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By Elizabeth M. Lynch, January 28, 2014

Fuzzy Jurisdiction

On Sunday, in a verdict that surprised no one,  the Beijing No. 1 Intermediate Court found human rights lawyer Xu Zhiyong guilty of gathering crowds to disrupt public order (Criminal Law Article 296).  The Court sentenced Xu to four years, only one year shy of the maximum.

The Court’s verdict which runs close to twenty pages when converted to a word document, details the prosecutor’s evidence that formed the basis of the Court’s decision.  The length of the document itself belies a Court confident in its decision on a case that they know the world was watching.

There is certainly much to be parsed out in the decision but one thing that is interesting are the jurisdictional issues that China Law & Policy raised last week prior to Xu’s trial.  Namely, why Xu – who is being accused of the same crimes as many of the other defendants – was being tried in an higher level court, Beijing’s No. 1 Intermediate Court, while his compatriots are being tried in the lower level Haidian People’s Court.

The verdict attempts directly answers this question and in doing so present a frightening future for defendants:

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。

The Court acknowledges defense counsel’s two jurisdictional-based objections: (1) that the Intermediate Court should not hear the case and (2)

Xu Zhiyong, awaiting trial in the detention center

Xu’s case should be tried with the other defendants.   According to the Court, its jurisdiction is based upon Article 26 of China’s Criminal Procedure Law (“CPL”), a provision that permits a higher level court to re-assign cases to other courts when jurisdiction is unclear.  According to the Court, because the Haidian District, the Chaoyang District and the Xidan District People’s courts all had jurisdiction over the case (presumably because some of the public demonstrations accorded in each of those districts), the prosecutor filed his case with the Intermediate Court and the Beijing Municipal Higher People’s Court determined that the Beijing No. 1 Intermediate Court could hear the case, thus giving it jurisdiction.

The verdict pays no mind to defense counsel’s objections; it does not explain what these objections were let alone why the Court rejected them. By flat out ignoring these objections, the Court seems to imply that as long as the law was followed by the prosecutor and the courts, then the decision will be permitted regardless of defense counsel’s arguments.  Unfortunately, this does seem to be what Article 26 says although neither the Interpretation of the Supreme People’s Court on the Implementation of the CPL (“SPC Interpretation”) nor the Interpretation of the Supreme People’s Procuratorate on the Implementation of the CPL (“SPP Interpretation”)  explicitly permit the prosecutor to file a criminal case with a higher level court.  Although at the same time, it does not forbid it.

It doesn’t matter how loud defense counsel gets, his objection is never heard

While there might be a basis in law to permit the Intermediate Court to have jurisdiction, what there appears no basis for is the Court’s cursory denial of defense counsel’s request to try the other defendants with Xu.  In a two sentence analysis, the Court states that under the law it is within the discretion of either the Court, the prosecutor or the public security organs to decide whether joint defendants should be tried separately.  The Court fails to cite any provision of any law or regulation that states that premise.

As for defense counsel’s objection – which convincingly cited to Article 13 of the SPP Interpretation requiring all cases to be joined before a higher court if one is to be heard there – the Court conclusory stated that defense counsel’s objection was “untenable” (不能成立) and therefore the Court was right to reject it.  The verdict provides no reason or explanation as to why the objection was untenable.  Given that defense counsel was able to sight to regulation for its argument and the Court here cites to no law, defense counsel’s objection seems worlds more tenable than anything the Court provided.

But that would be for a trial that was based on rule of law, something that is missing here where the Court rules by executive fiat regardless of laws of regulations.  For all the Chinese Communist Party’s recent rhetoric about the need to have a “strict adherence to legal procedure,” the CCP again chose to ignore that procedure in the one case where it felt like its power was being threatened.

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By Elizabeth M. Lynch, January 21, 2014

Xu Zhiyong in better days – on the cover of Chinese Esquire in 2009

On Wednesday, the Beijing Municipal No. 1 Intermediate People’s Court will hear the trial of rights-defending lawyer Xu Zhiyong (pronounced Sue Zhi-young).  His alleged crime?  Disturbing public order, a charge that the Chinese government has used with abandon since China’s new president Xi Jinping rose to power at the end of 2012

Xu was not always the Chinese government’s Enemy No. 1.   Early in his career, Xu was celebrated for his ground-breaking work.  In 2003, Xu, along with rights-defending attorneys Teng Biao and Yu Jiang, successfully pushed for the abolishment of China’s custody and repatriation system, a form of extrajudicial detention that resulted in abuse and on one occasion the death of a college student.   In 2008, Xu, through his legal assistance organization the Open Constitution Initiative (“OCI” or in Chinese “Gongmeng”) represented parents whose children were poisoned by contaminated powdered milk, keeping the issue in the press and obtaining some form of justice for the parents.  These cases, in addition to investigations into the use China’s “black jails” – extrajudicial, ad hoc and secretive holding cells used to house government-defined trouble makers – brought both domestic and international fame.  In 2008, Xu was featured in China’s Economic Observer and by 2009, he would grace the cover of China’s Esquire magazine.

