 SPC questions a defendant in a death penalty review case via video conferencing, Zhengzhou, Henan, December 2, 2009. Photo credit: Zynews.com |
Last year’s revisions to China’s Criminal Procedure Law (CPL) took effect on January 1, 2013. In the weeks preceding that date, the Supreme People’s Court (SPC), Supreme People’s Procuratorate, and Ministry of Public Security each issued judicial interpretations or regulations detailing how they intend (at least on paper) to implement the law.
After the revised CPL was passed, Dui Hua analyzed provisions related to the death penalty and raised several questions regarding the process of death penalty review. Now that the SPC has issued its judicial interpretation, it is possible to revisit this topic and see whether those questions have been answered.
The section of the SPC interpretation devoted to death penalty review (translated below) is closely modeled on implementation regulations the SPC issued in February 2007, shortly after the supreme court regained authority to review all death sentences. In reviewing death sentences, the SPC is primarily interested in whether the lower court’s decision made a correct finding of fact based on sufficient evidence, whether the law has been applied appropriately and the death penalty is appropriate, and whether proper judicial procedure has been followed—or, more accurately, whether any procedural improprieties have potentially affected the fairness of the outcome.
The interpretation makes clear that the SPC will continue to handle the majority of death sentences it rejects by remanding cases for retrial and that, as in the 2007 regulations, the court may only impose its own sentences in limited, specific circumstances outlined in Articles 351–2. Also similar to the 2007 regulations, there is a degree of tolerance for relatively minor errors in the lower court’s finding of fact or citation of statute; however, the current interpretation describes these more generally as “flaws” (瑕疵) in contrast to the 2007 regulations’ more specific (but equally vague) use of the phrase “not completely correct or standard” (不完全准确、规范的).
The interpretation also covers the procedures whereby high people’s courts review sentences of death with reprieve. In instances where an intermediate court has made an error, the provincial high court is given more leeway to make changes to the lower court’s decision but is clearly prohibited from imposing heavier sentences, i.e., death with immediate execution.
One thing added to the CPL during its latest revision was a provision requiring the SPC to interview defendants as part of the death penalty review process. Left unclear, however, was whether SPC judges would be required to meet defendants in person, as opposed to being able to set up remote interviews or even assign provincial-court officials to act as proxies. An earlier draft version of the SPC interpretation contained a provision requiring that defendants be interviewed in person, except when “the facts are clear and the evidence is reliable and sufficient,” in which case interviews could be conducted through a video conference. Surprisingly, however, this provision was omitted from the final version of the interpretation, which instead states in Article 544 of its supplemental provisions that “based on the circumstances of the case, people’s courts may use video [conferencing] as a means to carry out the questioning of defendants.”
 SPC questions a defendant in a death penalty review case via video conferencing, Nandan, Guangxi, July 20, 2011. Photo credit: Gxfzw.com.cn |
The SPC’s reticence to set out generally applicable guidelines for death penalty review cases is notable, especially given that, last year, the interview requirement was nearly eliminated from the CPL entirely in favor of more discretionary language. After the CPL revisions passed last March, an SPC official told Legal Daily that the SPC generally uses remote video conferencing to question defendants in cases where the facts are clear, the evidence is reliable and sufficient, the collegiate benches and adjudication committees of the courts of first and second instance and the collegiate bench of the SPC all have consistent opinions regarding conviction and sentencing, the defendant and his or her defender have not raised objections based on the facts or evidence, and there are no circumstances requiring leniency. The official said that defendants are questioned in person when the facts and evidence in the case are “relatively complex.” In 2009, the SPC released a notice stating that, going forward, the main means for the SPC to question defendants would be video conferencing and that other methods would be supplemental, while in 2012, the SPC and Ministry of Public Security jointly released a notice requiring detention centers to build interrogation rooms for remote video interrogation. Advocates for video conferencing emphasize judicial efficiency and cost reduction; however, these benefits likely come at the cost of the defendants’ rights to due process and to be heard in a neutral environment.
