405 total views, 3 views today
Implementation Measures for the Application of Expedited Procedures in Criminal Cases
I. General Provisions
Article 1: These Implementation measures are drafted on the basis of the "People's Republic of China's Criminal Law", The National People's Congress Standing Committee's authorization of the Supreme People's Court and Supreme People's Procuratorate Carrying out Pilot Projects on the Application of Expedited Procedures in Criminal Cases in Some Cities", The Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security and Ministry of Justice Measures on carrying out Pilot Projects on the Application of Expedited Procedures in Criminal Cases in Some Cities" together with the actual experiences of Nanjing, so as to deeply implement the criminal policy of blending leniency with severity, to further elevate the quality and efficiency of criminal proceedings, and to truly ensure that lawful rights and interests of parties.
Article 2: Criminal cases handled using the expedited procedures shall comply with the basic principles of the Criminal Procedure Law, fully protecting the procedural rights of the parties and ensuring judicial fairness.
Article 3: Expedited procedures may be used where the following conditions are met in cases of dangerous driving, traffic offenses, theft, fraud, steeling, assault, provocation (picking quarrels), illegal detention, drug crimes, bribery crimes or crimes disrupting social order in a public location, where the circumstances are minor, and a sentence of less than one year of imprisonment, short-term detention or controlled release might be given in accordance with law:
(1) the case facts are clear and evidence is sufficient;
(2) the criminal suspects or defendants admit their crimes and have no objections to the alleged criminal facts.
(3) the applicable law in the case is not contested by the parties, and the criminal suspects or defendants agrees to the people's Procuratorate's sentencing recommendations ;
(4) the criminal suspect or defendant agree to apply the expedited procedures
Article 4: Expedited procedures are not applied where cases have any of the following situations:
(1) Where a criminal suspect or defendant is a juvenile, is blind, deaf, or mute or is a mentally ill person who has not completely lost the ability to recognize or control his or her behavior;
(2) Where in a joint crime some, of the criminal suspect or defendants have objections to the alleged facts, charges or sentencing recommendation.
(3) where the criminal suspect or defendant admits guilt, but upon review it is found that it might not comprise a crime or the defender conducts a not-guilty defense;
(4) where the defendant has no objection to the sentencing recommendation but upon review it is found that the sentencing recommendation is improper;
(5) Where criminal suspects or defendants have not reached a mediation or settlement agreement with victims or their legally-designated representatives or near relatives on compensation for damages, restoration of original conditions, apology or other matters;
(6) the criminal suspect and the defendant's breach of bail, surveillance provisions, seriously affecting the normal criminal activity;
(7) Where criminal suspects or defendants have statutory aggravating circumstances such as recidivism or corruption of minors;
(8) other circumstances where the expedited procedures should not be applied.
Article 5: Where criminal suspects or defendants and their defenders feel that a case meets the conditions for using expedited procedures, they may apply to judicial organs to use the expedited procedures, but where the defender so applies, the written consent of the criminal suspect or defendant shall be gotten.
Article 6: Cases using expedited procedures shall place criminal suspects or defendants who meet the requirements for release on guarantee or residential surveillance under those measures. However, where criminal suspects or defendants violate the provisions of release on guarantee or residential surveillance, and seriously impact the normal conduct of litigation activities, may be arrested.
Second, Legal assistance
Article 7: Establish a legal aid duty counsel system; with legal aid organizations sending legal aid counsel to serve as duty counsel in the people's courts and detention centers. Where criminal suspects and defendants apply for legal assistance, the legal aid duty counsel shall be assigned to them.
Article 8: After people's courts and people's procuratorates decide to apply the expedited procedures to handle a case, the legal aid duty counsel shall be appointed to provide legal assistance to criminal suspects or defendants that have not retained a defender.
When people's procuratorates and people's courts decide to apply expedited procedures to handle a case, they shall promptly inform the criminal suspects or defendants of the legal consequences that applying expedited procedures might lead to, and of their rights and obligations, such as to obtain legal assistance from the legal aid duty counsel.
Article 9: People's courts and detention centers shall provide necessary work space and facilities to legal aid lawyers, facilitate duty counsel's work, clarify the documents legal aid duty counsel needs to meet clients in expedited procedure cases, and give priority to criminal suspect and defendants meeting lawyers in expedited procedure cases.
In criminal cases applying the expedited procedures procedures, lawyers shall meet the criminal suspect or defendant within 3 business days of accepting the appointment or retention, and during the period of review for prosecution or trial, lawyers shall complete their reading of the case file within 3 days of accepting the appointment or retention. Where lawyers discover that a case should not apply expedited procedures, upon the consent of the criminal suspect or defendant or defendant, they shall submit a written opinion to the case-handling organs within 2 business days of the discovery. Where lawyers decide to make a not-guilty defense, they shall promptly provide a written comment to the case-handling organs.
