The following is a translation prepared by the Congressional-Executive Commission on China of the "Provisions on Legal Aid Work in Criminal Litigation" jointly issued by the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, and Ministry of Justice on September 28, 2005. The Chinese text was retrieved from the Law-Lib.com Web site on November 21, 2005. A summary of the projected impact of these provisions is available here.
Provisions of the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, and Ministry of Justice on Legal Aid Work in Criminal Litigation
Article 1. These provisions are formulated, and the realities of legal aid work are combined, in accordance with the "Criminal Procedure Law of the People's Republic of China," "Law on Lawyers of the People's Republic of China," "Regulation on Legal Aid," and other related regulations, in order to strengthen and standardize legal aid work in criminal litigation.
Article 2. Criminal suspects, defendants in cases of public prosecution, victims in cases of public prosecution and their legal representatives or close relatives, and private prosecutors in cases of private prosecution and their legal representatives who, due to financial hardship, have not retained a lawyer or entrusted an agent ad litem, can apply for legal aid with any of the legal aid organizations within the public security bureau, people's procuratorate, or people's court handling the case.
As persons whose capacities are restricted, criminal suspects and defendants can be represented by their legal representative when applying for legal aid.
Article 3. The criteria for measuring a citizen's financial hardship shall be implemented in accordance with the regulations of the people's government of the province, autonomous region, or municipality directly under the central government receiving the case.
Article 4. The public security bureaus and people's procuratorates shall, subsequent to lawful interrogation of a criminal suspect for the first time or from the day on which compulsory measures are adopted against him, and at the same time that they notify a criminal suspect that he has the right to retain a lawyer to provide him with legal advice and to file petitions and complaints on his behalf or to apply on his behalf for a guaranty pending trial, also notify him that if there is financial hardship, he can apply to a legal aid organization for legal aid. If a case involves state secrets, the criminal suspect shall be notified that his application for legal aid shall be approved by the investigating agency.
The people's procuratorates shall, within three days of the date on which the case materials are transferred for investigation before prosecution, and at the same time that they notify the criminal suspect that he has the right to entrust a criminal defender, also notify him that if there is financial hardship, he can apply to a legal aid organization for legal aid; and at the same time that they notify a victim and his legal representative or close relatives that they have the right to entrust agents ad litem, also notify him that if there is financial hardship, he can apply to a legal aid organization for legal aid.
The people's courts shall, within three days from the date on which investigation of a case for prosecution has been completed, and at the same time that they notify the defendant that he has the right to entrust a criminal defender, also notify him that if there is financial hardship, he can apply to a legal aid organization for legal aid.
The people's courts shall, within three days from the date on which they receive the file record for a case of private prosecution, and at the same time that they notify the private prosecutor and his legal representative that they have the right to entrust an agent ad litem, also notify him that if there is a financial hardship, he can apply to a legal aid organization for legal aid.
Article 5. Notification can be carried out verbally or in writing. A record shall be kept in the case of verbal notification and signed by the defendant; a written notification shall be returned for execution on the person's file.
Article 6. The public security bureau, people's procuratorates, and people's courts shall, within 24 hours after receiving a request from a detained criminal suspect or criminal defendant for legal aid, transfer the application to the local legal aid organization and also inform the applicant's legal representative, close relatives, or other entrusted persons to assist in providing the relevant certifications, evidence, and case materials as mandated under Article 17 of the "Regulation on Legal Aid."
Where the address of a criminal suspect's legal representative or close relatives is unclear, and such persons cannot be informed, the public security bureau, people's procuratorates, and people's court shall, at the time of transfer of the application, also notify the legal aid organization.
Article 7. After a legal aid organization has received an application, it shall immediately examine the application and make its decision in accordance with the relevant regulations. With respect to cases that qualify for legal aid, the legal aid organization shall decide to provide legal aid and, within three days of the date of the decision, assign a lawyer and send written notification to the public security bureau, people's procuratorate, and people's court; with respect to cases failing to satisfy conditions for legal aid, the legal aid organization shall make a decision not to provide legal aid and, within three days of the date of the decision, provide written notification of its reasons to the applicant and written notification to the public security bureau, people's procuratorate, and people's court.
In official correspondence regarding legal aid in criminal matters, a legal aid organization shall clearly indicate the name and contact information of the lawyer handling the case.
Article 8. If an applicant objects to the decision of the legal aid organization not to provide legal aid, he can raise this with the judicial administration department assigned to the legal aid organization. The judicial administration bureau shall, within five business days of the date on which it receives the objection, initiate an investigation. If the investigation leads to the conclusion that the applicant has satisfied the conditions for legal aid, the judicial administration bureau shall, in written form, order the legal aid organization to immediately provide legal aid to the applicant and, at same time, notify the applicant. If the conclusion is that the applicant has failed to qualify for legal aid, the judicial administration bureau shall affirm the decision of the legal aid organization not to provide legal aid and also provide written notification of its affirming decision and reasons in a written notice to the applicant.
Article 9. When a people's court appoints a criminal defender in accordance with the "Criminal Procedure Law" and related judicial interpretations, it shall deliver copies of the notification of appointment and criminal indictment, or a copy of the verdict, to the local legal aid organization. These documents will be consolidated for acceptance and organized for implementation by the legal aid organization.
When a people's court decides to commence trial proceedings, it shall, ten days prior to commencement of the trial, deliver copies of the notification of appointment and criminal indictment, or a copy of the verdict, to the local legal aid organization.
