IV. Trial and Appeal

After almost eight months in incommunicado detention, Tenzin Delek and Lobsang Dondrup were finally put on trial on November 29, 2002. The court met in secret. Three days later, Lobsang Dondrup was sentenced to death; Tenzin Delek was sentenced to death, suspended for two years.⁵¹

Both men had declared their innocence. According to reports from two spectators, Lobsang Dondrup shouted out his innocence during his sentencing hearing⁵² and denied that he had ever said anything about Tenzin Delek or others being involved in a bombing plot. Tenzin Delek also denied the charges, reiterating his innocence in a tape smuggled from a detention center in Dartsedo,the prefectural capital, in mid-January 2003.⁵³

Lobsang Dondrup refused to appeal. However, Xinhua reported that the court appointed two lawyers from the firm representing Tenzin Delek to represent Lobsang Dondrup.⁵⁴ Human Rights Watch has been unable to obtain any information about the veracity of this report and if the lawyers reportedly appointed to the case ever met with Lobsang Dondrup or made any other efforts to represent their client.

On January 26, 2003, the Sichuan Higher People’s Court rejected Tenzin Delek’s appeal⁵⁵ and the appeal that apparently had been entered for Lobsang Dondrup without his consent. Within hours Lobsang Dondrup was executed.⁵⁶ Some reports suggest he was executed very early in the morning on that day, even before the appeal was formally rejected.

The decision to carry out the execution almost immediately after the Sichuan court hearing attracted legal controversy and international condemnation, in part because China’s own laws may have been violated,⁵⁷ in part because the entire process had been so rushed, and in part because China had broken a promise to U.S. officials that the Supreme People’s Court, the highest court in China, would carry out a “lengthy” review of the cases.⁵⁸ According to a statement by Wang Min, then Director-General designate of the Department of International Organization and Conferences of the Ministry of Foreign Affairs (in response to an E.U. expression of regret over the execution), the Supreme People’s Court did review the cases.⁵⁹ However, he claimed that only a legal proceeding was held. Chinese law does not require oral arguments or for the parties to be present for Supreme Court review of decisions. Any meaningful reviewwould have been impossible in the time between the decision of the appeals court and the execution of Lobsang Dondrup.⁶⁰

Tenzin Delek’s appeal appears to have been seriously hampered by his inability to use counsel of his own choosing.⁶¹ Zhang Sizhi, a well-known Chinese lawyer who had defended dissidents of the Democracy Wall (1979-81) and June 4, 1989 pro-democracy movements, and Li Huigeng, who had previously worked with Zhang, were willing to represent Tenzin Delek at his appeal. On December 18, 2002, the two made the necessary arrangements via telephone with Tenzin Delek’s uncle. A signed agreement from him went to the lawyers and then to the court. Telephone conversations between the lawyers and a judge at the Sichuan Higher People’s Court followed. By December 26, agreement had been reached that Li Huigeng would visit the court to review the case file. On December 27, Li Huigeng called again to confirm that he and Tenzin Delek would be able to meet on January 6, 2003.

However, on December 30, 2002, the judge called Li Huigeng to say that Tenzin Delek had engaged a Kardze lawyer on December 17 and that the latter had already filed the necessary court papers.⁶² A later report by the official Chinese news agency stated that the Kardze lawyers, allegedly chosen by the defendant, represented him at both trial and appeal.⁶³ As Tenzin Delek was in incommunicado detention throughout the trial and appeal processes, it is impossible to know the contents of any conversations about legal representation, if indeed there were any. The lawyers and Tenzin Delek’s uncle sent a letter requesting that the judge tell Tenzin Delek about his uncle’s initiative so he could make an informed decision as to representation (see AppendixVI, “Attempt to Hire Independent Counsel for Tenzin Delek Fails”). There was no reply. According to the account, on December 27, the same day Li Huigeng and the Sichuan high court judge conferred by telephone, police officers interrogated Tenzin Delek’s uncle and two other relatives and warned them against interference. There is no way of knowing how thorough or impartial the review was in the cases of Tenzin Delek and Lobsang Dondrup, but Chinese courts are routinely given instructions in political cases.

