The following is a translation prepared by the Congressional-Executive Commission on China of the "Trial Provisions on Several Issues Regarding Court Hearing Procedures in Death Penalty Appeals Cases," jointly issued by the Supreme People's Court and Supreme People's Procuratorate on September 21, 2006. The Chinese text was retrieved from the China Court Net Web site on September 26, 2006. A summary of the projected impact of the Trial Provisions is available here.
Supreme People's Court, Supreme People's Procuratorate
Trial Provisions on Several Issues Regarding Court Hearing Procedures in Death Penalty Appeals Cases
(Passed at the 1398th Meeting of the Supreme People's Court Adjudication Committee, on August 28, 2006. Passed at the 60th Meeting of the 10th Procuratorate Committee of the Supreme People's Procuratorate, on September 11, 2006.)
Judicial Interpretation No. 8 (2006)
PRC Supreme People's Court
PRC Supreme People's Procuratorate
Announcement
"The Supreme People's Court, Supreme People's Procuratorate Trial Provisions on Several Issues Regarding Court Hearing Procedures in Death Penalty Appeals Cases," passed on August 28, 2006 by the Supreme People's Court Adjudication Committee, at its 1398th meeting, and on September 11, 2006 by the Supreme People's Procuratorate, at the 60th meeting of its 10th Procuratorate Committee, are hereby promulgated and go into effect as of September 25, 2006.
September 21, 2006
In order to punish crimes with precision in accordance with law, strengthen the safguarding of human rights in the criminal justice realm, and guarantee the quality of death penalty case-handling, in accordance with the relevant provisions of the PRC Criminal Procedure Law, we hereby provide as follows regarding issues related to court hearing procedures in death penalty appeals cases:
Article 1. Cases that are tried by an appellate court, in which a defendant has appealed or a people's procuratorate has protested a trial court's decision to immediately execute the death penalty, shall be heard in court in accordance with law and the relevant regulations.
Article 2. Cases that are tried by an appellate court, in which a defendant has appealed a trial court's death penalty sentence, with two years' reprieve, shall be heard in court under the following circumstances:
(1) The defendant or defender introduces new evidence that has an impact on conviction or sentence and requires a court hearing;
(2) The circumstances for a court hearing, as provided for under Article 187 of the Criminal Procedure Law, exist.
Cases in which a people's procuratorate has protested a trial court's death penalty sentence, with two years' reprieve, shall be heard in court by an appellate court.
Article 3. In cases where a defendant sentenced to the death penalty has put forward an appeal, the trial court shall, within three days of the appeals deadline, transfer the appeals petition, together with the case file, to a people's court at the next higher level. At the same time, it shall deliver a copy of the appeals petition to the people's procuratorate at the same level and to the appellant. The people's procuratorate receiving a copy of the appeals petition shall, within three days, submit a copy of the appeals petition and the relevant materials to the people's procuratorate at the next higher level.
In cases protesting a trial court's death penalty judgment, after the people's procuratorate protesting the case has submitted a written protest to the trial court, it shall, within three days, hand over a copy of the written protest and related materials to the people's procuratorate at the next higher level. The trial court shall, within three days of the protest deadline, transfer the written protest, together with the case file and evidence, to a people's court at the next higher level, and shall deliver a copy of the written protest to the parties concerned.
Article 4. Where a defendant appeals a death penalty sentence, and requests to withdraw the appeal after the appeals deadline and prior to the appeals hearing, the appeals court shall conduct a review. After the collegial panel has reviewed the case file, interrogated the defendant, and heeded the opinions of other parties concerned, defenders, and legal representatives; if it believes that the facts are clear and the application of law was correct in the original judgment, and that the sentence was appropriate, it will not conduct another hearing and will rule to permit the defendant's withdrawal of the appeal; if it believes that the facts are unclear, the evidence insufficent, innocence was judged guilty, or a minor crime was punished heavily in the original judgment, it shall not grant permission to withdraw the appeal and, in accordance with appellate procedures, conduct a court hearing.
