Press "Enter" to skip to content

Provisions on Efforts to Review and Assess the Necessity of Detention

Promulgation Date: 2023-11-30
Title: People's procuratorate and Public Security Organs' Provisions on Efforts to Review and Assess the Necessity of Detention 
Document Number:
Expiration date: 
Promulgating Entities: Supreme People's Procuratorate,  Ministry of Public Security
Source of text: https://www.spp.gov.cn/xwfbh/wsfbt/202312/t20231213_636603.shtml#2 

These Provisions are drafted on the basis of the PRC Criminal Procedure Law, The People's Procuratorate Rules of Criminal Procedure, and the Provisions on Public Security Organs' Procedures for Handling Criminal Cases, so as to strengthen efforts on the review and assessment of the necessity of detention for criminal suspects and defendants, to regulate the use of custodial compulsory measures, to protect the lawful rights and interests of criminal suspects and defendants in accordance with law, and to ensure that criminal procedure activities proceed smoothly.

Article 1: After the arrest of a criminal suspect or defendant, the people's procuratorate shall review the necessity of detention in accordance with law. Where it is not necessary to continue detention, a recommendation shall be made to the public security organs and people's court that they be released or that compulsory measures be modified. In cases at the review for prosecution stage, a decision shall be promptly made regarding release or modification of compulsory measures.

Where, before the public security organs transfer cases to be reviewed for prosecution, it is discovered that arrest measures were improperly employed, or where criminal suspects, their legal representatives, relatives, defenders, or duty lawyers apply to modify the detention compulsory measures, an assessment shall be made of the necessity of detention. Where it is not necessary to continue detention, a decision shall be promptly made regarding release or modification of compulsory measures.

Article 2: People's procuratorates and public security organs carrying out efforts on the review and assessment of the necessity of detention shall divide labor and responsibilities, cooperate with each other, and restrain each other, so as to ensure the proper and effective enforcement of the law.

Article 3: People's procuratorates and public security organs shall lawfully, promptly, and regularly carry out efforts on the review and assessment of the necessity of detention, fully implement the criminal policy of blending leniency and severity, correctly understand the requirements for applying detention measures, and strictly protecting case-handling secrets, state secrets, commercial secrets, and personal privacy.

People's procuratorates conducting reviews of the necessity of detention must not abuse the right to make recommendations to influence the lawful conduct of criminal proceedings.

Article 4: In people's procuratorates carrying out reviews of the necessity of detention in accordance with law, the departments for arrest and prosecution are to be responsible. The departments responsible for criminal enforcement, accusations and appeals, case management, ad procuratorate technology shall assist.

In public security organs conducting assessments of the necessity of detention, the case-handling departments are to be responsible, and the legal departments are to uniformly review.

Where criminal suspects or defendants are detained in other areas, the people's procuratorate and public security organs for the areas where they are detained shall cooperate.

Article 5: The people's procuratorates and public security organs shall fully safeguard criminal suspects’ or defendants’ procedural rights, and safeguard the lawful rights and interests of victims.

When public security organs enforce arrest decisions, they shall notify the person being arrested that they have the right to apply to the case-handling organs for a modification of compulsory measures and to apply to the people's procuratorate for a review of the necessity of detention.

Article 6: During the course of criminal prosecutions, the people's procuratorates may proactively conduct reviews of the necessity of detention for arrested criminal suspects or defendants based on their authority.

In accordance with their authority, people’s procuratorates shall carry out a single review of the necessity of detention for currently detained criminal suspects who might be senteced a criminal punishment of not more than 3 years where the necessity of detention was not reviewed in the review for prosecution phase.

Based on case investigations, the public security organs may conduct assessments on whether it is necessary to continue employing custodial coercive measures for criminal suspects who have been arrested.