Article 10: In areas where criminal cases applying the expedited procedures are relatively plentiful, legal aid duty counsel may institute a system of being on duty during weekdays; in areas where the criminal cases applying the expedited procedures are relatively few, legal aid duty counsel may implement a system of periodic duty, but it must not be less than two business days a week.
Article 11: Work fees for legal aid duty counsel in expedited criminal cases are entered into the special fund for legal aid by the people's government treasury for that level, and are guaranteed and independently accounted for.
Article 12: Public security organs shall quickly handle criminal cases meeting the requirements for applying the expedited procedures, within the period prescribed by law.
Article 13: Where public security organs need to apply for approval of arrest in a case meeting the requirements for using the expedited procedures, they shall recommend in writing that the people's procuratorate handle it quickly and explain in writing the reason for the recommendation.
Article 14: Where after people's procuratorates receive public security organs' written recommendation for quick handling and approval of arrest, they find that the requirements for applying expedited procedures are met, they shall issue a decision on whether to approve arrest within five days and recommend in writing that the public security organs complete investigation within 15 days. Where the public security organ is unable to complete investigation within 15 days, it may give feedback to the people's procuratorate approving arrest.
Article 15: When public security organs handle criminal cases, they shall emphasized conducting mediation between the criminal suspect or their close relatives and the victims, their legally-designated representatives, or close relatives, regarding compensation of losses, restoration to original states, formal apologies and other such matters.
Article 16: When public security organs handle cases meeting the requirements for applying expedited procedures, they shall verify the household registration and residence of the criminal suspect.
Article 17: When public security organs completing investigation of a case and transfering it for review for prosecution, feel that the case meets the requirements for applying the expedited procedures, they shall recommend the people's procuratorate apply the expedited procedures in handling it.
Public security organs may be relatively concentrated in transferring this kind of case for review for prosecution.
IV. Review for Prosecution
Article 18: Where defenders find that a case meets the conditions for using expedited procedures, upon the written consent of the criminal suspect they may recommend that the people's procuratorate apply the expedited procedures to handle the case.
Article 19: In cases where the public security organs have recommended applying the expedited procedures when transferring it for review for prosecution, the people's procuratorate shall appoint staff to handle it on the same day the case is accepted; in cases where the public security organs have not recommended applying the expedited procedures, but that upon review meet the requirements for applying the expedited procedures, staff shall be promptly appointed to handle the case and speedy notice given to the detention center where the criminal suspect is detained.
Article 20: In cases where the people's procuratorates decide to apply the expedited procedures to handle the case, they shall lay out the sentencing recommendation and interrogate the criminal suspect to understand their opinions on the charged offenses, sentencing recommendation and use of expedited procedures; and inform them of relevant legal provisions. Where criminal suspects admit their crimes, have no objections to the sentencing suggestion or the application of expedited procedures, and sign a written acknowledgment, the people's procuratorate may suggest that the people's court apply the expedited procedures for trial.
Article 21: Where people's procuratorates find that criminal suspects might be given a suspended sentence or sentenced to controlled release, they may retain the count-level judicial-administrative organ for the criminal suspects' residence or place of household registration to conduct a community corrections investigative appraisal.
Judicial administrative organs shall complete the investigative appraisal and issue an assessment opinion within five working days of the receipt of the retention, and promptly give feedback to the people's Procuratorate and to the people's court accepting the case.
People's Procuratorate and judicial administrative can transfer materials by fax and other convenient methods when retaining an investigation and giving feedback, and concurrently use the mails and other such means to transfer formal documents.
Article 22: When people's procuratorates handle criminal cases using the expedited procedures, where a mediation or settlement agreement was not reached during the investigation phase, they shall emphasized conducting mediation between the criminal suspect or their close relatives and the victims, their legally-designated representatives, or close relatives, regarding compensation of losses, restoration to original states, formal apologies and other such matters.
Article 23: People's procuratorates shall make a decision on whether to indict within 8 business days when public security organs have made a recommendation to apply the expedited procedures when transferring the case for review for prosecution; and in cases where public security organs have not made a recommendation to the people's procuratorate but it is decided upon review to apply the expedited procedures, they shall make a decision whether to indict within 8 business of make that decision.
Where the decision is to indict and to recommend that the people's court apply the expedited procedures at trial, they shall submit a sentencing recommendation and provide the criminal suspects' written acknowledgment, the investigative assessment opinion, mediation or settlement agreements and other such materials. The written indictment may be simplified.
Article 24: In cases where the people's procuratorate recommends that the people's court apply the expedited procedures, indictments may be relatively concentrated.
Article 25: People's procuratorates' sentencing recommendations shall lawfully determine a clear range.
Article 26: In cases where people's procuratorates recommend applying the expedited procedures at trial and provide the relevant materials in accordance with the second paragraph of article 23 of these Measures, the people's courts shall appoint adjudicators for handling on that day.
