Verdict against Liu Xiaobo 刘哓波, December 25, 2009

[Translation by Human Rights in China.]

Beijing Municipal No. 1 Intermediate People’s Court
Criminal Verdict

[Translation by Human Rights in China, December 30, 2009]

(2009) No. 3901

Public Prosecution Organ: Beijing Municipal People’s Procuratorate Branch No. 1

Defendant Liu Xiaobo: male; 53 years old (born December 28, 1955); Han ethnicity; born in Changchun, Jilin Province; Ph.D. education; unemployed; registered residence: 2-1-2 No. 5 Qingchun Street, Xigang District, Dalian, Liaoning Province; temporary residence: No. 502, Unit 1, Building 10, Bank of China Dormitory, Qixian Village, Haidian District, Beijing. In January 1991, Liu was found guilty of counterrevolutionary propaganda and incitement but was exempted from criminal punishment; in September 1996, he was ordered to serve three years of Reeducation-Through-Labor on charges of disturbing social order. He was summoned for detention on suspicion of inciting subversion of state power on December 8, 2008; placed under residential surveillance on December 9; and was formally arrested on June 23, 2009. He is now being detained at the No. 1 Beijing Detention Center.

Defense counsel: Ding Xikui, a lawyer with Beijing Mo Shaoping Law Firm.

Defense counsel: Shang Baojun, a lawyer with Beijing Mo Shaoping Law Firm.

In Criminal Indictment (2009) No. 247, Beijing Municipal People’s Procuratorate Branch No. 1 charges the defendant, Liu Xiaobo, with the crime of inciting subversion of state power; on December 10, 2009, the indictment was tendered to this court for prosecution. This court assembled a collegiate bench of judges in accordance with the law, and heard the case in open court. Beijing Municipal People’s Procuratorate Branch No. 1 assigned procurator Zhang Rongge and deputy procurator Pan Xueqing to appear in court to support the public prosecution. The defendant, Liu Xiaobo, and his counsel, Ding Xikui and Shang Baojun, appeared in court to participate in the proceedings. The trial has concluded.

In its indictment, Beijing Municipal People’s Procuratorate Branch No. 1 charged that, since 2005, defendant Liu Xiaobo, due to his dissatisfaction with the political and socialist system of our country’s people’s democratic dictatorship, has published inciting articles, including “The CPC’s Dictatorial Patriotism,” “Can It Be that the Chinese People Deserve Only ‘Party-Led Democracy’?,” “Changing the Regime by Changing Society,” “The Many Aspects of CPC Dictatorship,” “The Negative Effects of the Rise of Dictatorship on World Democratization,” and “Further Questions about Child Slavery in China’s Kilns,” on foreign websites, such as those of Observe China and the Chinese edition of the BBC. The rumors and slanders in the articles include: “since the Communist Party of China took power, generations of CPC dictators have cared most about their own power and least about human life”; “the official patriotism advocated by the CPC dictatorship is an institutional fallacy of ‘substituting the party for the country’; the essence of this patriotism is to demand that the people love the dictatorial regime, the dictatorial party, and the dictators; it usurps patriotism in order to inflict disasters on the nation and calamities on the people”; and “all of the tricks used by the CPC are stop-gap measures for the dictators to preserve the last phase of their power and will not be able to support for long this dictatorial edifice that is already showing countless cracks.” The inciting statements include: “changing the regime by changing society”; “for the emergence of a free China, placing hope in ‘new policies’ of those in power is far worse than placing hope in the continuous expansion of the ‘new power’ among the people.”

Between September and December 2008, defendant Liu Xiaobo, in collusion with others, drafted and concocted Charter 08, putting forward various propositions such as “abolish one-party monopolization of ruling privileges” and “establish China’s federal republic under the framework of constitutional democracy” in an attempt to incite the subversion of the current state power. After collecting over 300 signatures, Liu Xiaobo submitted Charter 08 and its signatures via e-mail to overseas websites and publicly posted it on overseas websites, such as those of Democratic China [minzhuzhongguo.org] and the Independent Chinese PEN Center[chinesepen.org].

