12.27.2011

CPL Revision - Second reading

The second reading of the draft CPL has taken place on December 26 and 27 at the 24th Session of the 11th National People's Congress. Here's a list of what may have changed (the revised draft is not public) in the revised draft, compiled from press reports.

Adjudication


Sentencing. The revised draft specifies that when a new trial is ordered by second instance courts, the court that originally heard the case cannot increase sentences, unless the defendant faces new charges. Although both the 1996 CPL (art. 192) and the draft amendment (art. 225) specify that second instance courts have no power to increase sentences, the rule does not apply to cases sent back for a new trial.

Time limits. The revised draft has changed the time limits for first  instance adjudication. At present, the statutory time limit is set to one and a half month (art. 168/201 draft amendment). A one month extension is possible in some cases (art. 126). The draft amendment extended the time limits to a total of three and a half months (art. 201), with the possibility of a further extension. The revised draft allows courts to reach a verdict within a maximum of three months after receipt of a case. This time limits can be extended by three months in death penalty cases or when an incidental civil lawsuit has been filed.
In second instance cases, the procuracy will have 30 days, rather than 20 (art. 223), to prepare their case.
Time limits for cases tried under simplified procedure (art. 213) have been lengthened  to 45 days.

Arrest 逮捕


Notification. Under the current version of the CPL, notification to the family or work unit of a suspect is mandatory except for the cases when it is not possible, or it may obstruct investigation. To these exceptions, the draft amendments has added the cases when a person is suspected of crimes against state security, terrorism and other serious crimes, and notification is not possible (art. 92). The revised draft has made notification mandatory except for those cases when notification is not possible (无法通知)


Defence lawyers

Discovery. Article 38 has been amended to allow lawyers' access to - it seems - the entire case file assembled by the prosecutor (本案的案卷材料). At the moment lawyers have limited access to the prosecution's evidence, as they can consult only those documents related to charges levied against their clients.

Meeting. Article 37 of the draft CPL states that lawyers' meetings with suspects of crimes against state security, terrorism and grave cases of conspiracy to bribery can take place only if approved by investigative organs. The revised draft allows defendants in bribery cases to meet their lawyers, limiting restrictions on meeting to "particularly grave" (特别重大) cases. This change does not seem to affect suspects of crimes against state security and terorrism.  

Perjury. A new provision has been added, whereby  lawyers under suspicion of perjury cannot be investigated by the same organ that is conducting investigation on their clients. 



Detention 拘留

Notification. Pre-arrest detention must always be notified, except when notification is not possible. The draft amendment allowed secret detention of suspects of crimes against state security and terrorism, in those cases when notification may have obstructed investigation (art. 84). The revised draft specifies that when circumstances obstructing investigation have ceased ot exist pre-arrest detention must be notified to the suspect's family.

Evidence

Exclusionary rule. According to news reports, the revised draft contains a new provision whereby the procuracy is empowered to ask public security organs to explain how evidence collection took place. 

The NPC Standing Committee has suggested that article 120 of the CPL, referring to medical and psychiatric expert witnesses, as well as provisions on their forced appearance, be deleted due to conflict with the NPC Decision on the problem of managing forensic examination (全文)

Article 51 of the draft amendment included "material, documentary evidence and other evidence" (物证、书证等证据材料) gathered by administrative organs during  law enforcement  among the evidence admissible at trial "after verification by judicial organs" (经过司法机关核实) . This article may have been slightly altered by including audiovisual and electronic evidence. 

Foreign citizens


Jurisdiction on criminal cases involving foreign nationals will no more belong to intermediate people's courts. These cases may be tried by basic level courts too. 


Residential surveillance 监视居住

Scope of application. Broadened to criminal suspects and defendants who are dependants of persons without means of livelihood.

Notification. Under the CPL draft amendment, residential surveillance could take place without notification and at a place other than one's residence in the following cases: 1. Notification is not possible (无法通知); 2. The suspect or defendant may be involved in crimes against state security, crimes of terrorism, grave corruption crimes and a notification may obstruct investigation (art. 73). Under the revised draft, notification must be provided as soon as the circumstances obstructing investigation have ceased to exist. Some NPC delegates have suggested that covert residential surveillance should be kept, however, it should be used more cautiosly in corruption cases.


Release on bail pending further investigation 取保候审


Those eligible for release on bail now include the seriously ill, who are unable to take care of themselves, pregnant and nursing women, and those who are not socially dangerous. 

Torture

Article 49 of the draft amendment prohibited to use "torture and other illegal means" to collect evidence. The revised draft has adopted a formulation closer to art. 43 CPL 1996, prohibiting the use of "torture, threats, inducements and deception and other illegal means" to gather evidence.


Witness protection

Witness protection measures (art. 61 draft amendment) have been extended to expert witnesses (鉴定人)