Launching the Pilot Program of Full Coverage of Defense Lawyers in Criminal Cases

 2018-05-16  31


Measures of the Supreme People's Court and the Ministry of Justice for Launching the Pilot Program of Full Coverage of Defense Lawyers in Criminal Cases


· Area of Law: Criminal Litigation Lawyers

· Level of Authority: Documents of Judicial Interpretation Nature

· Date issued:10-09-2017

· Effective Date:10-09-2017

· Status: Effective

· Issuing Authority: Supreme People's Court Ministry of Justice

 

Measures of the Supreme People's Court and the Ministry of Justice for Launching the Pilot Program of Full Coverage of Defense Lawyers in Criminal Cases
(October 11, 2017)
For purposes of promoting the trial-oriented reform of the criminal procedure system, strengthening the judicial protection of human rights, improving judicial fairness, fully maximizing the defense role of lawyers in the trial of criminal cases, and carrying out the pilot program of full coverage of defense lawyers at the trial stage in criminal cases, these Measures are developed according to the Criminal Procedure Law and other laws and regulations and in consideration of the actual circumstance of judicial work.
Article 1 A defendant shall have the right to obtain defense. The people's courts and judicial administrative authorities shall protect the right to defense and other procedural rights that defendants and their defense lawyers have in accordance with the law.
Article 2 A defendant shall have the right to authorize a lawyer to be his or her defender, besides exercising the right to defend himself or herself.
Where a defendant falls under the circumstances under which notification of providing defense is required as specified in Article 34 or 267 of the Criminal Procedure Law and has not authorized any defender, the people's court shall notify a legal aid agency that it designates a lawyer to defend him or her.
Besides the provisions of the preceding paragraph, where a defendant in a first-instance case or a second-instance case tried under normal procedures, or a case tried under the trial supervision procedures has not authorized a defender, the people's court shall notify the legal aid agency that it designates a lawyer to defend him or her.
Where a defendant in a case tried under simple procedures or fast-track sentencing procedures has not authorized any defender, the people's court shall notify an on-duty lawyer dispatched by a legal aid agency to provide legal aid for him or her.
Before a lawyer designated by a legal aid agency or a lawyer authorized by a defendant defends the defendant, the defendant and his or her close relatives may request for legal aid, and the people's court shall notify an on-duty lawyer dispatched by a legal aid agency that he or she should provide legal aid for the defendant.
Article 3 The people's court shall, within three days of acceptance of a case, notify the defendant that he or she has the right to authorize a defender and obtain legal aid from the on-duty lawyer. Where a defendant falls under the circumstances as prescribed in paragraphs 2 and 3 of Article 2 of these Measures, the people's court shall notify the defendant that it will notify a legal aid agency and ask it to designate a lawyer to defend him or her, if he or she does not authorize any defender.
Article 4 To notify defense, the people's court shall send the duplicates or copies of the official document on notifying defense and written indictment, written judgment, written appeal or notice on petition filing to the legal aid agency.
An official document on notifying defense shall specify the defendant's name, accusation, place of custody or domicile, grounds for notifying defense, name of judge and contact information, among others; where a court session is determined to be held, the official document on notifying defense shall specify the time and place of the court trial.
Article 5 A legal aid agency shall, within three days of receipt of an official document on notifying defense or making of a decision on providing legal aid, determine the lawyer undertaking the case and notify the people's court thereof in writing.
The official legal aid document issued by a legal aid agency shall specify the defense lawyer's name, employer and contact information.
Where the people's court issues an incomplete official document on notifying defense or the materials for notifying defense are incomplete, the legal aid agency shall consult with the people's court over making supplements; and where the people's court fails to completely supplement the materials as prescribed in paragraph 1 of Article 4 of these Measures 15 days before the court session is held, which may affect the defense lawyer's performance of functions, the legal aid agency may consult with the people's court over changing the date of court trial.
Article 6 Where a defendant in a case for which notifying defense is required according to paragraph 2 of Article 2 of these Measures refuses to accept the lawyer designated by a legal aid agency as his or her defender, the people's court shall ascertain the reason for rejection, and shall, where there are justified reasons, permit the rejection and concurrently notify the defendant that he or she should authorize another defender. Where a defendant fails to authorize another defender, the people's court shall notify the legal aid agency that it should designate another lawyer to defend the defendant in a timely manner.
Where a defendant in a case for which notifying defense shall be conducted as prescribed in paragraph 3 of Article 2 of these Measures insists on defending himself or herself, and refuses to accept the lawyer designated by a legal aid agency as his or her defender, and the people's court grants permit thereto, the legal aid agency shall make a decision of terminating legal aid; and where there are any justified reasons for replacing a lawyer, the legal aid agency shall designate another lawyer to defend the defendant.
