitter," and at the same time also reposted two other items of information. The first was "The Shache massacre has been tweeted about for so long, the time has come for someone to call for the United Nations to send an investigation team." The second was "From what I understand of Xinjiang, there may be discrepancies: A leader of a mosque was killed because he cozied up to the Communists and helped the Chinese Communists, but hat was not the reason he was killed. Some women in Shache County went to the mosque during Id to recite scripture, and the local police / soldiers open fire and killed some of them, and when their families went to other villages to seek assistance, the Chinese Communists went crazy putting them down, massacring 4-5,000 people in four villages."

The foregoing information was reposted and collected by a large number of people.

The arraignment decision document and the false information reposted by Tian Weiguo on overseas websites (website screenshots) produced by the public prosecutorial agency, as well as the statements and defenses offered by Tian Weiguo, as well as electronic evidence forensics report produced by the Yili Prefecture Public Security Bureau and other relevant evidence proves the foregoing, and based on this the public prosecutorial agency believes that defendant Tian Weiguo's actions constitute the crime of inciting ethnic hatred, and request punishment be imposed in accordance with the law, and recommend that defendant Tian Weiguo be sentenced to no more than three years imprisonment.

Tian Weiguo objects to all of the facts and the crime charged by the public prosecutorial agency that he incited ethnic hatred. His defense is that after he saw the posts he was shocked and curious, and that he reposted them in order to confirm their veracity. He believes this does not constitute the crime of inciting ethnic hatred.

An investigation has shown that the defendant Tian Weiguo used wall climbing software on several occasions to access overseas websites, and used his Google account and Twitter account to distribute false information with content that incited ethnic hatred. On August 3, 2014, he used his Google account to publicly share a post with this content: "Xinjiang Shache Uighurs have been massacred." From August 1 to August 3, 2014, he used his Twitter account to subsequently reshare three tweets with the following content:
  • "Xinjiang Shache Uighurs have been massacred."
  • "The Shache massacre has been tweeted about for so long, the time has come for someone to call for the United Nations to send an investigation team." 
  • "From what I understand of Xinjiang, there may be discrepancies: 1. A leader of a mosque was killed because he cozied up to the Communists and helped the Chinese Communists, but hat was not the reason he was killed. 2. Some women in Shache County went to the mosque during Id to recite scripture, and the local police / soldiers open fire and killed some of them, and when their families went to other villages to seek assistance, the Chinese Communists went crazy putting them down, massacring 4-5,000 people in four villages." 
It was also determined that defendant Tian Weiguo’s Google account had 32 followers, and his Twitter account had 98 followers.

The foregoing facts were subject to examination and cross examination in court and verified by the public prosecutorial agency based mainly on the following evidence:

1. The arraignment decision document proving that on July 22, 2015 the Kuitun Public Security Bureau filed charges against Tian Weiguo for the crime of inciting ethnic hatred.

2. The electronic evidence forensics collected by the Yili Public Security Bureau's Network Security Defense Force, including website screenshots of the false information reposted by defendant Tian Weiguo on overseas websites, proving that the defendant used his Google account and Twitter account to spread false information that incited ethnic hatred.

3. The statements and defenses of defendant Tian Weiguo, proving the defendant Tian Weiguo confessed to the investigating agencies to the fact that he reposted false information on overseas websites that included content that incited ethnic hatred.

4. Expert Opinion: The electronic evidence forensics report produced by the Yili Prefectural Public Security Bureau proves that there were many copies of wall climbing software on his desktop computer, and tests showed a record of it being used to access overseas websites.

The foregoing evidence was verified and cross-examined in court, and the procedures and provenance was lawful, the content was connected to the facts in this case, and each piece of evidence was able to confirm the other. They provided effective proof, and are accepted by this court.

This court finds that on several occasions defendant Tian Weiguo used overseas websites to spread false information with content that incited racial hatred, sowed discord between the races, and damaged ethnic unity. His actions constitute the crime of inciting ethnic hatred.

The facts are clear and the evidence is definitive with respect to the Kuitun People's Procuratorate's charging defendant Tian Weiguo with the crime of inciting ethnic hatred. The accusation stands, and is upheld by this court.

Defendant Tian Weiguo offered the defense that he only reposted them in order to garner evidence, but this court cross-examined in court the facts of the content of his reposts and that it was viewed by others, and gives these facts credence. Therefore the defense offered by defendant Tian Weiguo does not comport with the facts in this case, and it is not accepted by this court.

In order to strike out at crime, maintain ethnic unity, and ensure that citizens' democratic rights are not infringed, in accordance with the provisions of Article 249 and Article 61 of the Criminal Law of the People's Republic of China, this court finds as follows:

Defendant Tian Weibo committed the crime of inciting ethnic hatred, and is sentence to three years imprisonment.

(The sentence is to be calculated from the date of execution of this judgment, with the sentence to be reduced by one day for each day that he was in custody prior to the execution of this judgment. Therefore it shall run from July 22, 2015 to July 21, 2018.)

If he does not agree with this judgment he may appeal to this court or directly to the Xinjiang Uighur Autonomous Region Higher People's Court, Yili Hasake Autonomous Prefecture Subdivision within 10 days after the day after receiving this judgment. Written appeals should be submitted with one original and two copies.

