Opinions on Further Deepening Pilot Efforts on Having Defense Counsel in All Criminal Cases

Promulgation Date: 2022-10-12
Title: Opinions on Further Deepening Pilot Efforts on Having Defense Counsel in All Criminal Cases
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Promulgating Entities:Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security et al.
Source of text: https://www.spp.gov.cn/xwfbh/wsfbt/202210/t20221027_590863.shtml#2

Opinions on Further Deepening the Pilot Project Work on Having Defense Counsel in All Criminal Cases.

To the high courts, people's procuratorates, public security offices, departments of justice, autonomous reasons and directly governed municipalities, and Construction Corps branch courts established by the Xinjiang Uighur Autonomous Region's High Court, and Xinjiang Construction Corps procuratorates, public security departments and departments of justice:

In October 2017, the Supreme People's Court and Ministry of Justice published the "Measures Carrying Out Pilot Efforts on Having Defense Council in All Criminal Cases, launching pilot efforts to have full coverage of defense counsel in the trial stage of criminal cases in 8 provinces (directly governed municipalities). In December 2018, the Supreme People's Court and Ministry of Justice published a notice expanding the pilot efforts to the entire country, so that in cases where defenders did not have a defender in the trial stage the people's court will notify the legal aid institutions to appoint a lawyer to provide a defense or have a duty lawyer provide legal assistance, to truly safeguard the defendants' lawful rights and interests. Since the pilot efforts began, each region has strengthened overall planning and arrangement, made mechanisms for communication and connectivity, and strengthened regulation of the quality of legal aid, achieving positive results. So far, the nation has 2594 counties (cities, districts) carrying out pilot efforts on having defense counsel in the trial phase of all criminal trials - a total of more than 90% of county-level administrative districts. In 2021, as a result of the pilots, the number of legal aid cases in all regions increased by 320,000, 63.6% of the total number of trial stage cases, and duty lawyers provided legal assistance in more than 550,000 cases as a result of pilot efforts; greatly increasing the rate of defense representation in criminal cases, and further strengthening judicial protections for defendants' human rights. However, the work of each region has exposed issues such as the uneven availability of legal resources, insufficient funding safeguards, and poorly connected work, that must be resolved by further deepening work. At the same time, the widespread use of the system of leniency for those who confess and accept punishment [plea leniency system] also presented greater requirements for lawyers' defenses and duty lawyers' legal assistance in the review for prosecution phase.

Formal implementation of the Legal Aid Law began on January 1, 2022, signaling that legal aid in our country had entered a new era of high-quality development. The Legal Aid Law has clear provisions on expanding the scope of notification to provide a defense, giving play to the role of legal assistance by duty lawyers, and so forth, providing a basis for deepening pilot efforts on having defense counsel in all criminal cases. The following Opinions on deepening pilot efforts on having defense counsel in all criminal cases are hereby put forward so as to implement the Legal Aid Law and further strengthen judicial protections for the criminal suspects or defendants in criminal cases.

I. Fully Recognize the Major Significance of Deepening Pilot Project Work on Having Defense Counsel in All Criminal Cases

1. Deepening pilot efforts on having defense counsel in all criminal cases is a necessary requirement for fully implementing Xi Jinping thought on rule of law and implementing the people-centered understanding of development. Having people at the center is a fundamental principle of Xi Jinping thought on the rule of law. The fundamental goal of advancing the comprehensive governance of the nation in accordance with law is safeguarding the people's rights and interests. In criminal cases, the degree to which the rights of criminal suspects or defendants are ensured not only has a bearing on their vital rights and interests but also reflects the level of judicial civility. Deepening pilot efforts on having defense counsel in all criminal cases by gradually extending from the foundation of full-coverage from the trial stage to full coverage in the review for prosecution phases can give better play to the legal assistance role of duty lawyers, providing criminal suspects or defendants with broader, deeper, and more effective criminal defense or legal assistance, so that each criminal suspect or defendant can feel fairness and justice in criminal proceedings.

