Pages

Friday, January 31, 2014

Global Times Says Xu Zhiyong Verdict Prompts Debate, While Sina Weibo Censors “Why We Believe He is Innocent”

On January 28, 2014, the state-sponsored Global Times published an article in English entitled “Xu Zhiyong Trial Prompts Debate.” Some excerpts:
"Despite knowing that organizing people to gather in public places for certain appeals and holding banners would draw onlookers, which could easily disrupt social order and cause participants to resist law enforcement, Xu kept doing so and did not take effective measures to prevent such consequences," the court stated when giving grounds for the conviction in the indictment.

However, in a document posted online late Sunday evening, five law professors called for a review into the legal basis for Xu's charges.
. . . .
Peng Bing, a professor with Peking University and one of the five scholars, confirmed to the Global Times his views on the opinion piece. "It was a mere academic discussion on the legality of the verdict. We did not call for anything," Peng said.
The opinion mentioned by the Global Times was penned by Peng Bing (彭冰) and Gan Peizhong (甘培忠) of Peking University Law School), Yao Huanqing (姚欢庆) of Beijing People's University School of Law, Wang Yong (王涌) of China University of Politics and Law, and He Haibo (何海波) of Tsinghua University Law School.

The opinion was entitled “Why We Believe He Is Innocent: A Legal Opinion on Xu Zhiyong Conviction for Gathering Crowds to Create a Disturbance at a Public Venue” (为什么我们认为他无罪:对许志永聚众扰乱公共场所罪一审判决的法律意见).

This screenshot was taken on January 29, and shows that Sina Weibo was censoring searches for “Why We Believe He Is Innocent.”(为什么我们认为他无罪)

See also:

Thursday, January 30, 2014

Wife's Letter to Xu Zhiyong Disappears From Sina Weibo

On January 27, 2014, the Wall Street Journal published a letter (English | Chinese) from Cui Zheng (崔筝) to her husband, Xu Zhiyong, who had been sentenced to four year’s imprisonment the previous day. Some excerpts:
Finally, I’ve figured it out. Everyone has their own things they hold fast to – a bottom-line they won’t change to cater to or please others. I, too, have lines I won’t cross, no matter how much you beg me to.  Therefore, I don’t blame you at all for today’s result and I accept it calmly. But it is not because what you persist in doing is noble to me. It’s because fate has pushed you the point where you must chose to persist and give up on everything else.
. . . .
You should discuss the details of a second trial with Lawyer Zhang before the Spring Festival. I don’t have the energy to get involved any more. But still I hope you will walk the path of this process to the end. I don’t want you to give up, even if there is only a theoretical chance of success.
我最终想通了,每个人都有各自坚守的东西,一条不为取悦或是顾及他人而改变的底线。我也有一些无论你怎样请求,都不会改变的东西。所以,今天的结果我并不怪你,也坦然接受,但并不是因为你所坚持的东西在我看来有多么高尚,而是因为命运真的把你推到了需要去选择坚持而放弃其他一切的这一步。
. . . .
我也无力再掺合了,但还是希望你走到程序的最后一步,哪怕只是理论上的可能,我也不希望你放弃。
These screenshots show that on January 28th and 29th, posts containing references to the letter were repeatedly deleted.

Additional coverage of Xu Zhiyong:

Monday, January 27, 2014

Baidu Censors Results for Xu Zhiyong's Closing Statement to the Court

During his trial on January 22, 2014, Xu Zhiyong attempted to read a statement to the court entitled “For Freedom, Justice and Love — My Closing Statement to the Court.”(许志永法庭陈词:最后为了自由·公义·爱).

On January 26, the First Intermediate People’s Court of Beijing announced that it had found Xu guilty of gathering groups to cause disorder in public venues, and had sentenced him to four years imprisonment.

These screenshots show that Baidu began censoring searches for “Xu Zhiyong Final Statement” (许志永 最后陈述) at about the time the court announced its verdict.

These screenshots were taken on January 26, and show that searches on Baidu for “'Xu Zhiyong  Court Closing Statement'” ("许志永法庭陈词") and “Xu Zhiyong ‘For Freedom, Justice, and Love’” (许志永 "为了自由公义爱") returned no results, just a censorship notice.

Additional coverage of Xu Zhiyong's case:

Sunday, January 26, 2014

Translation: Xu Zhiyong Court Judgment - 2014

Translator's Summary: The court found Xu guilty of gathering crowds to create a disturbance in a public venue on the grounds that he "exploited hot-button social issues of public concern" to repeatedly organize large gatherings in public venues. The "issues" included, inter alia, government policies that made it difficult for children of parents without a Beijing household registration to sit for entrance examinations for high school and college.

 

First Intermediate People's Court of Beijing


Criminal Judgment


(2013) 1st Intermediate Criminal First Instance No. 5268


The public prosecution agency was the People's Procuratorate of Beijing Branch No. 1.

Defendant Xu Zhiyong, male, born [INTENTIONALLY DELETED], 1973. He was taken into criminal detention on July 16, 2013 on suspicion of committing the crime of gathering crowds to create a disturbance in a public venue, and he was arrested on August 22 of the same year. He is currently being held in detention at the Beijing No. 3 detention center.

Defense counsel Zhang Qingfang, is a lawyer at the Beijing Handing Lianhe Law Firm.

Defense counsel Yang Jinzhu is a lawyer at the Hunan Yuelin Law Firm.

In the Jing No. 1 Procuratorate Criminal Indictment (2013) No. 306 indictment the People's Procuratorate of Beijing Branch No. 1  charged defendant Xu Zhiyong with committing the crime of gathering crowds to create a disturbance in a public venue, and on December 13, 2013 filed a public prosecution with this Court. In line with the High People's Court of Beijing's (2013) High Criminal Designation No. 101 designation decision, on December 13, 2013 this Court opened and docketed the case, and formed a collegial panel in accordance with the law. On the same day a copy of the indictment was served to defendant Xu Zhiyong, and he was informed of the names of the members of the collegial panel and the clerk, as well as the procedural right enjoyed by defendants in accordance with the law.

In accordance with Xu Zhiyong's instructions, his defense counsels submitted their defense counsel appointment documents to this Court and reviewed and copied all of the case file materials.

On January 17, 2014 the collegial panel convene a pre-hearing conference between the prosecution and the defense in this case to hear opinions on procedural issues such as the jurisdiction of the case, recusal, appearance of witnesses, and the exclusion of illegal evidence, and organize the prosecution and defense to disclose the evidence to be presented in court. The defense counsels did not apply for recusal or illegal evidence exclusion in the pretrial conference, but raised an objection to the jurisdiction and to this case being tried separately from other cases, and applied for witnesses to testify in court. The public prosecutor also expressed their opinions on the objections and applications raised by the defense counsel. The prosecutor also expressed his opinions on the objections and applications raised by the defense counsel. After hearing the opinions of the prosecution and the defense, the collegial panel responded to the objections raised by the defense counsel in accordance with the law.

After defendant Xu Zhiyong received a copy of the indictment he submitted written opinions to this court on the issues of jurisdiction and witnesses appearing in court. After the collegial panel arranged for Xu Zhiyong to review the evidence proffered by the public prosecution agency, it also responded to his application in accordance with the law.

After the pre-trial conference, the collegial panel delivered a hearing summons and court notice to Xu Zhiyong and his defense counsels, respectively.

On January 20, 2014, the collegial panel again convened the prosecution and the defense to discuss the specific witness list. The defense counsels stated that it would no longer apply for witnesses to testify in court, and would not submit new evidence to the court. The prosecutors also stated that they would not apply for witnesses to appear in court.

On January 22, 2014, this Court conducted hearing in this case in open court in accordance with the law. People's Procuratorate of Beijing Branch No. 1  assigned Acting Procurators Wang Bin, Sun Ao, and Li Nan to appear in court in support of the public prosecution. Defendant Xu Zhiyong and his defense counsels Zhang Qingfang and Yang Jinzhu appeared in court to participate in the proceedings. The trial has now concluded.

The People's Procuratorate of Beijing Branch No. 1 charged:

On several occasions between July 2012 and March 2013, defendant Xu Zhiyong individually or with others exploited hot-button social issues of public concern and organized, plotted, and incited many people to gather crowds to create a disturbance in public venues including in front of the Ministry of Education, in front of the Beijing Education Commission, at the south gate of Chaoyang Park, in the Zhongguancun District,  at Xidan Culture Square. After committing these offenses defendant Xu Zhiyong was taken into custody by the public security agency to face justice.

The People's Procuratorate of Beijing Branch No. 1 transferred physical and documentary evidence to this Court including witness testimony, forensic opinions, crime scene investigation records, audio-visual materials, electronic data, and defendant's statements justifications. It believes that on several occasions defendant Xu Zhiyong acted to organized and plot to gather crowds to create a disturbance in a public venue, and resisted and obstructed public security officials in the performance of their duties in accordance with the law, that the circumstances were severe, that he was a primary instigator, and his actions constitute the commission of an offense under the provisions of Article 291 of the "Criminal Law of the People's Republic of China," that he should be subjected to criminal liability for gathering crowds to create a disturbance in a public venue, and it requests this Court impose punishment in accordance with the law.

During hearings in court defendant Xu Zhiyong raised an objection to jurisdiction, but he expressed no opinions regarding the facts or offense charged in the indictment. The collegial panel repeatedly informed Xu Zhiyong that in accordance with the law he had the right to offer a defense in the court investigation and debate stages, and that he could express opinions on the facts and evidence of the case. Xu Zhiyong neither expressed any opinions regarding the facts and evidence in the case, nor did he offer any justifications. During the final presentation stage of the trial, Xu Zhiyong stated the motivation of his actions and pointed out that the emotional agitation of individual participants was caused by other factors.

During pre-trial conferences defendant Xu Zhiyong's defense counsel raised an objection to jurisdiction and how this case was being tried separately from other cases. The collegial panel repeatedly reminded defense counsel in accordance with the law during the court investigation and debate stages that it was responsible for making a defense. According to the facts and the law, the defendant should submit materials and opinions that the defendant is either not guilty or is guilty of a lesser offense, and protect the defendant's procedural and other legal rights and interests. Xu Zhiyong's defense counsels did not question Xu Zhiyong during the court investigation stage or issue an evidence examination opinion, and did not issue a defense opinion during the court debate stage.

It was ascertained at trial that:

I. Defendant Xu Zhiyong exploited hot-button social issues of public concern and on July 5, 2012 organized and incited over 100 individuals to gather in front of the Ministry of Education. The aforementioned individuals erected banners at the scene and shouted and refused to comply with the orders and instructions of the police, causing a severe disruption in order in the area surrounding the Ministry of Education.

The aforementioned facts are substantiated by the following evidence confirmed by this Court through evidence produced and examined during hearings:

1. The Public Security Bureau of Beijing's Cultural Security Detachment's July 4, 2012 "Record of Questioning" of Xu Zhiyong proved: Xu Zhiyong admitted that previously on the evening of July 3, 2012 and at 2:00 pm on July 4, 2012 he posted the following information on Netease Weibo and Tencent Weibo, respectively: "Petitioning at 9:30 am on July 5 at the Ministry of Education, Observers Welcome," in the hope that more people would come to the Ministry of Education on July 5 to observe. On the evening of July 3, when Xu Zhiyong and a couple of dozen parents of migrant children had assembled, some parents proposed petitioning the government for redress on July 5. At that time he suggested that they wanted more petitioners to take part in petitioning the government for redress in order to draw more high level attention from the government. He expressed approval of raising banners, sitting peacefully, and strolling.

2. The "Work Explanation" produced by the public security agency proved: On November 1, 2011, the Public Security Bureau of Beijing opened an investigation into Xu Zhiyong. On July 4, 2012 in the course of their work they discovered the Weibo Xu Zhiyong posted on Tencent Weibo saying that on July 5 parents without a Beijing household registration would go to the Ministry of Education to petition the government for redress. In order to confirm the situation on July 4, 2012 the Public Security Bureau of Beijing's Cultural Security Detachment had a conversation with Xu Zhiyong and created a record of the questioning.

3. The testimony of Meng X proved: Xu Zhiyong organized parents of students without a Beijing household registration to go to the gate of the Ministry of Education at the end of each month to petition and hand out materials. At a meeting on July 3, 2012, Xu Zhiyong mainly discussed the question of how to motivate parents of students to participate in the July 5 activity. Xu Zhiyong proposed that the parents who participated in the activity that day should first gather in the courtyard of the Petitioning Office of the Ministry of Education, and afterwards walk to, and stand in front of, the Ministry of Education's gate, and that if only more people went, then it would necessarily lead to attention being paid. The scene on July 5 was somewhat disorderly, and there was a dispute between him and the police when the police were enforcing the law.

4. The testimony of Sun X proved: At a meeting before the July 5, 2012 activity Xu Zhiyong let the parents mobilize more people, and said that the effectiveness of 100 people going is not the same as that of 1,000 people going, and it was necessary to gather more people. On July 5, 2012 hundred of students parents assembled at the Ministry of Education's Petitioning Office, and subsequently walked from the Petitioning Office to the front gate of the Ministry of Education. During this time some of the students' parents erected banners and shouted slogans, and they were subsequently stopped by the police.

5. The testimony of Shao X proved: At 9:00 on July 5, 2012 he and over 100 parents went to the Ministry of Education's Petitioning Office to press their issues. After the petitioning concluded at noon, the parents were stopped by the police as they were passing through the Ministry of Education's North Gate. At around 1:00 around 50 parents stood at the east side of the Ministry of Education's North Gate, with some parents displaying banners and shouting slogans.

6. The testimony of Sun X 1 proved: Since 2011, some people would often assemble at the Ministry of Education's gate to raise banners. Each time those people came he would assign some security guards to keep the situation under control. On July 5, 2012 over 2,000 raised banners and shouted slogans at the Ministry of Education's gate. The security company transferred over 100 people, and police from the Xicheng District Precinct also came. He spent the entire day at the North Gate dealing with the situation.

7. The testimony of Sun X 2 proved: At 9:00 on July 5, 2012 he was on duty at the Ministry of Education's North Gate, and at that time some individuals slowly assembled at the North Gate to petition the government for redress. Around 1:00 in the afternoon security guards and police commanded the individuals petitioning the government for redress to desist from assembling at the Ministry of Education's front gate and disrupting the normal order in front of the Ministry of Education's gate. But the individuals petitioning the government for redress did not comply with their command to desist, and some people raised banners and some people stood at the entrance cursing. This drew the attention of pedestrians passing by. Afterwards the  police confiscated the banners and took two of the people who were causing trouble to the police precinct processing.

8. The testimony of Wang X 1 and Hou X was basically consistent with the content of the testimony of witness Sun X 2.

9. The testimony of witnesses Fei X and Cheng X proved: At around 8:00 on July 5, 2012 the  police went on duty at the Ministry of Education's North Gate. At around 9:00 over 100 parents began arriving at the Ministry of Education's Petitioning Office, and they did not depart until noon. At around 1:00 pm over 50 parents petitioning the government for redress assembled at the east side of the Ministry of Education's North Gate, with some people raising banners and shouting slogans. When the police moved in to stop them many of the individuals petitioning the government for redress did not comply with their commands to desist, and obstructed law enforcement. One of them used a cell phone to take photos and yelled curses at the police. Afterwards another person took the initiative to cause trouble, and the police took two people back to the police precinct.