Two meetings, part of an “expose and criticize” campaign⁶⁴ organized to denounce Tenzin Delek, demonstrate the extent of political interference in the legal process. The first, called by the Kardze Tibetan Autonomous Prefecture branch of the Chinese Communist Party, was reported in a local newspaper on August 12, 2002, almost four months before the men were tried and sentenced.⁶⁵ The other, on December 27, 2002, was organized one month before the appeal and execution by the Sichuan provincial level United Front Work Department (UFWD), a Chinese Communist Party organ responsible for organizing support among non-Party members in support of Party policies. (See Appendix III, “Account of a Meeting of the United Front Work Department of Kardze Tibetan Authonomous Prefecture” and Appendix IV, “Account of a Meeting of the Communist Praty of Kardze Tibetan Authonomous Prefecture.”)

Lobsang Dondrup was hardly mentioned at either meeting. Those present directed all their criticism at Tenzin Delek. At the first meeting, officials denounced Tenzin Delek, both as a “splittist” (the Chinese term for pro-independence activists) whose activities were destructive to national harmony, and as a monk who engaged in “terrorist” activities under the guise of religion. They repeatedly voiced concern over what was described as a secret “splittist” clique that he headed in southern Kham.⁶⁶ One speaker suggested that the Dalai Lama should be held accountable as he was the one who chose Tenzin Delek and was responsible for “misleading his followers…When you put a spear in a bird’s nest, you disrupt the nest… But we should point the spear toward the Dalai Lama and his people.”⁶⁷

The meeting’s leaders recommended that those “ignorant” people who had strayed be brought back to the right path, but warned that the many other “splittists” in the Kardze area would have to be rooted out. Those assembled were warned that they could not afford to treat friends and acquaintances any differently from other suspects.

Invitees to the UFWD meeting, included members of ethnic minorities, “religious personages,” and “non-Party persons.” The basic charges against Tenzin Delek were the same as those at the first meeting, focusing particularly on how his behavior “blackens religion” and how just his punishment was. But the action agenda differed. According to the record of the meeting, it focused first on strengthening administration of temples and on overseeing monks in accordance with “religious laws, regulations, and policies on religion in such a way that the temples are satisfied, the masses are satisfied, and the Party and government are satisfied” and that religion and the socialist system are brought into “conformity.”⁶⁸ Meeting leaders also urged that those assembled “propagandize” the illegality of Tenzin Delek’s behavior.

Given the involvement and leading role of the Party in Chinese political affairs, the meetings created an atmosphere that was not conducive to a fair hearing for Tenzin Delek or any of his associates or supporters. At both meetings, the organizers elicited apparently pre-arranged statements from leading local figures in support of the official accusations against Tenzin Delek and his “clique” in order to gather support from leading local figures for a guilty verdict. The presumption of guilt is apparent in their statements, prejudicing the right to a fair trial and the presumption of innocence. These meetings also call into question China’s contentions that the era of verdicts before trial has ended.⁶⁹ The heavy involvement of Chinese Communist Party organs in these meetings suggests that local party leaders were trying to influence the outcome of the trial, a power that party officials still have in China.

[51] According to article 50 of the Chinese Criminal Law, “[I]f a person sentenced to death with a suspension of execution does not intentionally commit a crime during the period of suspension, he is given a reduction of sentence to life imprisonment upon the expiration of the two-year period….” The article continues, “[I]f he demonstrates meritorious service, he is to be given a reduction of sentence to not less than fifteen years and not more than twenty years of fixed-term imprisonment upon the expiration of the two-year period; if there is verified evidence that he has intentionally committed a crime, the death penalty is to be executed upon the approval of the Supreme People’s Court.” According to article 51, “The term for suspending execution of a sentence of death is counted as commencing on the date the judgment becomes final.” Without access to court papers, that date cannot be verified.  “The PRC Criminal Law, (adopted by the Second Session of the Fifth National People’s Congress [NPC] on 1 July 1997) and amended by the Fifth Session of the Eighth NPC on 14 March 1997,” Xinhua, March 17, 1997, in FBIS, March 25, 1997.

[52] Human Rights Watch interview with KR, December 14, 2002.

[53] “Tibetans were denied lawyers in bomb trial…,” Radio Free Asia; “Tibetan monk protests innocence on smuggled tape,” Radio Free Asia, January 21, 2003.

[54] “Two Tibetans sentenced to death…,” Xinhuanet.

