The “disappearance clauses” headlined much of the commentary on recently passed amendments to China’s Criminal Procedure Law (CPL), but a number of provisions for death penalty cases also introduced notable protections while raising new questions. In this post, we take a detailed look at the most consequential of these changes: expanded access to legal aid, recorded interrogations, longer trials, mandatory appellate hearings, and more rigorous death penalty review.
Notes: The term “current law” refers to the 1996 CPL, while “amended law” refers to the amended CPL passed in March 2012 and effective January 1, 2013. In tables featuring specific CPL provisions, bold text denotes additions, while strikethrough text denotes deletions.
Expanded Access to Legal Aid
Under the current law, Article 34(3) requires only the court to ensure that defendants are represented by a defense lawyer in capital cases. Under the amended law, public security and procuratorate investigators will also be required to provide this guarantee if suspects do not retain attorneys on their own.
This change reflects one of the most lauded aspects of the amended law: to give lawyers a more significant role in defending suspects during the investigative stage. In Article 34(3), greater access to defense lawyers is also expanded to those facing life in prison.
| Article 34(3) | |
| Current Law | Amended Law |
If a defendant may be sentenced to death, and such person has not appointed a defender, the people’s court shall appoint an attorney who provides legal aid to serve as his defender.
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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
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Recorded Interrogations
Article 121 is one of several provisions in the amended law aimed at preventing the coercion of confessions through torture. It makes complete, unedited audio or video recording mandatory for the interrogations of suspects who face serious penalties like death or life imprisonment. Given that it is a stronger obligation than previously put forth—interrogations “may be recorded according to necessity,” says paragraph 11 of a 2007 opinion from the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, and Ministry of Justice—this new provision should deter interrogators from committing abuses and assist courts in excluding illegal evidence.
| Article 121 (Amended Law) |
When a criminal suspect is being interrogated, the investigator may record the interrogation process in audio or video forms; for crimes punishable by life imprisonment or death and other serious crimes, audio or video recording of the interrogation process shall be recorded in audio or video format.
The audio or video recording shall cover the entire interrogation process and shall be preserved intact.
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Longer Trials
Courts have been given more time to decide death penalty cases under changes to provisions covering trials of first and second instance. Article 202(1) generally lengthens the applicable deadlines for courts of first instance to issue verdicts in all cases, doubling both the standard deadline, from one month to two, and the maximum deadline, from one and a half months to three. Death penalty cases are one of several types of potentially more complex cases for which an additional extension can be approved. The length of additional extensions has been increased from one to three months.
The provision, Article 232(1), covering deadlines for trials of second instance (or “appellate trials”) contains similar language. Deadlines for appellate trials have been doubled, with the option of an extension for complex cases, including those involving the death penalty. The length of the extension is slightly shorter for appellate trials than for trials of first instance.
These amended articles introduce some ambiguities in approving extensions and limiting the length of trials. Article 232(1) calls for the approval of trial extensions by a provincial-level high people’s court. Since all death penalty trials of second instance are heard by provincial-level courts, however, this appears to mean that in these circumstances, courts can approve their own extensions.
Moreover, both articles have a new provision allowing the Supreme People’s Court to approve additional extensions in “exceptional circumstances.” This creates the possibility for defendants to be stuck in trial indefinitely since no criteria are provided to limit the length or scope of such extensions.
| Current Law | Amended Law |
| Article 168(1) | Article 202(1) |
When a people’s court hears a public prosecution case, it shall announce a verdict within one month, and no later than one and a half months, after receiving the case. In cases falling under one of the circumstances provided in Article 126 of this law, subject to approval by the high people’s court of the province, autonomous region, or municipality, the trial period may be extended by one month.
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When a people’s court hears a public prosecution case, it shall announce a verdict within
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| Article 196 | Article 232(1) |
Where a people’s court of second instance admits an appeal by the defendant or prosecutor, it shall conclude the case within one month, and no later than one and a half months. In cases falling under one of the circumstances provided in Article 126 of this law, subject to approval or decision by the high people’s court of a province, autonomous region, or municipality, the period may be extended by one month. However, for an appeal or protest by a defendant or prosecutor that is admitted by the Supreme People’s Court, such a decision shall be made by the Supreme People’s Court.
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Where a people’s court of second instance admits an appeal by the defendant or prosecutor, it shall conclude the case within
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Mandatory Appellate Hearings
Article 223(1) of the amended law requires courts of second instance to hold trial hearings for all appeals involving the death penalty. In contrast to the corresponding provision in the current law, it enumerates the specific circumstances in which appellate hearings are mandatory.
