Monday, December 26, 2011

Translation: Court Judgment in Chen Xi Incitement of Subversion Trial

N.B. - The Chinese version was created using OCR, so may have some errors. Corrections (on the Chinese or English) welcome.

Guizhou Province, Guiyang City Intermediate People's Court

Criminal Judgment

(2011) Zhu Criminal Court First Instance Judgment No. 140

People's Procuratorate of Guiyang City, Guizhou Province, Public Prosecution Agency.

Defendant Chen Xi, formerly known as Chen Youcai, male, born February 28, 1954, Han ethnicity.Originally from Yulin City, Guangxi Zhuang Autonomous Region, college education, unemployed. Household registration in Yunyan District, #98, Apt. 14, Xianghu Rd., Guiyang City, Guizhou Province. Residing at #1, 23rd Floor, Unit 2 Building 7, Long Changfan, Guiyang Jinyang New District, Century City. On May 23, 1990, found guilty of counter-revolutionary propaganda and incitement and sentenced to three years imprisonment, and three years deprivation of political rights. Released from prison in June 1992 upon fulfillment of sentence. On March 27, 1996, sentenced to ten years imprisonment and five years deprivation of political rights for organizing and leading a counterrevolutionary organization. Released from prison on May 26, 2005 upon fulfillment of sentence. On November 29, 2011, detained on suspicion of being involved in committing the crime of inciting subversion of state power. Currently in custody at the Guiyang No. 1 Detention Center.

Defense attorney Xun Guangquan, Tianyizhihe Law Firm.

Defense attorney Bai Min, Tianyizhihe Law Firm.

In Indictment (2011) No. 162, the People's Procuratorate Agency for Guiyang, Guizhou accused the defendant Chen Xi of the crime of inciting subversion of state power, and filed its indictment with this court on December 14, 2011. This court convened a collegiate panel in accordance with the law, and held a public trial for this case. Liu Yi, Yuan Zhong, and Zhan Mibo appeared in court to represent the People's Procuratorate Agency for Guiyang, Guizhou in support of the indictment. The defendant Chen Xi and his defense attorneys Li Guangquan and Bai Min were present in court to participate in the litigation.

In its indictment the People's Procuratorate Agency for Guiyang, Guizhou accused the defendant Chen Xi of having twice been subject to criminal sanctions for crimes involving endangering state security. Since May 2005, he had used the Internet to publish 36 articles on many overseas websites including "For Three Citizens - Answering the Communist Party's Public Security," "I am a Democracy Party Member," "'June 4' Changed Me and Changed China," and "An Open Letter from the Chinese Democracy Party to the Chinese Communist Party." These articles incited the overthrow of China's people's democratic dictatorship's state power and socialist system.

With respect to the facts alleged regarding the foregoing crimes, the public prosecution agency set forth and produced relevant material evidence, documentary evidence, and authenticated conclusions, inquisition records, the defendant's confession, and other evidentiary materials. The public prosecution agency believes that the defendant Chen Xi's actions violate the provisions of Article 105(2) of the "Criminal Law of the People's Republic of China," and constitute the crime of inciting subversion of state power, and that his crime is severe. In addition, the defendant Chen Xi's actions fall within the provisions of Article 66 of the "Criminal Law of the People's Republic of China," and he is a recidivist.

During the trial, the defendant Chen Xi and his attorneys offered a defense, arguing: Chen Xi did not have the intent to incite subversion of state power, that the articles he published did not include rumors or defamatory content, and were merely an exercise of the freedom of expression which the Constitution gives to citizens, and did not constitute the crime of inciting subversion of state power.

