Opinions on Strengthening the Substantialized Trial of Commutation and Parole Cases

Promulgation Date: 2021-12-1
Title: Opinions on Strengthening the Substantialized Trial of Commutation and Parole Cases
Document Number:法发〔2021〕31号
Promulgating Entities: Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security et al.
Source of text: http://www.court.gov.cn/fabu-xiangqing-335781.html

To the high courts, people's procuratorates, public security offices, departments of justice, PLA military courts and military procuratorates of all provinces, 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, and prison administration bureau:

These Opinions on Strengthening the Substantialized Trial of Commutation and Parole Cases have been jointly formulated by the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, and Ministry of Justice so as to strictly regulate work on commutation and parole, to further substantialize trial of commutation or parole cases, and to ensure the fair and just hearing of cases. They are hereby issued to you, please earnestly comply implement them.

The Supreme People's Court, The Supreme People's Procuratorate

Ministry of Public Security, Ministry of Justice

December 1, 2021

Opinions on Strengthening the Substantialized Trial of Commutation and Parole Cases

The system of commutation and parole is an important part of our country's system for enforcing criminal penalties. In accordance with our country's laws, the penal enforcement organs are to submit written recommendations in commutation and parole cases and report them to the people's courts for a hearing and ruling, and the people's procuratorates are to conduct oversight in accordance with law. The following Opinions on substantializing the trial of commutation and parole cases are put forward so as to strictly regulate work on commutations and parole, and to ensure the hearings are fair and just.

I. Correctly understand the basic requirements of substantializing the trial of commutation or parole cases,

1. Persist in full review in accordance with law. In hearing commutation or parole cases, the materials reported by the penal enforcement organs shall be fully reviewed, focusing both on reviewing the convicts conduct since being delivered for enforcement of the sentence and on circumstances such as the nature, specific situation, and degree of harm to the public of the criminal's crime and their performance on financial punishments in the original effective criminal punishment, to make a fair and equitable ruling in accordance with law and truly prevent having evaluation scores be the sole basis for commutation or parole.

2. Persist in equally emphasizing objective and subjective shows of reform. The hearing of commutation or parole cases is to emphasize review of performance in both objective areas such as convicts' reformation through labor and supervised reformation, and subjective areas such as ideological reform, to make a comprehensive assessment of whether the convict has truly expressed remorse and reform.

3. Persist in strictly reviewing evidence materials. The hearing of commutation or parole cases shall give full play to the role of trial functions, persist in being trial-centered, and strictly review each piece of evidence. Findings of whether the legally-prescribed requirements for commutation or parole are met shall be shown by corresponding evidence, and where there is no evidence, or the evidence is not credible and sufficient, a ruling for commutation or parole must not be made.

4. Persist in differentiated treatment. The hearing of commutation or parole cases shall truly implement the criminal policy of combining leniency and severity, specifically analyzing the specific case, and distinguishing between different situations to make a ruling in accordance with law, to give the greatest play to the functions of criminal punishment and realize the goals of criminal punishment.

II. Strictly review the substantive requirements for commutation or parole cases

5. Strictly review the evaluation materials on the convicts' expressions of reform during the period of serving their sentences. For scored evaluation materials, factors such as the sources of the evaluation score and their reasonableness shall be earnestly reviewed, and if the evaluation score and evaluation period do not correspond, the addition and subtraction of points does not correspond with rewards and punishments, or the rewards and punishments lack corresponding facts and basis, the organ enforcing the criminal punishment shall be requested to make an explanation and supplementation within the time provided. Evaluation materials for which a reasonable explanation cannot be made in the time provided are not to be used as the basis for a finding of a convict's shows of remorse and reformation.

Written materials by the convict, such as their written statement of guilt and remorse and self-reflection should be earnestly reviewed with consideration of the convict's education level, and where absent special reasons they were not written by the convict themselves or where the content of the materials is false, they are not to be found to be an expression of the convict's remorse and reform.

Where convicts have conduct violating prison rules and discipline, the convicts' expression of reformation shall be comprehensively analyzed and assessed based on the specific circumstances of the conduct, such as is its nature and situation. Where convicts have been given a warning, demerit, or confinement as a penalty for violations of prison rules and discipline while serving their sentence, whether they have truly expressed remorse and reform may be determined based on the specific circumstances of the case.