Although the language of the current law implies that court hearings should be the general rule for trials of second instance, courts have routinely chosen not to hold hearings on the grounds that the “criminal facts are clear.” The amended law limits some of that discretion, especially when it comes to death penalty cases.
This amendment is one of many that are based on existing regulations or policies that have been in effect for many years. Requiring hearings for death penalty appeals was one of several important capital punishment reforms instituted under the leadership of former Supreme People’s Court president Xiao Yang (肖揚). Elevating this policy, which has been in force since the second half of 2006, to a provision of a basic law like the CPL strengthens its legal standing and solidifies its position.
| Current Law | Amended Law |
| Article 187(1) | Article 223(1) |
The people’s court of second instance shall form a collegial panel to hold a court hearing to hear an appellate case. However if, after consulting the case file, interrogating the defendant, and listening to the opinions of the other parties, defenders, and counsels ad litem, the collegial panel thinks the criminal facts are clear, it may open no court session. A people’s court of second instance shall hold a court hearing to hear a case appealed by a people’s procuratorate.
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The people’s court of second instance shall form a collegial panel to hold a court hearing
(1) Appeal cases where the defendant or private prosecutor and his legal counsel object to the facts found or evidence admitted in the first instance and where the conviction or sentence might be changed by such facts and evidence;
(2) Appeal cases where the defendant has been sentenced to death;
(3) Cases appealed by a people’s procuratorate; and
(4) Other cases for which a court hearing shall be held.
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More Rigorous Death Penalty Review
Xiao Yang also oversaw reform of the death penalty’s final review process, which since January 2007 has been the sole prerogative of the Supreme People’s Court. The amended law includes two important changes with respect to this process. First, a new provision, Article 239, sets out the options available to the court in its review: to approve the sentence, remand the case for new trial, or change the sentence.
A crucial question about this provision is whether it provides the court with a generally applicable option to “change the sentence” directly when it rejects the lower court’s decision. Court regulations in force since February 2007 place strict limits on the circumstances under which the Supreme People’s Court may directly rule to change the sentence, and in most instances, the Supreme People’s Court is required to remand rejected cases for reconsideration by a lower court. The amended law seems to leave more room for the court to impose its own sentence. It is also possible, however, that current regulations limiting this function will remain in force or be adapted into new implementation regulations or interpretations that should be promulgated before the amended law takes effect.
| Article 239 (Amended Law) |
When the Supreme People’s Court reviews a death penalty case, it shall decide whether or not it approves the death sentence. Where it disapproves, it may remand the case for a new trial or change the sentence.
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One of the most dramatic changes to the CPL occurred in Article 240. In the first draft of CPL amendments published in August 2011, the text of this provision required that defendants be questioned and defense attorneys be heard during the death penalty review process.
By December 2011, the text of the provision had been changed so that the court’s requirement to interview defendants went from mandatory (应当, meaning “shall”) to discretionary (可以, meaning “may”) and that the requirement to hear defense lawyers was contingent upon their request. Legal scholar Chen Guangzhong called the rewording a “rather serious setback” and urged legislators to restore the original language or adopt wording that would give defendants and their counsel the right to demand a hearing.
When the draft amended CPL was distributed to delegates on March 7, 2012, however, the loose language remained intact. Many delegates reportedly expressed concerns about the wording—so much so that it was one of a handful of provisions changed in the days before the amendment was passed on March 14. Ultimately, “shall” was restored, but the requirement to give defense lawyers a hearing remains contingent upon request.
While the new provisions add some clarity to the process, questions remain: Will SPC judges be required to meet defendants in person, or will interviews be set up remotely or with provincial-court officials acting as proxies? Similarly, will defense lawyers be limited to written submissions or will they be guaranteed a face-to-face meeting, and if so, will there be a more formal process than the “petitioner” channel that many lawyers have been forced to endure?
As with many other details of the amended CPL, answers to these questions and clues to their application are forthcoming in implementation measures expected out later this year.
| Article 240 | ||
| Draft (August 2011) | Draft (December 2011) | Amended Law |
When the Supreme People’s Court reviews a death penalty case, it shall question the defendant and listen to the opinion of the defense attorney.
During the review of death penalty cases, the Supreme People’s Procuratorate may advise the Supreme People’s Court of its opinion.
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When the Supreme People’s Court reviews a death penalty case, it
During the review of death penalty cases, the Supreme People’s Procuratorate may advise the Supreme People’s Court of its opinion. The Supreme People’s Court shall report the result of the review to the Supreme People’s Procuratorate.
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When the Supreme People’s Court reviews a death penalty case, it
During the review of death penalty cases, the Supreme People’s Procuratorate may advise the Supreme People’s Court of its opinion. The Supreme People’s Court shall report the result of the review to the Supreme People’s Procuratorate.
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