Supreme People's Court Circular On Further Improving Open Court Session Work in Second Instance Death Penalty Cases (CECC Full Translation)
Supreme People's Court Circular Regarding Further Improving Open Court Session Work in Second Instance Death Penalty Cases Court Decree Number 214 (2005) To the high people’s courts in each province, autonomous region, and municipality directly under the central government, the military affairs tribunals of the People’s Liberation Army, and the branch courts of the Xinjiang Uighur Autonomous Region Production and Construction Corps: In order to carry out requirements related to the “Second Five-Year Reform Plan of the People’s Courts” for reform and improvement of adjudication procedures in death penalty cases, and in accordance with regulations under the Criminal Procedure Law concerning opening court sessions in second instance cases, notice is hereby given as follows regarding issues arising in the opening of court sessions in death penalty cases by the Supreme People’s Court, pursuant to second instance adjudication procedure: 1. Fully recognize the importance and necessity of further improving second instance open court session work in death penalty cases. In death penalty cases, which are matters of life and death, it is necessary to apply extremely strict and cautious adjudication procedures. Opening court sessions in second instance death penalty cases is an important measure for strictly implementing the Criminal Procedure Law and carrying out the “Second Five” reform plan of the people’s courts. It also improves adjudication procedures in death penalty cases, is a necessary requirement for ensuring quality in death penalty cases, is conducive to a strengthening of judicial protection of human rights, and is conducive to a systemic guarantee of justice and caution in death penalty judgments. Each high people’s court must attach a high level of significance to this, consolidate thinking, earnestly strengthen its sense of responsibility and urgency, organize itself with utmost care, proceed carefully, overcome hardship, bring about the conditions, make opening of court session in second instance death penalty cases an important component of today’s work to be fully grasped, and ensure complete implementation thereof. 2. Each high people’s court shall, at the same time that it remains committed to opening court session in second instance death penalty cases protested by a People’s Procuratorate, beginning January 1, 2006 open court session with respect to all second instance death penalty cases in which significant factual and evidentiary issues give rise to an appeal, and, in the second half of 2006, also actively bring about conditions for which open court sessions can be carried out for all second instance death penalty cases. 3. Each high people’s court shall open court session in death penalty appeals and protested cases, and shall focus its examination on the reasons for the appeal or the protested case, and other issues that the court believes are necessary to investigate and are relevant to conviction or sentencing. Upon this foundation, and in strict accordance with regulations under the Criminal Procedure Law, it shall conduct a comprehensive examination of the facts and applicable law adduced in the judgment of first instance. It must, in accordance with the special characteristics of opening court session in second instance death penalty cases, improve second instance adjudication procedure and the manner of opening court session, ensure the quality of cases, and increase the efficiency of case handling. 4. In open court sessions in second instance death penalty cases, witnesses and forensic authenticators in the following circumstances shall appear in court: (1) the prosecution and defense parties are in dispute about the witness’s deposition or authenticator’s conclusions, and the deposition or authentication conclusions have significant impact on conviction or sentencing; (2) the court otherwise believes they should appear in court to testify. 5. Each high people’s court must, under the leadership of the local Party committee, actively strive for support from the government and relevant bureaus, in order to earnestly resolve all ensure and issues related to the persons, finances, and equipment involved in open court session in second instance death penalty cases. It must strengthen collaboration with procuratorial agencies and judicial administration departments, strive for support and coordination, guarantee that public prosecutors and lawyers appear in court, and ensure that open court session in second instance death penalty cases is conducted smoothly. Please implement in accordance with the above circular. Please report promptly to our court on the circumstances of implementation and issues encountered. December 7, 2005
The following is a translation prepared by the Congressional-Executive Commission on China of the "Circular Regarding Further Improving Open Court Session Work in Second Instance Death Penalty Cases" issued by the Supreme People's Court on December 7, 2005. The Chinese text was retrieved from the PRC Ministry of Justice LegalInfo.gov Web site on December 8, 2005. A summary of the projected impact of this circular is available here.
Supreme People's Court Circular Regarding Further Improving Open Court Session Work in Second Instance Death Penalty Cases
Court Decree Number 214 (2005)
To the high people’s courts in each province, autonomous region, and municipality directly under the central government, the military affairs tribunals of the People’s Liberation Army, and the branch courts of the Xinjiang Uighur Autonomous Region Production and Construction Corps:
In order to carry out requirements related to the “Second Five-Year Reform Plan of the People’s Courts” for reform and improvement of adjudication procedures in death penalty cases, and in accordance with regulations under the Criminal Procedure Law concerning opening court sessions in second instance cases, notice is hereby given as follows regarding issues arising in the opening of court sessions in death penalty cases by the Supreme People’s Court, pursuant to second instance adjudication procedure:
1. Fully recognize the importance and necessity of further improving second instance open court session work in death penalty cases. In death penalty cases, which are matters of life and death, it is necessary to apply extremely strict and cautious adjudication procedures. Opening court sessions in second instance death penalty cases is an important measure for strictly implementing the Criminal Procedure Law and carrying out the “Second Five” reform plan of the people’s courts. It also improves adjudication procedures in death penalty cases, is a necessary requirement for ensuring quality in death penalty cases, is conducive to a strengthening of judicial protection of human rights, and is conducive to a systemic guarantee of justice and caution in death penalty judgments. Each high people’s court must attach a high level of significance to this, consolidate thinking, earnestly strengthen its sense of responsibility and urgency, organize itself with utmost care, proceed carefully, overcome hardship, bring about the conditions, make opening of court session in second instance death penalty cases an important component of today’s work to be fully grasped, and ensure complete implementation thereof.