6. Strictly review the evidence for convict's meritorious contributions or major meritorious contributions, to correctly understand the designation requirements. Where criminal activities inside or outside of prison were reported or exposed, or major leads were provided to break a case, and they were proven true through review; review shall focus on the source of the leads. Where doubts about the source of the leads are uncovered, further review shall be conducted and if it is ascertained that the leads were obtained through illegal methods such as bribery, violence, threats, or violations of prison rules, it is not to be found to be a meritorious contribution or major meritorious contribution

For technical innovations and inventions, the review shall focus on whether they possess the professional ability and capacity for that innovation or invention, and where the convict clearly does not possess the professional ability and capacity, or they cannot explain the principles and processes of the innovation or invention, it is not to be found to be a meritorious contribution or major meritorious contribution.

For obstructing others from perpetrating criminal activities, assisting judicial organs in catching other criminal suspects, risking one's life to save others in the course of daily production and life, or, where having an active or outstanding performance in combatting natural disasters or major accidents, in addition to reviewing the evidence submitted by relevant departments, review of other evidence that can show the conduct described above shall also be emphasized, and where the convict clearly does not possess the ability or capacity to carry out the conduct, meritorious contribution or major meritorious contribution are not to be found.

Strictly understand the requirements for findings of 'larger contributions' and 'major contributions'. The 'larger contribution' or 'major contribution' refers to having a positive impact on the state and society and is not about making a contribution to or aiding individuals or units. Where convicts use their own experience as an example in warning and education activities, it is not to be found to be a meritorious contribution or a major meritorious contribution.

7. Strictly review convicts' capacity to fulfill financial judgments. In any one of the following circumstances where convicts fail to fulfill or fail to fully fulfill financial judgments, they are not to be found to have truly expressed remorse and reform:

(1) Refusing to account for stolen funds or property;

(2) Hiding, concealing, or transferring assets;

(3) Having assets that could be provided for fulfillmen but refusing to do so.

For the convicts provided for in the preceding paragraph, where their spending in prison clearly exceeds the standard amounts provided, they normally are not to be found to have truly expressed remorse and reform.

8. Strictly review materials that reflect whether criminals pose a risk of further crimes. For convicts for whom parole is requested, materials provided by the organs enforcing the criminal punishment that reflect the convict's actual conduct or physiological and psychological state while serving their sentence and materials submitted by judicial-administrative organs or relevant social organizations on the convicts' impact to the community if paroled shall be earnestly reviewed; and circumstances such as the nature, specific situation, and degree of harm to the public of the convicts' crimes, as well as their fulfillment of financial items in the original criminal punishment and effective rulings, are to be considered, to comprehensively assess whether the convict poses a risk of further crime if paroled.

9. Strictly review the convict's identification information and evidence on their having a serious illness or physical disability. Where there are doubts about the evidence described above, relevant units may be entrusted with a new investigation, diagnosis, and evaluation. Convicts who were sentenced to criminal punishment in an original trial applying the second paragraph of article 160 of the Criminal Procedure Law of the People's Republic of China and have not honestly repented their crime while serving their sentence and who continue to not reveal their true names and addresses and there is no way to clarify them through investigation are never to given commutation or parole except where they have special circumstances such as major meritorious contribution.

10. Strictly understand the period for serving sentences after commutation. Correctly understand the minimum periods for service of sentences provided for in laws and judicial interpretations, strictly control the start times for commutations, the period between commutations, and the scope of commutation, and comprehensively consider subsequent commutations on the basis of the circumstances and efficacy of the previous commutation on the convict. The period between commutations and the scope of commutation shall be strictly controlled for convicts given suspended death sentences or life sentences have been granted a commutation to fixed-term imprisonment.

III. Truly strengthen mechanisms for the handling of commutation or parole cases.

11. Give full play the function of trials. People's courts holding in-court proceedings to hear commutation or parole cases shall focus on circumstances such as the convict's actual conduct while serving their sentence and fulfillment of financial judgments in earnestly conducting court investigation. People's procuratorates shall assign personal to appear in court to perform duties and fully express comments. People's courts should emphasize conducting a review of evidence that is in doubt, and when necessary may request that relevant organs or the convict themselves provide explanations, effectively giving play to the role of court proceedings in determining facts and making equitable rulings.

12. Complete systems for witnesses appearing in court to testify. People's courts hearing commutation or parole cases shall notify the police in charge of their corrections, cellmates, persons making objections during the period of public announcement, and other persons who understand the situation, to appear in court to testify. Before in-court proceedings begin, the penal enforcement organ shall provide a list of the witnesses described above, and as needed, the people's court should determine the number of witnesses from that list who will appear in court to testify. After witnesses arrive at court, a detailed questioning of them shall be conducted to fully learn about circumstances such as the convict for whom commutation or parole is proposed's expressions of reform.

