Ten Opinions on Protecting Lawyers’ Practice Rights in Accordance With Law

by China Law Translate | 2023/03/03 10:56 AM

Promulgation Date: 2023-3-2
Title: Ten Opinions on Protecting Lawyers’ Practice Rights in Accordance With Law
Document Number:
Expiration date: 
Promulgating Entities: Supreme People's Procuratorate, Ministry of Justice, All China Lawyers Association
Source of text: http://zw.china.com.cn/2023-03/03/content_85139879.html

In order to throroughly implement the spirit of the 20th Party Congress, comprehensively implement Xi Jinping thought on the rule of law, earnestly implement the “Party Central Committee Opinions on Strengthening Procuratorate’s Legal Supervision Work in the New Era”, lawfully safeguard lawyers’ rights in practice, and further facilitate lawyer’s client meetings, reading the case file, and hearing opinions, the following work opinions have been drafted on the basis of the Criminal Procedure Law of the PRC, the PRC Criminal Law, and The People’s Procuratorate Rules of Criminal Procedure.

I. Strengthen the Establishment of a Reception Platform for Lawyers

The people’s procuratorate’s 12309 service center is to uniformly receive all case materials submitted from lawyers, centralizing the acceptance of lawyers' submissions on matters such as reading case files, meeting with the persons handling cases, and collecting evidence, to facilitate lawyers’ practice. Lawyers may directly dial the 12309 procuratorate service hotline, log in to the 12309 China Procuratorate website, or go in person to the 12309 procuratorate service center to submit the matters above. The people's procuratorate shall handle them promptly and inform the lawyers of the handling or its outcome, making it so that every matter is responded to.

2. Fully Ensure Lawyers’ Right to Know about Important Procedural Matters in Handling Cases

Where people’s procuratorates handling public security organs’ requests to approve arrest make important procedural decisions such as to return the case for supplemental investigation, change jurisdiction, or initiate a public prosecution, they shall promptly inform the defense lawyers through methods such as telephone, text message, or mobile app information pushing. The names of the persons handling the case and their contact information should also be provided to the defense lawyers.

3. Fully Safeguard Lawyers’ Rights to Access the Case Files

After lawyers submit requests to read the case files, the people's procuratorate shall normally provide an electronic file to facilitate lawyers’ reading and reproduction. Where lawyers raise reading the hard-copy file, and the people’s procuratorate finds this should be supported after learning of the specific reasons, they shall promptly make arrangements. All levels of people's procuratorate shall further regulate standards for producing electronic files, improve production efficiency, and ensure that the electronic files are complete, clear, and accurate, to facilitate reading. Where conditions for reading the case file through the internet are met, the handling and response to lawyers' requests for internet access to the case file shall be completed within 3 days.

4. Fully Ensure Lawyer’s Right to Give Feedback and Comments

People’s procuratorates that are hearing lawyers’ comments shall adhere to the principle of “meeting whenever possible, and hearing what should be heard”, fully ensuring lawyers’ rights to give feedback and comments to the case handling departments. Where people's procuratorates plan to make a decision or approve the arrest of a criminal suspect, they shall solicit the defense lawyers’ comments before making the decision. Where lawyers’ comments will be heard in person, it shall be done by procurators or procurator assistants in designated lawyer meeting rooms with notetakers appointed to fully record the lawyers’ comments and the work process. Where it is difficult to hear lawyers’ comments in person, it may be conducted in writing, by phone, or by video, and this is to be recorded in the case file.

5. Promptly Give Feedback to Lawyers on the Acceptance of their Comments

The people’s procuratorates shall fully review the comments submitted by lawyers on case-handling efforts, and comments that have a factual and legal basis shall be adopted. Before the case-handling is completed, feedback is to be given to the lawyers on the acceptance of comments, or the reasons for not accepting them, through meetings, writing, phone, video, or other means, and this is to be recorded in the case file. When drafting legal documents, the lawyers’ relevant information is to be stated, and the lawyers’ comments and their acceptance by the people’s procuratorate, or the reasons for not accepting them, is to be indicated.

