In recent months, the Supreme People’s Court (SPC) has been issuing one policy document after another to put some substance into the vague language of a “trial-centered” criminal justice system.  One of those documents, which the SPC issued recently along with the Supreme People’s Procuratorate and Ministry of Justice, is directed at involving lawyers in the criminal case petitioning system: Opinions on Gradually Implementing Systems For Lawyers’ Representation in Collateral Appeals (Collateral Appeals Opinion).  （The document was copied to a surprising number of Party, state, and military institutions, according to this version).

The Collateral Appeals Opinion builds on a single line in item #36 of the SPC’s 4th Court Reform Plan outline:  “Promote the establishment of a system for lawyer representation in complaint appeals [collateral appeals] cases.”  As some readers may be aware, China has a collateral appeals or criminal case petitioning (刑事申诉) system, giving a convicted person and his or her family a right to petition a court to have the case re-opened and reconsidered under the Criminal Procedure Law’s trial supervision procedures.  Criminal defense lawyers are hopeful that this will lead to more involvement by the criminal defense bar, but there are many procedural and financial arrangements still to be worked out.

It seems likely that Judge Hu Yunteng, as a member of the SPC’s judicial committee (as well as others) were involved in the drafting of this policy document. As I discussed in a February, 2017, blogpost, Judge Hu Yunteng and other colleagues on the #2 Circuit Court wrote a research report analyzing criminal collateral appeals petitioners visiting the #2 Circuit Court (第二巡回法庭刑事申诉来访情况分析报告), (which does not seem to have been made public) and in the article summarized in that blogpost, advocated hearing the views of the party’s lawyer if one has been appointed and noted that making contact with the party and his lawyer was an important way to deal with these cases.

But establishing an effective collateral appeal system system involves further issues, as highlighted by one of my students in his class paper (edited).

1. Criminal petitioning [collateral appeal] lawyers face a dilemma: they don’t have the right to investigate evidence, read case files, or even meet their clients if their clients are now prisoners and not defendants. [Comment–section 9 of the Collateral Appeals Opinion has broad language on improving this–this is a positive step, but will require more specific implementing procedures].
2. Article 306 of the Chinese Criminal Law, which provides that criminal defense lawyers who encourage defendants or witnesses to change their testimony should be punished criminally. This  provision makes criminal defense lawyers extremely unwilling to investigate new evidence by themselves because of the high risk.
3. According to Chinese Criminal Procedure Law, the petitioning process should be conducted in the court which makes the original judgment. [Comment–the Supreme Peoples Procuratorate and Court media outlets recently have published proposals to have these cases should be considered by procuratorates and courts in other jurisdictions.] However, this court will have strong incentive to have these cases not successfully petitioned because their bonus and assessment are based on correctness rate of effective judgments. [My comment–this is one of the many ways the judicial performance assessment system creates obstacles to justice. So to make this reform effective, this indicator must be abolished.] Combined with the fact that there is no clear rule that needy petitioners should be assigned lawyers, they may either ignore the need for lawyers, or just assign lawyers who have little interest to really petition for their clients in these cases. So in most cases in which petitioners are in poverty, they could only seek the help of private lawyers for free service.
4. In China there is a saying that if you want to win in petitioning you have to make a big influence to make the government notice your case, and if you want the government to notice on you, you have to use some extreme rather than some “legal” ways to petition. If petitioners hire a lawyer, the lawyer has his/her own professional responsibility standard that he or she has to follow, which may sometimes conflict with the “best interest” of the client.
5. There a gap between the economic difficulty for ordinary daily life and economic difficulty in seeking legal service. For example, a person may not meet the criteria of economic difficulty because he or she’s earning is above the living standard. However, this person can still not able to afford legal service from a law firm because ordinarily the cost for seeking criminal defense service is above a person’s salary in a whole year. Such gap and seemingly objective standard actually causes a problem and means many people in need cannot receive the aid.

Chinese criminal justice reform–as President Trump says “it’s complicated!”