Supreme People's Court Calls for Hearings in Death Penalty Appeals

January 4, 2006

The Supreme People's Court (SPC) has called on provincial high courts to conduct hearings for all death sentence appeals beginning next year, according to a December 8 article in Xinhua. The SPC issued a Circular Regarding Further Improving Open Court Session Work in Second Instance Death Penalty Cases (translated by CECC staff) on December 7. The circular follows SPC President Xiao Yang's announcement in late October that the SPC would consolidate and reclaim its power over death penalty review as part of a Second Five-Year Reform Plan for China's courts. Court officials characterized both reforms as necessary to carry out the Second Five-Year Reform Plan's goals of ensuring greater fairness and caution in the death penalty review process.

The Supreme People's Court (SPC) has called on provincial high courts to conduct hearings for all death sentence appeals beginning next year, according to a December 8 article in Xinhua. The SPC issued a Circular Regarding Further Improving Open Court Session Work in Second Instance Death Penalty Cases (translated by CECC staff) on December 7. The circular follows SPC President Xiao Yang's announcement in late October that the SPC would consolidate and reclaim its power over death penalty review as part of a Second Five-Year Reform Plan for China's courts. Court officials characterized both reforms as necessary to carry out the Second Five-Year Reform Plan's goals of ensuring greater fairness and caution in the death penalty review process.

The circular reaffirms the appeals procedure set forth under Article 187 of the Criminal Procedure Law (CPL), and explicitly incorporates these procedures into the death penalty review process. The circular calls on high courts to continue conducting hearings in cases that are appealed by a people's procuratorate. (Pursuant to Article 181 of the CPL, a local people’s procuratorate may appeal a case whenever it "considers that there is some definite error in a judgment or order of first instance.") At the same time, it newly requires high courts to institute a similar procedure for death penalty appeals not initiated by the procuratorate. Beginning on January 1, 2006, high courts are to conduct hearings in death penalty cases where "significant factual and evidentiary issues give rise to an appeal." Beginning in the second half of 2006, high courts are to extend the use of hearings to all death penalty cases on appeal. These new requirements exceed the protections set forth under the CPL, which creates an exception to the hearing requirement where "after consulting the case file, interrogating the defendant and heeding the opinions of the other parties, defenders and agents ad litem, [a court] thinks the criminal facts are clear." In a December 7 press statement to the Beijing-based China News Agency, an SPC representative clarified that "in an appeals case in which the facts are clear, failure by a people's court to open a court session does not violate the provisions of the CPL." However, he argued that death penalty appeals should become an exception to that rule due to the severity of the punishment imposed.

In addition to establishing the substance of new legal requirements for death penalty appeals (that courts conduct hearings), the circular also helps establish how high courts can change current practices to fulfill those requirements. The death penalty review process in China typically involves a paper review of the case file, according to a November 3 article in the Beijing Review. Paragraph 3 of the circular requires that during the course of a hearing, the high court must focus on the reasons for the appeal and, towards that end, "conduct a comprehensive examination of the facts and applicable law adduced in the judgment of first instance." This "comprehensive examination" is clarified in Paragraphs 4 and 5, which require key witnesses and expert witnesses to appear in court, and call on high courts to "guarantee that public prosecutors and lawyers appear in court." The circular does not indicate whether the hearings should be open to the public, but Article 11 of the CPL sets forth a general requirement that "cases in the People's Courts shall be heard in public." Article 152 confirms that public access is mandatory for first instance cases, but CPL provisions governing cases of second instance do not include similar language.

