Wednesday, September 15, 2021

Baidu Increases Censorship of "Xi Jinping"

 China's search engines have censored the names of leaders of the Communist Party of China and the PRC government for over a decade (see: http://blog.feichangdao.com/2012/12/how-other-websites-are-censoring.html). They typically do this by restricting search results to a white list of around 20 websites under their own control or under the direct control of the central government and the Communist Party. This is illustrated below with a screenshot showing that a search for "Xi Jinping" in Chinese characters (习近平) on Baidu returns millions of results (left), but the same search limited to educational websites returns no results (right).


Paging through the result one finds that the only websites shown are Party and government mouthpieces such as Xinhua, the People's Daily, the China Daily, CCTV (the state controlled television broadcaster), CRI (the state controlled radio broadcaster), etc. This censorship is done for searches of leaders names in Chinese characters and in pinyin romanization (e.g. "Xi Jinping"). 

The screenshots below show that some time between April 2020 (left) and September 2021 (right)  Baidu changed how it was censoring search results for "Xi Jinping" in pinyin romanization. Whereas in April 2020 Baidu was limiting results to the Party/Government white list, it claimed to have found almost 6 million results. In September, Baidu was still limiting search results to that white list, but was only displaying nine results. 

At least Baidu is showing something. As the screenshots below show, China's two other major search engines - Qihoo (left) and Sogou (right) return no results whatsoever.

 

Interestingly, it is still possible to "trick" Sogou into showing search results containing "Xi Jinping" by entering his name in Chinese characters into its English language search engine. The screenshot below shows that in that case Sogou returns dozens of results (again, from the Party/Government white list).



Monday, August 23, 2021

Translation: Court Judgment in Li Doe Disturbing the Peace Case

Translator's Summary: The court found Li guilty on the grounds that he "made inappropriate statements in posts through WeChat Moments or in writings on paper hung on the office building of the People's Government of Tanxi that insulted Party and State leaders and supported 'Hong Kong Independence.'" The court sentenced Li to prison notwithstanding what it characterized as his "mild mental retardation" and "limited criminal capacity for the illegal actions."

People's Court of Pingchang County, Sichuan


Criminal Judgment


(2020) Chuan 1923 Criminal First Instance No. 15


The public prosecution agency was the People's Procuratorate of Pingchang.

Defendant Li Doe, male, born [INTENTIONALLY OMITTED], Han ethnicity, junior high school education, laborer, household registration in Pingchang, Sichuan, currently residing in Pingchang. Taken into criminal detention by the Public Security Bureau of Pingchang on September 5, 2019 on suspicion of committing the crime of disturbing the peace. An arrest was executed on September 30 of the same year. Currently being held in detention at the Pingchang Detention Center.

Guardian Li Doe2, male, born [INTENTIONALLY OMITTED], Han ethnicity, junior high school education, household registration in Pingchang, Sichuan, currently residing in Pingchang, father of defendant Li Doe.

Assigned defense counsel He Yongbi, a lawyer at the Sichuan Baijian Law Firm.

In the Ping Procuratorate Public Prosecution Criminal Indictment (2019) No. 223 indictment the People's Procuratorate of Pingchang charged defendant Li Doe with committing the crime of disturbing the peace, and on January 7, 2020 it filed a public prosecution with this Court. After this Court docketed the case in accordance with the law it applied normal procedures, formed a collegial panel and  convened public hearings to try this case. The People's Procuratorate of Pingchang assigned Procurator Zeng Chaofeng to appear in court in support of the public prosecution, and defendant Li Doe, guardian Li Doe2, and his assigned defense counsel He Yongbi appeared in court to participate in the proceedings. The trial has now concluded.

The People's Procuratorate of Pingchang's indictment charged: From July to August 2019, defendant Li Doe, in order to vent his private anger, repeatedly made inappropriate statements in posts through WeChat Moments or in writings on paper hung on the office building of the People's Government of Tanxi that insulted Party and State leaders and supported "Hong Kong Independence." In addition, he repeatedly insulted others by sending short messages or writing notes, which seriously damaged the reputation of the Party and the country, and hurt the feelings of others.

A forensic examination by the Sichuan Southwest Judicial Forensic Center found that defendant Li Doe suffered from mild mental retardation. He had limited criminal capacity for the illegal actions from July to August 2019.

A forensic examination by the Sichuan Southwest Judicial Forensic Center found that the illegal content of defendant Li Doe's writings was written by him.

On September 5, 2019, defendant Li Doe was summoned to address the case by phone and truthfully stated his criminal facts. During the pre-prosecution examination, defendant Li Doe confessed his guilt and accepted punishment, and admitted his criminal facts and willingness to accept punishment.

In order to prove the aforementioned facts, the public prosecution agency produced in court documentary evidence, witness testimony, the defendant's statement, forensic opinions, identification records, and other evidence. The public prosecution agency alleged defendant Li Doe insulted others in order to vent his private anger, causing a pernicious social influence and disrupting social order. His actions were the commission of an offense under the provisions of Article 293 of the "Criminal Law of the People's Republic of China" and should be subjected to criminal liability for the crime of disturbing the peace.

Li Doe is an individual with limited criminal capacity, and surrendered voluntarily, and in accordance with the law may be given a reduced sentence or a lighter punishment. Li Doe confessed his guilt and accepted punishment, and in accordance with the law may be shown leniency. It is recommended that Li Doe be sentenced to a fixed term imprisonment of no more than one year. It is requested this Court pass sentence in accordance with the law.

Defendant Li Doe had no objection to the facts and offense charged by the public prosecution agency, and voluntarily confessed his guilt and accepted punishment.

Guardian Li Doe2 had no objection to the facts and offenses charged by the public prosecution agency against Li Doe, and requested he be shown leniency.

Assigned defense counsel He Yongbi had no objection to the facts and offenses charged by the public prosecution agency against Li Doe, and his main defense was that Li Fe is an individual with limited criminal capacity, he surrendered voluntarily, confessed his guilt and accepted punishment, and asks that Li Doe be shown leniency.

It was ascertained at trial that the facts were consistent with the facts charged by public prosecution agency.

The aforementioned facts were supported by the following evidence, which was sufficient to reach a determination: case registration form, Decision to Open a Case, permanent resident and information forms, the process of how the defendant came into police custody, testimony of witnesses Zhao 1, Li Doe2, Tang, Xiao, Yang, Zhao 2, Zhang 1, Zhang 2 and others, defendant Li Doe's statement and justification, search records, physical evidence in the form of three sheets of paper, screenshots of mobile phone text messages and images of WeChat Moments, the Sichuan Xiaoluyuan Electronic Data Judicial Forensic Institute's Xiaoluyuansijian 2019 (Electronic Examination) No. 188 "Judicial Forensic Opinion Report," the Sichuan Mingzheng Judicial Forensic Institute's Chuanmingzheng (2019) Document Examination No. 7 Judicial Forensic Opinion Report, the Sichuan Southwest Judicial Forensic Center's Chuanxinanjian (2019) Precision Examination No. 0763 Judicial Forensic Opinion Report, defendant Li Doe's typed and handwritten situation explanation and social endangerment situation explanation form, crime scene investigation transcripts and photos, and identification photos.

This Court finds defendant Li Doe insulted others in order to vent his private anger, causing a pernicious social influence and disrupting social order. His actions constitute the crime of disturbing the peace. The offense charged by the public prosecution agency is established.

Defendant Li Doe is an individual with limited criminal capacity, and therefore in accordance with the law he can be shown leniency.

Defendant Li Doe truthfully stated his criminal facts after he was summoned to answer for the case, truthfully confessed his criminal facts and surrendered himself, and therefore in accordance with the law he can be shown leniency.

In order to combat crime and maintain public order, in accordance with the provisions of Articles 293, 18, and 67 of the "Criminal Law of the People's Republic of China" and Article 3(1) of the Supreme People's Court's and People's Procuratorate's "Interpretation on Issues Concerning the Application of Law for Criminal Cases of Disturbing the Peace," the judgment of this Court is as follows:

Defendant Li Doe committed the crime of disturbing the peace, and is sentenced to a fixed term imprisonment of ten months. (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 September 5, 2019 to July 4, 2020.)

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 Intermediate People's Court of Baozhong. A written appeal should be submitted with one original and two copies of the appeal brief

Chief Adjudicator    He Zhongzheng
People's Assessor    Mao Mingrong
People's Assessor    Wang Xinhui

April 28, 2020

Clerk            Wu Min 


四川省平昌县人民法院


刑事判决书


(2020)川1923刑初15号


公诉机关四川省平昌县人民检察院。

被告人李某,男,生于[INTENTIONALLY OMITTED],汉族,初中文化,务工,户籍所在地四川省平昌县,现住平昌县。因涉嫌寻衅滋事罪,于2019年9月5日被平昌县公安局刑事拘留,同年9月30日被执行逮捕,现羁押于平昌县看守所。

监护人李某2,男,生于[INTENTIONALLY OMITTED],汉族,初中文化,户籍所在地四川省平昌县,现住平昌县,系被告人李某之父。

指定辩护人何永碧,四川百坚律师事务所律师。

四川省平昌县人民检察院以平检公诉刑诉〔2019〕223号起诉书指控被告人李某犯寻衅滋事罪一案,于2020年1月7日向本院提起公诉,本院受理后依法适用普通程序,组成合议庭公开开庭进行了审理。平昌县人民检察院指派检察员曾朝烽出庭支持公诉,被告人李某、监护人李某2及其指定辩护人何永碧到庭参加诉讼,现已审理终结。

四川省平昌县人民检察院起诉指控:2019年7月至8月,被告人李某为泄私愤,多次在通过微信朋友圈发布或书写在纸上悬挂在坦溪镇人民政府办公楼等方式辱骂党和国家领导人、支持“港独”等不正当言论,并多次以发送短信息或书写字条等方式辱骂他人,严重损害了党和国家的声誉,伤害了他人的情感。经四川西南司法鉴定中心鉴定被告人李某患有轻度精神发育迟滞,对其2019年7月至8月的违法行为为限制刑事责任能力。经四川明正司法鉴定中心鉴定被告人李某所书写的违法内容系本人书写。

2019年9月5日,被告人李某经电话传唤到案,并如实供述了自己的犯罪事实。在审查起诉期间,被告人李某认罪认罚,承认自己的犯罪事实,愿意接受处罚。

为证明上述事实,公诉机关当庭出示了书证;证人证言;被告人的供述;鉴定意见;辨认笔录等证据。公诉机关认为被告人李某为泄私愤随意辱骂他人,造成了恶劣的社会影响,破坏了社会秩序,其行为已触犯《中华人民共和国刑法》第二百九十三条之规定,应当以寻衅滋事罪追究其刑事责任。李某系限制刑事责任能力人,并有自首情节,依法可以减轻或者从轻处罚,李某认罪认罚,依法可从宽处罚。建议判处李某一年以下有期徒刑。提请本院依法判处。

被告人李某对公诉机关指控的事实及罪名均无异议,自愿认罪认罚。

监护人李某2对公诉机关指控李某的事实及罪名均无异议,请求从轻处罚。

指定辩护人何永碧对公诉机关指控李某的罪名及事实均无异议,主要辩护称李某系限制刑事责任能力人,有自首情节并认罪认罚,请求对李某从轻处罚。经审理查明的事实与公诉机关指控的事实一致。