Following a trial it has been ascertained that the defendant Chen Xi has twice been subject to criminal sanctions for crimes involving endangering state security. Since May 2005, following the completion his primary sentence, he has made no effort to reform himself, and he used the Internet to publish 36 articles including "For Three Citizens - Answering the Communist Party's Public Security," "I am a Democracy Party Member," "'June 4' Changed Me and Changed China," and "An Open Letter from the Chinese Democracy Party to the Chinese Communist Party" on many overseas websites including "Boxun," "Liberty Lamp," "Yi Bao," "Democracy Forum," "Rights Defense Net," "Beijing Spring," and "Democratic China." These articles spread rumors and slanders about the Chinese Communist Party, saying it is "a criminal organization that ignores the law and violates human rights at will," that the people's government is an "'evil,' 'ruthless' dictatorial government," and that "We need to take a path that is different from that of the Communist Party, for we have no faith in any Marxism, much less any faith in any Communism, and further thoroughly reject the Communist Party's despotic totalitarian "Party under heaven," and "Let us view 'changing allegiance' as one different way of resolving problems." This incited the overthrow of China's people's democratic dictatorship's state power and socialist system. After the aforementioned articles were published on the Internet they were reposted by many websites and received extensive clicks and traffic.

The foregoing facts have been verified in court through the following physical and testimonial evidence:

1. The Qian Public Security (Internet) Kan[2011] No. 004 "Remote Testing Work Record" produced by the Guizhou Public Security Office's Internet Security Safeguard Unit proved that they discoved 36 articles signed Chen Xi that had content which incited subversion of state power on overseas websites including "Boxun," "Liberty Lamp," "Yi Bao," "Democracy Forum," "Rights Defense Net," "Beijing Spring," and "Democratic China."

2. The search records and evidence collection list created by the Jinyang division of the Guiyang Public Security Office proved that a lawful search of the defendant Chen Xi's home uncovered five hand written articles with content that incited subversion of state authority, and one computer and two USB sticks connected with this case.

3. The Qian Gong (Judicial) Examination (Document) [2011] No. 015 "Documentary Inspection Appraisal" produced by the Guizhou Public Security's Judicial Forensics Center proved that, based on a handwriting analysis, the five hand written articles with content that incited subversion of state authority which were uncovered during a lawful search of the defendant Chen Xi's home were written by Chen Xi.

4. The [2011] Computer Forensics No. 12 "Computer Evidence Appraisal" produced by the Guizhou Tianjian Judicial Forensics Center provided that the computer hard drive and USB sticks impounded during a lawful search of the defendant Chen Xi's home included electronic copies of 35 of the 36 articles that had been discovered posted on overseas websites.

5. The hard copies of 36 articles published online by the defendant Chen Xi, including "For Three Citizens - Answering the Communist Party's Public Security," "I am a Democracy Party Member," "'June 4' Changed Me and Changed China," and "An Open Letter from the Chinese Democracy Party to the Chinese Communist Party" were confirmed by his signature as having been published by him, and prove that in these articles he used rumors and libel to incite subversion of China's state power and the overthrow of the socialist system.

6. The "Remote Investigation Status" produced by the Guizhou State Security Bureau proves that as of November 9, 2011, the "Chen Xi Collection" on the overseas website "Boxun" which included the articles at issue in this case had over 360,000 hits. In addition, the three articles "For Three Citizens - Answering the Communist Party's Public Security," "'June 4' Changed Me and Changed China," and "A Response to the Activities of the United Nations "World Human Rights Year," written and published by the defendant Chen Xi that had been discovered on the "Democratic China" and other overseas websites had been viewed 1,443 times.

7. In his deposition defendant Chen Xi confessed that since May 2005, after writing articles on his home computer or in Internet cafes, he used "circumvention software" and the Internet to publish 36 articles including "For Three Citizens - Answering the Communist Party's Public Security," "I am a Democracy Party Member," "'June 4' Changed Me and Changed China," and "An Open Letter from the Chinese Democracy Party to the Chinese Communist Party" on many overseas websites including "Boxun," "Liberty Lamp," "Yi Bao," "Democracy Forum," "Rights Defense Net," "Beijing Spring," and "Democratic China, and that he received payments from the aforementioned websites.

