Title: Supreme People's Court and Ministry of Justice Measures for Implementing Pilot Project Work on Having Defense Counsel in All Criminal Cases Promulgating Entities: Supreme People's Court, the Ministry of Justice Reference number: Promulgation Date: 2017-10-11 Expiration date: Source of text: http://www.court.gov.cn/fabu-xiangqing-62912.html
These measure are drafted on the basis of the Criminal Procedure Law and other laws and regulations, together with the actual conditions of judicial work, so as to advance the Trial-centered Criminal Procedure System Reform, to strengthen judicial safeguards of human rights, to promote judicial fairness, to give full play to the defense role of lawyers in the trial of criminal cases, and to initiate pilot work on having defense lawyers in the trial phase of all criminal cases.
Article 1: The defendant has the right to receive a defense. The people's courts, and judicial-administrative organs shall ensure that defendants and defense lawyers enjoy the right to defend, and other procedural rights, in accordance with law.
Article 2: In addition to the right to carry out their own defense, defendants' also have the right to retain a lawyer as their defender.
Where defendants have circumstances for which Criminal Procedure Law articles 34 or 267 provide that notice shall be given to have a defense provided, and have not retained a lawyer, the people's court shall notify a legal aid organization to appoint a lawyer to provide them with a defense.
In addition to the provisions of the preceding paragraph, in other first or second-instance trials heard under the ordinary procedures, or cases heard under the trial supervision procedures, where the defendant has not retained a defender, the people's courts shall notify the legal aid institution to appoint a lawyer to provide them a defense.
In cases heard applying the simplified procedures or expedited procedures, where the defendant has no defender, the people's courts shall notify the duty lawyer appointed by the legal aid institution to provide legal assistance.
Before the lawyer appointed by the legal aid institution or retained by the defendant provides the defendant with a defense, the defendant and their close relatives may submit a request for legal assistance, and the people's courts shall notify the duty lawyer appointed by the legal aid institution to provide legal assistance.
Article 3: Within 3 days of accepting a case, people's courts shall inform defendants that they have the rights to retain a defender as well as to receive legal assistance from the duty lawyer. Where the defendant has circumstances provided for in the second or third paragraph of article 2 of these measures, the people's court 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.
Article 4: Where people's courts give notice that a defense is to be provided, they shall send the legal aid institution the defense notice letter, and copies or reproductions of the indictment, judgments, protest appeals,and notices of filing collateral appeals.
The defense notification letter shall indicate the defendants' full name,the charged crimes, their place of detention or residence, the reason for providing legal aid, and the adjudicators' names and contact information, and so forth; where it has already been decided to hold in-court proceedings, the time and place of court proceedings shall be indicated in the defense notification letter.
Article 5: Within 3 days of receiving a defense notification letter or of a decision to grant legal aid being made, the legal aid institution shall confirm the lawyer taking on the case and inform the people's court by letter.
Official legal aid letters issued by legal aid institutions shall indicate the defense lawyer's name, workplace affiliation, and contact information.
Where the content of the people's court's defense notification letter is incomplete, or the defense materials in the notification are incomplete, the legal aid institution shall request the people's court supplement them; and where 15 days before court proceedings begin, the people's court has not supplemented so that all materials provided for in the first paragraph of articles 4 of these measures are complete, and it might impact the defense lawyers' performance of their duties, the legal aid institution may request that the people's court change the date on which proceedings begin.
Article 6: In cases where notification to provide a defense shall be given in accordance with paragraph 2 of article 2 of these Measures, where the defendant refuses the defense of the lawyer appointed by the legal aid institution, the people's court shall clarify the reason for the refusal, and where there is a legitimate reason shall permit it and concurrently inform the defendant that they need to separately retain another defender. Where the defendant has not separately retained a defender, the people's courts shall promptly notify a legal aid institution to appoint a lawyer to provide them a defense.
In cases where notice to provide a defense shall be given in accordance with the third paragraph of article 2 of these Measures, where the defendant persists in defending themselves and refuses the defense of the lawyer appointed by the legal aid institution, the people's court is to permit it, and the legal aid institution shall issue a decision to conclude the legal aid; where a change of lawyer is requested for legitimate reasons, the legal aid institution shall separately appoint a lawyer to provide a defense.
Article 7: Judicial-administrative organs and lawyers associations plan the overall allotment of lawyer resources, and provide assurances[financial] for the carrying out of legal aid efforts. Where the local lawyer resources are insufficient to meet work needs, the judicial-administrative organs may apply to the judicial-administrative organs at the level above to give necessary support.
