Shenzhen Municipal Implementation Regulations for the Pilot Project on the Plea Leniency System for Criminal cases (Provisional)

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Shenzhen Municipal Implementation Regulations for the Pilot Project on the Plea Leniency System for Criminal cases (Provisional)

Chapter I: General Provisions

Chapter II: Investigation

Chapter III: Supervision of Investigation and Review for Prosecution

Chapter IV: Trial

Chapter V: Legal Aid and Legal Assistance

Chapter VI: Supplementary Provisions

 

These Implementation Measures are formulated on the basis of the "Criminal Procedure Law of the People's Republic of China", the "Criminal Law of the People's Republic of China", and the "Decision of the Standing Committee of the National People's Congress Authorizing the Supreme People's Court and Supreme People's Procuratorate to Carry out Pilot Projects in Some Cities on the System of Leniency for Those Who Admit Guilt and Accept Punishment in Criminal Cases", and the "Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice, on carrying out Pilot Projects in Some Cities on the System of Leniency for Those Who Admit Guilt and Accept Punishment in Criminal Cases" (hereinafter simply "the pilot measures'), in combination with actual conditions of judicial work in our city, so as to ensure that the pilot projects on the system of leniency for those who admit guilt and accept punishment in criminal cases are carried out orderly and according to law.

Chapter I: General Provisions

Article 1: The 'system of leniency for those who admit guilt and accept punishment' [plea leniency system] as used in these Measures, refers to the system in criminal proceedings where criminal suspects or defendants voluntarily and truthfully confess their own criminal conduct, have no objections to the facts of the crime as charged, agree to a sentencing recommendation, and sign an affidavit, and the public security organs,people's procuratorate, and people's courts handle the case leniently in accordance with law, simplifying things procedural, and handling it quickly.

Lenient handling includes directly withdrawing the case,not prosecuting, or announcing a not guilty verdict because the criminal circumstances are clearly slight or it is not considered a crime; and lawfully not prosecuting or announcing a waiver of criminal punishment where the circumstances of the crime are slight and it is not necessary to give a sentence or sentence can be waived; where agreeing with the prosecutors sentencing recommendation, or admitting guilt and accepting punishment in the trial phase, and signing an affidavit, criminal punishment may be waive, a suspended sentence given, or a mitigated or commuted punishment given in accordance with law. Where the above circumstance are not present, but criminal suspects voluntarily and truthfully confess the facts of the crime they are suspected of, have major meritorious contributions or the case involves major national interests, the case may be reported up to the Supreme People's Procuratorate in accordance with the "Pilot Measures" to be revoked or not prosecuted.

Article 2: The handling of plea cases shall comply with the basic principles of the Criminal Law and Criminal Procedure Law, have the facts as the basis and the laws as their measure, implement the criminal policy of blending leniency and severity, uphold the principle of matching the punishment with the crime, protect criminal suspects or defendants' lawful enjoyment of procedural rights, ensure the lawful rights and interests of victims, and preserve the public interest. Ensure that the not guilty are not pursued for criminal responsibility and that the guilty receive just punishment,and ensure judicial fairness.

Article 3: The handling of plea cases shall strictly follow legal provisions to collect, fix, review, and verify evidence.

In plea cases applying the expedited procedures or the summary procedures, so long as the principle of evidence based judgments are upheld, the main evidence may be collected, fixed, reviewed, and verified.

Article 4: In any of the following circumstances, the plea leniency system is not to be applied:

(1) Where a criminal suspect or defendant is a mentally ill person who has not completely lost the ability to recognize or control his or her behavior;

(2) Where a juvenile criminal suspect or defendant's legally-designated representative or defender objects to the juvenile's admitting guilt and accepting punishment;

(3) the criminal suspect or defendant's violate provisions on release on guarantee or residential surveillance;

(4) Where the criminal suspect or defendant's conduct does not constitute a crime;

(5) Others situations where application would be inappropriate.

Article 5: Public security organs, people's procuratorates, and people's courts shall ensure that criminal suspects or defendants understand the nature and legal consequences of admitting guilt and accepting punishment and that admission of guilt and acceptance of punishment is voluntary,and must not compel criminal suspects or defendants to admit guilt and accept punishment.

