People's Procuratorate's Measures for Procurators' Examination of the Implementation of Compulsory Treatment (Provisional)

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Contents

Chapter I: General Provisions

Chapter II: Examination of Transfer for Enforcement

Chapter III: Examination of Treatment and Oversight Activities

Chapter IV: Examination of Release from Compulsory Treatment

Chapter V: Examination of Accidents and Deaths

Chapter VI: Acceptance of Accusations, Reports, and Appeals

Chapter VII: Corrections of illegality and procuratorial recommendations

Chapter VIII: Supplementary Provisions

 

The ”People's Procuratorates Measures for Procurators' Examination of the Implementation of Compulsory Treatment (Provisional)" are formulated so as to strengthen and standardize procuratorate work on the implementation of compulsory treatment, with the specific content of the measures below.

" People's Procuratorates' Measures for Procurators' Examination of the Implementation of Compulsory Treatment (Provisional)"

Passed on May 13, 2016, by the 51st session of the 12th Supreme People's Procuratorate's Prosecution Committee.

  Chapter I: General Provisions

Article 1: These provisions are enacted on the basis of the "People's Republic of China Criminal Law"the "People's Republic of China Criminal Procedure Law", and other legal provisions combined with actual procuratorate work practice, so as to strengthen and standardize examination work on compulsory treatment.

Article 2: The task of people's procuratorates in carrying out examinations of compulsory treatment is to ensure the correct implementation of the nation's laws and regulations in the carrying out of compulsory treatment, to protect the lawful rights of persons subject to compulsory treatment, and to ensure the lawful implementation of compulsory treatment activities.

Article 3: The duties of the people's procuratorates in examining the implementation of compulsory treatment are:

(1) Carry out supervision of the legality of the people's courts and public security organs transfer of persons for enforcement;

(2) Carry out supervision of the legality of compulsory treatment institutions admissions, treatment, oversight and management;

(3) Carry our investigations of crimes abusing public office occurring during the implementation of compulsory treatment, and carry out efforts to prevent crimes abusing public office;

(4) Accept accusations, reports and appeals from persons subject to compulsory treatment and the legally-designated representatives or close relatives.

(5) Other supervisory duties that shall be performed in accordance with law.

Article 4: Supervision of people's courts and public security organs transfer of persons for enforcement is the responsibility of the people's procuratorate at the same level.

The people's procuratorate criminal enforcement procuratoratorial departments are responsible for supervision of the implementation of compulsory treatment.

Article 5: After receiving a copy of a people's court's compulsory treatment decision, the case management departments of the people's procuratorates shall transfer it to the criminal enforcement departments within one business week. The criminal enforcement procuratoratorial departments shall promptly complete a "transfer for enforcement of compulsory treatment form", and send it together with the copy of the compulsory treatment decision to the criminal enforcement procuratoratorial departments of the people's procuratorate undertaking the procuratorial tasks for the compulsory treatment institution.

Article 6: People's procuratorates may appoint resident procurators or roaming procurators for examination of compulsory treatment facilities' implementation of compulsory treatment. People's procuratorates shall carry out roaming examinations of compulsory treatment by mental health medical establishments designated by the government to temporarily perform compulsory treatment duties.

When examining the implementation of compulsory treatment, the number of procuratorate personnel must not be less than two, and at least one of these must be a procurator.

  Chapter II: Examination of Transfer for Enforcement

Article 7: After people's courts make a compulsory treatment decision, the people's procuratorates shall carry out supervision of the following transfer for enforcement activities:

(1) Whether transfer for enforcement by the people's courts complies with relevant laws and regulations;

(2) Whether public security organs lawfully delivered a person subject to compulsory treatment to a compulsory treatment institution for enforcement;

(3) Whether a compulsory treatment institution lawfully admitted a person subject to a compulsory treatment decision;

(4) Other matters that should be examined.

Article 8: Methods for examining transfer for enforcement:

(1) Going to the scene to conduct on-site examinations;

(2) Reviewing legal documents such as the compulsory treatment decision, the notification of enforcement of compulsory treatment, and the appraisal opinion showing that the person subject to compulsory treatment's lacks capacity for criminal responsibility;

(3) Talking to relevant personnel;

(4) Other methods.

Article 9: Where people's courts, public security organs or compulsory treatment institutions have any of the following circumstances, the people's procuratorates shall promptly submit a corrective opinion in accordance with law:

(1) people’s courts have not delivered the compulsory treatment decision and notification of enforcement of compulsory treatment to the public security organs within 5 days of making a compulsory treatment decision;

(2) public security organs did not lawfully deliver a person subject to compulsory treatment to a compulsory treatment institution for enforcement;

(3) The legal documents related to transfer for enforcement and other formalities are incomplete;

(4) compulsory treatment institutions refused to admit a person subject to a compulsory treatment decision;

(5) compulsory treatment institutions admit a person not subject to a people's court's compulsory treatment decision;

(6) Other illegal circumstances.