Article 5. When an appeals court conducts a hearing in a death penalty appeals or protest case, the collegial panel shall, prior to the hearing, conduct a comprehensive review of the case file and materials, focusing the review on the following content:
(1) The grounds for appeal or protest, and whether new facts and evidence were put forward;
(2) The circumstances of the defendant's statement or plea;
(3) The opinions of the defender, and the circumstances of the original court's acceptance;
(4) Whether the original trial judgment's findings of fact were clear, and whether the evidence was reliable and sufficient;
(5) Whether the original trial judgment's application of law was correct, and whether it was appropriately permitted;
(6) During investigation, prosecution, and adjudication, there were no circumstances violating legally-mandated litigation procedures;
(7) The opinions discussed by the original court's collegial panel or adjudication committee;
(8) Other content with an impact on granting permission to convict.
Article 6. An appeals court shall promptly ascertain whether a defendant who has been sentenced to immediate execution of the death penalty has entrusted a [criminal] defender. Where a defender has not been entrusted, the defendant shall be informed that he may represent himself or contact a legal aid organization to have a lawyer who has taken on legal aid responsibilities appointed in his defense.
If a defendant refuses to be defended by a court-appointed defender, and has legitimate grounds, the people's court shall grant permission and the defendant may entrust a defender at a later time. If a defendant has not entrusted a defender, the people's court shall appoint a defender for him at a later time.
Article 7. When an appeals court conducts a hearing in a death penalty appeals or protest case, it shall, 10 days prior to the hearing, contact the people's procuratorate for review of the case file.
Article 8. When a people's procuratorate handles a death penalty appeals or protest case, it shall, prior to the hearing, conduct a comprehensive review of the case file and materials, with a focus on the grounds for protest or appeal. It shall examine whether the trial court judgment was correct in its findings of fact in the case and application of law, whether the evidence was reliable and sufficient, whether the sentence was appropriate, and whether the trial proceedings conformed to law. It shall also carry out the following tasks:
(1) It shall question the defendant and heed the defendant's grounds for appeal or plea;
(2) When necessary, it shall heed the opinions of the defender(s);
(3) In examining important evidence, when necessary, it shall question witnesses;
(4) With respect to expert conclusions, it may carry out a new evaluation or supplement the [original] evaluation;
(5) Depending on the case circumstances, it may heed the opinions of the victim(s).
Article 9. When an appeals court conducts a hearing in a death penalty appeals or protest case, the people's procuratorate at the same level shall send personnel to appear in court.
Article 10. When an appeals court conducts a hearing in a death penalty appeals or protest case, the people's procuratorate shall, prior to the hearing, prepare interrogation, [direct or cross] examination, presenting of evidence, confronting of evidence, and defense argument outlines, as well as a written opinion for the court appearance.
Article 11. When an appeals court conducts a hearing in a death penalty appeals or protest case, three to five judges shall form a collegial panel. In difficult, complex, or major death penalty cases, the president of the court or chief judge of the tribunal shall serve as presiding judge.
Article 12. The collegial panel shall, prior to conducting the hearing, ascertain the relevant circumstances and also complete the following preparatory tasks:
(1) After pronouncement of the trial court judgment, [ascertain] whether the defendant has made any reports or exposés that must be verified;
(2) [Ascertain] whether any circumstances exist that could lead to a postponement of the hearing;
(3) When necessary, interrogate the defendant;
(4) Prepare a hearing outline, and determine the substance of what must be heard in court;
(5) Three days prior to the hearing, notify the people's procuratorate of the time and location of the hearing;
(6) Notify the people's procuratorate, the defendant, and his defender that, five days prior to the hearing, they are to provide a roster of witnesses and experts who will appear in court to testify;
(7) Send, three days prior to the hearing, a summons and written notification to summon the parties concerned and to notify defenders, witnesses, experts, and translators;
(8) If the people's procuratorate submits new evidence to the appeals court, the appeals court shall contact the defendant's defense lawyer or other permitted defender prior to the hearing to have them review [the evidence] at the people's court; if the defendant and his defender submits new evidence to an appeals court, the appeals court shall contact the people's procuratorate prior to the hearing to have it review [the evidence] at the people's court;
(9) If the people's procuratorate, during the review period, carries out a new expert evaluation or supplements an expert evaluation, the evaluation that is done shall be promptly submitted to the people's court and the people's court shall, three days prior to the hearing, inform the parties concerned and their legal representatives or defenders of the expert's conclusions; if a victim and his legal representative, or a defendant and his defender, put forward a request for a new expert evaluation or a supplemented expert evaluation, and the appeals court agrees, the evaluation that is done shall be promptly submitted to the people's court and the people's court shall, three days prior to the hearing, inform the opposing party and their legal representatives or defenders of the expert's conclusions, and shall also notify the people's procuratorate;
(10) In cases tried publicly, three days prior to the hearing, announce in advance the cause of action, the defendant's name, and the time and location of the hearing.