2. Deepening pilot efforts on having defense counsel in all criminal cases is an inherent requirement of continuing to improve the legal aid system. In August 2021, the National People's Congress reviewed and adopted the Legal Aid Law, and this is a landmark for our nation's making legal aid more legislated and institutionalized. The Legal Aid Law put forward guiding thought and basic principles for legal aid work in the new era, expanding the scope of legal aid, clarifying specific measures for increasing the quality of legal aid and strengthening legal aid safeguards, and making higher requirements for legal aid work. Deepening pilot efforts on having defense counsel in all criminal cases is not only a specific measure for implementing the relevant provisions of the Legal Aid Law, but is also a practical requirement for further expanding the scope of coverage for legal aid in criminal cases and continuously completing and improving the legal aid system.

3. Deepening pilot efforts on having defense counsel in all criminal cases is an important measure for fully implementing the criminal policy of combining leniency and severity, and the system of leniency for those who confess and accept punishment [plea leniency system]. Advancing the plea leniency system is an important measure for modernizing the nation's governance system and ability in the justice sector, with important significance for areas such as promptly and effectively correcting crimes, strengthening judicial protections of human rights, optimizing the allocation of judicial resources, and increasing the efficacy of criminal proceedings. Deepening pilot efforts on having defense counsel in all criminal cases, and increasing the participation rate of defense lawyers in handling plea cases can give full play to the roles of duty lawyers in guiding criminal suspects or defendants to understand the legal consequences of a plea and in submitting legal opinions in areas such as the determination of charges, sentencing recommendations, and case handling, to create positive conditions for correctly using the plea leniency system.

II. Solidifying the achievements of pilot efforts to have defense counsel in all criminal cases for the trial phase.

4. Pay attention to realizing full coverage in county regions. The justice offices of provinces (autonomous regions) that have not yet brought about full-coverage of defense counsel in the trial stage should overcome challenges in areas such as the supply of lawyers and financial assurances to accelerate the realization of pilot efforts to realize full-coverage at county-level administrative regions, and essentially realize full-coverage of defense counsel in the trial stage.

5. Shifting from formal coverage to effective coverage. Each region should consult the requirements of documents such as the Legal Aid Law and the Supreme People's Court and Ministry of Justice's Notice on Expanding the Scope of Pilot Efforts on Having Defense Counsel in All Criminal Cases to promptly summarize pilot efforts on having defense counsel in all criminal cases, identifying weak links in the efforts, strengthening analysis of data and statistics in important operations, refining good experiences and practices, and continuously increasing the quality and efficacy of efforts to have defense counsel in all criminal cases.

III. Carry Out Pilot Efforts on Having Full-coverage of Defense Counsel in the Review for Prosecution Stage

6. Determine pilot regions. Based on actual local conditions, judicial offices (bureaus) are to consult with procuratorates to determine 2 or 3 prefecture-level cities (county regions under directly governed municipalities) to carry out pilot efforts on having full-coverage of defense counsel in the review for prosecution running from November of this year. Regions that have already started to carry out this project may proceed according to the original work plan.

7. Designate the scope for giving notice to provide a defense. The people's procuratorate shall notify the legal aid institution to appoint a lawyer to provide a defense for criminal suspects who have not entrusted a defender and have any of these circumstances: their criminal conduct might be receive a sentence of 3 years imprisonment or higher, either they or a co-suspect in a joint crime refuses to admit guilt, the case is complex, it might cause a major social impact. Regions that have already started to carry out the pilot may consider the actual local conditions to expand the scope for giving notice to provide a defense.