8. The criminal judgment document and release evidence of the Guiyang Intermediate People's Court proves that on May 23, 1990, the defendant Chen Xi was sentenced to three years imprisonment and three years deprivation of political rights for counter-revolutionary propaganda incitement, and was released from prison in June 1992 upon fulfillment of his sentence. On March 27, 1996, he was sentenced to ten years imprisonment and five years deprivation of political rights for organizing and leading a counterrevolutionary organization, and was released from prison on May 26, 2005 upon fulfillment of his sentence.

9. Household registration materials proves Chen Xi's identity status.

This court finds that the defendant Chen Xi did, with the goal of overthrowing the state power of China's people's democratic dictatorship and the socialist system, use the Internet's special characteristics to rapidly and broadly transmit information with a large social impact and high level of attention from the public, to write and publish on the Internet articles that incited people, and used spreading rumors and defamation and other means to incite subversion of China's state power and overthrow the socialist system, and that his actions constitute the crime of inciting subversion of state power. The defendant's subjective malice runs deep, his crimes spanned a long period of time, the harm was great, his crime is severe, and therefore must be punished in accordance with the law. After having twice been subjected to criminal sanctions for the crime endangering state security, he continued and committed the crime of inciting subversion of state power. He is a recidivist and should be subjected to severe punishment. The public prosecutorial agency's accusation that the defendant Chen Xi committed the crime of inciting subversion of state power finds clear evidence and ample evidence, and the accusation is upheld. With respect to arguments and defenses put forth by Chen Xi and his attorneys, this court believes that in exercising their right to free expression, citizens must not harm the nation's interests or security, and must not use rumors or defamation to incite subversion of state power. In this case there is ample evidence that Chen Xi used the Internet's special characteristics to spread rumors and defamation and acted to carry out incitement of subversion of China's state power and overthrow the socialist system, and that clearly exceeds the boundaries of free expression, and in accordance with the law constitutes incitement of subversion of state power. Therefore the arguments and defenses put forth by Chen Xi and his attorneys are not tenable, and this court will not accept them. In accordance with the facts, nature, circumstances, degree social harm of the defendant Chen Xi's crime, in accordance with the provision s of articles 105(2), 66, 56(1), 55(1), and 65 of the "Criminal Law of the People's Republic of China," this court finds as follows:

1. Defendant Chen Xi committed the crime of inciting subversion of state power, and is sentenced to a fixed term of ten years imprisonment and three years deprivation of political rights.

(The prison term is to be calculated starting on the day the judgment is executed, with each day spent in detention prior to the execution of the judgment to count as one day of the prison term. It will therefore run from November 29, 2011 to November 28, 2021.)

2. The defendant's computer and USB sticks used by the defendant Chen Xi in this case and seized in accordance with the law are hereby confiscated.

If the defendant does not accept this judgment, he may file an appeal with this court or directly with the High People's Court of Guizhou between the second and tenth day from the day after he receives the judgment document. A written appeal should be submitted with one original and two copies.

Presiding Judge Miao Fan

Judge Shu Zigui

Judge Shan Changhong

December 26, 2011

Clerk Dai Shu

==============

贵州省贵阳市中级人民法院

刑事判决书

(2011)筑刑一初字第140号

公诉机关贵州省贵阳市人民检察院。

被告人陈西,曾用名陈友才,男,1954年2月28日生,汉族。广西壮族自治区玉林市人,大专文化,无业,户籍地贵州省贵阳市云岩区香狮胳98号附14号,居住地贵阳市金阳新区世纪城龙昌苑7栋2单元23楼1号。1990年5月23日因犯反革命宣传煽动罪被判处有期徒刑三年,剥夺政治权利三年,1992年6月刑满释放;1996年3月27日囚犯组织、领导反革命集团罪波判处有期徒刑十年,剥夺政治权利五年,2005年5月26曰刑满释放。2011年11月29日因涉嫌犯煽动颠覆国家政权罪被逮捕。现押于贵阳市第一看守所。