10. The "Evidence Collection Notice" and "Work Explanation" produced by the public security agency proved: The relevant contents of Xu Zhiyong's Tencent Weibo all originated from the evidentiary optical disc the public security agency collected from Shenzhen Tencent's headquarters. In order to fix the evidence in a medium, the public security agency transferred the contents to a paper version and handed it over to Xu Zhiyong for verification and signature during the interrogation.

11. Data from Xu Zhiyong's Tencent Weibo proved: On July 3 and 4, 2012, Xu Zhiyong posted on his Tencent Weibo account XXX a weibo with the content about new Beijingers coming to the Ministry of Education at 9:30 am on July 5 to petition, observers welcome.

12. The "Work Explanation" and videos of the case developing at the scene produced by the public security agency proved: The videos of the case developing at the scene collected by the Erlong Road public security agency police precinct showed a disorderly situation at the scene, with people at the scene resisting and obstructing law enforcement.

13. The "Crime Scene Investigation Record" illustrations and images from the scene produced by the public security agency proved: The situation in and around the vicinity of the location of the case at the Ministry of Education's North Gate at No. 37, Damucang Hutong, Xicheng District.

14. The Reply (2014) No. 56 "Beijing Planning Commission Letter Regarding the Relevant Planning Status for Land Occupied by the Ministry of Education and Other Agencies" issued by the Beijing Planning Commission proved: Picai Hutong (municipal government road) is laid out outside of the Ministry of Education's north gate and is classified as municipal public land.

II. Defendant Xu Zhiyong exploited hot-button social issues of public concern and, together with Wang X 2, Ding X (all being handled in a separate case) and others organized, plotted, and incited nearly 100 people to go and assemble in front of the Beijing Education Commission's gate for an extended period of time on February 28, 2013, and to not obey police commands and disperse, causing a severe disruption in order in the area surrounding the Beijing Education Commission's gate.

The aforementioned facts are substantiated by the following evidence confirmed by this Court through evidence produced and examined during hearings:

1. The statement of defendant Xu Zhiyong during the investigation phase: Pamphlets for the "Take a Day Off on 2.28" activity were most likely distributed on February 25, and the purpose was to mobilize everyone to go to the entrance of the Beijing Education Commission on February 28 to petition the government for redress. The business cards were made by someone who was hired by him, and the text content of the pamphlets was drafted and made by the parents. He saw several people take photos, but he didn't know who posted them online. Regarding going to the Beijing Education Commission on February 28 to petition the government for redress, in addition to issuing cards, he also issued appeals on Weibo. He remembered that when discussing with about 20 or 30 parents, he proposed the theme "Take a Day Off on 2.28", and everyone agreed. Although he had created considerable influence through media appeals and online signatures, he believed that the pressure of public opinion from the media and the Internet was insufficient, and that using assembling to petition the government for redress would in fact increase the pressure, and force the Ministry of Education to issue policies. This idea was a double-edged sword, and both he and those actively participating parents took certain risks, and of course there were certain risks to social order.

2. The testimony of witness Wang X 2 proved: In mid-to-late January 2013, he had a meeting with Xu Zhiyong and Ding X at the Dao Dao Coffee Shop on College Road. At the meeting, Xu Zhiyong said that he would mobilize students' parents to take a day off and go to the Beijing Education Commission to petition on February 28th. He said that he would also go there. Students and parents were mobilized on the street to participate. Xu Zhiyong hoped that he could also use Weibo to promote this news, and hoped that more people would know about it and participate in the event. Based on Xu Zhiyong's suggestion, he posted a Weibo on February 2.

3. The testimony of witness of Ding X proved: At noon on January 25, 2013, he and Xu Zhiyong, Sun X 4, Wang X 6, Li X 3, Zhao X, Peng X, and Wang X 2 had a gathering at the Shangdao Coffee shop at the southeast corner of Baofusi Bridge, Peng X and Wang X 2 arrived very late. Later, Xu Zhiyong introduced to Wang X 2 the idea of "Take the Day Off on 2.28." On February 26 or 27, he used his mobile phone (number 1370xxxx609) to send this text to over 100 friends: "On February 28 take a day off and go to the Beijing Education Commission to petition."

4. The testimony of witness Peng X proved: On January 25, 2013, he participated in a small-scale dinner at the Shangdao Coffee Shop near the North Fourth Ring Road in Haidian District. At 1:00 pm Wang X 6, Sun X 4 and others left first. He remembered that at the time those who remained included himself, Xu Zhiyong, Ding X, Wang X 2, and another person whom he cannot clearly recall. Xu Zhiyong to organizing parent of students without a Beijing household registration to take the day off on February 28, and go to petition the Education Commission on a large scale. Xu Zhiyong said that he had already contacted the parents of students in various districts and counties through some of the core parents to take part in the petitioning to the Education Committee on February 28th. Xu Zhiyong everyone who was able to do more posting on Weibo to promote this petitioning of the government for redress. Xu Zhiyong also made a point of telling Wang X 2 said he hoped that Wang X 2 would promote this through Weibo to attract more people's attention, thereby expanding the scale of the petition. Wang X 2 also agreed at the time.

5. The testimony of witness Meng X proved: Prior to February 28, 2013, Xu Zhiyong issued business cards with event content at a subway entrance, and also made pamphlets. The cards were made by Xu Zhiyong himself. In February, she and Xu Zhiyong, Kong X and Du XX participated in a dinner meeting during which Xu Zhiyong once said that a large-scale event would be organized on February 28, and policies would be introduced if more people went.

At a dinner meeting with parents on the evening of February 23 Xu Zhiyong mentioned that he had written a pamphlet so that more people would know about and support this issue. Kong X said at the time that he could be responsible for printing pamphlets, and Xu Zhiyong said that after confirming the content of pamphlet he would ask him to send it to Kong X to print 60,000 copies. Later, Xu Zhiyong sent an electronic version of the pamphlet to his e-mail address and he forwarded it to Kong X. After the pamphlets were printed, Hu X called him about making payment. After telling Lin X, the money was transferred from Lin X's bank.

The "Identification Records" produced by the public security agency and the statement written by Meng X proved: When conducting an identification with a group of 10 different men's frontal headshots, Meng X pointed out No. 4 (Kong X) in this group of photos as the Kong X whom Xu Zhiyong contacted for printing  pamphlets.

The "Identification Records" produced by the public security agency proved: When conducting an identification with a group of 10 different men's frontal headshots, Meng X pointed out No. 10 (Xu Zhiyong) in this group of photos as Xu Zhiyong.

6. The testimony of witness Sun X proved: In mid-February 2013, Xu Zhiyong organized a small gathering with Meng X and Du X X. At the meeting Xu Zhiyong proposed having more people participate in the event, and later scheduled a large-scale event organized on February 28. At a subway entrance Xu Zhiyong handed out business cards with "Event: Take the Day Off on 2.28 and Go to the Ministry of Education to Petition," and he also wrote the pamphlets. On the evening of January 23, 2013, at a gathering of parents Xu Zhiyong proposed writing a pamphlet to let more people know about this issue. He said that he could help with the printing. Xu Zhiyong said that after the pamphlet was written, Meng X would transfer it to Kong X and they would want 60,000 copies of the pamphlet printed. The next day, Meng X sent the electronic version of pamphlets written by Xu Zhiyong to Kong X via email. After receiving the electronic version, she contacted Hu X to produce them and emailed the electronic version of the pamphlet to Hu. He had Hu X and Ouyang X to discuss specific shipping issues. Kong X confirmed that it was this pamphlet (documentary evidence shown by the police), and the content was exactly the same as the electronic version with no discrepancies.

7. The "Work Explanation" produced by the public security agency proved: In the process of questioning witness Kong X, the pamphlet police showed was the one collected at the Lanfang Hebei X X Printing Press which Xu Zhiyong instructed Kong X and others to print.

8. The testimony of witness Hu X proved: At the end of January 2013, Kong X contacted him to make a batch of pamphlets, and sent a sample of the pamphlet through QQ. Later he contacted a printing factory in Langfang, Hebei. The next day, Kong X transferred more than 3,000 yuan to him through a bank transfer. The day after the payment was completed, the printing press delivered 60,000 printed pamphlets, and he used his phone to contact Kong X. Kong X said that he would keep a box to distribute himself, and the remainder would be picked up by Kong X's driver. In the afternoon, Kong X's driver picked up the pamphlets.

The three "Identification Records" produced by the public security agency individually proved: When conducting an identification with a group of 10 different women's frontal headshots, Hu X pointed out No. 3 (Meng X) in this group of photos as a person who participated in a dinner at the Xiaodouhua Restaurant in Daxing District in January 2013; when conducting an identification with a group of 12 different men's frontal headshots, Hu X pointed out No. 8 (Xu Zhiyong) in this group of photos as a person who participated in a dinner at the Xiaodouhua Restaurant in Daxing District in January 2013; when conducting an identification with a group of 12 different men's frontal headshots, Hu X pointed out No. 8 (Kong X) in this group of photos as a person who participated in a dinner at the Xiaodouhua Restaurant in Daxing District in January 2013.

9. The testimony of witness Ouyang X proved: On January 25, 2013, Kong X asked him to contact Hu X to pick up goods. After meeting with Hu X, Hu X moved 25 pieces of goods to his car. After receiving the goods, he called Kong X, and Kong X had him go to the roadside of the Suzhou Bridge Zijin Manor and wait. At about 12:10, he arrived near Zijin Manor, and his vehicle was inspected by police and taken to the police precinct. He was willing to cooperate with the public security agency and actively handed over the goods.

10. The testimony of witness Zhu X proved: On January 23, 2013, a man named Hu X called to print a batch of 60,000 single pages. On January 24, Hu X sent the CTP version to his factory through QQ, and he then placed the order and started printing. The printing was completed on January 25, and the driver contacted by Hu X took the goods away at noon the same day after they were packed.

11. The pamphlets seized by the public security agency proved: The pamphlet contained a call for parents to take the day off on February 28 and go to the Beijing Education Commission to petition.

12. The testimony of witness Guo X proved: At 6:00 pm on a day at the end of February 2013, he was on duty at the Wudaokou Subway Station. During his inspection, he saw a man standing outside the station and issuing business cards to pedestrians. A hard board billboard was standing next to him with white text on a blue background and the title was "Take a day off on 2.28". (The police showed Guo X the picture of Xu Zhiyong displaying a billboard) Guo X confirmed that he was the person.

13.  The testimony of Zhang X 1 was basically consistent with the content of the testimony of witness Guo X.

14. The "Work Explanation" produced by the public security agency proved: The picture of Xu Zhiyong handing out cards at the subway station is from foreign website Boxun News. For details, please refer to the Jing Public (Cybersecurity) Kan (2013) No. 029 "Remote Crime Scene Investigation Work Record." On November 1, 2013, Dongsheng Precinct of the Public Security Bureau of Haidian showed the photo to witnesses Guo X and Zhang X 2.

15. The Jing Public (Cybersecurity) Kan (2013) No. 029 "Remote Crime Scene Investigation Work Record" produced by the public security agency proved: After conducting a remote crime scene investigation on the foreign website Boxun News, a photo of Xu Zhiyong issuing cards at a subway station entrance was discovered.

16. The Jing Public (Cybersecurity) Kan (2013) No. 312 "Remote Crime Scene Investigation Work Record" produced by the public security agency proved: The public security agency's crime scene investigation of the Twitter page named "Xu Zhiyong" found it contained a tweet that called for taking a day off on February 28 and going to the Beijing Education Commission. The online publication time was February 26, 2013.

17. The testimony of witness Zhang X 3 proved: In February 2013, after seeing a photo of Xu Zhiyong holding a white-on-blue propaganda board on the Internet, he went to the Beijing Education Commission on February 28. At that time, he saw 70 or 80 people at the gate of the Education Commission. The police were maintaining order and issuing advisories.

18. The testimony of witness Wang X 3 proved: He received a small card from a stranger on the subway which stated that he should go to the Municipal Education Commission on February 28 to solve the problem of children from outside of Beijing taking the high school entrance examination and college entrance examination in Beijing. He went according to the time on the card. There were about 200 people on the scene that day.

19. A copy of a "Take the Day Off on 2.28" card signed and affirmed by Wang X 3 proved: Wang X 3 confirmed that the card he received read "We are scheduled to petition the Beijing Education Commission (North Fourth Ring Olympic Building) at 9:00 am on February 28, 2013, onlookers welcome" and Xu Zhiyong's name and contact information.

20. The testimony of witness Li X 1 proved: On the afternoon of February 26, 2013, he received a pamphlet on the subway, the content was something like on February 28, 2013 go to the Education Commission to raise awareness of the problems of students taking college entrance examinations outside of their home district. On February 28, at 8:00 am he went to the Beijing Education Committee and saw more than 100 people waiting on the side of the road at the gate to raise awareness of the issue. There were many police on the scene to maintain order.

21. A copy of a pamphlet signed and affirmed by Li X 1 proved: The pamphlet contained a call for parents to take the day off on February 28 and go to the Beijing Education Commission to petition.

22. The witness testimony witnesses Zhang X 4, Cai X, Li X 2, Sun X 3, Wang X, Yang X 1, Tian X 1, Tan X, and others individually proved: The circumstances of the aforementioned witness participation in the events of February 28.

23. The testimony of witness Yang X 2 proved: At about 7:00 on February 28, 2013, the police arrived at the Beijing Education Commission on a deployment. At about 9 o'clock, people began arriving on the side road outside the south gate of the Beijing Education Commission. After that, the police began issuing instructions to the people who stayed on the sidewalk, but these people did not comply with their orders to disperse, and continued to assemble on the side road of the south gate of the Beijing Education Commission. At about 11 a.m., the number of those assembled reached more than 90 people. These people stood on the side road outside the south gate of the Education Commission, causing congestion. Due to the large number of people, vehicles on the auxiliary roads of the North Fourth Ring Road slowed down. At first the police issued advisories to the parents to disperse, but those people did not listen to the order to disperse and remained in front of the Beijing Education Commission. Later, based on the situation on the scene, the police diverted the students' parents to Xueyuan Road, east of the Beijing Education Commission. By about 2:00 pm, the parents still had not departed and continued to assemble. The police took the parents who did not comply with the order to disperse from the scene, and the local branch took them back to be educated and reprimanded.

24. The testimony of witness Zhang X 5 and Wang X 4 was basically consistent with the content of the testimony of witness Yang X 2.

25. The "Explanation on the circumstances whereby some of our city's children's parents who went to petition the government for redress on February 28" produced by the Beijing Education Commission office proved: On February 28, 2013 beginning at 9:00 am, more than 90 people came to the assemble at the south gate of Beijing Olympic Building, the office of the Municipal Education Commission. At about 11:40, six parents of accompanying children came to the petitioning office of the Municipal Education Commission (Beijing Olympic Building North Gate), the rest of the individuals were still assembled at the south gate of the Municipal Education Commission, and some people even insulted staff, causing the staff of the relevant commissions and offices working in the Beijing Olympic Building to be unable to enter and exit normally, affecting normal office order. At around 1:40 pm there were still more than 40 people insisting on assembling at the south gate of the Municipal Education Commission, causing congestion on the fourth ring road. After repeated failures by police to persuade them, the aforementioned individuals were taken away by the public security agency.

