SPC, SPP Issue Joint Interpretation on Death Penalty Appeals

November 3, 2006

The Supreme People's Court (SPC) and Supreme People's Procuratorate have jointly issued a judicial interpretation that establishes concrete guidelines for the handling of death penalty appeals (ershen, or "second instance" cases) by local courts and procuratorates, according to a September 25 Xinhua report (in Chinese). The Trial Provisions on Several Issues Regarding Court Hearing Procedures in Death Penalty Appeals Cases (Trial Provisions) were issued on September 21 and went into effect on September 25.

The Supreme People's Court (SPC) and Supreme People's Procuratorate have jointly issued a judicial interpretation that establishes concrete guidelines for the handling of death penalty appeals (ershen, or "second instance" cases) by local courts and procuratorates, according to a September 25 Xinhua report (in Chinese). The Trial Provisions on Several Issues Regarding Court Hearing Procedures in Death Penalty Appeals Cases (Trial Provisions) were issued on September 21 and went into effect on September 25. The Trial Provisions help clarify policy goals that were established by the SPC in its Second Five-Year Reform Program for the People's Courts and its Circular on Further Improving Open Court Session Work in Second Instance Death Penalty Cases, both issued in late 2005. Specifically, the Trial Provisions provide guidance on the following issues, among others:

  • When an appellate (or second instance) court should conduct a hearing in a death penalty case (Articles 1-2).
  • Whether procuratorate personnel should appear in court (Article 9).
  • Which appellate court personnel should be present to hear the case (Article 11).
  • Which other individuals should appear in court for the hearing and under what circumstances (Article 13).
  • What tasks the appellate court and procuratorate should complete prior to the hearing and what issues they should focus on (Articles 5, 8, 10, and 12).
  • What specific protocol should be followed at each hearing (Article 14).

The Trial Provisions reform the death penalty review process to make it consistent with requirements under the Criminal Procedure Law (CPL). Under Article 187 of the CPL, court hearings should be conducted in all criminal appeals that are initiated by a procuratorate (pursuant to Article 181 of the CPL) and in most criminal appeals that are initiated by another party to the case. The exception to the CPL's hearing requirement occurs in appeals initiated by a party other than the procuratorate, if "after consulting the case file, interrogating the defendant, and heeding the opinions of the other parties, defenders and agents ad litem, [an appellate court] thinks the criminal facts are clear."

The Trial Provisions depart from the SPC's previous policy statements on using court hearings for all death penalty appeals. In 2005, the SPC expanded the use of hearings beyond the scenarios in Article 187 and used its Reform Program and Circular to more broadly call for hearings in all death penalty appeals by the end of 2006. The new Trial Provisions, however, limit the use of hearings to the following categories of death penalty appeals:

  • The appeal of a court's decision to immediately execute the death penalty, regardless of who initiates the appeal;
  • A defendant's appeal of a death sentence, with two years' reprieve, if the defendant or his representative introduces new evidence that has an impact on the conviction or sentence;
  • A defendant's appeal of a death sentence, with two years' reprieve, except where the appellate court determines in accordance with Article 187 that the facts of the case are sufficiently clear;
  • All appeals initiated by a procuratorate to protest the imposition of a death sentence, with two years' reprieve.

Under Article 48 of the Criminal Law, a death sentence can be carried out either immediately or with a two-year reprieve. The practical effect of the Trial Provisions is that all appeals initiated by a procuratorate will be heard in court. A defendant's appeal of a death sentence, with two years' reprieve, however, will not be heard in court unless significant facts or evidence raise reviewable questions.

he Trial Provisions focus only on hearing procedures for local-level appellate courts, and does not clarify how the SPC itself will conduct death penalty review. As part of its 2005 Reform Program, the SPC has also said that it would consolidate and reclaim the power to review all death sentences, and issue judicial interpretations to clarify procedures for review. Over the past year, the SPC has worked on setting up three new criminal tribunals and conducted trainings for new court personnel, in order to prepare for the workload that will result when it reclaims the power to review death sentences. On October 31, the National People’s Congress Standing Committee passed an amendment to the Organic Law on the People's Courts, to echo requirements under Article 48 of the Criminal Law and Article 199 of the CPL that the SPC review and approve all death sentences. The SPC has not yet issued a judicial interpretation to clarify its own procedures for such review.

For more information on "Capital Punishment" in China, see Section V(b) of the CECC's 2006 Annual Report.