Title: Implementation Opinions of the Supreme People's Court on Comprehensively Advancing the Trial-centered Criminal Procedure System Promulgating Entities: Supreme People's Court Reference number: Legal Release (2017) No. 5 Promulgation Date: 2017/2/17 Expiration date: Source of text: http://www.chinacourt.org/law/detail/2017/02/id/149196.shtml
To the High People's Courts of all provinces, autonomous regions, and directly governed municipalities; the Military Court of the People's Liberation Army; the Production and Construction Corps branch of the High People's Court of the Xinjiang Uyghur Autonomous Region; all local intermediate people's courts nationwide; all military courts of major entities; and all intermediate courts of Xinjiang Production and Construction Corps:
This court has drafted Implementation Opinions on Comprehensively Advancing the Trial-centered Criminal Procedure System (the opinions) in order to thoroughly implement the Opinions of the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, State Security Bureau, and Ministry of Justice on Advancing the Reform of the Trial-centered Criminal Procedure System. The opinions are hereby issued to you. Please consult the following in the course of your trial work and implement accordingly.
The following requirements are put forward so as to better put the 'Implementation Opinions' into trial practice:
1. Fully recognize the meaning of reform, and clarify the direction of reform. Advancing the trial-centered criminal procedure reform was a major decision of the 18th Party Committee's fourth plenary session, is a requirement of adhering to strict administration of justice and ensuring fairness is criminal justice, is a necessary requirement of improving judicial safeguards for human rights, and manifests central authorities' scientific understanding and correct grasp of the nature and rules of justice. People's courts at all levels should fully recognize the major significance of the reforms, correctly grasp the spirit of the reforms, and take hold of the implementation of each piece of the reform measures. Full play should be given to the role and function of trial procedures, to ensure that case facts and evidence in investigations and review for prosecution can withstand legal scrutiny, to realize substantive in case judgments through procedural justice in courtroom procedures, and increase judicial credibility.
2.Strengthen organizational leadership and coordination, ensuring the reforms achieve success. Advancing the trial-centered system of criminal procedure reforms is closely tied to the overall work of politics and law; all levels of people's court should closely rely on the leadership of party committees and the supervision of people's congresses, closely communicate and coordinate with other political and legal organs, and ensure that every item of the reforms is advanced and truly put in place. The High People's Courts should put great emphasis on establishing leadership groups with primary responsibility for leadership, unifying leadership of reform efforts, strengthening leadership of lower levels, and drafting specific and usable implementation plans, to steadfastly advance the reforms efforts in that jurisdiction.
3. Emphasize institutional exploration, and promptly summarize reform experiences. During the reform process, the rules of criminal procedure should be followed, handling the punishment of crimes and protection of rights, substantive and procedural justice, judicial fairness and judicial efficiency, mutual cooperation and mutual restraints, and other such relationships, to ensure the reforms' steady progress. The reform of making trials substantive should be central, striving to advance reforms of the trial system with the key points being fortifying witnesses, evaluators, and investigators' appear in court to testify and lawyers' defense. New situations, new issues, and new experiences from exploration encountered in the course of implementation should be earnestly summarized and promptly reported up to the Supreme People's Court.
Notice is hereby given.
Supreme People's Court
February 17, 2017
The following Opinions on the people's courts comprehensive advancement of trial-centered reforms of the criminal procedure systema re put forward in accordance with the provisions of law combined with actual trial practice experience, so as to implement the "Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice Opinions on Advancing the Trial-centered Reforms of the Criminal Procedure System", to ensure that the guily receive just punishment and the innocent are not prosecuted, and to realize justice:
I. Uphold the principal of the strict administration of justice, and build up the concept of judgment in accordance with law
1. Adhere to the principle of evidence-based judgments, the verification of facts must have evidence as its basis. Emphasize evidence and investigatory research, and don't lightly credit confessions; case facts must not be verified where there is no evidence.
2. Adhere to the principle of excluding illegal evidence, people must not be compelled to affirm their own guilt. Illegal evidence identified through review shall be excluded in accordance with law, and must not be used as the basis of a verdict.
