Guiding Opinions on Strengthening and Regulating Supplemental Investigation Efforts

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Promulgation Date: 2020-3-27
Title: 最高人民检察院、公安部关于加强和规范补充侦查工作的指导意见
Document Number:
Expiration date: 
Promulgating Entities:Supreme People's Procuratorate, Ministry of Public Security
Source of text: https://www.spp.gov.cn/spp/xwfbh/wsfbt/202004/t20200407_458063.shtml#1 

Article 1: These Guiding Opinions are drafted on the basis of the "Criminal Procedure Law of the People's Republic of China", the "People's Procuratorate Rules for Criminal Procedure", and the "Public Security Organs Procedures for Handling Criminal Cases", together with actual conditions, so as to further improve the system of evidence-based charging, to strengthen and standardize supplemental investigation work, and to improve the quality and efficiency of case-handling.

Article 2: Supplemental investigation is a procedural activity to further clarify facts and to supplement and improve evidence on the foundation of prior investigation work, based on legally prescribed procedures.

These relevant provisions of these Guiding Opinions apply to situations such as people's procuratorates submission of opinions on supplemental investigation in review for approval of arrest, return for supplemental investigation in review for prosecution or supplemental or people's procuratorates conducting supplemental investigation themselves, and requests that public security organs provide evidence material or give explanations of the lawfulness of evidence.

Article 3: Supplemental Investigation work shall follow the following principles:

1. The principle of necessity. Supplemental investigation efforts shall be necessary and cases must not be returned for supplemental investigation for reasons unrelated to the case facts or evidence.

2. The principle of feasibility. It shall be feasible to collect and fix the evidence materials requested in supplemental investigation, and supplemental investigation work shall be implementable; supplemental investigation cannot be applied in situations where there is no way to collect the evidence materials through supplemental investigation.

3. The principle of reasonableness. Supplemental investigation outlines shall clearly state the reasons for the supplemental investigation, considerations of the nature of the case, the orientation of the supplemental investigation, and the purpose and significance of each item for supplemental investigation; making appropriate explanations for complicated or controversial issues, and clearly explaining the channels, leads, and methods of investigation where there is capacity.

4. The principle of cooperation. Before and during supplemental investigation, the people's procuratorates and public security organs shall strengthen communication, coordination, and cooperation on issues such as regarding the case facts, evidence, and character, as well as situations relating to the supplemental investigation.

5. The principle of efficacy. With the goal of strengthening the efficacy of supplemental investigations, the people's procuratorate and public security organs shall make improving the quality of evidence and resolving evidentiary issues permeate the entire process of investigation, review for approval of arrest, and review for prosecution.

Article 4: People's procuratorates carrying out supplemental investigations shall write out a supplemental investigation outline. The supplemental investigation outline shall be included separately in the procuratorate and investigation files.

Article 5: Where public security organs request that people's procuratorates approve arrest, the people's procuratorates shall accept the application. Where upon review the conditions for approval of arrest are not met, a decision to not approve arrest shall be made in accordance with law. Where the people's procuratorate make a decision to not approve arrest because the evidence is insufficient and supplemental investigation is required, they shall draft a supplemental investigation outline listing matters such as issues in the evidence system, the direction for the supplemental investigation, and requests for collection of evidence, and shall explain the reasons. Public security organs shall supplement the investigation in accordance with the people's procuratorate's requirements. Where supplementary investigation is completed and it is believed that the requirements for arrest are met, approval of arrest shall be newly applied for. Where the people's procuratorate does not approve arrest but has not explained the reason, the public security organ may request the people's procuratorate explain the reason. Where they believe that the people's procuratorate's decision to no approve arrest was in error, the public security organs may lawfully request a reconsideration or request a review.

Where it is truly necessary in cases where a decision to approve arrest has been made, based on circumstances of the evidence in the case the people's procuratorate may submit an opinion on post-arrest investigation to the public security organs on matters such as improving the system of evidence, supplementing and correcting the legality of evidence, and comprehensively clarifying case facts. Following arrest, the public security organs shall promptly carry out the investigation.

Article 6: Where during the period for review for prosecution, the people's procuratorates discover that the case has circumstances requiring supplemental investigation such as unclear facts, insufficient evidence, or omitted crimes or criminal suspects in the same case, they shall draft a supplemental investigation outline to be returned to the public security organs along with the case file and guide the public security organs in further clarifying case facts and supplementing the collection of evidence.

When the people's procuratorate returns a case for the first supplemental investigation, they shall list all matters for supplemental investigation for the public security organs. Where there are changes in the case facts or evidence, the public security organs fail to conduct adequate supplemental investigation, or where contradictions and problems are discovered in newly sent materials, the case may be returned for a second supplemental investigation.