  Chapter III: Examination of Treatment and Oversight Activities

Article 10: The content for examination of treatment and oversight activities:

(1) whether compulsory treatment institutions' treatment and oversight activities comply with relevant provisions;

(2) whether compulsory treatment institutions carry out diagnostic assessments and other relevant work in accordance with law;

(3) whether the lawful rights of persons subject to compulsory treatment are safeguarded;

(4) Other matters that should be examined.

Article 11: Methods of examination for treatment and oversight:

(1) Reading materials such as the register of persons subject to compulsory treatment, relevant legal documents, the medical history of persons subject to compulsory treatment, diagnostic assessment opinions, meetings, and correspondence registrations;

(2) Going the sites where the person subject to compulsory treatment is treated and lives to conduct on-site examinations;

(3) Speaking with staff of the compulsory treatment institution to understand the situation and hear opinions;

(4) Speaking with the person subject to compulsory treatment or their legally-designated representative or close relatives to understand the situation;

(5) Other methods.

Article 12: People’s procuratorates discovering any of the following conditions at a compulsory treatment institution shall promptly issue a corrective opinion in accordance with law:

(1) The appointment of compulsory treatment staff and the facilities and equipment for treatment and oversight do not comply with relevant provisions;

(2) Laws and regulations were not followed to carry out necessary treatment of persons subject to compulsory treatment;

(3) Provisions were not followed to ensure the standard of living of persons subject to compulsory treatment;

(4) Provisions were not followed to arrange visits and correspondence between persons subject to compulsory treatment and their legally-designated representatives or close relatives;

(5) Where persons subject to compulsory treatment were beaten, physically punished or abused, or covertly physically punished or abused; where restraint measures were used on persons subject to compulsory treatment in violation of rules, or where there were other acts violating the lawful rights of persons subject to compulsory treatment.

(6) Provisions were not followed to periodically carry out a diagnostic assessment of persons subject to compulsory treatment;

(7) Applications for release from compulsory treatment submitted by the person subject to compulsory treatment, their legally-designated representatives or their close relatives were not promptly reviewed and handled, or were not promptly transferred to the people's court that made the compulsory treatment decision;

(8) Other illegal circumstances.

  Chapter IV: Examination of Release from Compulsory Treatment

Article 13: The content of examinations of release from compulsory treatment:

(1) Whether compulsory treatment institutions have submitted release opinions for persons subject to compulsory treatment who are no longer personally dangerous and do not need to continue compulsory treatment, and sent these to the people's court that made the compulsory treatment decision;

(2) Whether compulsory treatment institutions' release of persons from compulsory treatment complies with relevant legal provisions;

(3) Whether persons released from compulsory treatment have the relevant documents when they leave the compulsory treatment institution.

(4) Other matters that should be examined.

Article 14: Methods for examining release from compulsory treatment:

(1) Read compulsory treatment institutions' legal documents and registry for release from compulsory treatment;

(2) Individually speak with persons released from compulsory treatment to understand the situation;

(3) Other methods.

Article 15: People’s procuratorates discovering any of the following conditions at a compulsory treatment institution shall promptly issue a corrective opinion in accordance with law:

(1) Not promptly submitting an opinion for release to the people's court that made a compulsory treatment decision where it is not necessary to continue compulsory treatment of persons subject to compulsory treatment; or submitting an opinion for release where one should not be submitted as continued compulsory treatment of the persons subject to compulsory treatment is necessary;

(1) Not promptly submitting an opinion for release to the people's court that made a compulsory treatment decision where it is not necessary to continue compulsory treatment of persons subject to compulsory treatment; or submitting an opinion for release where one should not be submitted as continued compulsory treatment of the persons subject to compulsory treatment is necessary;

(3) Persons released from compulsory treatment have no, or have incomplete, documentation;

(4) There is a discrepancy between the person released from compulsory treatment and the relevant documentation.

(5) other illegal circumstances.

  Chapter V: Examination of Accidents and Deaths

Article 16: The content of examinations of compulsory treatment accidents:

(1) the escape of persons subject to compulsory treatment;

(2) the occurrence of mass illness among persons subject to compulsory treatment;

(3) the irregular death of persons subject to compulsory treatment;

(3) the irregular death of persons subject to compulsory treatment;

(5) Other accidents.

Article 17: The methods for examining compulsory treatment accidents:

(1) After procuratorate staff receive reports of an accident, they shall promptly rush to the scene to understand the situation and promptly report to the chief procurator and the people's procuratorate at the level above;

(2) penetrate the scene, investigate and gather evidence;

(3) Work with the compulsory treatment institution to jointly analyze the causes of the accident with the compulsory treatment institution, research responses, improve treatment and oversight measures .

Article 18: Where persons subject to compulsory treatment die during the period of compulsory treatment, examinations are to be conducted in accordance with the Supreme People's Procuratorate's provisions regarding procedures for examination of deaths of persons in custody.

  Chapter VI: Acceptance of Accusations, Reports, and Appeals

Article 19: People's procuratorates shall lawfully accept accusations, reports and appeals from persons subject to compulsory treatment, their legally-designated representatives and close relatives, and promptly investigate and handle them. The people's procuratorates criminal enforcement procuratoratorial departments shall give written feedback on the handling to the accuser, reporter or appellant within 15 working days of receiving it.