上述事实,有受案登记表、立案决定书、常住人又信息表、到案经过;证人赵某1、李某2、唐某、肖某、杨某、赵某2、张某1、张某2等人的证言;被告人李某的供述及辩解;搜查笔录;物证纸片三张;手机短信截图、微信朋友圈照片;四川效率源电子数据司法鉴定所效率源司鉴2019(电鉴)188号《司法鉴定意见书》、四川明正司法鉴定所川明正[2019]文鉴字第7号司法鉴定意见书、四川西南司法鉴定中心川西南鉴[2019]精鉴字第0763号司法鉴定意见书;被告人李某书写的字迹及情况说明、社会危险性情况说明表;现场勘验笔录及照片、指认照片等证据在案,足以认定。

本院认为,被告人李某为泄私愤随意辱骂他人,造成了恶劣的社会影响,破坏了社会秩序,其行为已经构成寻衅滋事罪,公诉机关指控的罪名成立。被告人李某系限制刑事责任能力人,依法可以从轻处罚。被告人李某经又头传唤到案,并如实供述了自己的犯罪事实,系自首,依法可以从轻处罚。本院为打击犯罪,维护社会公共秩序,依照《中华人民共和国刑法》第二百九十三条、第十八条、第六十七条、最高人民法院、最高人民检察院《关于办理寻衅滋事刑事案件适用法律若干问题的解释》第三条第(一)项之规定,判决如下:

被告人李某犯寻衅滋事罪,判处有期徒刑十个月。

(刑期从判决执行之日起计算。判决执行以前先行羁押的,羁押一日折抵刑期一日。即自2019年9月5日起至2020年7月4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四川省巴中市中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    何中正
人民陪审员    毛明蓉
人民陪审员    王心会

二〇二〇年四月二十八日

书记员    吴敏

Friday, July 9, 2021

The 7.09 Prosecutions: Zhu Chengzhi Criminal Judgment

Intermediate People's Court of Suzhou, Jiangsu


Criminal Ruling


(2020) Su 05 Criminal Final No. 6601

 ****

Translator's Summary: The court found Zhu guilty on the grounds that he "used foreign Internet platforms to disseminate a large amount of false information relating to significant domestic events that seriously damaged the image of the country and seriously harmed national interests, creating a disturbance, confusing public opinion, causing severe disruption of public order." The court specifically cited Zhu for using "Twitter and Facebook to maliciously sensationalize major domestic events such as the "Jiansanjiang Incident," "Qing'an Incident," and the "Lei Yang Incident," all of which occurred at least two years prior to Zhu's arrest.

****

The original public prosecution agency was the People's Procuratorate of Wuzhong District, Suzhou.

Appellant (defendant in the original trial) Zhu Chengzhi, male, born [INTENTIONALLY DELETED], 1950, resident registration ID No. [INTENTIONALLY DELETED], Han ethnicity, junior high school education, unemployed, residing at [INTENTIONALLY DELETED] Baoqing East Road, Baodong Community Residents Committee, Shuangqing District, Shaoyang, Hunan. On June 8, 2012, he was subjected to 10 days administrative detention by the Public Security Bureau of Shaoyang, Daxiang Division for obstructing a government agent in the execution of their duties. On October 11, 2016, he was subjected to seven days administrative detention by the Public Security Bureau of Shaoyang, Shuangqing Division for disrupting public order. On April, 30, 2018 he was placed under residential confinement at a designated location (having been taken into custody on the 29th of the same month) by the Public Security Bureau of Suzhou, Wuzhong Division on suspicion of committing the crime of disturbing the peace. On October 29, 2018 he was taken into criminal detention by the Public Security Bureau of Suzhou, Wuzhong Division on suspicion of committing the crime of inciting subversion of state power. On November 12, 2018 he was arrested on suspicion of committing the crime of disturbing the peace. He is currently being held in detention at the Suzhou No. 1 Detention Center.

Defense counsel Zhang Lei is a lawyer at the Beijing Tongzhenghan Law Firm.

Defense counsel Liu Hai is a lawyer at the Huayi Law Firm, Beijing.

The People's Court of Wuzhong, Suzhou tried the case of the People's Procuratorate of Wuzhong, Suzhou charge that the defendant in the original trial Zhu Chengzhi committed the crime of disturbing the peace, and on July 31, 2020 issued the (2019) Su 0506 Criminal First Instance No. 537 criminal judgment. After the judgment was announced, the defendant in the original trial Zhu Chengzhi did not accept it, and submitted an appeal. After this Court docketed the case it formed a collegial panel in accordance with the law. Based on a reading of the case file, interrogatories with the appellant, and hearing the opinions of the People's Procuratorate of Suzhou and defense counsel, found the facts in this case are clear, and decided not to hold hearings at trial. The trial has now concluded.

The judgment in the original trial held that, since 2010, defendant Zhu Chengzhi used the foreign Internet platforms Twitter and Facebook to disseminate a large amount of false information that seriously damaged the image of the country and seriously harmed national interests, created a disturbance, confused public opinion, and caused a severe disruption of public order. The specific facts are as follows:

1. Since March 2010, over a long period of time defendant Zhu Chengzhi used his registered account on the foreign Internet platform Twitter, to denigrate China's political system, publishing false statements and pictures that seriously damaged the image of the country and seriously endangered national interests. These included more than 140 posts with false information directly attacking China's State leaders and political system, which were reposted more than 700 times and liked more than 1,290 times.

2. Since 2014, over a long period of time defendant Zhu Chengzhi used his registered account on the foreign Internet platform Facebook to denigrate China's political system, publishing false statements and pictures that seriously damaged the image of the country and seriously endangered national interests. These included more than 50 posts with false information directly attacking China's State leaders and political system, which were shared and commented on more than 40 times and liked more than 150 times.

3. Defendant Zhu Chengzhi used his aforementioned registered accounts on the foreign Internet platforms Twitter and Facebook to maliciously sensationalize major domestic events such as the "Jiansanjiang Incident," "Qing'an Incident," and the "Lei Yang Incident," and after official information had been publicized he still fabricated rumors, distorted facts, and posted a large number of false statements and pictures.

Among these, on April 28, 2016, defendant Zhu Chengzhi went to Mudu Town, Wuzhong District, Suzhou and logged in to his Facebook account in Mudu Town, Wuzhong District on the 30th of the same month, and published posts attacking state agencies.

The original trial found that evidence of the aforementioned facts included the apprehension process, seize materials, document lists, electronic evidence investigation work records, electronic data investigation work records, collection records, remote crime scene investigation work records, the testimony of witnesses Wang Mingxian and Ni Jinfang, proof of household registration, and the Administrative Punishment Decision. The court in the original trial found defendant Zhu Chengzhi used foreign Internet platforms to disseminate a large amount of false information relating to significant domestic events that seriously damaged the image of the country and seriously harmed national interests, creating a disturbance, confusing public opinion, causing severe disruption of public order, and his actions constitute the commission of the crime of disturbing the peace. In accordance with the provisions of Article 293(1)(iv) of the "Criminal Law of the People's Republic of China," it sentenced defendant to a fixed term imprisonment of three years and six months for committing the crime of disturbing the peace.

The appeal rationales and defense opinions of appellant Zhu Chengzhi and defense counsel are:

1. The Suzhou Wuzhong District judiciary does not have jurisdiction in this case.

2. There were no eyewitnesses to the remote crime scene investigation in this case, there were no approval procedures for some of the remote crime scene investigation, and the procedures for collecting evidence violated the provisions of the Criminal Procedure Law and should not be used as a basis for a judgment.

3. Appellant did not fabricate information or continue to spread it knowing that it is false information, and the content posted falls within the category of freedom of speech. Facebook and Twitter are not not public venues with respect to the crime of disturbing the peace. Appellant's actions did not cause serious chaos in public order.

To sum up, it is requested that the judgment for appellant Zhu Chengzhi be changed to not guilty.

The opinion produced by the People's Procuratorate of Jiangsu holds that the facts determined in the judgment in the original trial were clear, the evidence was reliable and copious, the trial procedures were legal, the sentence was appropriate, and the appeal grounds for appeal are not established. It recommends the appeal be rejected and the judgment in the original trial be upheld.

The facts ascertained by the trial of second instance are consistent with the facts found in the original judgment, and all of the evidence that was produced and examined in court in the original trial can be mutually corroborated, and are therefore probative, and are affirmed by this Court.

With respect to the opinions raised by Appellant and defense counsel, based on a comprehensive review of facts and evidence of the whole case, this Court's comprehensive evaluation is as follows:

With respect to the relevant opinions raised by Appellant and defense counsel that "The Wuzhong District judiciary did not have jurisdiction in this case," an investigation found that appellant Zhu Chengzhi logged in to his Facebook account on April 30, 2016 and made a post attacking State agencies. The location was displayed in the city of Wuzhong District, Mudu Township. Wuzhong District was the location where appellant Zhu Chengzhi's accessed the network to commit a cybercrime.

In accordance with the provisions of the "Criminal Procedure Law of the People's Republic of China" and the "Opinions of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on Several Issues Concerning the Application of Criminal Procedures in the Handling of Cybercrime Cases," Wuzhong District was the location of the criminal activity in this case, and the local judiciary has jurisdiction in this case.

With respect to the relevant opinions raised by Appellant and defense counsel that "the evidence collection procedure in this case violated the provisions of the Criminal Procedure Law and cannot be used as the basis for a judgment," this Court finds:

First, the issue of the approval of the remote crime scene investigation. An investigation found that during hearings in the trial of first instance, the public prosecutor produced as evidence the corresponding petition approval report for the remote crime scene investigation work record used to produce evidence.

Second, the issue of remote crime scene investigation eyewitnesses. In accordance with the provisions of the "Provisions of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on Several Issues Concerning the Collection, Examination, and Assessment of Electronic Data Collected in Criminal Cases," if it is not possible for a qualified person to act as a witness for objective reasons, a note as to the circumstances shall be made in the relevant transcripts, and a video recording of the entire process of impounding the original storage medium shall be made.

This Court finds, because the information involved in this case related to the denigration of the national Party and government system, the presence of eyewitnesses would inevitably cause unnecessary secondary dissemination, which falls within the category of "objective reasons" as set forth in the "Provisions."

The aforementioned situation has been recorded and explained in the work record of the remote crime scene investigation in this case. At the same time, the entire process of the remote crime scene investigation was carried out in conjunction with synchronized screen recordings, with verification established using checksums, which is able to ensure the authenticity of the remote crime scene investigation process and collected data. Therefore, there is nothing in the remote crime scene investigation that "affected the authenticity of electronic data" under Article 28 of the "Provisions," and it can be used as the basis for a judgment.

Regarding the relevant opinions of Appellant and defense counsel that "the content posted falls under the scope of freedom of speech, and online platforms are not public venues with respect to the crime of disturbing the peace," this Court finds that freedom of speech is a basic right of citizens under China's Constitution, but the exercise of any rights must not exceed the boundaries of the law. Although network platforms are virtual spaces, their primary function is the interaction between people, which is inseparable from real society. Actions taken in cyberspace must necessarily also map to real society. Cyberspace and cyber-order are forms of public venues and public order. Over an extended period of time appellant Zhu Chengzhi used foreign Internet platforms to disseminate a large amount of false information relating to significant domestic events that seriously damaged the image of the country and seriously harmed national interests, creating a disturbance and confusing public opinion. This far exceeded the scope of freedom of speech, and can be deemed to have caused a severe disruption of public order.

This Court finds that the facts in the judgment in the original trial were clear, the evidence was reliable and copious, and the law was applied accurately, and the sentence was appropriate. Appellant's appeal rationale and defense counsel's defense opinions cannot be established, and are not accepted. The written opinions of the People's Procuratorate of Suzhou are correct and shall be sustained. In accordance with the provisions of Article 236(1)(i) of the "Criminal Procedure Law of the People's Republic of China, the ruling is as follows:

The appeal is rejected and the judgment in the original trial is upheld. This ruling shall be the final ruling.