After committing the crime, defendant Liu Xiaobo was found and brought to justice.

Beijing Municipal People’s Procuratorate Branch No. 1 turned over evidence that charged defendant Liu Xiaobo as guilty to this court, including witness testimony, records of the on-scene investigation and examination, conclusive evaluation, and digital data forensic evaluation testimony. The procuratorate found that Liu Xiaobo’s actions have violated the stipulations of Article 105 (2) of the Criminal Law of the People’s Republic of China, that his actions have constituted the crime of inciting subversion of state power, and that his criminal acts were grave. It submitted the case to this court for sentencing and punishment according to the law.

During the trial, defendant Liu Xiaobo argued that: He was innocent; he had merely exercised a citizen’s right to free speech as conferred by the Constitution; and the critical opinions that he had published have not brought practical harm to others, nor incited the subversion of state power.

The defense offered by the counsel of defendant Liu Xiaobo during the trial was: There was no rumor-mongering, slander, or smears in the six articles written by Liu Xiaobo or in Charter 08, as charged by the procuratorial organ. All of the essays published by Liu Xiaobo are within the purview of a citizen’s right to free speech and to expression of individual viewpoint, and they did not constitute the crime of inciting subversion of state power.

It has been ascertained through the trial that, from October 2005 to August 2007, defendant Liu Xiaobo, due to his dissatisfaction with the political and socialist system of our country’s people’s democratic dictatorship, repeatedly incited others to subvert our country’s state power and the socialist system by means of articles written and published on the websites of Observe China [observechina.net] and the Chinese edition of the BBC [bbc.co.uk/zhongwen], from his temporary residence of No. 502, Unit 1, Building 10, Bank of China Dormitory, Qixian Village, Haidian District, Beijing. In the published articles, “The CPC’s Dictatorial Patriotism,” “Can It Be that the Chinese People Deserve Only ‘Party-Led Democracy’?,” “Changing the Regime by Changing Society,” “The Many Aspects of CPC Dictatorship,” “The Negative Effects of the Rise of Dictatorship on World Democratization,” and “Further Questions about Child Slavery in China’s Kilns,” Liu Xiaobo slandered as follows: “Since the Communist Party of China took power, generations of CPC dictators have cared most about their own power and least about human life”; “the official patriotism advocated by the CPC dictatorship is a fallacious system of ‘substituting the party for the country’; the essence of this patriotism is to demand that the people love the dictatorship, the one-party rule, and the dictators; it usurps patriotism in order to inflict disasters on the nation and calamities on the people”; and “all of the tricks used by the CPC are stop-gap measures for the dictators to preserve the last phase of their power and will not be able to support for long this dictatorial edifice that is already showing countless cracks.” He also incited as follows: “changing the regime by changing society”; “for the emergence of a free China, placing hope in ‘new policies’ of those in power is far worse than placing hope in the continuous expansion of the ‘new power’ among the people.”

Between September and December 2008, Liu Xiaobo, in collusion with others, drafted the essay entitled Charter 08, putting forward various inciting propositions, such as, “abolish one-party monopolization of ruling privileges,” “establish China’s federal republic under the framework of constitutional democracy,” etc. After colluding with others to collect over 300 signatures, Liu Xiaobo distributed Charter 08 with the signatures via e-mail to overseas websites and publicly posted it on overseas websites, such as those of Democratic China and the Independent Chinese PEN Center. The aforementioned essay posted by Liu Xiaobo on the internet was linked to and reprinted by many websites and it was also viewed by many people.