3. Adhere to the principle of not convicting where the case is in doubt, so that determinations that the defendant is guilty must meet the standard of proof that the facts of the crime are clear, the evidence is credible and sufficient. Judgments that violate the law must not be made in response to stirred-up public opinion, parties petitioning and causing a commotion, or other such pressures.
4. Adhere to the principle of procedural justice, realizing substantive justice in case judgments through procedural justice in court trials. Give play to the decisive role of courtroom proceedings in verifying evidence, preserving procedural rights, and making fair rulings; ensuring that evidence for the case is presented in the courtroom, the case facts are affirmed in the courtroom, prosecution and defense opinions are expressed in the courtroom, and the results of judgments are formed in the courtroom.
II. Standardize pre-trial preparation procedures, ensuring that court hearings are focussed
5. People's courts may convene a pretrial conference in cases such as where the defendant or his defender apply for the exclusion of illegal evidence, where the amount of evidentiary materials is quite large, where the case is major or complicated, or has major social impact.
Pretrial conferences are conducted in the courtroom or other case-handling venues, are presided over by adjudicators, and participated in by the prosecution and defense; when necessary, the defendant may be notified to be attend.
6. People's courts may organize presentation of evidence by the prosecution and defense at the pretrial conference, may hear the prosecution and defense's comments on the case evidence, and tease out evidence in contention. Simplified presentation and examination may be made at court hearings for evidence that the prosecution and defense did not dispute at the pretrial conference.
During the pretrial conference, people's courts may hear the prosecution and defense opinions on issues related to trial, may question the prosecution and defense about whether they will make applications or objections, and summarize the key points of contention between the parties. For matters on which the prosecution and defense have no dispute or have reached consensus on, simplified hearings may be conducted at court.
Where the injured party has raised an attached civil lawsuit, mediation may be conducted at the pretrial conference.
7. Where the prosecution or defense submit applications or objections on matters such as jurisdiction, recusal, or the list of witnesses to appear in court, that might lead to a hearings' adjournment, the people's courts may handle the matters in accordance with law at the pretrial conference, ensuring that courtroom hearings are focused and sustained.
As to situations where a case's defendant or defender applies for the exclusion of illegal evidence, the people's courts may review the situation at the pretrial conference and hear comments. The people's procuratorate may decide to withdraw the relevant evidence; and evidence that is withdrawn must not be presented in court absent new reasoning. The defendant or his defenders may withdraw applications for the exclusion of illegal evidence; after the withdrawal of the application, they must not again submit an application for the exclusion of the relevant evidence, absent new leads or materials.
8. After people's courts hear the opinions of the prosecution and defense on case facts and evidence at the pretrial conference, they may suggest that the people's procuratorate supplement investigation or withdraw the prosecution, where it is clear that the facts are unclear or the evidence is insufficient.
In cases where the people's courts recommend withdrawing a prosecution at the pretrial conference, but the people's procuratorate does not agree, the people's court will ordinarily not approve withdrawal of the prosecution after opening court for trial, where there are no new facts or reasons.
9. Where the prosecution and defense reach a consensus opinion on relevant matters at the pretrial conference, but submit objections during hearings, they shall explain the reason.
A record shall be made when convening a pretrial conference, and the participants should sign it after verifying it.
Adjudicators shall draft pretrial conference reports, explaining the basic circumstances of the pretrial conference, the outcomes of procedural maters handled; and key areas of dispute between the prosecution and defense, as well as matters on which they have reached a consensus opinion.
10. In cases that convened a pretrial conference, the court shall announce the primary content of the pretrial conference report before beginning court investigation, connecting the pretrial conference and hearing.
III. Standardize ordinary hearing procedures, ensuring lawful and just trials
Evidence showing that the defendant is guilty or not-guilty, or that the crime is minor or serious, shall all be presented at court, to protect the rights of the prosecution and defense to lawfully debate evidence.
Evidence impacting the verdict or sentencing that is key evidence, or which the prosecution and defense have a dispute over, is ordinarily to be independently debated.
12. The court shall follow the legally prescribed procedures to review, verify, and affirm evidence. Evidence that has not been presented at court, identified, examined or otherwise verified through courtroom investigation procedures must not serve as the basis of a conviction.