Chief Adjudicator    Jia Zan
Adjudicator        Wang Meixin
Adjudicator        Wang Hao

December 19, 2000

There are no discrepancies between this copy and the original.

Clerk            Shen Qi

江苏省苏州市中级人民法院


刑事裁定书


(2020)苏05刑终660号


原公诉机关苏州市吴中区人民检察院。

上诉人(原审被告人)朱承志,男,1950年[INTENTIONALLY DELETED]生,居民身份证号码[INTENTIONALLY DELETED],汉族,初中文化,无业,住湖南省邵阳市双清区宝东社区居民委员会[INTENTIONALLY DELETED]。因阻碍执行职务于2012年6月8日被邵阳市公安局大祥分局行政拘留十日;因扰乱公共秩序于2016年10月11日被邵阳市公安局双清分局行政拘留七日。因涉嫌犯寻衅滋事罪,于2018年4月30日被苏州市公安局吴中分局指定居所监视居住(同月29日到案),2018年10月29日以涉嫌犯煽动颠覆国家政权罪被苏州市公安局吴中分局刑事拘留,2018年11月12日以涉嫌犯寻衅滋事罪被逮捕。现羁押于苏州市第一看守所。

辩护人张磊,北京市同正函律师事务所律师。
辩护人刘海,北京市华一律师事务所律师。

苏州市吴中区人民法院审理苏州市吴中区人民检察院指控原审被告人朱承志犯寻衅滋事罪一案,于2020年7月31日作出(2019)苏0506刑初537号刑事判决。宣判后,原审被告人朱承志不服,提出上诉。本院受理后,依法组成合议庭,通过阅卷,讯问上诉人,听取江苏省苏州市人民检察院检察员及辩护人的意见,认为本案事实清楚,决定不开庭审理。现已审理终结。

原判决认定,2010年以来,被告人朱承志通过境外网络平台Twitter和Facebook,大量散布严重损害国家形象、严重危害国家利益的虚假信息,起哄闹事,混淆视听,造成公共秩序严重混乱。具体事实如下:

1. 2010年3月以来,被告人朱承志利用其在境外网络平台Twitter注册的账号,长期诋毁我国政治制度,发布严重损害国家形象、严重危害国家利益的虚假言论或图片。其中直接攻击我国国家领导人和政治制度的虚假信息达140余条,累计转发700余次,累计点赞1290余次。

2. 2014年以来,被告人朱承志利用其在境外网络平台Facebook注册的账号,长期诋毁我国政治制度,发布严重损害国家形象、严重危害国家利益的虚假言论或图片。其中直接攻击我国国家领导人和政治制度的虚假信息达50余条,累计被分享、评论40余次,累计被点赞150余次。

3. 被告人朱承志利用上述其在境外网络平台Twitter和Facebook注册的账号,恶意炒作“建三江事件”、“庆安事件”、“雷洋事件”等国内重大事件,在官方消息公布之后,仍编造谣言、歪曲事实,发布大量虚假言论和图片。

其中,2016年4月28日,被告人朱承志至江苏省苏州市吴中区木渎镇,同月30日在吴中区木渎镇登录Facebook账号,并发出攻击国家机关的帖子。

原审认定上述事实的证据有抓获经过、扣押物品、文件清单、电子证物检查工作记录、电子数据检查工作记录、提取笔录、远程勘验工作记录、证人王明贤、倪金芳的证言、户籍证明、行政处罚决定书等。
原审法院认为,被告人朱承志在境外社交网络上大量散布涉及国内重大事件、严重损害国家形象、严重危害国家利益的虚假信息,起哄闹事,混淆视听,造成公共秩序严重混乱,其行为已构成寻衅滋事罪。依照《中华人民共和国刑法》第二百九十三条第一款第(四)项之规定,以寻衅滋事罪判处被告人朱承志有期徒刑三年六个月。

上诉人朱承志及辩护人的上诉理由及辩护意见为:1.苏州市吴中区司法机关对本案不具有管辖权。2.本案的远程勘验没有见证人,部分的远程勘验没有审批手续,收集证据的程序违反刑事诉讼法的规定,不应作为定案依据。3.上诉人没有编造信息或者明知是虚假信息继续散布,所发内容属于言论自由的范畴,Facebook和Twitter也不是寻衅滋事罪中的公共场所,上诉人的行为没有造成公共秩序的严重混乱。综上,请求改判上诉人朱承志无罪。

江苏省苏州市人民检察院检察员出具书面意见认为,原判认定事实清楚,证据确实、充分,审判程序合法,量刑适当,上诉人的上诉理由不成立,建议驳回上诉,维持原判。

经二审审理查明的事实与原审判决认定的事实一致,且全部证据均经原审庭审举证、质证,证据之间能够相互印证,具有证明效力,本院予以确认。

对上诉人及辩护人提出的意见,综合全案事实及证据,本院综合评判如下:

对上诉人及辩护人提出“吴中区司法机关对本案不具有管辖权”的相关意见,经查,上诉人朱承志在2016年4月30日登陆Facebook账号发出攻击国家机关的帖子,定位显示在本市吴中区木渎镇,吴中区系上诉人朱承志实施网络犯罪的网络接入地,根据《中华人民共和国刑事诉讼法》及《最高人民法院、最高人民检察院、公安部关于办理网络犯罪案件适用刑事诉讼程序若干问题的意见》的规定,吴中区是本案的犯罪地,属地司法机关对本案具有管辖权。

对上诉人及辩护人提出“本案的证据收集程序违反刑事诉讼法的规定,不能作为定案依据”的相关意见,本院认为:

第一,对远程勘验审批的问题。经查,一审庭审时公诉人已对作为证据使用的远程勘验工作记录举证出示了相应的呈请审批报告书。

第二,对远程勘验见证人的问题。根据《最高人民法院、最高人民检察院、公安部关于办理刑事案件收集提取和审查判断电子数据若干问题的规定》的规定,由于客观原因无法由符合条件的人员担任见证人的,应当在笔录中注明情况,并对相关活动进行录像。

本院认为,因涉案的发文信息涉及诋毁国家党政制度,由见证人在场不可避免会造成不必要的二次传播,属于《规定》中的“客观原因”范畴。在案的远程勘验工作记录中已对上述情况进行了记载和说明,同时对远程勘验的全过程进行了同步屏幕录像,并设置了校验码以供核验,能够保证远程勘验过程及提取数据的真实性,故本案的远程勘验不具有《规定》第28条“影响电子数据真实性”的情形,可以作为定案的依据。

对上诉人及辩护人提出“所发内容属于言论自由范畴以及网络平台不是我国寻衅滋事罪中的公共场所”的相关意见,本院认为,言论自由是我国宪法规定的公民的一项基本权利,但是任何权利的行使都不得超出法律的边界。网络平台虽为虚拟空间,但其重要功能是人与人之间的交互,与现实社会密不可分,在网络空间的行为也必将映射、影响到现实社会中来,网络空间和网络秩序属于公共场所和公共秩序的一种形态,上诉人朱承志长期在境外网络平台上大量散布涉及国內重大事件、严重损害国家形象、严重危害国家利益的虚假信息,起哄闹事,混淆视听,已远超言论自由的范畴,可以认定造成公共秩序严重混乱。

本院认为,原审判决认定事实清楚,证据确实、充分,适用法律准确,量刑适当,审判程序合法,上诉人的上诉理由及辩护人的辩护意见不能成立,不予采纳。江苏省苏州市人民检察院检察员的书面意见正确,应予支持。依照《中华人民共和国刑事诉讼法》第二百三十六条第一款第(一)项之规定,裁定如下:

驳回上诉,维持原判。本裁定为终审裁定。

审判长    贾赞
审判员    王美新
审判员    王浩

二00年十二月十九日

本往与原本该对无异

书记员    沈琦
 

The 7.09 Prosecutions: Yu Wensheng Criminal Judgment

Intermediate Court of Xuzhou, Jiangsu

Criminal Judgment

(2019) Su 03 Criminal First Instance No. 201

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Translator's Summary: The court found Yu, a lawyer who represented Wang Quanzhang, guilty on the grounds that he "published open letters on the Internet through 'Twitter' and 'Facebook' to attack the State regime and the socialist system. He distorted and fabricated facts about, and sensationalized, hot-button domestic incidents in the name of 'rights defense.' He accepted foreign funds and interviews many times, denied the leadership of the Communist Party of China, denigrated China's governmental and judicial agencies, defamed China's rule of law as being in retreat and human rights as deteriorating, intentionally provoked people who did not know the truth to hate China's current political system, and incited subversion of China's State regime and the overthrow of the socialist order."
The public prosecution agency was the People's Procuratorate of Xuzhou.
 

****

Defendant Yu Wensheng, male, born [INTENTIONALLY DELETED], 1967, residential ID No. [INTENTIONALLY DELETED], Han ethnicity, undergraduate degree, unemployed, residing in [INTENTIONALLY DELETED], Shijingshan District, Beijing. On January 20, 2018, he was detained by the Public Security Bureau of Beijing, Shijingshan Division on suspicion of committing the crime of obstructing an official in the exercise of their duty. On January 24, 2018, he was taken into criminal detention by the Public Security Bureau of Tongshan District, Xuzhou on suspicion of committing the crime of inciting subversion of state power. On the 27th of that month he was ordered placed under residential confinement at a designated location. On April 19, 2018, the People's Procuratorate of Xuzhou authorized his arrest on suspicion of committing the crimes of inciting subversion of state power and obstructing an official in the exercise of their duty. On the same day the Public Security Bureau of Xuzhou carried out the arrest. He is currently being held in detention at the Xuzhou Detention Center.

Defense counsel Zhao Qiang is a lawyer at the Jiangsu Pengcheng Law Firm.

Defense counsel Yue Song is a lawyer at the Jiangsu Qianlong Law Firm.

In the Xu Procuratorate Prosecution Criminal Indictment (2019) No. 10 indictment, the People's Procuratorate of Xuzhou charged defendant Yu Wensheng with committing the crime of inciting subversion of state power, and filed a public prosecution with this Court. Following the Supreme People's Court's designation of jurisdiction, after this Court opened and docketed the case, on February 11, 2019, it formed a collegial panel in accordance with the law, and on May 9, 2019 tried this case in open court. The People's Procuratorate of Xuzhou assigned Procurator Deputy Director Bao Shuhua, and Procurators Li Qingquan and Rong Hui to appear in court in support of the public prosecution, and defendant Yu Wensheng and his defense counsels Zhao Qiang and Yue Song appeared in court to participate in the proceedings.

During the trial, an extension of time for the trial in this case was granted by the High People's Court of Jiangsu and the Supreme People's Court in accordance with the law. It was also researched by this Court's adjudicative committee. The trial has now concluded.