Article 7: Where people’s procuratorates and public security organs discover that criminal suspects or defendants might have any of the following situations, they shall immediately carry out a review and assessment of the necessity of detention, and promptly make a review and assessment decision:

(1) Continued detention is improper for reasons such as their suffering from a serious illness and being unable to care for themselves;

(2) Pregnant women or those currently nursing their own infant ;

(3) Sole care takers of minors;

(4) Sole supporters of persons unable to care for themselves;

(5) Where continued detention of the criminal suspect or defendant will exceed the period of detention they might be lawfully sentenced to;

(6) Where a change occurs in the case facts or situation, or to laws and judicial interpretations, that might lead to the criminal suspect or defendant being sentenced to short-term detention, controlled release, or the independent use of a supplementary punishment; have punishment waived; or being found not guilty;

(7) Where a major change occurs in the case evidence, that might lead to there being no evidence showing a crime was committed or that the criminal conduct was not by the criminal suspect or defendants;

(8) There are other situations where employing custodial compulsory measures against criminal suspects or defendants is improper, and they shall be promptly revoked or modified.

After juvenile criminal suspects or defendants are arrested, the people's procuratorates and public security organs shall do a good job of follow-up guidance and reform, and where they discover that not detaining a minor in custody would not endanger society, they shall promptly initiate efforts to review and assess the necessity of detention, and make a decision on lifting or modification in accordance with law.

Article 8: Criminal suspects or defendants, and their legal representatives, close relatives, defenders, or duty lawyers, may request that the people’s procuratorate conduct a review of the necessity of detention. When the applicants submit an application, they shall explain the reason that it is not necessary to continue detention, and where there is relevant evidence or other materials, they shall be provided.

Where, based on Article 97 of the Criminal Procedure Law, the applicants submit an application to modify custodial compulsory measures to the people's procuratorates and public security organs, the people's procuratorates and public security organs shall conduct a review and assessment of the necessity of detention in accordance with these provisions.

Article 9: Where after review and assessment in accordance with law, the people's procuratorate and public security organs find that is is necessary to continue detention and will not lift or modify it, and the criminal suspects or defendants, their legal representative, relatives, defenders, or duty lawyer apply again without providing new materials or having a new reason, the people's procuratorates and public security organs may opt not to carry out further efforts to review and assess the necessity of detention, and notify the applicant.

The restriction in the preceding paragraph does not apply to applications for modification where extensions to investigative detention, recalculation of the investigative detention period, or the return of cases for supplemental investigation and recalculation of the period of review for prosecution that have been already been approved in accordance with law cause the extension of detention for detained persons.

Article 10: Where the department responsible for handling accusations and complaints or case management department for the corresponding people's procuratorate at the same level as the case-handling organ receives an application for a review of the necessity of detention, they shall transfer the application, leads, and evidence materials to that procuratorate’s department for arrest and prosecution that day. Where the departments responsible for criminal enforcement receive relevant materials or discover that it isn’t necessary to continue detention, they shall promptly transfer the relevant materials and opinions to the department responsible for arrests and prosecution.

Where other relevant departments of the public security organs responsible for case handling receive applications for modification, they shall transfer them to the case-handling department that day.

Where other people's procuratorates or public security organs receive applications, they shall notify the applicants to apply to the people's procuratorate or public security organ responsible for handling the case, or, within 2 days, transfer the application materials to the people's procuratorate or public security organ responsible for handling the case and notify the applicant.

Article 11: Where detention centers discover in the course of their work that detained personnel are not suitable for detention, they shall promptly request that the case-handling organ modify the compulsory measures in accordance with law.

Where detention centers recommend that the people's procuratorate carry out a review of the necessity of detention, and attach evidence materials showing the physical condition of the detained person.

After people's procuratorates receive the detention centers’ recommendations, they shall immediately carry out a review of the necessity of detention and promptly make a review decision in accordance with law.

