Measures for Work on Legal Aid Duty Lawyers (Draft for Solicitation of Comments)

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Chapter I: General Provisions

Article 1: These Measures are forumlated on the basis of the "Criminal Procedure Law of the People's Republic of China" so as to safegaurd the procedural rights enjoyed by criminal suspects and defendants, to strengthen judicial protections of human rights, and to further regulate the work on duty lawyers.

Article 2: "Duty lawyers" as used in these Measures refers to lawyers stationed or arranged to be at legal aid work stations set up by legal aid institutions in detention centers, people's procuratorates, people's courts, and other such venues to provide legal assistance to criminal suspects or defendants who have no defender.

Article 3: The efforts on duty lawyers shall uphold the principles of legality, fairness, equity, and efficacy, and duty lawyers shall provide legal services that meet standards.

Article 4: The public security organs (detention centers), people's procuratorates, people's courts, and judicial-administrative organs shall safeguard the right of criminal suspects and defendants who do not have a defender to receive legal assistance from duty lawyers.

Article 5: The judicial-administrative organs are to lead the organization and implementation of efforts on duty lawyers, and the public security organs (detention centers), people's procuratorates, and people's courts shall assist.

Chapter II: Duty Lawyers' Work Duties

Article 6: Duty lawyers are to perform the following work duties in accordance with law:

(1) Providing legal information;

(2) Providing suggestions on what procedures to apply;

(3) Assisting criminal suspects or defendants apply for a modification of compulsory measures;

(4) Submitting comments on case-handling;

(5) Assist criminal suspects, defendants, and their close relatives in applying for legal aid;

(6) Other matters provided for by laws and regulations.

Duty lawyers shall also provide the following legal assistance to criminal suspects or defendants in plea leniency cases:

(1) Explain the nature and legal provisions on plea leniency to the criminal suspects or defendants;

(2) Submit comments on matters such the charges, sentencing recommendation, and procedures put forward by the procurator;

(3) Be present when the criminal suspect or defendant signs the plea affidavit;

When duty lawyers handle cases, they may meet with the criminal suspects or defendants at their request or proactively meet them with the permission of the case-handling organs; and beginning on the date that the case is transferred to the people's procuratorate to be reviewed for prosecution they may access the case file materials to understand the circumstances of the case.

Article 7: When duty lawyers provide legal information, they shall inform the criminal suspects or defendants of provisions related to legal assistance and explain relevant procedural rights and provisions in light of the procedural phase that the case is in, and answer the criminal suspects or defendants' legal questions.

Where the criminal suspects or defendants admit guilt and accept punishment, the duty lawyers shall learn whether the criminal suspects or defendants have any objections to the alleged facts and charges, inform them of the scope of punishment for the charges, introduce aggravating and mitigating factors and the scope of leniency for admitting guilt and accepting punishment, and provide suggestions on the choice of procedures in light of the case circumstances.

Where duty lawyers provide legal information, they shall make a record of the crimes that the criminal suspects or defendants are accused of and their legal questions, and legal answers provided.

Article 8: Where criminal suspects admit guilt and accept punishment during the review for the prosecution phase, duty lawyers may submit comments to the people's procuratorate on the following matters:

(1) the facts of the crime, the charges, and the legal provisions to be applied;

(2) Recommendations for lenient punishment, such as mitigation, commutation, or exemption from punishment;

(3) The procedures applied at trial following the admission of guilt and acceptance of punishment;

(4) Other matters on which opinions need to be submitted.

Article 9: Where criminal suspects or defendants submit applications for the review of the necessity of detention, the duty lawyers shall inform them of the requirements for applying release on guarantee, residential surveillance, arrest, and other compulsory measures, and the relevant legal provisions, and of the procedures for people's procuratorates conducting reviews of the necessity of detention; and where the criminal suspects or defendants have already been arrested, the duty lawyers may assist them in submitting an application to the people's procuratorate for a review of the necessity of detention and help in providing the corresponding materials.

Article 10: When criminal suspects sign plea affidavits and the duty lawyers have no objections to the voluntariness and truthfulness of the plea, the people's procuratorate's sentencing recommendation and the procedures to be applied, they shall sign the plea affidavit and concurrently store a copy in the case file.

Where duty lawyers have objections to the people's procuratorate's sentencing recommendation or the procedures to be applied, they may submit a legal opinion to the people's procuratorate.

Where criminal suspects reject the duty lawyers' assistance, the duty lawyers do not need to sign plea affidavit and shall attach a copy of the criminal suspects' signed written refusal of assistance to the case file.

Article 11: For detained criminal suspects or defendants, legal assistance in different phases of litigation may be provided by the same duty lawyer stationed in the detention center. For criminal suspects or defendants that have not been detained, the duty lawyers from earlier phases of litigation may continue to provide the criminal suspect or defendant with legal assistance in later procedural phases.