The People's Procuratorate of Xuzhou charged: Defendant Yu Wensheng, having been affected by the influence of the infiltration of anti-China forces, gradually formed the idea of subverting the State regime and overthrowing the socialist order. Between 2014 and January 2018, Yu Wensheng published open letters on the Internet through "Twitter" and "Facebook" to attack the State regime and the socialist system. He distorted and fabricated facts about, intervened in, and sensationalized sensitive domestic incidents in the name of "rights defense." He accepted foreign funds and interviews, discredited Party and State leaders, denied the leadership of the Communist Party of China, denigrated governmental and judicial agencies, defamed the rule of law as being in retreat and human rights as deteriorating, and incited subversion of China's State regime and the overthrow of the socialist order. The specific facts are described as follows:

1. From July 2014 to 2017, when defendant Yu Wensheng was practicing in Beijing Daoheng Law Firm he acted in several "Falun Gong" cases. Knowing that "Falun Gong" was a cult organization, Yu Wensheng gave interviews to the foreign media outlets "New Tang Dynasty" and "Voice of Hope," and publicly denied the cult nature of "Falun Gong," advocating on its behalf and portraying it in a positive light, and smearing China's persecution of Falun Gong."

2. From July 2015 to August 2017, while the Tianjin judiciary was, in accordance with the law, dealing with the case of lawyers Wang Yu, Wang Quanzhang and others who were suspected of inciting subversion of state power, defendant Yu Wensheng fabricated false facts about the judiciary's "illegal" handling of the case and published them via "WeChat," "Twitter," "Facebook" and other channels, maliciously denigrating China's judiciary.

3. Defendant Yu Wensheng joined the WeChat group of the China Human Rights Lawyers Group in 2014, and in 2015, 2016, and 2017 Yu Wensheng was interviewed three times by foreign media outlets such as "Radio Free Asia" and "New Tang Dynasty" in his capacity as the interview contact of that WeChat group, making false claims that China "has no legal order," and that "the rule of law is in retreat" and "human rights are in retreat," thereby distorting the current status of rule of law in China.

4. From 2015 to 2017, defendant Yu Wensheng used "Twitter" and gave interviews to foreign media outlets to fabricate false statements that he was on "death row" and attacked China's governmental and judicial agencies.

5. From 2014 to 2018, defendant Yu Wensheng gave interviews several times to foreign media outlets such as "Radio Free Asia" and "Voice of America" in which he smeared the government's image and rejected China's political system and legal system. During this period, Yu Wensheng received funding from foreign organizations many times.

6. On the afternoon of October 18, 2017, defendant Yu Wensheng's "Lawyer Yu Wensheng's Open Letter" was posted on foreign websites such as "Facebook" and "Twitter." It denigrated Party and State leaders, and rejected the Party's leadership. The following morning, Yu Wensheng deleted the posts after being interviewed by the Justice Bureau of Shijingshan District, Beijing. On January 16, 2018, Yu Wensheng once again posted the article on "Facebook" and "Twitter." In the early morning of January 18, 2018, Yu Wensheng concocted the "Yu Wensheng's Open Letter on a Proposal to Amend the Constitution" and published it on "Facebook" and "Twitter," rejecting the organizational form of China's existing regime and the leadership of the Party and the socialist system. As of February 1, 2018, the aforementioned two articles were retweeted and liked by hundreds of people, and were reposted and disseminated by many foreign websites such as "Bannedbook.org," "wqw2010.blogspot.com," and "Boxun.com.

In order to prove the aforementioned charged facts, the public prosecution agency provided documentary evidence including the articles published by defendant Yu Wensheng that incited subversion of state power, and a detailed record of bank cards receiving foreign funding; testimony of witnesses Sha Lin, Chen Min, Ji Aihua and others; defendant Yu Wensheng's statement; the voiceprint forensic opinion produced by the Public Security Office of Jiangsu's Material Forensics Center; the remote crime scene investigation, investigation experiments and other records produced by the Public Security Bureau of Xuzhou; audio-visual materials of Yu Wensheng giving interviews to foreign media outlets collected by the Public Security Bureau of Xuzhou, and electronic data.

The People's Procuratorate of Xuzhou maintains that defendant Yu Wensheng used the spreading of rumors, defamation, and other means to incite subversion of state power and the overthrow of the socialist order abroad, that his actions constitute the commission of an offense under the provisions of Article 105(2) of the "Criminal Law of the People's Republic of China," and he should be subject to criminal liability for inciting subversion of state power. At the same time they point out that the subjective malice of defendant Yu Wensheng's subversion of state power was relatively significant, the circumstances of the crime were malicious and involved resisting arrest and violence towards civil police, and in accordance with the law should be subjected to severe punishment.

Defendant Yu Wensheng did not raise any objections to the charged criminal facts and offense, pleaded guilty and repented in court and requested leniency.

The main defense opinions put forward by the defense counsels were: After being taken into police custody Yu Wensheng made truthful statements about the criminal facts and spoke openly about the circumstances. From the time he was taken into police custody through the trial Yu Wensheng showed a good attitude in pleading guilty and repenting in court. They requested leniency.

It was ascertained at trial that, over a long period of time defendant Yu Wensheng, having been affected by the influence of the infiltration of anti-China forces, gradually formed the idea of subverting China's State regime and overthrowing the socialist order. Between 2014 and January 2018, Yu Wensheng published open letters on the Internet through "Twitter" and "Facebook" to attack the State regime and the socialist system. He distorted and fabricated facts about, and sensationalized, hot-button domestic incidents in the name of "rights defense." He accepted foreign funds and interviews many times, denied the leadership of the Communist Party of China, denigrated China's governmental and judicial agencies, defamed China's rule of law as being in retreat and human rights as deteriorating, intentionally provoked people who did not know the truth to hate China's current political system, and incited subversion of China's State regime and the overthrow of the socialist order. The specific facts are described as follows:

I. From July 2014 to 2017, defendant Yu Wensheng, knowing that "Falun Gong" was a cult organization, gave many interviews to the foreign media outlets "New Tang Dynasty" and "Voice of Hope," and publicly denied the cult nature of "Falun Gong," flagrantly advocated on its behalf and portrayed it in a positive light, denigrated China's laws and policies, smeared the image of the government, and vainly attempted to incite subversion of China's State regime.

The aforementioned facts are confirmed by evidence submitted by the public prosecution agency and cross-examined in court, and the following evidence is hereby confirmed by this Court:

1. The article and audio of the interview Yu Wensheng gave to the foreign media outlet "New Tang Dynasty" on September 13, 2016 retrieved by the public security agency through remote crime scene investigation and the text material prepared based on the audio signed and confirmed by Yu Wensheng proved: Yu Wensheng gave an interview to New Tang Dynasty, saying that "The authorities' suppression of Falun Gong for 17 years is completely wrong and it is a political persecution. Now the behavior of the police, procuratorate, and judiciary is a crime."

2. The article and audio of the interview Yu Wensheng gave to the foreign media outlet "Voice of Hope" on December 15, 2016 (with the title"Innocent Falun Gong Practitioners are Being Released in Many Places, the Persecution has Reached the End of the Road") retrieved by the public security agency through remote crime scene investigation, and the text material prepared based on the audio signed and confirmed by Yu Wensheng proved: Yu Wensheng gave an interview to the "Voice of Hope," and when the "Voice of Hope" said "Some people continue to suppress Falun Gong", Yu Wensheng responded, "The police, prosecutors, and law enforcement agencies are pushing each other on the Falun Gong issue. This is a good thing. After all, some people are starting to wake up."

3. The article and audio of the interview Yu Wensheng gave to the foreign media outlet "New Tang Dynasty" on October 4, 2017 (with the title "People in Mainland China Respectfully Wish Master Li Hongzhi and Students a Happy Mid-Autumn Festival") retrieved by the public security agency through remote crime scene investigation and the text material prepared based on the audio signed and confirmed by Yu Wensheng proved: Yu Wensheng gave an interview to "New Tang Dynasty" and said "The Falun Gong group is a very kind-hearted group, which only brings benefits to society, it is not harmful."

4. Defendant Yu Wensheng's statement: The statements he made when he gave interviews to "New Tang Dynasty" and "Voice of Hope" did in fact deny "Falun Gong's" cult qualities had no basis in truth, was an attack on China's legal system, confused public opinion, and made more people dissatisfied with the Party and government and China's legal system. He utilized foreign media outlets because they can incite more people to believe that the Party and government's suppression of "Falun Gong" is wrong, and thereby attack and smear the Party and Government.

II. From July 2015 to August 2017, while the Tianjin judiciary was, in accordance with the law, dealing with the case of lawyers Wang Yu, Wang Quanzhang and others who were suspected of inciting subversion of state power, defendant Yu Wensheng fabricated false facts such as "Wang Yu has been forcibly disappeared and his family has not received any legal documentation," "the public security agency is conducting mass arrests and terrorizing lawyers, its a violation of law and order," and " "the judiciary is illegally blocking meetings." He used "Twitter" and "Facebook" to post, denigrating China's judiciary and intentionally inciting individuals who did not know the truth to become dissatisfied and confrontational, all in order to achieve the goal of inciting subversion of China's State regime.

The aforementioned facts are confirmed by evidence submitted by the public prosecution agency and cross-examined in court, and the following evidence is hereby confirmed by this Court:

1. The article about sending a complaint letter and the article and images regarding the lawyer Wang Quanzhang posted by Yu Wensheng on his "Twitter" account on August 1, 2015 and March 6, 2017, and the article about his lawyer's professional annual inspection and Wang Quanzhang's case he posted on his "Facebook" account on July 29, 2017 retrieved by the public security agency through remote crime scene investigation proved: In an effort to sensationalize the Wang Quanzhang and other cases, Yu Wensheng concocted a complaint letter saying that "The Ministry of Public Security violated the law and government order, forcibly disappearing Chinese citizens, creating an atmosphere of terror, and committing evil acts against humanity." It was mailed to multiple agencies and spread through "Twitter."

2. The "Yu Wensheng and His Wife Xu Yan: Statement on the Criminal Detention of Lawyer Wang Yu" published on the foreign website "wqw2010.blogspot.com" on July 19, 2015 and the electronic version of that "Statement" extracted from the computer of Yu Wensheng, the article "The Family Members and Lawyers of the Parties Implicated in the 709 Mass Arrests Went to the Tianjin Hexi Detention Center to Demand a Meeting, Terminate the Cases, and Release the People" published on "wqw2010.blogspot.com" on January 8, 2016, and the complaint letter regarding Yu Wensheng's handling of the 709 cases sent to 21 agencies published on "wqw2010.blogspot.com" and "New Tang Dynasty" on March 7 and 8, 2017, respectively, retrieved by the public security agency through remote crime scene investigation proved: Yu Wensheng's wife issued a statement slandering China Central Television and other media for "rendering judgment before the trial;" Yu Wensheng sent a complaint letter to multiple agencies regarding the Wang Quanzhang case, and used foreign media outlets such as "wqw2010.blogspot.com"and "New Tang Dynasty" to sensationalize it.

3. The article and audio of the interview Yu Wensheng gave to the foreign media outlet "Mirror TV Rule of Law Channel" on August 20, 2017 retrieved by the public security agency through remote crime scene investigation and the text material prepared based on the audio signed and confirmed by Yu Wensheng proved: Yu Wensheng was interviewed by the "Mirror TV Rule of Law Channel" and said "The accusation is that they are inhuman. In fact, as far as fighting a counterattack against the 709 is concerned, it was really me who started the actual counterattack. I was the first person."

4. Defendant Yu Wensheng's statement: On July 19, 2015, he and his wife Xu Yan issued a statement for Wang Yu, condemning China Central Television and Xinhua Net, saying that they had stigmatized lawyer Wang Yu and others by rendering judgment before the trial. On July 31, 2015, they sent a statement to the National People's Congress, the State Council, etc. mailing a complaint letter, accusing the Ministry of Public Security of conducting mass arrests, intimidating lawyers and citizens, rendering judgment before the trial, and acting in an inhuman manner that violated the law and government order. They posted the accusation information on the "Twitter" website. The contents were all his distorted facts, fabricated out of nothing, and the purpose was to arouse people's dissatisfaction with the public prosecutors and the law. His interview with the "Mirror TV Rule of Law Channel" involved the 709 Wang Quanzhang case, and included content about dissatisfaction with China's legal system.

