Beijing Municipality First Intermediate People’s Court Verdict in Criminal Case (2009)
First Intermediate Court No. 3901

Public Prosecutor: Beijing Municipality People’s Procuratorate First Branch.

The accused, Liu Xiaobo, male, 53 years old (born December 28, 1955), Han nationality, born in Changchun City, Jilin Province, doctoral student level education, unemployed, household registration at Qingchun Street No. 5, 2-1-2, Xigang District, Dalian City, Liaoning Province. Resides temporarily at No. 7 Xiancun, Bank of China dormitory Building 10, Unit 1, No. 502 in the Haidian District of Beijing Municipality. In January 1991, he committed the crime of making counter-revolutionary propaganda but escaped criminal punishment; in September 1996 because he disturbed the social order, he was sent to re-education through labor for three years. He was summoned for detention on December 8, 2008 on suspicion of incitement to overthrow state power and on December 9 put under residential surveillance. On June 23, 2009 he was arrested. He is now confined to Beijing Municipality Detention Center No. 1.

• Defense counsel: Ting Xikui, a lawyer at the Beijing Mo Shaoping Law Office

• Defense counsel: Shang Baojun, a lawyer at the Beijing Mo Shaoping Law Office

Beijing Municipality People’s Procuratorate First Branch in Beijing Procuratorate First Branch Criminal Prosecution Indictment (2009) 247 charged the accused Liu Xiaobo of the crime of incitement to overthrow state power and on December 10, 2009 filed the indictment in this court. This court according to law assembled the court and held an open court session to try the case. The Beijing Municipality People’s Procuratorate First Branch sent Prosecutor Zhang Rongge and Deputy Prosecutor Pan Xuechu to sustain the indictment. The defense counsel for the accused Liu Xiaobo, Ding Xikui and Shang Baojun came to court to participate in the hearing. The trial has now already concluded.

The Beijing Municipality People’s Procuratorate First Branch incitement accuses the defendant Liu Xiaobo has, due to his dissatisfaction with the people’s democratic dictatorship state power system and socialist system of our country, since 2005, through various Internet web sites such as “Observe China” and the “BBC Chinese Net” of publishing articles such as “The Dictatorial Patriotism of the Chinese Communist Party”, “How Can it be that Only Party-Guided Democracy is Suitable for the Chinese People?”, “Change the Political Regime by Changing Society”, “The Many Faces of the Chinese Communist Dictatorship”, “The Negative Effect of the Rise of a Dictatorship on World Democratization”, “Inquiring Further into the Case of the Child Slaves of the Black Kilns”, and other inflammatory articles. The articles instigate rumors and libels such as “Since the Communist Party took power, the top priority of Communist dictators has been their own power and what they care least about is human life”; “The Chinese communist dictatorial state power promotes patriotism for officials, and the absurd theory of a party that takes the place of the state. What patriotism has become in effect is the call of the people to love the dictatorial government power, to love the dictatorial party, to love the dictator. This is simply stealing the name of patriotism to create a reality that brings calamity to the country and to the people.” “All the methods of the Chinese communists are based on a plan to support the rule and interests of the dictators, but there is no hope for them to continue for long since countless cracks have already appeared in the edifice of their dictatorship.” “Expecting a free China to appear from the ‘new policies’ of the rulers is far less likely that hoping for it to come through the steady expansion of ‘new forces’ among the people.” Just as strong are these incitements: “Change the Society to Change the Regime”, and “Expecting a free China to appear from the ‘new forces’ of the rulers is far less likely that hoping for it to come through the steady expansion of ‘new forces’ among the people.”

Between September and December 2008, the defendant Liu Xiaobo colluded with others to draft and concoct the “Charter 08”, that proposed views such as “eliminate the monopoly of one party on the exercise of political power”, “to create a Chinese federation under the framework of democratic constitutional system of governance”, seeking to incite the overthrow of state power. Liu Xiaobo collected the signatures of over 300 people and sent “Charter 08” together with the signatures in an e-mail to web sites outside of the borders of mainland China publish it on web sites outside the borders of mainland China such as “Democratic China” and “The Independent Chinese PEN Association”.

After Liu Xiaobo committed this offense, he was tracked down and brought to justice.

The Beijing Municipality Procuratorate First Branch provided to this court testimony of witnesses as to the guilt of the defendant Liu Xiaobo. This included evidence such as the on-scene investigation, the record of the investigation and electronic data that had been verified by the experts. The Beijing Municipality Procuratorate First Branch was convinced that the defendant Liu Xiaobo’s behavior violated section 105 part two of the “Criminal Code of the PRC”, and constituted incitement to the overthrow of state power, a serious offense. The Procuratorate handed the case over to this court for judgment according to the law.