13. Where debate at court of evidence gathered by employing technical investigation measures might endanger relevant persons' physical safety or cause other serious consequences, protective measures such as not disclosing the relevant persons' identities or not disclosing the technical investigation measures and methods, shall be employed.。
Where courts decide to conduct a review of technical investigation evidence outside of court, they may call the prosecutor, investigators, and defense attorney to attend. Persons in attendance shall perform confidentiality obligations.
14. Where the prosecution and defense have objections to a witness's testimony, and the people's court finds that the witness testimony has a major bearing on the case verdict or sentencing, the witness shall appear in court to testify. Where the prosecution and defense apply for witnesses to appear in court, after the people's court notifies the witness to appear in court, the applicant party shall be responsible for coordinating that witness's appearance at court.
Where, without just cause, witnesses do not appear in court to testify, the people's courts may compel witness appearances when necessary.
Remote video testimony may be carried out based on case conditions.
15. Where the prosecution or defense objects to evaluation opinions and the people's courts find that evaluators need to appear in court, they shall notify the evaluators to appear in court to testify.
16. Where a witness, evaluator, or victim faces threats to his physical safety, or that of his close relatives, as a result of testifying, the people's court shall adopt protective measures such as not making public their real name, address, workplace, or contact information, or not revealing their appearance or true voice, and so forth. When necessary, it may be recommended that related organs adopt specialized protective measures.
People's courts shall establish special payment mechanisms for subsidizing witness appearances in court to testify, giving subsidies for transportation, lodging, food, and other reasonable expenses incurred by witnesses to appear in court and testify.
17.The people's courts shall lawfully perform duties to assign and notify defense, ensuring that defendants receive legal aid in accordance with law.
Cooperate with relevant departments to gradually expand the scope of legal aid, completing systems for legal aid duty lawyers, and provide office space and necessary work conditions to duty lawyers based in the people's courts.
18. The court shall lawfully ensure the procedural rights of the prosecution and defense such as to ask questions, examine evidence and debate at court. The court shall handle applications or objections submitted by the prosecution and defense at court.
The court may summarize the points of contention between the prosecution and defense during the trial procedures, leading the prosecution and defense to carry out debate on substantive issues affecting the verdict and sentencing. Where the prosecution and defense's statements are irrelevant to the case, repetitive, or disrupt courtroom order, the court shall make reminders and stop them.
19. The court shall fully hear the sentencing recommendations and opinions of the prosecution and defense, and standardize sentences based on the facts and circumstances clarified through inspection, and with reference to the guiding opinion on sentence, ensuring the justness of sentences.
20. The court shall strengthen explanation of reasoning in rulings, using judgment documents to present trial proceedings. It shall explain the reasons for acceptance or rejecting opinions and disputes by the prosecution and defense. It shall explain the reasoning and basis of judgments on substantive issues such as evidence admissibility, findings of facts, verdicts and sentencing.
IV. Improve rules for verification of evidence to truly prevent unjust, false and wrongfully decided cases.
21. Testimonial evidence gathered through unlawful methods such as the extortion of confessions by torture, violence or threats, shall be excluded.
Where the gathering of physical or documentary evidence is not in accordance with legally prescribed procedures, might seriously influence judicial fairness, and cannot be corrected or reasonably explained; the relevant evidence shall be excluded.
22. When defendants are questioned by procurators about the legality of interrogations, before the completion of the investigation, clearly express that there was no extortion of confessions by torture or circumstances of illegal evidence gathering, but submit another application for the exclusion of illegal evidence during the trial phase, the court may reject the application where, upon review, it has no doubt as to the legality of the evidence collection.
Where procurators have not conducted a review of the lawfullness of the interrogation before the conclusion of investigation, or have not made a simultaneous audio or visual recording of the entire review process, and the defendant makes an application for the exclusion of illegal evidence at the trial phase, the people's courts shall conduct an investigation in accordance with law where, upon review, they have questions about the legality of evidence gathering.