Chapter III: Procedures for Legal Assistance Work

Article 12: In the investigation, review for prosecution, and trial phases respectively, the public security organs, people's procuratorate, and people's courts are to inform criminal suspects or defendants who do not have defenders of their rights to make an appointment to see a duty lawyer and receive legal assistance, and facilitate their making an appointment to see a duty lawyer.

Article 13: Detention centers shall inform criminal suspects or defendants that they have the right to meet with duty lawyers, and facilitate their making appointments with duty lawyers.

Detention centers shall include relevant content on the duty lawyer system in the written notification of detained persons' rights and obligations, and inform criminal suspects or defendants of their right to obtain legal assistance from a duty lawyer at intake.

Where criminal suspects or defendants request to meet duty lawyers, the may apply in writing or orally. Where the application is in writing, detention centers shall promptly transfer the completed application form for legal assistance to the duty lawyers. Where the application is oral, detention centers shall arrange for someone to complete the application form for legal assistance on their behalf.

Article 14: Where criminal suspects or defendants who have not retained a defender and do not meet the requirements for legal aid institutions to appoint a lawyer for their defense request to meet with a duty lawyer, the public security organs, people's procuratorates, and people's courts shall promptly notify the legal aid institutions to arrange for a duty lawyer to provide them legal assistance, and transfer related document with the case.

Article 15: Where criminal suspects or defendants clearly refuse the assistance of the duty lawyers, the public security organs, people's procuratorates, and people's courts shall record this in the case file.

Where the criminal suspects or defendants clearly refused legal assistance from the duty lawyers in the preceding litigation procedures, the case-handling organs in subsequent litigation procedures are still to inform them that they have the right to receive legal assistance from a duty lawyer, and shall record relevant circumstances in the case file.

Article 16: Where public security organs, people's procuratorates, and people's court inform duty lawyers to provide legal assistance to criminal suspects or defendants, they need to issue a written notification for legal assistance to the legal aid institution and attach relevant judicial documents.

Where a group of notifications is given together, the information and materials for several criminal suspects or defendants may be attached after a single notification for legal assistance.

Except where duty lawyers are notified to appear at the place of detention to provide legal assistance, the people's procuratorates and people's courts may negotiate simplifying notification methods and procedures with the legal aid institutions.

Article 17: Based on the local legal professional resources and demand for legal assistance, judicial-administrative organs and legal aid institutions shall work with detention centers, people's procuratorates, and people's courts to make reasonable arrangements for the methods and shift frequency of duty lawyers being on duty.

The methods of being on duty may employ means such as being on duty on-site, by telephone, online, or a combination of these. Where duty lawyers are on-site, they may have fixed professionals or rotation shifts, and may also use scheduling appointments.

Article 18: Legal aid institutions shall determine duty lawyer candidates on comprehensive consideration of political character, professional ability, and time in practice, and establish a registry or pool of duty lawyers. Public security organs (detention centers), people's procuratorates, and people's courts are to be informed in advance of information from the duty lawyer pool or registry and duty lawyer work arrangements.

Article 19: Public security organs, people's procuratorates, and people's courts shall send written notice to legal aid institutions three working days before the date set for legal assistance, and may consult with the legal aid institution on simplifying the methods of giving notice.

Within two days of receiving the written notification for legal assistance, the legal aid institutions shall designate a duty lawyer and inform the public security organs, people's procuratorates, and people's courts, and may consult with the case-handling organs on simplifying the methods of giving notice.

The restrictions in the preceding paragraph on time limits for notification and appointments do not apply in special cases such as where the people's courts decide to apply the expedited procedures to hear cases or where legal aid institutions need to send lawyers across regions.

Article 20: Where duty lawyers are on duty on-site at detention centers, they shall provide legal assistance immediately after they receive an application for legal assistance.

Where duty lawyers are on duty on-site at people's procuratorates or people's courts, they shall provide legal assistance immediately after receiving a legal assistance notification.

Where duty lawyers are on duty via telephone or the internet, they shall provide legal assistance within one working day, and in difficult cases may separately schedule time for consultation.

Article 21: Where duty lawyers access case file materials and learn about case circumstances, the people's procuratorates and people's courts shall promptly make the arrangements and facilitate. In areas where files have already been digitalized, the people's procuratorates and people's courts may arrange for online access.

Article 22: Duty lawyers are to bring their lawyers' practice permits or work permits, the application or written notification for legal assistance to the detention center, and complete formalities for meeting clients, and the detention center shall promptly arrange the meeting.

Where duty lawyers meet with detained criminal suspects during the investigation of cases of crimes endangering national security, terrorist activities, it shall be upon the permission of the investigating organs.