III. Defendant Yu Wensheng joined the "China Human Rights Lawyers Group" WeChat group in 2014, and for three years from 2015 to 2017 Yu Wensheng was interviewed by foreign media outlets such as "Radio Free Asia" and "New Tang Dynasty" in his capacity as the interview contact of that WeChat group, and he repeatedly made false claims that "There is no legal order in China, and inhuman oppression is the main problem," "China's legal system and human rights are regressing, and human rights in China are deteriorating, and human rights violations are on the increase," distorting the status of the rule of law in China, smearing the image of the Party and government, denying the achievements of socialist construction, and intending to overthrow China's current system.

The aforementioned facts are confirmed by evidence submitted by the public prosecution agency and cross-examined in court, and the following evidence is hereby confirmed by this Court:

1. The article and audio of the interview Yu Wensheng gave to the foreign media outlet "Radio Free Asia" on September 13, 2015 retrieved by the public security agency through remote crime scene investigation and the text material prepared based on the audio signed and confirmed by Yu Wensheng proved: When Yu Wensheng gave an interview he said: "What we are facing is inhuman suppression without legal order by the authorities."

2. The article and audio of the interview Yu Wensheng gave to the foreign media outlet "Radio Free Asia" on September 14, 2016 retrieved by the public security agency through remote crime scene investigation and the text material prepared based on the audio signed and confirmed by Yu Wensheng proved: When Yu Wensheng gave an interview he said: "The rule of law in China has not progressed, on the contrary it is increasingly in retreat."

3. The article and audio of the interview Yu Wensheng gave to the foreign media outlet "New Tang Dynasty" on September 14, 2017 retrieved by the public security agency through remote crime scene investigation and the text material prepared based on the audio signed and confirmed by Yu Wensheng proved: When Yu Wensheng gave an interview he said:"The authorities are the ones undermining the rule of law."

4. The "Situation Explanation" produced by the Ministry of Civil Affairs proved: The Ministry of Civil Affairs has not registered the "China Human Rights Lawyers Group" or the "China Human Rights Lawyers Service Group."

5. Defendant Yu Wensheng's statement: Around January 2014, he joined the "China Human Rights Lawyers Group" WeChat group and gave many interviews to foreign media regarding the "Chinese Human Rights Lawyers Group." The statements he made were not based on facts, they distorted facts, spread rumors, and defamed, attacked, and smeared the government.

IV. From 2015 to 2017, defendant Yu Wensheng intentionally fabricated false facts that a "death row" system existed in China, used "Twitter" and accepted interviews with foreign media outlets to spread false statements that he was being held in custody on "death row," and attacked and smeared China's governmental and judicial agencies, intending to incite subversion of China's State regime.

The aforementioned facts are confirmed by evidence submitted by the public prosecution agency and cross-examined in court, and the following evidence is hereby confirmed by this Court:

1. The article and audio of the interview Yu Wensheng gave to the foreign media outlet "Mirror TV Rule of Law Channel" on August 20, 2017 (with the title "Lawyer Without a Firm Yu Wensheng – There is No Safe Place in China"), retrieved by the public security agency through remote crime scene investigation and the text material prepared based on the audio signed and confirmed by Yu Wensheng proved: Yu Wensheng gave an interview to "Mirror TV Rule of Law Channel" and said: "I was imprisoned on death row for 61 days, and I used everything that was used by death row prisoners. Anyone who was put on death row would have succumbed."

2. Yu Wensheng's personal signature "Twitter" account retrieved by the public security agency through remote crime scene investigation proved: Yu Wensheng made "death row" his personal signature content.

3. The "Situation Explanation" produced by the Beijing No. 1 Detention Center proved: In 2014, Yu Wensheng was held in custody on suspicion of disturbing the peace at the Beijing No. 1 Detention Center, and that Center does not have any dedicated rooms specifically to holding condemned criminals in custody.

4. Defendant Yu Wensheng's statement: Foreign media outlets interviewed him many times. He fabricated the issue of "death row" and spread it to attack China's judiciary, and incite people’s dissatisfaction with the Party and government. He fabricated the existence of a "death row," and it was without factual basis.

V. From 2014 to 2018, defendant Yu Wensheng accepted interviews several times with foreign media outlets such as "Radio Free Asia," "Voice of America" and "New Tang Dynasty," during which he used means such as spreading rumors and defamation to spread statements that smeared the Party's and the government's image and rejected China's political system and legal system, all to achieve the goal of inciting subversion of China's State power and socialist system through international networks. During this period, Yu Wensheng accepted funding from foreign organizations such as Ireland's Front Line Defenders many times.

The aforementioned facts are confirmed by evidence submitted by the public prosecution agency and cross-examined in court, and the following evidence is hereby confirmed by this Court:

1. The article and audio of the interview Yu Wensheng gave to the foreign media outlet "Radio Free Asia" on September 26, 2016 (with the title "The Ministry of Justice Issued a document to Ban Lawyers from Creating Pressure from Public Opinion, Triggering Strong Backlash from the Legal Profession") retrieved by the public security agency through remote crime scene investigation and the text material prepared based on the audio signed and confirmed by Yu Wensheng proved: Yu Wensheng gave an interview to "Radio Free Asia" and said:"The Law Firm Management Measures are like the new National Security Law and Cyber-Security Law. They are all draconian laws and further oppress human rights lawyers."

2. The article and audio of the interview Yu Wensheng gave to the foreign media outlet "Voice of America" on September 21, 2017 (with the title "VOA Connects with Yu Wensheng: Beijing's Two Human Rights Law Firms Have Been Repeatedly Investigated, Is This a New Wave of Suppression of Human Rights Lawyers?") retrieved by the public security agency through remote crime scene investigation and the text material prepared based on the audio signed and confirmed by Yu Wensheng, the testimony of witnesses Chen Min and Peng Mei, and documentary evidence of the 2017 investigation records of the Beijing Shijingshan District Justice Bureau and the Xicheng District Justice Bureau proved: In 2017 the Beijing Shijingshan District Justice Bureau and the Xicheng District Justice Bureau conducted inspections of many law firms such as the Beijing Mo Shaoping Law Firm and the Daoheng Law Firm, Yu Wensheng gave an interview to the "Voice of America" saying this inspection is a targeted suppression of the aforementioned two law firms, and that China's human rights situation continues to deteriorate, and the rule of law continues to deteriorate.

3. The article and audio of the interviews Yu Wensheng gave to the foreign media outlets "New Tang Dynasty" and "Radio Free Asia" on January 17 and 18, 2018 retrieved by the public security agency through remote crime scene investigation and the text material prepared based on the audio signed and confirmed by Yu Wensheng, the documentary evidence Proposal of the Beijing Shijingshan District Justice Bureau on the Cancellation of Yu Wensheng's Lawyer Professional Certificate, and the Decision of the Beijing Municipal Justice Bureau Canceling Yu Wensheng's Lawyer Professional Certificate proved: After his lawyer’s professional certificate was canceled in accordance with the law he was not employed by a law firm for six months, Yu Wensheng accepted interviews with "New Tang Dynasty" and "Radio Free Asia" and said "The cancellation of the lawyer’s certificate can only prove the regime is a rogue regime, and I will not be silent on this," and "China's political parties have not been legally registered and have no legal status. All political parties are illegal organizations."

4. Documentary evidence including an Ireland Front Line Defenders application for funding confirmation form signed and confirmed by Yu Wensheng, Yu Wensheng's Agricultural Bank of China account's receipt of a Western Union remittance from Ireland, a "receipt" for RMB 20,000 from the Hong Kong Human Rights Lawyers Concern Group received by Yu Wensheng for acting as counsel in the Zhu Yingdi case collected from Yu Wensheng's laptop computer, the chat records with Xiaojun VAL from the SKYPE account used by Yu Wensheng, transaction details of Yu Wensheng's China Construction Bank bank card, Xu Yan's immigration records from 2016 to 2017, and Yu Wensheng's statement proved: Yu Wensheng accepted financial assistance from the "Ireland Front Line Defenders" organization many times.

5. Defendant Yu Wensheng's statement: When he gave an interview to "Radio Free Asia" he mentioned that the National Security Law, Charity Law, and NGO related laws and regulations are all evil laws, and the new administrative measures were intended to suppress human rights lawyers, and China does not have human rights. This was actually him smearing the Party and the government, expressing his dissatisfaction with the Party and the government. He also said that all political parties in China are illegal organizations, which was a rejection of China's existing Party system. When he gave an interview to the "Voice of America" he said law firms would be purged before the 19th National Congress, and there will be no progress in human rights after the 19th National Congress. He gave an interview to "New Tang Dynasty" and said the cancellation of his lawyer's license was a way for the authorities to suppress him, which can only prove that this regime is a rogue regime.

VI. On the afternoon of October 18, 2017, defendant Yu Wensheng's "Lawyer Yu Wensheng's Open Letter" was posted on "Facebook" and "Twitter." It denigrated Party and State leaders, and rejected the Party's leadership. On January 16, 2018, Yu Wensheng once again posted that article on "Facebook" and "Twitter." In the early morning of January 18, 2018, Yu Wensheng concocted the "Yu Wensheng's Open Letter on a Proposal to Amend the Constitution" and published it on "Facebook" and "Twitter," rejecting the organizational form of China's existing regime and the leadership of the Party and the foundations of the socialist system. As of February 1, 2018, the aforementioned two articles were retweeted and liked by hundreds of people, and were reposted and disseminated by many foreign websites such as "Bannedbook.org," "wqw2010.blogspot.com," and "Boxun.com.

The aforementioned facts are confirmed by evidence submitted by the public prosecution agency and cross-examined in court, and the following evidence is hereby confirmed by this Court:

1. An article with the title "Lawyer Yu Wensheng's Open Letter" posted by Yu Wensheng on his Twitter and Facebook accounts on January 16, 2018, and an article with the title "Yu Wensheng's Open Letter on a Proposal to Amend the Constitution" posted by Yu Wensheng on his Twitter and Facebook accounts on January 18, 2018, which were reported on over 10 foreign websites including "wqw2010.blogspot.com," "Boxun.com," and "Bannedbook.org," and were retrieved by the public security agency through remote crime scene investigation proved: Yu Wensheng published two open letters via "Twitter" and "Facebook," which were reposted by many foreign websites.

2. The electronic evidence inspection records of the public security agency on Yu Wensheng’s two laptop computers, and the utilization investigation experiments of the "Twitter" and "Facebook" account registration proved that the "Twitter" and "Facebook" accounts that published statements that incited subversive were used by Yu Wensheng himself.

3. Testimony of witnesses Gao Weihua, Ji Aihua, Chen Min, and Sha Lin, staff of the of Shijingshan District Justice Bureau, and Lu Kai and Wang Weicivil police at the Public Security Bureau of Beijing, Shijingshan Division, audio and video recordings and written records of Shijingshan District Justice Bureau's interview with Yu Wensheng, and Yu Wensheng's Commitment Letter proved:On October 18, 2017 Yu Wensheng was interviewed by the Shijingshan District Justice Bureau, and admitted he posted the aforementioned opened letters.

