HUMAN RIGHTS: LEGAL EXPERTS TELL COURT NEW YORK

C O N F I D E N T I A L BEIJING 007041

SIPDIS

SIPDIS

E.O. 12958: DECL: 04/14/2031
TAGS: PHUM PGOV KIRF CH
SUBJECT: HUMAN RIGHTS: LEGAL EXPERTS TELL COURT NEW YORK
TIMES RESEARCHER SHOULD HAVE BEEN FREED

REF: BEIJING 5129 AND PREVIOUS

Classified By: Political Section Internal Unit Chief
Kin Moy for reasons 1.4 (b) and (d).


1. (C) Summary: The defense attorney for jailed New
York Times' researcher Zhao Yan has filed a statement
to the court from six top Chinese legal scholars
arguing that Zhao should have been released when
prosecutors withdrew the fraud charge against him on
March 17. New York Times Beijing Bureau Chief Joseph
Kahn said that the defense lawyer hopes the scholars'
opinion will help to break the stalemate that has
existed in Zhao Yan's case since last month. End
Summary.


2. (C) Six leading Chinese legal scholars signed a
written opinion that Zhao Yan's defense attorney filed
with the Beijing No. 2 Intermediate Court on April 12.
The letter, a copy of which was passed to poloff by
NYT Beijing Bureau Chief Joseph Kahn on April 13
states:

- The Court decision to extend the time for
investigation of the fraud charges against Zhao Yan
after the Procuratorate had withdrawn the indictment
for lack of evidence is not in accord with China's
Criminal Procedure Law and the Supreme People's
Court's judicial interpretations.

- Under the Procuratorate's Criminal Procedure
Regulations, it can request withdrawal of the
indictment only if one of three conditions has been
met: facts of a crime do not exist, the crime was not
committed by the defendant, or the defendant should
not bear legal responsibility. After withdrawing the
case for any of those reasons, the Procuratorate
should not continue to detain a defendant.

- The Criminal Procedure Law and its relevant
legislative spirit indicate that there is no legal
basis to continue to detain a defendant for further
investigation of facts after the indictment has been
withdrawn.


3. (C) Kahn said Zhao's defense attorney, Mo Shaoping,
hopes that the legal opinion will help break a
stalemate that has existed since the Procuratorate
suddenly withdrew the indictment against Zhao Yan on
March 17. Attorney Mo and several media reports
speculated that Zhao would soon be released but the
Court ultimately continued to detain Zhao and extended
the time for further collection of evidence against
him in the fraud case. Zhao remains jailed with no
indication of a date for the trial or future
proceedings.


4. (C) The scholars who signed the legal opinion are
law professors who have participated in drafting of
legislation and maintain no particular connection with
political movements. They signed the opinion under
condition that it be presented to the court but not
used in any media campaign to free Zhao. They are:

- Chen Guangzhong, former dean of the China University
of Political Science and Law (CUPSL) who participated
in the 1996 revision of the PRC Criminal Procedure
Law.

- Fan Chongyi, head of the CUPSL Criminal Procedure
Research Center, secretary of the China Law Society
Procedural Law Research Center and an advisor to the
Supreme People's Procuratorate and Supreme People's
Court training colleges.

- Chen Weidong, head of the People's University
Procedural Law Research Center and its Procedural and
Judicial Reform Research Center.

- Wang Jiancheng, Beijing University Law School
professor of criminal procedure and criminal evidence.

- Wang Minyuan, Head of the China Academy of Social
Sciences Legal Research Office's Procedural Law
Research Office and a former employee of the National
People's Congress' Legal Affairs Committee.

- Gu Yongzhong, CUPSL Professor, lawyer at the Beijing
Chenwei Law Firm and vice-chair of the All-China
Lawyers Committee Criminal Law Committee.
RANDT