SPC, SPP, MPS, and MoJ Regulation on Legal Aid Work in Criminal Cases

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Chinese Title: 最高法最高检公安部司法部关于刑事诉讼法律援助工作的规定

Release date: 2013-02-17

From: http://www.legaldaily.com.cn/zfb/content/2013-02/17/content_4203845.htm?node=33981crimpro

The Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and Ministry of Justice Notice on the Issuance of the "Provisions on Legal Aid Work in the Criminal Cases"

All provinces', autonomous regions' and directly governed municipalities' high people's courts, people's procuratorates, public security departments (bureaus), judicial departments (bureaus), PLA military courts, military procuratorates, Comprehensive governance judicial bureaus, outpose courts established by the Xinjiang Uighur Autonomous Region High court, outpost procuratorates established by Xinjiang, Public Security Bureaus, Judicial Bureaus and prison authorities:

To implement the revised Criminal Procedure Law'a provisions on legal aid and strengthen and regulate legal aid work in criminal cases, on the basis of in-depth investigation and demonstration and solicitation of opinions from all sides, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Justice have revised their "Provisions on Legal Aid Work in Criminal Cases" issued on September 28, 2005. It is hereby promulgated to you; please enforce it faithfully.

Supreme People's Court, the Supreme People's Procuratorate

Ministry of public security, Ministry of Justice

2/4/2013

Provisions on Legal Aid Work in Criminal Cases

  Article 1: This Provision is formulated to strengthen and regulate legal aid work in criminal cases, in accordance with the PRC Criminal Procedure Law, the PRC Lawyers Law, the Legal Aid Ordinance and other relevant provisions and integrate actual legal aid efforts.

  Article 2: Where criminal suspects or defendants have not retained a defender due to economic difficulties, they or their close relatives may request legal aid from the legal aid organization belonging to the judicial administrative organ at the same level as the public security agency, people's procuratorate or people's court handling the case.

Criminal suspects or defendants that have not retained a defender, may apply for legal aid in accordance with the provisions of the preceding paragraph in any of the following circumstance:

(A) there is evidence showing that the suspect or defendant has a first or second level intellectual disability;

(B) in a joint crime case, another criminal suspect or defendant has already retained a defender;

(C) the people's procuratorate has appealed;

(D) the case has significant social impact

  Article 3: When in a public prosecution, the victims and their legally-designated representatives or close family members; or, in a private prosecution, the private prosecutor and his legally-designated representative, do not retain an agent ad litem, they may request legal aid from the legal aid organization within the local judicial administrative agency at the same level as the people's procuratorate or people's court handling the case.

  Article 4: The standard for citizens' economic hardship, will be implemented according to provisions of the people's government in the province, autonomous region or directly governed municipality where the case has been accepted.

  Article 5: Public security organ, the People's Procuratorate at the first interrogation of criminal suspects or when adopting compulsory measures, shall inform criminal suspects that they have the right to retain a defender and inform them that if they meet the requirements put forth in Article II of this Provision, they and their close relatives may request legal aid from the the legal aid organization.

Within 3 days of its receipt of case materials transferred for review for indictment, a peoples' procuratorate shall inform the criminal suspect that he has the right to retain a defender and inform him that if he meets the requirement stipulated in Article 2 of this provision, he or his close family members may request legal aid from the legal aid organization; and shall inform the victims and their legally-designated representatives or close relatives that they have the right to retain a litigation representative and inform them that if they have economic hardship, they may apply for legal aid from the legal aid organization.

Within 3 days of accepting the case, a people's court shall inform the defendants they have the right to retain defenders and inform them that if they meet the requirements stipulated in Article 2 of this Provision, they or their close relatives may request legal aid from the legal aid oganization; and shall inform a private prosecutor and his legally-designated representative that he has the right to retain an agent ad litem and inform him that if he has economic hardship he may request legal aid from the legal aid organization. For cases that a people's court has decided to try de novo, the relevant obligations to inform shall be carried out within 3 days of the decision.

Where the criminal suspect or defendant has on of the conditions provided for in Article 9 of this Provision, the public security organ, people's procuratorate and people's court shall inform him that if he does not retain a defender they will notify the legal aid organization to appoint a lawyer to provide him a defense.

  Article 6: Notification may be done orally or in writing, and the content of the notice should be easily understood by those being informed. For oral notifications, a written record should be created and the person being informed should sign it; for written notifications, the receipt of service should be included in the file. Where the person being informed immediately expresses a desire to apply for legal aid, it should be recorded in the case.

  Article 7: If a detained criminal suspect or defendant requests legal aid, the public security organs, people's procuratorates and people's courts should pass on the application or inform the legal aid organization within 24 hours of receiving the application, and , within 3 days, notify the applicant's legally-designated representative or close family members or other persons they have retained to assist, to provide the legal aid organization with the relevant papers, evidence and other materials. If there is no way to notify the criminal suspect or defendant's legally-designated representative or close family members, this shall also be told to the legal aid organization when the application is transferred.

