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(Feb 09, 2012) On January 18, 2012, the Intermediate People's Court in Wuhan (the capital of China's Hubei Province) sentenced writer and human rights activist Li Tie to ten years of imprisonment and deprivation of political rights for three years thereafter, on charges of subversion of state power. Li was initially detained on suspicion of "inciting subversion" (shandong dianfu guojia zhengquan) on September 15, 2010; the charge was changed to the more serious crime of "carrying out subversion of state power" (shishi dianfu guojia zhengquan) on October 22 of that year, when the Wuhan procuratorate formally authorized Li's arrest. (Chinese Democracy Activist Li Tie Jailed for Ten Years for "Subversion," Chinese Human Rights Defenders (CHRD) website (Jan. 18, 2012) [scroll down page for link].)

The Crime and the Trial

The evidence adduced against Li, according to his family, included: articles he wrote that were critical of the government, in particular the online piece "For Man, Dignity Is Heaven," as well as "his membership in the China Social Democracy Party; his participation in discussions hosted on 'reactionary' websites, and his 'reactionary' comments made at gatherings with friends." (Id.)

Although the case was originally heard on April 18, 2011, his family only learned in late December that a verdict would be forthcoming, and the verdict was not issued until January 18, 2012, eight months after the trial. According to article 168 of the Criminal Procedure Law, however, once a court has accepted it case, it has a maximum of two and a half months to release a decision. (Id.; Criminal Procedure Law of the People's Republic of China (1996) (in effect on Jan. 1, 1997) [bilingual English-Chinese text], LAWINFOCHINA.COM.)

Article 105 of China's Criminal Law is on the crime of subversion. It stipulates:

Whoever organizes, plots, or acts to subvert the political power of the state and overthrow the socialist system, the ringleaders or those whose crimes are grave are to be sentenced to life imprisonment, or not less than 10 years of fixed-term imprisonment; active participants are to be sentenced from not less than three years to not more than 10 years of fixed-term imprisonment; other participants are to be sentenced to not more than three years of fixed-term imprisonment, criminal detention, control, or deprivation of political rights.

Whoever instigates the subversion of the political power of the state and overthrow the socialist system through spreading rumors, slandering, or other ways are to be sentenced to not more than five years of fixed-term imprisonment, criminal detention, control, or deprivation of political rights; the ringleaders and those whose crimes are grave are to be sentenced to not less than five years of fixed-term imprisonment. (Criminal Law of the People's Republic of China (1997) (in force on Oct. 1, 1997) (as amended) [bilingual English-Chinese text], LAWINFOCHINA.COM [individual amendments are listed on right-hand side of webpage, in Chinese; it seems that all except Amendment No. 8 have been incorporated into this full text of the law.]

The prosecution, according to the human rights group China Human Rights Defenders, argued during the trial that Li's writings and speech indicated that he had "anti-government thoughts," that he was therefore likely to engage in anti-government actions, and thus should be found guilty of subversion (in accordance with art. 105(1)). On that basis, the procuratorate recommended that Li be given a ten-year prison sentence. In his statement to the court at the trial, Li maintained "that he was innocent because his words and deeds were in accordance with the Constitution, which gives Chinese citizens the right to freedom of expression." (CHRD, supra; see also About CHRD (Apr. 29, 2011), CHRD website.)

As article 105 indicates, the law differentiates between "subversion" and "inciting subversion," although it may not always be clear in practice. In this regard it has been pointed out:

As a rule of thumb, then, individuals involved in any kind of organization like the China Democracy Party or the New Youth Study Society will most likely be charged with subversion. Individuals who have published articles critical of the government are usually punished with inciting subversion. Unfortunately, that distinction doesn't always[s] hold in practice … . (What's the Difference Between Subversion and Inciting Subversion? SIWEILUOZI'S BLOG (Jan. 19, 2012, 11:01 AM), http://www.siweiluozi.net/.)

Article 168 of the Criminal Procedure Law, on the time limit for issuing decisions on cases, may in the near future provide for a longer period than the two-and-a-half month period currently set forth in the law. A major revision of the Criminal Procedure Law is likely to be adopted by the National People's Congress in its upcoming March session. (National People's Congress Standing Committee Members Hotly Debate the Criminal Procedure Law Second Draft [in Chinese], XINHUA NEWS AGENCY (Dec. 27, 2011); China's Criminal Procedure Law Revision Revisited, SIWEILUOZI'S BLOG (Dec. 26, 2011, 11:32 PM) [scroll down to view].) In the draft document as it stood on August 30, 2011, a proposed revision of article 168 read as follows:

When a people's court hears a public prosecution case, it shall pronounce its judgment within one month and no later than one month and a half after admission of such case. In circumstances falling under the provisions of article 155 herein and where approval is given or a decision made by the high people's court of a province, autonomous region or municipality, the pronouncement may be extended by two months. Where the trial period needs to be extended further due to exceptional circumstances, the decision or approval shall be made or given by the Supreme People's Court. (Johannis Bayer & Li Changshuan, Amendments to the Criminal Procedure Law of the People's Republic of China (Draft) and Explanatory Notes, August 30, 2011 (Sept. 26, 2011) [for the Danish Institute for Human Rights] [if URL inoperable, copy and paste title]; Criminal Procedure Law Amendment Bill (Draft) Provisions and Explanation of the Draft [in Chinese], The National People's Congress of the People's Republic of China website (Aug. 30, 2011).)