8. Determine work procedures. Within three days of the date on which it receives case materials transferred for review for prosecution, the people's procuratorate shall inform the suspect that they have the right to retain a defender. Where the defendant has circumstances provided for in article 7 of these Opinions, the people's procuratorate shall inform them that if they do not retain a defender the legal aid institution will be notified to appoint a lawyer to provide them a defense. Where criminal suspects decide to not retain a defender on their own, the people's procuratorate shall record this in the case file and send a formal letter to the legal aid institution giving notice to provide a defense. The official defense notification letter shall clearly bear the criminal suspect's full name, the name of the charged crime, the name of the detention center or residence, the reason for the defense notification, the full name of the procurator and their contact information. Legal aid institutions shall determine the lawyers who will undertake the case within 3 days of receiving a formal legal aid letter, and send a letter to people's procuratorate with the names of the defense lawyers, the unit to which they belong, and their contact information.

9. Duties of defense lawyers. Lawyers are to lawfully perform defense duties in accordance with the Criminal Procedure Law and the Lawyers Law. During the review for prosecution phase, defense lawyers shall the legal provisions regarding plea leniency and their legal consequences to criminal suspects and provide the criminal suspect with legal assistance such as legal consultation, recommendations in selecting procedures, applying to change compulsory measures, and submitting applications for review of the necessity of detention in accordance with law. Where criminal suspects voluntarily plea, the defense lawyers shall submit opinions on the matters provided for in the second paragraph of article 173 of the Criminal Procedure Law. The defense lawyers appointed by legal aid institutions shall promptly read the case file and meet with the criminal suspect beginning on the day the receive the appointment. In cases where the criminal suspects plea and the people's procuratorate proposes applying the expedited procedures, the defense lawyers shall complete the reading of the case file and meetings within the time for the procuratorate to handle the case.

IV. Truly ensure lawyers' defense rights. The people's procuratorates shall safeguard defense lawyers' procedural rights, such as meeting clients and reading the case file in accordance with law, and facilitate defense lawyers' performance of their duties. Where the people's procuratorates make major procedural decisions such as returning a case for supplemental investigation, extending the period of review for prosecution, initiating litigation, or deciding not to prosecute, they shall promptly notify the defense lawyers in accordance with law, and promptly disclose case process information to the defense lawyers.

11. Promptly arrange for the reading of the case file. Where defense lawyers request to reading the case file, the people's procuratorate shall promptly make arrangements for reading the case file, and where it isn't possible to make prompt arrangements due to reasons such as work, they shall explain this to the defense lawyers, and make arrangements for them to read the case file within three working days, and they must not restrict the reasonable number and duration of opportunities for reading the case file. Areas with the capacity may establish platforms for making reading the case file, promote electronic reading of the case file, and allow the downloading or recording of materials.

12. Complete connections with legal assistance. Where criminal suspects have not retained a defender and do not meet the requirements for legal aid institutions to appoint a lawyer for their defense as provided for in article 7 of these Opinions, the people's procuratorate shall promptly notify the legal aid institutions to arrange for a duty lawyer to provide legal assistance.

13. Handling refusals of a defense. ascertain the reasons for the refusal 25 par.1 of the Legal Aid Law and article 7 of these Opinions requiring notification of a lawyer, where the criminal suspect refuses to have the legal aid institution appoint a lawyer for their defense, the people's procuratorate shall ascertain the reasons for the refusal. Where the reasons are legitimate, it shall be allowed, but the criminal suspect must retain another defender; where the criminal suspect does not retain another defender, written notice shall be sent to the legal aid institution to appoint another lawyer to provide them with a defense. Where criminal suspects refuse the lawyer appointed by the legal aid organization to provide him a defense, and insist on exercising their defense rights themselves, and the people's procuratorate approves this, the legal aid institution shall issue a termination of legal aid decision; where there is a legitimate reason for requesting a change of lawyer, the legal aid institution shall appoint another lawyer to provide a defense.