  Article 8: Upon receipt of an application, legal aid organizations shall immediately perform a review and make a decision within 7 days. For those meeting the conditions for legal aid it shall be decided to grant legal aid, and a written decision to grant legal aid drafted; for those not meeting the conditions for legal aid, a decision shall be made not to grant legal aid, and a written decision not to grant legal aid shall be created. Written decisions to grant or not grant legal aid shall be delivered to the applicant without delay, and communicated to the public security organs, people's procuratorates and people's courts.

In cases where criminal suspects or defendants apply for legal aid, legal aid organizations may learn from the public security organs, people's procuratorate or people's court any circumstances learned during the case handling process showing whether or not the suspect or defendant has any circumstances such as those provided in Article 2 of this Provision.

  Article 9: Where a criminal suspect or defendant with any of the following characteristics has not retained a defender, the public security organ, people's procuratorate and people's court shall, within 3 days of discovering the circumstance, notify the legal aid organization in the local judicial administrative organ at the same level to appoint a lawyer to provide a defense.

(A) a minor;

(B) blind, deaf and mute person;

(C) a mentally ill person that has not entirely lost their ability to recognize or control their conduct.

(D) might be sentenced to indeterminate imprisonment or the death penalty.

  Article 10: Public security organs, people's procuratorates and people's courts making notifications about defense shall send a copy or photocopy of the public notification for defense letter, the written decision to adopt compulsory measures, the opinion requesting indictment, the indictment and the judgment to the legal aid organization.

The official defense notification letter shall clearly bear the criminal suspect or defendant's full name, the name of the charged crime, the name of the detention center or residence, the reason for the defense notification, the full name of the contact person at the agency handling the case and their contact information.

  Article 11: Within 3 days of a people's court accepting an application for compulsory medical treatment or discovering that a defendant meets the requirements for compulsory medical treatment, where the subject of the application or defendant has not retained an agent ad litem, courts shall send an official representation notification letter to the legal aid organization, notifying it to appoint a lawyer to serve as the subject of the application or defendant's agent ad litem and provide him with legal assistance.

If a people's procuratorate applies for compulsory medical treatment, the people's court shall send a copy of the application for compulsory treatment to the legal aid organization.

The official notification of representation letter shall clearly bear the full name of the subject of the application or defendant, their legally-designated representative's full name and contact information and the full name and contact information of the contact person at the agency handling the case.

  Article 12: Within 3 days of deciding to grant legal aid or receiving an official defense letter or an official representation letter, a legal aid organization shall determine the lawyer taking the case and notify the public security organ, people's procuratorate and people's court.

Official legal aid letters issued by legal aid organizations shall clearly bear the the undertaking lawyer's name, his workplace affiliation and contact information.

  Article 13: For cases that might result in a sentence of indeterminate imprisonment or death, legal aid agencies shall assign lawyers with a definite number of years practice experience in handling criminal cases to undertake the case.

In juvenile cases, a lawyer familiar with the physical and psychological characteristics of minors shall be appointed to serve as defender.

  Article 14: After the lawyer undertaking the case receives the legal aid organization's assignment, he shall handle he shall follow the relevant regulations in completing the retention procedures without delay.

When first meeting the criminal suspect or defendant, the undertaking lawyer shall ask him whether he agrees to the representation, and create a record. If the criminal suspect or defendant agrees, the lawyer shall inform the public security organ, the people's procuratorate, the people's court and the legal aid organization in writing.

  Article 15: In cases where legal aid has been applied for, where the criminal suspect or defendant insists on representing himself and refuses the lawyer appointed by the legal aid organization to provide him a defense, the legal aid organization shall allow it and and issue a termination of legal aid decision; where there is a legitimate reason for requesting a change of lawyer, the legal aid organization shall appoint another lawyer to provide a defense.

In cases where there should be a defense notice, and the criminal suspect or defendant refuses the lawyers appointed by the legal aid organization to defend them, the public security organs, people's procuratorates and people's courts should ascertain the reasons for the rejection, if there is a legitimate reason, it should be authorized, and the suspect or defendant should be informed at the same same time that he must separately retain a Defender. If the criminal suspect or defendant does not separately retain a defender, the public security organ, people's procuratorate and people's court shall notify the legal aid organization to separately assign lawyers to provide a defense.

  Article 16: When people's procuratorates reviewing an arrest for approval, feel that the suspect has a condition that requires a defense notice, but the public security organs have not notified the legal aid organization to appoint a lawyer, it shall notify the public security organs to make a correction, and the public security organs shall notify the People's Procuratorate of its rectification.

