12.26.2008

Death penalty execution procedure: new judicial interpretation

This judicial interpretation clarifies the meaning of article 211 paragraph 1, Criminal Procedure Law of the PRC.

Its translation and a commentary can be found at the Duihua Human Rights Journal, the Duihua Foundation's blog.

Article 211 par. 1 of the CPL regulates execution of the death penalty and lists three cases under which execution must be suspended. The first of them is an error of judgement.

Article 211 After receiving an order from the Supreme People's Court to execute a death sentence, the People's Court at a lower level shall cause the sentence to be executed within seven days. However, under one of the following conditions the People's Court at a lower level shall suspend execution and immediately submit a report to the Supreme People's Court for an order:

(1) If it is discovered before the execution of the sentence that the judgment may contain an error;

(2) If, before the execution of the sentence, the criminal exposes major criminal facts or renders other significantly meritorious service, thus the sentence may need to be revised; or

(3) If the criminal is pregnant.

If the reason given in sub-paragraph (1) or (2) of the preceding paragraph which caused the suspension of the sentence has disappeared, the sentence may be executed only after a report is submitted to the President of the Supreme People's Court for him to sign and issue another order for execution of the death sentence. If execution is suspended for the reason given in sub-paragraph (3) of the preceding paragraph, a request shall be submitted to the Supreme People's Court for it to alter the sentence according to law.

Courtesy Congressional Executive Commission on China

The Supreme People's Court (regulations on the procedure for suspending execution of a death sentence, 关于适用停止执行死刑程序有关问题的规定) has interpreted the words "the judgement may contain an error" (可能有错误) as referring to: 1) the possibility that other crimes may have been committed; 2) a change of sentence following the arrest of an accomplice; 3) the case in which the execution of an accomplice has been suspended or stopped (暂停或者停止); 4) other errors.

The power to suspend executions belongs now to either the Supreme People's Court (art. 4), or lower-level courts (art. 2). Under the 1996 Criminal Procedure Law only lower-level courts could suspend an execution.


Relevant CPL articles

Article 211 After receiving an order from the Supreme People's Court to execute a death sentence, the People's Court at a lower level shall cause the sentence to be executed within seven days. However, under one of the following conditions the People's Court at a lower level shall suspend execution and immediately submit a report to the Supreme People's Court for an order:

(1) If it is discovered before the execution of the sentence that the judgment may contain an error;

(2) If, before the execution of the sentence, the criminal exposes major criminal facts or renders other significantly meritorious service, thus the sentence may need to be revised; or

(3) If the criminal is pregnant.

If the reason given in sub-paragraph (1) or (2) of the preceding paragraph which caused the suspension of the sentence has disappeared, the sentence may be executed only after a report is submitted to the President of the Supreme People's Court for him to sign and issue another order for execution of the death sentence. If execution is suspended for the reason given in sub-paragraph (3) of the preceding paragraph, a request shall be submitted to the Supreme People's Court for it to alter the sentence according to law.

Article 212 Before a People's Court causes a death sentence to be executed, it shall notify the People's Procuratorate at the same level to send an officer to supervise the execution.

A death sentence shall be executed by such means as shooting or injection.

A death sentence may be executed on the execution ground or in a designated place of custody.

The judicial officer directing the execution shall verify the identity of the criminal, ask him if he has any last words or letters and then deliver him to the executioner for execution of the death sentence. If it is discovered before the execution that there may be an error, the execution shall be suspended and a report submitted to the Supreme People's Court for an order.

Executions of death sentences shall be announced but shall not be held in public.

After a death sentence is executed, the court clerk on the scene shall prepare a written record of it. The People's Court that caused the death sentence to be executed shall submit a report on the execution to the Supreme People's Court.

After a death sentence is executed, the People's Court that caused the death sentence to be executed shall notify the family members of the criminal.


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