Provisions on Several Issues Regarding the Strict Exclusion of Illegal Evidence in Handling Criminal Cases

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Title: Provisions on Several Issues Regarding the Strict Exclusion of Illegal Evidence in Handling Criminal Cases
Promulgating Entities:Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security Et al.
Reference number: 
Promulgation Date: 2017-6-27
Expiration date: 
Source of text: http://news.xinhuanet.com/legal/2017-06/27/c_1121217500.htm

The following provisions are drafted on the basis of the "Criminal Procedure Law of the People's Republic of China" and relevant judicial interpretations and other provisions, together with actual judicial practice, so as to correctly punish crimes, truly safeguard human rights, regulate judicial conduct, and promote judicial fairness.

I. General Provisions

Article 1: The use of torture to extract confessions is strictly prohibited as are threats, enticement, trickery and other illegal methods of gathering evidence; no person may be compelled to prove his own guilt. Judgments in all cases should emphasize evidence and emphasize investigation and research, and must not casually credit confessions.

Article 2: Statements shall be excluded where made by criminal suspects or defendants against their own will due to unbearable suffering caused by the employ of the egregious tactics of using violent methods such as hitting, the unlawful use of restraints, or disguised corporal punishment.

Article 3: Statements shall be excluded where made by criminal suspects or defendants against their own will due to unbearable suffering caused by methods using violence, or carrying out threats through means such as seriously harming the lawful rights and interests of the person or their families.

Article 4: Criminal suspects or defendants' statements gathered by the use of unlawful confinement or other illegal restrictions of physical liberty shall be excluded.

Article 5: Where extortion of confessions by torture is used to make criminal suspects or defendants confess, and the criminal suspect makes subsequent repeat confessions similar to that confession because of the influence of that [prior] use of torture to extract confessions, they shall all be excluded together, with the following exceptions:

(1) Where, during the investigation period, the investigating organs confirm, or cannot rule out, that evidence was gathered by illegal means, and they therefore change investigators; and when other investigators again conduct interrogation, they give information on the procedural rights and on the legal consequences of admitting guilt, and the criminal suspect voluntarily confesses.

(2) Where, during the periods of review for arrest, review for prosecution, and trial, prosecutors or adjudicators give information on procedural rights and the legal consequences of admitting guilt when conducting interrogations, and the criminal suspect or defendant voluntary confesses.

Article 6: Witness testimony and victim statements gathered through the use of violence, threats and unlawful restrictions of physical liberty, or other unlawful means, shall be excluded.

Article 7: Where the gathering of physical or documentary evidence does not comply with legally prescribed procedures and might seriously influence judicial fairness, supplementation and correction or a reasonable explanation shall be provided; where it cannot be supplemented and corrected, or have a reasonable explanation provided, the relevant evidence shall be excluded.

II. Investigation

Article 8: Investigating organs shall follow legally prescribed procedures to carry out investigations and the gathering or collection of evidence that can verify the criminal suspects' guilt or innocence, or the severity of the offense.

Article 9: After criminal suspects are taken into custody or arrested, they shall be brought to the detention center for detainment in accordance with provisions of law. After criminal suspects are delivered to the detention center for detainment, interrogation shall be conducted in the detention center's interrogation room. Where, for objective reasons, the investigating organs conduct interrogation outside of detention centers' interrogation rooms, they shall make a reasonable explanation.

Article 10: When investigators interrogate criminal suspects, they may make audiovisual recordings of the interrogation process; for suspects that might be sentenced to indeterminate detention or death, or in other major criminal cases, they shall make an audiovisual recording of the interrogation process.

Investigators shall inform criminal suspects that interrogation is being recorded, and specify this in the interrogation record.

Article 11: Where an audiovisual recording is made of the interrogation process, it shall be without interruptions and with its integrity preserved, it must not be selectively recorded and must not be spliced or edited.

Article 12: Investigators interrogating criminal suspects shall make an interrogation record in accordance with law. The interrogation record shall be given to the suspect for review, and where suspects cannot read, shall be read to them. Suspects may submit supplements or corrections to interrogation records with omissions, errors, or other such situations.

