This is a follow-up to a post earlier this month, “A political prisoner in Sweden.” I promised to translate the text of the sentence from the original, and have finally finished proofreading and putting in comments.
Sentence 2010-03-08, carried out in Stockholm
Case no. B 8976-09
INVOLVED PARTIES (number of indicted [persons]: 1)
Chief District Prosecutor Tomas Lindstrand
Chamber of Prosecution for Security Cases
124 61 Bandhagen
Attorney Bjorn Hurtig
Forsvarsadvokaterna Stockholm HB
Illegal intelligence activities, serious criminal offense
Chapter 19, 2 and 3, Criminal Code
Prison for 1 year and 4 months
Forfeitures and confiscations
1. The following confiscations will remain until the sentence is ratified: Security Police; confiscation journal B 022-09 items A1, C5, C8, C13, C14, C16, C17, C20, C21, C25-29, C32, C34, C41, C44, C45, C47, C52-54, E7, E9, F12-14.
2. Confiscated passport has been declared forfeited according to chapter 36, 2 and 3 in the Criminal Code. The confiscation will continue (Security Police; confiscation journal B 022-09, item C39).
3. Confiscated 110000 SEK have been declared forfeited according to chapter 36, 1 in the Criminal Code. The confiscation will continue (Security Police; confiscation journal B 022-09, items F4 and F11).
BM will be subject to a travel ban with obligation to give notice until the sentence is formally ratified in terms of responsibility. The travel ban amounts to BM not being authorized to travel outside the district of Stockholm and having to register his whereabouts every Wednesday at 5 PM, by the latest, at the police station on Kungsholmsgatan 45, Stockholm. If the travel ban is violated or the obligation to give notice not adhered to, BM shall be taken into custody, except in the case where there are no obvious reasons [WKL: I do not understand what the last sentence means, but have tried to be faithful to the original].
Secrecy according to Chapter 15, 1 and 2 in the Law of Publicity and Secrecy (2009:400) will persist in the case for information in the secret sentence attachment 3.
Crime victims fund
The indicted is required to pay a fee of 500 SEK according to the law (1994:419) on crime victims fund.
1. Attorney Bjorn Hurtig is accorded compensation from public funds of 591498 SEK. Of this amount 439992 SEK relates to work, 26520 SEK to time spent, 6686.40 SEK on expenses and 118299.60 SEK value added tax. When paying public funds, it should be noted that 138000 SEK have been paid in advance.
2. The costs for the defense will be paid by the state.
CLAIMS AND PLEADINGS
The prosecutor has pleaded that BM be sentenced for illegal intelligence gathering, a serious criminal offense, according to the following statement of the criminal acts charged:
BM has, with the aim of [supporting] the security forces of the Chinese state and with the use of deceitful means, operated in the Stockholm area between January 2008 to the 3rd of July 2009 to collect information about personal circumstances of persons of Uighur ethnicity, most of whom have been active in Uighur organizations in Sweden as well as Norway, Germany and the USA. He has delivered the information to a Chinese diplomat and a Chinese journalist who has acted on orders from the Chinese state to secretly collect personal information about persons of Uighur ethnicity.
If BM’s actions should be considered as assistance to illegal intelligence activities [carried out] by the diplomat and the journalist, it is additionally stated that his assistance has not been temporary.
The activities have amounted to collection of information about personal conditions concerning Uighurs residing and working outside China’s borders. The activities have also amounted to BM being assigned tasks from the journalist and the diplomat to gather information about Uighurs and that BM thereafter had completed his tasks by reporting to the journalist and the diplomat information about political activities, including those within the World Uyghur Congress, what had been said by different persons within the Uyghur movement and what opinions and level of access to political information the leadership of said organization had possessed. He has also reported information about political asylum [applications], health conditions, and level of residence and telephone numbers to certain persons especially important to the Chinese regime.
The tasks have been given, and the information handed over, in private meetings and by telephone calls as well as over the Internet. The activities have been carried out secretly by taking special precautionary measures during meetings and telecommunications.
BM has gathered the information by using deceitful means in that he has claimed to sympathize with the ethnic Uighurs, taking part in congresses and meetings with them as well as concealing that he was handing over information about them to representatives of the Chinese state.
BM has been rewarded by his superiors with money and personal services.
