Supreme People’s Court tweaks capital punishment review procedure

Screen Shot 2016-06-26 at 3.28.09 PMSeveral days ago, the Supreme People’s Court (SPC) issued the brief judicial interpretation, translated below:

Supreme People’s Court

Reply Concerning issues related to the Application of Article 225 (para 2) of the Criminal Procedure Law

Approved by the 1686th meeting of the Judicial Committee of the Supreme People’s Court, in effect from 24 June 2016

Fa Yi(2016) #13

To the Henan Higher People’s Court:

We have received your request for instructions concerning the application of Article 225(2) of the Criminal Procedure. After consideration, we respond as follows:

I.  For cases remanded to the second instance people’s court for retrial by the Supreme People’s Court, on the basis of “People’s Republic of China Criminal Procedure Law” Article 239 (2) [if the Supreme People’ s Court disapproves the capital punishment sentence, it may remand the case for retrial or revise the sentence] and Article 353 of the Interpretation of the “Supreme People’s Court on the application of the People’s Republic of China Criminal Procedure Law [where the Supreme People’s Court issues a ruling on non-approval of the death penalty sentenced under a case, it may remand the case to the people’s court of second instance or the people’s court of first instance for retrial, depending on the actual circumstances of the case…], having ruled not to approve the death penalty,and  regardless of whether the people’s court of second instance had previously sent the case back to the first instance court on the grounds that original judgment’s facts were unclear or evidence was insufficient; in principle, it must not be sent back to the original first instance court for retrial; if there are special circumstances requiring the case to be sent back to the first instance court for a retrial, it must be submitted to the Supreme Court for approval.

II. in cases where the Supreme People’s Court had ruled to disapprove the death penalty and remanded the case to the second instance people’s court for retrial, and the second instance people’s court had remanded the case to the first instance court according to special circumstance, after the first instance court has issued its judgment and the defendant has appealed or the people’s procuratorate has made a protest, the second instance people’s court should issue a judgment or ruling according to law, and must not send the case back for re-trial, according to the specifics of the case, which had sent the case to the first instance court for retrial.

So replied.

_________________________________________________________

What is this and what does this mean?

This is a judicial interpretation by the SPC in the form of a reply, as explained here.  It is a reply (批复) to a “request for instructions” from a lower court relating to an issue of general application in a specific case.  The Henan Higher People’s Court had submitted a request for instructions, likely with two or more views on the issue, but the lower court’s request is not publicly available.  It is likely that practice among provincial courts had been inconsistent, and therefore the SPC is harmonizing judicial practice through this reply.  As required by the SPC’s  regulations on judicial interpretations, it must be approved by the SPC’s judicial committee as a judicial interpretation.

This gives further details to the SPC’s capital review procedures, requiring second instance (generally provincial level courts) to hear retrials of cases remanded by the SPC and not instructing those courts not send cases back to the first instance court for retrial.  It also requires the second instance court to rule on a defendant’s appeal or procuratorate’s protest and not remand the case back to the first instance court, expediting the final consideration of these cases and limiting the number of remands of these cases.

Is this a positive development for the protection of the rights of the defendants (the defendants in the typical drugs cases announced by the SPC recently were mostly peasants), by requiring the second instance court to hear these cases, away from the public pressure where the crime occurred?  In a 2013 article, criminal defense lawyer Sun Zhongwei described the pressure on a local first and second instance court is under from the victim’s family and the local Party committee and government, and how the institutions use delay and remanding the case to the procuratorate and public security for additional investigation to avoid making difficult decisions that will alienate local authorities.What has the role of defense counsel been in these cases?  Have most defendants been advised by counsel? Was the delay in final resolution in these cases an issue discussed by the Central Political Legal Committee?

What was the rationale for issuing this interpretation at this time?  Is it a measure to promote the efficiency of the courts, by expediting finality in criminal punishment, so that the courts can announce in a timely manner their crime fighting accomplishments and typical cases?A headline on one of the SPC’s websites  reporting on 30% increase in drugs crime convictions in the provincial level courts may indicate which is valued more–“People’s courts across the country cracked down hard on drug crime.”