Article 13: Detention centers shall make a registry of persons being taken to interrogation, specifying the unit, personnel, matter, and start and stop times, as well as the criminal suspects name and other such information.

Detention centers receiving criminal suspects into custody shall conduct physical inspections. When making inspections, the people's procuratorate's procurators who are based in the detention centers may be present. Where the inspection discover that the criminal suspect has injuries or physical abnormalities, the detention centers shall take photographs or recordings, and have the personnel bringing them for detainment, and the criminal suspect, explain the reasons separately, have this clearly written in the physical inspection record and have the personnel delivering detainees, the person receiving them into custody, and the criminal suspects, sign and verify.

Article 14: Criminal suspects and their defenders may apply to the people's procuratorate for the exclusion of illegal evidence during the investigation period. Where criminal suspects and their defenders provide relevant leads or materials, the people's procuratorates shall investigate and verify them. The criminal suspects and their defenders shall be informed in writing of the investigation conclusions. Where there are truly situations of evidence gathering through illegal means, the people's procuratorate shall submit a corrective opinion to the investigating organs.

Illegal evidence that is reviewed and identified by the investigating organs shall be excluded, and must not be the basis for submitting a request to approve arrest or for transferring the case to be reviewed for prosecution.

In major cases, the people's procuratorates' procurators who are based in the detention center shall question the criminal suspect before the conclusion of the investigation, to verify whether there was extortion of confessions by torture or circumstances of illegal evidence gathering, and are to make a synchronous audiovisual recording. Where upon verification, there is, in fact, extortion of confessions by torture or circumstances of illegal evidence gathering, the investigating organs shall promptly exclude the illegal evidence, and it must not be the basis of a request for approval of arrest or for transferring the case to be reviewed for indictment.

Article 15: In cases where the investigation has concluded, the investigating organs shall fully review the legality of evidence gathering , and exclude illegal evidence in accordance with law. Where, after illegal evidence is excluded, the evidence is insufficient, the case must not be transferred for review for prosecution.

Where the investigating organs discover that case-handling personnel illegally acquired evidence, they shall handle it in accordance with law, and may separately appoint investigators to newly investigate and obtain evidence.

III. Review for arrest, and review for prosecution

Article 16: Interrogations of criminal suspects in the review for arrest and review for prosecution periods shall inform them that they have the right to apply for the exclusion of illegal evidence, and inform them of procedural rights and the legal consequences of admitting guilt.

Article 17: Where criminal suspects and their defenders apply for the exclusion of illegal evidence during the review for arrest or review for prosecution periods, and provide relevant leads or materials, the people's procuratorate shall investigate and verify them. The criminal suspects and their defenders shall be informed in writing of the investigation conclusions.

Where people's procuratorates discover during the review for prosecution period that investigators gathered evidence through illegal methods such as the use of torture to extract confessions, they shall exclude the relevant evidence in accordance with law and issue a corrective opinion; when necessary, the people's procuratorates may conduct their own investigation and evidence gathering.

Illegal evidence, as reviewed and identified by the people's procuratorates, shall be excluded, and must not be the basis for approving or deciding to arrest, or for indictment. Illegal evidence that has been excluded shall be transferred with the case, and be specified as being illegal evidence excluded in accordance with law.

Article 18: Where,after people's procuratorates exclude illegal evidence in accordance with law, the evidence is insufficient and does not meet the requirements for arrest or indictment, they must not approve or decide to arrest,or indict.

Where people's procuratorates' exclusion of relevant evidence leads to important alleged criminal facts not be ascertained, so that a decision to not arrest or indict is made, or where it is decided to not indict on some important criminal facts,the public security organs or state security organs may request a reconsideration or review.

IV. Defense

Article 19: Where criminal suspects or defendants apply for legal aid, a legal aid lawyer shall be assigned to them in accordance with relevant provisions.

Legal aid duty lawyers may provide legal assistance to criminal suspects or defendants, and represent them in collateral appeals or accusations about use of torture to extract confessions and circumstances of illegal evidence gathering

Article 20: Criminal suspects or defendants and their defenders' applications for the exclusion of illegally gathered evidence shall provide relevant leads or materials such as the relevant persons, time, place, means, and content of alleged illegal evidence gathering.