2. Each high people’s court shall, at the same time that it remains committed to opening court session in second instance death penalty cases protested by a People’s Procuratorate, beginning January 1, 2006 open court session with respect to all second instance death penalty cases in which significant factual and evidentiary issues give rise to an appeal, and, in the second half of 2006, also actively bring about conditions for which open court sessions can be carried out for all second instance death penalty cases.
3. Each high people’s court shall open court session in death penalty appeals and protested cases, and shall focus its examination on the reasons for the appeal or the protested case, and other issues that the court believes are necessary to investigate and are relevant to conviction or sentencing. Upon this foundation, and in strict accordance with regulations under the Criminal Procedure Law, it shall conduct a comprehensive examination of the facts and applicable law adduced in the judgment of first instance. It must, in accordance with the special characteristics of opening court session in second instance death penalty cases, improve second instance adjudication procedure and the manner of opening court session, ensure the quality of cases, and increase the efficiency of case handling.
4. In open court sessions in second instance death penalty cases, witnesses and forensic authenticators in the following circumstances shall appear in court: (1) the prosecution and defense parties are in dispute about the witness’s deposition or authenticator’s conclusions, and the deposition or authentication conclusions have significant impact on conviction or sentencing; (2) the court otherwise believes they should appear in court to testify.
5. Each high people’s court must, under the leadership of the local Party committee, actively strive for support from the government and relevant bureaus, in order to earnestly resolve all ensure and issues related to the persons, finances, and equipment involved in open court session in second instance death penalty cases. It must strengthen collaboration with procuratorial agencies and judicial administration departments, strive for support and coordination, guarantee that public prosecutors and lawyers appear in court, and ensure that open court session in second instance death penalty cases is conducted smoothly.
Please implement in accordance with the above circular. Please report promptly to our court on the circumstances of implementation and issues encountered.
December 7, 2005
最高人民法院关于进一步做好死刑第二审案件开庭审理工作的通知
法〔2005〕214号
各省、自治区、直辖市高级人民法院，解放军军事法院，新疆维吾尔自治区高级人民法院生产建设兵团分院：
为落实《人民法院第二个五年改革纲要》有关改革和完善死刑案件审判程序的要求，根据刑事诉讼法关于第二审案件开庭审理的规定，现就人民法院依照第二审程序开庭审理死刑案件的有关问题通知如下：
一、充分认识进一步做好死刑案件第二审开庭审理工作的重要性和必要性。死刑案件，人命关天，必须适用极为严格、审慎的审理程序。死刑第二审案件开庭审 理是严格执行刑事诉讼法、落实人民法院“二五”改革纲要的重要举措，也是完善死刑案件审判程序、保证死刑案件质量的必然要求，有利于加强司法人权保障，有 利于从制度上保证死刑判决的公正和慎重。各高级法院一定要高度重视，统一思想，切实增强责任感和紧迫感，精心组织，周密部署，克服困难，创造条件，把死刑 第二审案件开庭审理作为当前的一项重要工作抓紧抓好，确保落实到位。
二、各高级法院在继续坚持对人民检察院抗诉的死刑第二审案件开庭审理的同时，自2006年1月1日起，对案件重要事实和证据问题提出上诉的死刑第二审案件，一律开庭审理，并积极创造条件，在2006年下半年对所有死刑第二审案件实行开庭审理。
三、各高级法院开庭审理死刑上诉、抗诉案件，应当重点审查上诉、抗诉理由以及法院认为需要查证的与定罪量刑有关的其他问题。在此基础上，严格依照刑事 诉讼法的规定对第一审判决认定的事实和适用法律进行全面审查。要根据死刑案件第二审开庭的特点，完善第二审程序和开庭审理方式，确保案件质量，提高办案效 率。
四、开庭审理死刑第二审案件，下列情形的证人、鉴定人应当出庭：(一)控辩双方对证人证言、鉴定结论有异议，该证言、鉴定结论对定罪量刑有重大影响的；(二)其他法院认为应当出庭作证的。
五、各高级法院要在当地党委的领导下，积极争取政府及有关部门的支持，切实解决开庭审理死刑第二审案件所涉人、财、物保障及相关问题。要加强与检察机关、司法行政部门的协调，争取支持和配合，保证公诉人和律师出庭，确保死刑第二审案件开庭审理工作顺利进行。
以上通知，请遵照执行。执行情况及遇到的问题，请及时报告我院。
二○○五年十二月七日