The criminal offense is considered serious because the activities have been systematic, have been carried out in professional form and may have caused or might cause a large number of persons serious harm since the foreign power has been and is a totalitarian great power with strong resources.
Law section: Chapter 19, second and third paragraphs, Criminal Code.
Further, the prosecutor has argued in the plaint that confiscated evidence [material] mentioned above continues to be confiscated until the sentence is ratified, and that a passport and 110000 SEK will be forfeited.
BM has denied criminal charges both on objective and subjective grounds. He has not intended to provide [material] to the Chinese state and he has neither secretly nor deceitfully carried out the activities as described by the prosecutor. He has admitted that he had a number of contacts with a Chinese journalist and a Chinese diplomat. He had not been aware of criminal intent from the journalist or the diplomat.
BM has objected to the confiscation of evidence [material] and that the confiscated money be forfeited. He has not objected to the confiscated passport being forfeited.
GROUNDS FOR THE DECISION
BM has been interrogated and on demands of the prosecution, witness examinations have been held with the witnesses Dolkun Isa, Abduljelil Karakash, Rebiya Kadeer, Atahan Abudughani, Dilixiadi Rexiti, Adil Hakimjan, Hans Ohlsson, Bo Renner and Wilhelm Unge. The interrogations and examinations have been summarized in attachment 1. The prosecutor has put forth and referred to evidence as summarized in attachment 2. The parties have further set forth information from the preliminary investigation as can be seen from the trial protocols.
Presentation of the prosecutor’s case
Xinjiang Province and the Uyghur
China’s Xinjiang province is home to the original inhabitants, the Uyghur. As late as the 1950’s an overwhelming majority of the population were Uyghur. Due to an intentional Chinese policy the majority of the 20 million inhabitants in the province are now Han Chinese and not Uyghur. The province is rich in natural resources. The political history has been turbulent, and the area has been independent during certain periods and conquered by neighboring nations during others. The Uyghur are a Turkic people closely related to the peoples in Kyrgyzstan, Kazakhstan and other areas of Central Asia. Their language is related to Turkish. The Chinese regime carries out a policy to make the province as Han Chinese as possible. University classes for Uyghur are restricted and important posts are not given to Uyghur but to Han Chinese. Because of their origin and close relationship with the Turks, Turkey is an important country for the Uyghur and therefore also important to China.
There are Uyghur in many countries, but the [amount of people belonging to the] ethnicity is not particularly large in any country. In Sweden there are around 500 Uyghur, whereas Germany has around 1000 and the US 1500. Most exiled Uyghur live in Turkey. Many within the exiled Uyghur groups know each other. That they are speaking a similar language is significant [for their activities].
There is a global umbrella organization for the Uyghur called the World Uyghur Congress (WUC). Once every two years there is a meeting where the leaders of the organization are chosen. The [current] chairman is Rebiya Kadeer. The General Secretary is Dolkun Isa. In Sweden there are local interest organizations for the Uyghur.
The Chinese leadership is worried that remote parts of the country such as Xinjiang will separate from China. If one province separates there is a risk that other provinces will also separate. For this reason China talks about the five poisons – Tibetan and Uyghur separatism, Taiwanese independence, Falungong and the democracy movement. The Chinese state aims to control these movements, [WKL: This is actually what it says] not only in the country but also outside China.
A Chinese list of people officially deemed terrorists include several Uyghur names or organizations. One of these is the East Turkestan Information Center with its chairman Abduljelil Karakash who lives in Germany. Neither he nor his organization are listed as terrorist organizations by the EU or UN. Another of the organizations designated as terrorist is the East Turkestan Islamic Movement. That organization is listed as a terrorist organization by the EU and UN as well.
Chinese intelligence activities
Like all states, China also has a need for intelligence. China’s civil security service, the Ministry for State Security (MSS), is of special interest to this case. During the period the indictment indicates, the highest responsibility for security issues in the Chinese political leadership was [and is] Zhou Yongkang. That person is mentioned during the telephone tapping done in the case.
Those in charge of intelligence gathering are in need of platforms, places where intelligence can be gathered such as embassies, consulates, news services, companies and universities. Most of this gathering is legal. It has to be done secretly or by deceitful means to become a punishable offense. One of China’s platforms is the People’s Daily. This newspaper, which was founded in 1948, is the official mouthpiece of the party.