After committing the crime, defendant Liu Xiaobo was found and brought to justice. This court acknowledges that the aforementioned facts have been substantiated by the following evidence presented to the court in the hearing:

1. Witness Liu Xia testified that: She is Liu Xiaobo’s wife and resides with Liu Xiaobo at No. 502, Unit 1, Building 10, Bank of China Dormitory, Qixian Village, Haidian District, Beijing. They have three computers in their home, one desktop computer and two notebook computers. Because she does not understand computers at all, she has never used their home computers; it is ordinarily only Liu Xiaobo who uses the computers. Liu Xiaobo mainly used the computers to write his articles and to go online. There are only two people living in their home, just her and Liu Xiaobo, no one else, and usually nobody comes to visit them at home. If Liu Xiaobo is having a get-together, he generally does it outside their home. Liu Xia is not clear about how the computers in their home get online; as for the Internet connection, it was set up by someone whom Liu Xiaobo contacted at the end of 2001. The source of her and Liu Xiaobo’s everyday income is the fees for Liu Xiaobo’s writing. Liu Xiaobo opened a bank account in her name, and the writing fees are deposited into the account at irregular intervals. She goes to the bank every month to withdraw money at irregular intervals.

2. The “Account Opening Certificate” and “Bank Remittance Record” issued by the Beijing Branch and Muxidi Sub-branch of the Bank of China Limited prove that: Liu Xiaobo’s wife Liu Xia’s bank account has received and drawn foreign remittances (foreign currency).

3. The “Response Regarding Assistance in the Investigation of Related Data” issued by the Beijing branch office of China United Network Communications Group Company Limited proves that: There are internet usage records for the ADSL account used by Liu Xiaobo.

4. Witness Zhang Zuhua testified that: He collaborated with Liu Xiaobo to complete the drafting of Charter 08 at the end of 2008; he also collected signatures. Afterwards, Liu Xiaobo published Charter 08 on overseas websites.
5. Witness He Yongqin testified that: At the beginning of December 2008, he received an e-mailed copy of Charter 08 from Liu Xiaobo. Liu Xiaobo asked him to sign it upon reading. After he read it, he responded to Liu Xiaobo by e-mail, expressing his consent to signing his name.

6. Witness Zhao Shiying testified that: In October 2008, Liu Xiaobo transferred the Charter to him online, solicited his suggestions for revision, and asked that he seek other people’s signatures. During a get-together, he showed the Charter to some ten or more people that were present, of whom four expressed desire to sign it. Liu Xiaobo also asked him through the Internet to go to Guangzhou to collect signatures, and he collected five signatures while in Guangzhou.

7. Witness Yao Bo testified that: In October 2008, Liu Xiaobo spoke to him about the Charter when they met, and he agreed to sign his name to the Charter.

8. Witness Zhou Duo testified that: One day in November 2008, Liu Xiaobo came to his home and showed him a draft of Charter 08, asking him to help with revisions. After Liu Xiaobo left, he looked at the content of the draft, but did not revise it. They had not talked about signatures at the time, but when he later looked at the Charter online, he saw his name signed on the Charter.

9. Witness Fan Chunsan testified that: At the end of November 2008, during a meal he had with Liu Xiaobo and others, Liu Xiaobo brought out a copy of Charter 08 for him to look at. Liu Xiaobo asked him if he would sign it, and he agreed to sign it. He knew that Liu Xiaobo had published articles on overseas websites, such as Boxun and the Independent Chinese PEN Center, and had seen them on the Internet. The contents of the articles by Liu Xiaobo were all commentary on politics.
10. Witnesses Xu Junliang, Zhi Xiaomin, and Teng Biao testified that: Between November and December 2008, they received e-mailed copies of Charter 08 in their respective e-mail inboxes, but they did not know who had sent them. After they separately signed their names, they returned Charter 08 to the original sender.

11. Witness Wang Zhongxia testified that: In December 2008, he saw Charter 08 online, approved of its content, and signed his name to it. Later on, he printed a few shirts with the Charter 08 logo, with the intention of wearing them himself and giving them to other people to wear in order to promote Charter 08.