Article 7 The judicial administrative authorities and lawyers associations shall coordinate with each other regarding the allocation of lawyer resources to guarantee legal aid. Where local lawyer resources are unable to meet the work needs, the judicial administrative authorities may apply to the judicial administrative authorities at the next higher level for necessary support.
In regions with good conditions, libraries of criminal defense lawyers may be established, to support the launching of the pilot program of full coverage of defense lawyers in criminal cases.
Article 8 A multi-level fund guarantee mechanism shall be established to improve the fund guarantee for legal aid and ensure that the funds guarantee level meets the need of launching the pilot program of full coverage of defense lawyers in criminal cases.
The judicial administrative authorities shall coordinate with the finance departments on rationally determining and appropriately raising the subsidy standards for case handling according to the lawyers' costs of undertaking criminal cases, basic labor costs, quality of service, difficulty of cases and other factors, and timely make payment in full amount.
In regions with good conditions, governments may purchase legal aid services.
Article 9 Exploration shall be made for making legal aid recipients share legal aid expenses.
The conditions, procedures and standards for the sharing of legal aid expenses shall be determined by the judicial administrative authorities at the provincial level in light of the local economic development level, residents' income, subsidy standards for case handling and other factors.
Article 10 The judicial administrative authorities and lawyers associations shall encourage lawyers to provide criminal defense services and give them support, organize senior backbone lawyers to handle criminal legal aid cases, maximize the exemplary role of outstanding lawyers in the field of criminal defense, organize special training on criminal defense, carry out selection and commendation activities of outstanding criminal defense lawyers, recommend outstanding criminal defense lawyers to participate in public elections as legislation workers, judges and prosecutors, and establish an incentive mechanism for lawyers' provision of criminal defense, to sufficiently mobilize lawyers' enthusiasm for participating in criminal defense.
Article 11 Where a people's court of second instance finds that the people's court of first instance has not performed its function of notifying defense, resulting in a defendant's failure to obtain defense by a lawyer during the trial period, it shall be ascertained to fall under the circumstance as prescribed in item 3 of Article 227 of the Criminal Procedure Law, and a ruling of reversing the original judgment and remanding the case for retrial by the people's court of original trial shall be issued.
Article 12 Where the people's court fails to perform its functions of notifying defense or the legal aid agency fails to perform the functions of designating lawyers, etc., resulting in a defendant's failure to obtain lawyers' defense during the trial period, the relevant personnel shall be held liable according to the law.
Article 13 The people's courts shall protect defense lawyers' right to know, right to apply, right to appeal, and legal practicing rights in such respects as interviewing, consultation of case files, evidence collection and questioning, cross-examination and debates according to the law, and provide convenience for defense lawyers' performance of functions, including consulting, extracting and duplicating the file of a case.
Article 14 The people's court shall, when making a major procedural decision of convening a pretrial conference, postponing trial, holding no court session in the second instance or pronouncing judgment, etc. notify the defense lawyer in a timely manner according to the law. The people's courts shall disclose the process of cases to defense lawyers in a timely manner on China's Judicial Process Information Disclosure Website (http://www.court.gov.cn/).
Article 15 Where a defense lawyer puts forward a request of consulting case files, the people's court shall arrange consultation of case files by the defense lawyer upon request of the defense lawyer; where consultation of case files are unable to be arranged at that time, the people's court shall explain the reasons to the defense lawyer and arrange consultation of case files within three working days after the elimination of the cause for being unable to arrange consultation of case files; and the people's court shall not restrict the reasonable times and time of consulting case files by a defense lawyer. In regions with good conditions, a case file reservation platform may be established, electronic consultation of case files may be promoted, and recording and downloading of materials may be permitted. Where a defense lawyer copies case files, the people's court shall only collect the cost of production. Expenses for copying case materials by lawyers designated by legal aid agencies shall be exempted or reduced.
A defense lawyer may take one to two assistant lawyers to assist in consultation of case files, and the people's court shall verify the identity of the assistant lawyer(s). Where a lawyer finds that the case files are incomplete or unclear, the people's court shall arrange checking or supplement in a timely manner.
Article 16 Where a defense lawyer applies to the people's court for collecting and obtaining evidence, the people's court shall make a decision of approving or disapproving the application within three days, and notify the defense lawyer. Where the people's court approves the application, the relevant evidence shall be collected and obtained in a timely manner. Where the people's court disapproves the application, the reasons shall be explained; and if the defense lawyer requests a written reply, the reasons shall be explained in writing.
Article 17 Where a defendant and his or her defense lawyer apply to the court for notifying the witnesses, identification experts, and persons with expertise of testifying in court, the court shall approve the application if the court deems necessary; and where the court disapproves the application, the reasons shall be explained in writing to the defendant and his or her defense lawyer.