Article 23: When duty lawyers provide legal assistance, they shall bring their lawyers practice permits and work permits, and indicate their identity as a duty lawyer to the criminal suspects or defendants.

Article 24: Duty lawyers are not to be listened in on when meeting with criminal suspects or defendants.

Article 25: Where in the course of duty lawyers providing legal assistance, criminal suspects or defendants express willingness to admit guilt and accept punishment to the duty lawyers, the duty lawyers shall promptly inform the public security organs, people's procuratorates, or people's courts.

Chapter IV: Assurances for Duty Lawyers' Work

Article 26: Where legal aid institutions set up legal aid work stations in detention centers, people's procuratorates, or people's courts and so forth, the detention centers, people's procuratorates, or people's courts shall provide necessary work space and equipment for the legal aid work station.

People's procuratorates and people's courts that have the capacity may set up special work areas for handling plea cases and set up special meeting rooms for duty lawyers.

Where detention centers, people's procuratorates, people's courts and other such organs have nearby offices, the legal aid institutions may set up a joint legal aid work station and dispatch duty lawyers.

Article 27: Duty lawyers providing lawyers provide legal assistance based on territorial jurisdiction, and legal aid work stations are to be dispatched and managed by the legal aid institution of the judicial-administrative organs at the same level

Article 28: Legal aid workstations shall display information such as the requirements for legal aid, the application procedures, duty lawyers' duties, and basic information on the duty lawyers on duty that day; and set out legal aid forms and promotional materials.

Article 29: Circumstances of duty lawyers' legal assistance activities, such as providing legal consultation, reviewing case file materials, meeting with criminal suspects or defendants, and submitting written opinions, shall be recorded in the case file and transferred with the case.

Duty lawyers shall record circumstances of providing legal aid in the work ledgers or put together a work file, and transfer these to the legal aid institutions within the time provided.

Public security organs (detention centers), people's procuratorates, and people's courts shall determine the format for the work ledgers with the legal aid institutions, and make a record of the duty lawyers' performance of their duties in the case file, and periodically transfer this to the legal aid institutions.

Article 30: When duty lawyers provide legal assistance, they shall comply with relevant laws and regulations, practice discipline, and professional ethics, and shall lawfully protect state secrets, commercial secrets, and personal privacy; they must not leak case circumstances learned of in their work to others and must not accept assets or improper benefits from those receiving assistance.

Article 31: Judicial-administrative organs shall collaborate with finance departments to draft reasonable standards for compensating duty lawyers for legal assistance on the basis of factors such as direct expenses and basic labor fees, and include these in their budgets to provide safeguards.

Compensation standards for duty lawyers' provision of legal consultation, transferring applications for legal aid, and other legal assistance are to be calculated on the basis of days worked; and compensation standards for providing legal assistance to criminal suspects or defendants in plea leniency cases are to be set by each area in accordance with actual conditions or calculated based on days worked.

Legal aid institutions shall pay legal assistance subsidies to duty lawyers as provided based on the duty lawyers' performance of their work duties.

Article 32: Legal aid institutions shall establish entry and removal mechanisms for duty lawyers and establish a quality evaluation and assessment system for duty lawyer services to ensure the quality of duty lawyer services.

Judicial-administrative organs and legal aid institutions shall strengthen oversight and guidance of duty lawyer efforts in that administrative region.

Article 33: Judicial-administrative organs and legal aid institutions shall strengthen oversight and guidance of duty lawyer efforts in that administrative region. In regions where there is a shortage of legal professional resources, big picture coordination of legal professional resources may be done within the province or city, to ensure the orderly development of efforts on duty lawyers.

Article 34: judicial-administrative organs together with the public security organs, people's procuratorates, and people's courts are to establish mechanisms for consultation on duty lawyer efforts, indicating designated contact people and promptly communicating about situations to coordinate resolution of related problems.

Article 35: The judicial-administrative organs shall strengthen oversight and management of efforts on duty lawyers and give commendations to duty lawyers with outstanding performance; and handle duty lawyers who violate laws and discipline in accordance with laws and regulations either in accordance with their duties or by transferring them to an authorized organ.

Legal aid institutions shall report to lawyers associations on duty lawyers' performance of their duties.

Lawyers association shall include duty lawyers' performance of their duties and receipt of commendations in lawyers' annual evaluations and creditworthy services records, and handle duty lawyers who violate professional ethics and practice discipline in accordance with laws and regulations.

Chapter V: Supplementary Provisions

Article 36: The provisions of these Measures on public security organs shall apply to the state security organs, China Coast Guard and prisons performing their duties as stipulated in the Criminal Procedure Law and involving the work of duty lawyers.

Article 37: These Measures are to take effect in June of 2020. The "Opinions on Carrying out Legal Aid Duty Lawyers Work" (Sifatong(2017)No.84) are simultaneously repealed.

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