People's Procuratorate Provisions on Handling Cases of Reviewing the Necessity of Detention (Provisional)

ALL TRANSLATIONS ON THIS SITE ARE UNOFFICIAL AND ARE PROVIDED FOR REFERENCE PURPOSES ONLY. THESE TRANSLATIONS ARE CREATED AND CONTINUOUSLY UPDATED BY USERS --THEY ARE FREE TO VIEW, BUT PROPER ATTRIBUTION IS REQUIRED FOR DISTRIBUTION OF THESE OR DERIVATIVE TRANSLATIONS.

Notice on Releasing the "People's Procuratorate Provisions on Handling Cases of Reviewing the Necessity of Detention (Provisional)"

People's procuratorates of all provinces, autonomous regions and directly governed municipalities; military procuratorates and the people's procuratorate for the Xinjiang Production and Construction Corps:

The "People's Procuratorate Provisions on Handling Cases of Reviewing the Necessity of Detention (Provisional)", passed by the 47th Meeting of the 12th Procuratorial Committee of the Supreme People's Procuratorate on January 13, 2016, are hereby released to you for faithful implementation. Please promptly report any problems encountered during implementation to the Supreme People's Procuratorate.

Supreme People's Procuratorate

  January 22, 2016

People's Procuratorate Provisions on Handling Cases of Reviewing the Necessity of Detention (Provisional)

 (Passed by the 47th Meeting of the 12th Procuratorial Committee of the Supreme People's Procuratorate on January 13, 2016)

  Chapter I: General Provisions

Article 1: These Provisions are formulated on the basis of the Criminal Procedure Law of the People's Republic of China, the People's Procuratorate Criminal Procedure Rules, and other provisions, combining actual procuratorial work conditions, in order to strengthen and normalize the review of the necessity of detentions, safeguard the lawful rights and interests of criminal suspects or defendants under arrest, and to guarantee the smooth proceedings of criminal procedural activities.

Article 2: Review of the necessity of detention refers to supervisory activity by which the people's procuratorates follow article 93 of the "Criminal Procedure Law of the P.R.C. to conduct a review of whether or not it is necessary to continue detention of a criminal suspect or defendant that has been formally arrested, and where continued detention is not necessary, recommend that the case-handling organs grant release or modify compulsory measures.

Article 3: Cases reviewing the necessity of detention are uniformly handled by the criminal enforcement procuratorate department of the people's procuratorate at the same level as the case-handling organ; and departments such as for investigative oversight, public prosecution, investigation, case management and procuratorial techniques shall cooperate.

Article 4: Documents such as for case acceptance, filing, closure, and recommendations for release or modification of compulsory measures in cases reviewing the necessity of detention shall be registered, circulated, and handled on the procuratorial organ uniform operations usage system in accordance with relevant regulations; and after cases are filed, the case management departments shall carry out management, supervision, and early warnings for case-handling deadlines, procedures, and quality.

Article 5: Where state secrets, commercial secrets, or personal privacy are involved in the course of handling a case reviewing the necessity of detention, confidentiality shall be preserved.

Article 6: People's procuratorates conducting review of the necessity of detention must not abuse the right to make recommendations so as to influence the lawful conduct of criminal proceedings.

Chapter II: Case filing

Article 7: Where criminal suspects or defendants and their legally-designated representatives, close relatives, or defenders apply for review of the necessity of detention, they shall explain the reasons for not continuing detention. Where relevant evidentiary materials are available, they shall be provided at the same time.

Article 8: Applications for review of the necessity of detention are uniformly handled by the procuratorial departments for criminal enforcement of the corresponding people's procuratorates at the same of level as the case handling organs.

Upon receipt of applications for review of the necessity of detention, the prosecution, case management and other departments of the corresponding people's procuratorates at the same level as the case handling organs shall transfer them to the procuratorial departments for criminal enforcement of the same procuratorates within 1 business day.

Where other people's procuratorates receive applications for review of the necessity of detention, they shall notify the applicants to apply to the corresponding people's procuratorates at the same level as the case handling organs, or within 2 business days, transfer the application materials to the corresponding people's procuratorates at the same level as the case handling organs and notify the applicants.

Article 9: After receiving application materials, the procuratorial departments for criminal enforcement shall conduct a preliminary review and submit opinions on whether to file and review the case within three business days.

Article 10: Procuratorial departments for criminal enforcement shall use means such as the procuratorate's unified operations system to promptly make inquiries about that procuratorates' approvals of or decisions to modify or revoke arrest measures.

Article 11: Procuratorial departments for criminal enforcement shall follow their duties to conduct preliminary review of the necessity of detention of the criminal suspects or defendants who have been approved for arrest by the procuratorates to which they belong or who have been arrested as decided by the people's courts at the same level.

Article 12: Upon preliminary review, where the criminal suspect or defendant may have one of the circumstances stipulated in Article 17 and 18 of these Provisions, the procurator shall draft a case filing report and file the case after the chief procurator or the deputy chief procurator in charge approves it.

Where applications have no grounds or the grounds are obviously not sustainable, or where, after review by the people's procuratorate an applicant fails to provide new supporting materials or reapplies without new grounds, the procurator will make a decision not to file the case and notify the applicant in writing.