The defendant Liu Xiaobo during the trial said that he was not guilty and that he was merely exercising the constitutional right of all citizens to free speech. The criticisms he expressed did not any actual harm to anyone and is not incitement to overthrow state power.

Counsel for the defendant Liu Xiaobo argued that the six articles written by Liu Xiaobo mentioned in the indictment and “Charter 08” did not create rumors or libels and did not insult anyone. Moreover, said counsel, the articles published by Liu Xiaobo fall within the scope of the free speech of a citizen, expressing personal opinions and do not constitute incitement to overthrow state power.

During the trial it became clear that the defendant Liu Xiaobo, due to his dissatisfaction with the people’s democratic dictatorship and socialist systems of our country, between October 2005 and August 2007, at his temporary residence at No. 7 Xiancun, Bank of China dormitory Building 10, Unit 1, No. 502 in the Haidian District of Beijing Municipality, wrote and published articles on web sites such as “Observe China” and “BBC Chinese Language Net”. On multiple occasions, he incited the overthrow of our country’s political system and the socialist system. Liu Xiaobo in his articles “The Dictatorial Patriotism of the Chinese Communists”, “How Could it Be That the Chinese People Are Only Suited to ‘Party-Guided Democracy’”, “Change the Political Regime by Changing Society”, “The Many Faces of the Chinese Communist Dictatorship”, “The Negative Effect of the Rise of a Dictatorship on World Democratization”, and “Inquiring Further into the Case of the Child Slaves of the Black Kilns” slandered the Chinese Communist Party. He made statements in these articles such as “Since the Communist Party took power, the top priority of Communist dictators has been their own power and what they care least about is human life”; “The Chinese communist dictatorial state power promotes patriotism for officials, and the absurd theory of a party that takes the place of the state. What patriotism has become is calling on the people to love the dictatorial regime, to love the dictatorial party, and to love the dictator. This is simply stealing the name of patriotism to create a reality that brings calamity to the country and to the people.”; “All the methods of the Chinese communists are based on a plan to support the rule and interests of the dictators, but there is no hope for them to continue for long since countless cracks have already appeared in the edifice of their dictatorship.” Equally as inciting are the statements: “Expecting a free China to appear from the ‘new policies’ of the rulers is far less likely that placing hope in its emergence through the steady expansion of ‘new forces’ among the people.”

Between September and December 2008, the defendant Liu Xiaobo colluded with others to draft a document entitled “Charter 08”. That document proposed to “eliminate the monopoly of one party on the exercise of political power”, “to create a Chinese federation under the framework of democratic constitutional system of governance” and other incitements. Liu Xiaobo colluded with others to collect the signatures of 300 people and then sent “Charter 08” together with the signatures in an e-mail to web sites outside of the borders of mainland China and released it on web sites outside the borders of mainland China such as “Democratic China” and “The Independent Chinese PEN Association”. The documents mentioned above that Liu Xiaobo put on web sites were linked to and copied to other web sites and viewed by many people.

The accused Liu Xiaobo after he committed this crime was investigated and brought to justice.

The facts above were proved during the trial. The evidence presented has been shown to be true and this court affirms that the following has been demonstrated to be true:

1. The testimony of the witness Liu Xia proves: she is the wife of Liu Xiaobo and lived together with him at No. 7 Xiancun, Bank of China dormitory Building 10, Unit 1, No. 502 in the Haidian District of Beijing Municipality, that there are three computers in the home, one a desktop and other two are notebooks. Because she doesn’t understand anything about computers, Liu Xiaobo uses the computer mainly to write articles and to go online. Only two people, herself and Liu Xiaobo, live in the home, no-one lives with them. Only very seldom do guests come to visit—when Liu Xiaobo participates in a meeting, it is almost always outside his home. She doesn’t know how the computer connects to the Internet. Liu Xiaobo arranged for the Internet connection in late 2001. Their income comes chiefly from what Liu Xiaobo earns from his writings. Liu Xiaobo opened an account at the bank in her name. Deposits to the account for Liu Xiaobo’s writings come irregularly. Every month she goes to the bank at irregular intervals to withdraw money.

2. The Beijing and Muxi branches of the Bank of China, Ltd. provided the “evidence of opening an account” and “bank money order receipt” that prove that Liu Xiaobo’s wife Liu Xia went to the bank to receive and withdraw money orders (in foreign currency) coming from outside the borders of mainland China.