26. The "Case explanation of circumstances whereby on February 28, 2013 parents of students without a Beijing household registration gathered at the municipal education committee to create a disturbance in a public venue" produced by the public security agency proved: On February 28, 2013, the Public Security Bureau of Haidian deployed 118 police officers to take up positions at the Beijing Education Commission located at the North Fourth Ring Olympic Building. At 9:00 am on February 28, parents of children without a Beijing household registration began arriving at the south gate of the Beijing Education Commission. Police at the scene immediately moved to resolve the situation. By about 11:00 am, the number of visitors had reached more than 90. The assembly of parents without a Beijing household registration caused congestion on the crosswalk at the entrance of the municipal education commission and inconvenience for vehicles. After police ordered them to disperse, the parents of children without a Beijing household registration selected five representatives to meet with the staff of the municipal education commission, and the other parents of children without a Beijing household registration were led to the periphery in an orderly manner and told to disperse. At about 2:00 pm, the police ordered 56 parents of children without a Beijing household registration who did not want to leave to board police vehicles to be transported from the scene. They were then sent to a disposal triage point for identification and investigation. Afterwards, the municipal bureau coordinated with the sub-county bureaus to retrieve the parents of children without a Beijing household registration from their respective jurisdictions, and release them after further investigation, education, and reprimanding.

27. The testimony of witness Wang X 5 proved: At around 7:30 pm on February 26, 2013, he received a card from a passenger on the subway that said he should go to petition at the Beijing Education Commission on February 28, and he then dialed "110" to report the problem. After calling the police he gave the card to the police on duty at the police precinct at Anheqiao North Station.

28. The "Take the Day Off on2.28" signed and affirmed by Wang X 5 proved: The card had content about going to the Beijing Education Commission at 7:00 am on February 28 to petition , as well as Xu Zhiyong's name and contact information.

29, The "Work Explanation" produced by the public security agency proved: On February 26, 2013, the Anheqiao North Station police precinct received a "110" police report from the municipal bureau. A man had reported that someone was on Metro Line 4 in the section between Xidan Station and Xisi Station distributing cards saying "Take the Day Off on 2.28." Then the police went to the Anheqiao North Station police precinct to report the case and gave the police the card.

30. The "'110' Police Processing Report" produced by the public security agency proved: On February 26, 2013, Wang X5 reported that someone was distributing cards (the content was "Take the Day Off on 2.28") in the Xidan Subway Station.

31. A copy of a card and the "Work Explanation" produced by the public security agency proved: After reporting the case, Wang X 5 submitted the card to the public security agency. Because the card was printed on both sides, in order to fully reflect the full picture of the card, when processing the case the public security agency copied the contents of both sides of the card and attached the copies to the case file, and used it in the course of their work.

32. "Work Explanation" and videos from the scene produced by the public security agency proved: The videos of the scene on February 28 obtained by the public security agency from the Public Security Bureau of Haidian showed that the police issued orders to the individuals assembled in front of the Beijing Education Commission to petition the government for redress to disperse. In the process, some of the individuals petitioning the government for redress resisted and obstructed the police from enforcing the law.

33. The "crime scene investigation record" and images and photos from the scene produced by the public security agency proved: The situation where the case occurred in the area around the south gate of Beijing Olympic Building, No. 267, North Fourth Ring Middle Road, Haidian District.

III. From December 2012 to March 2013, defendant Xu Zhiyong and Ding X, Li X 3, Zhao X, Wang X 6, and Sun X 4 (all being handled in a separate case) and others, exploited popular social issues of public concern, and organized and plotted to have many people assemble and erected banners and distribute pamphlets in public venues. During this period, Xu Zhiyong, Ding X, Wang X 6 and others made banners which were specifically organized by Wang X 6, incited Yuan X, Zhang X 3, Hou ×, Li X 4  (all being handled in a separate case) and others to carry out the following acts of gathering crowds to create a disturbance in a public venue:

On January 27, 2013, Zhang X 3, Yuan X, Li X 4 and others erected banners and took photos near the south gate of Chaoyang Park in Chaoyang District, Beijing, and they refused to obey the  orders of police on the scene to cease and desist, causing a disruption of order at the scene. Later Yuan X and Li X 4 went to the west gate of Tsinghua University in Haidian District, Beijing to erect banners and take photos.

On February 23, 2013, Zhang X 3, Yuan X, Ding X and others erected banners in Zhongguancun Square, Haidian District, Beijing, and distributed pamphlets, which drew crowds of onlookers. After the event, Zhang X 3, Yuan X, Ding X and others agreed to continue the aforementioned activities. On February 24, Zhang X 3, Yuan X, Li X 4, Ding X and others went to places such as the Hailong Building in Haidian District, the Haidian Huangzhuang Subway Station, the east gate of Peking University, the west gate of Tsinghua University, and continued to erect banners and distribute pamphlets, which drew crowds of onlookers. While the aforementioned individuals were at the west gate of Tsinghua University erecting banners the security personnel of Tsinghua University with the public security agency with jurisdiction over that location to conduct public security management in the area and stop the behavior of erecting banners. The aforementioned individuals failed to comply with their administration and had physical altercations with security personnel, causing a disruption of order at the scene. Related information such as photos of the aforementioned actions were uploaded to the Internet.

On March 31, 2013, Zhang X 3, Yuan X, Hou X and Ma X (being handled in a separate case) and others erected banners at Xidan Culture Square in Xicheng District, Beijing, distributed  pamphlets, spoke over a loudspeaker, took photos and videos of the scene, and drew crowds of onlookers, causing a disruption of order at the scene. In addition, they failed to comply with the police at the scene in their execution of law enforcement actions. Photos and other related information about these actions were uploaded to the Internet.

The aforementioned facts are substantiated by the following evidence confirmed by this Court through evidence produced and examined during hearings:

A. Evidence establishing that defendant Xu Zhiyong, Ding X and others organized and plotted the aforementioned events:

1. The testimony of witness Sun X 4 proved: On December 9, 2012, they began to collect signatures publicly online. After the event started, they decided to have small-scale dinners at the Shangdao Coffee Shop at noon every Friday. A total of eight or nine meetings were held. The main participants were himself and Xu Zhiyong, Ding X, Wang X 6, Zhao X, and Li X 3. The purpose of the small-scale dinner was to collect signatures periodically, and find ways to collect more signatures. Later, the signature collection did not go well, and Xu Zhiyong and Ding X proposed at the small-scale dinner that I take a banner on the street, take a photo, and then post it on the Internet. Everyone thought it was feasible. Xu Zhiyong and Ding X proposed to use the Public Justice Fund to make the banner. Later, I looked into the details of the usage of the Public Justice Fund, and there was an account in the Public Justice Fund for banners. Xu Zhiyong introduced Peng X and Wang X 2 at a small dinner at noon on January 25. At the meeting, they discussed going to the south gate of Chaoyang Park to display banners on January 27. It was determined that Wang X 6 would be specifically responsible for the preparation of, and arranging for individuals to erect, the banners.

2. The testimony of witness Ding X proved: In the week leading up to December 9, 2012, he and Sun X 4, Xu Zhiyong, and Wang X 6 held a small dinner at the Shangdao Coffee Shop at Baofu Temple Bridge. This was the first small dinner. At noon on January 25, 2013, he and Xu Zhiyong, Sun X 4, Wang X 6, Li X 3, Zhao X, Peng X, and Wang X 2 held a party at the Shangdao Coffee Shop at the southeast corner of Baofusi Bridge. It was said that the number of people participating in the signature campaign was relatively small, and Xu Zhiyong proposed to go to the street to get publicity. Later, they agreed to display a banner at the south gate of Chaoyang Park on the afternoon of January 27. At the meeting, everyone also agreed to take photos during the event and post the photos to Tencent and Sina Weibo to attract more people's attention. At that time, Wang X 6 said that he would go, and then everyone discussed letting Sun X 4 take pictures. The banner was made by Wang X 6 after he and Xu Zhiyong and Wang X 6 set the content. During the event two batches should have been made. The banners were all made by Wang X 6, and the funds were all provided by Xu Zhiyong.

3. The testimony of witness Wang X 6 proved: From the end of December 2012 to January 2013, a gathering was held at the Shangdao Coffee Shop at noon every Friday. Participants included himself and Xu Zhiyong, Ding X, Zhao X, Sun X 4, and Li X 3. Xu Zhiyong and Ding X spoke of making and distributing pamphlets, Xu Zhiyong also proposed making a banner. The content of the banner was discussed by everyone at a small dinner.

4. The testimony of witness Li X 3 proved: Because gathering signatures online had not proved effective, in mid-January 2013 several of them discussed at the Shangdao Coffee Shop the issue of distributing pamphlets and erecting banners on the street. On January 25 at a small day gathering, we discussed erecting banners in Chaoyang Park on January 27. Those who attended this gathering were himself, Xu Zhiyong, Ding X, Wang X 6, Sun X 4, and Zhao X. One could say that the matter of erecting banners in Chaoyang Park on January 27 was the result of the discussion among the six of them.

5. The testimony of witness Zhao X proved: Two small-scale gatherings were to have been held before the banner in Chaoyang Park. The participants in these two gatherings included himself, Xu Zhiyong, Ding X and others. The theme of the two conferences was the same, that is, they were preparing to erect a banner in Chaoyang Park. In these two small-scale gatherings, it was said that street activities should be held in public places with a large flow of people so that their impact might be made somewhat greater. On this point there was disagreement, and they reached a consensus and ultimately decided to go to Chaoyang Park to erect banners. Therefore, the participants at the time were all organizers and decision makers of the Chaoyang Park banner event at the end of January.

6. The testimony of witness Wang X 2 proved: He participated in the meeting of Xu Zhiyong and others at the Shangdao Coffee Shop on Xueyuan Road, North Fourth Ring Road in mid-to-late January 2013. At the meeting, Xu Zhiyong told him that citizens had erected banners on the street, and doing so was extremely meaningful.

7. The testimony of witness Peng X proved: At around 12:00 on January 25, 2013, he went to the Shangdao Coffee Shop of Fusi Bridge on the North Fourth Ring Road to have dinner with Xu Zhiyong, Ding X, Zhao X, Li X 3, Wang X 6, Sun X 4 and others. At that time they discussed the event where banners would be erected in Chaoyang Park on January 27th. At that time, Ding X proposed that someone erect banners and someone take photos, and they had to post the photos online. Everyone also proposed that they would organize some people to watch when they erected the banners.

8. The testimony of witness Lin X proved: He was responsible for the day-to-day management of a Public Justice Fund account that Xu Zhiyong maintained under his own name. Every expenditure was determined or authorized by Xu Zhiyong. In March 2013, there was a production cost of 4,950 yuan, which was reimbursed by him to Ding X.

9, The Public Justice Fund revenue and expenditure details for March 2013 signed and affirmed by Lin X proved: There was an expenditure of 4,950 yuan in production fees that month.

10. The "Seizure Decision" produced by the public security agency proved: The circumstances under which Lin X's computer was seized.

11. The "Work Explanation" produced by the public security agency proved: Documents related to the income and expenditure details of Public Justice Fund were discovered on and printed from Lin X's computer.

12. The Jing Public (Cybersecurity) Kan (2013) No. 354 "Remote Crime Scene Investigation Work Record" produced by the public security agency proved: The circumstances under which the public security agency collected the "Public Justice Fund general donation account March 2013 revenue and expenditure details" from the Internet.

13. The "Public Justice Fund general donation account March 2013 revenue and expenditure details" proved: The account spent a total of RMB 4,950 yuan in banner production fees in March 2013.

14. The "Work Explanation" produced by the public security agency proved: In the process of searching the office of Wang X 6 in the ×× Courtyard ×× Building ×× Room, Beisihuan West Road, Haidian District, Beijing, the investigator took into custody a white plastic document bag from a drawer of Wang X 6's desk which contains the original documentary evidence signed and affirmed by Wang X 6 on April 29, 2013 confirming the content of the banner. The original document certificate is temporarily stored in the evidence room of the Pre-Trial Detachment of the Traffic Division. In Volume 83 of the case file (evidentiary materials related to the production of banners), pages 7 to 24 are photos of 65 banners that were transferred by the Malianwa Police Precinct of the Public Security Bureau of Haidian and which are now temporarily stored in the evidence room of the Pre-Trial Detachment of the Public Security Bureau of Haidian.

15. The piece of paper signed and affirmed by Wang X 6 proved: The content of the banners Ding X had him produced.

16. The "Investigation Record," "List of Seized Items," "Seizure Decision," and "Evidence Preservation Checklist" produced by the public security agency proved: The  45 banners and 2,580 pamphlets the public security agency collected from Wang X 6's car were seized in accordance with the law.

17. "Case Processing Explanation" produced by the public security agency proved: On February 23, 2013, the public security agency collected 45 banners from Wang X 6's car and conducted seizure procedures. Later, Wang X 6 took the initiative to hand over 20 related banners produced in the previous period. Because the case had already been closed, there were no seizure formalities conducted with respect to those 20 banners.

18. The photos reflecting the banners erected on February 23 and 24 and on March 31, 2013 and the banners seized from Wang X 6 were signed and affirmed by Wang X 6 as photos of the banners made by his contact.

19. The testimony of witness Duan X 1 proved: One evening toward the end of January 2013, a man went to the XX Photo Service Department run by him to say that he wanted to make a banner, and he agreed. The man provided the banner content and production specifications and asked for 100 copies. He used a computer to typeset the picture passed it on to another company who specialized in making banners.

20. The "Work Explanation" produced by the public security agency proved: When police questioned witness Duan X 2, they showed him a color headshot photo of Wang X 6, and he indicated that this individual was the one who made the banners.

21. The testimony of witness Liu  X 1 proved: On the day before Spring Festival at the end of January 2013, the person in charge of the XX Photographic Service Department contacted him through QQ about producing 100 banners.

22. The photos reflecting the banners erected on February 24 and March 31, 2013 were signed and affirmed by Liu X 1 as photos of the banners made by him.

23. The testimony of witness Chen X (also known as Chen X X) proved: He operates a photocopying business. One night in February 2013, a man surnamed Wang made 65 banners in his shop, and provided the content and specifications of the banners. Afterwards he found another company to make the banners per those specifications.

The "Identification Record" produced by the public security agency proved: When conducting an identification with 10 different frontal headshots, Chen X pointed out the frontal headshot with Serial Number No. 5 (Wang X 6) as the person surnamed Wang who came to his shop to order 65 banners.

24. The testimony of witness Yu X proved: On the morning of February 20, 2013, Chen X X sought him out to produce 65 banners.

25. The photos reflecting the banners erected on February 23 and 24, 2013 were signed and affirmed by Yu X as photos of the banners made by him.

26. The testimony of witness Hou X proved: At a dinner party on January 26, 2013, Wang X 6 said that he would take to the streets to do promotion, including distributing pamphlets, erecting banners, etc., to expand the social influence. At that time, Wang X 6 brought a lot of pamphlets and handed them out to people who participated in the dinner.