An intelligence officer does not need to be an officer, but is called that. [WKL: I don’t understand the original sentence. I have tried to translate it as faithfully as possible.] He has one or several gatherers that provide information. The gatherers have access to environments the intelligence officer cannot freely move within. A Han Chinese intelligence officer, for example, cannot move freely in a Tibetan or Uyghur environment.
Persons related [to the case]
Zhou Lulu was, when the activities mentioned in the indictment occurred, trade commissioner and supervisor of the consular and political departments of China’s embassy in Stockholm. She is married to Lei Da. Lei Da has officially been a journalist at People’s Daily but the Swedish security service have reached the conclusion that he is an intelligence officer for MSS.
Rebiya Kadeer lives in the USA and is leader of WUC. She has been sentenced in China for some sort of espionage activities and also accused of masterminding the riots in Urumqi. She is not, however, listed as a terrorist by China. She has been nominated the Nobel Peace Prize. Dolkun Isa lives in Germany and is general secretary of WUC. China has listed him as terrorist and is the only country to do so. Atahan Abudughani is a Uyghur political refugee, living in Norway and listed by China as a terrorist. Abduljelil Karakash is Uyghur, resides in Germany, is chairman of the East Turkestan Information Centre and has been listed by China as a terrorist. Adil Hakimjan is a Uyghur who has been given political asylum in Sweden. He was deprived of his liberty in Guantanamo and has been listed by China as a terrorist.
Investigations were started in April 2008 against Zhou Lulu, who was said to have requested information about the Uyghur and other minorities in China. It was soon revealed that she met with BM. It was also found that BM had contact with Lei Da. There was information showing that Lei Da had a Uyghur friend who would give him information. A large part of the investigation has been conducted by the use of secret telephone tapping and telecommunications surveillance, as well as resource intensive physical surveillance.
Confiscation at BM’s [residential address]
During a search of BM’s accommodation, the police found in total an amount of around 110000 SEK in cash in a coat and a jacket, which were both in a wardrobe. In the accommodation there were also various notes of political and personal information about meetings and conversations, as well as lists with people of Uyghur origin. Nine cell phones were confiscated. Two telephones used when BM communicated with Lei Da, according to the technical investigation, have not been found
Contacts between BM, Lei Da and Zhou Lulu
BM and Lei Da have communicated with each other in several ways. They have called each other with cell phones and on public phones. Lei Da has also had access to BM’s email account. Their telephone contact has occurred in the usual way by calling each other and talking. But they have also used another method in which one has called the other with a [special] signal. After this they have called other telephones – operative phones – which have then been used for the subsequent calls. The operative phones have been cash refill [cell phones], which typically are much more difficult to track because there is no connection between the owner and the subscription [account]. Nine cell phones have been confiscated at BM’s residence, and of these at least three have been used in his communications with Lei Da. A number of calls have been made from public phones, which typically is a method of secrecy that aims to make it difficult [for trackers] and used to conceal.
BM and Lei Da have had, during the period of January 2008 to May 2009, at least 180 telephone contacts. Of these, 59 contacts have been between operative telephones. Eleven calls have been made from a group of nine public phones and in these cases, BM has called Lei Da six times. It has therefore been about one telephone contact every other day for about one year’s time.
BM was detained and arrested the 4th of June 2009. The police raid was reported in news media the same night, or at least the morning after. On the 5th of June 2009, Lei Da called BM 57 times between 9.30 and 14.30. One of the calls was made to his home telephone, which had not happened before.
From October 2008 to April 2009 someone using Lei Da’s broadband [connection] has in 57 instances logged in or tried to log in to BM’s email account. For technical reasons it is not possible to ascertain if the log in attempts have been successful.
BM has met Zhou Lulu six times and Lei Da at least ten times. Often these meetings have been preceded by phone contact, but sometimes not. They have met at a number of places, often at restaurants. BM has pointed out 29 places where they have met (in one meeting they have visited several places).
Collection of information
BM has learned where Uyghur families reside and travel, and reported this to Zhou Lulu or Lei Da. He has also reported if it will be a calm weekend or if there might be demonstrations outside the Chinese embassy. He has collected information about Abduljelil Karakash’s health condition and reported this to Lei Da. The latter has then reported this to his superior, old Liu. BM has also collected information and reported about Atahan Abudughani. His collection of information and reports has also pertained to Dolkun Isa and his actions, as well as a meeting in Malmo and WUC congresses. He has been handling information about shirts with motives critical of the regime that were to be used before the Olympic games.