Article 6: The public security organs, people's procuratorates, and people's courts shall guarantee that criminal suspects and defendants receive legal assistance.

The public security organs, people's procuratorates, and people's courts shall inform criminal suspects or defendants that they have the right to apply for legal aid. Where the requirements for appointing a defense are met, they shall lawfully notify the legal aid institution to appoint a lawyer to provide a defense.

As necessary based on actual conditions, legal aid institutions shall provide legal assistance in forms such as establishing legal aid stations, promptly arranging duty lawyers, and being an authenticating witness to the criminal suspects' signing of an 'affidavit admitting guilt and accepting punishment'.

Article 7: In cases with any of the following situations, during the review for prosecution phase, the people's procuratorate may initiate plea negotiations with the criminal suspect and their defender or duty lawyer.

(1) Where the facts of the crime are clear, the evidence is credible and sufficient, and the criminal suspect does not admit guilt but accepts the criminal facts;

(2) Where the main facts of the crime are clear, the basic evidence is credible and sufficient, and the criminal suspect does not admit guilt or accept the criminal facts, but the defender requests that plea discussion procedures be initiated.

The content of plea negotiations is to include the procedures applied for the case, the sentencing range, and the handling of assets involved in the case.

After the people's procuratorate reaches a consensus opinion with the criminal suspect and their defender or duty lawyer through negotiations, where the criminal suspect admits guilt and accepts punishment, the criminal suspect is to voluntarily sign an affidavit. Where a consensus opinion cannot be reached, conclude the plea negotiations. Cases applying plea negotiations shall have the defender or duty lawyer participate.

Article 8: Handling of plea cases shall hear the opinions of the victims and their representatives, and make whether the criminal suspect or defendant has reached a settlement agreement with victims or compensated victims' losses and obtained victims' forgiveness, an important factor in sentencing considerations.

Article 9: The public security organs, people's procuratorates, and people's courts shall make a criminal suspect or defendant's admission of guilt and acceptance of punishment an important factor in considering their dangerousness to society, and for criminal suspects or defendants where there is no dangerousness to society, the criminal suspect or defendant shall be released on guarantee or given residential surveillance.

Article 10: People's procuratorates shall strengthen supervision of each procedural phase in plea cases.

Chapter II: Investigation

Article 11: Starting from the date of the first interrogation or employment of compulsory measures, the public security organs shall present criminal suspects with a 'Written Notification on the Plea Leniency System', informing them of legal consequences produced by application of the system and all legal responsibility that is borne, and shall hear the opinions of the criminal suspect, defender, or duty lawyer on areas such as the determination of facts, application of law,and procedures applied. Where criminal suspects voluntarily admit guilt and accept punishment, this shall be recorded and attach this to the case file.

Article 12: Where criminal suspects express willingness to admit guilt and accept punishment to detention center personnel, their defender, or the duty lawyer, the relevant personnel shall inform the case handling organ in writing within 3 days.

Article 13: Where, before they transfer a case for review for prosecution, public security organs find that it meets the requirements for applying the plea leniency system, but does not have the situation provided for in article 4 of these measures, they shall initiate the plea procedures and affix a 'plea procedures initiated ' insignia on the case file bag.

Article 14: The public security organs shall indicate the criminal suspects' admission of guilt and acceptance of punishment in their opinion for prosecution.

In cases that might be given a sentence of less than three years imprisonment and that may apply the expedited procedures, the public security organs may, on the basis of the specific case situation, recommend in their opinion is support of prosecution that the people's procuratorate handle it by applying the expedited procedures, and briefly explain the reasons.

Article 15: In plea cases handled by applying the expedited procedures, the public security organs shall ordinarily transfer the case for review for prosecution within one month of enforcing an arrest or employing compulsory measures such as release on guarantee or residential surveillance against the criminal suspect.

Article 16: Based on the actual case situation, the public security organs may conduct simultaneous audio or visual recording of the criminal suspects' admission of guilt and acceptance of punishment, and fix relevant evidence.

Article 17: Where criminal suspects voluntarily and truthfully confess the facts of the crime they are suspected of, have major meritorious contributions or the case involves major national interests, and the case must be withdrawn, the public security organs handling the case shall report this up to the Ministry of Public Security, and the Ministry of Public Security is to request approval from the Supreme People's Praocuratorate.

