The Dui Hua Foundation’s Executive Director John Kamm visited the People’s Republic of China (Beijing, Guangzhou, Hong Kong) from February 12 to February 26, 2006. He held meet­ings with officials of central government ministries and representatives of the judiciary, meet­ing with judges and prosecutors from all four levels of Chinese courts. He expresses his apprecia­tion to the Chinese government for its assistance and for the many courtesies extended to him on his visit.

A goal of the visit was to attend trials of criminal cases. Since late 2004, when the Supreme People’s Court President Xiao Yang visited the United States and invited Americans to attend Chinese trials, Kamm had applied to attend criminal trials, specifically those of “disturb­ing the social order” and “endangering state security.” Kamm also hoped to explore topics re­lated to judicial openness, including access to verdicts and judicial statistics, and to obtain sentenc­ing information for cases of concern.

Attending Chinese Trials

With the assistance of the Supreme People’s Court and the Higher People’s Court of Beijing Municipality, Kamm attended a trial of “creating a public disturbance” heard in the Chaoyang District People’s Court on February 17, 2006. The defendant pled guilty and was sen­tenced to two years in prison. In Guangzhou, Kamm attended a robbery trial heard by the Guangzhou Intermediate People’s Court on February 20, 2006. The trial was suspended by the chief judge in order to consider amending the charge to robbery and murder.

Access by foreigners to Chinese trials appears to vary from place to place. In Beijing, only foreigners with certain kinds of visas, namely those denoting “official business” covering participation in official delegations of foreign jurists or other experts, can attend trials. Foreigners with the most commonly granted visa, the “L” visa issued for business or tourism, cannot attend trials without special permission granted by the Higher People’s Court. (Foreigners of course have the right to attend trials in which they are plaintiffs or defendants, as do immedi­ate family members and consular representatives of foreigners on trial.)

In Guangzhou, by contrast, foreigners can simply show up at court, complete a simple form and, after passing a security check, attend any trial that is open to the public, regardless of whether or not they have an interest in the outcome of the trial.

As provided for in Chinese law, all trials are “open” with the exception of those involving state secrets, juveniles (i.e., those 18 years or younger), or certain sensational or private matters (e.g., rape of under-aged girls). In theory, trials of endangering state security that do not involve trafficking in state secrets are open, but the presiding chief judge enjoys consider­able discretion in closing such trials if he or she thinks that state secrets might be dis­cussed in the courtroom or if documents that are themselves state secrets are introduced into evi­dence.

Availability of Verdicts

Kamm visited the Verdicts Storage Room of the Chaoyang District Court and discussed the availability of verdicts with court officials there and elsewhere.

There is an ongoing debate in Chinese legal circles over whether or not all verdicts should be made public. Since most trials are open, and since the court can word verdicts in ways that protect state secrets, juveniles, and privacy, many scholars think that all verdicts should be available to the public. Courts have begun to post verdicts on their web-pages, although several have openly stated bans on the posting of verdicts in trials of endangering state security. In prac­tice only relatives of defendants and lawyers representing parties to a trial are granted access to verdicts and other court documents. Legal scholars are sometimes allowed to read verdicts of cases germane to their research. Those wishing to see verdicts and other documents from a trial must apply to the office controlling access to the verdicts room. There is an “external applica­tion” and internal procedures for assessing the application.

Foreigners wishing to read verdicts of trials in China should first apply to the foreign af­fairs bureau of the province or municipality where the trial occurred. The application will then be han­dled by the bureau in accordance with the external application and internal assessment proce­dures. No one who spoke to Kamm was aware of a single instance in which a Chinese court has given a foreigner a verdict in a Chinese trial that did not itself involve foreigners.

Legal Statistics

On February 15, 2006, Kamm held a meeting with Ms. Yan Ge, Division Director of the Research Office of the Supreme People’s Court. Kamm was told that this was the first time the office has discussed with a foreigner how it compiles the statistical tables released by the court at the annual session of the National People’s Congress in March.

In the report for 2005, the Supreme People’s Court for the first time released detailed explanatory notes along with its statistics. Kamm asked questions about the statistics and the notes and was able to clarify a number of issues regarding acquittal rates, accounting of endangering state secu­rity and counterrevolu­tion trials, division of civil and criminal trials of foreigners and Hong Kong Chinese, and parole and sentence reduction statistics for prisoners serving sentences.