12. The “Search Record” provided by public security organs and photographs of material evidence prove that: On December 8, 2008, public security organs, as witnessed by eyewitnesses, conducted a search of Liu Xiaobo’s residence at No. 502, Unit 1, Building 10, Bank of China Dormitory, Qixian Village, Haidian District, Beijing. They discovered and impounded the devices used by Liu Xiaobo to write and distribute his articles online—two notebook computers and one desktop computer—and a printout of Charter 08 (“Draft for Soliciting Opinions”).

13. The “Forensic Evaluation Written Opinion” provided by the Union of Network Beijing Forensic Evaluation Center of Electronic Data Evidence proves that: On December 13, 2009, they conducted a forensic evaluation of electronic data stored on Liu Xiaobo’s three computers obtained during the search, and during the evaluation found and extracted electronic versions of “The CPC’s Dictatorial Patriotism,” “Can It Be that the Chinese People Deserve Only ‘Party-Led Democracy’?,” “Changing the Regime by Changing Society,” “The Many Aspects of CPC Dictatorship,” “The Negative Effects of the Rise of Dictatorship on World Democratization,” “Further Questions about Child Slavery in China’s Kilns,” and Charter 08.

Among the information recorded by the SKYPE chat software on the computers, they found and extracted records showing that between November and December 8, 2008, the said software had sent Charter 08 and its “Draft for Soliciting Opinions” several times.

14. Investigation of the scene, examination record and job description provided by the public security organs prove that:

1.
1. From December 19, 2008 to December 23, 2008, the First Brigade of the Office for the Supervision of Public Information Network Security at the Beijing Municipal Public Security Bureau discovered on the Internet and downloaded the article “Liu Xiaobo: The CPC’s Dictatorial Patriotism,” which bore the signature of “Liu Xiaobo” and was posted on the website with domain name epochtimes.com (Epoch Times), the server for which is located abroad. The article carried the posting date of October 4, 2005. Up until December 23, 2008, there were a total of five webpage links to sites that had posted or reproduced it.

2. From December 19, 2008 to August 3, 2009, the First Brigade of the Office for the Supervision of Public Information Network Security at the Beijing Municipal Public Security Bureau discovered on the Internet and downloaded the article “Liu Xiaobo: Can It Be that the Chinese People Deserve Only ‘Party-Led Democracy’?,” which bore the signature of “Liu Xiaobo” and was posted on the website with domain name epochtimes.com (Epoch Times) and the website with domain name www.observechina.net (Observe China), the servers for which are located abroad. The article carried the posting dates of January 5, 2006 and January 6, 2006, respectively. Up until December 23, 2008, there were a total of five webpage links to sites that had posted or reproduced it, with a total of 402 hits.
3. From December 20, 2008 to August 3, 2009, the First Brigade of the Office for the Supervision of Public Information Network Security at the Beijing Municipal Public Security Bureau discovered on the Internet and downloaded the article “Liu Xiaobo: Changing the Regime by Changing Society,” which bore the signature of “Liu Xiaobo” and was posted on the website with domain name epochtimes.com (Epoch Times) and the website with domain name www.observechina.net (Observe China), the servers for which are located abroad. The article carried the posting dates of February 26, 2006 and February 27, 2006, respectively. Up until December 23, 2008, there were a total of five webpage links to sites that had posted or reproduced it, with a total of 748 hits.

4. From December 20, 2008 to August 3, 2009, the First Brigade of the Office for the Supervision of Public Information Network Security at the Beijing Municipal Public Security Bureau discovered on the Internet and downloaded the article “Liu Xiaobo: The Many Aspects of CPC Dictatorship,” which bore the signature of “Liu Xiaobo” and was posted on the website with domain name www.secretchina.com (“Secret China”) and the website with domain name www.observechina.net (Observe China), the servers for which are located abroad. The article carried the posting date of March 13, 2006. Up until December 23, 2008, there were a total of six webpage links to sites that had posted or reproduced it, with a total of 512 hits.

