FAIR TRIAL FOR HARM·TUESDAY, DECEMBER 13, 2016
On May 8, 2015, Dutch citizen Harm Fitié was confronted by the Chinese judiciary system, following an accident that occurred during the night of May 6 – 7 in Beijing, in the home where he was living with his French girlfriend Diane Vandesmet in the center of Beijing.
That night, their next-door neighbour, Mr Lu Zhicheng, was making very heavy throat- clearing noises standing on the edge of his rooftop which was about 2.8 metres from the ground. The noises woke up Harm who went from his bedroom to the rooftop he and Diane shared with the neighbour to try to reason with him. Lu Zhicheng, who was proven to be very drunk at the time, got really angry with Harm and approached to attack him but fell from the part of the rooftop that was not protected by a fence. Harm rushed downstairs to the alley to try to resuscitate the man by doing CPR while waiting for the ambulance to pick him up. Unfortunately, the next morning the neighbour died in hospital.
Harm was subsequently arrested and detained under suspicion of having intentionally hit the neighbour resulting in his falling of the rooftop and dying. He was interrogated 17 times by the police without his lawyer. Harm always denied having hit the neighbour in any way. No convincing evidence was ever put forward to conclude that Harm was guilty. He has been in detention ever since without any contact with his family and girlfriend.
The case went on trial almost a year later on March 28,2016 with a second hearing on May 11. The devastating verdict (guilty of intentional injury leading to death, 12 years and 65,000 RMB) was announced on July 29. In the verdict, the court did not consider any of the arguments of his defense lawyers, despite major flaws having been highlighted in the prosecutor’s file.
The family subsequently called for an appeal which took place on December 1, 2016. Going through the files, Harm’s appeal lawyers were bewildered, saying that “in the intentional injury and intentional homicide cases we have handled, “it is rare to have so many illegal procedures, concealed evidence, suspected perjury in one case like this”. They also concluded that there are “sufficient reasonable grounds to suspect that the police and relatives of the deceased intentionally handled the injustice.”
Indeed, the evidence collected in order to prove Harm’s guilt was insufficient and contradictory. To condemn Harm in the trial of first instance, the court’s decision was based on testimonies which can be suspected of perjury. The most striking example is the testimony of the neighbour’s son, who first declared on May 7 that his father was unconscious and couldn’t speak when in the ambulance and at the hospital, before changing his mind one week later to say that his father told him before dying that “the foreigner hit me”. This testimony should have been dismissed by the prosecutor but it was considered as evidence. When confronted about this discrepancy during the appeal hearing, the prosecutor explained that the deceased’s son did not tell the police about this very important fact from the beginning because “he was too shocked by the death of his father”, a wholly unsatisfactory explanation.
Another suspicious testimony was the one from the doctor who carried Lu Zhicheng to the ambulance. He also modified his testimony from saying that Lu Zhicheng was unconscious and couldn’t speak before saying, six months later that he was not sure about that anymore.
Finally, there are contradictions between the police report and the hospital report regarding Harm’s hand which was supposedly injured. Indeed, the police accused Harm of having hit the neighbour, breaking his nose (which Harm repeatedly denied). A picture of Harm’s hands was used as evidence by the prosecutor, however the clear picture shows hands without any kind of injury. Harm said his hand was never injured and, indeed, there was no trace of Lu Zhicheng DNA on it.
No evidence can therefore prove that Harm Fitie hit Lu Zhicheng. But that didn’t prevent the police, prosecutor and court from judging this evidence to be valid, ignoring other scenarios that could have explained this injury. For example, Lu Zhicheng could also have hurt his nose on something else, for instance the nearby air conditioner’s piping, when falling from the rooftop. But the air conditioner pipe was never analysed by the police. According to the lawyer, “scene marks on the roof of the victim’s house, the physical shape of the roof, the scratches on the wall, have not been recorded, or have been recorded, but were intentionally not analysed. Site survey, including but not limited to the camera angle, picture selection, on-site schematic diagram are not standardized. There is a deliberate reversal of the order. There is suspicion of misleading the judiciary and hindering the discovering the truth of the case. ”
The evidence that could attest to Harm’s innocence was systematically ignored or concealed. For instance, Lu Zhicheng’s sandals and Harm’s sandals, which were necessary to compare footprints on the terrace, and show the spot from which Lu Zhicheng fell, were never analysed properly and are now lost evidence of Harm’s innocence. Some traces on the wall, visible on the pictures from the police, were not analysed either.
It is clear that Harm has so far not benefited from a fair trial and only two solutions can provide justice at the collection of all the evidence. For instance, Lu Zhicheng’s medical record of hospitalisation has never been collected despite the fact that this report could provide a true indication of the victim’s awareness and language skills during the first aid.” Before the appeal hearing, the lawyer asked for this important record as well as a new scene investigation. Both requests were rejected.
In similar cases, if Harm were Chinese, the lawyers would have advised the family to file a complaint against the police, prosecutor and the court for very strong violation of the law. However, because of language barriers and physical distance, this option was very difficult for the family to carry out. Therefore, we urge the Dutch government to file an official complaint in order to make sure Harm’s case is either dismissed or he gets a new and fair trial.
It is crucial that the Dutch government is fully involved and stands by Harm to ensure that his rights are respected.
At the moment we do not have any information about when the appeal verdict is due from the High Court but it is our last chance for justice and we demand a public answer from the Ministry of Foreign Affairs to our request.