Article 7: Outlines for return and supplemental investigation are to generally include the following:

(1) Explanations of the reasons for supplemental investigation, including specific manifestations and problems make case facts unclear and the evidence insufficient;

(2) Explanations of the direction for supplemental investigation and the goal of collecting evidence;

(3) Clarification of the specific matters that need supplemental investigation and the directory of evidence that needs supplemental collection;

(4) Clarification of the standards and required elements for supplementing and improving evidence-based on the evidence standards for indictment and trial;

(5) Where there are omitted crimes, the criminal conduct of criminal suspects that was not indicated in the Opinion in Support of Prosecution shall be pointed out;

(6) Where there omitted criminal suspects in the same case that need to be pursued for criminal responsibility, a recommendation for supplementation and transfer shall be made;

(7) Other matters that need to be listed.

Supplemental investigation outlines and post-arrest investigation opinions may refer to this article.

Article 8: After cases are returned for supplemental investigation, the case-handling personnel of the people's procuratorate and the public security organs shall strengthen communication to promptly reach consensus opinions on the direction for evidence collection and supplementing evidence. Where public security organs' case-handling personnel have objections to the supplemental investigation outline, both sides shall promptly communicate.

对于事实证据发生重大变化的案件,可能改变定性的案件,证据标准难以把握的重大、复杂、疑难、新型案件,以及公安机关提出请求的案件,人民检察院在退回补充侦查期间,可以了解补充侦查开展情况,查阅证据材料,对补充侦查方向、重点、取证方式等提出建议,必要时可列席公安机关的案件讨论并发表意见。

Article 9: In any of the following situations, there should not generally be a return for supplemental investigation:

(1) The facts are enough for conviction and sentencing, or facts concerning conviction and sentencing are clear while those not related to conviction and sentencing cannot be ascertained;

(2) Where it is not possible to clarify some case facts such as the tools of the case, or where stolen assets went, but there is other evidence sufficient to make findings, it does not impact the verdict or sentence.

(3) Where the primary elements of criminal suspects' confessions and explanations, witness testimony, and victim statements are mutually corroborative, and only individual elements are inconsistent, but not so as to impact the verdict and sentencing;

(4) Where other criminal suspects in the same crime were omitted or are on the run, but the facts for conviction and sentencing the criminal suspects that have brought in already meet the requirements for prosecution, and the public security organs cannot supplement and transfer the other criminal suspects in the case in a timely fashion;

(5) It is already objectively impossible to clarify the matters for supplemental investigation.

(6) other situations where it is not necessary to return for supplemental investigation.

Article 10:   对于具有以下情形可以及时调取的有关证据材料,人民检察院可以发出《调取证据材料通知书》,通知公安机关直接补充相关证据并移送,以提高办案效率:

(一)案件基本事实清楚,虽欠缺某些证据,但收集、补充证据难度不大且在审查起诉期间内能够完成的;

(二)证据存在书写不规范、漏填、错填等瑕疵,公安机关可以在审查起诉期间补正、说明的;

(三)证据材料制作违反程序规定但程度较轻微,通过补正可以弥补的;

(四)案卷诉讼文书存在瑕疵,需进行必要的修改或补充的;

(五)缺少前科材料、释放证明、抓获经过等材料,侦查人员能够及时提供的;

(六)其他可以通知公安机关直接补充相关证据的。

Article 11:   人民检察院在审查起诉过程中,具有下列情形之一,自行补充侦查更为适宜的,可以依法自行开展侦查工作:

(一)影响定罪量刑的关键证据存在灭失风险,需要及时收集和固定证据,人民检察院有条件自行侦查的;

(二)经退回补充侦查未达到要求,自行侦查具有可行性的;

(三)有证据证明或者有迹象表明侦查人员可能存在利用侦查活动插手民事、经济纠纷、实施报复陷害等违法行为和刑讯逼供、非法取证等违法行为,不宜退回补充侦查的;

(四)其他需要自行侦查的。

人民检察院开展自行侦查工作应依法规范开展。

Article 12: Procurators are to organize and implement investigations carried out by the procuratorate, and when necessary may deploy case-handling personnel. Investigations carried out by the procuratorate shall be conducted by no fewer than two people. During investigations carried out by the procuratorate, where technical support or safety guarantees are required, the technical and policing departments of the procuratorates are to deploy personnel to assist.

Where the procurators supplement evidence through their own investigation, the public security organs shall cooperate in accordance with law.