4. Defendant Yu Wensheng's statement: At about two o'clock in the afternoon on October 18, 2017, he used his mobile phone to compose the article "Lawyer Yu Wensheng's Open Letter" at his home, and used wall-climbing software to post the article on "Facebook" and "Twitter." He wrote that since the 18th National Congress of the Communist Party of China, unjust imprisonment and corruption have been rampant. This was a rejection of the 97-year history of the founding of the Communist Party of China and the 68-year history of the founding of the government, and was a kind of making something out of nothing. The Lei Yang Incident, Qing'an Incident, and the suppression of the New Citizens that were listed were are all distortions of the facts. The goal was to reject China's existing system and smear the Party and the government. Regarding the articles on amending the Constitution on Facebook and Twitter, the purpose of proposing constitutional amendments was to deny the leadership of the Communist Party of China, deny the system of multi-party cooperation under the leadership of the Communist Party of China, deny the Party's leadership of the army, and deny China's electoral system.

In order to prove the charged criminal facts, the public prosecution agency submitted comprehensive evidence to this Court including evidentiary materials such as defendant Yu Wensheng's statement regarding his subjective intent to incite subversion of state power, Yu Wensheng's Statement of Repentance and remote crime scene investigation records, electronic evidence investigation records, voice identification forensic opinions, the description of the case resolution process, audio and video recording materials of Yu Wensheng's apprehension, testimony of witnesses Liu Yang, Fan Jingsheng, and other civil police officers, search records, list of seized items, and Permanent Residential Population Information Inquiry Forms, all of which were produced and examined in court, and their probative value is confirmed by this Court.

This Court finds defendant Yu Wensheng incited subversion of state power and the overthrow of the socialist order by spreading rumors and defamation and other means, his actions constitute the crime of inciting subversion of state power, the facts charged by the People's Procuratorate of Xuzhou that defendant Yu Wensheng committed the crime of inciting subversion of state power are clear, the evidence is reliable and copious, and the charged offense is established. The opinion proffered by the public prosecution agency the subjective malice was relatively significant, the circumstances of the crime were malicious and involved resisting arrest and violence towards civil police, and in accordance with the law should be subjected to severe punishment is sustained.

The opinion proffered by defense counsel that defendant Yu Wensheng was able to truthfully state criminal facts at all stages from investigation and pre-prosecution examination through the trial, has been frank about the circumstances, and showed a good attitude in pleading guilty and repenting in court, and in accordance with the law he should be shown leniency, is established.

Based on the principle that the punishment should be proportional to the crime and a comprehensive consideration of the criminal facts, nature, circumstances, and the degree of harm to society in this case, in accordance with the provisions of Articles 105(2), 55(1), 56(1), 67(3), and 64 of the "Criminal Law of the People's Republic of China," the judgment is as follows:

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

(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 April 19, 2018 to March 1, 2022.)

2. The relevant items used in the commission of the crime seized in this case shall be confiscated in accordance with the law and turned over to the national treasury.

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 Jiangsu. A written appeal should be submitted with one original and two copies of the appeal brief.

Chief Adjudicator        Qiu Xuefeng
Adjudicator            Liu Mingwei
Adjudicator            Sun Xi

June 17, 2020

Judge's Assistant        Li Tongda
Clerk                           Wang Yan 

江苏省徐州市中级人民法院


刑事判决书


(2019)苏03刑初20号


公诉机关江苏省徐州市人民检察院。


被告人余文生,男,1967年[INTENTIONALLY DELETED]生,居民身份证号码[INTENTIONALLY DELETED],汉族,本科文化,无业,住北京市石景山区[INTENTIONALLY DELETED],因涉嫌犯妨害公务罪,2018年1月20日被北京市公安局石景山分局刑事拘留;因涉嫌犯煽动颠覆国家政权罪,2018年1月24日被徐州市铜山区公安局刑事拘留,当月27日被该局指定居所监视居住;因涉嫌犯煽动颠覆国家政权罪,妨害公务罪,2018年4月19日经江苏省徐州市人民检察院批准逮捕,同日由徐州市公安局执行逮捕,现羁押于徐州市看守所。


辩护人赵强,江苏彭城律师事务所律师。


辩护人岳松,江苏乾隆律师事务所律师。


江苏省徐州市人民检察院以徐检诉刑诉[2019]10号起诉书指控被告人余文生犯煽动颠覆国家政权罪,向本院提起公诉。经最高人民法院指定管辖,本院2019年2月11日立案受理后,依法组成合议庭,于2019年5月9日公开开庭审理了本案,江苏省徐州市人民检察院指派副检察长鲍书华,检察员李清泉,荣辉出庭支持公诉,被告人余文生及其辩护人赵强,岳松到庭参加诉讼。审理期间,本案经江苏省高级人民法院、最高人民法院批准,依法延长审限,并经本院审判委员会研究,现已审理终结。
江苏省徐州市人民检察院指控:被告人余文生受反华势力渗透影响,逐渐形成颠覆我国国家政权,推翻社会主义制度的思想,2014年至2018年1月间,余文生通过“推特”“脸书”等途径在互联网发布攻击国家政权和社会主义制度的公开信;以“维权”为名,歪曲,捏造事实,插手,炒作国内敏感案事件;接受境外资助和采访,抹黑党和国家领导人,否定中国共产党的领导,诋毁政府和司法机关,诽谤法治倒退,人权恶化,煽动颠覆我国国家政权,推翻社会主义制度,具体事实分述如下:


一、2014年7月至2017年,被告人余文生在北京市道衡律师事务所执业期间,代理多起“法轮功”案件,余文生在明知“法轮功”为邪教组织的情况下,接受“新唐人”“希望之声”等境外媒体采访,公开否定“法轮功”的邪教性质,对其进行宣扬和美化,污蔑中国迫害“法轮功”。


二、2015年7月至2017年8月,被告人余文生在天津市司法机关依法办理律师王宇,王全璋等人涉嫌煽动颠覆国家政权案期间,捏造司法机关“违法”办案等虚假事实,通过“微信”“推特”“脸书”等途径发布,恶意诋毁我国司法机关。


三、2014年被告人余文生加入中国人权律师团微信群,2015、2016、2017年余文生以该微信群采访联系人的身份三次接受“自由亚洲”“新唐人”等境外媒体采访,妄称中国“毫无法律秩序法治倒退人权倒退”,歪曲我国法治现状。


四、2015年至2017年,被告人余文生通过“推特”和接受境外媒体采访,捏造自己被羁押在“死囚牢”的不实言论,攻击我国政府和司法机关。


五、2014年至2018年,被告人余文生多次接受“自由亚洲”“美国之音”等境外媒体的采访,抹黑政府形象,否定我国政治制度和法律制度。期间,余文生多次接受境外组织资助。


六、2017年10月18日下午,被告人余文生地的“余文生律师的公开信”,在“脸书”“推特”等境外网站上发布,诋毁党和国家领导人,否定党的领导。次日凌晨,余文生被北京市石景山区司法局约谈后删帖,2018年1月16日,余文生再次将该文在“脸书”“推特”上发布,2018年1月18日凌晨,余文生炮制“余文生关于建议修改宪法的公开信”,在“脸书”“推特”上发布,否定我国现有政权组织形式,否定党的领导和社会主义制度。


截至2018年2月1日,上述两篇文章被数百人转推点赞,被“参与网”“维权网“博讯网”等多家境外网站转起,传播。


为证明上述指控事实,公诉机关提供了被告人余文生发表的煽动颠覆国家政权的文章,接受境外资助的银行卡明细记录等书证,证人沙霖,陈敏、纪爱华等人的证言,被告人余文生的供述,江苏省公安厅物证鉴定中心出具的声纹鉴定意见,徐州市公安局出具的远程勘验、侦查实验等笔录,徐州市公安局提取的余文生接受境外媒体采访的视听资料,电子数据等证据。


江苏省徐州市人民检察院认为,被告人余文生以造谣,诽谤等方式在境内外煽动颠覆国家政权,推翻社会主义制度,其行为触犯了《中华人民共和国刑法》第一百零五条第二款的规定,应当以煽动颠覆国家政权罪追究其刑事责任,同时提出被告人余文生煽动颠覆国家政权主观恶性较大,犯罪情节恶劣、为抗拒抓捕又暴力致伤民警,依法应予严惩。


被告人余文生对指控的犯罪事实及罪名均不持异议,当庭认罪悔罪,请求从轻处罚。


辩护人提出的主要辩护意见是:余文生到案后如实供述了法犯罪事实,具有坦白情节;余文生归案后直至庭审认罪悔罪态度好。请求从轻处罚。


经审理查明,被告人余文生长期受反华势力渗透影响,逐渐形成颠覆我国国家政权,推翻社会主义制度的思想。2014年至2018年1月间,被告人余文生通过“推特”“脸书”等途径,在互联网发布攻击我国国家政权和社会主义制度的公开信;以“维权”为名,歪曲、捏造事实,炒作社会热点案事件;多次接受境外媒体采访,否定中国共产党的领导,诋毁我国政府和司法机关,诽谤我国法治倒退,人权恶化,意图挑起不明真相的人仇视我国现行政治制度,煽动颠覆我国国家政权,推翻社会主义制度。具体犯罪事实分述如下:


一、2014年7月至2017年,被告人余文生在明知“法轮功”系邪教组织的情況下,多次接受“新唐人”“希望之声”等境外媒体采访,公开否定“法轮功”邪教性质,公然宣扬和美化“法轮功”,诋毁国家法律政策,抹黑政府形象,妄图煽动颠覆我国国家政权。


上述事实,有公诉机关提交并经庭审举证、质证,本院予以确认的下列证据证实:


1.公安机关通过远程勘验调取的境外媒体“新唐人”2016年9月13日报道采访余文生的文章和音频、余文生签字确认的根据该音频整理的文字材料证明:余文生接受“新唐人”采访,称“当局对法轮功十七年来的打压是完全错误的,是政治迫害,现在公检法的行为是犯罪”。


2.公安机关通过远程勘验調取的境外媒体“希望之声”2016年12月15日报道采访余文生的文章和音频(题目为“多地无罪释放法轮功学员,迫害已穷途末路”),余文生签字确认的根据该音频整理的文字材料证明:余文生接受“希望之声”采访,针对“希望之声“称“有些人对法轮功还是继续打压”,余文生回应“公检法部门在法轮功问题上互相推透,是一件好事,毕竟有些人在觉醒”。


3.公安机关通过远程勘验取的境外媒体“新唐人2017年10月4日报道采访余文生的文章和音频(题目为“大陆民众恭祝李洪志大师和学员中秋快乐”),余文生签字确认的根据该音频整理的文字材料证明:余文生接受“新唐人”采访,称“法轮功群体是一个非常善良的群体,对社会只有益处,没有害处”。


4.被告人余文生供述:其接受“新唐人”“希望之声”采访时发表的相关言论实际上是否定“法轮功”的邪教性质,没有依据本实,是对中国法制的攻击,混淆视听,让更多的人对党和政府及中国法制产生不满,其通过境外媒体传播能煽动更多的人认为党和政府对“法轮功”的打压是错误的,进而攻击、抹黑党和政府。


二、2015年7月至2017年8月,被告人余文生在天津市司法机关依法办理王宇,王全璋等人涉嫌犯煽动颠覆国家政权罪一案期间,捏造“王宇被强迫失联,家人未收到任何法律文书”“公安机关大规模抓捕,恐吓律师,违法乱政”“司法机关违法阻止会见”等虚假事实,通过“推特”“脸书”等公开发布,诋毁我国司法机关,意图煽动不明真相人员产生不满和对抗,达到煽动颠覆我国国家政权的目的。


上述事实,有公诉机关提交并经庭审举证、质证,本院予以确认的下列证据证实:


1.公安机关通过远程勘验调取的余文生2015年8月1日,2017年3月6日在其“推特”账号上发表的关于寄发控告函的文章,2017年8月16日发表的关于关注王全璋律师的文章及配图,2017年7月29日在其“脸书”上发表的关于其律师职业年检及王全璋案件的文章证明:余文生为炒作王全璋等案,炮制控告函,称“公安部违法乱政,强迫中国公民失踪制造恐怖气氛,行反人类之恶行”,向多部门邮寄,并通过“推特”等传播。


2.公安机关通过远程勘验调取的境外网站“维权网”2015年7月19日刊登的《余文生,许艳夫妇:关于王宇律师被刑事扣留的声明》,从余文生电脑提取到该《声明》电子版,“维权网”2016年1月8日刊登的文章《709大抓捕当事人家属,律师前往天津河西看守所要求会见,撒案,放人》,“维权网”“新唐人”分别于2017年3月7日,8日对余文生就709案向21家单位寄发控告函进行的报造证明:余文生夫妇发表声明诬蔑中央电视台等媒体“未审先判”;余文生此王全璋案多家单位寄发控告信,并通过“维权网”“新唐人”等境外媒体炒作。


3.公安机关通过远程勘验调取的境外媒体“明镜电视法治台”2017年8月20日报道采访余文生的文章和音视频,余文生签字确认的根据该音视察整理的文字材料证明:余文生接受“明镜电视法治合”采访,称“控告他们反人类,实际上打向了709的反击战,真正的反击战等于是我开始的,我是第一人”。


4.被告人余文生供述:2015年7月19日,其与妻子许艳一起为王宇发声明,谴责中央电视台和新华网,说他们未审先判污名王宇律师等。2015年7月31日共向全国人大、国务院等邮寄控告信,控告公安部大规模抓捕,恐吓律师,公民,未审先判,违法乱政的反人类行为,并把控告的信息发送到“推特”网站,这些內容都是其歪曲事实,无中生有捏造的,目的是引起人民对公检法的不满。其接受“明镜电视法治台”采访,涉及到709王全璋案,还有对中国法制不满等内容。


三、2014年被告人余文生加入“中国人权律师团”微信群,2015至2017年余文生连续三年以该微信群采访联系人的身份,接受“自由亚洲电台”“新唐人”等境外媒体采访,多次妄称“中国现在毫无法律秩序,反人类的打压是面临的主要问题”“中国法制倒人权倒退人权在中国越来越恶化,侵犯人权事件越来越多”,歪曲我国法治现状,抹黑党和政府形象,否定社会主义建设取得的成果,意图源动推翻我国现行制度。


上述事实,有公诉机关提交并经庭审举证、质证,本院予以确认的下列证据证实:


1.公安机关通过远程勘验调取的境外媒体“自由亚洲电台”2015年9月13日报道采访余文生的文章和音频,余文生签字确认的根据该音频整理的文字材料证明:余文生接受采访时称“所面临的就是当局毫无法律秩序的,人类的打压”。


2.公安机关通过远程勘验调取的境外媒体“自由亚洲电台”2016年9月14日报道采访余文生的文章和音频、余文生签字确认的根据该音频整理的文字材料证明:余文生接受采访时称“中国的法治没有进步,而且越来越倒退”。


3.公安机关通过远程勘验调取的境外媒体“新唐人2017年9月14日报道采访余文生的文章和音频,余文生签字确认的根据该音频整理的文字材料证明:余文生接受采访时称:“当局是法治破坏者”。
4.民政部出具的《情况说明》证明:民政部未登记“中国人权律师团”“中国保障人权律师服务团”。


5.被告人余文生供述:大约2014年1月,其加入“中国人权律师团”微信群,就“中国人权律师团”因年献辞多次接受境外媒估采访,所发表的言论没有事实依据,是歪曲事实,造谣诽谤,攻击,抹黑政府。
四、2015年至2017年,被告人余文生故意捏造中国存在“死半”制度的虚假事实,通过“推特”和接受境外媒体采访的方式,发表其被羁押在“死囚牢”的不实言论,攻击抹黑政府和司法机关,意图煽动颠覆我国国家政权。


上述事实,有公诉机关提交并经庭审举证、质证,本院予以确认的下列证据证实:


1.公安机关通过远程勘验调取的境外媒体“明镜电视法治台”2017年8月20日报道采访余文生的音视频(题目为“无所律师余文生——在中国没有安全的地方”),余文生签字确认的根器该音视频整理的文字材料证明:余文生接受“明镜电视法治台”采访,称“我关死囚牢里61天,用的都是死囚用过的东西,只要进了死囚牢,任何人都屈服”。


2.公安机关通过远程勘验取的余文生“推特“账号个性签名证明:余文生将“死囚牢”作为其个性签名內容。


3.北京市第一看守所出具的《情况说明》证明:2014年余文生因涉嫌寻衅滋事被羁押在北京市第一看守所,该所未设立死刑犯专门羁押室。


4.被告人余文生供述:境外媒体多次对其进行采访,其编造“死囚牢”问题进行传播,攻击中国司法机关,煽动人民对党和政府不满,其是编造存在“死囚牢”,没有事实依据。


五、2014年至2018年,被告人余文生多次接受“自由亚洲电台”“美国之音”“新唐人”等境外媒体采访,在采访过程中以造谣、诽谤方式发表抹黑党和政府形象,否定我国政治制度和法律制度的言论,通过国际互联网传播达到煽动颠覆我国国家政权和社会主义制度的目的。期间,余文生多次接受“爱尔兰前线卫士”等组织的资助。


上述事实,有公诉机关提交并经庭审举证,质证,本院予以确认的下列证据证实:


1.公安机关通过远程勘验调取的境外媒体“自由亚洲电台“2016年9月26日报道采访余文生的文章和音频(题目为“司法部发文禁律师制造舆论压力,引发律界强烈反弹”)、余文生签字确认的根据该音频整理的文字材料证明:余文生接受“自由亚洲电台”采访,称“律师事务所管理办法像新的国安法,网络安全法,它们都属于恶法,是进一步打压人权律师”。


2.公安机关通过远程勘验调取的境外媒体“美国之音”2017年9月21日报道采访余文生的文章和音频(题目为“VOA连线余文生:北京两人权律所連查,对人权律师的新一波打压?"),余文生签字确认的根器读音類整理的文字材料,证人陈敏,彭妹的证言,书证北京市石景山区司法局、西城区司法局2017年检查记录证明:2017年北京市石景山区司法局、西城区司法局对北京莫少平律师事务所、道衡律师事务所等多家律所的行检查,余文生接受“美国之音”采访,称此次检查是对上述两律所的针对性打压,中国的人权状况继续恶化,法治继续恶化。


3.公安机关通过远程勘验调取的境外媒体“新唐人”“自由亚洲电台"2018年1月17日,18日分别报道采访余文生的文章和音频、余文生签字确认的根据上述音频整理的文字材料,书证北京市石景山区司法局关于注销余文生律师职业证的建议书,北京市司法局关于注销余文生律师毕业证书的决定证明:因过六个月未被律所聘用被依法注销律师执业证书后,余文生先后接受“新唐人”“自由亚洲电台”采访,称“律师证被注销只能证明这个政权是个流氓政权,我不会就此沉寂”“中国的政党没有经过法律登记,在法律上没有地位,所有政党都属于非法组织”。


4.书证由余文生签字确认的爱尔兰前线卫士申请资助确认单,余文生农行账户收自爱尔兰的西联汇款收汇单,从余文生笔记本电脑中提取的余文生代理朱瑛娣案获得香港维权律师关注組资助人民币2万元的“收条”,余文生用其SKYPE账号和小君VAL的聊天记录,余文生建行卡交易明细,许艳2016年至2017年出入境记录,余文生的供述证明:余文生多次接受“爱尔兰前线卫士”等组织的资助。


5.被告人余文生供述:其接受“自由亚洲电台”采访时提到国安法、慈善法,NGO方面的法律規定都是恶法,新的管理办法是对人权律师的打压,中国没有人权,这实际上是其对党和政府的抹黑,表达其对党和政府的不满;其还说中国所有的政党都是非法组织,是在否定中国现有的政党制度。其接受“美国之音”采访时称十九大之前会对律师事务所进行整肃,十九大之后人权不会有什么进步,其接受“新唐人”采访称其律师证被注销是当局打压的一种方式,只能证明这个政权是个流氓政权。


六、2017年10月18日下午,被告人余文生炮制“余文生律师的公开信”,诋毁我国党和国家领导人,否定党的领导,分别在“脸书”“推特”上发布,2018年1月16日,余文生再次将该文在“脸书”“推特”上发布,2018年1月18日凌晨,余文生炮制“余文生关于建议修改宪法的公开信”,否定我国现有政权组织形式,否定党的领导和社会主义根本制度,分别在“脸书”“推特”上发布,截至2018年2月1日,上述两篇文章被数百人转推点赞,被“参与网维权网“博讯网”等多家境外网站转载、传播。


上述事实,有公诉机关提交并经庭审举证、质证,本荒予以确认的下列证据证实:


1.公安机关通过远程勘验调取的余文生2018年1月16日分别在其“推特“脸书”账号上发表的题为“余文生律师的公开信”的文章、余文生2018年1月18日分别在“推特”“脸书”账号上发表的题为“余文生关于建议修改宪法的公开信”的文章,“维权网”“博讯网”“参与网”等10余个境外网站对两篇公开信的报道证明:余文生通过“推特”“脸书”发表两篇公开信,境外多家网站行转载报道。


2.公安机关对余文生的两部笔记本电脑进行电子证据检查记录,“推特“脸书”账号注册使用侦查实验证明:发表煽动颠覆言论的“推特”“脸书”账号系余文生本人使用。


3.证人北京市石景山区司法局工作人员高维华,纪爱华、陈敏、沙霖,北京市公安局石景山分局民警凯、王伟的证言,北京市石景山区司法局约谈余文生的录音录像,笔录和余文生承诺书证明:2017年10月18日晚,余文生被北京市石景山区司法局约谈,承认发表上述公开信。


4.被告人余文生供述:2017年10月18日下午两点钟左右,其在家中用手机编辑了“余文生律师的公开信”一文,并用翻墙软件把文章发布到“脸书”“推特”上,其在文章中写到十八大以来冤狱横生,贪腐横行,这是对中国建党97年历史和建政68年历史的否定,是一种无中生有;列举的雷阳事件,庆安事件,镇压新公民等事件都是歪曲事实,目的是否定中国现有的体制,抹黑党和政府,关于修宪的文章其是在“脸书”“推特”上发布的,其建议修宪的目的是否定中国共产党的领导,否定中国共产党领导下的多党合作制度、否定党对军队的领导,否定中国的选举制度。


为证明指控的犯罪事实,公诉机关向法庭提交了被告人余文生关于煽动颠覆国家政权主观故意的供述,余文生自书悔过书以及远程勘验笔录,电子证据检查笔录,声音同一性鉴定意见,发破案经过说明,抓获余文生的录音录像资料,证人刘洋,樊京生等执法民警的证言,搜查笔录,扣押清单,常住人口信息查询表、证明材料等综合证据,均经庭审举证,质证,其证明效力本院予以确认。