IV. Give real play to the role of legal assistance by duty lawyers.

14. Improve the stationing of duty lawyers. People's courts, people's procuratorates, and public security organs shall provide necessary workspaces and facilities for legal aid stations to accelerate the establishment of legal aid stations. Based on the local legal professional resources and demand for legal assistance, judicial-administrative organs and legal aid institutions shall flexibly employ diverse forms such as on-site duty, telephone duty, and online duty, to ensure the full coverage of legal assistance from duty lawyers.

15. Implementing notifications of rights. In the investigation, review for prosecution, and trial phases respectively, the people's courts, people's procuratorates, and public security organs 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 criminal suspects or defendants in making an appointment to see a duty lawyer. Where the criminal suspects or defendants 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.

16. Promptly notify the duty lawyers. Where criminal suspects or defendants have not retained a defender and the legal aid institutions have also not appointed a lawyer to provide them with a defense, and the criminal suspects or defendants apply to meet with a duty lawyer, the people's court, people's procuratorate, and public security organs may directly send the request to the duty lawyers stationed on-site, or immediately notify a telephone or online duty lawyer. Where arrangements or instant notification cannot be made, a notice to provide legal assistance shall be sent to the legal aid institutions within 24 hours. Within two working days of receiving the written notification for legal assistance, the legal aid institutions shall designate a duty lawyer and notify the case handling organ of the duty lawyer's name, unit, and contact information. 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. The case handling organs shall facilitate meetings between duty lawyers and criminal suspects or defendants.

17. Truly ensure duty lawyers' rights. Where criminal suspects or defendants do not have a defender, the people's courts, people's procuratorates, and public security organs shall separately hear the opinions of the duty lawyers during the investigation, review for approval of arrest, review for prosecution, and trial phases, giving full play to the role of duty lawyers in giving legal assistance at each stage of proceedings. The people courts, people's procuratorates, and public security organs ensure duty lawyers' procedural rights such as to meet clients in accordance with law. In criminal cases of suspected crimes endangering national security or terrorism, criminal suspects' meetings with the duty lawyers shall be upon the approval of the investigating organs; and where the investigating organs agree to the meeting with duty lawyers, they shall promptly notify the duty lawyers. Duty lawyers are not to be listened in on when meeting with criminal suspects or defendants. After a case is transferred for review for prosecution, duty lawyers may access case file materials and learn about the 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. In regions where there are a limited number of duty lawyers and a larger number of cases, duty lawyers may adopt concentrated methods of reading case files.

18. Duty lawyers are to perform the following duties. Duty lawyers providing legal assistance shall fully lead about the circumstances of the case, and in cases where the circumstances are more complex, shall submit comments on the handling of the case after reading the case file and fully explaining relevant procedural rights and procedures to the criminal suspects or defendants. Where the criminal suspects or defendants voluntarily plea, the duty lawyers shall consider the circumstances of the case and explain the nature of a plea and the provisions of law to the criminal suspects or defendants, and submit opinions on the charges and sentencing recommendations made by the people's procuratorate, and the procedures to be applied, and be present when the criminal suspects sign the affidavit.

19. Duty lawyers' accusations and appeals. Where during the provision of legal services, duty lawyers find that the people's courts, people's procuratorates, public security organs, and their staffs have violated the provisions of law, obstructed their lawful provision of legal assistance, or encroached on lawyers' practice rights, thy have the right to make collateral appeals or accusations to the people's procuratorate at the same level or the level above. People's procuratorates shall promptly investigate appeals or accusations, and where they are true, notify the relevant organ to make corrections.

V. Complete and Improve Mechanisms for Connections and Cooperation

20. Complete mechanisms for coordination and consultation. People's courts, people's procuratorates, public security organs, and judicial-administrative organs should strengthen coordination and cooperation, establishing and completing coordination mechanisms such as a joint conference and regular reporting and circulating reports, to promptly communicate on work progress and coordinate the resolution of challenges and issues in work.