3. China United Network Communication Co., Ltd. Beijing subsidiary provided a “Reply to a request for assistance in conducting an examination of digital data”. This proves: Liu Xiaobo used an ADSL account, and a record of his having gone online.

4. The testimony of the witness Zhang Zuhua proves: she together with Liu Xiaobo at the end of 2008 drafted and completed “Charter 08”. She also collected signatures. Thereafter, Liu Xiaobo published “Charter 08” on web sites outside the borders of mainland China.

5. The testimony of the witness He Yongqin proves: in early December 2008, he received an e-mail from Liu Xiaobo containing “Charter 08”. Liu Xiaobo let him see it and sign it if he wanted. After reading the e-mail, he replied to Liu Xiaobo that he agreed to sign it.

6. The testimony of the witness Zhao Shiying proves: that in October 2008, Liu Xiaobo sent “Charter 08” to him through the Internet and asked for his advice on revising it, and asked that he find other people willing to sign it. At a meeting, Zhao showed “Charter 08” to over 10 people. Four of them said that there were willing to sign it. Liu Xiabo through the Internet also asked him to go to Guangzhou to collect signatures. In Guangzhou, he collected five signatures.

7. The testimony of the witness Yao Bo proves: that in October 2008, when Liu Xiaobo met him, and discussed the charter with him, he agreed to sign it.

8. The testimony of the witness Zhou Duo proves: that one day in November 2008, Liu Xiaobo went to his home to show him the draft of “Charter 08”, and asked for his help in revising it. After Liu Xiaobo left, he looked over the draft but did not revise it. He did not sign at that time, but later he saw the Charter online had his signature.

9. The testimony of the witness Fan Chunsan proves: that in late October 2008, when he was eating with Liu Xiaobo and others, Liu Xiaobo took out a copy of “Charter 08” for him to read. When Liu Xiaobo asked him whether or not he would sign it, he agreed to sign it. He knew that Liu Xiaobo has published this document already on web sites outside the borders of mainland China such as “Boxun” and “The Independent Chinese PEN Association”. He had also read it online and knew that Liu Xiaobo’s document was of the kind that criticized contemporary politics.

10. The testimony of the witnesses Xu Junliang, Zhi Xiaomin, and Teng Biao prove: that in November and December 2008, they received in their e-mail mailboxes “Charter 08” but did not know who had sent it. They each signed “Charter 08” and sent it back to the mailbox they had received it from.

11. The testimony of the witness Wang Zhongxia proves: that in December 2008, after reading “Charter 08” online, he found that he agreed with it and signed it. Later, he had printed some “Charter 08” shirts and wore it himself and gave them to other people to wear in order to publicize “Charter 08”.

12. The “investigation record” of Public Security organs and material evidence photographs of December 8, 2008 prove: that relying on the testimony of witnesses, Public Security searched Liu Xiaobo’s residence at No. 7 Xiancun, Bank of China dormitory Building 10, Unit 1, No. 502 in the Haidian District of Beijing Municipality, found and took into custody the tools that Liu Xiaobo used to write the documents and to send them to web sites—two notebook computers, one desktop computer, and one copy of a printed document “Charter 08—Request for Comments”.

13. The Beijing Municipality Networking Industry Association Forensic Electronic Data Center provided a “Judicial Testimony Opinion Document” that proves: on December 13, 2008, a forensic examination of the data stored on the three computers authenticated the discovery of the electronic documents “The Dictatorial Patriotism of the Chinese Communist Party”, “How Can it be that Only Party-Guided Democracy is Suitable for the Chinese People?”, “Change the Political Regime by Changing Society”, “The Many Faces of the Chinese Communist Dictatorship”, “The Negative Effect of the Rise of a Dictatorship on World Democratization”, “Inquiring Further into the Case of the Child Slaves of the Black Kilns” and “Charter 08”. In the records of the software “Skype” on his computer were found and recorded from the software a record of multiple e-mails that he sent from November to December 8, 2008 multiple e-mails were sent containing “Charter 08” and the “request for comments” document.

14. The on the scene investigation by the Public Security organs, and record of the investigation and the explanation of the work proves:

1. The Beijing Municipality Public Security Public Information Network Security and Supervision Office First Detachment on December 19-23 discovered and downloaded the document signed “Liu Xiaobo” entitled “Liu Xiaobo The Dictatorial Patriotism of the Chinese Communist Party”. The document resided on a web site with the domain name epochtimes.com. The web site server is outside the borders of mainland China. The document was marked as having been published on October 4, 2005. That document as of December 23, 2008 links were found to five web sites that had either published or republished that document.

