Central Government Expands Provision of Legal Aid in Criminal Cases

December 1, 2005

The central government has issued a new regulation that will expand the scope of legal aid services available in criminal cases, according to a November 17 analysis in Dazhong Net, a Shandong provincial news site. The Supreme People's Court, Supreme People’s Procuratorate, Ministry of Public Security, and Ministry of Justice jointly issued their Provisions on Legal Aid Work in Criminal Litigation (2005 Provisions) on September 28. The 2005 Provisions go into effect on December 1, and the analysis notes that they will expand both the existing categories of criminal suspects and defendants entitled to a lawyer and the role of lawyers in the criminal process.

The central government has issued a new regulation that will expand the scope of legal aid services available in criminal cases, according to a November 17 analysis in Dazhong Net, a Shandong provincial news site. The Supreme People's Court, Supreme People’s Procuratorate, Ministry of Public Security, and Ministry of Justice jointly issued their Provisions on Legal Aid Work in Criminal Litigation (2005 Provisions) on September 28. The 2005 Provisions go into effect on December 1, and the analysis notes that they will expand both the existing categories of criminal suspects and defendants entitled to a lawyer and the role of lawyers in the criminal process.

The 2005 Provisions make the following changes to existing law:

  • Categories of eligibility. Under Article 34 of China's Criminal Procedure Law (CPL) and Articles 2, 3, and 4 of a 1997 Joint Circular Regarding Legal Aid in Criminal Matters (1997 Circular) issued by the Supreme People's Court and Ministry of Justice, a court must appoint a criminal defender only to those who are blind, deaf, mute, minors, or facing possible death sentences, and are not already represented by one. A court may refer the case to a local legal aid organization or judicial administration bureau if a defendant faces economic hardship or if the defendant has met specific criteria and the court believes that he or she requires a lawyer. Article 2 of the 2005 Provisions will now permit all criminal suspects and defendants who face financial hardship to be informed of their rights and to initiate an application for legal aid. In addition, it will also extend this right to victims and their close relatives facing financial hardship.
  • Lawyer's point of entry. Article 151 of the CPL and Article 5 of the 1997 Circular require courts to assign cases to legal aid providers just ten days before trial. Under Article 4 of the 2005 Provisions, a criminal suspect or defendant can now make a request for legal aid representation as early as the investigation and indictment stages of the criminal process. Under Article 6, the public security bureau, people's procuratorates, and people's courts should transfer the request to a local legal aid organization within 24 hours of receipt. Under Article 7, the legal aid organization should immediately decide whether to provide legal aid and, within three days of making a decision, notify the criminal suspect or defendant in writing.

A November 2004 article in the Beijing Review highlighted some of the prospective changes in Chinese criminal procedure law and commented that "[t]he establishment of a legal aid system and ensuring the protection of the rights of underprivileged groups are ongoing in China's social development plans." Legal experts have repeatedly identified the ability of criminal suspects and defendants to gain access to legal representation as one area for reform and inclusion in the CPL amendment, as noted by the CECC in February, August, and October. Scholars have completed a working draft amendment to the CPL, for review and comment by the implementing public security, procuratorial, and court agencies before final deliberation by the National People's Congress. The joint issuance of the 2005 Provisions shows some degree of advance consensus among public security, procuratorate, and court officials on the need to improve access to legal representation for criminal suspects and defendants.