辩护人孙光全,天一致和律师事务所律师。

辩护人白敏,天一致和律师事务所律师。

贵州省贵阳市人民检察院以筑检刑诉(2011)162号起诉书指控被告人陈西犯煽动颠檀国家政权罪,于2011年12月14日向本院提起公诉。本院依法组成合议庭,公开开庭审理了本案。贵州省贵阳市人民检察院指派检察员刘奕、袁忠、詹迷波出庭支持公诉,被告人陈西及其辩护人孙光全、白敏到庭参加诉讼。现已审理终结。

贵州省贵阳市人民检察院起诉指控,被告人陈西曾因危害国家安全犯罪两次受到刑事处罚,自2005年5月以来,通过互联网先后在境外多家网站上发表《为了三个公民-答共产党公安》、《我是民主党人》、《“六四”改变了我也将改变中国》、《中国民主党致中国共产党的公开信》等36篇文章,煽动颠覆我国人民民主专政的国家政权和社会主义制度。

针对指控的上述犯罪事实,公诉机关当庭宣读、出示了相关物证、书证、鉴定结论、勘验记录、被告人供迷等证据材料。公诉机关认为,被告人陈西的行为触犯《中华人民共和重刑法》第一百零五条第二款的规定,已构成漏动颠厦国家政权罪,且罪行重大。同时被告人陈西的行为符合《中华人民共和国刑法》第六十六条之规定,系累犯。提请本院依法判处。

庭审中,被告人陈西及其辩护人辩解、辩护称:陈西没有煽动颠覆国家政权的故意,所发表的文章没有造谣、诽谤内容,只是行使宪法赋予公民言论自什的权利,不构成煽动颠覆国家政权罪。

经审理查明,被告人陈西曾因危害国家安全犯罪两次受到刊事处罚,2005年5月主刑执行完毕后,乃不思悔改,通过互联网先后在“博讯”、“自由圣火”、“议报”、“民主论坛”、“维权网”、“北京之春”、“民主中国”等多家竟外网站上发表《为了三个公民-答共产党公安》、《我是民主党人》、《“六四,"改变了我也将改变中国》、《中国民主党致中国共产党的公开信》等36篇文章,在文章中造谣、诽谤中国共产党是“一个不学法、任意侵犯人权的黑社会组织”,人民政府是“‘邪恶’,‘残暴’的专政政府",宣称“我们要走与共产党不同的道路,我们不相信什么马列主义,更不相信什么共产主义,并且,彻底否定共产党专制极权’党天下‘”,鼓动“把‘改旗易帜’看着是解决问题的不同方法之一”等等,煽动颠覆我国人民民主专政的国家政权和社会主义制度。以上文章在互联网真发表后,被多家网站转载并被广泛点击浏览。

上述事实,有下列经庭审举证、质证的证据证实:

1、贵州省公安厅网络安全保卫总队出具的黔公(网安)勘[2011]004号《远程勘验工作记录》证实,在“博讯”、“自由圣火"、“议报”、"民主论坛”、“维权网”、“北京之春”、“民主中国”等境外网站上发现署名陈西的含有煽动颠覆国家政权内容的文章36篇。

2、贵阳市公安局金阳分局制作的搜查笔录、扣押物品清单证实,在被告人陈西家中依法搜查到含有煸动颠覆国家政权内容的文章手稿5篇、涉案电脑1台、U盘2个。

3、贵州省公安司法鉴定中心出具的黔公(司)鉴(文)[2011]015号《文件检验鉴定书》证实,经过笔迹鉴定,在被告人陈西家中依法搜查扣押的含有煽动颠覆国冢政权内容的五篇文章手稿系陈西所写。

4、贵州省天剑司法鉴定中心出具的[2011]计鉴字第12号《计算机证据鉴定》证实,在被告人陈西家中依法搜查扣押的电脑硬盘及U盘中存有在境外网站上发现的36篇文章中35篇的电予文本;在电脑硬盘中还发现有“突网软件"和访问境外网站的记录。