Article 21: From the day on which the procuratorate reviews the case for prosecution, defense attorneys may read, copy, and reproduce evidentiary materials such as interrogation records,registries of removals for interrogation , and legal documents employing compulsory measures or investigative measures. Other defenders may also read, copy and reproduce the above evidentiary materials upon the permission of the people's courts or people's procuratorates.

Article 22: Where criminal suspects or defendants, as well their defenders, apply to the people's courts or people's procuratorates to collect audiovisual interrogation recordings, physical inspection records, or other evidentiary materials that the public security organs, state security organs, or people's procuratorate gathered but have not handed over, and, upon review, the people's court or people's procuratorate finds that the evidence which the criminal suspect or defendant or their defenders applied for collection of is related to proving the legality of evidence gathering, they shall collect it; where they find it is not related to proving the legality of evidence gathering, they shall decide not to collect it, and explain the reasons to the criminal suspect or defendant and their defender.

V. Trial

Article 23: When people's courts deliver a copy of the indictment to defendants and their defenders, they shall inform them of the right to apply for the exclusion of illegal evidence.

Defendants and their defenders' applications for the exclusion of illegal evidence shall be submitted before the court opens for trial, except in circumstances such as where leads or materials are discovered during the trial period. People's courts shall send a copy of the application documents and relevant leads or materials to the people's procuratorate, before court opens for trial.

Article 24: Where defendants and their defenders applying for the exclusion of illegal evidence before court opens for trial, fail to provide relevant leads or materials, and do not meet the legally prescribed requirements, the people's courts shall not accept the application.

Article 25: Where defendants and their defenders apply for the exclusion of illegal evidence before court opens for trial, and provide leads or materials in accordance with the relevant legal provisions, the people's courts shall convene a pretrial conference. People's procuratorates shall make focused explanations of the legality of evidence gathering through means such as the presentation of relevant evidentiary materials. The people's courts may verify the circumstances and hear comments.

The people's procuratorate may decide to withdraw the relevant evidence; and evidence that is withdrawn must not be presented in court absent new reasoning.

Defendants and their defenders may withdraw applications for the exclusion of illegal evidence. After the withdrawal of the application, they must not again submit an application for the exclusion of the relevant evidence, absent new leads or materials.

Article 26: Where the public prosecutor, defendant and his defender fail to reach a consensus on the legality of evidence gathering during the pretrial conference, and the people's court has doubts about the legality of the evidence gathering, it shall conduct an investigation during trial; but if the people's court has no doubts about the legality of the evidence gathering, and there are no new leads or materials showing that their might be illegal evidence gathering, they may decide to not conduct another investigation.

Article 27: Where defendants and their defenders apply to the people's court to notify investigators or other personnel to appear in court, and the people's court finds that available evidentiary materials cannot prove the legality of evidence gathering, and that there is truly a need to inform the above personnel to appear in court to testify or explain the situation, they may notify the above personnel to appear in court.

Article 28: After the public prosecutor reads out the indictment, the court shall announce the review and handling of the legality of evidence gathering before opening court for trial.

Article 29: Where defendants and their defenders do not apply for the exclusion of illegal evidence before court opens for trial, but make an application during the course of trial, they shall explain the reasons.

Where,in the above situations, upon court review there is doubt about the legality of evidence gathering, an investigation shall be conducted, but where there is no doubt, the application shall be rejected.

Where, after the court rejects an application for the exclusion of illegal evidence, the defendant and his defender make another application on the same grounds without new leads or materials, the court is not to review it again.

Article 30: Where, in the trial period, the court decides to conduct an investigation of the legality of evidence gathering, it shall first conduct an investigation at court. However, in order to prevent excessive delay of the trial, the court may also conduct the investigation before the end of court investigation.

Article 31:Public prosecutors adding proofs of the legality of evidence collection may present evidentiary materials such as interrogation records, registry of removal for interrogation, physical inspection records,legal documents for employing compulsory measures or investigative measures, and materials from reviews of the legality of evidence gathering done before the conclusion of the investigation; through targeted playing of interrogation recordings, or through requesting the court notify investigators or other personnel to appear in court to explain the situation.

