Shenzhen Rights Defense Lawyer Liu Yao Released From Detention: In Final Appeal, Liu Sentenced to an 18-month Prison Term, Suspended for 2 Years

On April 16, 2009, the Heyuan Intermediate People's Court in Guangdong province sentenced Shenzhen rights defense lawyer Liu Yao to 18 months in prison, suspended for 2 years, in the second appeal and final hearing in his case, in connection with his representation of villagers from his hometown in Dongyuan county, Heyuan municipality, whose land was reportedly illegally seized for the purpose of building a new hydroelectric station, according to a Radio Free Asia (RFA) article and a Human Rights in China (HRIC) report, both dated April 17. Liu's case highlights several pressing issues in China, including the expropriation of rural land, difficulties citizens face in obtaining redress for their grievances, fair trial challenges, and the risks human rights lawyers face in taking on sensitive cases (see the May 26 Human Rights Watch report on the possibility that officials will not renew the law licenses of a group of rights defense lawyers in apparent retaliation for their work on sensitive cases).

Authorities released Liu Yao from the Dongyuan County Detention Center on April 16 after having detained him for more than 15 months as his case moved back and forth between the Dongyuan People's Court and the Heyuan Intermediate People's Court. During his challenge to the original verdict and sentence -- a challenge that involved two appeals and a retrial -- Liu's original sentence of four years for "intentional destruction of property" (Article 275 of the Criminal Law ) was gradually reduced, but the verdict of guilt was upheld. Liu maintains he is innocent and told Radio Free Asia that he planned to submit a petition to the Guangdong High People's Court. One of Liu's attorneys, the prominent Beijing rights defense lawyer Li Fangping, told Caijing that based on the Lawyers' Law, the conviction means that Liu will be permanently prohibited from practicing law, as reported in an April 17 article. Liu Yao's case received substantial attention among rights defense lawyers throughout China, and was particularly noteworthy for the advocacy that the Shenzhen lawyers' community provided on Liu's behalf. In early February 2009, 511 Shenzhen lawyers signed a petition (available on Human Rights in China's Web site) calling for the Heyuan Intermediate People's Court to hold an open and fair hearing to adjudicate Liu's second appeal, in what HRIC called "the largest joint signature campaign to date by China's legal community."

Factual Background

In 2006, villagers in Paitou sought the assistance of Liu (who was born in Paitou) to represent them in a land dispute involving the Heyuan Fuyuan Hydropower Corporation (Fuyuan) and the Dongyuan county government, according to an August 14, 2008, Caijing article and a February 1, 2009, Voice of America (VOA) report. Liu discovered that Fuyuan had failed to obtain the approvals necessary to appropriate the land and convert it to a nonagricultural use. Moreover, in November 2007, Dongyuan county's State Land and Resource Bureau ordered Fuyuan to halt construction, but Fuyuan failed to comply with the stop-work order. According to Caijing, in December 2007, Liu Yao and a group of villagers made two trips to the construction site to demand that Fuyuan cease construction, resulting in clashes and alleged property damage. Authorities took Liu into custody on December 18, 2007, and detained him at the Dongyuan County Detention Center until April 16, 2009.

First Trial (June 2008)

During his first trial in Dongyuan People's Court in June 2008, Liu argued that their efforts to stop the illegal construction was lawful "self-help" to protect the villagers' rights and thus did not constitute a crime, according to the February 1 VOA article. Liu's defense counsel also argued that the photographs of the construction site offered as evidence by the prosecution were neither dated nor verified and did not reflect the scene at the time of the alleged incidents, according to a July 29, 2008, article in Southern Metropolitan Daily. The article also states that Liu's counsel challenged the property damage appraisal document submitted by the prosecution. The trial court found that the total amount of damages suffered by Fuyuan exceeded 50,000 yuan (approximately US$7,300), according to Southern Metropolitan Daily. The article reports that Liu's trial lawyers stated that the appraisal document was key to the case, because, among other reasons, the amount of the alleged damages qualified as "very large" -- a determination relevant to the criminal charge and sentence. The Dongyuan court concluded that Liu had organized and incited the effort and sentenced him to 4 years in prison; his co-defendants, two villagers, received sentences of 9 and 10 months.