Where the Ministry of Public Security approved withdrawal of the case, public security organs shall investigate the circumstances of ownership of property that has been sealed, seized or frozen, and its yields; shall clarify whether it is unlawful gains, or whether there is other property involved in the case that shall be disgorged in accordance with law. Where persons not involved in the case raise objections to the ownership (title) of property that has been sealed, seized, or frozen, and its yields, they shall be reviewed.

Assets which have been sealed, seized or frozen, or their yields, that are confirmed to be unlawful gains, contraband,or personal property used in the commission of the crime, shall be uniformly handed over and placed in the national treasury within 30 days of the case being withdrawn, except for those that are lawfully returned to the victims. Sealed, seized, or frozen property, and its yields, that cannot be confirmed are unlawful gains or other property involved in the case that should be disgorged, must not be collected.

Chapter III: Supervision of Investigation and review for prosecution

Article 18: Where, in the course of review for approval of arrest, people's procuratorates discover that a case meets the requirements for applying the plea leniency system, they shall initiate application of the plea procedures when making a decision to approve arrest or not approve arrest, and affix a 'plea procedures initiated' insignia on the case file bag.

The people's procuratorate's investigation supervision departments shall strengthen supervision of public security organs' application of plea situations.

Article 19: In the review for prosecution phase, the people's procuratorates shall inform the criminal suspect of the legal consequences produced by application of the system and all legal responsibility that is borne, and shall hear the opinions of the criminal suspect, defender, or duty lawyer on areas such as the determination of facts,charges, applicable articles of law, applicable procedures, and sentencing recommendation.

Article 20: Where upon review it is felt that is not eligible for the plea leniency system, they shall end it and affix a 'ended plea procedures' on the case file bag.

Article 21: Where the criminal suspect voluntarily admits guilt, and has no objections to the facts of the crime, applicable law, sentencing recommendation, and applicable procedures, they shall sign a written affidavit with the defender or duty lawyer present.

Article 22: Where upon review it is felt that the requirements for applying the plea leniency system are met, the people's procuratorate shall, based on the circumstances of the defendants' crimes, recommend that the people's court apply the expedited procedures, summary procedures, or ordinary procedures when indicting, and make an indication on the case file bag.

Article 23: In cases where the people's procuratorates submit an indictment, they shall clearly indicate circumstances of defendant's voluntarily admitting guilt and accepting punishment in the indictment, submit a sentencing recommendation, and simultaneously transfer the defendant's written affidavit, recommendation for application of procedures, and other materials.

Article 24: In plea cases handled by applying the expedited procedures, where a sentence of less than one year imprisonment, short-term detention, controlled release, or a fine alone might lawfully be given, the people's procuratorate shall make a decision on whether to indict within 10 days of accepting the case; and an extension to 15 days may be given where a sentence of more than 1 year imprisonment might be given.

In cases using the summary procedures that might be given a sentence of 3 years or more imprisonment, the people's procuratorates shall usually make a decision on indictment within 20 days of accepting the case.

Where case handling cannot be completed in the time limits do to actual needs, appropriate extensions may be given on the basis of specific case circumstances.

Article 25: When the people's procuratorates propose a sentencing reccomendation, they shall make a leniency recommendation based on different ranges in combining circumstances such as the phase of criminal proceedings during which the criminal suspect or defendant voluntarily admitted guilt and accepted punishment, the degree of contrition and remorse, the extent to which their active admission of guilt saved judicial resources, as well as circumstances such as returning stolen goods or making restitution.

Article 26: Sentencing recommendations shall ordinarily include principle punishments and supplementary punishments, as well as disposition of assets involved in the case, and indicate the means of enforcing the penalty. Where a sentence of up to 3 years imprisonment, controlled release, or short-term detention is recommended, a specific penalty period may be put forward; where a sentence of 3 to 5 years imprisonment, controlled release, or short-term detention is recommended, a specific penalty period or sentence range may be put forward; where a sentence of 5 years or more imprisonment is recommended, a relatively determinate sentencing rage may be put forward. Where other types of punishment are recommended, they shall be clearly put forward; where financial penalties are recommended, a specific determine amount is usually put forward.