Areas with capacity may establish a criminal defense lawyer pool to provide support to the implementation of the Pilot Projects on Defense Counsel Covering All Criminal Cases.
Article 8: Establish multi-tiered mechanisms for ensuring funding, strengthen safeguards for legal aid expenses, ensure that funding safeguards are appropriate to the needs of carrying out the pilot Project work on Defense Counsel Covering All Criminal Cases
Judicial-administrative organs are to coordinate with finance departments to rationally determine an appropriate increase in case-handling allowances based on factors such as the costs of handling criminal cases, basic labor fees, service quality, the difficulty of the cases; and promptly pay out the full amount.
Areas with the capacity may initiate government procurement of legal aid services.
Article 9: Explore having the recipients of legal aid share a portion of the legal aid costs.
The requirements, procedures, and portion standards for implementing cost-sharing, are to be determined by the provincial level judicial-administrative organs in consideration of the local economic development level, residents incomes, case-handling allowance standards, and other such factors.
Article 10: The judicial-administrative organs and lawyers associations shall encourage and support lawyers in carrying out criminal defense operations, organizing key senior lawyers to handle legal aid cases; giving play to exceptional lawyers' function as models in criminal cases; organizing specialized trainings in criminal defense; carrying out activities for selection and commendation of exceptional criminal defense lawyers; recommending open selection of exceptional defense lawyers as legislators, judges and procurators; establishing mechanisms for incentivizing lawyers to carry out criminal defense business; and fully invigorating lawyers' participation in criminal defense work.
Article 11: Where the second-instance trial court discovers that the first-instance trial court has not performed its duty to give notice to provide a defense, causing the defendant to not receive a lawyer's defense during the trial period, it shall be held to be a situation meeting the requirements of item (3) of Criminal Procedure Law article 227, and a ruling is to be made to revoke the original judgment and remand to the original people's court for new trial.
Article 12: Where people's courts do not perform their duty to give notification to provide a defense, or legal aid institutions do not perform duties such as appointing a lawyer, causing the defendant to not receive a lawyer's defense during the trial period, the responsibility of the relevant personnel is to be pursued in accordance with law.
Article 13: The people's courts shall lawfully safeguard defense lawyers' right to know, right to make applications, right to appeal, and professional rights such as in regards to meeting clients, reading the case file, collecting evidence, posing questions, arguing evidence, and debating; so as to facilitate the defense lawyers' performance of their duties, including copying reading, copying, and reproducing case file materials.
Article 14: Where people's courts lawfully make major procedural decisions such as to convene a pretrial conference, extend trial, not hold in-court proceedings in a second-instance trial, announce a verdict; they shall promptly inform the defense lawyers in accordance with law. People's courts shall rely upon the China Trial Process Information Disclosure Network to promptly disclose case flow information to the defense lawyers.
Article 15: Where a defense lawyer has put forward a request to read the case file, the peoples courts shall arrange for the defense lawyer to access the files on the spot, where it is not possible to arrange access on the spot, they shall explain the reasons to the defense lawyer and shall arrange for them to be able to access the file within 3 working days after the reasons dissipate, and they must not limit the reasonable duration or number of times that the defense lawyer can access the file. Areas with the capacity may establish platforms for making appointments to read the case file, carry out reading of the case file electronically,and allow the recording or downloading of materials. Where defense attorneys reproduce case file materials, people's courts only charge the cost of the work. The expenses for lawyers appointed by legal aid institution in reproducing case file materials are to be waived or reduced.
Defense lawyers may bring 1 or 2 lawyers' aides to assist in reading the case file, and people's courts shall verify their status as lawyers aides. When lawyers discover that the case file is incomplete or unclear, or other such situations, the people's courts shall promptly arrange for it to be verified or supplemented.
Article 16: Where a defense lawyer applies to the people's court to gather or collect evidence, the people's court shall issue a decision whether it agrees or disagrees with the application within 3 days, and shall notify the defense lawyer. Where the people 's court agrees, it shall promptly gather or collect the relevant evidence. Where the people's court does not agree, it shall explain the reason, and where the defense lawyer requests a written response, it shall explain the reasons in writing.
Article 17: Where the defendant or defense lawyer applies to have the court notify witnesses, expert evaluators, or persons with expert knowledge appear in court to testify, and the court finds there is a need, it shall agree; where the court does not agree, it shall explain the reasons to the defendant and the defense lawyers in writing.