The amendment of article 168 as proposed above, given its flexible language, does not appear likely to result in shortened time periods for the pronouncement of judgments in cases such as those of the human rights activists, even if it more closely reflects the time that the courts have been taking in practice to deliver those decisions.

Long Sentences for Other Human Rights Advocates

In recent weeks, a number of dissidents have been charged with inciting subversion and have been given lengthy prison terms. Shortly before Li was sentenced, dissident poet Zhu Yufu, who had also been formally arrested in April 2011, was charged with inciting subversion for writing and posting on the Internet a poem that urges people to take action in support of freedom (no trial date has been set). In December, political activist Chen Xi was sentenced to a ten-year term, and human rights advocate Chen Wei to nine years' imprisonment, for inciting subversion; both took part in the 1989 pro-democracy demonstration and both have formerly served prison terms. (Ashley Hileman, China Court Sentences Dissident to 10 Years in Prison, PAPER CHASE NEWSBURST (Dec. 26, 2012); Chinese Dissident Poet Zhu Yufu Charged with Subversion, BBC NEWS (Jan. 17, 2012); see also Prisoners of Conscience, CHRD (last visited Feb. 8, 2012); Guizhou Activist Chen Xi Jailed for Ten Years for "Inciting Subversion," CHRD (Dec. 26, 2011).)

In March 2011, pro-democracy activist Liu Xianbin, who had already served a nine-year sentence for organizing an outlawed political party, was given another nine-year term on charges of inciting subversion. (Andrew Jacobs, Chinese Democracy Activist Is Given 10-Year Sentence, THE NEW YORK TIMES (Mar. 25, 2011).) 2010 Nobel Peace Prize laureate and Charter 08 sponsor Liu Xiaobo has already been serving an 11-year term, on similar charges. (Bhargav Katikaneni, China Appeals Court Upholds 11-Year Sentence for Pro-Democracy Activist, PAPER CHASE NEWSBURST (Feb. 11, 2010); Simon Leys, He Told the Truth About China's Tyranny, THE NEW YORK REVIEW OF BOOKS 53-54 (Feb. 9, 2012).)

In the view of human rights activists, "the harsh sentences are worrying signs that the government's crackdown on dissidents is intensifying, ahead of the one-year anniversary of anonymous online calls for Arab-inspired 'Jasmine Revolution' rallies and before a tricky leadership transition later in the year." (Sui-Lee Wee, China Hands 10 Years to Writer for Subversion, REUTERS (Jan. 19, 2012).) Those calls for protests in various Chinese cities to oppose Chinese Communist Party rule, reportedly posted by a website in the United States, were promptly met with a crackdown by police in February 2011.

In that "wave of detentions and disappearances" the police "pre-emptively swept up many of the nation's best-known rights lawyers but also low-profile activists who simply forwarded the protest calls on their microblogs" (known as weibo); nearly two dozen persons were detained and 11 others were said to have disappeared into police custody. (Jacobs, supra.) It was reported on January 19, 2012, moreover, that the authorities are taking steps to tighten control in general over the "relatively freewheeling microblogging world" in a few major cities. (Keith B. Richburg, Another Writer Sentenced as China's Crackdown Continues, THE WASHINGTON POST (Jan.19, 2012); see also Wendy Zeldin, China: Tightened Controls on Microblogging, Including Real Name Requirement, GLOBAL LEGAL MONITOR (Feb. 8, 2012).)

According to one commentator, however, "Liu Xianbin, Chen Wei, and Chen Xi were given heavy punishments not simply because of any ongoing crackdown but more because of their persistent and long-standing political activism, for which each of them has spent a considerable amount of the past two decades behind bars"; it is "these kinds of veteran activists whom the authorities want 'off the grid.'" (Heavy Punishment and the Ongoing Crackdown in China, SIWEILUOZI'S BLOG (Jan. 12, 2010, 7:18 AM).) The commentator posits that the lengthy sentences can be largely attributed to mandated heightened penalties under Chinese law, stating:

According to Articles 65 and 66 of the Criminal Law of the PRC, heavier punishment is indicated for offenders who commit a second crime under the category of 'endangering state security' after having served a prison sentence for a previous offense under the same category … . There is no time limit for state security offenses, meaning that heavier punishment is automatically mandated for a second conviction. (Id.)

Author: Wendy Zeldin More by this author
Topic: Crime and law enforcement More on this topic
Jurisdiction: China More about this jurisdiction

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Last updated: 02/09/2012