Article 12: The carrying out of efforts to review or assess the necessity of detention shall fully review factors such as the facts of the crime involving the criminal suspects or defendants. their subjective malice, expressions of remorse, case progress, possible sentences, physical state, whether they pose a threat to society, and the necessity of continuing detention; specifically including the following:

(1) The criminal suspects or defendants’ basic circumstances, the charges alleged and the nature and circumstances of the crime, and the sentence that might be given;

(2) The stage that the case is at, progress in collecting evidence and investigation, whether the facts of the crime are essentially clear, whether the evidence has been secured, the criminal suspect or defendant’s admission of guilt, and whether the confession is consistent;

(3) Whether the criminal suspect or defendant has a criminal record of misconduct, recidivism, or other circumstances calling for a heavier penalty;

(4) The means by which the criminal suspects or defendants were brought in, whether they were listed as wanted, or whether they were arrested for violating the provisions of release on guarantee or residential surveillance;

(5) Whether there are accomplices that have not been brought in, and whether there is the possibility of collusion;

(6) Mitigating circumstances such as where the criminal suspects or defendants have admitted guilt and accepted punishment (plead), turned themselves in, come clean, made a meritorious contribution, actively returned stolen goods, obtained forgiveness, reached a settlement with the victims, actively performed obligations for compensation, or provided a guarantee;

(7) the criminal suspect or defendant’s physical health;

(8) The criminal suspect or defendant’s conduct while in detention;

(9) Whether the criminal suspects or defendants meet the conditions for release on guarantee or residential surveillance;

(10) Whether the detention of the criminal suspects or defendants meets the legal requirements and whether it might exceed the sentence that might be given in law;

(11) Whether the criminal suspects or defendants have circumstances for which the case might be revoked, not prosecuted, given a sentence of short-term detention, controlled release, the independent application of a supplemental penalty, a suspended sentence, have the penalty waived, or be found innocent;

(12) Other content related to the review or assessment of the necessity of detention.

Where the criminal suspects or defendants are minors, the review shall emphasize their experience growing up, the reasons for the crime, and whether they have guardian or societal mentorship conditions.

Article 13: The following methods may be employed to carry out of efforts on the review or assessment of the necessity of detention:

(1) Reviewing the grounds and supporting materials showing that the criminal suspect or defendant does not need to be detained;

(2) Hearing the opinions of the criminal suspect or defendant as well as their legal representatives, defenders, or duty lawyers;

(3) Hearing the opinions of the victims, their legal representatives, agent ad litem, relatives, or other relevant personnel to learn about situations of settlement, forgiveness, or compensation;

(4) Hearing the opinions of the public security organs and people’s courts, and, when necessary, reading or reproducing evidence materials from the original case file;

(5) Investigating and checking the health of a criminal suspect or defendant;

(6) Collecting materials from the detention center on the criminal suspect or defendants’ conduct while in detention;

(7) Other means needed to conduct a review or assessment of the necessity of detention.

A record should be made for situations where opinions are heard and attached to the case file together with written opinions and other evidence collected and verified through investigation.

Article 14: The review or assessment of whether it is necessary to continue the detention of criminal suspects or defendants may be done by conducting investigations or quantitative assessments either internally or by entrusting society, and the circumstances of the investigation or assessment are to be a reference in making the review or assessment decision.

Where the criminal suspects or defendants are minors, a psychological assessment may be conducted of the juvenile criminal suspects or defendants with their consent and that or their legal representatives.

The public security organs shall collect and fix evidence showing whether the criminal suspects or defendants pose a threat to society, either proactively or in response to the request of the people's procuratorate.

Article 15: People's procuratorates carrying out reviews of the necessity of detention may organize hearings in accordance with the People’s Procuratorate's Measures on Detention Hearings.

Article 16: Where, after review, the people’s procuratorate finds that the criminal suspects or defendants have any of the following situations, they shall make a recommendation to the public security organs or people's court to life or modify the compulsory measures; and where it is the review for prosecution phase, they shall promptly make a decision to lift or modify the compulsory measures:

(1) A major change occurs in the case evidence and there is no evidence showing a crime was committed or that the criminal conduct was not by the criminal suspect or defendants;

(2) A change occurs in the case facts or circumstances, or in the laws or judicial interpretations, and the criminal suspect or defendant might be sentenced to short-term detention, controlled release, or the independent use of a supplementary punishment; have punishment waived; or be found not guilty;

(3) Continued detention of the criminal suspect or defendant will exceed the period of detention they might be lawfully sentenced to;

(4) Case facts are already basically clear, evidence has been gathered and fixed, and the conditions for release on guarantee or residential surveillance are met;

(5) There are other situations where employing custodial compulsory measures against criminal suspects or defendants is improper, and it shall be promptly released or modified.