27. The testimony of witness Zhang X 3 proved: The first time he heard that people wanted to go to the street to erect banners was on January 26, 2013, and it most likely was in the hallway of the restaurant where they were dining when Wang X 6 separately told him that there was an event in Chaoyang Park the following afternoon.

28. The testimony of witness Li X 4 proved: Erecting banners on the street on January 27, 2013 was first mentioned two days earlier by Wang X 6. Wang X 6 met him to discuss the matter and gave him a banner that was ready for him to erect. On January 27 he took the banner to the south gate of Chaoyang Park and erected it.

29. The Jing Public (Cybersecurity) Kan (2013) No. 090 "Remote Crime Scene Investigation Work Record" and related videos produced by the public security agency proved: The public security agency accessed the website with the domain name boxun.com via the international Internet and conducted a remote crime scene investigation, during which it discovered and collected a video posted on January 27, 2013, the content of which was Wang X 6 proposing taking to the streets and erecting banners while participating in a dinner party on January 26.

B. Evidence establishing the actions of gathering crowds to create a disturbance in a public venue on January 27, 2013.

1. The testimony of witness Zhang X 3 proved: When he arrived at the south gate of Chaoyang Park on January 27, 2013 , he saw Yuan X put up a banner made of red cloth. He took a few photos of Yuan X. Then police in uniform came over, and Yuan X ran west along the road. Then he walked to the entrance of the south gate of Chaoyang Park, and Yuan X came back again. A few police in plain clothes struggled with Yuan X over the banner in his hands. At that time Yuan X and police struggled back-and-forth for a long time, and Li X 4 and Zhang X X stopped police from grabbing Yuan X's banner, and he stood aside and took pictures. Other people also took photos at that time.

2. The testimony of witness Yuan X proved: On January 27, 2013 at about 2:00 pm, he opened a banner prepared in advance on the road opposite Chaoyang Park, Zhang X 3 took photos. At that time there were more than 20 onlookers. About five minutes later, police in uniform arrived at the scene to stop them, and he ran west along the road. After that, he returned to the entrance of the south gate of Chaoyang Park. The police wanted to confiscate the banner and he had a dispute with police. Finally, the police confiscated the banner. After that, he and Zhang X X rode home in Li X 4's car. When he passed the gate of Tsinghua University he got out of the car, and Zhang X X took a photo of him.

3. The testimony of witness Li X 4 proved: At noon on January 27, 2013, he drove Yuan X to the south gate of Chaoyang Park. After arriving, Yuan X went to the opposite side of the road and opened a small banner. While he and Zhang X X were walking to the gate of the park to erect the banner they were discovered by plainclothes police, and a dispute with the police ensued. After arguing with police, the banner was finally confiscated. Yuan X returned to the entrance of the park to continue erecting banners. At this time, five or six plainclothes police and park security stopped by and wanted to confiscate the banner. There was a dispute Yuan X  and the police. He, Yuan X, and Zhang X X went to the west gate of Tsinghua University on their way home. Yuan X raised three or four banners that he himself had prepared, and he took photos of Yuan X with his mobile phone.

4. The testimony of witness Sun X 4 proved: After arriving at the south gate of Chaoyang Park at noon on January 27, 2013, he saw Yuan X take out a banner on the opposite road to the south. Li X 4 and Zhang X X were about to open a banner, and a few people in plain clothes came over to stop them. The banner was taken away. At this time Yuan X ran to the south gate. A few people in plain clothes and two or three security guards chased Yuan X to grab his banner. Yuan X had a dispute with them. After January 27, I told everyone about what happened during a small-scale dinner. Xu Zhiyong said that it was a pity that things had not worked out this time. They also discussed at a Shangdao Coffee Shop small dinner that they wanted this kind of street-erecting-banners activity to continue.

5. The testimony of witness Zhang X X regarding erecting banners at the south gate of Chaoyang Park and the west gate of Tsinghua University was basically consistent with the content of the testimony of the aforementioned witnesses.

6. The testimony of witness Wang X 6 proved: Xu Zhiyong, Ding X, Sun X 4, Zhao X , Li X 3 and he jointly discussed and decided to go to Chaoyang Park to erect banners, and he was responsible for the organization and implementation. Later, he, Li X 4, and Yuan X determined the specific time for erecting banners. The banners were made by him, and he gave the banners to either Li X 4 or Yuan X. After January 27, Xu Zhiyong said that the public security agency made a fuss and overreacted and said that they could continue to push forward.

7. The testimony of witness Ye X proved: On January 27, 2013, he went to the south gate of Chaoyang Park and saw someone tearing up something under the steps on the east side of the south gate of the park.

8. The testimony of witness Li X 5 proved: On the morning of January 27, 2013, he and two security guards followed police to the south gate of Chaoyang Park to work. They saw a man running toward the square in front of the south gate of the park, opening a banner and shouting slogans. They saw the person making a disturbance in a public place and moved forward to grab the banner. The other party had a dispute with him, which caused a crowd to gather to watch.

The "Identification Record" produced by the public security agency proved: When conducting an identification with 12 different men's frontal headshots, Li X 5 pointed out the man in photo No. 9 (Yuan X) as the man who erected banners.

9. The testimony of witnesses Pang X and Liu  X 2 proved: On January 27, 2013, around noon, a man erected banners on the south side of the south gate of Chaoyang Park and shouted slogans, which caused a crowed to gather to watch. People from the Houmaizidian Police Precinct went over to collect the banners.

10. The testimony of witness Zhang X 6 proved: On January 27, 2013, he saw about a dozen people assemble at the south gate of Chaoyang Park square. A man put up a red banner on the opposite side of the South Gate Square and shouted slogans. Then the man ran south back toward the South Gate Square with the banner, and his colleagues blocked him. The man's behavior of holding banners and shouting slogans caused a large number of onlookers to gather and causing a disruption of public order at the scene.

The "Identification Record" produced by the public security agency proved: When conducting an identification with 10 different men's frontal headshots, Zhang X 6 pointed out the man in photo No. 6 (Yuan X) as the man who erected banners and shouted slogans at the south gate of Chaoyang Park on January 27, 2013.

11. The testimony of witness Qin × was basically consistent with the content of the testimony of witness Zhang X 6.

The "Identification Record" produced by the public security agency proved: When conducting an identification with 10 different men's frontal headshots, Qin X pointed out the man in photo No. 6 (Yuan X) as the man who erected banners and shouted slogans at the south gate of Chaoyang Park on January 27, 2013.

12. The testimony of witness Chang X proved: One day in January 2013, Sun X 4 texted him saying that there was an activity at the south gate of Chaoyang Park. When he arrived, he saw a man holding a banner intending to erect it. Several people came over to stop him. The man resisted and struggled over the banners with the people who trying to stop him. He also shouted slogans. At that time some people came over to watch, and Sun X 4 was taking photos.

13. The testimony of witness Di X proved: At noon on January 27, 2013, during his inspection at the west gate of Tsinghua University, he found a man standing outside the west gate of Tsinghua University with a red cloth hanging from his chest, and two people were taking photos of the man.

14. The "Seizure Decision," "Seizure List," and "Work Explanation" produced by the public security agency proved: On May 4, 2013, Sun X 4's wife Liu X X contacted the public security agency and said that the Sun X 4's laptop computer had been found. The police immediately rushed to Sun X 4's home to seize Sun X 4's black Lenovo laptop computer.

15. The "Work Explanation" and the Public Security Bureau Physical Evidence Inspection (2013) No. 3092 "Physical Evidence Analysis Report" produced by the public security agency proved: The photos of the scene at the south gate of Chaoyang Park on January 27, 2013 came from Sun X 4's laptop computer.

16. Photos from the scene where the case occured proved: Yuan X erected banners at the south gate of Chaoyang Park. In the process of being stopped by the police, Yuan X and Li X 4 resisted and obstructed law enforcement. Later, Yuan X went to the west gate of Tsinghua University and erected banners again.

17. The contents of Sun X 4's Sina Weibo and Tencent Weibo proved: Sun X 4 posted photos from the Chaoyang Park banner erecting on January 27, 2013 on his Sina Weibo and Tencent Weibo.

18. The police law enforcement video proved: The circumstances in which Yuan X and others erected banners and the south gate of Chaoyang Park and resisted and obstructed police law enforcement.

C. Evidence establishing the actions of gathering crowds to create a disturbance in a public venue on February 23 and 24, 2013.

1. The testimony of witness Zhang X 3 proved: At the "Life" sculpture in Zhongguancun Square at around 3:00 pm on February 23, 2013, Yuan X proposed they take off their shirts and write slogans on their bodies, and then he, Yuan X, and Zhou X X wrote on each other's chests and backs. They put up two banners and Ding X took photos and distributed pamphlets to the onlookers at the scene. At that time, there were about 30 or 40 onlookers. When they left, someone suggested to come back to display banners at noon the next day, and everyone agreed. He, Yan X X, Qi X, Li X 4, Ding X, Yuan X, and Cao X X walked from Zhongguancun Square to Zhongguancun Electronics World, the Haidian Huangzhuang Subway Station, the overpass at the Hailong Building, etc., and erected banners and distributed pamphlets along the way. Then they took the subway to the east gate of Peking University and the west gate of Tsinghua University to continue to erect banners, and Ding X took photos of them.

2. The testimony of witnesses Yuan X and Ding X testimony was basically consistent with the content of the testimony of witness Zhang X 3.

3. The testimony of witness Li X 4 proved: At around 3:00 pm on February 24, 2013, He, Ding X, Yuan X, Yan X X, Qi X, Zhang X 3, Cao X X and others erected banners and distributed pamphlets in the Zhongguancun area, and then went to the east gate of Peking University and the west gate of Tsinghua University and continued to erect banners. The security staff at Tsinghua West Gate did not allow them to erect banners at the entrance. They had a dispute with the security staff, and Yuan X tussled with the security staff.

4. The testimony of witnesses Yan X and Qi X proved: The circumstances in which on February 24, 2013, the two erected banners in the Zhongguancun area, the east gate of Peking University, the west gate of Tsinghua University with Li X 4, Yuan X and others.

5. The testimony of witness Lei X proved: On February 24, 2013, Qi and Yang X 3 were on duty at the west gate of Tsinghua University. At about 4:50 pm, six men and one woman suddenly appeared in the middle of the west gate of Tsinghua University, displaying banners and handing out pamphlets. They immediately moved to get them to desist, but the other party did not comply. Afterwards, Yang X X brought Zhang X 7, Shen X, Wang X X, and Di X to support them. During the security staff's moves to get them to desist the other party did not comply and got into a tussle with the security staff. At that time there were about 30 or 40 people watching, and it was a very disorderly scene.

6. The testimony of witness Zhang X 7 proved: At around 4:50 pm on February 24, 2013, while on patrol Huo X and Yang X 3 found some people were erecting banners at the west gate. After receiving the report, they brought Shen X, Wang X, and Di X to stop them, but the other party refused to comply with their attempts to get them to desist.

7. The testimony of witness Yang X 3 proved: At about 5:00 pm on February 24, 2013, he was standing guard at the west gate of Tsinghua University. At this time, four or five people came across the road and held up banners outside the west gate of Tsinghua University. Security staff stepped forward to get them to desist.

8. The evidentiary materials produced by the public security agency proved: The Public Security Bureau of Beijing's Cultural Security Detachment provides guidance, supervision, and oversight to the Security Office of Tsinghua University in maintaining political stability and public order in Tsinghua University.

9. The evidentiary materials produced by the Beijing Security Services Company's cultural security subsidiary proved: Lei X, Zhang X 7, Shen X, and Yang X 3 are security staff assigned by that subsidiary to the security team at Tsinghua University's Security Office.

10. The evidentiary materials produced by Tsinghua University's Security Office proved: Lei X, Zhang X 7, Shen X, and Yang X 3 are security staff with the Beijing Security Services Company's cultural security subsidiary, and from February 2, 2013 to August 31, 2013 they were assigned to serve at Tsinghua University's Security Office.

11. The evidentiary materials produced by Tsinghua University's Security Office proved: The public space from outside the west entrance of Tsinghua University to the public street forms an area under three different security jurisdictions. In daily work, several security guards are assigned to this area to cooperate with public security agencies to maintain daily order in this area.

12. The "Work Explanation" produced by the public security agency proved: The Public Security Bureau of Haidian's Qinglongqiao Police Precinct is responsible for the daily security management of public places from the west entrance of Tsinghua University to the public street. The precinct coordinates with the Tsinghua University Security Office to send security guards in this area to assist the precinct in its daily security management work. In the event of a report from Tsinghua University Security Office personnel, their office would receive and handled it.

13. The "Inspection Certificate," "Investigation Record," "Seizure Decision," "Seizure List" and photos produced by the public security agency proved: Police conducted a search of Li X 3's residence at No. X, X Fl., X Yuan, Haidian District, Beijing, and subsequently seized a Lenovo laptop computer.

14. The "Work Explanation" and the Public Security Bureau Physical Evidence Inspection (2013) No. 3097 "Physical Evidence Analysis Report" produced by the public security agency proved: Photos from the scene on February 23, 2013 came from Li X 3's laptop computer.

15. Photos from the scene proved: The circumstances under which Zhang X 3, Yuan X, Zhou X X and others erected banners and distributed pamphlets shirtless in Zhongguancun Square on February 23 and 24, 2013.

16. Surveillance video from the scene proved: video from the south corner of Zhongguancun Square showed the circumstances under which banners were erected on February 24, 2013, and video from the west gate of Tsinghua University showed the circumstances under which banners were erected and a tussle with Tsinghua University security staff occurred on February 24.

17. The "Crime Scene Investigation Record" and photos produced by the public security agency proved: The scene was located at the Dingzi Road at the West Gate of Tsinghua Park in Haidian District, Beijing.

18. The Jing Public (Cybersecurity) Kan (2013) No. 327 "Remote Crime Scene Investigation Work Record" produced by the public security agency proved: The public security agency conducted a remote crime scene investigation on the Internet, and obtained relevant photographic and textual information about the banners erected on February 23 and 24 from the Tencent Weibo named "Lawyer Ding X."

19. The Reply (2014) No. 56 "Beijing Planning Commission Letter Regarding the Relevant Planning Status for Land Occupied by the Ministry of Education and Other Agencies" issued by the Beijing Planning Commission proved: The land in front of the west gate of Tsinghua University is zoned as a municipal road and is classified as municipal public land.

D. Evidence establishing the actions of gathering crowds to create a disturbance in a public venue on March 31, 2013.

1. The testimony of witness Yuan X proved: At around 1:00 on March 31, 2013, he came to Xidan Culture Square with a loudspeaker, banners and other things prepared in advance. He was responsible for public speaking. Ma X and Zhang X 3 were responsible for raising a banner, and Hou X was responsible for taking photos. They had been displaying the banner for ten or so minutes when police arrived on the scene to get them to stop. They argued with the police enforcing the law and a dispute ensued.

2. The testimony of witnesses Hou X, Zhang X 3, Ma X, and Zhang X 8 was basically consistent with the content of the testimony of witness Yuan X.