Regarding input by defense lawyers, the interpretation adopts more explicit language. Lawyers will apparently have the opportunity to submit opinions to the court in person if desired, and judges will be obligated to arrange meetings for this purpose “on work premises” upon request. It is worth noting that the earlier draft of the interpretations specified that the meeting would also be required to be held “during business hours” but that this language was omitted from the final version. Moreover, the interpretation requires the court to produce transcripts of meetings with defense lawyers but says nothing about what should happen to those transcripts, in contrast with the earlier draft’s specific requirement that transcripts be placed in the case file.
 | Original Source: 最高人民法院 法释〔2012〕21号 发布日期：2012年12月20日 http://legal.people.com.cn/n/2012/1224/c42510-20000004.html Click on icon to expand |
第十五章 死刑复核程序 | Chapter 15: Death Penalty Review Procedure |
第三百四十四条 报请最高人民法院核准死刑案件，应当按照下列情形分别处理： | Article 344: Reporting of death penalty cases to the SPC for review and approval shall be dealt with accordingly in respect to the following circumstances: |
（一）中级人民法院判处死刑的第一审案件，被告人未上诉、人民检察院未抗诉的，在上诉、抗诉期满后十日内报请高级人民法院复核。高级人民法院同意判处死刑的，应当在作出裁定后十日内报请最高人民法院核准；不同意的，应当依照第二审程序提审或者发回重新审判； | (1) Where an intermediate people’s court has imposed a death sentence in a trial of first instance and neither the defendant appeals nor the people’s procuratorate protests, [the court] shall report the case to the high people’s court for review within 10 days after expiry of the appeal and protest period. Where the high people’s court agrees with the death sentence, it shall report the case for review and approval by the SPC within 10 days after issuing its ruling; where it does not agree [with the sentence], it shall either hear the case in accordance with the procedures for a second-instance trial or remand the case for retrial; |
（二）中级人民法院判处死刑的第一审案件，被告人上诉或者人民检察院抗诉，高级人民法院裁定维持的，应当在作出裁定后十日内报请最高人民法院核准； | (2) Where an intermediate people’s court has imposed a death sentence in a trial of first instance and either the defendant appeals or the people’s procuratorate protests and the high people’s court rules to uphold [the death sentence], [the high people’s court] shall report the case for review and approval by the SPC within 10 days after issuing its ruling; |
（三）高级人民法院判处死刑的第一审案件，被告人未上诉、人民检察院未抗诉的，应当在上诉、抗诉期满后十日内报请最高人民法院核准。 | (3) When a high people’s court, has imposed a death sentence in a trial of first instance and neither the defendant appeals nor the people’s procuratorate protests, [the court] shall report the case for review and approval by the SPC within 10 days after expiry of the appeal and protest period. |
高级人民法院复核死刑案件，应当讯问被告人。 | When a high people’s court reviews a death penalty case, it shall question the defendant. |
第三百四十五条 中级人民法院判处死刑缓期执行的第一审案件，被告人未上诉、人民检察院未抗诉的，应当报请高级人民法院核准。 | Article 345: Where an intermediate people’s court imposes a sentence of death with reprieve in a trial of first instance and neither the defendant appeals nor the people’s procuratorate protests, [the court] shall report the case to the high people’s court for review and approval. |
高级人民法院复核死刑缓期执行案件，应当讯问被告人。 | When a high people’s court reviews a case of death with reprieve, it shall question the defendant. |