Through the Chinese embassy, BM’s daughter-in-law has been given a job and his wife a free visa. He has also been paid for his information. The 110000 SEK in cash that was confiscated in his living quarters was compensation from China for information handed over.
Description of BM’s economy
During the years 2005 to 2008 BM had declared a net income of 60000 SEK per year. In the year 2005 he received economic support from the Social Service of around 20000 SEK and from the year 2006 to 2009 this amounted to between 50000 to 70000 per year.
Articles in People’s Daily
In the period from 2006 to May 2009, there have been 105 articles written by Lei Da and published in People’s Daily. Only one of these articles is about the Uyghur, which is an article about Adil Hakimjan.
The District Court’s assessment of guilt
Basis in penal law
The District Court bases its decision on penal law in the second section of the Criminal Code, 19th Chapter, 10, which says that whoever, with the intent of providing [information] to a foreign power, here in the country either secretly or by deceitful means carries out activities to gather information about others’ personal condition or contributes to such activity in a manner that is not temporary, shall be sentenced for illegal intelligence activities.
Basis in evidence
When it comes to evaluating the evidence in the case, BM’s public defender has pointed out a number of circumstances that need to be considered. The first [one] is that the prosecutor has only displayed a part of the considerable amount of [material] from the preliminary investigation which implies there are potential factors in the material that could be interpreted favorably for BM. The second circumstance is that neither Lei Da nor Zhou Lulu have testified in the case. The lack of knowledge of what they might have said if they had taken part should also be interpreted favorably for BM. Finally the defender has pointed out that illegal intelligence activity is a crime classification rarely used in court and that its placement in the national security law risks lowering the standard for what evidence the District Court will accept.
As for the amount of investigation material that has not been presented during the trial and has therefore not been presented to the court, and the District Court therefore does not know about, it should be pointed out that the public defender had been present during the police interrogations of BM and that he had spent at least 150 hours going through the investigation [materials]. The defender has shown that he has studied the case well. In light of this [fact], there does not seem to be any reason to assume that circumstances favorable to BM have not been presented at the trial. Also, the prosecutor is obliged to present circumstances favorable to the indicted in case they exist.
That Lei Da and Zhou Lulu have not testified in the case is a weakness in the investigation that must be considered when evaluating the evidence.
When it finally comes to evaluating the evidence, the District Court can only conclude that the same amount of evidence is needed in this case as any other: in order to consider the case proved, the prosecutor has to present evidence to the effect there is no reasonable doubt that BM is guilty of the crime of the charged offense. If there are any doubts, BM shall be acquitted.
Has Lei Da been an intelligence officer?
A question of significant importance when evaluating guilt is whether Lei Da was an intelligence officer and not a journalist. The evidence on this part is mainly based on Bo Renner’s and Wilhelm Unge’s testimonies. They have, in accordance with what is described in the secret attachment, described SAPO’s assessment that Lei Da has held the position of Chinese intelligence officer. The District Court finds their testimony convincing.
There are also circumstances beyond Bo Renner’s and Wilhelm Unge’s testimony implying that Lei Da has been an intelligence officer. BM’s own information in combination with the phone tapping that was carried out has shown that a large part of Lei Da’s communication with BM has been characterized by measures of secrecy including the use of different phones, a system of calling on one phone to signal the use of another phone, and calling from public telephones. That this activity would have happened as part of journalist activities from Lei Da’s side seems completely implausible. That it would have been a precautionary measure to hide negotiations between China and the WUC, something the District Court will elaborate on further down, is not plausible either. The conclusion is that it proves that Lei Da, during the time pertaining to the case, held the post of Chinese intelligence officer.
Was BM aware that Lei Da was an intelligence officer?
BM has argued that the reason he and Lei Da communicated secretly was because they were handling sensitive negotiations that were taking place or about to take place between the WUC and China. Lei Da would serve as an informal channel to China whereas BM in the same way would serve as a bridge to Rebiya Kadeer and the leadership of the WUC.