23. Where procurators have not conducted a review of the lawfullness of the interrogation before the conclusion of investigation, or have not made a simultaneous audio or visual recording of the entire review process, and the defendant makes an application for the exclusion of illegal evidence at the trial phase, the people's courts shall conduct an investigation in accordance with law where, upon review, they have questions about the legality of evidence gathering. However, in order to prevent excessive delay of the trial, the court may also conduct the investigation before the end of court investigation.
24. Where the court conducts an investigation of the legality of evidence gathering, it shall emphasize review of audio or visual records of the interrogation. Where there are substantive differences in the content of interrogation records and audio/visual recordings of interrogations, the audio/visual recordings are controlling.
In cases where the law provided that the course of interrogation shall be recorded, but where the public prosecutor has not provided the A/V recording of the interrogation, or where the interrogation recording has selective recording, editing, deletions, or other such circumstances, and the available evidence cannot rule out illegal evidence gathering, the relevant confessions shall be excluded.
25. Where the available evidence cannot prove the legality of evidence gathering, the people's courts may notify the relevant investigators to appear in court and explain the circumstances. Investigators' signing or affixing an official seal to explanatory materials must not replace investigators appearance at court.
Where upon notification by the people's courts, investigators do not appear at court to explain the circumstances, and the illegal gathering of evidence cannot be excluded, the relevant evidence shall be excluded.
26. After the court conducts an investigation on the legality of evidence gathering, it shall make a decision at court on whether or not to exclude the evidence. When necessary, it may announce an adjournment, and have the collegial panel deliberate or submit it to the adjudication committee for discussion, and then convene court to announce the decision.
Before the court makes a decision on whether to exclude the relevant evidence, that evidence must not be read at court or debated.
27. Where physical or documentary evidence collected through means such as inspections, examinations or searches, has not been determined to be relevant to the case facts through identifications, evaluations or other such means, it must not serve as the basis of a verdict.
28. Where the procedures or methods for gathering evidence are tarnished, seriously impacting the authenticity of the evidence, and it cannot be supplemented or a reasonable explanation cannot be made, the relevant evidence must not be the basis of a case verdict.
29. Where witnesses do not appear in court to testify and there is no way to confirm the veracity of their pretrial testimony, it must not be the basis of a verdict. Where a witness's testimony in court contradicts his pretrial testimony, and the witness is able to give a reasonable explanation and has relevant corroborating evidence, his courtroom testimony may be adopted; if he cannot make a reasonable explanation and there is evidence corroborating his prior testimony, the prior testimony may be adopted.
Where upon notice from the people's court, evaluators refuse to appear in court to testify, the evaluation opinion must not be the basis of the verdict.
30. People's courts making a judgment of guilty, shall bring together all evidence from the case to exclude reasonable doubt as to facts for conviction.
A ruling of not-guilty because the alleged crime could not be established due to insufficient evidence shall be issued where the evidence is insufficient to verify that the defendant is guilty. Where the evidence for conviction is credible and sufficient but sentencing evidence is in question, it shall be affirmed in a way beneficial to the defendant.
V. Improve mechanisms for sorting [cases] according to complexity, optimizing the deployment of judicial resources.
31. Advance the expedited procedures reforms, gradually expanding the expedited procedures' scope of application and improving their operational mechanisms.
In minor cases where the defendant admits guilt, explore mechanisms for carrying out quick trials and simplified judgments.
32. Advance reforms of the system of leniency for those who admit their crimes and accept punishment; in cases where the defendants admit guilt that are applying the expedited procedures, summary procedures, or simplified ordinary procedures at trial, the court shall inform the defendants or the procedural rights they enjoy, shall review the voluntariness and truthfulness of the defendants' admission of guilt, and shall confirm that the defendant understands the nature and legal consequences of their admission of guilt.
Where the court confirms that the defendants voluntarily admit guilt and accept punishment, and consent to using simplified trial procedures, it shall implement the legal system for lenient punishment. Where defendants do not admit guilt at court or do not consent to apply simplified trial procedures, ordinary procedures shall be applied for trial.
33. Cases heard applying the expedited procedures shall announce the verdict at court. Cases heard applying simplified procedures shall generally announce the verdict at court. In cases heard applying the ordinary procedures, gradually increase the rate at which judgments are announced at court.