Where upon review people's courts find that the conditions for applying the expedited procedures are met, and the sentencing recommendation submitted by the people's procuratorate is proper, they shall decide to apply the expedited procedures and notify the people's procuratorate, the defendant and the defender.
Where people's courts find that the conditions for applying the expedited procedures are not met, or the sentencing recommendation submitted by the people's procuratorate is improper, they may decide to not apply the expedited procedures and notify the people's procuratorate, the defendant and the defender.
Article 27: In cases where people's courts decide to apply the expedited procedures, before trial they shall critically examine the defendants' written acknowledgment submitted by the people's procuratorate, and when holding court proceedings shall hear the defendants' comments to confirm that the defendant has voluntarily admitted guilt and consented to applying the expedited procedures.
Within one day of filing the case, the people's court shall serve the defendant with the indictment and a written decision to apply the expedited procedures at trial. The content of the written decision to apply the expedited procedures shall contain the following: the possible legal consequences of applying the expedited procedures, of not having court investigation and of not having courtroom debate; and also the procedural rights they enjoy in accordance with law and the right to retain a defender.
Article 28: Where upon review, people's courts find that the defendant might be given a suspended sentence or sentenced to controlled release, but that a community corrections investigative assessment was not completed during the review for prosecution phase, they shall retain the county-level judicial-administrative organ for the defendant's residence or place of household registration to conduct an assessment. Judicial administrative organs shall complete investigative appraisal work and and issue an assessment opinion within five working days of the receipt of the retention, and promptly give feedback to people's court.
Article 29: During the trial phase at the people's court, defendants that have not retained a defender may use the written indictment and written decision to apply expedited procedures, to apply the duty counsel of the legal aid institution in the people's court or detention center to provide them with legal assistance.
Article 30: People's courts applying the expedited procedures to hear a case, have a single-adjudicator hear the case, and are not limited by the time periods for service provided by the Criminal Procedure Law.
Article 31: In cases where the people's court apply the expedited procedures, in-court proceedings may be relatively concentrated.
Article 32: When people's courts holding in-court proceedings apply the expedited procedures, they may simplify verification of the defendants' natural circumstances, criminal record, and the compulsory measures employed , and also the explanation of procedural rights and obligations.
Concentrated in-court proceedings may be concentrated on verifying natural circumstances, criminal records, compulsory measures employed, and explanation of procedural rights and obligations, but trial must be case by case.
The public prosecutor should summarily read the indictments' facts, evidence and indictment opinion, the sentencing recommendation, and the judicial-administrative organs' investigative assessment opinion.
The people's Court shall ask the defendant in court on charges of crimes, sentencing recommendations and views of the determination for speed, listen to the views of the public prosecutor, the counsel, the victim and his agents ad litem. Where the defendant admits guilt at court and agree with the Prosecutor's sentencing recommendation and the application of the expedited procedures, court investigation and courtroom debate are no longer conducted, but the defendant's final statement shall be heard before the verdict is announced.
Article 33: In cases where the people's courts apply the expedited procedures, and the defendant applies to have the trial be non-public on the grounds of information security; where the people's procuratorate and defender have no objections it may be non-publicly tried upon approval of the court president.
Article 34: In cases where the people's courts apply the expedited procedures, where the defendant has voluntarily admitted the crime, returned stolen goods, actively compensated losses, formally apologized, and obtained the victims' or their families forgiveness, they may be given a lenient sentence in accordance with law, and may lawfully expand the application of non-custodial punishments.
People's courts may determine the announced sentence by discretionarily reducing by an additional 20% or less the announced sentence calculated on the basis of the "Guiding Opinion on People's courts' Sentencing" and the "Jiangsu High People's Court's Implementation Measures for the "Guiding Opinion on People's courts Sentencing'". However, if there is no legally prescribed commutative circumstances, determination of the announced sentence must not be less than the scope of penalties provided for in the Criminal Law.
Article 35: In cases where the people's courts apply the expedited procedures at trial, they shall announce the verdict at court, and use a form style written judgment.
In cases where the trial is closed, when the verdict is announced, it must be done publicly.
Article 36: Where during the course of trial at the people's court, the defendant changes their mind, or doesn't accept the sentencing reccomendation, or raises objections to the charged criminal facts or the evidence, or discovers that the case does not meet the requirements for applying the expedited procedures, it shall be turned into a summary procedure or ordinary procedures case for retrial de novo. Recalculation of the Trial period
Article 37: In cases where people's courts apply expedited procedures at trial, trial shall usually be completed within 7 days of accepting the case.
Article 38: After people's courts make rulings in cases applying the expedited procedures at trial, in cases where there is no appeal (counter-appeal) during the period for filing appeals, they shall immediately draft enforcement materials and transfer for enforcement.
Article 39: Cases applying the expedited procedures shall be handled according the provisions of the Criminal Procedure Law except as otherwise provided by these measures.
Article 40: These implementation measures are in provision effect until August 21, 2016.