本院认为,被告人余文生以造谣,诽谤等方式煽动颠覆国家政权,推翻社会主义制度,其行为已构成煽动颠覆国家政权罪,徐州市人民检察院指控被告人余文生犯煽动颠覆国家政权罪的事实清楚,证据确实、充分,指控罪名成立。公诉机关提出被告人余文生煽动颠覆国家政权主观恶性较大,犯罪情节恶劣,为规范抓捕又暴力致伤民警,依法应予严惩的意见成立;辩护人提出被告人余文生从侦查,审查起诉到审判各阶段均能够如实供述犯罪事实,具有坦白情节,当庭认罪悔罪态度好,依法从轻处罚的意见成立。根据罪责刑相适应原则,综合考虑本案犯罪事实、性质、情节以及对于社会的危害程度,依照《中华人民共和国刑法》第一百零五条第二款、第五十五条第一款、第五十六条第一款、第六十七条第三款、第六十四条之规定,判决如下:


一、被告人余文生犯煽动颠覆国家政权罪,判处有期徒刑四年,剥夺政治权利三年。
(刑期从判决执行之日起计算,判决执行以前先行羁押的,羁押一日折抵刑期一日;指定居所监视居住的,监视居住二日折抵刑期一日,即自2018年4月19日起至2022年3月1日止。)


二、扣押在案的供犯罪所用的相关财物依法予以没收,上缴国库。
如不服本判决,可在接到判决书的第二日起十日內,通过本院或者直接向江苏省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        邱学锋
审判员        刘明伟
审判员        孙析


二0二0年六月十七日


本件与原本核对无异


法官助理    李通达
书记员        汪艳

The 7.09 Prosecutions: Wang Quanzhang Criminal Indictment

 People's Procuratorate of Tianjin, Division No. 2

Indictment

Jin Procuratorate No. 2 Public Prosecution Criminal Indictment (2017) No. 100011

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Translator's Summary: The indictment charged that Wang "used his status as a lawyer to accept financial support provided by foreign organizations many times, establish companies to engage in illegal activities, and provided materials abroad attacking China's rule of law and human rights. At the same time, he engaged in criminal activities subverting state power and overthrowing the socialist order by sensationalizing hot-button cases and incidents, illegally gathering in public venues to commit affrays, and using public opinion to provoke people who do not know the truth to hate the government."  The court found Wang guilty. The court judgment could not be located, but on January 28, 2019 the No. 2 Intermediate People's Court of Tianjin published this statement on its webpage: "On the morning of January 28, 2019,  the No. 2 Intermediate People's Court of Tianjin pronounced sentenced in defendant Wang Quanzhang's subversion of state power first instance case in accordance with the law, finding Wang Quanzhang guilty of subversion of state power, and sentencing him to a fixed term imprisonment of four years and six months and five years  deprivation of political rights." http://tj2zy.chinacourt.gov.cn/article/detail/2019/01/id/3716862.shtml.

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Defendant Wang Quanzhang, male, born [INTENTIONALLY DELETED], 1976, ID NO.:[INTENTIONALLY DELETED], Han ethnicity, university education, from Wulian County, Shandong, Beijing Fengrui Law Firm, household registration No. 2912, Second Ring East Road, Licheng District, Jinan, Shandong, residing at [INTENTIONALLY DELETED], Shijingshan District, Beijing. On April 3, 2013, he was detained by the People's Court of Jingjiang, Jiangsu for 10 days for violating court order, and was given early release from detention on April 6 of the same year. On August 3, 2015, he was taken into criminal detention by Public Security Bureau of Tianjin, Hexi Division on suspicion of committing the crimes of inciting subversion of state power and disturbing the peace, which was changed to residential confinement at a designated location on September 2 of the same year. On January 8, 2016 the Public Security Bureau of Tianjin received authorization from this Court to arrest him on suspicion of committing the crime of subversion of state power, and it carried out the arrest on the same day.

The investigation by Public Security Bureau of Tianjin in this case has concluded, and on August 7, 2016 it filed for pre-prosecution examination with this Court on the grounds that defendant Wang Quanzhang was suspected of committing the crime of subversion of state power. Following a designation of jurisdiction in accordance with the law, on August 9, 2016 this Court notified the defendant of his right to retain defense counsel, and interrogated the defendant in accordance with the law and reviewed all case materials. During this time, the case was referred for supplementary investigation twice and the period for pre-prosecution examination was extended three times in accordance with the law.

An investigation in accordance with the law found:

Over a long period of time defendant Wang Quanzhang, having been affected by the influence of the infiltration of anti-China forces, received training from foreign organizations many times, and gradually formed the idea of overthrowing the country’s current political system. Since 2009, Wang Quanzhang used his status as a lawyer to accept financial support provided by foreign organizations many times, establish companies to engage in illegal activities, and provided materials abroad attacking China's rule of law and human rights. At the same time, he engaged in criminal activities subverting state power and overthrowing the socialist order by sensationalizing hot-button cases and incidents, illegally gathering in public venues to commit affrays, and using public opinion to provoke people who do not know the truth to hate the government, seriously jeopardizing national security and social stability. The specific facts are as follows:

1. In August 2009, defendant Wang Quanzhang and Swedish national Bǐdé·yésīpèiěr·dálín (Foreign name: DAHILIN PETER JESPER: who has been expelled from the country by national security agencies), Chen Songzhu (who is being handled in a separate case) and others, after forming a plot, established a company registered in Hong Kong specifically to receive financial support from foreign organizations in the name of the "Chinese Urgent Action Working Group," "Human Rights Defenders Urgent Rescue Association," etc. He subsequently established "legal aid stations" in many places, and organized training for so-called "barefoot lawyers" many times, taught methods and techniques for confronting the government, and cultivated confrontational and opposition forces. At the same time, he actively provided foreigners with investigative reports, attacked China's rule of law and human rights situation, and denigrated the socialist system with Chinese characteristics.

2. On March 22, 2014, the Public Security Bureau of Jiansanjiang, Heilongjiang placed relevant individuals who had disturbed social order in administrative detention in accordance with the law. On March 28 of the same year, defendant Wang Quanzhang went to the Qili Detention Center in Jiansanjiang to participate in illegal gatherings, affrays, sit-in vigils, and other demonstrations involving some lawyers and petitioners, making unjustified demands for the release of some individuals who had been detained. During this period, Wang Quanzhang repeatedly distorted facts on the Internet, engaged in malicious sensationalizing, incited Internet users to "follow," "rescue," and "struggle," and provoked some people who did not know the truth to oppose agencies of the State regime.

3. From April 2013 to December 2014, while defendant Wang Quanzhang was acting as legal counsel in three cases of using a cult to undermine law enforcement, he distorted facts on the Internet many times and maliciously sensationalized issues, smeared the image of the judiciary, and denigrated and attacked the socialist justice system with Chinese characteristics.

On August 2, 2015, defendant Wang Quanzhang was apprehended and brought to justice.

The primary evidence in support of the aforementioned facts is:

1. Documentary evidence including annual reports and training programs for barefoot lawyers.

2. Testimony of witnesses Wang Yu, Chen Songzhu, and Na Jianshen.

3. Search, seizure, and crime scene investigation records.

4. Audio-visual materials and electronic data.

5. Defendant Wang Quanzhang's statement and justifications.

This Office finds defendant Wang Quanzhang organized, planned, and carried out subversion of state power and the overthrow of the socialist order, and his actions constituted the commission of an offense under the provisions of Article 105(1) of the "Criminal Law of the People's Republic of China," the criminal facts are clear, the evidence is reliable and copious, and he should be held criminally liable for the crime of subversion of state power. A public prosecution is hereby filed pursuant to the provisions of Article 172 of the "Criminal Law of the People's Republic of China," and it is requested that sentence be passed in accordance with the law.

Respectfully submitted to:

No. 2 Intermediate People's Court of Tianjin

Procurator        Guan Ning
Acting Procurator    Sheng Guowen
Acting Procurator    Cao Jiyuan

天津市人民检察院第二分院


起诉书


津检二分院公诉刑诉[2017]10001号


被告人王全璋,男,1976年2月15日出生,身份证号码:[INTENTIONALLY DELETED],汉族,大学文化,山东省五莲县人,北京锋锐律师事务所律师,户籍地山东省济南市历城区[INTENTIONALLY DELETED],住北京市石景山区[INTENTIONALLY DELETED]。因违反法庭秩序,于2013年4月3日被江苏省靖江市人民法院决定拘留十日,同年4月6日提前解除拘留;因涉嫌煽动颠覆国家政权罪、寻衅滋事罪,于2015年8月3日被天津市公安局河西分局刑事拘留,同年9月2日变更为监视居住;因涉嫌颠覆国家政权罪,于2016年1月8日经本院批准,同日由天津市公安局执行逮捕。

本案由天津市公安局侦查终结,以被告人王全璋涉嫌颠覆国家政权罪,于2016年8月7日向本院移送审查起诉。经依法指定管辖,本院于2016年8月9日告知被告人有权委托辩护人,依法讯问了被告人,审查了全部案件材料。期间,依法退回补充侦查两次,延长审查起诉期限三次。

经依法审查查明:

被告人王全璋长期受反华势力渗透影响,多次接受境外组织培训,逐渐形成了推翻国家现行政治制度的思想。2009年以来,王全璋利用律师身份,多次接受境外组织提供的资金支持,成立公司从事非法活动,并向境外提供攻击我国法治及人权状况的材料。同时通过炒作热点案件、事件,在公共场所非法聚集滋事、利用舆论挑起不明真相的一些人仇视政府等方式,实施颠覆国家政权,推翻社会主义制度的犯罪活动,严重危害国家安全和社会稳定。具体事实如下:

1. 2009年8月,被告人王全璋与瑞典人彼得·耶斯佩尔·达林(外文名:DAHILIN PETER JESPER:已被国家安全机关驱逐出境)、陈松竹(另案处理)等人共同预谋后,在香港注册成立公司,专门接受境外组织提供的资金支持,以“中国维权紧急援助组”、“人权卫士紧急救援协会”等名义,先后在多地成立所“法律援助站”,并多次组织所谓“赤脚律师”培训,传授与政府对抗的方法、技巧,培植对抗力量。同时,积极向境外提供,发布调查报告,攻击我国法治及人权状况,诋毁中国特色社会主义制度。

2. 2014年3月22日,黑龙江省建三江农垦公安局依法对扰乱社会秩序的相关人员行政拘留,同年3月28日,被告人王全璋前往建三江七里拘留所,参加由部分律师,访民参与的非法聚集滋事,静坐守夜等示威活动,无理要求释放被拘留人员。期间,王全璋多次在互联网上歪曲事实,恶意炒作,煽动网民前去“关注”、“营救”、“抗争”,挑起不明真相的一些人对抗国家政权机关。

3. 2013年4月至2014年12月,被告人王全璋在代理三起利用邪教组织破坏法律实施案中,多次在互联网上歪曲事实,恶意炒作,抹黑司法机关形象,诋毁、攻击中国特色社会主义司法制度。

2015年8月2日,被告人王全璋被抓获归案。

认定上述事实的主要证据有:1.年度报告,赤脚律师培训安排等书证:2.证人王宇,陈松竹,那建深等证言;3.搜查,扣押及勘验检查笔录;4.视听资料、电子数据;5.被告人王全璋的供述和辩解。

本院认为,被告人王全璋组织,策划,实施颠覆国家政权,推翻社会主义制度,其行为触犯了《中华人民共和国刑法》第一百零五条第一款,犯罪事实清楚,证据确实、充分,应当以颠覆国家政权罪究其刑事责任。根据《中华人民共和国刑事诉讼法》第一百七十二条的规定,提起公诉,请依法判处。

此致

天津市第二中级人民法院

检察员:            官宁
代理检察员:    盛国文
代理检察员:    曹纪元