Or is it linked to planned reforms to the criminal justice system and improvements to the legal aid system for criminal defendants approved by Xi Jinping and other top leaders on 27 June?

Big data from the Supreme People’s Court

Now that President Zhou Qiang’s report has been well received by National People’s Court delegates, one of the issues to which the Supreme People’s Court (SPC) has turned its attention is big data.  Recently, the SPC released a report with “big data.” The charts below are from two versions of that report.  The press release accompanying this report indicated that the SPC will release more data more periodically.The SPC has traditionally been very stingy with the release of data, and certain data that interest persons outside the court system are classified as state secrets. SPC personnel have also discussed their rationale for reviewing and releasing more data, but that will be addressed later.

Because of the large amount of data in the report, it will be reviewed in several blogposts.

Chinese courts hear a huge number of civil cases

The pie chart sets out first instance cases in the courts, both the civilian and military courts.  There were 20% more first instance cases in the courts in 2015 than 2014, almost 11.5 million.  Almost 90% (88.6%) of them were civil/commercial cases, with slightly under 10% criminal cases (9.84%).  Less than 2% of cases were administrative cases.

Ten year trends

Screen Shot 2016-03-20 at 3.46.15 PM

 

Trends over the last 10 years of cases resolved, by all courts, in units of 10,000.

Criminal cases

The courts accepted 1,126,748 first instance criminal cases, up 8.29%, and concluded 1,099,205 of them,up 7.45%, involving 1,232,695 defendants, up 4.06%。The preponderance of those cases were relatively minor crimes.  
As the pie chart below illustrates, sentences imposing five years and more in prison, death sentences or suspended death sentences were imposed on 115,464, accounting for 9.37% of those convicted. Close to half (43.96%) , or 541,913 were sentenced to prison terms of less than five years, while 45.12% (556,259)were either given suspended sentences or control, or other minor punishments.  A tiny percentage were exempted from criminal punishment (18,020 persons), accounting for 1.46%, while a miniscule number (1039) (0.08%)were declared not guilty.  

The two pie charts below set out out the criminal cases by type, omitting the more sensitive types and showing a drop in most types of crimes, with the exception of fraud and theft/robbery.

Violent crimes

The criminal courts accepted 10,187 cases involving violent crimes, down 5.81%

  1. Intentional assaults: 122,209 cases, down 3.04%;
  2. Rapes: 21, 252 cases, down 9.39%;
  3. Kidnapping: 787%, down 24.54%;
  4. Explosions: 131 cases, down 18.13%

Food, sex, drugs, and gambling crimes

Food and drug safety crimes are always a concern of the government, but enforcement activity or publicity about harsh criminal punishment may have had a positive effect on compliance.  New food and drug safety cases totaled 10,410件 down almost 10%, of which about 3000 involved the production and sale of poisonous or harmful food products, down almost 35%, while there were about 2300 cases of the production and sale of foods that failed safety standards, down about 2%.  The courts accepted less than 250 cases involving the illegal sale of personal information, down about 15%. Food safety issues in China affect people all over the world, as many articles of posted out.

It was clear from last year’s SPC’s guidance on drugs cases, discussed in this earlier blogpost, as well as articles in the press and reports by think tanks, that (illegal) drugs are an increasing problem.  The statistics are an indication of that: drugs cases accepted by the courts have risen 30.79% to 141,999件,Of those, almost 93,000 (92982) cases involved trafficking, sale, transport, and manufacturing of drugs, up 15.61%,illegal possession of drugs, 11104 cases, up 26.9%, providing premises for taking drugs, 36,530 cases, up 101.32%. These, at least the ones involving manufacturing, transport, and sale of drugs are relevant to the world outside of China, as the cheap production of illegal drugs has also moved to China, as articles in the Financial Times (China-made $5 insanity drug goes global) and the European press indicate.

