Ignored Requests to Attend the Nanning Incident Trial

On June 28, 2004, the second (sentencing) phase of Takayuki Noguchi's trial was convened at the Intermediate People's Court in the Guangxi Zhuang Autonomous Region.

Noguchi, a member of the Japanese NGO Life Funds For North Korean Refugees, was sentenced to eight months in prison and fined 20,000 yuan (260,000 Japanese yen; US $2,778) under Articles 321 and 61 of the Chinese Domestic Criminal Code, which deals with illegally transporting people with the intent of crossing the Chinese border, and attempting to assist in an illegal border crossing.

In addition to the sentence, all of Noguchi's personal belongings, including 340,000 Japanese yen in cash (US $3,148), a video camera, and a cellular phone were confiscated.

Despite the ruling against Noguchi, LFNKR points out that he is not guilty according to international laws regarding the status of refugees, as stipulated in the 1951 Refugees Convention and the 1967 Protocol. These were apparently not taken into consideration.

Responding to the predicament of Noguchi, a Japanese citizen detained overseas, the Foreign Ministry (Division for Northeast Asia and Division for the Protection of Japanese Nationals Overseas) took a unanimous stance that corresponded with that of the Chinese authorities, who claim that Noguchi is guilty of breaking Chinese laws.

The Foreign Ministry also held that the Chinese authorities' generous terms of parole should be accepted so as to resolve this incident peacefully, without jeopardizing their less-than-congenial relations with China.

Worse, the two divisions of the Ministry strongly pressured LFNKR to abide by the agency's decisions, and to refrain from engaging in any actions that would lead to disclosure of the incident.

But by January 13th 2004 the situation was showing no improvement. This was nearly two months after Noguchi's detention. Finally, LFNKR decided to take more aggressive action by publicizing Noguchi's arrest and detention in China. The NGO also turned to an international coalition for assistance.

Following disclosure of the incident, the two Japenese governmental divisions responsible for Noguchi refused all requests to coordinate with LFNKR. They provided no information and have shut off all access to information ever since.

Under these conditions, the first phase of Noguchi's trial in China was convened on May 9th 2004. Only the Consulate-General of Japan in Guangxi was allowed to attend the trial, while all media reporters outside the court were denied entry.

Although LNRKR had repeatedly requested permission to attend, the Division for Protection of Japanese National Overseas did not notify LFNKR of the trial's commencement date. Thus, when LFNKR managed to learn the date and sent members to Guangxi, they arrived too late for the trial. LFNKR demanded that the division be impeached for negligence.

On May 11th, LNRKR requested admission to witness the sentencing phase of the trial. This request was forwarded through Masaharu Nakagawa, a member of Japan's House of Representatives.

The division told Rep. Nakagawa: "We will apply for admission to the trial directly to the Office of Guangxi Foreign Affairs. Applicants must provide us with information including their passport number, name, date of birth, sex, and occupation."

LFNKR had 34 people from nine different nations who wanted to be in the group attending the sentencing hearing. These 34 included friends of Noguchi, members of the fund and members of national and international NGO groups. Although several members were reluctant to provide personal information to the Chinese government, all required information was submitted in three lots, the final submission being on May 31st.

Moreover, in order to avoid the possibility of not being notified of the date again, LFNKR sent members of the group to the region three separate times prior to the trial. LFNKR was told that all of the documents required to attend the trial, including those for nine Japanese media representatives, were to be delivered by Jun 16th.

The date for the sentencing session had already been decided, and the Japanese Embassy had been notified. We concluded that the parents of Mr. Noguchi were aware of this information.

On Jun 18th, Vice-General Manager Bi of the Office of Foreign Affairs, and Judge Huang of the People's Intermediate Court stated that the exact date of the next trial should be made public a week prior to the trial.

According to Manager Bi, applications to attend the sentencing should be processed through the Office of Foreign Affairs after the hearing date was posted. After submission of the papers, entry to the trial would be granted by the People's High Court. The list containing the applicants' information had already been submitted to the People's High Court. Judge Huang showed his concern over this case, stating that the case has attracted considerable tension throughout the world.

However, the hearing date was not announced a week before.

It was only three days before the trial when the date was made public at 4 p.m. on Jun 25th (a Friday afternoon). Only then did LFNKR learn of the court session, which was to be held at 10 a.m. on Jun 28th (a Monday morning -- two-and-a-half days after the announcement was posted). On Jun 25th, the LFNKR representatives seeking to attend the hearing received a fax in Chinese from the Chinese authority.

On the morning of Jun 28th, we presented Manager Bi with a copy of the fax received from the Chinese authority, and asked for permission to attend the session. Manager Bi told us that the copy of the form had been transferred to Judge Huang, and that we should inquire at the court. The representatives then went to the court, and at the reception desk they submitted a copy of the application they had previously sent to the Japanese Ministry of Foreign Affairs.

However, they were refused entrance to the trial. According to the explanation we received, we had not followed the official procedure when we applied for permission to attend. LFNKR disagrees; we hold that all procedures were correctly followed.

Admission was restricted to Noguchi's family, reporters, and the Japanese counselor. Other than these few people, Manager Bi was the only other person attending the hearing. While the group who had been refused entry waited outside the court, a Chinese official came out with a camera, took a picture of them, then returned into the court.

Although Noguchi appears to have lost weight, members agree that he behaved with courage and dignity throughout the trial.

After the ruling, Noguchi was asked if he wanted to file an appeal, and he replied, "Do I have to decide right now?" That was the only time he displayed his disdain.

What was the problem? How could this treatment be justified? And to what extent should the Japanese Ministry of Foreign Affairs be held accountable for its actions during this trial?