21. Establish mechanisms for information sharing. People's courts, people's procuratorates, public security organs, and judicial-administrative organs should promptly share important operational data, establish work ledgers, and unify statistical caliber, to do a good job of statistical analysis and strengthen operational guidance.

22.Improve the efficiency of interconnections. Strengthen digitalization, promoting the digitalization all phases in the process of pilot efforts on having defense counsel in all cases, including notifications and appointments, further increase work efficiency, give lawyers adequate time to carry out work, and create positive conditions for defense lawyers and duty lawyers to perform their duties.

23. Strengthen safeguards for lawyers rights. People's courts, people's procuratorates, public security organs, and judicial-administrative organs should truly ensure each right of defense lawyers and duty lawyers, and must not obstruct or indirectly obstruct defense lawyers and defense lawyers' exercise of their procedural rights in accordance with law.

VI. Strengthen organizational leadership.

24. Seek support from Party Commissions and Government. Every region should actively seek the attention and support of all levels of Party commissions and government, proactively reporting on work to the Party commissions and governments, to truly implement the safeguarding duties of the Party commissions and governments.

25. Resolve the problem of insufficient resources of legal professionals. Establish and complete mechanisms for the flow of legal service resources across regions in accordance with law, and encourage and support law firms, lawyers, and so forth in providing service in regions where there are insufficient legal resources. Establish and improve mechanisms for they dynamic allocation of legal resources, with the provincial-level judicial-administrative organs taking the lead for planning and allotment in areas where the problem of uneven availability of legal resources is more prominent, and prefecture city-level judicial-administrative organs taking the lead in other regions in principle; improving the capacity of legal aid services through means such as pairing assistance. Lead and regulate the participation in criminal legal aid by legal aid institution workers with lawyers qualifications or legal professionals credentials and by legal aid volunteers with Lawyers' practice certificates, digging deeper into latent strength for criminal legal aid and further strengthening the teams' forces. Strengthen legal aid volunteer service work, thoroughly carry out the "1+1" legal aid volunteer action, "Tibet Legal Services Group", and other legal aid programs, appointing legal aid volunteers to give service in regions where there are no lawyers or legal resources are insufficient.

26. Resolve the problem of inadequate funding safeguards. The people's courts, people's procuratorates, and public security organs shall cooperate with the judicial-administrative organs in strengthening communication and coordination with the finance departments, jointly promoting the implementation of the provisions in the Legal Aid Law related to funding safeguards for legal aid operations, enhancing funds for handling legal aid cases, dynamically adjusting standards for legal aid compensation, and truly ensuring case-handling needs. Increase the amount of the Central authorities' dedicated funds for supplemental funding of local legal aid case handling, giving play to the demonstration and guidance role of the central authorities' dedicated funds. Based on the difficulty of the case and the extent of participation, the judicial-administrative organs shall reasonably determine legal aid compensation standards, advance mechanisms for differentiating compensation linking case compensation and service quality and increase the efficiency in using legal aid funds.

27. Strengthen guidance and oversight. The departments for lawyers of all levels of judicial-administrative organs are to lead the way in completing pilot efforts, planning the allocation of legal resources, organizing and guiding lawyers' active fulfillment of legal aid obligations, and strengthening safeguards of lawyers' rights and regulation of their practice. Legal aid management departments should complete relevant protection work, coordinating with relevant departments to put pilot work funding in place, establish and improve mechanisms for coordinating legal aid work in different areas, and strengthening guidance and regulation on the quality of legal aid. Lawyers associations should give play to their advantages as an industry association, cooperating with the departments managing legal aid to complete efforts such as for lawyers' participation in legal aid training. legal aid institutions should complete efforts such as on acceptance, review, and appointment of lawyers in strict accordance with law, comprehensively utilizing measures such as inspecting case files and requesting judicial organ's opinions, to urge legal aid personnel to increase the quality of services.

Supreme People's Court, Supreme People's Procuratorate, Ministry of Justice, Ministry of Public Security

October 12, 2022