2. Between December 19, 2008 and August 3, 2008, Beijing Municipality Public Security Public Information Network Security and Supervision Officer First Detachment found and downloaded from the Internet a document signed “Liu Xiaobo” entitled “Liu Xiaobo How Can it be that Only ‘Party Guided Democracy’ is Suitable for the Chinese People?”. That document resided on the web sites with the domain names epochtimes.com (The Epoch Times) and www.observechina.net (Observe China). Both web site servers are outside the borders of mainland China. The document is marked published on January 5, 2006 and January 6, 2006. This document as of December 23, 2008 had been published or republished on five web sites and had a total of 402 hits.

3. Between December 19, 2008 and August 3, 2008, Beijing Municipality Public Security Public Information Network Security and Supervision Officer First Detachment found and downloaded from the Internet a document signed “Liu Xiaobo” entitled “Liu Xiaobo Change the Political Regime by Changing Society”. That document resided on the web sites with the domain names epochtimes.com (The Epoch Times) and www.observechina.net (Observe China). Both web site servers are outside the border of mainland China. The document is marked published on February 26, 2006 and February 27, 2006. This document as of December 23, 2008 had been published or republished on five web sites and had a total of 748 hits.

4. Between December 19, 2008 and August 3, 2008, Beijing Municipality Public Security Public Information Network Security and Supervision Officer First Detachment found and downloaded from the Internet a document signed “Liu Xiaobo” entitled “Liu Xiaobo The Many Faces of the Chinese Communist Dictatorship”. That document resided on the web sites with the domain names www.secretchina.com (Secret China) and www.observechina.net (Observe China). Both web site servers are outside the border of mainland China. The document is marked published on March 13, 2006. This document as of December 23, 2008 had been published or republished on six web sites and had a total of 512 hits.

5. Between December 20, 2008 and August 3, 2008, Beijing Municipality Public Security Public Information Network Security and Supervision Officer First Detachment found and downloaded from the Internet a document signed “Liu Xiaobo” entitled “Liu Xiaobo The Negative Effect of the Rise of a Dictatorship on World Democratization”. That document resided on a web site with the domain name www.secretchina.com (Secret China). The web site server is outside the borders of mainland China. The document is marked published on May 7, 2006. This document as of December 23, 2008 had been published or republished on seven web sites and had a total of 57 hits.

6. Between December 20, 2008 and August 3, 2008, Beijing Municipality Public Security Public Information Network Security and Supervision Officer First Detachment found and downloaded from the Internet a document signed “Liu Xiaobo” entitled “Liu Xiaobo Persisting with a Deeper Inquiry into the Case of the Child Slaves of the Black Kilns”. That document resided on web sites with the domain names www.minzhuzhongguo.org (Democratic China) and www.renyurenquan.org (Human Rights in China). Both web site servers are outside the border of mainland China. The document is marked published on August 1, 2007. This document as of December 23, 2008 had been published or republished on eight web sites and had a total of 488 hits.

7. On December 11, 2008, Beijing Municipality Public Security Public Information Network Security and Supervision Officer First Detachment found and downloaded from the Internet a document entitled “Charter 08”. That document resided on the web site with the domain name www.chinesepen.org (The Independent Chinese PEN Center). The web site server is outside the borders of mainland China. The document is marked published on December 9, 2008 and is signed by a group of people. The same day, a document entitled “Chinese People From All Walks of Life Join Together to Issue Charter 08” was found and downloaded from the web sites with the domain names boxun.com and www.minzhuzhongguo.org (Democratic China). Both of the web site servers are located outside the boundaries of China and show publication dates of December 8, 2008 and December 12, 2008. This document as of December 12, 2008 had been published or republished on 33 web sites including 19 outside the borders of mainland China and had a total of 5154 hits and 158 replies. On December 9, 2008, it was found that the web site with the domain name www.2008xianzhang.info (Charter 08) had as of December 9, 2009 the signatures of 10,390 people who had signed “Charter 08”.

8. The Beijing Municipality Public Security Public Information Network Security and Supervision Office investigated Liu Xiaobo’s e-mails and as a result of that examination found that Liu Xiaobo’s e-mail mailbox is located outside the borders of mainland China. After using a password to get into that mailbox to check it, it was found that the earliest e-mail sent from that mail box was dated November 25, 2008 and that 30 of the sent e-mails included “Charter 08".