5. From December 20, 2008, the First Brigade of the Office for the Supervision of Public Information Network Security at the Beijing Municipal Public Security Bureau discovered on the Internet and downloaded the article “Liu Xiaobo: The Negative Effects of the Rise of Dictatorship on World Democratization,” which bore the signature of “Liu Xiaobo” and was posted on the website with domain name www.secretchina.com (“Secret China”), the server for which is located abroad. The article carried the posting date of May 7, 2006. Up until December 23, 2008, there were a total of seven webpage links to sites that had posted or reproduced it, with a total of 57 hits.

6. From December 20, 2008 to August 3, 2009, the First Brigade of the Office for the Supervision of Public Information Network Security at the Beijing Municipal Public Security Bureau discovered on the Internet and downloaded the article “Liu Xiaobo: Further Questions about Child Slavery in China’s Kilns,” which bore the signature of “Liu Xiaobo” and was posted on the website with domain name www.minzhuzhongguo.org (Democratic China) and the website with domain name www.renyurenquan.org (Ren Yu Ren Quan), the servers for which are located abroad. The article carried the posting date of August 1, 2007. Up until December 23, 2008, there were a total of eight webpage links to sites that had posted or reproduced it, with a total of 488 hits.

7. On December 11, 2008, the First Brigade of the Office for the Supervision of Public Information Network Security at the Beijing Municipal Public Security Bureau discovered on the Internet and downloaded the article entitled Charter 08, which was posted on the website with domain name www.chinesepen.org (Independent Chinese PEN Center), the server for which is located abroad. The article carried the posting date of December 9, 2008, and the author was signed as a group of citizens. On the same day the brigade discovered and downloaded an article entitled “Chinese from all Walks of Life Jointly Release Charter 08” on the website with domain name boxun.com (Boxun) and the website with domain name www.minzhuzhongguo.org (Democratic China), the servers for which are located outside China’s borders. The article carried the posting dates of December 8, 2008 and December 9, 2008, respectively. Up until December 12, 2008, there were a total of 33 webpage links to sites that had posted or reproduced the aforementioned article, 19 of which were to sites abroad, with a total of 5,154 hits and 158 replies. On December 9, 2009, it was discovered that the home page of the website with domain name www.2008xianzhang.info (Charter 08) showed that up until December 9, 2009, Charter 08 had been signed by 10,390 people.

8. On August 14, 2009, the Office for the Supervision of Public Information Network Security at the Beijing Municipal Public Security Bureau undertook an examination of e-mail account used by Liu Xiaobo. The examination revealed that the account used by Liu Xiaobo is a foreign one. After verifying the contents through logging in by passwords, it was found that the earliest date on which items were sent from that account was November 25, 2008, and among the sent mail 30 items involved transmission of Charter 08.

1. Articles certified by Liu Xiaobo’s signature prove that: Liu Xiaobo identified the articles downloaded and saved by the supervisory department of the public security organs, “Liu Xiaobo: The CPC’s Dictatorial Patriotism,” “Liu Xiaobo: Can It Be that the Chinese People Deserve Only ‘Party-Led Democracy’?,” “Liu Xiaobo: Changing the Regime by Changing Society,” “Liu Xiaobo: The Many Aspects of CPC Dictatorship,” “Liu Xiaobo: The Negative Effects of the Rise of Dictatorship on World Democratization,” “Liu Xiaobo: Further Questions about Child Slavery in China’s Kilns,” Charter 08, and the electronic version of texts extracted from his computers, “The CPC’s Dictatorial Patriotism,” “Can It Be that the Chinese People Deserve Only ‘Party-Led Democracy’?,” “Changing the Regime by Changing Society,” “The Many Aspects of CPC Dictatorship,” “The Negative Effects of the Rise of Dictatorship on World Democratization,” and “Further Questions about Child Slavery in China’s Kilns,” and that Liu Xiaobo confirmed that the identified articles are the articles written by him and published by him on the Internet. The articles that Liu Xiaobo has identified and confirmed by signature contain expressions of incitement borne by aforementioned facts.

2. Defendant Liu Xiaobo’s confession proves that: Liu Xiaobo confessed that he used computers to write the aforementioned articles and to publish them on Internet websites. Liu Xiaobo’s confession and the aforementioned evidence are mutually corroborative.