5、被告人陈西在互联网上发表的《为了三个公民-答共产党公安》、《我是民主党人》、《“六四"改变了我也将改变中国》、《中国民主党致中国共产党的公开信》等36篇署名文章纸质件,经其签字确认系其所发表,证实其在文章中以造摇、诽谤的方式煸动颠覆我国国家政权、 推翻社会主义制度。

6、贵州省国家安全厅出具的《远程查验情况》证实,截止2011年11月9日。境外“博讯”网上含有涉案文章的“陈西文集”点击率达36万余次。另外在“民主中国”等其它境外网站上发现被告人陈西所写并发表的《“六四”改变了我也将改变中国》、《为了“三个公民”-答共产党安全》、《响应联合国“世界人权年”活动》等3篇文章被点击浏览1443次。

7、被告人陈西的供述,供认自2005年5月以来,其在家中或者网吧电脑上撰写文章后,使用“突网软件”通过互联网先后在“博讯”、“自由圣火”、“议报"、“民主论坛”、“维权网”、”北京之春”、“民主中国”等多家境外网站上发表《为了三个公民-答共产党公安》、《我是民主党人》、《"六四”改变了我也将改变中国》、《中国民主党致中国共产党的公开信》等36篇文章,并收到上述境外网站支付的稿费。

8、贵阳市中级人民法院刑事判决书,释放证明证实,被告人陈西1990年5月23日囚犯反革命宣传煽动罪被判处有期徒刑三年,剥夺政治权利三年,l992年6月刑满释放;1996年3月27日因犯组织、领导反革命集才罪被判处有期徒刑十年,剥夺政治权利五年,2005年5月26日刑满释放。

9、户籍资料证实陈西个人的身份情况。

本院认为,被告人陈西以推翻我国人民民主专政的国家政权和社会主义制度为目的,利用互联网传递信息快、传播范围广、社会影响大、公众关注度高的特点,撰写并在互联网上发表煽动性文章,以造谣、诽谤等方式煽动颠覆我国国家政权、推翻社会主义制度,其行为已构成煽动颠覆国家政权罪。被告人陈西主观恶性深,犯罪时间长,危害严重,罪行重大,应依法惩处。陈西曾因危害国家安全犯罪两次受到刑事处罚后,又犯煽动颠覆国家政权罪,系累犯,依法应从重处罚。公诉机关指控披告人陈西犯煽动颠覆国家政权罪的事实清楚,证据充分,指控罪名成立。关于陈西及其辩护人所提辩解与辩护意见,本院认为,公民行使言论自由权利,不得损害国家利益和安全,不得以造谣、诽谤的方式煽动颠覆国家政权,而本案的证据充分证实,陈西利用互联网的专媒特点,以在互联网上发表造谣、诽谤性文章的方式,实施煽动颠覆我国国家政权和社会主义制度的行为,已明显超出言论自由的范围,依法构成煽动颠覆国家政权罪。故陈西及其辩护人所提辩解与辩护意见,不能成立,本院不予采纳。根据被告人陈西犯罪的事实、性质、情节和对于社会的危害程度,依照《中华人民八和国刑法》第一百零五条第二款、第六十六条、第五十六条第一款、第五十五条第一款、第六十四条的规定,判决如下;

一、被告人陈西犯煽动颠覆国家政权罪,判处有期徒刑十年,剥夺政治权利三年。

(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2011年11月29日起至2021年11月28日止。)

二、依法扣押的被告人陈西作案使用的电脑、U盘予以没收。

如不服本判决,可在接到判决书之次日起十日内,通过本院或直接向贵州省高级人民法院提出上诉。书面上诉的,应交上诉状正本一份,副本二份。

审判长 缪凡
审判员 舒子贵
审判员 单长红

二0一一年十二月二十六日

书记员 戴舒

Translation: Huang Xuqin and Wang Jianbing Inciting Subversion Indictment

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