第三百四十六条 报请复核的死刑、死刑缓期执行案件，应当一案一报。报送的材料包括报请复核的报告，第一、二审裁判文书，死刑案件综合报告各五份以及全部案卷、证据。死刑案件综合报告，第一、二审裁判文书和审理报告应当附送电子文本。 | Article 346: Where reporting death penalty or death with reprieve cases, one case shall [be filed] per report. Documents to be sent in the request include five copies of each of the review request report, decisions in the trials of first and second instance, and the comprehensive report for death penalty cases, as well as the complete case file and evidence. Electronic copies of the comprehensive report for death penalty cases, decisions in the trials of first- and second instance, and the trial report shall be attached. |
同案审理的案件应当报送全案案卷、证据。 | Full case files and evidence shall be sent for all trials that are part of the same case. |
曾经发回重新审判的案件，原第一、二审案卷应当一并报送。 | Where a case has been previously remanded for retrial, the case files for the original trials of first and second instance shall be sent as part of the request. |
第三百四十七条 报请复核的报告，应当写明案由、简要案情、审理过程和判决结果。 | Article 347: The review request report shall clearly state in writing the cause of action, a summary of the case details, the trial history, and the results of the verdict. |
死刑案件综合报告应当包括以下内容： | The comprehensive report for death penalty cases shall include the following content: |
（一）被告人、被害人的基本情况。被告人有前科或者曾受过行政处罚的，应当写明； | (1) Basic details about the defendant and victim(s). Where the defendant has a prior criminal record or previously received administrative punishment, this shall be stated clearly in writing; |
（二）案件的由来和审理经过。案件曾经发回重新审判的，应当写明发回重新审判的原因、时间、案号等； | (2) Origin of the case and its trial history. Where the case has previously been remanded for retrial, the reasons, time, and case number for the remand shall be stated clearly in writing; |
（三）案件侦破情况。通过技术侦查措施抓获被告人、侦破案件，以及与自首、立功认定有关的情况，应当写明； | (3) Circumstances under which the case was solved. Relevant details of how the defendant was apprehended or the case was solved through the use of technical investigation measures and/or of the defendant’s voluntary surrender or performance of meritorious service shall be stated clearly in writing; |
（四）第一审审理情况。包括控辩双方意见，第一审认定的犯罪事实，合议庭和审判委员会意见； | (4) Details of the trial of first instance. This includes the opinions of the prosecution and defense, the first-instance [court’s] finding of criminal fact, and the opinions of the collegiate bench and the adjudication committee; |
（五）第二审审理或者高级人民法院复核情况。包括上诉理由、检察机关意见，第二审审理或者高级人民法院复核认定的事实，证据采信情况及理由，控辩双方意见及采纳情况； | (5) Details of the trial of second instance or review by the high people’s court. This includes the reasons for appeal, the prosecution’s opinions, the finding of fact made during the second-instance trial or review by the high people’s court, the acceptance status and rationale for the evidence, the arguments of the prosecution and defense and the court’s acceptance of them; |
（六）需要说明的问题。包括共同犯罪案件中另案处理的同案犯的定罪量刑情况，案件有无重大社会影响，以及当事人的反应等情况； | (6) Any issues requiring explanation. This includes, among other things, details regarding conviction and sentencing of offenders involved jointly in the criminal case whose cases were handled separately, whether the case has a major impact on society, and the reactions of parties to the case. |
（七）处理意见。写明合议庭和审判委员会的意见。 | (7) Opinions on handling the case. The opinions of the collegiate bench and the adjudication committee shall be stated clearly in writing. |
第三百四十八条 复核死刑、死刑缓期执行案件，应当全面审查以下内容： | Article 348: In reviewing cases involving sentences of death or death with reprieve, a complete investigation shall be made of the following: |
（一）被告人的年龄，被告人有无刑事责任能力、是否系怀孕的妇女； | (1) The defendant’s age and whether the defendant possesses the capacity for criminal responsibility or is a pregnant woman; |
（二）原判认定的事实是否清楚，证据是否确实、充分； | (2) Whether the original verdict’s finding of fact was clear and whether the evidence was reliable and sufficient; |
（三）犯罪情节、后果及危害程度； | (3) The circumstances, consequences, and degree of harm of the crime; |