Defendants and their defenders may present relevant leads and materials, and apply for the court to play specified portions of interrogation recordings.

Investigators or other personnel appearing in court shall explain the process of gathering evidence and take questions on the relevant circumstances. The court will stop questioning that is inappropriate or the content of which is irrelevant to the legality of evidence gathering.

The public prosecutor, defendant, and his defender, may debate the legality of the evidence gathering.

Article 32: Where the court has doubts about evidence provided by the prosecution and defense, it may announce an adjournment to conduct an investigation and verification of the evidence. When necessary, the public prosecutor and defender may be notified to appear.

Article 33: After the court conducts an investigation on the legality of evidence gathering, it shall make a decision at court on whether or not to exclude the evidence. When necessary, it may announce an adjournment, and have the collegiate panel deliberate or submit it to the adjudication committee for discussion, and then convene court to announce the decision.

Before the court makes a decision on whether to exclude the relevant evidence, that evidence must not be read at court or debated.

Article 34: Where, upon trial, it is determined that there are circumstances of gathering evidence through illegal methods as provided for in these Provisions, the relevant evidence shall be excluded. Where the court has doubts about the legality of evidence gathering on the basis of relevant leads and materials, and the people's procuratorate has not provided evidence, or the evidence it provided cannot prove the legality of evidence gathering, and the possibility of circumstances of evidence gathering by illegal means as provided for in these Provisions cannot be excluded, the relevant evidence shall be excluded.

Evidence that is to be excluded in accordance with law, must not be read for the record or debated, and must not be the basis of a judgment.

Article 35: Where, after people's courts exclude illegal evidence in accordance with law, the facts of the case are clear, the [remaining] evidence is credible and sufficient, and the defendant is found guilty on the basis of law, a judgment of guilty shall be made; where the evidence is insufficient and it cannot be determined that the defendant is guilty, a judgment of not guilty as the evidence is insufficient to sustain the charges shall be made, where some of the case facts are clear, and the evidence is credible and sufficient, that portion of the facts may be affirmed.

Article 36:People's courts shall specify review and investigation conclusions on the legality of evidence gathering in written judgments, and explain the reasoning.

Article 37: For people's courts' review or investigation of the legality of evidence gathering, such as for witness testimony or victim statements,consult the provisions above.

Article 38: Where people's procuratorates, defendants, or their legal representatives raise a procuratorial counter-appeal or appeal, raising objections to the first-instance trial court's review or investigation conclusions on the legality of evidence gathering, the second-instance trial court shall review.

Where defendants and their defenders did not apply for the exclusion of illegal evidence during first-instance trial procedures, and make an application in the second-instance trial procedure, they shall explain the reasons. The second-instance trial court shall review it.

Where people's procuratorates did not present evidence in the first-instance trial procedures showing that evidence was gathered legally, the first-instance trial court is to exclude the relevant evidence in accordance with law, and the people's procuratorate must not present evidence at the second-instance trial that they did not present previously, except for that discovered after the first-instance trial procedures.

Article 39:For the second-instance trial court's investigation of the legality of evidence gathering, consult the provisions above on the first-instance trial procedures.

Article 40:Where first-instance trial courts do not review applications of the defendant and his defender for the exclusion of illegal evidence, and the relevant evidence is the basis of the verdict and it might influence the justness of the judgment, the second-instance trial court may rule to revoke the original judgment and remand to the original people's court for new trial.

Where the first-instance trial court does not exclude illegal evidence that should be excluded in accordance with law, the second-instance trial court may exclude the illegal evidence in accordance with law. Where, after illegal evidence is excluded, it is found that the facts verified and law applied in the original judgment are correct and the sentence is proper, the appeal or procuratorial counter-appeal shall be rejected and the original judgment maintained; where the facts verified in the original judgment are not in error, but the law was applied incorrectly or the sentence is improper, the judgment shall be changed; where the facts in the original judgment are unclear or the evidence insufficient, a ruling may be made to revoke the original judgment and remand to the original people's court for new trial using the ordinary procedures.

Article 41:For review and investigation of the legality of evidence gathering during the judgment supervision procedures or death penalty review procedures, consult the above procedures.

Article 42:These Provisions take effect on June 27th, 2017.

 

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