The people's procuratorates' criminal enforcement procuratoratorial departments shall transfer appeals arising from dissatisfaction with a compulsory treatment decision for handling by the public prosecution department of the people's procuratorate at the same level as the people's court that made the compulsory treatment decision, and shall follow up in supervising the handling and outcomes, and give prompt written feedback on the handling to the accuser, reporter, or appellant.

Article 20: People's procuratorates shall set up a a procurator mailbox in compulsory treatment institutions to receive accusations, reports appeals, and related letters. People's procuratorates shall set up a a procurator mailbox in compulsory treatment institutions to receive accusations, reports appeals, and related letters.

Procuratorate staff shall promptly speak with people such as persons subject to compulsory treatment or their legally-designated representative and close relatives that request a meeting, to hear their feedback on situations and accept accusations, reports, and appeals.

Article 21: After people's procuratorates receive applications for release from compulsory treatment submitted by persons subject to compulsory treatment or their legally-designated representatives and close relatives, they shall refer it to the compulsory treatment institution for review within 3 working days, and supervise whether the compulsory treatment institution has promptly reviewed the application, they diagnostic assessments, and the legality of activities such as the submission of opinions for release.

Article 22: Where during supervision of compulsory treatment, people's procuratorates discover that persons subject to compulsory treatment does not meet the requirements for compulsory treatment and that the people's court's compulsory treatment decision may be in error, they shall, get approval from the chief procurator and transfer the relevant materials to the people's procuratorate at the same level as the people's court that made the compulsory treatment decision within 5 working days. The public prosecution department of the people's procuratorate receiving the materials shall conduct a review within 20 working days and give written feedback on the review and disposition opinions to the people's procuratorate responsible for supervising the compulsory treatment.

  Chapter VII: Corrections of illegality and procuratorial recommendations

Article 23: Where people's procuratorate discover illegalities while carrying out examinations of compulsory treatment, they shall handle it in accordance with the following procedures:

(1) Where procuratorate staff discover slightly illegal circumstances that can be corrected by the supervised unit at the scene, they may give an oral corrective opinion at the scene and promptly report to the responsible person of the criminal enforcement procuratoratorial department or the chief procurator, and complete a "Procuratorate Correction of Illegal Circumstances Form";

(2) Where serious illegal circumstances are discovered, or where the supervised unit fails to make corrections within seven days of having given an oral corrective opinion and has not given an explanation, then upon approval of the chief procurator they shall promptly issue a written corrections notice and send a copy of it to the organ at the level above the supervised organ;

(3) Where within 15 days of people's procuratorates issuing a notice of corrections, the supervised unit still has not made corrections or responded to the comments, they shall promptly report to the people's procuratorate at the level above, and the people's procuratorate at the level above shall supervise corrections.

For serious illegal circumstances, the criminal enforcement procuratoratorial departments shall complete a "Serious Illegal Circumstance Registration Form" and report to the criminal enforcement procuratoratorial department of the people's procuratorate at the level above.

Article 24: Where the supervised unit submits a written objection to a people's procuratorate's corrective opinion, the people's procuratorate shall promptly reconsider and notify the supervised unit of the reconsideration decision.

Where the supervised unit still objects to the reconsideration conclusions, it may apply for review to the people's procuratorate at the level above. The people's procuratorate at the level above shall promptly make a review decision and notify the supervised unit and the people's procuratorate at the level below.

People's procuratorate's criminal enforcement procuratoratorial departments undertake the specific work of reconsideration and review.

Article 25: Where people's procuratorates discover issues such as irregular law enforcement or safety issues in the implementation of compulsory treatment, they shall get the approval of the chief procurator and submit a procurator's recommendation to the relevant units.

Article 26: Where people's procuratorates discover that personnel from public security organs, people's courts, or compulsory treatment institutions have conduct violating discipline or law, they shall promptly transfer it to the relevant departments for handling after reporting to the chief procurator for a decision, where a crime is constituted, criminal responsibility shall be pursued in accordance with law.

  Chapter VIII: Supplementary Provisions

Article 27: "Persons subject to compulsory treatment" refers to persons with mental disorders whom a people's court has made a compulsory treatment decision in accordance with the Criminal Procedure Law, and who have been sent to a compulsory treatment institution for enforcement.

Article 28: The people's procuratorates shall conduct supervision of the implementation of compulsory treatment for persons with mental disorders for whom a compulsory treatment decision was made before December 31,2012 by the public security organs on the basis of the provisions of article 18 the "Criminal Law of the People's Republic of China" , who were still having compulsory treatment implemented in a compulsory treatment institution after January 1, 2013.

Article 29: Where public security organs employ temporary protective restraining measures inside a compulsory treatment institution against a mentally ill person involved with a case, and the people's procuratorates discover illegal circumstances while carrying out supervision of the temporary protective restraining measures with reference to these Measures, they shall issue a corrective opinion.

Article 30: Where procuratorate personnel exhibit conduct in violation of discipline or law while examining the implementation of compulsory treatment, liability shall be pursued in accordance with relevant provisions, where a crime is constituted, criminal liability shall be pursued in accordance with law.

Article 31: These Measures take effect upon issuance.

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