Article 27: Where the circumstances of the crime are slight and, in accordance with the Criminal Law ,it is not necessary to give a criminal penalty or a criminal penalty may be excused, the people's procuratorate may issue a non-prosecution decision in accordance with legal procedures.

Article 28: Where criminal suspects voluntarily and truthfully confess facts of the crime they are suspected of, have major meritorious service or the case involves major national interests, then upon approval from the Supreme People's Procuratorate, people's procuratorates may make a non-prosecution decision, and may also submit a prosecution on one or more of the alleged crimes.

Where the Supreme People's Procuratorate approves non-prosecution, the people's procuratorate are to dispose of assets that have been sealed, seized, or frozen, with reference to the article 17, paragraphs 2 and 3 of these Measures.

Chapter IV: Trial

Article 29: People's courts hearing plea cases shall inform the defendant of the procedural rights they enjoy and the legal consequences that admitting guilt and accepting punishment might lead to; and review the voluntariness of the admission of guilt and acceptance of punishment and the truthfulness and lawfulness of the written affidavit.

Article 30: When people's courts begin trial for cases applying the plea leniency procedures, they may simplify trial, may simplify interrogation of the defendant, the prosecutor may just make explanations of the names of the evidence of the facts they prove, and do not need to make detailed pronouncements or presentations. Trials of plea cases shall hear the defendants' final statements.

Article 31: People's courts hearing cases applying the expedited procedures are to have a single-judge hear the trial, service is not subject to the time limits in the Criminal Procedure Law, court investigation or courtroom debate are not carried out, and the verdict is announced at court.

In cases applying expedited procedures at trial, people's courts shall usually complete trial within 10 days; an extension to 15 days may be given where a sentence of more than 1 year imprisonment might be given.

Article 32: In cases that might have a sentence more than 3 years fixed-term imprisonment, where the defendant admits guilt and accepts punishment, the summary procedures may be lawfully applied at trial, and the verdict is usually announced at court.

Article 33: Where any of the following situations appears, the people's courts shall stop using the plea leniency system:

(1) The defendant admitted guilt and accepted punishment against his wishes;

(2) The defendant has not constituted a crime or should not be pursued for criminal responsibility;

(3) The defendant proposes or the defender makes a not guilty defense;

(4) The defendant or defender put forward new evidence that might influence the primary facts of the crime, the nature of the case, or sentencing.

(5) Circumstances appear where it is improper to apply the plea leniency system.

Article 34: People's courts hearing plea cases shall reflect lenient handling in judgments; having some difference in sentencing between cases where the defendant does not admit guilt and those where the defendant voluntarily admits guilt and accepts punishment.

Article 35: When the people's court lawfully makes a judgment in a plea case, the charges and sentencing recommendation of the people's procuratorate are usually adopted, except in the following circumstances:

(1) The defendant has not constituted a crime or should not be pursued for criminal responsibility;

(2) The defendant admitted guilt and accepted punishment against his wishes;

(3) The defendant denies the alleged criminal facts;

(4) The charge in the indictment and the charge verified at trial are not the same;

(5) Other situations that might impact the fairness of trial.

People's procuratorates may adjust the sentencing recommendation based on the trial situation.

Where through trial, people's courts find that the people's procuratorate's sentencing recommendation is clearly improper, the people's court may recommend the people's procuratorate adjust its sentencing recommendation, and if the people's procuratorate does not agree to adjust the sentencing recommendation, or if after adjustment of the sentencing recommendation it is still improper, the people's court shall make a judgment in accordance with law.

Where people's courts do not adopt the people's procuratorate's sentencing recommendation, they shall explain the reasons for not accepting it in the written judgment.

Article 36: In plea cases where there are no legally prescribed commutation factors, a light sentence shall be given within the legally prescribed scope of penalties, and where the offense is slight and does not need to be punished, criminal punishment may be waived; where it is truly necessary to give a punishment below the legally prescribed penalty, it shall be reported up to the Supreme People's Court for review and approval.

