An interview with lawyer Zhang Qingfang about the trial of Xu Zhiyong (1)

“领导说它是马,法院也不敢说它是鹿”
——访张庆方律师谈许志永案一审
When the Leaders say it is a horse, the court dares not to say it is a deer

On January 23, 2014, Professor Ai Xiaoming interviewed Lawyer Zhang Qingfang, the defendant lawyer for Xu Zhiyong whose trial was conducted on January 22, 2014. During the interview, Lawyer Zhang was also answering other media interviews by phone, these answers were also written down by Professor Ai. Questions and answers belonging to the phone interviews are put into brackets for clarification. The complete interview can be read here (in Chinese). (I will try to translate part of the interview in the following days. The following is the first translation)

艾:昨天庭审是个什么状态?
Ai: What is the situation of yesterday’s trial?

张:庭审是非常滑稽的,因为正常的庭审对被告人的讯问是很重要的,检察官要问,律师也要发问。现在少了控辩双方交锋的过程,就不是一个正常的审判了;成了检察院的独角戏,他们自己在那里一遍又一遍地去念事先由警方写好的笔录。证人也不允许出庭,因为怕证人出庭,万一把真相讲出来,那不就不是犯罪了吗?就是这么一种单方的表演,演戏,就是这样。
Zhang: The trial is ridiculous. During normal trials, the questioning to the defendant is very important, the prosecutor needs to ask, and the defendant lawyer also needs to ask questions. However if this process of the interactions between the prosecutor and defendant is missing, it will not be a normal trial, it becomes a monologue played by the prosecutors. They were just repeatedly reading the written records already prepared by the police. The witnesses were not allowed to show in the court, since they were afraid that the witnesses would tell the truth then it would prove that there was no violation of the law. It is just a single-party’s play, performance, it is as such.

尽管如此,警方举出的这些证据,费劲八咧地有一百九十五份证据。这些证人证言、最重要的包括现场录像;我早就说过,它想找许志永犯罪的证据,其实没有找到。最初是2011年11月以“煽动颠覆国家政权”罪给许志永立的案,说明政府对许志永一直深怀敌意,认为他是要煽动颠覆国家政权的,对执政党不满。但是经过一年多的秘密侦查,什么盯梢这些手段全都用上了,也没有找到这方面的证据。但是风已经放出去了,他们还是要抓人。抓人总要找理由,当初对袁冬、丁家喜他们这些人,是用非法集会罪;说你们在西单搞什么条幅,要求官员财产公开,搞什么演讲。他们是以非法集会罪抓的人,抓了以后又发现用非法集会罪,其实也整不到许志永。因为非法集会是什么?你说多少人的集会叫非法集会?非法集会必须有阻碍、抗拒工作人员现场执法。那许志永从来都是说,我们不要和警察现场发生冲突。你套非法集会罪能不能把许志永定罪?它也没有这方面证据。最终,它又改罪名:聚众扰乱公共秩序罪。这个罪名一变再变,表明不是说许志永有罪,而是说他们一定要把许志永整成有罪的又去找理由。但是最终他们找到这些理由也是不能成立的。
Even when it is like this, the 195 pieces of evidence listed by the police with all their effort, including witness’s words, and on-site videos, as I already said they wanted to look for evidence to prove Xu Zhiyong was guilty, but did not find anything at all. In Nov 2011, the crime of ‘subverting state power’ was used to charge Xu Zhiyong, since the authority has long been having a hostile attitude towards Xu Zhiyong, and thought he would subvert state power and was not satisfied with the ruling party. However, later the authority found it could not work since they did not find any evidence after one year’s secret investigation with all kinds of measures taken, including following him in stealth. However, since the authority has already indicated this, they have to arrest people anyway. To arrest people need reasons. With regard to Yuan Dong, Ding Jiaxi, the authority used the crime of illegal gathering; saying that they used banners in Xidan, giving public speech, demanding government officials disclose their assets. They used the crime of illegal gathering to arrest these people, however afterwards, they found this crime could not be used to charge Xu Zhiyong. What is illegal gathering? How many people can form illegal gathering? There must be obstacles, and obstructing law-enforcing personnel to constitute illegal gathering. The authority does not have any evidence to prove this. Xu Zhiyong always says, we shall not have any conflict with the police. Therefore to charge him with illegal gathering is impossible. Then, the authority changed him with gathering crowd to disrupt public order. The charge has been changed again and again, which proves that Xu is not violating the law, it is the authority that is working hard to allege that he is guilty. However, the reasons they found so far do not stand for it anyway.