3. The testimony of witness Wang X 6 proved: The act of erecting banners on March 31, 2013 was related to the act of erecting banners on January 27, and this was the content of their activities. He, Xu Zhiyong, Ding X, Zhao X, Sun X 4, and Li X 3 mentioned at small dinners that their activities would not end until national legislation was enacted.

4. The testimony of witness Sun X 4 proved: After February 28, 2013, signature collection ceased, but their activities had not yet ended. All of the core members affirmed and supported continuing to erect banners, and had not looked into stopping the erection of banners, and in particular no one expressed or explicitly blocked erecting banners on the street.

5. The testimony of witness Yan X proved: At about 3:40 pm on March 31, 2013, he saw more than forty people assemble on the north side of the Culture Square. Later, he heard from his colleague Zhang X 9 that banners were erected on the steps of Xidan Culture Square, and others were there. There was someone making a speech in front of the banner.

6. The testimony of witness Zhang X 9 proved: At about 3:00 pm on March 31, 2013, he saw many people gathered around the center of the square in Xidan Culture Square. Several people stood in the middle. One person spoke while gesturing, and four people put up two banners. More and more people formed around them. Afterwards police took a few people away in police car.

7. The testimony of witness Kang X proved: On March 31, 2013, security staff found four men holding two banners at the grandstand on the north side of Xidan Culture Square, and another man wearing a headset speaking loudly. The security staff stopped and asked the other parties to put away the banners, but the other parties did not put them away. Afterwards, the security staff called the Xidan Street Police Precinct. After the police came, the security staff assisted the police in bringing the other parties back to the police precinct. At that time, there were about fifty or sixty people watching at the scene.

8. The testimony of witnesses Li X 6 and Ping X was basically consistent with the content of the testimony of witness Kang X.

9. The testimony of witness Lu X proved: At about 3:00 pm on March 31, 2013, when he and his colleague Xu X were patrolling the Xidan area, they received a call from the duty room in the office saying that someone was putting up a banner and giving a speech in the central area of Xidan Culture Square. After becoming aware of this situation they immediately rushed to the scene, where they found there were two men holding banners in their hands, and a man with a megaphone on his body and a book hanging on his chest speaking to a crowd of onlookers from some steps in the central area of ​​Xidan Culture Square. There was also a woman taking photos with a camera. At that time there was already crowd of about 200 people surrounding them. After showing the four individuals their work credentials, they told the other parties that their behavior was disrupting public order and asked the other parties to immediately put the banners away and stop speaking. After the two men holding the banners put the banners away, the speaker still did not stop and absolutely refused to comply with the order to desist. At this time Tian X 2 also rushed to the scene to stop the speaker, but the man still did not comply with the order to desist. Tian X 2 demanded to check the other parties' documents, but the other parties were extremely obstinate. They saw that it was useless to order them to desist, in accordance with the law they verbally summoned the other party to the police precinct to submit to questioning. But the other parties ignored them, so they forcibly took the four people away.

10. The testimony of witnesses Xu X and Tian X 2 was basically consistent with the content of the testimony of witness Lu X.

11. The "Inspection Certificate," "Investigation Record," "Seizure Decision," "Seizure List" and photos produced by the public security agency proved: Police conducted a search of Li X 3's residence at No. X, X Fl., X Yuan, Haidian District, Beijing, and subsequently seized a Lenovo laptop computer.

12. The "Photo Collection Explanation" and the Public Security Bureau Physical Evidence Inspection (2013) No. 3097 "Physical Evidence Analysis Report" produced by the public security agency proved: The photos of the scene where the case occurred on March 31, 2013 came from Li X 3's laptop computer.

13. Photos from the scene proved: The circumstances under which Yuan X and others erected banners, made speeches, and resisted law enforcement at Xidan Culture Square on March 31, 2013.

14. Surveillance video from the scene and footage of police engaged in law enforcement proved: The circumstances under which Yuan X, Zhang X 3, Hou X and others erected banners, made speeches, took photos, and obstructed and resisted police engaged in law enforcement.

15. Video footage proved: Xu Zhiyong spoke during a meeting with Zhang X and others in a hotel room in Hefei, saying that he was aware of and supported the behavior of Yuan X and others at Xidan Culture Square on March 31, 2013.

16. The Hefei "Search Record," "Seizure List," hard disc drive photos, and the He Public Electronic Investigation Record (2013) No. 16 "Electronic Material Evidence Investigation Analysis Report" produced by the public security agency proved: The circumstances under which the Hefei public security agency obtained the aforementioned video.

17. The "Work Explanation" produced by the public security agency proved: In December 2013, the Beijing public security agency collected videos and documents from the Public Security Bureau of Hefei that it had collected as part of the Li X X case, and the videos were seized from detainee Sun X's portable hard drive.

18. The Jing Public (Cybersecurity) Kan (2013) No. 078 "Remote Crime Scene Investigation Work Record" and the Jing Public (Cybersecurity) Kan (2013) No. 290 "Remote Crime Scene Investigation Work Record" produced by the public security agency proved: The public security agency conducted a remote crime scene investigation of foreign websites with the domain names boxun.com and voachinese.com via the Internet during which it uncovered articles related to the incident at Xidan Culture Square on March 31, 2013.

19. The "Contraband Recovery Process," "Search Record," "Seizure List," and photos of documentary evidence produced by the public security agency proved: On March 31, 2013, after police apprehended Yuan X, Zhang X 3, Hou X and others, they collected and seized from Yuan X's possession the loudspeaker he used when making speeches, one copy of the book "The Nanjing Massacre," and one red banner. They collected and seized three banners from among Zhang X 3's personal belongings. They collected and seized five banners from among Ma X's personal belongings.


The public prosecution agency produced the following evidence in court, which is affirmed by this Court:

1. The "Decision to Open a Case" produced by the public security agency proved: The Public Security Bureau of Beijing decided on November 1, 2011 to open an investigation into the Xu Zhiyong case.

2. The "Information on Permanent Residents" and "Xu Zhiyong Basic Information" issued by the School of Humanities, Beijing University of Posts and Telecommunications produced by the public security agency proved: Xu Zhiyong's identification status.

3. "The Process of How the Defendant came into Police Custody," "Detention Certification," and "Arrest Certification" produced by the public security agency proved: At 10:00 am on July 16, 2013, the police in accordance with the law issued a criminal summons to Xu Zhiyong to appear at the Public Transportation Security Division of the Public Security Bureau of Beijing. Xu Zhiyong was taken into criminal detention on the same day, and was arrested on August 22 of the same year.

4. The "Admission Health Checklist" issued by the Beijing No. 3 Detention Center proved: Xu Zhiyong was in normal health at the time of his admission.

5. The "Work Explanation" produced by the public security agency proved: In the file materials of the Xu Zhiyong case, the relevant photocopy files were copied from the Ding X, Zhao X, Li X 3, Hou X and other cases, and the content is consistent with the original files.

Defendant and his defense counsels did not submit new evidence in court during the trial, nor did they submit any application for witnesses to testify in court.

Regarding the objections raised by defendant and his defense counsel to jurisdiction and how this case was being tried separately from other cases, an investigation found that the facts in this case implicate Beijing's Haidian District, Chaoyang District, Xicheng District, etc., which belong to the jurisdictions of different courts. After the People's Procuratorate of Beijing Branch No. 1 filed a public prosecution with our court on the Xu Zhiyong case, the High People's Court of Beijing designated our court as having jurisdiction in accordance with the provisoins of Article 26 of the "Criminal Procedure Law of the People's Republic of China."

In view of the fact that the public prosecution agency clearly charged criminal facts in the indictment, and attached case file materials and evidence, in accordance with the provisions of Article 181 of the "Criminal Procedure Law of the People's Republic of China," in accordance with the law our court should accept and try this case. Regarding whether joint criminal cases should be tried jointly, such decisions may be made by the People's Courts, People's Procuratorates, and public security agencies in accordance with the law and the scope of their respective professional duties.

The aforementioned objections raised by defendant and his defense counsels cannot be established, and they are not sustained by this Court.

Regarding defendant Xu Zhiyong's statement in court during the closing arguments stage describing his behavioral motives and his opinion that the emotional agitation of individual participants was caused by other factors, an investigation found everyone has the right to express their opinions, but this right should be exercised within the scope prescribed by law.

Xu Zhiyong clearly knew that organizing, plotting, inciting and unspecified number of people to gather in a concentrated manner in public venues at the same time to express certain demands and erect banners would  trigger the public to look on, which could easily lead to chaos in public venues and resistance to law enforcement. Despite this, he nevertheless used various means to organize more people to come to the scenes, and he took no measures to prevent the occurance of disorder.

Xu Zhiyong acted as the primary instigator to gather a crowd, and in accordance with the law should be criminal liability for the actions of the participants that directly triggered the disorder.

This Court finds that defendant Xu Zhiyong disregarded the nation's laws with respect to the norms for citizens' proper exercise of their rights, exploited hot-button social issues of public concern, and on several occassions organized and plotted activities whereby many people assembled and erected banners in public places such as those areas of surrounding government agencies, commercial areas, and densely populated areas, and the people who participated resisted and obstructed state public security management agents in the perfomance of their official duties in accordance with the law, disturbing order in a public venue, and the circumstances were severe. Xu Zhiyong was was a primary instigator, and his actions constitute the crime of gathering crowds to create a disturbance in a public venue, and in accordance with the law he shall be punished. With respect to the People's Procuratorate of Beijing Branch No. 1 charge that defendant Xu Zhiyong committed the crime of gathering crowds to create a disturbance in a public venue, the facts are clear, the evidence is reliable and copious, and the offense charged is established. Based upon the facts, nature, and circumstances of Xu Zhiyong crime, and the degree social harm, in accordance with the provisions of Articles 291, 215(1), 61, and 47 of the "Criminal Law of the People's Republic of China," the judgment is as follows:

Defendant Xu Zhiyong committing the crime of gathering crowds to create a disturbance in a public venue, and is sentenced to a fixed term imprisonment of four years. (The prison term is to be calculated starting on the day the judgment is executed, and each day in custody prior to the execution of the judgment shall count as one day of the prison term, that is from July 16, 2013 to July 15, 2017.)

If any party does not accept this judgment, they may within 10 days after the second day after receiving this written judgment bring an appeal through this Court or directly to the High People's Court of Beijing. A written appeal should be submitted with one original and two copies of the appeal brief.

Chief Adjudicator        Sun Qinghong
Acting Adjudicator      Zhang Peng
People's Assessor        Hong Xiaoda

January 26, 2014

Clerk                Geng Dawei
Clerk                Pan Mengmeng

 

北京市第一中级人民法院


刑事判决书


(2013)一中刑初字第5268号


公诉机关北京市人民检察院第一分院。

被告人许志永,男,1973年[INTENTIONALLY DELETED]出生。因涉嫌犯聚众扰乱公共场所秩序罪于2013年7月16日被刑事拘留,同年8月22日被逮捕。现羁押于北京市第三看守所。

辩护人张庆方,北京市汉鼎联合律师事务所律师。

辩护人杨金柱,湖南岳林律师事务所律师。

北京市人民检察院第一分院以京一分检刑诉[2013]306号起诉书指控被告人许志永犯聚众扰乱公共场所秩序罪,于2013年12月13日向本院提起公诉。遵照北京市高级人民法院(2013)高刑指字第101号指定管辖决定,本院于2013年12月13日立案受理,并依法组成合议庭于同日向被告人许志永送达了起诉书副本,告知其合议庭组成人员、书记员名单及被告人依法享有的各项诉讼权利。根据许志永的委托,其辩护人向本院提交了委托辩护手续并查阅、复制了全部案卷材料。合议庭于2014年1月17日召集控辩双方召开庭前会议,就本案的管辖、回避、证人出庭、非法证据排除等程序性问题听取意见,并组织控辩双方对当庭拟出示的证据进行开示。辩护人在庭前会议中未提出回避及非法证据排除申请,但对案件的管辖及分案审理提出异议并申请证人出庭作证。公诉人对辩护人提出的异议及申请亦发表了意见。合议庭听取控辩双方的意见后,就辩护人提出的异议依法作出了答复。被告人许志永收到起诉书副本后就管辖及证人出庭问题向本院提出书面意见。合议庭安排许志永查阅公诉机关拟出示的证据后,亦对其申请依法作出了答复。合议庭于庭前会议结束后,分别向许志永及其辩护人送达了开庭传票、出庭通知书。合议庭于2014年1月20日再次召集控辩双方就具体出庭证人名单,辩护人表示不再申请证人出庭作证,且不向法庭提交新证据。公诉人亦表示不申请证人出庭。本院于2014年1月22日依法公开开庭对本案进行了审理。北京市人民检察院第一分院指派代理检察员王滨、孙傲、李楠出庭支持公诉。被告人许志永及其辩护人张庆方、杨金柱到庭参加诉讼。现已审理终结。

北京市人民检察院第一分院指控:

2012年7月至2013年3月间,被告人许志永利用群众关心的社会热点话题,单独或伙同他人,组织、策划、煽动多人,分别在国家教育部门前、北京市教委门前、朝阳公园南门、中关村地区、西单文化广场等地,实施了多起聚众扰乱公共场所秩序的行为。被告人许志永作案后被公安机关查获归案。

北京市人民检察院第一分院向本院移送了物证、书证、证人证言、鉴定意见、勘验笔录、视听资料、电子数据、被告人供述和辩解等证据,认为被告人许志永多次组织、策划聚众扰乱公共场所秩序行为,抗拒、阻碍国家治安管理工作人员依法执行职务,情节严重,且系首要分子,其行为触犯了《中华人民共和国刑法》第二百九十一条之规定,应当以聚众扰乱公共场所秩序罪追究刑事责任,提请本院依法惩处。

被告人许志永在法庭审理中对管辖及分案审理提出异议,对起诉书指控的事实和罪名未发表意见。合议庭在法庭调查及辩论阶段多次向许志永告知其依法享有辩护权,可就案件事实及证据发表意见。许志永未对案件事实和证据发表意见,亦未进行辩解。在庭审最后陈述阶段,许志永陈述了其行为动机并提出个别现场参与人员情绪激动系其他因素造成。

被告人许志永的辩护人在庭前会议中对管辖及分案审理提出异议。合议庭在法庭调查及辩论阶段多次提示辩护人依法负有辩护职责,应根据事实和法律,提出被告人无罪或罪轻的材料和意见,维护被告人的诉讼权利和其他合法权益。许志永的辩护人在法庭调查阶段未向许志永发问并发表质证意见,在法庭辩论阶段未发表辩护意见。

经审理查明:

一、被告人许志永利用群众关心的社会热点话题,组织、煽动百余名人员于2012年7月5日到国家教育部门前聚集。上述人员在现场张打横幅、喧闹,且不服从现场警察的指挥疏导,造成国家教育部门前周边地区秩序严重混乱。

上述事实,有经庭审举证、质证,本院予以确认的下列证据证实:

1、北京市公安局文保总队于2012年7月4日对许志永所做的《询问笔录》证明:许志永承认曾于2012年7月3日晚和7月4日14时,分别在其网易微博和腾讯微博上发过“7月5日上午九点半教育部请愿,欢迎围观”的消息,希望7月5日有更多人到教育部去围观。7月3日晚,许志永和二十多名随迁子女家长聚会时,家长提出7月5日要上访。其当时建议参与上访请愿的人要多一些,以引起政府的高度重视。其赞同打标语、静坐、散步。

