The devastating 7.8-magnitude earthquake that rocked Nepal on April 25, 2015 also brought casualties and widespread damage to southwestern Tibet. Across the region there were 25 deaths, four missing, hundreds of injuries, and more than 47,500 people were displaced. Tingri, 150 miles southwest of Shigatse, was one of the hardest hit counties, where nearly 80 percent of housing was leveled by the quake.
Disaster relief efforts often produce tensions between government officials and those whose lives have been most affected. This appears to have been the case for Tingri county resident Garab, whose home was destroyed in the quake and whose apparent frustration with inaction by local officials led to a symbolic act of protest that put him in prison for two and half years.
According to the court verdict (translated below), Garab reportedly found an old PRC flag in the ruins of his former home weeks after the April quake. Prosecutors alleged that he burned holes in the flag and then used a marker to write “Free Tibet” on it. After allegedly hiding the flag under his mattress for several days, he discarded it along a path where some village children found it. Members of a work group stationed in the village noticed the children playing with the flag and reported the incident to local authorities. Garab was later taken into custody and charged with flag desecration under China’s Criminal Law.
Garab’s November 2015 trial appears to have been only the third criminal trial filed at the court that year, making it a rather rare event for the judges of the Tingri County People’s Court. Similar acts of protest elsewhere in China have resulted in lighter sentences. But, instead of ascribing Garab’s act of protest to high emotions in the wake of tremendous personal loss, the court showed little leniency—shaving only six-months off the maximum three-year prison sentence though Garab had confessed, expressed remorse, and had no prior police record.
The trial itself appeared perfunctory. While the verdict refers vaguely to forensic testimony, Garab’s confession seems to have been the prime piece of evidence linking him to the flag desecration. However, because his act of protest happened in an ethnic border region during a time of heightened tensions, local authorities’ need to preserve stability took priority.
Tibet Autonomous Region Tingri County People’s Court
Criminal Verdict
(2015) Tingri Crim. 1st No. 3
The prosecuting organ is the Tingri [Dingri] County People’s Procuratorate.
The defendant Garab, male, Tibetan, born June 5, 1972, understands a little Tibetan, is a farmer from Tingri County, Tibet, and lived there prior to his arrest. He has no prior record. On June 15, 2015, the Shigatse [Rikaze] Public Security Bureau placed defendant Garab under criminal detention in accordance with the law on suspicion of desecrating the national flag. On July 17 of the same year, he was arrested in accordance with the law by the Shigatse Public Security Bureau and is currently being held in the Shigatse Public Security Bureau Detention Center.
The defense counsel is Tenkyi, female, Tibetan, of the Chomolungma Law Firm.
On October 23, 2015, the Tingri County People’s Procuratorate filed indictment Tingri Proc. Crim. Indict. (2015) No. 3 with this court, charging defendant Garab in a case of desecrating the national flag. This court formed a collegiate bench in accordance with the law and held an open hearing to try this case. The Tingri County People’s Procuratorate appointed procurator Kalsang Dorje and Tashi Dondrub to appear in court on behalf of the prosecution. Defendant Garab and his defense counsel Tenkyi appeared in court to participate in the proceedings. The trial has now concluded.
The Tingri County People’s Procuratorate charged that, on May 23, 2015, as defendant Garab was cleaning up the wreckage of his earthquake-damaged home in Zuobude Village, Rongshar Township, Tingri County, he picked up an old but relatively intact PRC flag. He brought the flag back to his home in Chentang Village and used a lighter to burn the flag, leaving seven holes of different sizes. He then scrawled “Free Tibet” in Tibetan Uchen [block] script on the flag and hid it under his mattress. Three days later, he used yarn to wrap the flag in a bundle and dumped it on a path near Nyimalakang in his village. On May 30, 2015, village work team members Pemba Choedron, Sonam Purchog, Yonwa Madanzhi, and Hu Xiaoliang found village children playing with a burnt flag upon which the words “Free Tibet” had been written. It attracted their attention, so they reported the incident to the party committee and government of Rongshar Township.