Where, after assessment, the public security organs find that the situations above are met, they shall promptly make a decision on release or modification of the compulsory measures.

Article 17: Where, after review, the people’s procuratorate discover that the criminal suspect or defendant has any of the following situations, demonstrates remorse, and not detaining them would not endanger society, a recommendation for to lift or modify the compulsory measures may be made to the public security organs or people’s courts; and where it is the review for prosecution phase, a decision to lift or modify the compulsory measures may be made:

(1) only criminal preparation or aborted crime;

(2) first time offender with a small degree of subjective malice;

(3) was an accomplice or accomplice under duress in a joint offense;

(4) crime of negligence;

(5) unjustified self defense or unjustified necessity defense;

(6) Admits guilt and accepts punishment;

(7) voluntarily and lawfully reached a settlement agreement with the victims or obtained the victims' forgiveness.

(8) already or partially performed obligations for compensation or provided guarantees;

(9) has a serious illness or is unable to care for themselves;

(10) Pregnant women or those currently nursing their own infant ;

(11) Minors or persons already 75 years-old;

(12) Sole care takers of minors;

(13) Is the sole supporter of a person unable to care for themselves;

(14) Might be sentenced to less than one year imprisonment;

(15) Might be given a suspended sentence;

(16) Other situations where not detaining would not pose a threat to society.

Where, after assessment, the public security organs discover the situations above, a decision may be made to lift or modify compulsory measures.

Article 18: Where, upon review or assessment, it is discovered that the criminal suspect or defendant has any of the following circumstances, they will normally not be released or have compulsory measures modified;

(1) they are suspected of crimes endangering national security, terrorist activity crimes, mafia-type organized crimes, major drug crimes, or other crimes seriously endangering society;

(2) they are suspected of serious violent crimes such as intentional homicide, intentional infliction of harm causing serious injuries or death, rape, robbery, kidnapping, arson, detonation of explosives, and the releasing harmful materials;

(3) they are suspected of sexually assaulting minors;

(4) they are suspected of major embezzlement or bribery crimes, or of using their authority to seriously harm the rights of citizens in their persons;

(5) They may be sentenced to 10 years fixed-term imprisonment or more;

(6) they were arrested for violating provisions of release on guarantee or residential surveillance;

(7) they might destroy or fabricate evidence, or disturb witnesses' testimony or collude statements;

(8) they might seek vengeance against the victims, persons who made reports, or accusers;

(9) they plan to commit suicide or escape;

(10) Other situations where the risk to society is larger and it is inappropriate to lift or modify the compulsory measures.

Where the criminal suspects or defendants have any of the situations in the preceding paragraph, but where there would not be a threat to society in not detaining them because of special situations such as serious illness that make continued detention improper; the compulsory measures may be modified to become residential surveillance or release on guarantee.

Article 19: Where the people’s procuratorate receives an application or recommendation to review the necessity of detention during the investigation phase or the trial phase, they shall make a decision on whether or not to make a recommendation to the public security organs and people's court on lifting or modifying within 10 days.

Where the people’s procuratorates receive an application for modification in the review for prosecution phase, or the public security organs receive one in the investigation phase, they shall make a decision within 3 days.

The time used in the course of review related to the evaluation of illness or other special issues that require persons with expert knowledge to be retained, appointed, or recruited to submit reports, or for technical departments to be entrusted to conduct technical review of evidence, as well as for organizing and carrying out hearings and review, is not to be calculated into the time for reviewing the necessity of detention.

Article 20: People’s procuratorates carrying out reviews of the necessity of detention shall complete standardized reports on the review of the necessity of detention, writing out the criminal suspects or defendants’ basis circumstances, the procedural stage, an overview of the case circumstances, the review situation, and the review opinions, and accurately record the relevant information in the procuratorate operations application systems related to arrest and prosecution cases.