13. Effectively use authority for out-of-court investigation and verification. Where people's courts and people's procuratorates have doubts regarding evidence provided by the organs enforcing the criminal punishment such as on the convicts' expressions of remorse and reform and meritorious contribution, then based on the specific case circumstances, they may employ methods such as questioning the convict, questioning witnesses, obtaining related materials, speaking with people's police from the detention facilities, and hearing the comments of the procurators who are stationed in the detention facility and conduct investigation and verification into evidence materials outside of court.

14. Strengthen the functions of the trial organization. Where people's courts hear cases of commutation or parole, the collegial panel shall fully express opinions on circumstances such as whether the convict meets the requirements for commutation or parole, whether the scope of commutation is appropriate, and whether financial judgment have been performed on. When necessary, in major, difficult, or complex cases of commutation or parole, the collegial panel may request the court president make a decision to send the case to the adjudication committee for deliberation, but it shall be sent to a professional judges committee for study before the request.

15. Improve mechanisms for connecting enforcement of financial judgments. After the criminal trial departments of people's courts make a criminal judgment or ruling with financial items, they shall promptly transfer it to be enforced by the department responsible for enforcement. When the organs enforcing the criminal judgment propose commutation or parole of convicts, they may obtain materials related to the enforcement of financial items from the people's court responsible for enforcing the financial judgment, and that people's court shall cooperate. The materials submitted by the organs enforcing the criminal punishment regarding the fulfillment of financial judgment items may serve as a basis for people's courts' findings about the state of enforcement of the convict's financial judgments and for judging whether convicts have the ability to fulfill them.

16. Raise the level of information technology usage. The people's courts, people's procuratorates, and organs for the enforcement of criminal punishments should further increase the level of information technology establishment and usage in commutation or parole, fully using digitized platforms for commutation or parole such as for coordinated case handling, enforcement information, and big data, and utilize methods such as remote video proceedings to continuously improve case handling mechanisms. At the same time, strengthen upgrades and reformation of the digitized commutation or parole case handling platform, and the information network for commutation, parole, and temporary service of sentence outside of prison, to continuously increase the depth and breadth of the use of information technology, so as to increase the quality and efficiency of handling cases of commutation or parole, and to provide technical support for strengthening restraints and oversight on the use of power.

IV. Vigorously strengthen oversight and guidance for commutation or parole cases, as well as work assurances.

17. Continuously improvel internal oversight. The people's courts, people's procuratorates, and penal enforcement organs should further strengthen responsibility for oversight and management, strictly implementing filings and reviews, special inspections, and other institutional mechanisms, to give full play to the gatekeeping role of vertical reviews. The people's courts should strengthen the legal exposition and reasoning in documents, to further increase the credibility of commutation or parole rulings. Promptly order rectification of any problems found, resolutely correct cases that are truly in error in accordance with law, and transfer leads on suspected violations of discipline and law to be addressed by the discipline inspection and supervision departments.

18. Place great importance on external oversight. The people's courts and people's procuratorates should Conscientiously accept oversight from the people's congress at that level and its standing committee, proactively reporting on work and earnestly researching, addressing, and giving prompt feedback on issues of concern to delegates, to continuously advance standardization of commutation or parole work; people's courts and the organs enforcing criminal punishments should accept the legal supervision of the people's procuratorate in accordance with law, earnestly listening to the opinions and recommendations of the procuratorates, supporting the procuratorates in inspection patrols and other work, and fully ensure the procuratorates' performance of its duties; and people's court, people's procuratorates, and the organs enforcing criminal punishments should all actively accept social oversight, actively responsing to the concerns of the masses.

19. Strive to strengthen the guidance of lower levels. People's courts, people's procuratorates, and organs enforcing criminal punishments, that encounter difficult problems in applying the law or other major policy questions in commutation or parole work shall promptly report the higher organs for instruction. The higher-level organs shall correctly grasp the prominent problems encountered by lower-level organs in commutation or parole work, strengthen research and guidance, and promptly collect case examples from their jurisdiction to report up. The Supreme People's Court and Supreme People's Procuratorate shall publish guiding cases when appropriate to provide guidance to people's courts and people's procuratorates handling cases in accordance with law.

20. Truly strengthen work safeguards. The people's courts, people's procuratorates, and organs enforcing criminal punishments shall fully recognize the new trends, new tasks, and new requirements faced in commutation or parole work, and continuously increase communication and coordination in adherence with the principles of each bearing their own responsibility, divisions of work and responsibility, mutual cooperation, and mutual restraint. As required for work, allocate sufficient and strong case handling forces, increase operations training for case handling personnel, increasing their capacity and caliber, establish and complete related institutional mechanisms, and ensure just and high efficacy development of substantialized trial of commutation or parole cases.