人民检察院自行侦查,适用《中华人民共和国刑事诉讼法》规定的讯问、询问、勘验、检查、查封、扣押、鉴定等侦查措施,应当遵循法定程序,在法定期限内侦查完毕。

Article 13:   人民检察院对公安机关移送的案件进行审查后,在法院作出生效判决前,认为需要补充审判所必需的证据材料的,可以发出《调取证据材料通知书》,要求公安机关提供。 人民检察院办理刑事审判监督案件,可以向公安机关发出《调取证据材料通知书》。

Article 14: Where in the course of handling criminal cases, the people's procuratorate discovers possible circumstances of the illegal collection of evidence as provided for in article 56 of the "Criminal Procedure Law of the People's Republic of China", they may request that the public security organs make a written explanation of the legality of the evidence collection or provide relevant evidence materials, and when necessary may conduct their own investigation and verification.

Article 15: After the public security organs conduct a supplemental investigation and newly transfer the case, the people's procuratorate shall accept it and promptly review the supplemental investigation report prepared by the public security organs and the supplemental evidence they transferred, and determine whether the matters for supplemental investigation were adequately investigated and whether the supplemental investigation was lawful, based on a comparison with the supplemental investigation outline, and determine whether the totality of the evidence after supplemental investigation is credible and sufficient. Where upon review the public security organs are found to have not followed the requirements in carrying out supplemental investigation, and there is no way to reach the standard for approval of arrest, a decision to not approve shall be made in accordance with law; and where after the second supplemental investigation the requirements for indictment are not met, the people's procuratorate shall make a decision to not prosecute in accordance with law. Where they believe that the people's procuratorate's decision to not prosecute was in error, the public security organs may lawfully request a reconsideration or request a review.

In cases where the public security organs request a reconsideration of a decision to not approve arrest or to not prosecute, the people's procuratorates shall appoint distinct procurators to handle it. people's procuratorates handling cases where the public security organs have requested a reconsideration or review of a decision to not approve arrest or to not prosecute, shall fully hear the comments of the public security organs and include the comment in the case file.

Article 16: Public security organs carrying out supplemental investigations shall follow the requirements of the people's procuratorate's supplemental investigation outline to promptly and earnestly supplement and improve the relevant evidence; and where the supplemental investigation outline is not clear or there are objections to it, they shall promptly communicate with the people's procuratorate; where it is not possible to collect the evidence through supplemental investigation, the reasons, the work done in the supplemental investigation, and the remedial measures taken shall be explained in writing. After a supplemental investigation by the public security organs, an independent file shall be established and sent to the people's procuratorate who shall accept the file in accordance with law.

Article 17:   对公安机关未及时有效开展补充侦查工作的,人民检察院应当进行口头督促,对公安机关不及时补充侦查导致证据无法收集影响案件处理的,必要时可以发出检察建议;公安机关存在非法取证等情形的,应当依法启动调查核实程序,根据情节,依法向公安机关发出纠正违法通知书,涉嫌犯罪的,依法进行侦查。

公安机关以非法方法收集的犯罪嫌疑人供述、被害人陈述、证人证言等证据材料,人民检察院应当依法排除并提出纠正意见,同时可以建议公安机关另行指派侦查人员重新调查取证,必要时人民检察院也可以自行调查取证。 公安机关发现办案人员非法取证的,应当依法作出处理,并可另行指派侦查人员重新调查取证。

Article 18:   案件补充侦查期限届满,公安机关认为原认定的犯罪事实有重大变化,不应当追究刑事责任而未将案件重新移送审查起诉的,应当以书面形式告知人民检察院,并说明理由。 公安机关应当将案件重新移送审查起诉而未重新移送审查起诉的,人民检察院应当要求公安机关说明理由。 人民检察院认为公安机关理由不成立的,应当要求公安机关重新移送审查起诉。 人民检察院发现公安机关不应当撤案而撤案的,应当进行立案监督。 公安机关未重新移送审查起诉,且未及时以书面形式告知并说明理由的,人民检察院应当提出纠正意见。

Article 19: As needed for work, when carrying out investigations and supplemental investigations, the people's procuratorate and public security organs may submit requests for cooperation or comments and recommendations to strengthen communication and coordination.

Article 20:   人民检察院、公安机关应当建立联席会议、情况通报会等工作机制,定期通报补充侦查工作总体情况,评析证据收集和固定上存在的问题及争议。 针对补充侦查工作中发现的突出问题,适时组织联合调研检查,共同下发问题通报并督促整改,加强沟通,统一认识,共同提升补充侦查工作质量。

推行办案人员旁听法庭审理机制,了解指控犯罪、定罪量刑的证据要求和审判标准。

Article 21: All departments of the people's procuratorates shall strengthen communication with each other, to form a joint force and increase the efficacy of supplemental investigation work. 人民检察院需要对技术性证据和专门性证据补充侦查的,可以先由人民检察院技术部门或有专门知识的人进行审查,根据审查意见,开展补充侦查工作。

Article 22: These Guiding Opinions are to be implemented beginning on the date of their issue.

 

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