Where, in the review for prosecution phase, after the people's procuratorate has initiated the review of the necessity of detention in accordance with their authority, they find that it is necessary to continue detention, they may indicate content related to the necessity of detention in the review report for the review for prosecution case, and do not need to independently draft a report on the review of the necessity of detention.

Public security organs carrying out assessments of the necessity of detention shall have the case-handling department draft a report on the assessment of the necessity of detention, submit opinions on whether there is a necessity for detention, and send it to the legal department for review.

Article 21: Where, upon review, the people's procuratorate finds that it is necessary to release the criminal suspects or defendants or to modify their compulsory measures, in the investigation and trial phases, they shall draft a written standardized recommendation document on the necessity of detention, explaining the grounds and legal basis for not needing to continue detention, and promptly send it to the public security organ or people's court. In the review for prosecution phase, a written notice of the release decision, the release on guarantee decision, or the residential surveillance decision shall be drafted and enforced by the public security organs.

Where the public security organs find during the investigation phase that it is necessary to release criminal suspects or modify their compulsory procedures, they shall draft a written release notice, release on guarantee decision, or residential surveillance decision, and concurrently inform the people's procuratorate that approved the arrest of the handling.

Article 22: After the people's procuratorate submits a recommendation on the necessity of detention to the public security organs and the people's courts, they shall follow up on its handling by the public security organs and the people's court.

The public security organs and people’s courts shall inform the people’s procuratorate of the matter's disposition within ten days of receiving the recommendation. Where it is found that continued detention is necessary, the reasons shall be explained.

Where the public security organs and people’s courts do not inform the people’s procuratorate of the matter's disposition within ten days of receiving the recommendation, the people's procuratorate shall submit an oversight and correction opinion in accordance with law.

Article 23: Where reviews of the necessity of detention are conducted in accordance with applications or detention center recommendations, after they are completed by the people's procuratorate, they shall draft a written notice on the outcome of the review and promptly notify the applicants or detention center of the circumstances of the recommendation or handling by the public security organs or people's courts, or a review opinion on the necessity of continuing detention.

Where, after public security organs conduct an assessment of the necessity of continuing detention in response to an application, they find that it is necessary to continue detention and do not agree to modify compulsory measures, they shall notify the applicants in writing and explain the reasons.

Article 24: Where after a review or assessment in response to an application, the criminal suspects or defendants have compulsory measures modified, the public security organs shall strengthen oversight and management of the person now under release on guarantee or residential surveillance; the people's procuratorate shall strengthen oversight of the enforcement of release on guarantee or residential surveillance.

Where it is discovered in the investigation phase that the criminal suspect has seriously violated the provisions on release on guarantee or residential surveillance and needs to be arrested, the public security organs shall submit a new request for approval of arrest, and the people's procuratorate shall make a decision on approval of arrest in accordance with law. Where it is discovered in the review for prosecution phase, the people’s procuratorate shall make a lawful decision on arrest. Where it is discovered in the trial phase, the people’s procuratorate shall make a recommendation for arrest to the people's court.

Article 25: Reviews of the necessity of detention in cases directly accepted and investigated by the people's procuratorate, are to be conducted with reference to these provisions.

Article 26: Public security organs requesting that people's procuratorates review and approve extensions of the period of investigative detention shall conduct an assessment of the necessity of continued detention and give an explanation.

People’s procuratorates handling cases of requests to approve an extension of the period for investigatory detention or to newly calculate the period for investigative detention shall strengthen the review of the necessity of detaining the criminal suspect.

Article 27: These provisions become effective on the date of publication. The former People's Procuratorate Provisions on Handling Cases of Reviewing the Necessity of Detention (Provisional) are concurrently abolished.

Click to rate this post!
[Total: 0 Average: 0]

Be First to Comment

    Leave a Reply

    Your email address will not be published. Required fields are marked *

    Translate