6. Earnestly Hear Lawyers’ Comments in Plea Cases

People’s procuratorates handling plea cases shall earnestly hear the comments of the defense lawyers or duty lawyers. Where a defense lawyer has already been retained, that defense lawyer shall be notified in advance to ensure that they are present when the criminal suspect signs the plea affidavit and have clear comments, and a duty lawyer must not be arranged as an authenticating witness to bypass the defense lawyer. Where, for objective reasons, the defense lawyers are unable to be present, they may witness [the signing] by means such as remote video; and where this is truly not convenient, a duty lawyer may be arranged to fulfill the duty with the consent of the defense lawyers.

7. Strengthen Oversight and Safeguards for Lawyers Rights to Meet Clients

People’s procuratorates shall publish the name and office phone number of the procuratorate personnel who are based in the custodial facility in lawyers’ meeting areas in detention centers, prisons, and so forth. Where lawyers propose meetings with detained criminal suspects, defendants, or convicts, and feel that they have been obstructed by the staff of relevant departments, they may submit an accusation appeal to the people’s procuratorate. Where the procuratorate personnel based in custodial facilities can handle obstructions of lawyers’ client meetings by the staff of relevant departments on the spot, they shall promptly oversee the relevant departments’ ensuring lawyers’ practice right to meetings; where it cannot be addressed on the spot, they shall complete the review and handling within five working days. Where after review it is found that the conditions for a meeting are not met, the situation should be promptly explained to the lawyer to gain their understanding. Procuratorate offices based in custodial facilities shall establish prompt and clear mechanisms for communication and exchanges with the detention center or prison, to promote the resolution of problems with lawyers’ meeting their clients.

8. Clear Remedial Channels for Rights

Where lawyers feel that the people's procuratorates and their staffs have not strictly enforced these Opinions, they may submit an accusation appeal to the relevant procuratorate or to the procuratorate at the level above, and may also report it to the lawyers association to which they belong, and the lawyers association should promptly transfer leads on the issue to the people's procuratorate. After people’s procuratorates receive a related accusation appeal or leads on an issue, they shall accept it as an oversight case of obstruction of lawyers’ practice rights as soon as possible, address it within 10 days, and respond to the lawyers in writing. Where the situation raised by lawyers is urgent and accusation appeals need to be addressed as quickly as possible, the people's procuratorates shall normally handle them within three working days and respond to the lawyers. The All China Lawyers Association Center for the Protection of Lawyers’ Practice Rights is to publish local contact numbers and contact persons’ names, facilitating lawyers’ inquiries and outreach.

9. Strictly Implement Responsibility

The people's procuratorates shall include the status of efforts to lawfully protect lawyers’ practice rights in procuratorate staff’s performance evaluations, leading procuratorate staff to fully perform the judicial responsibility of safeguarding lawyers’ practice rights. Where people's procuratorates find that there is merit to lawyers’ accusation appeals after inverstigating and verifying them, they shall promptly notify the relevant department of the corresponding procuratorate or the lower-level people's procuratorate to make corrections. Where the relevant department of that procuratorate or the lower-level procuratorate does not make corrections or does so inadequately, promptly learn about the situation and report or transfer the related leads. Where procuratorate staff’s violation of their duties by obstructing lawyers’ lawful practice rights needs to be pursued for judicial responsibility, it shall be strictly handled in accordance with the Regulations on the People’s Procuratorates’ Pursuit of Judicial Responsibility.

10. Strengthen Communication and Coordination

People's procuratorates, judicial-administrative organs, and lawyers associations shall strengthen communication and coordination, truly giving play to the role of rapid joint disposition mechanisms for protecting lawyers’ practice rights, promptly discovering and resolving issues where lawyers' lawful exercise of their practice rights cannot be ensured, and completing related organizations, coordination, and implementation work. All levels of local people's procuratorate, judicial-administrative organs, and lawyers' associations are to convene a joint conference twice annually to report to each other on efforts to protect lawyers’ lawful practice rights. Eastablish and complete a joint training mechanism for procurators and lawyers, regularly organizing and carrying out group trainings of procurators and lawyers together. Focus on the protection of lawyers' practice rights and interaction between procurators and lawyers in carrying out special research efforts, and continuously increase the level to which safeguards for lawyers’ lawful practice rights are brought under the law.

 

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