A Paint in oils or watercolours related to Xi Jinping
Case Background Overview
Chen Jingyuan, a Chinese independent scholar, was arrested by the Kunming police on charges of “picking quarrels and provoking trouble” under Article 293 of the Criminal Law of the People’s Republic of China for forwarding Twitter posts. During the investigation, the police discovered several images in the cache of an old phone belonging to Chen, which depicted the current General Secretary of the Chinese Communist Party (CCP), Xi Jinping. The police publicly declared these images as “ironclad evidence” of Chen’s crime and promptly executed his formal arrest. Chen recalls having seen the artwork online but claims he never forwarded or commented on it. The police could not find evidence of the images’ existence online, as the associated accounts or groups had been deleted or disbanded years ago. Despite this, the police used these cached images as a primary piece of evidence for the charge of “picking quarrels and provoking trouble.” This analysis examines the deficiencies and errors in the police’s approach from the perspectives of legal standards, evidence rules, and procedural justice.
Analytical Framework: Legal and Evidence Standards
1. Elements of the Crime of “Picking Quarrels and Provoking Trouble”
According to Article 293 of the Criminal Law and the 2013 Interpretation of the Supreme People’s Court and Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Defamation and Other Acts via Information Networks (hereinafter referred to as the Two Highs Interpretation), the crime of “picking quarrels and provoking trouble” in the context of cyberspace requires the following elements:
Actus Reus: The act of “disseminating false information” or “causing a disturbance in a public place.”
Consequence: Causing serious disruption to public order.
Mens Rea: The intent to commit the act.
Quantitative Standard for Online Dissemination: The Two Highs Interpretation (Article 5) specifies that disseminating false information online must result in significant consequences, such as being retweeted 500 times or viewed 5,000 times, or causing other severe outcomes (e.g., triggering mass incidents) to constitute a crime.
2. Evidence Rules
Legality of Evidence: Article 54 of the Criminal Procedure Law of the People’s Republic of China (hereinafter referred to as the CPL) mandates that evidence must be obtained through lawful means, and illegally obtained evidence must be excluded.
Relevance of Evidence: Evidence must be directly related to the facts of the case and capable of proving the elements of the crime.
Sufficiency of Evidence: Article 53 of the CPL requires that a conviction be based on clear and sufficient evidence, ruling out reasonable doubt.
Exclusion of Illegal Evidence: Article 54 of the CPL prohibits the use of evidence obtained through torture, violence, or other illegal means.
3. Legal Nature of Cached Images on a Phone
Cached images on a phone are typically temporary files automatically stored when a user accesses a webpage. They may indicate that the user visited a related webpage but do not necessarily prove that the user actively downloaded, disseminated, or created the content.
The source, creation time, and dissemination of cached images require further verification through technical means (e.g., network logs, IP addresses, timestamps).
Deficiencies and Errors in the Police’s Approach
1. Lack of Relevance of the Evidence
Issue:
The police used the cached images on Chen’s phone as primary evidence for the charge of “picking quarrels and provoking trouble.” However, cached images only suggest that Chen may have accessed a related webpage, not that he created, disseminated, or commented on the images.
Chen recalls never having forwarded or commented on the images, and the police failed to find evidence of the images’ existence online (the associated accounts or groups had been deleted). Thus, the cached images lack a direct connection to the act of “disseminating false information” or “disrupting public order.”
Legal Basis:
Article 50 of the CPL requires that evidence be directly related to the facts of the case. Cached images only indicate potential exposure to the content, not the act of dissemination required under Article 293 of the Criminal Law.
Article 5 of the Two Highs Interpretation requires proof that the information was disseminated online and caused significant consequences. The police provided no dissemination data (e.g., retweet or view counts) and failed to demonstrate that the images disrupted public order.
Conclusion: The police’s use of cached images as “ironclad evidence” lacks relevance, as it does not prove that Chen committed the actus reus of “picking quarrels and provoking trouble.”
2. Insufficient Evidence
Issue:
The police failed to provide evidence that Chen actively disseminated the images (e.g., forwarding or commenting records) or that the images caused “serious disruption to public order.”
The police stated that the associated accounts or groups had been deleted, meaning they could not verify the images’ source, dissemination path, or impact. Relying solely on cached images does not form a complete chain of evidence.
Legal Basis:
Article 53 of the CPL requires that a conviction be based on clear and sufficient evidence, ruling out reasonable doubt. Cached images cannot prove Chen’s dissemination or the required consequences.
Article 5 of the Two Highs Interpretation requires proof of quantifiable consequences of dissemination (e.g., 500 retweets or 5,000 views). The police provided no such data, rendering the evidence insufficient for a conviction.
Conclusion: The police’s reliance on cached images as primary evidence fails to meet the sufficiency requirement under Article 53 of the CPL, as the evidence chain is incomplete.