3. The detention procedure report provided by the public security organs proves that: Late on December 8, 2008, the Beijing Municipal Public Security Bureau detained Liu Xiaobo at his residence at No. 502, Gate 1, Building 10, Bank of China Dormitory, Qixian Village, Haidian District, Beijing.

4. The Beijing Municipal Intermediate People’s Court’s Criminal Verdict (1990) No. 2373and the Reeducation-Through-Labor Decision (1996) No. 3400 by the Committee for the Management of Reeducation-Through-Labor of the Beijing Municipal People’s Government prove that: On January 26, 1991, Liu Xiaobo was exempted from punishment for the crime of counterrevolutionary propaganda and incitement. On September 26, 1996, Liu was ordered to serve three years of Reeducation-Through-Labor for disturbing social order.

5. Identity Verification Material provided by the public security organs bears proof of defendant Liu Xiaobo’s identity, i.e., his name, address, etc.

This court believes that defendant Liu Xiaobo, with the intention of overthrowing the state power and socialist system of our country’s people’s democratic dictatorship, used the Internet’s features of rapid transmission of information, broad reach, great social influence, and high degree of public attention, as well as the method of writing and publishing articles on the Internet, to slander and incite others to overthrow our country’s state power and the socialist system. His actions constitute the crime of inciting subversion of state power. Furthermore, the crime was committed over a long period of time, and the subjective malice was immense. His articles were widely linked, reproduced, and viewed, spreading vile influence. He is an offender of a major crime and should be given severe punishment according to the law. The facts in the charge of inciting subversion of state power brought against Liu Xiaobo by the Beijing Municipal People’s Procuratorate Branch No. 1 are clear and the evidence is reliable and ample; the criminal charge is well-established. Regarding defendant Liu Xiaobo’s defense argument during the court hearing and the defense opinion issued by his defense counsel, the facts and evidence established through examination by this court hearing of the case have amply proved that Liu Xiaobo used the media features of the Internet and by means of publishing slanderous articles online carried out activities that incited subversion of our country’s state power and the socialist system. Liu Xiaobo’s actions have obviously exceeded the freedom of speech category and constitute criminal offense. Therefore, neither Liu Xiaobo’s aforementioned defense argument nor his defense counsel’s defense opinion can be established, and this court does not accept them. Based on the facts, nature, and circumstances of Liu Xiaobo’s crime and the degree to which it has endangered society, this court hereby sentences him according to stipulations of the Criminal Law of the People’s Republic of China, Article 105 (2); Article 55 (1); Article 56 (1); and Article 64, as follows:

1. Defendant Liu Xiaobo has committed the crime of inciting subversion of state power. He is sentenced to a fixed-term imprisonment of eleven years and to two years’ deprivation of political rights. (The prison term is calculated from the date that the judgment is executed. Any detention preceding the execution of the judgment shall be subtracted from the prison term, one day off per day of the detention. The term is thus from June 23, 2009, to June 21, 2020.)
2. All items used by Liu Xiaobo to commit the crime, which had been delivered with this case, shall be confiscated (list is attached below).

If [the defendant] does not accept this verdict, [he] can submit an appeal through this court or directly to the Beijing Municipal High People’s Court within ten days of the second day after receiving this verdict. In the case of a written appeal, one original and two duplicate copies should be submitted.

Presiding Judge: Jia Lianchun
Deputy Judge: Zheng Wenwei
Deputy Judge: Zhai Changxi

Beijing Municipal No. 1 Intermediate People’s Court (seal)
December 25, 2009

Clerk Gu Xin

List of Seized Items

The following items were confiscated:

1. Notebook Computer (IBM T43): 1
2. Notebook Computer (Lenovo Ideapad 7000CFe): 1
3. Desktop Computer (Lenovo Jiayue series): 1
4. Charter 08 Draft for Soliciting Opinions (sealed for case files): 7 pages