The District Court is of the opinion that there are circumstances that imply that China and the WUC have been in contact, primarily because of the letter dated the 26th of May 2008 that Rebiya Kadeer had Dolkun Isa forward to BM. Rebiya Kadeer, however, has testified that she and BM barely had contact after the letter had been delivered. Dolkun Isa has testified that he was not aware of any negotiations. Nevertheless, BM and Lei Da had very frequent contacts during the period of the year after the letter had been delivered. That BM during this time would have held indirect talks with the Chinese government without reporting to either Rebiya Kadeer or Dolkun Isa seems out of the question. Neither do the phone taps support the assumption that their contacts concerned negotiations between China and WUC. The District Court for this reason rejects [the claim] that the contacts between BM and Lei Da have been part of negotiations between China and the WUC. Neither can the secret communication be explained by BM wanting to get money back from the Chinese state. It can only be explained by BM being aware of Lei Da working for the Chinese intelligence service and therefore he took precautionary measures to hide his dealings with Lei Da.
Has BM gathered information about others’ personal conditions?
From a large number of intercepted phone calls as well as the testimonies from Abduljelil Karakash, Dilixiati Rexiti and Adil Hakimjan, it is clear that BM has collected information about the personal condition of people of Uyghur origin, most of whom have been active in Uyghur associations and organizations in Sweden and other countries. This information has concerned travel, health condition and applications for asylum. BM has also gathered information from meetings and demonstrations, including photographs. Notes taken during the meetings and pictures taken during a demonstration have included information about who participated and what they said, which falls under the personal circumstances mentioned in the relevant provision [of the criminal code]. BM has thus collected information about other’s personal conditions. The list of Uyghur found in BM’s living quarters might, however, have been part of an invitation to a wedding and therefore does not constitute information about other’s personal information as referred to in the indictment.
Has it been an activity?
In the penal provision there is a requirement that there must have been multiple actions to gather the information mentioned above. It is therefore not punishable to only take [a] single action, but it requires a number of actions that have been of the kind and in such a temporal relationship that they can only be seen as related to one activity. These activities need to have some form of plan-like organization.
When evaluating if it has been part of an activity, it can be established that BM has had contact with a large number of persons to gather information. He has travelled, collected photographs, talked [to others] and taken notes. He has met Zhou Lulu and Lei Da on at least 15 occasions. He has, during the time pertaining to the case, been in telephone contact with Lei Da on at least 180 occasions, in which 59 calls have been from operative phones and eleven calls from public phones. Also, the technical investigation as well as intercepted telephone calls between BM and Lei Da show that Lei Da has had access to BM’s email account. All these conditions show that there has been an activity.
Has BM provided [information] to the Chinese state?
From the phone taps it has further been found that BM turned the collected information over to Lei Da and Zhou Lulu. He has recognized that Lei Da was an intelligence officer and Zhou Lulu a diplomat. By handing over the information he has deliberately provided [information] to the Chinese state.
Has BM acted secretly or by deceitful means, and have the activities been carried out in the country?
BM has confessed that his meetings and contacts with Lei Da and Zhou Lulu have to a certain extent occurred secretly, although for a different reason than the one he has been convicted for. As can be seen from the above, the investigation also shows that he has carried out the activities secretly. By claiming to be sympathetic to the Uyghur cause and withholding [the information that] he acted in order to collect information for China, he has been using deceitful means. Furthermore he has been carrying out the activities in the country. This is the case even though he has on occasion traveled abroad and taken notes in other countries.
The charge is proved
The above shows that the indictment is proven. BM shall therefore be sentenced for illegal information gathering.
Is the criminal offense serious?
The prosecution has stated that the crime should be regarded as serious according to the 19th chapter, 10, third section in the Criminal Code, because it has been an activity that has been systematic, occurred over a longer period in professional form and might have caused or might cause a large number of persons serious harm since the foreign power has been and is a totalitarian great power with strong resources.
The District Court makes the following considerations in this part. BM has for a long time carried out an activity of significant extent. Even though the data he has collected and turned over might seem trivial taken by themselves [one by one] and in some cases have been public, the activity, in which BM has infiltrated the highest leadership of the exile Uyghur movement, can as such have caused or cause serious harm for Uyghur individuals in or outside China.