The prosecution’s charges are supported by evidence from witness statements, the defendant’s confession, and related documentary and physical evidence. On this basis, the prosecution maintains that the act of burning and defacing the national flag by defendant Garab constitutes the offense of flag desecration and recommends that, according to Article 19 of the Flag Law of the PRC and Article 299 of the Criminal Law of the PRC, defendant Garab be sentenced to 2-1/2 years’ imprisonment.
Defendant Garab did not dispute the facts or evidence put forward in the prosecution’s allegation. However, the defendant said in his defense that the only reason he burned and defaced the flag was because he was unhappy with the inaction of the village party secretary, Dawa Tashi, during the earthquake relief period. He therefore requested that the court show lenience in sentencing.
Defendant Garab’s defense counsel Tenkyi made the following statements in defense: (1) Defendant Garab did not intend to desecrate the national flag when he burned and defaced it, as his primary goal was to [attract] attention from “higher authorities” and have better monitoring over administrative work in the village; and (2) defendant Garab has previously made contributions to border defense work by serving as a Nepali translator.
In the course of the trial, it was ascertained that on May 23, 2015, as defendant Garab was cleaning up the ruins of his home in Zuobude Village, Rongshar Township, Tingri County, he picked up an old but relatively intact PRC flag. He brought the flag back to his home in Chentang Village and used a lighter to burn the flag, leaving seven holes of different sizes. He then used a marker to write “Free Tibet” in Tibetan Uchen [block] script on the flag and hid it under his mattress. Three days later, he used yarn to wrap it in a bundle and dumped it on a path near Nyimalakang, Chentang Village. On May 30, 2015, village work team members Pem___, So___, Yon___ and Hu X found village children playing with a burnt flag upon which the words “Free Tibet” had been written and they reported the incident to the government of Rongshar Township.
The aforementioned facts are confirmed by the following evidence, which was put forth by the Tingri County People’s Procuratorate and cross-examined and confirmed in court:
- Documents concerning the origin of the case, confirming that a case of burning and damaging the national flag was discovered in Rongshar Township, Tingri County.
- Case registration records, confirming the time and place that the case was discovered, along with a summary of the [registration] process and basic information about the suspect.
- The defendant’s identification card and certification letter of household registration, confirming defendant Garab’s place of birth and that he has reached the age of majority.
- The defendant’s confession, confirming that on May 23, 2015, defendant Garab used a lighter to burn seven holes of different sizes in a PRC flag and used a marker to write “Free Tibet” in Tibetan on the flag.
- Testimony of witness Pur___, confirming that he picked up a PRC flag in which holes had been burnt and upon which had been scrawled “Free Tibet” in Tibetan.
- Testimony of witnesses Yon___, Pem___, So___, and Hu X, confirming that the PRC flag in which holes had been burnt and upon which had been scrawled “Free Tibet” in Tibetan was being played with by several children.
- Eight identification records and photos of the scene, confirming the orientation and general overall picture of the scene where the case was discovered.
- Expert testimony, confirming that the words “Free Tibet” written on the burnt and deformed flag were written by defendant Garab.
This court finds that: The PRC flag represents the entire Chinese people and symbolizes the dignity of the nation. This case occurred on our nation’s border and during the special period when resettlement was being carried out following the April 25 earthquake, when the need to maintain stability in affected villages was particularly urgent. Burning holes in the national flag and scrawling “Free Tibet” on it in Tibetan was an insult to national dignity, had a negative influence on society, and hurt the feelings of the broad popular masses. The impact on society was thus especially bad, and defendant Garab’s actions constitute the offense of desecrating the national flag. The criminal facts and crime alleged by the prosecuting organ have been established and the proposed penalty is appropriate; therefore, this court supports [the indictment].
Defense counsel claims that defendant Garab did not intend to desecrate the national flag when he burned and defaced the flag and that his primary goal was to [attract] attention from “higher authorities” and have better monitoring over administrative work in the village. However, motivation is not an element of the crime, and therefore this court does not accept the argument.
