China University of Political Science and Law conference on lawyer participation in death penalty review, July 2014. Photo credit: CUPL
The 2012 revisions to China’s Criminal Procedure Law (CPL) introduced a number of important provisions aimed at expanding the role of defense lawyers in the criminal process. One of the highlights included a provision requiring that suspects have access to legal aid defenders during the pre-trial investigation stage as well as at trial.
The CPL revision also introduced a requirement that defense lawyers be able to submit opinions to the Supreme People’s Court (SPC) during the process of final review of death sentences. But what if a defendant still cannot afford to hire a lawyer at this stage of the process? Unfortunately, neither the CPL nor the related implementation regulations provide for the appointment of legal aid defenders during the death penalty review stage.
This could change if Liu Renwen has his way. Professor Liu, a legal scholar at the China Academy of Social Sciences, recently issued a public call for the SPC to change its rules and require the appointment of legal aid defenders to death row prisoners. In a piece published last month in Legal Daily, Professor Liu notes that, without a lawyer to intercede on behalf of a defendant facing the death penalty, the more rigorous review process introduced in the recent CPL provisions becomes nothing but empty words.
It remains to be seen whether the SPC (and Ministry of Justice, which is responsible for the legal aid system) will establish new rules based on Professor Liu’s recommendation. Given SPC President Zhou Qiang’s repeated expressions of concern about the importance of preventing wrongful convictions and other miscarriages of justice, extending further protections to those whose lives hang in the balance might be a good place to start.
Defendants Facing Death Penalty Review Should Have Right to Legal Aid
Legal Daily, 26 March 2014
I recommend that the SPC draw upon the aforementioned Article 42 of the “Interpretation on Application of the Criminal Procedure Law of the PRC” and issue a “Notice on Providing Legal Aid to Defendants Facing Death Penalty Review,” stating: “When the SPC reviews a death penalty case and the defendant has not appointed a defender, [the court] shall notify the legal aid agency to assign an attorney as his defender.”
Article 34, paragraph 3, of the 2012 revised Criminal Procedure Law states: “If a criminal suspect or defendant may be sentenced to life imprisonment or death, and such person has not appointed a defender, the people’s court, people’s procuratorate, or public security authority shall notify the legal aid agency to assign an attorney as his defender.” On this basis, criminal suspects and defendants who face the death penalty and have not appointed an attorney all received a right to legal aid at the stages of public security [investigation], procuratorate [review], and first- and second-instance court trial. But currently at the stage of the Supreme People’s Court (SPC) death sentence review, if a defendant who has been sentenced to death has not appointed a lawyer because of economic hardship or other reasons, the SPC will not assign him an attorney to provide legal aid. I believe that, in order to ensure the quality of each case under death penalty review, this practice ought to be changed and we ought to grant defendants under death penalty review with the right to legal aid as soon as possible.
Even though a case under death penalty review has already resulted in a death sentence after first-instance trial and also following either second-instance trial or review by the [provincial-level] high court, the conclusion has still not yet been confirmed because the procedure has not yet run its full course. The final result comes only after the SPC makes a decision either to ratify or reject the death sentence. In other words, before the results of the SPC review are handed down, the defendant still faces the prospect of life or death; therefore, he still “may be sentenced to death.”
Some might say that Article 34(3) only applies to those who “may be sentenced to death,” whereas death penalty review cases are “cases where the death sentence has already been imposed” and, therefore, not subject to the provision of Article 34(3), regarding compulsory appointment of a defender. This view takes an exceedingly narrow reading of Article 34(3). In fact, when it comes to death penalty cases, the SPC review is also a kind of “sentence,” because only death penalty verdicts or decisions that are ratified by the SPC can become legally effective.
It should be pointed out that Article 42 of the SPC “Interpretation on Application of the Criminal Procedure Law of the PRC” clearly states: “When a high people’s court reviews a death penalty case and the defendant has not appointed a defender, [the court] shall notify the legal aid agency to assign a lawyer as his defender.” According to the provisions of the CPL, currently high people’s courts review two types of death penalty cases. First, when an intermediate people’s court has handed down a death sentence (with immediate execution) in a trial of first instance and the defendant does not appeal, the higher people’s court shall conduct a review and report the results to the SPC. The other type is cases of death sentences with two-year suspension. From this, one can pose the question: Why does the legal aid provision in Article 34 apply when the high people’s court conducts a death penalty review but not when the same review is carried out by the SPC? Legal aid is provided in cases involving suspended death sentences under review (by a high people’s court), so why is legal aid not provided in cases involving the death penalty with immediate execution under review (by the SPC)? This makes no sense logically, and in reality makes it difficult for the SPC to consider both sides of the case during death penalty review.
Death penalty cases are a matter of a person’s life and death, and the utmost caution ought to be exercised at every stage. One of the principal reasons why the SPC took back the authority to review death sentences was in order to make death penalty cases ironclad and prevent wrongful convictions. It is precisely for this reason that Article 240 of the new CPL states: “When the SPC reviews a death penalty case ... if the defense attorney requests, it shall listen to the opinion of the defense attorney.” If, because of economic hardship or other reasons, a defendant facing death penalty review has not hired a lawyer and the court does not appoint a defender for him, then “listen to the opinion of the defense attorney” are mere empty words. Without a doubt, this does not help to ensure the quality of death penalty cases.
To summarize, I recommend that the SPC draw upon the aforementioned Article 42 of the “Interpretation on Application of the Criminal Procedure Law of the PRC” and issue a “Notice on Providing Legal Aid to Defendants Facing Death Penalty Review,” stating: “When the SPC reviews a death penalty case and the defendant has not appointed a defender, [the court] shall notify the legal aid agency to assign an attorney as his defender.” At the same time, the SPC also ought to consult with the Ministry of Justice and have the ministry’s Department of Legal Aid Work take responsibility for implementing legal aid for death penalty review cases. In other words, when the SPC discovers that a defendant in a death penalty review case has not hired a lawyer, it should immediately notify the MOJ Department of Legal Aid Work to have it assign a legal aid lawyer to take on the death penalty review case. Of course, detailed provisions should also be put in place concerning the professional duties of legal aid lawyers (for example, regarding meeting with death row prisoners and submitting legal opinions), the manner of involvement in death penalty review (it would be preferable to be able to communicate in person with judges and procurators involved in the review), and remunerations.