最根本的就是你说他扰乱公共场所秩序罪,什么时间?他怎么扰乱的?既然是公共场所的秩序,离开了人,是没有办法谈秩序的。秩序都是和人有关。只有妨碍了具体的人才能说妨碍秩序罪。它侦查了这么长时间找不出一个人来,没有任何一个北京市民说妨碍我了,没有啊。他们找到这些证据是什么呢?都是官方的人,现场处理的警察,教育部的保安,说是他们这些人来了辱骂我们的领导,堵车堵门导致我们不能正常地办公。骂得不堪入耳,损害了我们领导、我们部的形象,教育部的形象。但是他又拿不出来证据,都是自己这么说。没有证据。
The most important factor with regard to disrupting public order is, when and how he disrupted public order. While it is public order, then it is relating to people. Only when specific people were affected, it can be said that the public order is disrupted. The authority has not found any Beijing resident to prove this after such a long time investigation. What are the evidence found by them? They are all government personnels, police, security of the Ministry of Education, and they said that people said insulting words about their leaders, blocked the gate and cars and made them unable to work properly; and people’s insulting languages affected the image of their leaders and the Ministry of Education. However, they cannot prove it with any evidence.

事实上这些家长们,都是受过高等教育的,这些人的素质都非常高。再加上他们的目的很单纯,他们为什么要跟教育部门闹翻,他们的目的——因为我在这里工作,我在这里缴税,我希望我的孩子将来参加高考的时候别再回到老家去。他们的孩子们也都认为自己是北京人了,一口北京腔,也在北京上了小学中学。将来高考的时候说你不是北京的,你是河南人你是陕西人。他们就是很单纯的一个要求。这个过程中他们也不希望引起主管部门的反感,引起反感也不能解决问题。但是你只是好声好气地说,也不行,因为他们们没有压力。他们只是希望有一定数量的人员到场,施加一定的压力来达到自己善良的愿望。
In fact, the parents, are all well-educated, and with high personal qualities. Plus their aim is very simple, they just want their children not to have to go back to their home towns to take the university entrance exam, since they have worked in Beijing, paid tax in Beijing for years. Their children also think they are Beijingers, they speak Beijing dialect, attend primary schools and middle schools in Beijing. However, they will not be allowed to take the university entrance exam in Beijing since their house registration is not in Beijing, they are Henan people and Shanxi people by then. During the whole process, parents do not want to make the responsible authority feel unhappy, to make them feel unhappy will not solve the problem. However, if you only make your claim in a gentle tone, it also does not work, because there is no pressure. This is why they want to have a certain amount of people to be there to impose some pressure and realize their good will.

现场的视频很清楚,我们一看,那明显和乱是没有关系的。但是,我也跟很多人讲过:检察院牵了一头鹿到法庭上说,说这是一匹马,并且要求法院来认定,这就是一匹马。就这么简单,大家都知道。法院会不会最终说这就是马呢?不排除。如果赵高说这就是马,那法院它也不敢说这就是鹿。
The onsite video shows it very clear, it did not cause any chaos. However I also talked with many people, it is like, the prosecutor takes a deer to court and says it is a horse, and asks the court to confirm it is a horse. It is this simple, everyone knows it. Will the court say it is a horse? Possible. If Zhao Gao says it is a horse, the court dares not to say it is a deer.

所有的事情都很单纯,因为他呼吁教育平等权,呼吁官员公开财产,这就要定罪。当然检察官也讲了,说并不是因为你的这些口号、你的这些要求给你定罪,而是因为你违法了。你扰乱了市民的正常生活,妨碍了公共秩序。
Everything is so simple, just because he calls for the right to equal education and government officials to disclose their assets, he is going to be charged. Of course the prosecutor always says, it is not because your slogans and your requests, it is because you violate the law, you disrupted residents’ daily lives, and disrupted public order.

这个东西判断有罪无罪很简单,就是现场视频。这个现场视频我们也会向社会公开,也已经在通过一些媒体在公开。老百姓看了以后大家都会很清楚。说白了就是一个问题:是鹿还是马?这个官方非得说是马。那就让官方成为历史的笑料去吧,就这么简单。
It is easy to judge by watching the video. We will make the video public. People will understand once they watch it. To put it another way, is it a deer or a horse? The authority insists to say that it is a horse, this will only become a laughing stalk in the Chinese history.

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