The SPC representative emphasized in the press statement that "The death penalty is the most severe punishment depriving a criminal offender of life. When a people's court applies the death penalty, it must be even more careful, and absolutely cannot allow for mistakes." In a December 8 report in the Beijing News, Professor Zhou Daoluan of the National Judges College noted that review of death penalty cases in Beijing and Tianjin municipalities, and in Hebei province, revealed a high rate of error among lower courts. High courts found that in 90 percent of death penalty cases that they remanded and overturned, the trial court's conclusions on significant facts and evidence raised reviewable questions. Conclusions on significant facts and evidence posed a problem in 50 percent of the cases that the SPC remanded or overturned. A December 9 article in the China Daily quoted Zhou's analysis on the combined significance of the October announcement and December circular: "If the quality of first and second instance hearings can be ensured, it will reduce the workload in the review procedure." As Zhou told the Beijing News, "Requiring an open court session in all second instance death penalty cases is for the very purpose of providing a cushion for taking back the power of death penalty review." Scholars at the National Judges College previously expressed concern that returning the power of death penalty review to the SPC would significantly increase its workload. The SPC has already transferred hundreds of court personnel to its three new criminal tribunals for reviewing death penalty cases.

The circular focuses only on procedures for provincial high courts, and does not clarify how the SPC itself will conduct death penalty review. According to a November 3 report in the Beijing News, the SPC will soon issue a judicial interpretation to help settle open issues in the death penalty review process. In addition, the Beijing News reports that legislators have continued to work on revisions to the CPL and the 1983 Organic Law of the People's Courts (Organic Law), which authorized the SPC's original transfer of death penalty review to provincial high courts. For additional information on the Organic Law and the SPC’s decision to transfer part of its power over death penalty review to provincial high courts, see The Execution of Lobsang Dondrub and the Case Against Tenzin Deleg: The Law, the Courts, and the Debate on Legality. For general information on capital punishment in China, see Section III(b), on the Rights of Criminal Suspects and Defendants, in the CECC's 2005 Annual Report. For additional analysis on some of the remaining open issues in the death penalty review process, see below.
 


Several weeks before the SPC issued the circular, Chinese legal experts and scholars gathered for an "International Conference on Death Penalty Review Procedure." The conference was held on November 19 and 20 by the China Law Society’s "China Law" magazine and Renmin University's Litigation System and Judicial Reform Research Institute. (The conference was also co-sponsored by the UN Development Programme and the American Bar Association.) According to a December 1 report by Legal Daily, scholars raised the following open issues for resolution:
 

  • Will all relevant parties, including the defendant, appear before the SPC? Currently, Articles 199 to 202 of the CPL break the death penalty review process into three stages: (1) adjudication and submission of a death sentence to a higher court, (2) examination by the higher court, and (3) approval by the SPC. The circular turns the second stage of examination by a higher court into a process that now requires a hearing, the appearance of witnesses, and adjudication on the facts and law. Although the SPC has now established three new criminal tribunals, their location in Beijing raises the question of whether a defendant and key evidence can appear in court for the third stage. The alternative would be for the SPC to conduct just a paper review of documentary submissions by prosecution and defense parties.
  • What will be the role of the people's procuratorate? Article 129 of China’s Constitution provides that the people's procuratorates function as state agencies for "legal supervision." Some critics have questioned whether the procuratorate in a death penalty case should play any role during the third stage of approval by the SPC, according to the Beijing Review's December 8 report (cited above). They argue that the third stage is not an adjudicatory process, but rather an internal court process. Procuratorial agencies that gathered for a conference in August disagreed and concluded that they should have a continuing role in "legal supervision" even during the third stage of death penalty review. Officials are currently debating how that role would translate into practice, according to the Beijing News.
  • What will be the role of criminal defense lawyers? One lawyer at the conference on November 19 and 20 suggested that "defense representation during the death penalty review procedure should be a significant component of legal aid." Increasing a criminal defendant’s access to justice has been an ongoing focus of criminal procedure reform and led to the September issuance of new regulations on legal aid in criminal matters. Although governing law requires that a court must appoint a criminal defense lawyer to those facing possible death sentences, it does not yet clarify whether this obligation extends to the appeals process.
  • What evidentiary standard should a reviewing court apply? Scholars at the conference agreed that the evidence in a criminal trial must show guilt "beyond a reasonable doubt," if the court is to convict the defendant. However, they differed about whether the standard for conviction should be higher in death penalty cases, and also about the applicable standard for sentencing and justification of the death penalty as the appropriate sentence.