(11) Other preparatory tasks.
The circumstances of the aforementioned activities shall be written into the record and signed by the adjudicators and court clerk.
Article 13. When an appeals court conducts a hearing in a death penalty appeals or protest case, where the following circumstances exist, the court shall contact witnesses, experts, and victims to appear in court to testify:
(1) The people's procuratorate, or the defendant and his defender, object(s) to the expert's conclusions, the expert evaluation process violates regulations, or the expert's conclusions raise obvious doubts;
(2) The people's procuratorate, or the defendant and his defender, object(s) to depositions by witnesses or statements by victims, and the particular witness' deposition or victim's statement has a major impact on the conviction or sentence;
(3) The collegial panel believes other [circumstances] require testimony in court.
Article 14. An appeals court shall be comprehensive in hearing a death penalty appeals or protest case, but, when conducting the hearing, may, according to the specific circumstances and with a focus on the issues related to the controversy raised by the people's procuratorate, or the defendant and his defender, or related to what the people's procuratorate believes needs to be the focus of the review, carry out:
(1) After the presiding judge has announced that the hearing is conducted, the court may read out loud the original trial judgment or may also read out loud only the cause of action, principal facts, evidence, and body of the court judgment, among other significant content in the court judgment. During the court investigation period, in an appeals case, the defendant or defender will first read out loud the appeals petition or state the grounds for appeal; in a protest case, the procurator will first read out loud the written protest; in a case that is both an appeal and a protest, the procurator will first read out loud the written protest, and then the appellant or defender will read out loud the appeals petition or state the grounds for appeal.
(2) The focus of the court's investigation is on objections raised regarding the facts or evidence in the original trial judgment, and on new evidence, among other things, submitted. With respect to facts, evidence, and details not objected to by the people's procuratorate, or the defendant and his defender, the court may conduct its investigation outside the hearing.
(3) If the people's procuratorate, or the defendant and his defender, do(es) not object to the evidence accepted by the original trial judgment, the court may skip presenting the evidence and confronting the evidence again.
(4) During the court argument period, in a protest case, the procurator will first speak; in an appeals case, the appellant or defender will first speak; in a case that is both an appeal and a protest, the procurator will first speak and also proceed with the argument in proper order.
(5) If a defendant was not sentenced to the death penalty and, furthermore, did not put forward an appeal in a joint crime, and the people's procuratorate and defender, prior to the hearing, indicate no need to conduct an interrogation and confront the evidence, the court may try this outside the hearing.
(6) If a crime is among one of multiple crimes by the defendant, and was sentenced with a different criminal punishment; the facts are clear; and, furthermore, the people's procuratorate, or the defendant and defender do(es) not object, the court may try this outside the hearing.
Article 15. If, during the appeals process, a procurator or defender discovers that there are major changes in the evidence that could affect the conviction or sentence in a case, he may propose postponement of the hearing.
Article 16. An appeals court shall, in its ruling, state the opinions of the people's procuratorate, the defendant's plea, and the opinions of the defender, and also whether they have been accepted. It shall also explain the reasons.
Article 17. After an appeals court has entered a judgment or ruling, if it pronounces the decision in court, it shall, within five days, send the written judgment or ruling to the parties concerned, defender, and people's procuratorate at the same level. If it fixes a date for pronouncing the decision, it shall send [the written judgment or ruling] promptly after pronouncement.
An appeals court may entrust a trial court with pronouncement of the decision, and also with sending the written appeals judgment or ruling to the parties concerned.
Article 18. If, during the appeals process, a procurator who appears in court discovers that the trial proceedings violate legally-mandated litigation procedures, after the proceedings are adjourned, the people's procuratorate will raise with the people's court opinions on how to redress this.
Article 19. Other matters regarding court hearing procedures in death penalty appeals cases shall be carried out in accordance with the Criminal Procedure Law, judicial interpretations, and other relevant regulations.
Article 20. These provisions are effective as of their date of issuance. If any judicial interpretations or relevant regulations that precede the issuance of these provisions contradict these provisions, these provisions control.
