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12.31.2009

Liu Xiaobo and art. 105 - speech and crime

This post is based on PRC legal commentaries, and does not reflect my opinion about the case.

Article 105(2) is one of the eleven CL provisions aiming to protect China's current political system. Its use by the Beijing n. 1 Intermediate People's Court resulted in the sentencing of Liu Xiaobo to eleven years imprisonment, two years deprivation of political rights, and the confiscation of three computers for incitement to overthrow state power.

So I became curious as to the potential of 105(2). Given that the PRC Constitution grants the right to freedom of expression, under what circumstances can the enjoyment of right be restricted, and when can speech become a crime?

Here's a very quick look at the elements of this offence.

Official commentaries define the mens rea element of this offence as the mere intention to subvert the political power of the state and overthrow the socialist system through means other than the use of force, regardless of the actual outcome of one's actions.

The act of instigation is understood as encouraging the people to overthrow China's current political system through rumours, slander or other means. These other means can be publishing, printing, reproducing, disseminating or airing publications (出版物) advocating a change in political power. (1, 最高人民法院关于审理非法出版物刑事案件具体应用法律若干问题 的解释).

Individual offenders can be punished with a maximum sentence of five years imprisonment. Five years imprisonment in turn becomes the minimum sentence for the ringleader in a joint offence. The collusion with institutions, organisations or individuals based outside of China is a statutory aggravating circumstance (art. 106).

The key elements that resulted in Liu receiving an aggravated punishment could have been:

1. Liu's role as the main drafter of Charter '08.
2. The facts that Liu and his wife's income "comes chiefly from what Liu Xiaobo earns from his writings", and he received money orders in foreign currency from foreign countries. Those who financially supported Liu's endeavour may bear criminal responsibility under art. 107.

Here's a few precedents:

1. Li Qinhua case. 3 years imprisonment, 1 year deprivation of political rights. (Setting up a personal webpage about Tian'anmen). Jiangxi. (2002)刑一终字第208号
2. Chen Yuanhong case. 5 years imprisonment, 3 years deprivation of political rights. (Cooperating with VOA). Xinjiang. (2001)哈刑初字第20号
3. Huang Qi case. 5 years imprisonment, 1 year deprivation of political rights (writing and disseminating articles about Tian'anmen etc.). Sichuan. (2001)成刑初字第49号


Happy New Year to all.

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Article 105. (Subverting state power, inciting the subversion of state power)

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 is 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.

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