  Article 17: Before the conclusion of a case investigation, if the undertaking attorney so requests, the investigating organ shall hear their opinions and record them in the case file. If the undertaking attorney provides written comments, they should be attached to the file.

  Article 18: If the people's court decides to change the time for trial, it shall notify the undertaking lawyers 3 days before the court opens. If the undertaking attorney has a legitimate reason for being unable to appear in court on time, he may apply to the people's court for an extension of trial. If the people's court agrees to the extension, it shall notify the undertaking attorney without delay.

  Article 19: In cases where the people's court decides not to open court for trial, the undertaking lawyer shall submit written defense opinions within 10 days of receiving the people's courts notification that it will not open court.

  Article 20: People's procuratorates and people's courts shall waive or reduce undertaking attorneys' expenses for reproducing case file materials.

  Article 21: Copies or photocopies of the relevant legal documents shall be sent to the undertaking attorney, or he shall be notified in writing, within 5 days after the public security organs dismiss a case or transfer it to be reviewed for prosecution, after the people's procuratorates make a decision whether or not to prosecute or to dismiss the case, after the people's courts terminate trial or reach a verdict, and also after the public security organs, procuratorates, or the people's court transfer the case to be handled by another organ.

Legal documents such as public security organs‘ prosecution opinions, people's procuratorates indictments or decisions to not prosecutre, people's courts judgments and verdicts, shall clearly bear the name of the legal aid organization appointing a defender, the full name of the undertaking attorney, his workplace and other circumstances.

  Article 22: In any of the following circumstances, the legal aid organization shall put forth a decision to terminate legal aid, create a certificate of termination of legal aid to send to the recipient of the aid, and officially inform the public security organs, people's procuratorate and people's court within 3 days:

(A) the income status of the recipient changes so that he no longer meets the conditions for legal aid;

(B) the case is terminated or has been withdrawn;

(C) the recipient has retained their own counsel or agent;

(D) the recipient requests termination of legal aid, with the exception of defense notices;

(E) Other circumstances where laws and regulations provide for termination.

If public security organs, people's procuratorates, or people's courts discover one of the conditions above during the course of handling the case, they shall promptly inform the legal aid organization.

  Article 23: Applicants that have objections to a legal aid organizations decision not to grant legal aid may raise them to the judicial administrative organ overseeing the legal aid organization. The judicial administrative organ shall carry out a review within 5 days of receiving the objection, and if through review it is found that the applicant meets the requirements for legal aid, it shall order the legal aid organization in writing to promptly provide legal aid to the applicant, and at the same time notify the applicant; if it is found that the applicant does not meet the requirements for legal aid, it shall maintain the legal aid organizations decision to not grant legal aid, and notify the applicant in writing.

If a recipient has objections to the legal aid organization's decision to terminate the legal assistance, it may be handled according to the provisions of the preceding paragraph.

  Article 24: If a criminal suspect, defendants or their close relative or statutory agent, or in a compulsory medical treatment case, the subject of the application or defendant or their statutory agent feel that the public security organ, and people's Procuratorate, and people's Court should have informed them they could apply to the to legal aid organization for legal assistance and did not so inform them, they have the right to appeal or accuse at the procuratorate of the same level or the level above. The people's procuratorate shall promptly review the appeal or accusation and if it proves true, inform the relevant organ to make corrections.

  Article 25:Lawyers shall comply with the relevant laws and regulations and legal aid service standards in performing work such as meeting with clients, reading the file, investigating, responding to questioning, and participating in trial, to provide legal services to the recipient in accordance with the law.

Law firms shall provide professional guidance for lawyers handling legal aid cases, urge lawyers to be fully responsible and accountable in the process of handling cases and abide by the professional ethics and occupational discipline.

  Article 26: Legal aid organizations will, in accordance with law, guide and supervise law firms and lawyers developing legal aid activities and ensure the quality of case handling.

Judicial administrative organs and lawyers associations may reward and punish on the basis of the conditions of law firms' and lawyers' carrying out of their legal aid obligations.

If during the course of handling a case, the public security organs, people's procuratorate, or people's courts discover that a lawyer has done something illegal or against professional ethics or occupational disciplinary rules, hurting the interests of the legal aid recipient, they shall promptly report the situation to the legal aid organization.

  Article 27: Public security organ, the People's Procuratorate, the people's courts and judicial administrative organs should enhance coordination and establish a sound working mechanism to carry integrated work such as legal assistance consultation, referral of applications, and organization and implementation, to promote effective legal aid work in criminal cases.

  Article 28: These provisions take effect March 1, 2013. the Supreme People's Court, the Supreme People's Procuratorate, Ministry of public security and the Ministry of Justice's "Regulations on Legal Aid Work in Criminal Cases" is at the same time repealed.

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