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8.25.2011

Quick facts about the CPL revision

Yesterday the NPC has begun the first reading of amendments to the Criminal Procedure Law. The Criminal Procedure Law was adopted in 1979, and substantially revised in 1996. Coming after 15 years, the draft amendment contains 99 articles, which will increase the number of articles in the CPL from 225 to 285.

The text of the draft amendment is not available yet, so reaching any conclusion about it is simply not possible. According to media reports, the amendment concerns rules of evidence, coercive measures, defence and representation, investigation, trial procedure and enforcement. We can expect a rationalization and a systematization of legislation on criminal procedure, but there´s also more than this.

Here's a brief overview of what may change in a not-so-distant future.


Rules of evidence

  • Rules on the exclusion of illegally obtained evidence will be incorporated in the CPL. Exclusion of illegally obtained evidence has been defined as a duty of courts, procuratorates and public security organs. The audio or video recording of questioning sessions shall be compulsory for those suspected of crimes punishable with life sentence or the death penalty, and optional in all the other cases. Other measures intended to curb torture will include the prompt transfer of criminal suspects to detention centres, and the prohibition to question them outside of the premises.
  • The revised version of the CPL could include provisions on the right against self-incrimination.
  • Article 42 will most surely be amended, with the inclusion of two new types of evidence: electronic evidence, and notes made by defence lawyers and investigators.
  • Article 49 may be amended by the inclusion of more detailed witness protection measures. These, however, could be limited to witnesses in cases of crimes against state security, terrorism, organized crime, drug-related crimes etc.

Coercive measures

  • Arrest. Arrest conditions will be made more stringent and specific. They may include the following: risk of endangerment to state security, public security or social order; destruction, fabrication or hiding of evidence; influence on witnesses; revenge against victims; suicide or flight. Prosecutors may hear criminal suspects if they have doubts on the necessity of arrest. The hearing is compulsory if prosecutors believe investigators to have violated the law, or if the hearing is requested by a lawyer. A mechanism to review arrest also after its approval should be included in the CPL.
  • Coercive psychiatric treatment. Provisions about coercive psychiatric treatment have been added. Coercive psychiatric treatment can be requested by procuracies, but must be subject to judicial review and approval.
  • Summons. The time-limit of criminal summons has been raised from twelve to twenty-four hours.
  • Supervised residence. Rules on supervised residence seem to be becoming more detailed, allowing a broader use of supervised residence as an alternative to pre-trial detention or imprisonment. More stringent rules will apply to crimes endangering state security, terrorism, corruption and bribery. In these cases, the time-limits for notifying detention may be extended beyond 24 hours.

Defense and Representation

  • Article 34, par. 2 should be amended to allow legal aid lawyers to be automatically assigned to defendants who could receive a life sentence or the death penalty, and to those who are blind, deaf, mute or underage.
  • Lawyers will be able to meet their clients without the approval of investigating organs, with the exception of cases involving state security, terrorism or corruption and bribery.
  • Amendment to article 96, first paragraph will allow criminal suspects to appoint a lawyer after the first interrogation by an investigation organ, or from the day on which compulsory measures are adopted. During the stage of investigation, it will only be possible to appoint a lawyer as one´s counsel. Investigation organs must inform criminal suspects of their right to appoint counsel at the time of the first interrogation or as coercive measures are adopted.
  • Rules on access to case files (art. 36) have been brought in line with those contained in the Lawyers´Law, allowing lawyers a broader access to them.

Investigation

  • The meaning of the words "the facts of a case are clear and the evidence is reliable and complete" (art. 128, 129) will been clarified.

Trial procedure

  • Death sentence review. Provisions about the mandatory hearing of witnesses and defence lawyers during review of death sentences by the Supreme People's Court will be included.
  • Key witnesses and experts should appear in court, thus reverting current practices. Expert opinions cannot be used as the basis to reach a verdict if the expert refuses to appear before court. Witnesses and experts may be compelled to appear in court should they fail or refuse to testify for no legitimate reason. Refusal to comply with an appearance order may be punished with up to ten days administrative detention (拘留), if it results in serious consequences. Provisions about compulsory appearance do not apply to relatives of defendants. Travel, accomodation and other expenses incurred by witnesses shall be subsidized.
  • First instance procedure. Changes in the first instance procedure should concern the transfer of case files, the holding of pre-trial hearings, and sentencing procedure.
  • Appellate procedure. Appeals against first instance verdicts could be automatically accepted by the court, and a hearing should be held if they involve death penalty cases, or if the second instance court believes sentencing issues may be involved.
  • Time limits for both first and second instance procedure could be extended for particularly big and complicated cases.
  • Juvenile offenders. The draft amendment contains newer rules on juvenile procedure. Juveniles sentenced to no more than 5 years fixed-term imprisonment will not have their criminal record disclosed, to facilitate their reintegration.

Simplified procedure

  • At the moment, simplified trial procedure is used in cases where charges punishable with a maximum of three years imprisonment have been levied, and for cases of private prosecution. According to the press, simplified procedure will be used also in those cases when the accused pleads guilty. The draft amendment specifies some conditions when simplified procedure cannot be used (defendants with a disability, cases having a strong impact on society).
  • The draft amendment contains provisions on criminal mediation, which should include criminal cases arising from civil controversies, cases under Chapters IV and V of the Criminal Law, intentional crimes punishable with no more than three years imprisonment, negligent crimes punishable with no more than seven years imprisonment. Exceptions are crimes of neglect of duty, and repeat intentional offences.

Enforcement

  • Community correction (社区矫正) will be used on those sentenced to public surveillance, to a suspended sentence, or released on parole.
  • Execution of sentences outside the prison. (art. 214 - 216) Temporary execution of sentence outside prison will be extended to pregnant and nursing women who are serving a life sentence. Further revisions will concern approval procedure, and instances of bribery and flight taking place during temporary execution outside prison.
  • Sentence reduction, release on medical parole, execution of sentences outside the prison. People's Procuracies will receive a copy of relevant requests made by prison and kanshousuo authorities, to allow them to challenge the adoption of any of these measures.



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