With respect to the [defense argument] that defendant Garab had previously made contributions to border defense work by serving as a Nepali translator, this has nothing to do with this case and this court does not accept the argument.
Defendant Garab truthfully confessed his crimes after being taken into custody and has shown a relatively good attitude toward confessing guilt and has demonstrated sincere regret. As defendant Garab is a first-time offender with no previous record, [these circumstances] can be taken into consideration in assessing the penalty. In accordance with Article 299 of the Criminal Law of the PRC, [this court] rules as follows:
ONE. For the crime of desecrating the national flag, defendant Garab is sentenced to 2 -1/2 years’ imprisonment. (The prison term is to be calculated from the day the verdict is implemented, with each day spent in detention prior to the verdict’s implementation to count as one day of the prison term; therefore, it will run from June 15, 2015, to December 14, 2017).
If this verdict is not accepted, an appeal may be filed within 10 days of the second day following the receipt of this verdict, either to this court or directly to the Shigatse Intermediate People’s Court. In the case of a written appeal, the original appellate petition must be submitted together with two copies.
Presiding Judge: Pasang
Adjudication Officer: Tashi Drolkar
People’s Assessor: Sodor
November 27, 2015
Court clerk: Tatsang Kyab
 | Chinese Source（原文）: 嘎热侮辱国旗罪一案刑事判决书 http://wenshu.court.gov.cn/content/content?DocID=a71b59f8-f8ab-49b7-92ba-e75c9f0cfb86 |
西藏自治区定日县人民法院
刑 事 判 决 书
（2015）定刑初字第03号
公诉机关西藏定日县人民检察院。
被告人嘎热，男，藏族，1972年6月5日出生，略懂藏文，系西藏定日县，农民，捕前住西藏定日县，无前科。被告人嘎热因涉嫌侮辱国旗罪于2015年6月15日被日喀则市公安局依法刑事拘留，同年7月17日被日喀则市公安局依法逮捕，现羁押于日喀则市公安局看守所。
辩护人珍吉，女，藏族，珠穆朗玛律师事务所。
西藏定日县人民检察院以定检刑诉（2015）03号起诉书指控被告人嘎热犯侮辱国旗罪，于2015年10月23日向本院提起公诉。本院依法组成合议庭，公开开庭审理了本案。西藏定日县人民检察院检察员格桑多吉、扎西顿珠出庭支持公诉，被告人嘎热、辩护人珍吉到庭参加诉讼，本案现已审理终结。