2、公安机关出具的《工作说明》证明:2011年11月1日,北京市公安局对许志永案立案侦查。2012年7月4日在工作中发现,许志永在腾讯微博发文称7月5日非京籍家长将到教育部上访。为核实该情况,北京市公安局文保总队于2012年7月4日下午对许志永进行了谈话,并制作了询问笔录一份。

3、证人孟×的证言证明:许志永组织非京籍学生家长每月末去教育部门请愿、递材料。2012年7月3日聚会上,许志永主要谈了如何动员学生家长参与7月5日活动的问题。许志永提议,参与当天活动的家长要先在教育部信访办院内聚齐,再一起走到教育部门前站立;只要去的人多了,必然引起关注。7月5日现场秩序比较乱,其在警察执法时与警察发生了争执。

4、证人孔×的证言证明:2012年7月5日活动之前的聚会上,许志永让家长发动更多的人,并表示去100人和去1000人的效果是不一样的,必须召集更多的人。2012年7月5日,几百名学生家长聚集到教育部信访办,后从信访办走到了教育部的正门。在这期间,有的学生家长张打横幅、高喊口号,后被警察制止了。

5、证人邵×的证言证明:2012年7月5日9时,其和百余名家长到教育部信访办反映问题。中午信访结束后,家长途经教育部北门时,被警察拦下了。13时许,大概50名家长在教育部北门东侧站着,有家长打出横幅、高喊口号。

6、证人孙×1的证言证明:2011年以来,一些人经常聚集在教育部门口打标语。这些人每次来,其都会安排保安员做好防控工作,但是这些人根本不听劝阻。2012年7月5日,有200多人在教育部门口打横幅、喊口号。保安公司抽调了100余人,西城分局也来了警察,那天其一整天都在北门口进行处置。

7、证人孙×2的证言证明:2012年7月5日9时许,其在教育部北门执勤,当时有上访人员在北门慢慢聚集。13时许,保安和警察劝阻上访人员离开,不要在教育部门前聚集,扰乱教育部门前的正常秩序。但上访人员不听劝阻,有人手举横幅,有人站在门口大骂,引起了过往行人的围观。之后警察没收了横幅,并将闹事的两人带回派出所处理。

8、证人王×1、后×的证言与证人孙×2证言的内容基本一致。

9、证人费×、成×的证言证明:2012年7月5日8时许,警察到教育部北门执勤。9时许,100多名家长先后来到教育部信访办,中午才离开。13时许,50多名上访家长聚集在教育部北门东侧,有人打起横幅并且喊起口号。警察进行制止时,有很多上访人员不听劝阻,并且阻挠执法。其中一人用手机拍照并对处置警察破口大骂,随后还有一人也带头闹事,警察将二人带回派出所。

10、公安机关出具的《调取证据通知书》及《工作说明》证明:许志永腾讯微博相关内容均源自公安机关从深圳腾讯总公司提取的证据光盘。为固定证据,公安机关将该内容调整为纸质版,并在审讯过程中交由许志永核对签字。

11、许志永腾讯微博数据证明:2012年7月3日、4日,许志永在其账号为×××的腾讯微博中发布了含有新北京人7月5日上午九点到教育部请愿,欢迎围观内容的微博。

12、公安机关出具的《工作说明》及案发现场视频证明:公安机关从二龙路派出所调取的案发现场视频显示现场秩序混乱,现场人员有抗拒、阻碍执法的情况。

13、公安机关出具的《现场勘验检查笔录》、现场图及现场照片证明:案发地点西城区大木仓胡同37号教育部北门外周边地区的情况。

14、北京市规划委员会出具的市规复[2014]56号《北京市规划委员会关于教育部等单位用地有关规划情况的函》证明:教育部北门外是规划辟才胡同(市政道路),是城市公共用地。

二、被告人许志永利用群众关心的社会热点话题,与王×2、丁×(均另案处理)等人组织、策划、煽动近百人,于2013年2月28日,前往北京市教育委员会门前长时间聚集,且不服从现场警察的指挥、疏导,造成北京市教育委员会门前周边地区秩序严重混乱。

上述事实,有经庭审举证、质证,本院予以确认的下列证据证实:

1、被告人许志永在侦查阶段的供述:“2.28请假一天”活动的传单应该是2月25日发的,是为了动员大家在2月28日到北京市教委门口上访。名片是其找人制作的,传单的文字内容是其起草由家长们制作的。其看到有几个人拍了照,不知道是谁发到网上的。关于2月28日去北京市教委请愿上访的事情,其除了发卡片之外,还在微博上呼吁过。其记得在跟大约二三十位家长讨论时,其提议“2.28请假一天”这个主题,大家同意了。虽然其通过媒体呼吁和网络签名已经制造了相当大的影响,但其认为媒体和网络的舆论压力是不够的,用聚集上访的方式实际上是施加压力,迫使教育部门出台政策。这个思路是一把双刃剑,其和积极参与的家长都冒着一定风险,当然社会秩序也冒着一定风险。

2、证人王×2的证言证明:2013年1月中下旬,其同许志永、丁×在学院路上岛咖啡店开会。会上,许志永说2月28日要动员学生家长请假一天到北京市教委请愿,还说他本人也会去街头动员学生家长参加。许志永希望其用微博也发布这个消息,希望更多的人知道并且参加这个活动。其根据许志永的建议于2月2日发了一条微博。

3、证人丁×的证言证明:2013年1月25日中午,其和许志永、孙×4、王×6、李×3、赵×、彭×、王×2在保福寺桥东南角的上岛咖啡搞过一次聚会,彭×和王×2来得特别晚。后许志永单独向王×2介绍了“2.28请假一天”的活动构想。2月26日或27日,其曾用自己的手机(号码为1370xxxx609)向100多名朋友转发了“2月28日请假一天去北京市教委请愿”的短信息。

4、证人彭×的证言证明:2013年1月25日,其参加了在海淀区北四环附近上岛咖啡店的小范围聚餐活动。13时许,王×6、孙×4等人先走了,其记得当时剩下其和许志永、丁×、王×2,还有一个人是谁记不清楚了。许志永提出了2月28日要组织非京籍学生家长请假一天,较大规模的到教委去请愿信访。许志永说他已经通过家长骨干联络好各区县的学生家长参加2月28日请假一天去教委请愿信访。许志永还说让大家有条件的多发微博宣传这次上访活动,并特意跟王×2说,希望王×2通过微博宣传,引起更多的人关注,从而扩大请愿规模。王×2当时也答应了。

5、证人孟×的证言证明:2013年2月28日之前,许志永在地铁口专门发过印有活动内容的名片,还制作过宣传单,卡片是许志永自己做的。2月份,其和许志永、孔×、杜××参加的一次聚餐中,许志永曾说过要在2月28日组织一次大规模的活动,去的人多就能出台政策。

2月23日晚上,许志永在家长聚餐中提出他写了一个宣传单,要让更多的人知道并支持这件事。孔×当时表示可以负责印刷传单,许志永说确定好宣传单内容后会让其发给孔×,要印6万张。后许志永将宣传单的电子版通过邮件发到了其电子邮箱,其转给了孔×。传单印好后,胡×给其打电话让付款,其告诉林×后由林×银行转账。

公安机关出具的《辨认笔录》及孟×亲笔书写的声明证明:经对一组不同男子正面免冠照片共10张进行辨认,孟×指出本组照片中的4号(孔×)就是为许志永联系印刷宣传单的孔×。

公安机关出具的《辨认笔录》证明:经对一组不同男子正面免冠照片共10张进行辨认,孟×指出本组照片中的10号(许志永)就是许志永。

6、证人孔×的证言证明:2013年2月中旬,许志永组织其和孟×、杜××举行过一次小聚会。许志永在会上提出参加活动的人要更多一点,后来定下2月28日组织一次大规模的活动。许志永在地铁口发放过“2.28请假一天到教育部门请愿活动”的名片,还编写了活动宣传单。2013年1月23日晚上家长聚会时,许志永提出写了一个宣传单,要让更多的人知道这件事。其表示可以帮助印刷。许志永说写好宣传单后让孟×转给孔×,宣传单要印6万份。第二天,孟×通过电子邮件将许志永写的宣传单电子版发给了孔×。收到电子版后,其联系了胡×制作,并将宣传单的电子版通过电子邮件发给了胡。其让胡×和欧阳×联系具体的运送问题。(经警察出示物证)孔×确认就是这个宣传单,内容与其看的电子版完全一样,没有区别。

7、公安机关出具的《工作说明》证明:在对证人孔×询问过程中,警察向其出示的是在廊坊河北××印刷厂起获的、许志永指使孔×等人印制的传单。

8、证人胡×的证言证明:2013年1月底,孔×联系其制作一批宣传单,并通过QQ传来一份传单的样本。后其联系了河北廊坊的一个印刷厂。第二天,孔×通过银行汇款转给其3000多元。交完钱的第二天,印刷厂把印好的6万份传单送来了,其电话联系了孔×,孔×说让其留一包自己发,剩下的孔×派司机取走。下午,孔×的司机取走了传单。

公安机关出具的三份《辨认笔录》分别证明:经对一组不同女子正面免冠照片共10张进行辨认,胡×指出本组照片中的3号(孟×)参与了2013年1月在大兴区小豆花餐馆聚餐。经对一组不同男子正面免冠照片共12张进行辨认,胡×指出本组照片中的8号(许志永)参与了2013年1月在大兴区小豆花餐馆聚餐。经对一组不同男子正面免冠照片共12张进行辨认,胡×指出本组照片中的8号(孔×)参与了2013年1月在大兴区小豆花餐馆聚餐。

9、证人欧阳×的证言证明:2013年1月25日,孔×让其联系胡×接货。其和胡×见面后,胡×将25件货搬到了其车上。接到货后,其给孔×打电话,孔×让其去苏州桥紫金庄园路边等待。12时10分左右,其到达紫金庄园附近,后其车辆被警察检查,并被带至派出所。其愿意配合公安机关工作,主动将货品上交。

10、证人朱×的证言证明:2013年1月23日,一个叫胡×的男子打电话要求印刷一批单页共6万张。1月24日胡×通过QQ将CTP版发给其工厂,随后其下单开始印刷。1月25日印刷完成,打包后当天中午由胡×联系的司机将货拉走。

11、公安机关扣押的传单证明:传单包含呼吁家长2月28日请假一天到北京市教委请愿的内容。

12、证人果×的证言证明:2013年2月底的一天18时许,当时其在地铁五道口站值班。其在巡视时看见一男子在站口外站着向行人发名片,旁边立着一个硬板广告牌,蓝底白字,题目是“2.28请假一天”。(警察向果×出示许志永打广告牌的照片)果×确认就是该人。

13、证人张×1的证言与果×证言的内容基本一致。

14、公安机关出具的《工作说明》证明:许志永在地铁站发放卡片的图片来源于境外网站博讯新闻网,详情见京公(网安)勘(2013)029号《远程勘验工作记录》。2013年11月1日,海淀公安分局东升派出所警察对证人果×、张×2,向二人出示该照片。

15、公安机关出具的京公(网安)勘(2013)029号《远程勘验工作记录》证明:经对境外网站博讯新闻网进行远程勘验,发现许志永在地铁站口发放卡片的图片。

16、公安机关出具的京公(网安)勘(2013)312号《远程勘验工作记录》证明:公安机关在名为“许志永”的推特网页上勘验到含有其呼吁2月28日请假一天,前往北京市教委内容的推文。网络发布时间为2013年2月26日。

17、证人张×3的证言证明:2013年2月份,其在网上看到许志永手扶蓝底白字的宣传板的照片后,于2月28日去了北京市教委。其当时看到有七八十人围在教委门口,现场有警察在维持秩序并进行劝说。

18、证人王×3的证言证明:其在地铁上收到陌生人给的一张小卡片,内容是2月28日到市教委解决外地孩子在北京参加中考和高考的问题。其按卡片上的时间去了。当天现场有200人左右。

19、王×3签字确认的“2.28请假一天”卡片复印件证明:王×3确认,其收到的卡片上写有“我们定于2013年2月28日上午九点到北京市教委(北四环奥运大厦)请愿,敬请围观”及许志永的姓名、联系方式。

20、证人李×1的证言证明:2013年2月26日下午,其在地铁里收到传单,大概内容是2013年2月28日到教委反映学生异地高考的问题。2月28日上午8点多,其去了北京市教委,当时看见有100多人在大门口的马路边上等着反映问题。现场有很多警察维持秩序。

21、李×1签字确认的传单复印件证明:传单包含呼吁家长2月28日请假一天到北京市教委请愿的内容。

22、证人张×4、蔡×、李×2、孙×3、汪×、杨×1、田×1、谭×等人的证言分别证明:上述证人参与2月28日事件的情况。

23、证人杨×2的证言证明:2013年2月28日7时许,警察到北京市教委上勤。9时许,陆续有人到达北京市教委南门外的辅路便道上,后警察对停留在便道上的人员进行疏导,但这些人不听劝阻,一直聚集在北京市教委南门的便道上。上午11时左右,聚集的人数达到90余人。这些人在教委南门外的便道上站着,造成拥堵。由于人数较多,在北四环辅路上的车辆也都减速行驶。警察先对家长们劝导、疏散,但这些人不听劝阻,依然停留在北京市教委门前。后来根据现场情况,警察把学生家长疏导至北京市教委东侧学院路的辅路上。14时许,家长们仍然不离开,继续聚集,警察将不听劝阻的家长们带离现场,并由属地分局接回教育、训诫。

24、证人张×5、王×4的证言与杨×2证言的内容基本一致。

25、北京市教育委员会办公室出具的《关于我市部分随迁子女家长2月28日到市教委上访情况的说明》证明:2013年2月28日9时起,有90余人陆续来到市教委办公地北京奥运大厦南门聚集。11时40分左右,6名随迁子女家长从聚集人员中来到市教委信访室(北京奥运大厦北门),其余人员仍在市教委南门聚集,个别人甚至辱骂工作人员,造成在北京奥运大厦办公的相关委办局工作人员无法正常出入,影响了正常办公秩序。13时40分左右,仍有40余人坚持在市教委南门处聚集,并造成四环辅路拥堵。经警察反复劝说无效后,上述人员被公安机关带离。

26、公安机关出具的《2013年2月28日非京籍学生家长在市教委聚众扰乱公共场所秩序案的情况说明》证明:2013年2月28日,海淀公安分局安排118名警力到位于北四环奥运大厦的北京市教委上勤。2月28日上午9时许,陆续有部分非京籍学生家长到达北京市教委南门。现场警察立即进行疏导化解。到中午11时左右,来访人员达到90余人。非京籍家长们的聚集造成市教委门口人行横道拥堵及出入车辆的不便。经警察劝阻,非京籍学生家长选出5名代表由市教委工作人员接谈,其余非京籍学生家长被有序疏导至外围并进行谈话劝阻。14时许,警察将不听劝阻不愿离开的56名非京籍学生家长劝上处置分流车,送至处置分流点核录审查。后经市局协调各分县局将各自辖区内非京籍学生家长接回,进一步审查、教育、训诫后予以释放。