Article 37: In appeals from first-instance trial plea cases where the defendant is disatisfied with the applicaiton of the expedited procedures, the people's courts for second-instance trials may choose not to hold in-court proceedings, but conduct a review primarily rotating around the voluntariness, truthfulness, and legality of the admission of guilt and acceptance of punishment.

Where through trial it is found that procedures applied were lawful, the facts verified and law applied in the original judgment are correct and the sentence is proper, the 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 leading to an improper sentence, the judgment shall be changed; where the facts in the original judgment are unclear or the evidence insufficient,or where the admission of guilt and acceptance of punishment was not made voluntarily; a ruling shall be made to revoke the original judgment and remand to the original people's court for new trial using the ordinary procedures.

Article 38: Where the defendant did not admit guilt and accept punishment during the first-instance trial but did so during the second-instance trial, the plea leniency system may be applied. People's procuratorates may submit a recommendation for lenient punishment when expressing opinions in court, but the scope of leniency is to be somewhat different from that for the first-instance trial procedures, with specific procedures being conducted with reference to the first-instance trial procedures.

Chapter V: Legal Aid and Legal Assistance

Article 39: The public security organs, people's procuratorates, and people's courts shall inform criminal suspects or defendants of the right to apply for legal aid. Where the requirements for appointing a defense are met, they shall lawfully notify the legal aid institution to appoint a lawyer to provide a defense.

The duty lawyer shall inform criminal suspects or defendants that they have the right to apply for legal aid. Where the requirements for legal aid are met, criminal suspects and defendants' application materials for legal aid shall be transferred to the legal aid institution.

Article 40:Handling of plea cases shall ensure that criminal suspects or defendants obtain effective legal assistance, ensuring that they understand the nature and legal consequences of the plea, and make the plea voluntarily.

Legal aid institutions shall establish legal aid work stations in detention centers, and dispatch resident duty lawyers. Legal aid institutions may arrange for duty lawyers to work at designated locations, based on the actual work needs of the people's courts and people's procuratorates. Legal aid institutions may follow the standards for handling expedited procedure, and pay corresponding allowances to duty lawyers.

Article 41: Where criminal suspects and defendants who voluntarily admit guilt and accept punishment have not retained a defender, public security organs, people's procuratorates, or people's courts shall promptly notify the duty lawyer to provide legal assistance such as legal consultation, procedure selection, and applications for modification of compulsory measures.

Duty lawyers shall provide legal assistance to criminal suspects or defendants within 3 working days of receiving notification, and give feedback to the case-handling unit on the time and place for providing legal assistance, and cicumstances such as whether the criminal suspect or defendant is willing to admit guilt and accept punishment.

Article 42: Legal aid institutions shall draft work specifications for duty lawyers, guaranteeing duty lawyers' lawful performance of their duties.

Article 43: Detention centers, people's procuratorates, and people's courts shall provide duty lawyers with work spaces and necessary office facilities, and shall simplify meeting procedures, ensuring duty lawyers' lawful performance of their duties.

Chapter VI: Supplementary Provisions

Article 44:Where in the course of handling plea cases, personnel of public security organs, people's procuratorates, or people's courts have situations of extortion of confessions by torture, gathering evidence through violence, or selling power for money, going easy on crime, or other situations of abusing power or twisting the law for personal gain; where a crime is constituted, criminal responsibility is pursued in accordance with law, where no crime is constituted, lawfully give an administrative sanction or disciplinary sanction.

Article 45: Apply these Measures' provisions related to public security organs where the state security organs or customs anti-smuggling departments handle plea cases in accordance with law.

Article 46: In handling plea cases, where these measures do not have provisions, follow the "Pilot Measures" of the "2 Supremes and 3 Ministries"

Article 47: Relevant provisions from the previous expedited procedures pilot projects may be consulted in implementation, except where these Measures have other provisions.

Article 48: The public security organs, people's procuratorates, people's courts, and judicial-administrative organs shall cooperate with each other in accordance with these Measures, and may separately formulate specific detailed work measures and establish special case handling groups, on the basis of that unit's actual conditions, to regulate the advancement of smooth progress in the plea leniency system pilots.

Each unit shall establish special ledgers to strengthen data and statistics, and research and analysis, on plea cases.

Article 49: These Measures take effect from their date of issue.

 

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