Submission to UN on Xia Junfeng – April 17, 2013

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To:

Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions

 

Questionnaire of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions

Completed by Chinese Human Rights Defenders

On behalf of Xia Junfeng, Citizen of People’s Republic of China

April 17, 2013

I. Identity of the person concerned:

1. Family name: XIA (夏)

2. First name:  Junfeng (俊峰)

3. Sex:  Male

4. Birth date or age:  December 11, 1976

5. Nationality(ies):  People’s Republic of China

6. Civil status (single, married, etc.):  Married

7. Profession and/or activity (e.g. trade union, political, religious, humanitarian/solidarity/human rights, etc.)

Street vendor

II. Information regarding the incident:

1. Date: November 15, 2009 (issuance date of death sentence at first-instance trial) and May 9, 2011 (issuance date of upheld death sentence at second-instance trial)

2. Place: Shenyang City Intermediate People’s Court and Liaoning Provincial High People’s Court

3. Time: N/A

4. The nature of the incident: Please describe the circumstances of the incident, including the following categories:

Death penalty, unfair laws and proceedings, charges, eventual appeals, execution is imminent.

On November 15, 2009, the Shenyang City Intermediate People’s Court convicted Xia Junfeng of intentional homicide for killing two City Administration and Law Enforcement officers (chengguan) as they were violently beating him. (The court also ordered him to pay the families of the deceased 650,000 RMB in compensation.) On May 9, 2011, the Liaoning Provincial High People’s Court upheld the death sentence handed down at the first-instance trial.

Xia’s case stems from an incident on May 16, 2009, when he was accosted by a group of more than 10 officers from the Shenhe District Branch Bureau of the Shenyang City Administration and Law Enforcement Bureau (沈阳市城市管理行政执法局沈河分局) while selling food from a street stall in Shenyang City, Liaoning Province. The officers confiscated a gas canister belonging to Xia, and began beating him in the street. They then took him to the Shenhe District Branch Bureau, without producing any legal documentation to authorize his detention, and three officers continued to beat him. While he was being beaten, Xia produced a knife that he used to prepare food at his stall and stabbed the officers, killing two and injuring the third.

The trial in November 2009 was unjust and rife with violations of China’s Criminal Procedure Law (CPL). Xia’s wife Zhang Jing (张晶) stated that witnesses were prevented from testifying, evidence was not allowed to be presented, and facts relevant to the case were ignored by the court. Article 47 of the 1996 CPL stipulates that “the testimony of a witness may be used as a basis in deciding a case only after the witness has been questioned and cross-examined in the courtroom by both sides, that is, the public prosecutor and victim as well as the defendant and defenders, and after the testimonies of the witnesses on all sides have been heard and verified.” Article 58 of the SPC’s interpretation of the 1996 CPL provides that “evidence shall be presented, identified and examined at the court investigation stage, otherwise shall not be used as a basis in deciding a case.”

Furthermore, Beijing-based human rights lawyer Teng Biao (滕彪), who served as one of Xia Junfeng’s attorneys for the second-instance trial, wrote on his Twitter account that “the judge in the first-instance trial advocated giving Xia a suspended death sentence, but ‘higher authorities’ did not agree.”

On June 29, 2010, the Liaoning Provincial High People’s Court held proceedings to hear an appeal for Xia Junfeng. However, prior to the hearing and outside the courthouse, plainclothes police officers struck Teng Biao and independent filmmaker He Yang (何杨), who was going to document the scene, and confiscated He’s cell phone. Some of Xia’s relatives, including his mother, were blocked from entering the courtroom, while two were reportedly allowed to attend. During the trial, the judge arbitrarily interrupted Teng Biao as he made a defense argument. Also, as happened in the first-instance trial, the court only allowed evidence from the prosecution and did not allow any cross-examination of witnesses.

On May 23, 2011, Chen Youxi (陈有西) and Zhong Guolin (钟国林), the lawyers for Xia Junfeng at the stage of death penalty review by the Supreme People’s Court (SPC), submitted materials to the First Criminal Court of the SPC. This case is still currently under review (see section V. (b) below).

(a) if the perpetrators are believed to be State agents, please specify (military, police, persons in uniform or civilian clothes, agents of security services, unit to which they belong, rank and functions, etc.) and indicate why they are believed to be responsible; be as precise aspossible:

The Shenyang City Intermediate People’s Court originally sentenced Xia to death on charges of intentional homicide in November 2009. The Liaoning Provincial High People’s Court upheld the ruling in June 2010.

(b) if an identification as State agents is not possible, why do you believe that Government authorities, or persons linked to them, are responsible for the incident?

N/A

 (c) if there are witnesses to the incident, indicate their names. If they wish to remain anonymous, indicate if they are relatives, by-passers, etc.; if there is evidence, please specify:

Lawyer Teng Biao, and two of Xia Junfeng’s relatives who wish to remain anonymous

IV. Steps taken by the victim or his/her family:

(a) Indicate if complaints have been filed, when, by whom, and before which organ

After the Shenyang City Intermediate People’s Court sentenced Xia to death in November 2009, Xia’s family appealed the ruling to the Liaoning Provincial High People’s Court, which heard the appeal in June 2010.

(b) Other steps taken:

Many Chinese rights activists and lawyers helped spread information online about Xia’s case, generating a great deal of sympathy for him and his family. Chinese activists donated money to the family, wrote petitioning letters on Xia’s behalf, and provided legal advice in an attempt to exonerate Xia.

V. Steps taken by the authorities:

(a) Indicate whether or not there have been investigations by the State authorities; if so, what kind of investigations? Progress and status of these investigations; which other measures have been taken (e.g. autopsy)?

There has not been any known investigation by authorities, including by the SPC, into procedural violations that occurred at the first-instance and second-instance trials.

The Shenyang City Intermediate People’s Court, which held the first-instance trial, did not accept into evidence the investigative findings that supported Xia, including witness testimony that indicated Xia did not fight back before the two eventual victims dragged him to the Shenhe District Branch Bureau of the Shenyang City Administration and Law Enforcement Bureau.

(b) in case of complaints by the victim or its family, how have the organs dealt with them? What is the outcome of those proceedings?

On June 13, 2011, the SPC judges in charge of Xia Junfeng’s case met with lawyer Chen Youxi and heard his opinions on the case. According to Chen, this meeting was arranged following his request. At the meeting, the judges told Chen that they took the case and the lawyers’ opinions very seriously, and were carefully reviewing the case.

According to lawyer Chen, Xia’s wife, Zhang Jing, told him in June 2012—more than one year since the SPC began its death penalty review of Xia’s case—that officials from the Shenyang Public Security Bureau were again obtaining evidence from witnesses.

The outcome of the investigations at the stage of death penalty review is still pending.

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