The criminal courts accepted 26423  gambling cases, an increase of almost 32%, including about 19,000 cases of operating gambling premises, up 35%,

The criminal courts accepted 13,700 cases involving the sex trade, an increase of almost 11%, of which 11, 682 cases involved organizing prostitution businesses, providing premises, compelling women to become prostitutes, and acting as a pimp or madam, an increase of 7.4%.  Prostitution offenses themselves are generally punished outside of the courts.

Financial crimes

The pie chart above sets out newly accepted financial crimes:

4825 cases of illegal fundraising,  up 127% over last  year.  This crime is very much on the government agenda.  There were a much smaller number of credit card crimes–844 cases, up by almost 50%, illegal fraudulent fund raising, 1018 cases, up almost 49%, with fraud relating to loans, financial paper, financial instruments, 1284 cases, up 44%, insurance fraud, 422 cases, up 33%, credit card fraud, almost 11,800, up 12%, pyramid scheme cases, almost 1500, up by almost 31%.

The criminal courts accepted about 26,600 robbery cases, down about 16%, theft, 224,907 cases, up 4%, while fraud cases were up 8%.  (offenses subject to confirmation)

SPC’s big data

The other major issue for anyone outside the Chinese court system, Chinese or foreign, reviewing SPC data is that frequently changes in classification and criteria make it difficult to understand and analyze. Or is the thinking that “a foolish consistency is the hobgoblin of little minds”?

Supreme People’s Court: new regulations on legal representation in death penalty review cases

dscn3764

complex where death penalty review undertaken

On 29 January, the Supreme People’s Court issued regulations on legal representation in death penalty cases, Measures for Considering the Views of Defense Lawyers in Death Penalty Review Cases (最高人民法院关于办理死刑复核案件听取辩护律师意见的办法) (translation available here).  This blog previously flagged that the Court was drafting them and that they were meant to be issued by the end of the year.  They will become effective on February 1.  They  were accompanied by a brief question and answer session with a “responsible person” from the Court’s #1 Criminal Division. presumably the head or deputy head.  These brief regulations provide important protections to those sentenced to death, and are part of the Court’s efforts to minimize mistaken cases.

The regulations permit defense lawyers to review the defendant’s file, provide additional evidence and have a hearing with the judges handling the case, although not a formal court hearing. The Court has created a room for lawyers to use to review death penalty review materials. The transcript of the hearing (as signed off by the defense lawyer) is to be included in the case file.  However, defense counsel has only two weeks to submit its additional opinion in the case.  Presumably this deadline can be extended if counsel provides justification.

The regulations set out the telephone numbers of the Court’s criminal divisions, which review death penalty cases.  This blogpost translated a chart drafted by the Chinese magazine Southern Weekend setting out jurisdiction of the various divisions.

This is an important step forward in protecting the rights of criminal defendants and is the product of many years of law reform efforts.

 

The Supreme People’s Court speaks out on reforming China’s death penalty

The top story in the Supreme People’s Court Wechat Feed of 23 November–how China should reform the use of the death penalty. Over the weekend, a conference was held by China’s Academy of Social Sciences on the death penalty, which brought in the Supreme People’s Court, Supreme People’s Procuratorate, and other government departments, as well as experts from Tsinghua University, China University of Political Sciences and Law, and others. Among the topics discussed was China and the world.

Hu Yunteng, head of the Court’s Research Office  said that death penalty reform needs to focus on how to use legislative and judicial measures to reform the death penalty, with further work needed on the following:

  • Reducing the number of crimes that carry the death penalty.
  • Reducing the judicial use of the death penalty.
  • Amending substantive law to reduce its use.
  • Amending procedural law to control its use.
  • Adopting a hearing centered procedure in death penalty review cases.  This includes the making use of the important role of lawyers in the death penalty review process and providing legal assistance to those who need it. (This development was highlighted in this blogpost).

Judge Hu stated that the death penalty will be retained, but the goal is for the death penalty to be applied 100% correctly and to avoid mistaken cases.

Foreign and international organizations have been working with Chinese counterparts on death penalty reforms for a number of years.  In China, law reform efforts may involve a long incubation period.

The world awaits the results of the hard work needed to implement these reforms.