First Appeal (September 2008)

The Shenzhen Lawyers Association and lawyers elsewhere in China protested the original judgment and Liu's four-year sentence and successfully argued to the Heyuan Intermediate People's Court that it should hold a public hearing on Liu's appeal, according to an August 2008 letter (available on the Beijing Yirenping Center Web site) submitted to the Heyuan court by a group of more than 30 Chinese lawyers from several different provinces, and the February 1 VOA report. The Heyuan court concluded that a retrial was necessary due to "unclear facts and insufficient evidence," and on September 22 remanded the case to the trial court (Dongyuan People's Court), according to the Shenzhen lawyers' February 2009 petition.

Retrial (October 2008)

On October 17, 2008, the Dongyuan People's Court retried the case in open court. On December 17, the court issued its judgment upholding Liu's conviction for "intentional destruction of property" but reduced his sentence to two years. The judgment does not explain the reduction in sentence, but lowered the total amount of damages to 46,170 yuan (approximately US$6,750) and noted that the court's adjudication committee (a court's highest authority in deciding cases, comprised of the court president and other court officials) had discussed the case and decided the outcome. The Shenzhen lawyers stated in their February 2009 petition that no new evidence was presented on retrial and that the judgment lacked an adequate explanation of the "major flaws" in the evidence. Li Fangping said that the retrial was obviously unjust and the process used to assess the value of the alleged damage deeply flawed, according to the February 1 VOA article. A Guangzhou rights defense lawyer, Tang Jingling, who followed Liu's case from the beginning, stated that Liu's prosecution was a clear case of "political persecution," according to a January 23 Radio Free Asia article. Tang told RFA that the authorities were "using the law as a vehicle to block the lawyer from providing legal assistance to defend the land rights of the villagers."

Second Appeal and Final Judgment (April 2009)

In their petition, the Shenzhen lawyers called on the Heyuan Intermediate People's Court to hold an open court session to hear Liu's second appeal. On April 10, the Heyuan court did, in fact, hold an open hearing, which lasted a full day -- longer than any of the other proceedings in Liu's case. According to an April 11 Southern Metropolitan Daily article, more than 100 people attended the April 10 hearing, including Heyuan delegates of the National People's Congress and the provincial and municipal people's congresses, as well as representatives from the All-China Lawyers Association, the Guangdong Lawyers Association, the Shenzhen Lawyers Association, and the Heyuan Municipal Lawyers Association. Representatives from the Guangdong High People's Court, the provincial procuratorate, and the provincial justice bureau were also present. Three witnesses who had not testified in any of the previous hearings appeared and provided testimony. Liu Yao's attorneys again questioned the evidence offered by the prosecution and the procedure used for determining the value of the damages, according to Southern Metropolitan Daily. The Heyuan court issued the final judgment in Liu's case on April 16, further reducing the value of the damaged property to 23,798 yuan (approximately US$3,480), according to an April 17 Xinhua report. As noted above, Liu received a suspended sentence and was released from detention.

Following the April 16 verdict, Li Fangping told Caijing that the underlying cause of Liu Yao's case -- the unlawful seizure of the villagers' land -- still had not been resolved. Li Fangping also told Human Rights in China, "from the reduction of the sentence from 4 years to 2 years and then to 18 months with a 2-year suspension -- you can tell that the prosecution's case was problematic. I hope that the international community will continue to pay attention to this kind of case and the situation of rights defense lawyers in China," according to a statement issued by HRIC on April 17.

For additional information on Liu Yao's case, please see his record of detention, searchable through the Congressional-Executive Commission on China's (CECC) Political Prisoner Database. For more information on obstacles facing human rights lawyers in China, see Section III -- Access to Justice in the CECC 2008 Annual Report.