27、证人王×5的证言证明:2013年2月26日19时30分左右,其在地铁里接到一乘客发的一张卡片,内容是要在2月28日去北京教委请愿,后他拨打“110”反映问题。报警后,其将卡片交给了安河桥北车站派出所值班的警察。

28、王×5签字确认的“2.28请假一天”卡片证明:该卡片包含有2月28日9时到北京市教委请愿的内容,并有许志永的姓名及联系方式。

29、公安机关出具的《工作说明》证明:2013年2月26日,安河桥北站派出所接市局“110”布警,一男子反映称有人在地铁4号线西单站至西四站区间,散发内容为“2.28请假一天”字样的卡片,后报警人到安河桥北站派出所报案,将当时的那张卡片交给了警察。

30、公安机关出具的《“110”接处警记录》证明:2013年2月26日,王×5报案称,在地铁西单站内有人散发卡片(内容为“2.28请假一天”)。

31、卡片复印件及公安机关出具的《工作说明》证明:王×5报案后将卡片上交公安机关。因该卡片系双面印制,为充分体现卡片全貌,公安机关在办理本案时将卡片两面内容复印后附卷,并在相关工作中使用。

32、公安机关出具的《工作说明》及现场视频证明:公安机关从海淀公安分局调取的2月28日现场视频显示,警察对聚集在北京市教委门前的上访人员进行疏导,在此过程中,部分上访人员抗拒、阻碍警察执法。

33、公安机关出具的《现场勘验检查笔录》、现场图及现场照片证明:案发地点海淀区北四环中路267号北京奥运大厦南门周边地区的情况。

三、2012年12月至2013年3月间,被告人许志永与丁×、李×3、赵×、王×6、孙×4(均另案处理)等人,利用群众关心的社会热点话题,组织、策划多人在公共场所聚集并实施张打横幅、发放传单等行为。期间,许志永、丁×、王×6等人制作了横幅,并由王×6具体组织、煽动袁×、张×3、侯×、李×4(均另案处理)等人先后实施了以下聚众扰乱公共场所秩序的行为:

2013年1月27日,张×3、袁×、李×4等人在北京市朝阳区朝阳公园南门附近张打横幅及拍照,且不服从现场警察的制止,造成现场秩序混乱。后袁×、李×4又继续前往北京市海淀区清华大学西门张打横幅及拍照。

2013年2月23日,张×3、袁×、丁×等人在北京市海淀区中关村广场张打横幅、发放传单,引发群众围观。当日活动结束后,张×3、袁×、丁×等人商定继续上述活动。2月24日,张×3、袁×、李×4、丁×等人先后到北京市海淀区海龙大厦、海淀黄庄地铁站、北京大学东门、清华大学西门等地继续张打横幅、发放传单,引发群众围观。上述人员在清华大学西门张打横幅期间,受属地公安机关协调在该区域进行治安管理的清华大学保安人员对张打横幅行为予以制止,上述人员不服从管理并与保安人员发生肢体冲突,造成现场秩序混乱。上述行为的照片等相关信息被上传至互联网。

2013年3月31日,张×3、袁×、侯×伙同马×(另案处理)等人在北京市西城区西单文化广场张打横幅、发放传单,持扩音器演讲,对现场进行拍照、录像,引发群众围观,造成现场秩序混乱,且不服从现场警察进行执法处置。该起行为的照片等相关信息被上传至互联网。

上述事实,有经庭审举证、质证,本院予以确认的下列证据证实:

(一)认定被告人许志永与丁×等人组织、策划上述活动的证据

1、证人孙×4的证言证明:2012年12月9日,他们开始在网上公开征集签名。活动开始之后,确定每周五中午在上岛咖啡进行小范围聚餐,一共进行了八九次,主要参加者是其和许志永、丁×、王×6、赵×、李×3。小范围聚餐的目的就是阶段性的汇总征集签名的情况,想办法征集更多签名。后来征集签名不顺利,许志永、丁×在小范围聚餐上提出走上街头打横幅,拍成照片,然后发到网上,大家都觉得可行。许志永、丁×提出用公义积金做横幅,其后来看过公义积金使用明细,确实看到公义积金中有横幅的账目。1月25日中午的小范围聚餐中,许志永向其介绍了彭×和王×2。会上,他们商量1月27日到朝阳公园南门打横幅的事情,并确定王×6具体负责这次张打横幅的横幅准备、人员安排。

2、证人丁×的证言证明:2012年12月9日前的一周,其和孙×4、许志永、王×6在保福寺桥上岛咖啡举行了一次小聚餐,这是第一次小型聚餐。2013年1月25日中午,其和许志永、孙×4、王×6、李×3、赵×、彭×、王×2在保福寺桥东南角的上岛咖啡搞过一次聚会。当天谈到参与签名的人数比较少,许志永提出要上街进行宣传。后来商定1月27日下午到朝阳公园南门打横幅。会上大家还商定活动时要拍照,将照片发到腾讯和新浪微博上,吸引更多人的关注。当时王×6表示要去,后来大家还讨论让孙×4去照相。横幅是其和许志永、王×6定好内容后由王×6统一制作的。在活动期间,应该制作过两批横幅,都是王×6联系制作的,资金都是许志永提供的。

3、证人王×6的证言证明:从2012年12月底开始到2013年1月份,每周五中午在上岛咖啡举行聚餐,参加人员有其和许志永、丁×、赵×、孙×4、李×3。许志永和丁×谈到了制作和散发传单,许志永还提出做横幅,横幅内容是小型聚餐中大家共同讨论的。

4、证人李×3的证言证明:因为网上征集签名活动的效果不好,于是在2013年1月中旬的几次上岛咖啡小聚会上,他们几个人讨论了上街散发传单、上街举牌张打横幅的事情。1月25日小聚会上讨论了1月27日朝阳公园上街张打横幅的事情。参加这次聚会的有其和许志永、丁×、王×6、孙×4、赵×。可以说1月27日朝阳公园张打横幅的事情就是他们六人共同商议的结果。

5、证人赵×的证言证明:在朝阳公园打横幅之前应该召开了两次小范围聚会。这两次会议的参加人有其和许志永、丁×等人。两次会议的主题一样,就是准备在朝阳公园打横幅。其在这两次小范围聚会上讲过应该把街头活动放在人流多的公共场所,让效果扩大一些。在这一点上大家没有分歧,达成了共识,最后决定去朝阳公园打横幅,所以当时参会的人都是1月底朝阳公园打横幅事件的组织者、决策者。

6、证人王×2的证言证明:其参加了2013年1月中下旬许志永等人在北四环学院路上岛咖啡店的会议。在会上,许志永对其说有公民上街张打横幅,这样做很有意义。

7、证人彭×的证言证明:2013年1月25日12时左右,其到北四环保福寺桥上岛咖啡与许志永、丁×、赵×、李×3、王×6、孙×4等人一起吃饭。期间,他们讨论了1月27日到朝阳公园张打横幅的活动。当时丁×提出有人张打横幅,有人拍照,还要把照片发到网上。大家还提到要组织一些人在张打横幅的时候进行围观。

8、证人林×的证言证明:许志永名下有一个公义积金账户,账户日常由其管理。每一笔支出都是许志永决定或授意的。2013年3月有一笔4950元的制作费用,是其给丁×报销的。

9、林×签字确认的公义积金2013年3月收支明细证明:该月支出4950元制作费。

10、公安机关出具的《扣押决定书》证明:从林×处扣押电脑的情况。

11、公安机关出具的《工作说明》证明:从林×电脑内发现并打印涉及公义积金收支明细的文档。

12、公安机关出具的京公(网安)勘(2013)354号《远程勘验工作记录》证明:公安机关从网上提取《公义积金普通捐款账户2013年3月收支明细》的情况。

13、《公义积金普通捐款账户2013年3月收支明细》证明:该账户2013年3月间支出过横幅制作费共计人民币4950元。

14、公安机关出具的《工作说明》证明:办案人员在对北京市海淀区北四环西路××号院××号楼××室王×6办公室搜查过程中,在王×6办公桌抽屉内查获白色塑料文件袋一个,内有王×6于2013年4月29日签名确认横幅内容的书证原件,书证原件现暂存在公交分局预审大队证物室。另本案第83卷(制作横幅相关证据材料)中第7页至24页照片中的65条横幅为海淀公安分局马连洼派出所移交,现暂存于公交分局预审大队证物室。

15、王×6签字确认的字条证明:丁×让其制作横幅的内容。

16、公安机关出具的《检查笔录》、《收缴物品清单》、《扣押决定书》及《证据保全清单》证明:公安机关对从王×6汽车内起获的横幅45条及宣传单2580份等物依法予以扣押。

17、公安机关出具的《办案说明》证明:2013年2月23日,公安机关从王×6汽车内起获横幅45条并办理了扣押手续,后王×6又主动上缴了其前期制作的相关横幅20条。因案件已办结,故未对该20条横幅办理相关扣押手续。

18、有关反映2013年2月23日、24日及3月31日现场张打横幅及从王×6处扣押横幅的照片,经王×6签字确认,照片中的横幅均是其联系制作的。

19、证人段×1的证言证明:2013年1月底的一天晚上,一男子到其经营的××照相服务部说要做横幅,其同意了。该人提供了横幅内容及制作规格,要求做100条。其用电脑排版后将图片传给专门制作横幅的下家。

20、公安机关出具的《工作说明》证明:警察在询问证人段×2,经向其出示王×6的彩色打印大头照,其表示照片所示人员就是做横幅的那个人。

21、证人刘×1的证言证明:2013年1月底春节前的一天,××照相服务部的负责人通过QQ联系其制作了100条横幅。

22、有关反映2013年2月24日、3月31日现场张打横幅的照片,经刘×1签字确认,照片中的横幅都是其制作的。

23、证人陈×(别名陈××)的证言证明:其经营复印生意。2013年2月的一天晚上,一个王姓男子在其店里制作65条横幅,并提供了横幅内容和规格。后其按要求找下家制作了横幅。

公安机关出具的《辨认笔录》证明:经对10张不同免冠照片辨认,陈×指出编号为5号的免冠照片(王×6)为曾到其店内定做65条横幅的王姓男子。

24、证人余×的证言证明:2013年2月20日上午,陈××找其制作了65条横幅。

25、有关反映2013年2月23日、24日现场张打横幅的照片,经余×签字确认,照片中的横幅都是其制作的。

26、证人侯×的证言证明:2013年1月26日聚餐时,王×6说要上街去宣传,包括发传单、打横幅等形式,扩大社会影响力。当时王×6带了很多传单,发给现场参加聚餐的人。

27、证人张×3的证言证明:其第一次听见要上街打横幅是2013年1月26日,应该是王×6在聚餐饭店的过道里和其单独说第二天下午在朝阳公园有活动。

28、证人李×4的证言证明:2013年1月27日上街张打横幅的事情是两天前王×6先提出来的。王×6约其见面商量此事并给了其一条做好的横幅让其去张打。1月27日其拿着横幅到了朝阳公园南门口张打。

29、公安机关出具的京公(网安)勘(2013)090号《远程勘验工作记录》及相关视频证明:公安机关经对国际互联网上域名为boxun.com的网站进行远程勘验,发现并提取2013年1月27日发布的一段视频,该视频内容为1月26日王×6向参加聚餐的人员提出要走上街头张打横幅。

(二)认定2013年1月27日聚众扰乱公共场所秩序行为的证据

1、证人张×3的证言证明:2013年1月27日其到朝阳公园南门后,看见袁×打出一条用红布制作的横幅。其给袁×拍了几张照片。之后穿制服的警察过来了,袁×就顺着马路往西边跑。之后其走到朝阳公园南门门口处,袁×又回来了,几个穿便衣的警察和袁×争夺手里面的横幅。当时袁×和警察抢了好长时间,李×4和张××拦着警察不让警察抢袁×的横幅,其在旁边照相,当时还有其他人照相。

2、证人袁×的证言证明:2013年1月27日14时左右,其在朝阳公园对面的马路上打开事先准备的一条横幅,张×3拍照,当时围观的群众有二十几人。大约过了五分钟,穿制服的警察赶到现场制止,其就往马路西边一侧跑了。之后其回到朝阳公园南门口处,警察要没收横幅,其与警察发生争执,最后警察将横幅没收了。此后其和张××坐李×4的车回家,路过清华大学门口时,其下车张打自制的横幅,张××给其拍照。

3、证人李×4的证言证明:2013年1月27日中午,其开车接袁×一起去了朝阳公园南门。到后,袁×到马路对面路边张打自制的小横幅。其和张××拿着横幅走到公园门口张打时被便衣警察发现了,经与警察争执,最后横幅被没收了。后袁×回到公园门口继续张打横幅,这时有五六个便衣警察和公园保安过去阻止并欲没收横幅。袁×与警察发生了争执。其和袁×、张××在回家路上又去了清华西门。袁×张打自己准备的三四条横幅,其用手机给袁×拍照。

4、证人孙×4的证言证明:2013年1月27日中午其到朝阳公园南门后,看到袁×在对面路南拿出一块横幅。李×4和张××准备要拉开横幅,几个穿便衣的人过来制止,把横幅收走了。这时袁×跑到南门,后边有几个穿便衣的人和两三个保安追过去和袁×抢横幅。袁×与对方发生了争执。1月27日后,其在小范围聚餐时向大家通报过。许志永说这次没搞成挺遗憾,他们还在上岛咖啡小聚餐中讨论过,这种上街张打横幅的活动还要搞。

5、证人张××关于在朝阳公园南门及清华大学西门张打横幅的证言与上述证人证言的内容基本一致。

6、证人王×6的证言证明:许志永、丁×、孙×4、赵×、李×3和其共同讨论决定到朝阳公园张打横幅,其负责组织实施。后其和李×4、袁×确定了张打横幅的具体时间。横幅是其做的,其将横幅交给了李×4或者袁×。1月27日后许志永说公安机关小题大做,反应过激了,还说可以继续推动。

7、证人叶×的证言证明:2013年1月27日其去了朝阳公园南门,看到公园南门东侧台阶下有人撕扯。

8、证人李×5的证言证明:2013年1月27日上午,其和两名保安跟着一名警察去朝阳公园南门工作,看到一男子跑到公园南门前的广场,打开了一条横幅并且大声喊口号。其见该人在公共场所闹事即上前夺横幅,对方与其发生争执,造成一些群众的围观。

公安机关出具的《辨认笔录》证明:经对12张不同男子免冠照片进行辨认,李×5指出9号照片上的男子(袁×)即为张打横幅的男子。

9、证人庞×、刘×2的证言证明:2013年1月27日中午左右,在朝阳公园南门广场南侧有一名男子张打横幅,并大声喊口号,造成群众围观,后麦子店派出所的人上去把横幅给收了。

10、证人张×6的证言证明:2013年1月27日,其在朝阳公园南门广场看到广场上有十几个人聚集。一男子在南门广场对面张打一条红色横幅,还大声喊口号。后该男子手持横幅跑回南门广场,其同事对该男子进行阻止。该男子打横幅、喊口号的行为引起大量群众的围观,造成了现场公共秩序的混乱。