But Xu’s success also brought the attention of the Chinese government at a time when it was beginning to look less and less favorably upon the rights-defending movement.  In July 2009, Xu was detained on charges of tax evasion.  After being held for almost a month, Xu was freed on bail and his organization was fined a stunning 1.46 million RMB.  Such was the end of OCI.

Fortunately for the Chinese people it was not the end of Xu Zhiyong or his rights-defending work.  Instead, Xu looked to take his ideas and create

Emblem of the New Citizens Movement – calligraphy of Sun Yatsen

a more organized grassroots movement.  Working with other rights-defending lawyers, journalists, activists and average citizens, the movement called on the Chinese people to uphold the rule of law and seek to protect their civil rights.  By May 2012, Xu named this movement “New Citizens Movement” (in Chinese, Xin Gongmin Yundong) and called upon the new citizens to unite and help to establish a rule of law, protect constitutionally-guaranteed rights, end corruption in government and change the role of the Chinese people from subjects to full-functioning citizens.  Xu’s essay describing the movement was quickly removed from the internet.

Although many describe Xu’s approach as moderate, it is still too radical for the Chinese government, especially a Chinese government with a new president eager to solidify his power.  Over the past year, the Chinese government has detained over 100 activists, many of whom are New Citizens.

In July 2013, Xu’s time had come; the police detained him and various other activists and in August 2013, formally arrested him for disturbing public order.   In its December 2013 indictment, the Beijing police charged Xu with organizing and being the ringleader of protests held in Beijing calling on the government to require that senior government officials disclose their financial holdings and assets (see video below of one of the protests).

The fact that the Chinese Communist Party has recently initiated such a pilot program of asset disclosure is irrelevant.  Last Friday, Xu appeared before the Beijing Municipal No. 1 Intermediate Court where he learned that his trial is set for Wednesday, that he will not be permitted to call witnesses, and will not be permitted to cross-examine the prosecution’s witnesses.  As protest, Xu will remain silent during Wednesday’s trial.

There are many things to question about Xu’s impending trial, but one aspect that jumps out as out of the ordinary is the fact that Xu’s trial will not be held in a basic trial court.  Instead, the intermediate court has jurisdiction; many of the other defendants arrested and charged for the same crimes will have their case heard in the Haidian Basic People’s Court.   Why is Xu different?  Why is his case being heard by a higher court?

Beijing’s No. 1 Intermediate Court

According to the China’s amended Criminal Procedure Law (“CPL”), an intermediate court automatically has jurisdiction if the case involves charges of endangering state security or involves terrorist activities, or if the case has a penalty of life imprisonment or death  (see CPL, Article 20).  Here, the charges do not involve state security or terrorism and the penalty is a maximum of five years imprisonment.

However, according to the Supreme People’s Court’s Interpretation on the Implementation of the Amended CPL (“SPC Interpretations”), even when a case does not involve state security, terrorism, a life sentence or the death penalty, the lower court can ask the intermediate court to hear the trial if (1) the case is large or complex, (2) is a novel and difficult case, or (3) is a case that is significant and thus would provide general guidance to other case (see SPC Interpretations, Article 15).

If Article 15 of the SPC Interpretations is the basis of the Intermediate Court’s jurisdiction, then the Intermediate Court must issue a written decision accepting the transfer and submit that decision to the lower court and the prosecutor.  Article 15 does not require that the written decision be provided to defendant or his attorney (see also SPC Interpretations, Article 14: Higher people’s courts deciding to try a first-instance case within the jurisdiction of a lower people’s court, should send down a written decision to change jurisdiction to the court below, and notify the procuratorate at the same level in writing”).

Unfortunately, none of the articles about Xu trial – either in Chinese or English – explain why his case is being heard by the Intermediate Court and not, like the other defendants accused of the same crimes, by the Haidian Basic Court.

But regardless of the reason why the Intermediate Court is hearing Xu’s case, the SPC Interpretations are fairly clear that where a case involves

Xu Zhiyong, awaiting trial in the detention center

multiple defendants and the case is elevated to a higher court for one defendant, then all defendants should be tried by the higher court (see SPC Interpretations, Article 13: “For multiple crimes by a single person, joint crimes or other cases that need to be joined for trial, if one person or crime belongs to the jurisdiction of the higher level court, the higher level court has jurisdiction of the entire case”).

New Citizens activist and rights-defending lawyer Xiao Guozhen speculates that the police and prosecutors sought to separate the trials so that the statements of the other participants can be used against Xu in his trial.  According to Xiao, in a trial with multiple defendants, one co-defendant cannot serve as a witness.  But when the trials are separated, the other defendant’s statements and confessions can be used in the trial against Xu.  But this all supposes that the other accused will speak out against Xu.

Hopefully Wednesday we will know although as Prof. Jerome Cohen points out, the authorities has done all that it can, such as using one of the smallest courtrooms in the courthouse for Xu’s trial to guarantee that the trial is all but closed to the public.  Another violation of the amended CPL.