 
15. Liu Xiaobo’s signature in acknowledgement proves: that Liu Xiaobo confirmed the authenticity of documents downloaded and saved by the Public Security network monitoring and control departments “Liu Xiaobo The Dictatorial Patriotism of the Chinese Communist Party”, “Liu Xiaobo How Can it be that Only Party Democracy is Suitable for the Chinese People?”, “Liu Xiaobo Change the Political Regime by Changing Society”, “Liu Xiaobo The Many Faces of the Chinese Communist Dictatorship”, “Liu Xiaobo The Negative Effect of the Rise of a Dictatorship on World Democratization”, “Liu Xiaobo Enquiring Further into the Case of the Child Slaves of the Black Kilns”. Liu Xiaobo acknowledges that the documents in question were written by him and then published on the Internet. The evidence presented demonstrate that those documents acknowledged by Liu Xiaobo contain inciting speech.

16. The defendant Liu Xiaobo’s deposition proves: that Liu Xiaobo deposes that he used his computer to write and then publish on the Internet the documents described above. Liu Xiaobo and the evidence presented above are mutually confirmatory.

17. The account that the Public Security organs provided on the progress of the case proves: that Public Security on the evening of December 8, 2008 went to Liu Xiaobo’s residence at No. 7 Xiancun, Bank of China dormitory Building 10, Unit 1, No. 502 in the Haidian District of Beijing Municipality in order to arrest Liu Xiaobo.

18. The previous “criminal verdict document” issued by the Beijing Municipality Intermediate Court (1990) Criminal Case 2373, the Beijing Municipality People’s Government Re-education Through Labor Management Committee (96) Beijing Labor Case No. 3400 “Decision on Re-education Through Labor”, proves: that Liu Xiaobo on January 26, 1991 although he committed the crime of making counter-revolutionary inciting propaganda was not given a criminal punishment; and that on September 26, 1996 because he had disturbed social order, his case was handled by giving him three years of re-education through labor.

19. Identification provided by the Public Security organs prove: the name, residence, and other information of the defendant Liu Xiaobo.

This court believes that the defendant Liu Xiaobo with the purpose of incitement to overthrow our country’s people’s democratic dictatorship system and socialist system, used the Internet to distribute his document because of its rapid speed, great scope, large social influence and the attention to which the people pay to it. He wrote the documents and used the Internet to publish it in order to slander and urge other people to overthrow our country’s people’s democratic dictatorship system and socialist system. This conduct already constitutes the crime of incitement to overthrow state power. Moreover, he has been committing this crime for a long while and the subjective evil caused is great. The published documents have been spread through links and republishing. People read them and they have a bad effect. This is the crime of a major criminal and should be severely punished according to law.

The Beijing Municipality First Intermediate Court First Branch believes that the facts are clear and the evidence has been confirmed that the defendant Liu Xiaobo committed the crime of incitement to overthrow and so he is found guilty of the crime for which he has been charged. As for the views presented by Liu Xiaobo and his defense counsel in court, the court found through its examination that the facts and evidence sufficiently prove that Liu Xiaobo made use the characteristics of the Internet as a communications medium, by publishing slanderous documents on the Internet, to carry out his action of inciting the overthrow of our country’s people’s democratic dictatorship system and the socialist system. The actions of Liu Xiaobo are beyond the scope of freedom of speech and constitute a crime. Therefore, the pleas presented by Liu Xiaobo and his defense counsel cannot be established and this court does not accept them. According to the facts and nature of the crime committed by the defendant Liu Xiaobo, the circumstances, and the harm that has been done to society, this court according to Chapter 105, Section two; Chapter 55, Section one; Chapter 56, Section one, and Chapter 64 of the Criminal Code of the PRC, makes the following verdict:

1. The defendant Liu Xiaobo, for the crime of incitement to overthrow state power, is sentenced to prison for 11 years and deprivation of political rights for two years. (The sentence is to be served from the day of sentencing, with deduction for time in confinement on a day for day basis, that is from June 23, 2006 to June 21, 2020.)

2. All the materials that Liu Xiaobo used to commit the crime are to be confiscated (list follows).

3. If the defendant does not accept this judgment, an appeal can be made between two days and 10 days after the issuance of this verdict, either through this court or directly to the Beijing Municipality Superior Court. The appeal should be accompanied by an original of this verdict together with two copies.

Jia Lianchun, Chief Judge
Bang Jiaowei, Assistant judge
Zhai Changxi, Assistant judge
December 25, 2009
Gu Xin, Court Clerk

The items confiscated when taken into custody are to be forfeited:

1. Notebook computer (IBM model T43), one
2. Notebook computer (Lianxiang model Chaoyang 700 CFe), one
3. Desktop computer (Lianxiang model Jiayue), one
4. Charter 08 request for comments draft (sealed together with the court papers), 7 pages+