3. Questionable Legality of the Evidence
Issue:
Chen does not mention whether the police presented a search warrant or followed legal procedures to extract the phone evidence. If the police did not obtain the cached images lawfully, they may constitute illegal evidence.
The police did not explain how they “verified” or “sorted” the images’ origins, merely stating that the associated accounts or groups had been deleted, which lacks transparency in the evidence collection process.
Legal Basis:
Article 136 of the CPL requires a search warrant for searches, and Article 148 mandates that the extraction of electronic data follow legal procedures. If the police failed to comply, the cached images may be deemed illegal evidence.
Article 54 of the CPL stipulates that illegally obtained evidence must be excluded.
Conclusion: If the police did not lawfully extract the cached images, their legality is questionable, and they may need to be excluded under the law.
4. Misinterpretation of the Elements of “Picking Quarrels and Provoking Trouble”
Issue:
The police directly treated the cached images as evidence of Chen’s “picking quarrels and provoking trouble,” ignoring the requirement to prove active dissemination and serious consequences.
The images depicted Xi Jinping, which may involve political sensitivity, but political expression does not equate to “false information.” The police failed to prove the images were false or that they caused public disorder.
Legal Basis:
Article 293 of the Criminal Law requires proof of “disseminating false information” and “causing serious disruption to public order.” Cached images do not demonstrate dissemination or consequences.
Article 35 of the Constitution of the People’s Republic of China (hereinafter referred to as the Constitution) guarantees freedom of speech. Political artwork falls within the scope of speech, and labeling it as “picking quarrels and provoking trouble” may restrict Chen’s constitutional rights.
Conclusion: The police misinterpreted the elements of “picking quarrels and provoking trouble,” failing to prove dissemination and consequences, potentially infringing on Chen’s freedom of speech.
5. Lack of Procedural Justice
Issue:
Upon discovering the cached images, the police “publicly announced” them as “ironclad evidence” and immediately arrested Chen, without thorough evidence verification or procedural review.
The police did not disclose the images’ source, dissemination path, or impact, making the investigation process opaque and potentially driven by subjective assumptions.
Legal Basis:
Article 2 of the CPL mandates that criminal proceedings ensure the correct implementation of the law and protect citizens’ rights. The police’s failure to carefully verify evidence before arresting Chen may violate procedural justice.
Article 116 of the CPL requires a detention warrant for arrests, and Article 119 mandates notifying the family within 24 hours of detention. If the police failed to follow arrest procedures, this would constitute a further violation.
Conclusion: The police lacked transparency and diligence in evidence verification and arrest procedures, potentially violating the procedural justice requirements of the CPL.
6. Potential Political Motivation
Issue:
The images depicted Xi Jinping, and the police’s reaction—treating them as a “treasure” and “publicly announcing” them as “ironclad evidence”—suggests they may have been driven by political sensitivity rather than legal facts.
The police failed to prove dissemination or consequences, indicating that the conviction may have been politically motivated rather than legally grounded.
Legal Basis:
Article 5 of the Constitution mandates the rule of law, and no organization or individual may act above the Constitution and laws. Law enforcement must be based on legal facts, not political considerations.
Article 12 of the CPL states that no one may be deemed guilty without a court judgment. The police’s arrest of Chen with insufficient evidence may violate the principle of presumption of innocence.
Conclusion: The police may have been influenced by political motives, failing to act in accordance with the law, which raises concerns of potential abuse of power.
Overall Evaluation
The Kunming police’s use of cached images on Chen Jingyuan’s phone as primary evidence for the charge of “picking quarrels and provoking trouble” exhibits the following deficiencies and errors:
Lack of Evidence Relevance: Cached images cannot prove Chen’s dissemination, lacking a direct connection to the actus reus of the crime.
Insufficient Evidence: The police failed to provide dissemination data or evidence of consequences, rendering the evidence chain incomplete.
Questionable Legality of Evidence: If the images were not lawfully obtained, they may constitute illegal evidence.
Misinterpretation of Crime Elements: The police overlooked the need to prove dissemination and serious consequences, potentially infringing on Chen’s freedom of speech.
Lack of Procedural Justice: The police failed to verify evidence thoroughly and acted without transparency, violating procedural justice.
Potential Political Motivation: The police may have been driven by political sensitivity rather than legal facts, suggesting possible abuse of power.
Conclusion: The Kunming police’s reliance on cached images as primary evidence for Chen Jingyuan’s “picking quarrels and provoking trouble” charge is fraught with legal and procedural errors. The images cannot prove dissemination or consequences, and the conviction lacks sufficient evidence, potentially violating the CPL’s evidence rules and procedural justice requirements. Furthermore, the police may have been influenced by political motives, failing to act in accordance with the law, which could infringe on Chen’s constitutional rights under Article 35 of the Constitution. This case highlights broader issues in China’s judicial practice regarding evidence use and procedural justice.
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[Chinese]