Chapter III: Review

Article 13: People's procuratorates conducting review of the necessity of detention may employ the following methods:

(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 legally-designated representative or defender;

(3) Hearing the opinions of victims as well as their legally-designated representatives or agents ad litem, to understand whether they have reached a settlement agreement;

(4) Hearing the opinions of the case-handling organ for the current stage;

(5) Hearing the opinions of the investigative supervision or public prosecution department;

(6) Investigating and verifying the physical state of the criminal suspect or defendant;

(7) Other methods.

Article 14: People's procuratorates may conduct an open review in cases reviewing the necessity of detention. However, this excludes cases involving state secrets, commercial secrets or personal privacy.

People's congress delegates, CPPCC members, peoples supervisors, and special prosecutors may be invited to participate in open reviews.

Article 15: People's procuratorates shall make a comprehensive assessment of whether it is necessary to continue detention of a criminal suspect or defendant on the basis of factors such as the facts of the crime they are suspected of, their subjective malice, their demonstrations of remorse, their physical condition, the development of the case, the sentence that might be given and whether their is any danger of further harm to society.

Article 16: The assessment of whether continued detention of a criminal suspect or defendant is necessary may employ quantitative methods, establishing specific standards such as positive items, negative items, or disqualification items. Criminal suspects or defendants' scores may be a reference for the comprehensive assessment.

Article 17: In cases reviewing the necessity of detention, where it is discovered that the criminal suspect or defendant has any of the following circumstances, a recommendation for release or modification of compulsory measures shall be submitted to the case handling organ:

(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, where 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.

Article 18: Where upon review of the necessity of detention it is discovered that the criminal suspect or defendant has any of the following situations, and demonstrates remorse, and not detaining them would not endanger society, a recommendation for release or modification of compulsory measures may be made to the case handling organ:

(1) only criminal preparation or aborted crime;

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

(3) crime of negligence;

(4) unjustified self defense or unjustified necessity defense;

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

(6) is a juvenile or person 75 years or older;

(7) has lawfully and voluntarily reached a settlement agreement with victims and already performed on it or provided assurances;

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

(9) Is pregnant or is a woman currently nursing their own child;

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

(11) Might be sentenced to less than one year imprisonment or given a suspended sentence;

(12) Other situations where the continued detention of criminal suspects and defendants is not needed.

Article 19: During the handling of cases reviewing the necessity of detention, reports on the review of necessity of detention shall be made, and the reports shall clearly indicate: the basic information of the criminal suspects or defendants, a brief description and the stage of proceedings of the original case, reasons and evidences for filing the case for review, the handling situation, review opinions, and so forth.

Chapter IV: Case Closure

Article 20: For handling cases reviewing the necessity of detention, decisions on whether to issue recommendations for release or modification of compulsory measures shall be made within 10 business days of case filing. Where the cases are complex, this may be extended for 5 business days.

Article 21: Where upon review it is decided that continued detention is not necessary, the procurator shall, upon reporting for approval to the chief procurator or the deputy chief procurator in charge, issue a recommendation for release or modification of compulsory measures to the case handling organ, and request that the case handling organ reply with the handling situations within 10 days.

Recommendations for release or modification of compulsory measures shall explain the reasons and the legal basis for which continued detention of criminal suspects or defendants is not necessary.

Article 22: People's procuratorates shall track the disposition of recommendations to case-handling organs for release or modification of compulsory measures.

Where the case-handling organ has not replied about the disposition within 10 days, then upon reporting for approval to the chief procurator or deputy chief procurator in charge, a notice to correct unlawfulness may be issued to it in the name of the procuratorate, requesting that they promptly reply.

Article 23: Where upon review it is decided that continued detention is necessary, the procurators shall decide to close the case and notify the case handling organ.

Article 24: For cases that have been filed for review by application, after the people's procuratorates handle and close the cases, they shall promptly notify the applicants of the situations of issuing recommendations and of the handling by case handling organs, or of the review opinions that continued detention is necessary and the reasons therefor.

Article 25: The procuratorial departments for criminal enforcement shall promptly notify the investigation supervision, public prosecution, investigation, and other departments of their respective procuratorates of the situations of review, the situations of issuing recommendations and of the handling by the case handling organs via the procuratorial organ unified operations system or other means.

Chapter V: Supplementary Provisions

Article 26: In cases that the procuratorate is currently investigating or reviewing for prosecution, where the criminal enforcement department conducts a review of the necessity of detention, it is handled with reference to these Provisions.

Article 27: Where people's procuratorates conduct a review of the necessity of detention in accordance with a detention center's recommendation, it is handled with reference to the procedures for conducting a review of the necessity of detention in accordance with an application.

Article 28: The handling of cases reviewing the necessity of detention by procuratorial personnel shall be included in the supervision system of judicial case handling by procuratorial organ; where there are discipline-breaking or unlawful acts such as bribe-taking, dereliction of duty, abuse of power, bending the law for personal gain, and leaking state secrets, they shall be sternly dealt with according to discipline and law; where they constitute a crime, purse criminal responsibilities according to law.

Article 29: These Provisions shall take provisional effect upon release.

 

About China Law Translate 708 Articles
CLT is a crowdsourced, crowdfunded legal translation project that enables English speaking people to better understand Chinese law.

Be the first to comment

Leave a Reply

Your email address will not be published.


*