Information on Cases of Concern

Jigme Tenzin and Nyima Choedron

The Lhasa Intermediate People’s Court, which commuted Jigme Tenzin Rinpoche’s life sen­tence for “splittism” to 19 years on July 31, 2003, granted the prisoner a one-year sentence reduc­tion on November 17, 2005. His sentence is now due to expire on July 30, 2021.

Jigme Tenzin Rinpoche (also known as Bangri Rinpoche) was born in 1966 in a Tibetan re­gion of Qinghai Province. He and his wife, 37-year-old former nun Nyima Choedron, founded the Gyatso Children’s Home, an or­phanage in Lhasa, in 1996. The orphanage received financial support from Americans and Europeans and was home to about 60 orphans at its peak. On Au­gust 27, 1999, Jigme Tenzin and Nyima Choedron were both detained on suspicion of endangering state security, believed to be related to an anti-Chinese protest that took place in Lhasa during the 1999 national minority games. After their detentions, the orphanage was de­clared an illegal organization and closed.

On September 26, 2000, Jigme Tenzin was convicted of splittism by the Lhasa Intermedi­ate People’s Court. He was sentenced to life in prison, with deprivation of political rights for life. Nyima Choedron was convicted of splittism by the same court on the same day and sentenced to 10 years in prison, with subsequent deprivation of political rights for five years.

Citing her good behavior (the same reason given for her husband’s commutation and subse­quent sentence reduction), Nyima Choedron has been granted two sentence reductions total­ing 2½ years. She is due to be released on February 26, 2007, just under one year from now. In light of her good behavior and the fact that she has a seven-year-old daughter who was born immedi­ately before her incarceration, The Dui Hua Foundation believes that Nyima Choedron is a good candidate for commutation of her remaining sentence.

The case of Jigme Tenzin Rinpoche and Nyima Choedron has been championed by the Friends of Gyatso Children’s Home and other organizations in the United States and abroad. Theirs were the first names on the list submitted by the US State Department in the 12th round of the Sino-US dialogue on human rights held in October 2001. Senators, led by Dianne Feinstein (D-California), have written letters to Chinese Foreign Minister Li Zhaoxing in support of clem­ency. Recently, the governments of Norway and Switzerland, which has a large Tibetan commu­nity, have taken the lead in urging the Chinese government to grant relief. It is understood that Manfred Nowak, the UN Special Rapporteur on Torture, visited Jigme Tenzin in Qushui [Chushur] Prison shortly after the Tibetan was granted the most recent reduction. Nowak also visited Nyima Choedron in Tibet Autonomous Region [Drapchi] Prison.

Xiao Yunliang

On February 23, 2006, Xiao Yunliang, a laid-off worker who in early 2002 led large-scale protests against non-payment of pensions, corruption, and other grievances that paralyzed Liaoyang, Liaoning Province, had the remaining 24 days of his four-year sentence commuted. He was released from Shenyang’s Kangjiashan Prison that day, according to information pro­vided by the Chinese government. Xiao’s political rights are suspended until February 22, 2008. He is nearly 60 years old and has suffered from ill health in prison.

On May 9, 2003, Xiao and fellow protest leader Yao Fuxin were convicted of subver­sion by the Liaoyang Intermediate People’s Court. Xiao was given a four-year sentence dating from March 20, 2002, and Yao was given a seven-year sentence, with subsequent depriva­tion of political rights for three years. Yao has not been granted any sentence reductions, and he is currently due for release from Liaoning’s Lingyuan No. 2 Prison on March 16, 2009.

Securing the early release of Yao Fuxin and Xiao Yunliang has been a high priority of the in­ternational labor movement. The International Conference of Free Trade Unions (ICFTU) has repeatedly filed complaints about their case with the International Labour Organization’s Freedom of Association Committee, and its sister unions around the world have joined in the ef­fort. Yao and Xiao have been on virtually every list of cases of concern submitted by foreign coun­tries that have official human rights dialogues with China and are believed to be on the list of priority cases handed to Chinese officials by American officials in February.

The Dui Hua Foundation
San Francisco, California
February 28, 2006