Presiding Judge Wang Hongying
Judge Yang Li
Acting Judge Gao Gaiyao

March 24, 2016

Clerk Xu Zhenling

田卫国煽动民族仇恨罪一审刑事判决书

新疆维吾尔自治区奎屯市人民法院

刑 事 判 决 书

(2016)新4003刑初5号

公诉机关奎屯市人民检察院。

被告人田卫国。

奎屯市人民检察院以奎检公诉刑诉[2016]5号起诉书指控被告人田卫国犯煽动民族仇恨罪,于2016年1月7日向本院提起公诉。本院受理后,依法组成合议庭,公开开庭进行了审理,奎屯市人民检察院指派检察员赵晓斌、检察员黎玉珍出庭支持公诉,被告人田卫国到庭参加诉讼。本案现已审理终结。

奎屯市人民检察院指控:

2014年8月3日,被告人田卫国通过翻墙软件登陆境外网站“谷歌网”,转发内容为“新疆莎车维族人遭到大屠杀”的虚假消息,此后,被告人田卫国又将该虚假信息在“推特网”上转发,同时又转发两条信息,第一条内容为“莎车屠杀事件纷纷扬扬这么久,应该是呼吁联合国派出调查团的时候了”;第二条内容为“关于新疆我了解到的,可能会有出入:一寺院领袖被杀,因为他亲共积极帮助中共,但这不是被杀的理由;莎车县一些女性在开斋节到寺庙诵经,当地警察/士兵开枪射杀,家属到其他村庄寻求帮助,中共疯狂镇压,屠杀4个村庄约4-5000人”。以上信息被多人转发和收藏。

公诉机关出示了立案决定书、田卫国在境外网站转发的虚假信息(网站截图);被告人田卫国的供述与辩解;伊犁州公安局出具的电子证物勘验报告等相关证据予以证实,并据此认为被告人田卫国的行为已构成煽动民族仇恨罪,提请依法判处,建议对被告人田卫国判处三年以下有期徒刑。

被告人田卫国对公诉机关指控其犯煽动民族仇恨罪的事实及罪名均有异议。辩称其是看到相关的帖子后很震惊、好奇,为求证是否属实而转发,认为不构成煽动民族仇恨罪。

经审理查明,被告人田卫国通过翻墙软件多次登陆境外网站,并利用其持有的谷歌帐号、推特帐号散布具有煽动民族仇恨内容的虚假消息。2014年8月3日利用其谷歌帐号公开分享了内容为“新疆莎车维吾尔人遭到大屠杀”的贴文。2014年8月1日至3日利用其推特帐号先后转推了三篇推文,内容分别为:“新疆莎车维吾尔人遭到大屠杀”、“莎车屠杀事件纷纷扬扬这么久,应该是公开呼吁联合国派出调查团的时候了”、“关于新疆我了解到的,可能会有出入。1、一寺院领袖被杀,因为他亲共积极帮助中共,但这不是被杀的理由,2、莎车县一些女性在开斋节到寺庙诵经,当地警察/士兵开枪射杀,家属到其他村庄寻求帮助,中共疯狂镇压,屠杀4个村庄死亡约4-5000人”。另查明被告人田卫国持有的谷歌帐号关注者有32人,其持有的推特帐号关注者有98人。

上述事实有公诉机关当庭举证、质证的以下主要证据证实:

1.立案决定书,证实奎屯市公安局于2015年7月22日以煽动民族仇恨罪对田卫国立案侦查。

2、伊犁州公安局网络安全保卫支队通过电子证物勘验提取到的,被告人田卫国在境外网站转发虚假信息的网站截图,证实被告人利用谷歌帐号、推特帐号散布具有煽动民族仇恨内容的虚假信息。

3、被告人田卫国的供述与辩解,证实被告人田卫国在侦查机关如实供述了其在境外网站转发带有煽动民族仇恨内容的虚假信息的事实。

4、鉴定意见:伊犁州公安局出具的电子证物勘验报告,证实在田卫国的台式电脑中存有多个翻墙软件,并勘验出登陆境外网站的记录。

以上证据经当庭举证、质证,程序和来源合法,内容与本案事实相关联,各证据之间能够相互印证,具有证明效力,本院予以采信。

本院认为,被告人田卫国通过境外网站多次散布具有煽动民族仇恨内容的虚假信息,挑拨民族关系,破坏民族团结,其行为已构成煽动民族仇恨罪。奎屯市人民检察院指控被告人犯煽动民族仇恨罪的事实清楚,证据确实,罪名成立,本院予以支持。被告人田卫国辩解其只是为了求证而转发,但庭审质证中对其转发的内容和被关注的事实均认可,故被告人田卫国的辩解与本案事实不符,本院不予采信。为打击刑事犯罪,依法维护民族团结,保护公民民主权利不受侵犯,依照《中华人民共和国刑法》第二百四十九条、第六十一条之规定,判决如下:

被告人田卫国犯煽动民族仇恨罪,判处有期徒刑三年。

(刑期从判决执行之日起计算;判决执行以前先行羁押的,羁押一日折抵刑期一日,即自2015年7月22日起至2018年7月21日止。)

如不服本判决,可在接到判决书第二日起十日内,通过本院或直接向新疆维吾尔自治区高级人民法院伊犁哈萨克自治州分院提出上诉。书面上诉的,应当提交上诉状正本一份,副本两份。

审 判 长  王洪英
审 判 员  杨 力
代理审判员  高改桃

二〇一六年三月二十四日
书 记 员  徐珍玲