In its notification of appointment of a criminal defender, a people's court shall clearly indicate the nature of the case, defendant's name, reason for a court-appointed criminal defender, name and contact information of the person handling the case, and, where it has decided to commence trial proceedings, it shall clearly indicate the trial time and location.
Article 10. A legal aid organization shall, three days prior to commencement of a trial, send written notification of the name and contact information of the legal aid representative appointed to handle the case to the people’s court.
Article 11. After a lawyer has accepted his assignment by a legal aid organization, he shall complete the attorney filings in accordance with the relevant regulations.
In court-appointed criminal defense cases, the lawyer shall, prior to commencement of the trial, seek approval from the defendant to be the person responsible for his criminal defense. If the criminal defendant disagrees, the lawyer shall make this notation in the record and also send written notification to the people's court and legal aid organization.
Article 12. Where the defendant insists on defending himself and rejects being defended by court-appointed counsel, the people's court shall allow for this and make a notation in the case record.
Where circumstances require that a defendant shall have a court-appointed criminal defender, the people's court shall investigate and determine the reason for the defendant's rejection of a court-appointed criminal defender. If there is good reason, the court shall allow for this, but the defendant must entrust another criminal defender. If the defendant does not entrust another criminal defender, the people's court shall appoint alternate counsel.
Where a people's court, in accordance with the preceding paragraph, decides to appoint another criminal defender on behalf of defendant, it shall, within three days of the date on which the decision is made, send written notification to the legal aid organization charged with making the assignment.
Article 13. Where circumstances set forth under Article 23 of the "Regulation on Legal Aid" arise in the implementation of legal aid in a criminal lawsuit, the legal aid organization or people's court that decides to terminate legal aid services or appointment of a criminal defender shall, on the day that such decision is made, send written notification to the other party. The other party shall then make a corresponding decision to terminate.
Article 14. Where a people's court decides to change the time of commencement of trial, it shall, three days prior to commencement of the trial, notify the lawyer handling the legal aid case. Where the lawyer handling the legal aid case has a legitimate reason for not being able to make a timely appearance in court, he can apply to the people's court to postpone commencement of trial. Where the people's court agrees to postpone commencement of trial, it shall immediately notify the lawyer handling the legal aid case.
Article 15. Where a people's court has decided not to initiate trial proceedings on a case, the lawyer handling a legal aid case shall, within ten days of the date on which he receives an assignment letter from a legal aid organization, submit his written defense opinion.
Article 16. The public security bureaus and people's procuratorates shall, in accordance with law, support the lawyer handling a legal aid case in the development of his case. They shall inform the lawyer of the name of the crime that the criminal suspect is accused of, arrange for him to meet with the criminal suspect in detention as provided for under law, and provide the necessary conditions to facilitate the lawyer's ability to provide legal advice, file petitions and complaints, and apply for a guaranty pending trial and other measures on behalf of a criminal suspect in detention.
Article 17. During the phase of investigation before prosecution, the people's procuratorate shall provide references, excerpts, and duplication of case files and forensic documents to a lawyer handling a legal aid case. It shall provide conditions to facilitate the lawyer's meetings and communications with a criminal suspect in detention.
When investigating a case, a people's court shall listen to the opinions of the lawyer handling the legal aid case.
Article 18. After a public security bureau has withdrawn a case or transferred a case for investigation before prosecution, or a people's court has initiated a public prosecution or made a decision not to prosecute, it shall, within five days, notify the lawyer handling a legal aid case of the action taken on the case.
Article 19. A people's court shall, in accordance with law, support the lawyer handling a legal aid case in the development of his case. It shall provide references, excerpts, and duplication of materials containing the alleged facts of the crime to a lawyer handling a legal aid case. It shall make available conditions facilitating the lawyer's meetings and communications with a criminal suspect in detention.
Article 20. The public security bureaus, people's procuratorates, and people's courts shall provide an exemption or discounted rate on fees for the duplication of necessary materials on behalf of a lawyer handling a legal aid case. The measure of the discount shall be calculated on the basis of required costs for duplication of materials.
Article 21. In the course of handling a legal aid case, a lawyer shall do his best and respect professional ethics and codes of conduct.
Legal aid organizations shall provide professional guidance and supervision to a lawyer in his legal aid activities, in order to guarantee the quality of the legal aid case.
If, in the course of handling a case, the public security bureau, people's procuratorate, or people's court discovers that a lawyer has violated professional ethics and codes of conduct, thus damaging the interests of the recipient of legal aid, it shall immediately report the situation to the legal aid organization that made the assignment.
Article 22. A people's court shall, in its verdict and sentence, indicate the assigning legal aid organization, the lawyer handling the legal aid case, and the professional organization with which that lawyer is affiliated.
Article 23. These provisions will become effective as of December 1, 2005. Where there is a conflict with the "Joint Circular Regarding Legal Aid in Criminal Matters" issued by the Supreme People's Court and Ministry of Justice on April 9, 1997, the "Joint Circular Regarding Provision of Legal Aid in Criminal Actions" issued by the Supreme People's Procuratorate and Ministry of Justice on April 24, 2000, and the "Joint Circular Regarding Provision of Legal Aid in Criminal Actions" issued by the Ministry of Justice and Ministry of Public Security on April 25, 2001, these provisions shall control.
September 28, 2005