西藏定日县人民检察院指控：2015年5月23日，被告人嘎热到定日县绒辖乡左布德村清理震后自家废墟时检到了一面显旧但比较完整的中华人民共和国国旗，他将国旗带回陈塘村家中后，用打火机焚烧该国旗致使国旗上留下了7个大小不一的烧洞，使国旗面目全非，之后他又在国旗上涂划了翻译为“西藏独立”的四个藏文吴金字体文字后将国旗藏在床垫底下。过了三天之后他用毛线饶团后抛掷在该村玛尼拉康附近的小路上。2015年5月30日，该村驻村工作队员边巴曲珍、索朗普赤、云瓦马旦知和胡晓亮他们发现该村小孩拿着被烧过、上面写了“西藏独立”四个藏文字体的国旗玩耍，就引起注意，将此事上报给绒辖乡党委、政府。
公诉机关指控的证据有证人证言，被告人供述及相关书证、物证等。公诉机关据此认为被告人嘎热焚烧和涂划国旗的行为构成了侮辱国旗罪。根据《中华人民共和国国旗法》第十九条，《中华人民共和国刑法》第二百九十九条之规定定罪处罚。建议对被告人嘎热判处有期徒刑两年六个月。
被告人嘎热对公诉机关指控的犯罪事实和证据无异议，但被告人嘎热辩称，自己焚烧和涂划国旗的行为，就是因为在抗震救灾期间，我村党支部书记达瓦扎西的不作为行为有意见而侮辱国旗的，并无其他意思，请求法院量刑时予以从轻处罚。
被告人嘎热的辩护人珍吉辩称：1、被告人嘎热损毁、涂划国旗的动机不是故意侮辱国旗。主要目的是为了“上级部门”注意，使村内行政事务得到更好的监督。2、被告人嘎热曾经在我国边防工作上做过贡献，多次为我国边防事务当过尼泊尔语翻译员。
经审理查明，2015年5月23日，被告人嘎热清理震后左布德村的自家废墟时捡到一面中华人民共和国国旗，他将国旗带到陈塘村家中用打火机烧毁该国旗并国旗上烧出了7个不同大小的洞，之后他又用记号笔国旗上写了翻译为“西藏独立”的四个藏文吴金字体将藏在自己的床垫底下。三天之后他用毛线绕团后将国旗扔在陈塘村玛尼拉康附近的小路上。2015年5月30日，驻该村的工作队员边某、索某、云某和胡某他们发现该村小孩拿着上面写了“西藏独立”四个藏文字体并被烧过的国旗玩耍，将此事上报给绒辖乡政府。
上述事实，由定日县人民检察院提交，并经法庭质证、认证的下列证据予以证实。
1、案件来源材料，能够证明定日县绒辖乡发生一起烧损侮辱国旗的案件。
2、受案登记表，能够证明案发的时间、地点、简要过程、涉案人的基本情况。
3、被告人身份证及户籍证明信；能够证明被告人嘎热的出生地，现已成年。
4、被告人供述；能够证明2015年5月23日，被告人嘎热用打火机将中华人民共和国国旗烧了7个大小不等的洞，并在国旗上用记号笔写了“西藏独立”四个藏文字体的事实。
5、证人普某证言，能够证明捡到了一面被烧洞并在上面涂划“西藏独立”四个藏文字体的中华人民共和国国旗。
6、证人云某、边某、索某、胡某的证言，能够证明被焚烧并涂划“西藏独立”四个藏文字体的中华人民共和国国旗被几个小孩拿着玩耍。
7、现场指认笔录及照片8张，能够证明案发现场的方位及整体概貌；
8、鉴定书一份，能够证明被烧洞变形的国旗上所写的“西藏独立”的字由被告人嘎热所写。
本院认为，中华人民共和国国旗代表着全体中华民族，是国家尊严的象征。本案发生在我国边境一线，4.25地震安置点村正是维稳形势特别严峻的特殊时期，对国旗采取烧洞、涂划藏文“西藏独立”的字体，侮辱了国家尊严，在社会上造成了负面影响，伤害了广大人民群众的感情，社会影响极其恶劣，被告人嘎热的行为构成侮辱国旗罪。公诉机关指控的事实和罪名成立，其量刑建议适当，本院予以支持。被告人嘎热辩护人提出的被告人嘎热损毁、涂划国旗的动机不是故意侮辱国旗，主要目的是为了“上级部门”注意，使村内行政事务得到更好的监督。动机不是构成犯罪的要件，本院不予采纳。还有被告人嘎热曾经在我国边防工作上做过贡献，多次为我国边防事务当过尼泊尔语翻译员。与本案无关。本院不予采纳。被告人嘎热归案后如实供述自己的罪行，认罪态度较好，确有悔罪表现，被告人嘎热系初犯，无前科，在量刑上予以考虑。根据《中华人民共和国刑法》第二百九十九条之规定判决如下：
一、被告人嘎热犯侮辱国旗罪，判处有期徒刑二年零六个月。（刑期从判决执行之日起计算，判决执行以前先行羁押的，羁押一日折抵刑期一日即自2015年6月15日起2017年12月14日止。）
如不服本判决，可在接到判决书的第二日起十日内，通过本院或者直接向日喀则市中级人民法院提出上诉。书面上诉的，应当提交上诉状正本一份，副本二份。
审 判 长 巴 桑
审 判 员 扎西卓嘎
人民陪审员 索 多
二〇一五年十一月二十七日
书 记 员 达 仓 决