Provisions on Lawyers Meeting with Convicts Detained in Prison

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【Source】http://www.acla.org.cn/article/page/detailById/22097

Article 1: These Provisions are drafted on the basis of the Criminal Procedure Law of the People's Republic of China, the Prisons Law of the People's Republic of China, and the People's Republic of China Law on Lawyers, and other relevant provisions; so ensure the rights of lawyers and detained convicts.

Article 2: Prisons are to lawfully ensure lawyers' right to meet detained convicts. Defense lawyers meeting detained convicts shall comply with the relevant provisions of prison regulations.

Article 3: Prisons shall disclose the method for lawyers making appointments to meet clients, and facilitate meetings. Lawyers meetings with detained convicts shall be conducted within the prison. Prisons shall arrange arrange reasonable venues for lawyers meeting clients, and facilitate matters such as lawyers' meetings and reading the case file.

Article 4: In any of the following circumstances, lawyers accepting retention by detained criminals or appointment by legal aid institutions, may meet with detained criminals:

(1) To serve as a defender or agent ad litem in criminal proceedings;

(2) serving as an agent ad litem in civil or administrative proceedings;

(3) representing in mediation or arbitration;

(4) Representing in appeals of any kind of proceeding;

(5) Providing non-litigation legal services;

(6) Responding to inquiries regarding the law, and writing litigation documents and other documents related to legal affairs on behalf of others.

Where lawyers in other cases need to collect evidence from convicts detained in prisons, they may meed with the detained convict.

The guardians or close relatives of criminals may retain lawyers on their behalf.

Article 5: Lawyers needing to meet with detained criminals may submit copies of the following documents to the prison holding the convict by means such as fax, mail or direct submission, and present the originals to the prison on the day of the meeting:

(1)Lawyers' practice certificates;

(2) law firm proofs;

(3) Retention documents from the convict themselves or their guardians or close relatives, or the official legal aid letter, or documents related to gathering evidence in another case.

The prison shall keep the originals of the proofs submitted by the law firm for the lawyers' client meeting.

Where the convicts' guardians or close relatives retain a lawyer on their behalf, when the lawyer meets the client for the first time, they shall confirm the retention relationship with the convict themselves.

Article 6: Where a lawyer meeting with a client requires an assistant to accompany them and participate, the lawyer shall submit a proof from the law firm that the a lawyers assistant is meeting with a detained convict, and their Lawyers' practice certificates or application certificate for lawyers practice internship.

Article 7: Where lawyers meeting with detained criminals require interpreters to accompany them and participate, the lawyers shall submit an application to the prison in advance, and submit supporting documents that can demonstrate the identity of the interpreters.

The prison shall promptly review it and make a decision on whether to approve it within three days. Where the participation is approved, they shall promptly inform the lawyers. Where participation is not approved, they shall inform the lawyers in writing and explain the reasons.

Interpreters accompanying lawyers to participate in meetings shall bring the prisons' notice of approval and their own identity documents.

Article 8: After the prison receives the materials provided for in Article 5 of these Provisions as submitted by lawyers, it shall promptly arrange a meeting where the requirements of Article 4 of these Provisions are met. Where it can be arranged on the spot, it shall be arranged on the spot; where it cannot be arranged on the spot, the prison shall explain the circumstances and arrange for the defense lawyer to meet with the detained convict within 48 hours.

Article 9: Detained convicts may retain one to two lawyers. Where two lawyers are retained, the two lawyers may meet with the client jointly or may meet with them separately. Lawyers may bring a legal assistant with them to assist them during the meeting.

Article 10: Defense lawyers meeting detained convicts shall comply with prison work and rest times. Prisons shall protect the lawyers' time and frequency of meetings required to perform their duties.

Article 11: When a lawyer meets with a detained convict, the prison may decide whether to have police present on the basis of the case situation and as required by work.

When defense lawyers meet with convicts who have had an investigation opened, been indicted, or are being tried, they are not to be listed in on, and the prison must not send police to be present.

Article 12:Where a lawyer meeting with a detained convict believes that a prison or its staff are obstructing the lawful exercise of their professional rights, they may complain to the prison or to the competent department at the level above, and may also apply to have their practice rights protected to the municipal judicial-administrative organs for the area where their law firm is located. Where there is an urgent situation, they may apply to the judicial-administrative organs where the incident occurred to have their practice rights protected.

Article 13: Lawyers meeting with detained convicts shall comply with the relevant provisions of prison management, and abide by professional ethics for legal practice and practice discipline, and must not exhibit the following conduct;

(1) Delivering prohibited items;

(2) secretly delivering letters or money to detained convicts;

(3) Providing communications tools for use by detained convicts;

(4) Making audio or video recordings, or taking photographs, of meetings without the the consent of the prison or the detained convict.

(5) Carrying out acts unrelated to the duties of the retention;

(6) other acts in violation of laws, regulations, or rules, or that obstruct the order of prison management.

Article 14: Where prisons discover that lawyers have the conduct provided for in article 13 while meeting with detained convicts, they shall give a warning and order corrections. Where the warning is ineffective, they shall suspend the visit. The prison may report this to the judicial-administrative organs or lawyers association where the lawyer's law firm is located.

Article 15: "Lawyers' Assistant" as used in these Provisions refers to other lawyers or interns applying for legal practice in the law firm of the defense attorney or representing attorney. "Close relatives" refers to spouses, parents, children, and full siblings.

Article 16: These provisions become effective on the date of publication. The "Provisional Regulations on Lawyers Meeting with Convicts in Prison" released on March 19, 2004 by the Ministry of Justice (Justice Bulletin [2004] No. 31) are repealed at the same time.

 

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