[55] According to article 187 of the PRC Criminal Procedure Law, “A people's court of second instance should form a collegial panel for trial of an appeal case. If the facts can be clarified through a review of the case file, the questioning of the defendant, or the soliciting of opinions of other parties, the defender, and the legal representative, the collegial panel may decide not to try the case. A people's court of second instance should conduct trial of the protest case presented by the people's procuratorate. A people's court of second instance may conduct trial of an appeal or protest case where the case took place or where the people's court that originally adjudicated the case is located.” The Criminal Procedure Law of the People’s Republic of China, adopted by the Second Session of the Fifth National People’s Congress [NPC] on 1 July 1979, was amended in accordance with the “Decision on Amending ‘The Criminal Procedure Law of the People’s Republic of China’” made by the Fourth Session of the Eighth NPC on 17 March 1996. “PRC: Amended Criminal Procedure Law,” Xinhua, March 24, 1996, in FBIS, April 10, 1996. 

[56] “A’an Zhaxi he Luorang Dengshu bei yia yancheng” (Luorang Denzhu [Lobsang Dondrup] and A’an Zhaxi [Tenzin Delek] were severely punished according to the law for inciting the division of the state and causing explosions”), People’s Daily, January 29, 2003, http://people.com.cn/GB/paper464/8367/787795.html (retrieved August 11, 2003).

[57] For a full discussion of the controversy see “The Execution of Lobsang Dondrub and the Case against Tenzin Deleg: The Law, the Courts, and the Debate on Legality,” Congressional-Executive Commission on China, February 10, 2003, http://www.cecc.gov/pages/news/lobsang.php (retrieved October 1, 2003).

[58] Ibid.

[59] Extract from the official report from the Greek Foreign Ministry on the E.U.-China human rights dialogue meeting held in Athens, March 5-6, 2003 (copy of extract on file at Human Rights Watch).

[60] A Supreme Court review is mandatory in death penalty cases. According to article 48 of the Criminal Law, “Except for judgments made by the Supreme People’s Court according to law, all sentences of death shall be submitted to the Supreme People’s Court for approval. Sentences of death with suspension of execution may be decided or approved by a higher people’s court.” “The PRC Criminal Law…,” FBIS, March 17, 1997.

[61] Wang Lixiong, “Three Points of Doubt About the Case of A’an Zhaxi to Bring to the Attention of the Supreme Court for Review,” http://www.xizang-zhiye.org/gb/xzxinwen/0301/index.html (retrieved November 6, 2003), reprinted in Appendix VI, “Attempt to Hire Independent Counsel for Tenzin Delek Fails.”

[62] Wang Lixiong, “Three Points of Doubt…”

[63] “Two Tibetans sentenced to death…,” Xinhuanet. See also “Two Tibetans Harshly Punished According to Law for Inciting Splittism and Detonating Explosives in Chengdu and 4 Other Places,” Selection of Cases From The Criminal Law, Occasional Publications of the Dui Hua Foundation, No. 14, August 2003, pp. 65-69. The selection includes information from two sources, Xinhua News Agency, January 26, 2003, and a Chinese government response to the U.S. government, March 16, 2003.

[64]  Wang Lixiong, “Ganzi Authorities’ Dispute with A’an Zhaxi,” Human Rights Watch translation, copy on file at Human Rights Watch.

[65] “Kardze Tibetan Autonomous Prefecture’s Communist Party officials strongly accuse A’an Zhaxi for taking part in splittism, for disrupting people’s harmony, and for teaching bad morals,” local Kardze newspaper, August 12, 2002, (exact name of newspaper not provided with original Chinese text received by Human Rights Watch). An English translation of the full text of this article is set forth in Appendix IV, “Account of a Meeting of the Communist Party of Kardze Tibetan Autonomous Prefecture.”

[66] What is referred to as “southern Kham” encompasses six counties, two of which are Lithang and Nyagchu.

[67] “Kardze Tibetan Autonomous Prefecture’s Communist Party officials strongly accuse A’an Zhaxi…,” local Kardze newspaper.

[68] “The Provincial Level United Front Work Department organized a meeting with religious personages of the minority nationalities of Kangding district to more deeply understand the separatists A’an Zhaxi and others, and to research their violent terrorist crimes,” Local Kardze newspaper, December 27, 2002, (exact name of newspaper not provided with original Chinese text received by Human Rights Watch). An English translation of the full text of this article is set forth in Appendix III, “Account of a Meeting of the United Front Work Department of Kardze Tibetan Autonomous Prefecture.”

[69] “Opening to Reform? An Analysis of China’s Revised Criminal Law,” Lawyers Committee for Human Rights (New York: LCHR, 1996), pp. 43-50.