公安机关出具的《辨认笔录》证明:经对10张不同男子正面免冠照片进行辨认,张×6指出照片中的6号(袁×)就是2013年1月27日在朝阳公园南门广场打横幅、喊口号的男子。

11、证人秦×的证言与张×6证言的内容基本一致。

公安机关出具的《辨认笔录》证明:经对10张不同男子正面免冠照片进行辨认,秦×指出照片中的6号(袁×)就是2013年1月27日在朝阳公园南门广场打横幅、喊口号的男子。

12、证人常×的证言证明:2013年1月份的一天,孙×4给其发短信说朝阳公园南门有活动。其到后看见一男子拿着横幅要张打,几个人过来制止,该男子反抗,和制止的人争抢横幅,并且喊口号。这时有人过来围观,孙×4当时在拍照。

13、证人翟×的证言证明:2013年1月27日中午,其在清华大学西门巡视时发现一名男子站在清华大学西门外,胸前挂了一块红布,有两人在给该男子照相。

14、公安机关出具的《扣押决定书》、《扣押清单》及《工作说明》证明:2013年5月4日,孙×4的妻子刘××与公安机关联系,称找到孙×4的笔记本电脑,警察立即赶往孙×4家中对孙×4的黑色联想笔记本电脑一台予以扣押。

15、公安机关出具的《工作说明》及公安部公物证鉴字(2013)3092号《物证检验报告》证明:2013年1月27日朝阳公园南门现场照片来自孙×4的笔记本电脑。

16、案发现场照片证明:袁×在朝阳公园南门张打横幅,在被警察制止的过程中,袁×、李×4抗拒、阻碍执法。后袁×又到清华大学西门张打横幅。

17、孙×4新浪微博、腾讯微博内容证明:孙×4将2013年1月27日朝阳公园张打横幅的情况及图片在其新浪微博及腾讯微博发布。

18、警察执法录像证明:袁×等人在朝阳公园南门张打横幅及抗拒、阻碍警察执法的情况。

(三)认定2013年2月23日、24日聚众扰乱公共场所秩序行为的证据

1、证人张×3的证言证明:2013年2月23日15时许,在中关村广场“生命”标志雕塑位置,袁×提出脱去上衣在身上写口号,后其和袁×、周××互相在对方的前胸后背上写字。他们张打两条横幅,丁×拍照并在现场向围观群众发放宣传单,当时围观的有三四十人左右。离开时有人提议次日中午再来打横幅,大家都同意。次日15时许,其和颜××、齐×、李×4、丁×、袁×、曹××从中关村广场步行至中关村E世界、地铁海淀黄庄站、海龙大厦的天桥等处,并一路张打横幅、散发传单。后又乘坐地铁到北大东门和清华西门继续张打横幅,丁×为他们照相。

2、证人袁×、丁×的证言与证人张×3证言的内容基本一致。

3、证人李×4的证言证明:2013年2月24日15时许,其和丁×、袁×、颜××、齐×、张×3、曹××等人在中关村一带张打横幅、散发传单,后又到北大东门、清华西门继续张打横幅。清华西门保安人员不让他们在门口张打横幅,他们和保安人员发生了争执,袁×和保安发生了推搡。

4、证人颜×、齐×的证言均证明:2013年2月24日,二人在中关村一带及北大东门、清华西门与李×4、袁×等人张打横幅的情况。

5、证人霍×的证言证明:2013年2月24日,其和杨×3在清华大学西门值班。16时50分左右,突然出现六男一女在清华大学西门口正中间打横幅、发传单。其立即前去劝阻,但对方不听,后杨××带着张×7、申×、王××、翟×赶来支援。在保安劝阻过程中,对方不听而且与保安推搡。当时大概有三四十人围观,场面挺混乱的。

6、证人张×7的证言证明:2013年2月24日16时50分左右,霍×、杨×3在西门巡逻时发现有人张打横幅,其接到报告后带着申×、王××、翟×进行阻止,对方不听劝阻。

7、证人杨×3的证言证明:2013年2月24日17时许,其在清华大学西门站岗。这时从马路对面走过来四五个人,在清华大学西门外高举横幅,保安上前劝阻。

8、公安机关出具的证明材料证明:北京市公安局文化保卫总队在维护清华大学校内政治稳定和治安秩序方面,对清华大学保卫处进行指导、监督、检查。

9、北京市保安服务总公司文安分公司出具的证明材料证明:霍×、张×7、申×、杨×3系该分公司派驻清华大学保卫处保安队保安员。

10、清华大学保卫处出具的证明材料证明:霍×、张×7、申×、杨×3为北京市保安服务总公司文安分公司保安,于2013年2月1日至2013年8月31日在清华大学保卫处服务。

11、清华大学保卫处出具的证明材料证明:清华大学西门口外至公路范围内公共场所系该校门前三包范围,该处在日常工作中,每日会安排数名保安员在此区域内配合公安机关维护日常秩序。

12、公安机关出具的《工作说明》证明:清华大学西门口至公路范围内公共场所的日常治安管理的管辖由海淀公安分局青龙桥派出所负责。该所协调清华大学保卫处派保安员在此区域负责协助该所开展日常治安管理工作,遇有清华大学保卫处有关人员报警,该所接警处置。

13、公安机关出具的《检查证》、《检查笔录》、《扣押决定书》、《扣押清单》及照片证明:警察对李×3的住处北京市海淀区××园××号楼××号进行检查,后扣押联想笔记本电脑一部。

14、公安机关出具的《工作说明》及公安部公物证鉴字(2013)3097号《物证检验报告》证明:2013年2月23日现场照片出自李×3的笔记本电脑。

15、现场照片证明:2013年2月23日、24日张×3、袁×、周××等人在中关村广场赤裸上身张打横幅及发放传单的情况。

16、现场监控录像证明:2013年2月24日中关村广场东南角录像显示张打横幅的情况;2月24日清华大学西门录像显示张打横幅及与清华大学保安争执、推搡的情况。

17、公安机关出具的《现场勘验检查笔录》及照片证明:现场位于北京市海淀区清华园西门丁字路口,南北为中关村北大街,西为清华西路,北为清华园西门。

18、公安机关出具的京公(网安)勘(2013)327号《远程勘验工作笔录》证明:公安机关经对互联网进行远程勘验,从名为“丁×律师”的腾讯微博中勘验到2月23日、24日张打横幅相关图文信息。

19、北京市规划委员会出具的市规复[2014]56号《北京市规划委员会关于教育部等单位用地有关规划情况的函》证明:清华大学西门外前方土地规划为城市道路,属城市公共用地。

(四)认定2013年3月31日聚众扰乱公共场所秩序行为的证据

1、证人袁×的证言证明:2013年3月31日13时许,其带着事先准备好的扩音器、横幅等物来到西单文化广场。其负责宣讲,马×和张×3负责举横幅,侯×负责照相。他们打出横幅有十几分钟,警察到现场进行制止。他们和执法警察争辩并发生争执。

2、证人侯×、张×3、马×、张×8的证言与袁×证言的内容基本一致。

3、证人王×6的证言证明:2013年3月31日张打横幅的行为与1月27日张打横幅的行为有关联,这些都是他们活动的内容。其和许志永、丁×、赵×、孙×4、李×3在小型聚餐时提到他们的活动要到国家立法以后才结束。

4、证人孙×4的证言证明:2013年2月28日之后,征集签名结束了,但他们的活动还没有结束。所有核心层成员对继续张打横幅的活动是肯定和支持的,也没有研究过停止张打横幅,更没有人表示或者明确阻止街头张打横幅行为。

5、证人闫×的证言证明:2013年3月31日15时40分许,其看见有四十多人向文化广场北侧台阶处聚集。后来其听同事张×9讲,在西单文化广场台阶上有人张打横幅,还有人在横幅前演讲。

6、证人张×9的证言证明:2013年3月31日15时许,其在西单文化广场看到广场正中央的周围有许多人围观,中间站了好几个人,有一个人一边比划一边说,还有四个人打出两条横幅。周围的人越来越多。后警察带着几个人上警车走了。

7、证人康×的证言证明:2013年3月31日,保安在西单文化广场北侧大看台处发现四个男子张打两条横幅,还有一个男子戴着耳麦大声演讲。保安上前制止并让对方收起横幅,对方不收。后保安给西单大街派出所打电话,警察来后,保安便协助警察将对方请上车带回派出所。当时现场大约有五六十人围观。

8、证人李×6、平×的证言与康×证言的内容基本一致。

9、证人芦×的证言证明:2013年3月31日15时许,其和同事徐×在西单地区巡逻时,接到所内值班室打来电话称,有人在西单文化广场中心区域拉横幅、演讲。他们知此情况后马上赶往现场,发现在西单文化广场中心区域的一个台阶上,有两名男子手举横幅,还有一名男子身上带着喊话器,胸前挂着一本书,在对围观群众演讲。还有一名女子拿着相机在拍照。当时已经围了200名左右的群众。他们向该四人出示工作证件后,告知对方的行为是扰乱公共场所秩序的行为,要求对方马上把横幅收起来,停止演讲。举横幅的两个男子把横幅收起来后,演讲的人依然没有停止,完全不听劝阻。这时田×2也赶到现场对演讲的人进行制止,但是该男子依然不听劝阻。田×2要求查看对方证件时,对方也很抵触。他们见劝阻没有用,就依法口头传唤对方到派出所接受询问,但对方不予理会,他们就将四个人强行带离。

10、证人徐×、田×2的证言与芦×证言的内容基本一致。

11、公安机关出具的《检查证》、《检查笔录》、《扣押决定书》、《扣押清单》及照片证明:警察对李×3的住处北京市海淀区××园××号楼××号进行检查,后扣押联想笔记本电脑一部。

12、公安机关出具的《照片提取说明》及公安部公物证鉴字(2013)3097号《物证检验报告》证明:2013年3月31日案发现场照片出自李×3的笔记本电脑。

13、现场照片证明:2013年3月31日,袁×等人在西单文化广场张打横幅、演讲及抗拒执法的情况。

14、现场监控录像及警察执法录像证明:袁×、张×3、侯×等人在现场张打横幅、演讲、拍照及阻碍、抗拒警察执法的情况。

15、视频录像证明:许志永在合肥与张×等人在宾馆房间内开会时发言,称其事先对2013年3月31日袁×等人在西单文化广场的行为知情并表示支持。

16、合肥市公安机关出具的《搜查笔录》、《扣押清单》、硬盘照片及合公电检记(2013)16号《电子物证检查分析报告》证明:合肥市公安机关调取上述视频的情况。

17、公安机关出具的《工作说明》证明:北京市公安机关于2013年12月从合肥市公安局调取了李××案中的视频文件,该视频系从扣押的孙×的移动硬盘中提取。

18、公安机关出具的京公(网安)勘(2013)078号及京公(网安)勘(2013)290号《远程勘验工作记录》证明:公安机关经对互联网上域名为boxun.com、voachinese.com的境外网站进行远程勘验,勘验到关于2013年3月31日西单文化广场事件相关文章。

19、公安机关出具的《起赃经过》、《扣押决定书》、《扣押清单》及物证照片证明:2013年3月31日,警察将袁×、张×3、侯×等人抓获后,从袁×手中起获并扣押其演讲时持有的扩音器1套、《南京大屠杀》书籍1本、红色条幅1副。从张×3随身物品中起获并扣押其所持有的横幅3副。从马×随身物品中起获并扣押其所持有的横幅5副。

公诉机关当庭还出示了以下证据,本院予以确认:

1、公安机关出具的《立案决定书》证明:北京市公安局于2011年11月1日决定对许志永案立案侦查。

2、公安机关出具的《常住人口信息》及北京邮电大学人文学院出具的《许志永基本情况说明》证明:许志永的身份情况。

3、公安机关出具的《到案经过》、《拘留证》及《逮捕证》证明:2013年7月16日10时,警察依法将许志永刑事传唤到北京市公安局公共交通安全保卫分局。许志永于同日被刑事拘留,同年8月22日被逮捕。

4、北京市第三看守所出具的《入所健康检查表》证明:许志永入所时健康情况正常。

5、公安机关出具的《工作说明》证明:许志永一案案卷材料中,相关复印卷宗分别复印自丁×、赵×、李×3、侯×等案,内容与原案卷一致。

被告人及其辩护人在法庭审理中未提出新证据,亦未提出证人出庭作证申请。

对于被告人及其辩护人在庭前及庭审中对管辖及分案审理所提的异议,经查,本案事实涉及北京市海淀区、朝阳区及西城区等属于不同法院管辖的区域,北京市人民检察院第一分院对许志永一案向我院提起公诉后,北京市高级人民法院依照《中华人民共和国刑事诉讼法》第二十六条之规定,指定由我院管辖。鉴于公诉机关在起诉书中明确指控了犯罪事实,并附有案卷材料及证据,符合《中华人民共和国刑事诉讼法》第一百八十一条的规定,我院依法应当受理并开庭审判。对于共同犯罪案件是否并案审理,人民法院、人民检察院、公安机关依法均可以在各自职责范围内决定。被告人及其辩护人所提上述异议不能成立,本院不予支持。

对于被告人许志永在法庭最后陈述阶段所陈述的行为动机及提出的个别现场参与人员情绪激动系其他因素造成的意见,经查,每个人都有表达自己意见的权利,但这种权利应该在法律规定的范围内行使。许志永明知组织、策划、煽动不特定多数人在同一时间段集中于公共场所表达某种诉求和张打横幅将引发社会公众围观,极易造成公共场所秩序混乱并出现抗拒执法的情况,仍通过各种方式组织更多人员到现场,且未采取任何有效措施避免出现秩序混乱。许志永作为聚众行为的首要分子,对于现场参与人员直接引发秩序混乱的行为,依法应当承担刑事责任。

本院认为,被告人许志永无视国家法律对于公民正当行使权利的规范,利用群众关心的社会热点话题,多次组织、策划在政府机关周边地区、商业繁华地带及人流密集地区等公共场所,实施多人聚集及张打横幅的活动,且参与人员在现场抗拒、阻碍国家治安管理工作人员依法执行职务,扰乱了公共场所的秩序,情节严重。许志永作为首要分子,其行为已构成聚众扰乱公共场所秩序罪,依法应予惩处。北京市人民检察院第一分院指控被告人许志永犯聚众扰乱公共场所秩序罪的事实清楚,证据确实、充分,指控的罪名成立。根据许志永犯罪的事实、犯罪的性质、情节和对于社会的危害程度,依照《中华人民共和国刑法》第二百九十一条、第二十五条第一款、第六十一条及第四十七条之规定,判决如下:

被告人许志永犯聚众扰乱公共场所秩序罪,判处有期徒刑四年。

(刑期自判决执行之日起计算,判决执行前先行羁押的,羁押一日折抵刑期一日,即自2013年7月16日起至2017年7月15日止。)

如不服本判决,可在接到判决书的第二日起十日内,通过本院或者直接向北京市高级人民法院提出上诉。书面上诉的,应当提交上诉状正本一份、副本二份。

审判长            孙庆宏
代理审判员    张鹏
人民陪审员    洪晓达

二○一四年一月二十六日

书记员            耿大为
书记员            潘萌萌