Article 18: The people's courts shall respect the defense lawyer's opinion, and where the defense's lawfully submitted opinions are not adopted, shall make a targeted analysis explaining the grounds for not adopting them.
Article 19: People's courts,judicial-administrative organs, and lawyers associations shall establish and complete quick resolution mechanisms for preserving lawyers practice rights, and unblock remedial channels for preserving lawyers practice rights. The people's courts supervisory departments are responsible for accepting lawyers' complaints. On official websites and in work areas, the people's courts shall publicly disclose the name, phone number, and addresses for accepting letters and petitions of the body accepting complaints, promptly report back on the results of investigations, truly increase timeliness and efficacy of preservation of lawyers practice rights, and ensuring that lawyers practice rights are not encroached upon.
Article 20: Defense lawyers shall persist in having the facts as their basis and the law as their measure; shall perform duties of representation in a lawful, standardized, and trustworthy way; shall be diligent and responsible, and continuously increase the quality and level of defense work; truly preserving the lawful rights and interests of parties, and promoting judicial fairness.
In the trial stage, lawyers receiving an appointment by legal aid institutions to undertake a criminal legal aid case shall meet with the defendant and make a record of the meeting; and shall read the case file and reproduce relevant case file materials.
In cases where the people's court holds in court proceedings, defense lawyers shall do a good job of preparing before court; shall participate in all trial activities; fully debate evidence and statements, express specific and focused defense opinions, and submit written defense opinions to the people's court. In cases where the people's court does hold in-court proceedings, the defense lawyer shall submit written defense opinions within 10 days of receiving the people's courts notification that it will hold courtroom proceedings.
Article 21: Defense lawyers shall obey laws, regulations, practice specifications, and courtroom discipline; they must not incite,instigate or organize defendants' guardians, immediate family members, and so forth to express their demands in unlawful ways; they must not maliciously sensationalize cases, distort cases or give misleading publicity or commentary; they must not violate provisions by disclosing or disseminating information or materials from cases that are not open to the public, or important information and evidence that they learn of through handling the case; they must not violate rules in meeting with defendants, by instigating the defendants to recant confessions; and they must not assist their client in concealing, destroying, fabricating, or colluding evidence; and must not threaten or entice witnesses to give false testimony; and must also not exhibit any other conduct that disrupts judicial proceedings and activities.
Article 22: Judicial administrative organs and lawyers associations shall conduct guidance and supervision of law firms and lawyers carrying out of criminal defense operations, and reward and punish them on the basis of the conditions of law firms' and lawyers' performance of their legal aid obligations.
Legal aid institutions and law firms shall conduct guidance and supervision of defense lawyers carrying out criminal defense activities, to promote defense lawyers' lawful performance of their defense duties.
Where, in the course of handling cases, people's courts discover that defense lawyers have conduct violating professional ethics or practice discipline; they shall promptly submit a judicial recommendation to the judicial-administrative organs and lawyers associations, and concurrently fix and transfer relevant evidence materials and provide necessary assistance. After verification by judicial administrative organs and lawyers associations, the organ that made the recommendation shall be promptly informed of the outcome.
Article 23: People's courts and judicial-administrative organs shall strengthen coordination and do a good job on connectivity work such as transferring requests for duty lawyers or to retain lawyers, and defense notifications; explore establishing an online connection platform, establishing mechanisms for regular periodic consultation and reporting, promptly communicating about situations, assisting in resolving problems, promoting the effective implementation of the Pilot Project Work on Having Defense Counsel in All Criminal Cases.
Article 24: Where these Measures have provisions relevant to handling criminal cases, proceed in accordance with these Measures; where these Measures are silent, follow the provisions of the "Criminal Procedure Law of the People's Republic of China", "P.R.C. Lawyers Law", "Supreme People's Court Interpretation on the Application of the 'Criminal Procedure Law of the People's Republic of China'", "Legal Aid Regulations", "Provisions on Procedures for Handling Legal Aid Cases", "Provisions on Criminal Procedure Legal Aid Work", "Provisions on Protecting Lawyers' Practice Rights in Accordance With Law", and other such laws and regulations, judicial interpretations, rules, and normative documents.
Article 25: These Measures take provisional effect upon issuance for one year.
Article 26: These measures are to be piloted in Beijing, Shanghai, Zhejiang, Anhui, Henan, Guangdong, Sichuan, Shaanxi Province (directly governed municipalities). Pilot provinces (directly governed municipalities) may carry out pilot efforts throughout the province or in selected areas.