Article 18 The people's courts shall attach importance to lawyers' defense opinions. Where the defense opinions offered by a lawyer according to the law are inadmissible, targeted analysis shall be conducted and the reasons for inadmissibility shall be explained.
Article 19 The people's courts, judicial administrative authorities and lawyers associations shall establish and improve the rapid handling mechanism for protecting lawyer's practicing rights, and smooth the channels for protection of lawyers' practicing rights and remedy. The supervision departments of the people's courts shall be responsible for accepting complaints of lawyers. The people's courts shall publish the names and telephones of the acceptance institutions and their addresses for letters and visits on their official websites and office places, report the investigation and handling results in a timely manner, effectively improve the timeliness and effectiveness of the protection of lawyers' practicing rights, and protect lawyers' practicing rights from being infringed upon.
Article 20 A defense lawyer shall take fact as the basis and take law as the yardstick, faithfully perform the defense and representation functions in a regulated manner according to the law, be diligent and pious, continuously improve the quality and level of defense, and effectively protect the lawful rights and interests of the parties and promote judicial impartiality.
At the trial stage, the lawyer designated by a legal aid agency to undertake a criminal legal aid case shall meet the defendant and make a written record of meeting, and shall consult the case files and copy main case materials.
For a case for which court session will be held by the people's court, the defense lawyer shall effectively make pretrial preparation; participate in all court trial activities, and sufficiently conduct cross-examination and statement; and issue specific and targeted defense opinions, and submit written defense opinions to the people's court. For a case for which court session will not be held by the people's court, the defense lawyer shall, within 10 days of receipt of a notice of the people's court on holding no court session, submit the written defense opinions to the people's court.
Article 21 A defense lawyer shall comply with the laws and regulations, code of conduct for practicing and court disciplines, and shall not instigate, abet or organize a guardian or close relative of the defendant to express claims in violation of laws, shall not maliciously cause media attention to the case or make distorted or misleading publicity or comment regarding a case, shall not disclose or disseminate any information or materials of a case not tried in public in violation of any provision, or any important information or evidentiary materials on a case obtained in the case handling process, shall not meet a defendant in violation of the regulations or instigate a defendant to withdraw his or her confession, help a defendant conceal, destroy, or forge evidence, or make a false confession in collusion, or threaten or induce a witness to give false testimony, or commit any other conduct interfering in the litigation activities of judicial organs.
Article 22 The judicial administrative authorities and lawyers associations shall direct and supervise the criminal defense services provided by law firms and lawyers, and reward and discipline law firms and lawyers according to their performance of legal aid obligations.
The legal aid agencies and law firms shall direct and supervise the criminal defense activities carried out by defense lawyers, and facilitate defense lawyers' performance of the defense functions according to the law.
A people's court that discovers, in the course of case handling, any act of a lawyer that violates laws, professional ethics, or practicing disciplines shall offer judicial suggestions to the judicial administrative authority and lawyers association in a timely manner, fix and hand over the relevant evidence materials, and provide necessary assistance. The judicial administrative organ and the lawyers association shall, after verification, notify the suggestion-making organ of the results in a timely manner.
Article 23 The people's courts and the judicial administrative authorities shall strengthen coordination, effectively implement the transition work of on-duty lawyers, forwarding of requirements for authorized defense, notifying defense and other respects, explore and establish the online platform for work connection, establish a regular consultation and notification mechanism, conduct communication in a timely manner, and coordinate with each other with regard to the resolving of problems, to promote the effective launching of the pilot program of full coverage of defense lawyers in criminal cases.
Article 24 Where there are provisions in these Measures regarding the handling of criminal cases, such provisions shall be implemented; and where there are no provisions in these Measures in any regard, the Criminal Procedure Law of the People's Republic of China, the Lawyers Law of the People's Republic of China, the Interpretation of the Supreme People's Court on Applying the Criminal Procedure Law of the People's Republic of China, the Regulation on Legal Aid, the Provisions on the Procedures for Handling Legal Aid Cases, the Provisions on the Legal Aid in Criminal Action, the Provisions on Legally Protecting Lawyers' Practicing Rights and other laws and regulations, judicial interpretations, rules and regulatory documents shall be implemented.
Article 25 The Measures shall come into force on the date of issuance on a trial basis for one year.
Article 26 The Measures shall come into force in Beijing Municipality, Shanghai Municipality, Zhejiang Province, Anhui Province, Henan Province, Guangdong Province, Sichuan Province and Shaanxi Province on a trial basis. The provinces (municipalities directly under the Central Government) where these Measures are implemented on a trial basis may implement the pilot program in the whole provinces (municipalities directly under the Central Government) or some areas selected.