Firstly, the Japanese Ministry of Foreign Affairs voiced no protest against the Chinese government at the first trail session, held on a Sunday -- despite the fact that a Japanese citizen was being prosecuted in a de-facto closed court and that Japanese consular officials had been informed by the Chinese authorities prior to the trial.

This should be stated clearly: the Japanese Ministry of Foreign Affairs has the responsibility to protect Japanese citizens in foreign countries.

Secondly, the Japanese Ministry of Foreign Affairs requested an advance list of applicants wanting to attend the trial.

The provisions of the Chinese Criminal Procedure Law are as follows:

Article 152: In the first instance, cases in a People's Court shall be heard in public. However, cases involving State secrets or private affairs of individuals shall not be heard in public.

Article 163: In all cases, judgments shall be pronounced publicly.

Chinese authorities also demanded that a list of trial atendees be submitted. Clearly, Chinese procedural law does not meet widely accepted international standards. In an effort to avoid criticism of the de-facto closed-door trial, it seems that Chinese authorities attempted to maintain the appearance of an open trial.

On the other hand, Japanese authorities acted in contradiction to democratic principles by requesting the list without even questioning or protesting the Chinese authority's demand, a demand that virtually restricts the right to an open trial and hearing as set forth by the Chinese Criminal Procedure Law.

The Japanese Ministry of Foreign Affairs apparently used the occasion to collect information on members of Life Funds For North Korean Refugees. Both the Chinese and Japanese authorities, therefore, may be considered the joint principal offenders in that they interfered with and suppressed the NGO's efforts to provide humanitarian aid.

Thirdly, those from Life Funds who applied to attend the trial were not permitted, but people who applied personally, as well as the press, were permitted entry. Only the Japanese Ministry of Foreign Affairs knew that Life Funds had applied to attend the trial through Masaharu Nakagawa, a lawmaker from the Democratic Party of Japan. The Chinese authorities could not have known this. Nevertheless, no one on that list was granted permission to attend the trial.

Did the Japanese Ministry of Foreign Affairs deliberately tell the Chinese authorities that the people on that list were related to the Life Funds for North Korean Refugees group when the list was submitted to Chinese authorities by the Division for the Protection of Japanese Nationals Overseas? If this is true, it means that the governmental authority of a nation-state intentionally betrayed the people on the list, which was turned in under coercion to governmental and administrative authorities that apparently regarded the group as an enemy.

This is serious treachery against its own citizens, and constitutes a crime. This act cannot be forgiven and should be investigated aggressively.

Fourthly, both countries are supposed to serve notice to each other one week prior to a trial. The Division for the Protection of Japanese Nationals Overseas intentionally ignored the notice, although they were asked to inform Masaharu Nakagawa of the date of the second trial. This constitutes neglect by an elected representative of the sovereignty of the people of Japan.

Fifthly, it should be pointed out that the case in question involved a Japanese national who was illegally restrained and arrested by authorities of a foreign government while he was aiding North Korean Refugees and was susequently sentenced to prison.

The people Noguchi was aiding are ethnic Koreans originally from Japan, who had immigrated to North Korea under the North Korean Repatriation Program, organized jointly by the Japanese and North Korean Red Cross.

Junko Kawaguchi, the Japanese Minister of Foreign Affairs, has stated that the Japanese government will actively help former Japanese citizens residing in China who have defected from North Korea, as well as ethnic Koreans originally from Japan who have escaped from North Korea. Considering this remark, it would be natural to assume that the Japanese Ministry of Foreign Affairs would have something to say about the sentencing of Noguchi. Otherwise, the remarks of the Minister of Foreign Affairs must be treated as nothing but dust in the wind.

The Japanese Ministry of Foreign Affairs should demand that Chinese authorities release Noguchi and allow him to return to Japan immediately, rather keeping him imprisoned until the 9th of August 2004.

During the trial of Noguchi on Jun 28th 2004, the prosecuting strategies of the Chinese authorities differed from those applied in the previous trials of Hiroshi Kato and a member of one South Korean NGO.

In this trial, the authorities did not characterize Noguchi's humanitarian aid-work as the 'North Korean defecting business' nor did they refer to Noguchi as 'a soldier of the Snake Head' as they had done in prior trials. This is because the authorities had become aware that such irrelevant claims would be utterly dismissed internationally. This reveals that the Chinese government is now facing the necessity of improving its attitude toward humanitarian policies.

No interpretation of Chinese Criminal Procedure Law gives the court the statutory power to confiscate all of Noguchi's personal belongings.

Article 117: The People's Procuratorates and the public security organs may, as required by investigation of crimes, inquire into or freeze criminal suspect's deposits or remittances according to regulations.

Article 118: If any seized articles, documents, mail, telegrams or frozen deposits and remittances are proved through investigation to be truly irrelevant to a case, the seizure and freeze shall be cancelled within three days, and the things shall be returned to their original owners or the original post and telecommunications offices.

Article 220: All judgments on confiscation of property, whether imposed as a supplementary punishment or independently, shall be executed by the People's Courts; when necessary, the People's Courts may execute such judgments jointly with the public security organs.

Completely aside from the amount of money involved, the money itself cannot be substantial evidence in the case. If the money possessed by Noguchi at the time of his arrest had been seized in order to submit to the court as evidence, then the money should have been returned to him after the trial. Moreover, the money was not obtained from a citizen or citizens of China, or through any means in China. Money possessed by a foreigner, which has not by any means been obtained through interaction or transaction with a citizen or citizens of China, cannot be legally confiscated by the Chinese court without a specific statutory jurisdiction giving the court the right to do so. Certainly, Article 220 does not provide this.

Most civilized governments do not engage in the abuse of judicial power as we have seen here in China. We believe that China must meet its political and legislative assessments to cease this behavior.