The aim of the specific penal provision, however, is not only to protect individual persons or groups of persons but also to prevent a foreign power from establishing an intelligence network in the country that can be used for other kinds of espionage than the type that is aimed at refugees. This is the reason the specific penal provision is part of the law on national security. In this regard, there has been potential harm that goes outside the scope of pure refugee espionage.
The risk of harm has been great since the intelligence activities have served a great power that does not fully respect human rights and also has resources to carry out their policies. Combining these circumstances, the criminal offense is considered serious.
The penalty scale for the criminal offense of illegal intelligence activity is prison from six months to four years. There is no precedent from the Supreme Court. The Appeals Court of Western Sweden has in a sentence carried out the 13th of November 2007 (case B 84-97) specified the penalty for the offense as prison for eight months. The District Court of Southern Roslag specified in a sentence carried out the 28th of December 1993 (case B 738-93) the penalty to prison is one year and six months. Before 1993 the maximum penalty was restricted to prison for two years, but there was then no specific penalty scale for serious criminal offenses. Applying the [same] penalty scale, the courts have decided the penalty to prison ranging from six months to one year and six months (Sentence from District Court in Molndal the 18th of October 1988 in case B 525-88, as well as the sentences carried out by the District Court in Stockholm the 2nd of September 1975 in case B 347-75 and the 28th of Febrary 1974 in case B 670-73).
BM has no previous criminal record. As has been stated above, he has for a long period of time carried out extensive activities which have carried risk of serious harm. The seriousness of the offense is so high as to correspond to prison for one year and six months. Due to the seriousness of the criminal offense, there can be no other penalty than prison.
The circumstance that BM from the 28th of August 2009 has been subject to a travel ban with an on obligation to give notice should lead to mitigation of the penalty, see NJA 2009, page 599. The time for the penalty shall therefore be reduced to prison for one year and four months.
Travel ban and obligation to give notice
There is still a risk that BM might try to evade prosecution or punishment. He should therefore be subject to a travel ban with obligation to give notice.
Forfeitures and confiscations
When it comes to forfeiting the 110000 SEK in cash in exchange for [carrying out] the crime, the District Court concludes that this is money BM kept in envelopes in clothes inside a wardrobe. BM has, during the specific time, only had a small income and received economic support [from the state]. The phone tapping has also shown that he has received compensation for his intelligence activities. His objection that this had been savings money given to him by his children, among others, does not need to be considered. In light of the described circumstances it is obvious to the District Court that the money has been compensation for criminal activities. They shall the fore be forfeited. The claim of the prosecutor is therefore approved in this part.
The confiscation of the evidence should continue and the passport be forfeited.
Questions of secrecy
The trial has been held behind closed doors. For this reason, secrecy can be ordained for information revealed during the trial. The secrecy in this case will amount to the one described in the 15th chapter, 1 OSL for secrecy relating to foreign powers, and also the 17th chapter, 2, same law, for the designated secrecy to protect the activities of SAPO to reveal or prevent crimes against national security.
Secrecy relating to foreign powers holds for information relating to Sweden’s relations with another state, in which it can be presumed that revealing said information will harm Sweden’s international relations or harm the country in any other way. In order to ascertain if information pertaining to the case should be subject to such secrecy, considering the 10th chapter, 8 RF [Constitution], the District Court has requested a statement from the Government Office.
The secrecy to protect the activities of SAPO to reveal or prevent crimes against national security will hold if it is not clear that the information can be revealed without the objective of the decisions or prepared activities being prevented or future activities harmed.
The District Court makes the judgment that a large part of the information pertaining to the case presented at trial should not be subject to secrecy. Only the information in attachment 3, secret, should be kept secret according to the law sections mentioned above.
The defender has asked for compensation for 388 hours of work. Due to the extent and character of the case, this work has been necessary to carry out the assignment. The defender shall therefore be granted the requested compensation. The cost should stay with the state.
INSTRUCTIONS FOR APPEALS; see attachment
Appeals, stated to Svea Appeals Court, should have been received by the District Court before the 29th of March, 2010
Originally I planned to post my own reflections about the case in this entry, but I’ll save that for the comments, in order to make my point: Whatever viewpoints you or I might have, the important thing is that we reason from the facts (in this case, how the court actually decided and what it says in the verdict). I’m interested in hearing your comments as to whether the case is solid or not.
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