（四）原判适用法律是否正确，是否必须判处死刑，是否必须立即执行； | (4) Whether the original verdict’s application of the law was correct, whether it is necessary to impose the death penalty, and whether it is necessary to execute the death penalty immediately; |
（五）有无法定、酌定从重、从轻或者减轻处罚情节； | (5) Whether there are circumstances that call for mandatory or discretionary heavy, lenient, or mitigated punishment; |
（六）诉讼程序是否合法； | (6) Whether the procedure was lawful; |
（七）应当审查的其他情况。 | (7) Other circumstances that ought to be reviewed. |
第三百四十九条 高级人民法院复核死刑缓期执行案件，应当按照下列情形分别处理： | Article 349: In reviewing cases involving death with reprieve, a high people’s court shall deal with the case accordingly in respect to the following circumstances: |
（一）原判认定事实和适用法律正确、量刑适当、诉讼程序合法的，应当裁定核准； | (1) Where the original verdict’s finding of fact and application of the law is correct, the punishment is appropriate, and the judicial procedure lawful, a ruling to approve [the sentence] shall be issued; |
（二）原判认定的某一具体事实或者引用的法律条款等存在瑕疵，但判处被告人死刑缓期执行并无不当的，可以在纠正后作出核准的判决、裁定； | (2) Where there is a flaw in the original verdict, such as in the finding of a particular fact or in the citation of a legal provision, but it is not inappropriate to sentence the defendant to death with reprieve, the verdict or decision may be approved after correction is made; |
（三）原判认定事实正确，但适用法律有错误，或者量刑过重的，应当改判； | (3) Where the original verdict’s finding of fact is correct but there are errors in applying the law or the sentence is too heavy, a new sentence shall be issued; |
（四）原判事实不清、证据不足的，可以裁定不予核准，并撤销原判，发回重新审判，或者依法改判； | (4) Where the original verdict’s facts are unclear or its evidence insufficient, either a decision not to approve [the sentence of death with reprieve] may be issued, the original verdict vacated, and the case remanded for retrial, or a new sentence may be issued in accordance with the law; |
（五）复核期间出现新的影响定罪量刑的事实、证据的，可以裁定不予核准，并撤销原判，发回重新审判，或者依照本解释第二百二十条规定审理后依法改判； | (5) Where, during the review period, new facts or evidence emerge that affect the conviction or penalty imposed, a decision not to approve [the sentence of death with reprieve] may be issued, the original verdict vacated, and the case remanded for retrial, or a new sentence may be issued pursuant to a trial in accordance with Article 220 of this interpretation; |
（六）原审违反法定诉讼程序，可能影响公正审判的，应当裁定不予核准，并撤销原判，发回重新审判。 | (6) Where the original trial violated statutory judicial procedure in a way that could potentially affect the fairness of the trial, a decision not to approve [the sentence of death with reprieve] shall be issued, the original verdict vacated, and the case remanded for retrial. |
高级人民法院复核死刑缓期执行案件，不得加重被告人的刑罚。 | In reviewing cases of death with reprieve, high people’s courts must not impose heavier penalties on defendants. |
第三百五十条 最高人民法院复核死刑案件，应当按照下列情形分别处理： | Article 350: When reviewing death penalty cases, the SPC shall deal accordingly in respect to the following circumstances: |
（一）原判认定事实和适用法律正确、量刑适当、诉讼程序合法的，应当裁定核准； | (1) Where the original verdict’s finding of fact and application of the law is correct, the punishment is appropriate, and the judicial procedure lawful, a ruling to approve [the sentence] shall be issued; |
（二）原判认定的某一具体事实或者引用的法律条款等存在瑕疵，但判处被告人死刑并无不当的，可以在纠正后作出核准的判决、裁定； | (2) When there is a flaw in the original verdict, such as in the finding of a particular fact or in the citation of a legal provision, but it is not inappropriate to sentence the defendant to death, the verdict or decision may be approved after correction is made; |
（三）原判事实不清、证据不足的，应当裁定不予核准，并撤销原判，发回重新审判； | (3) Where the original verdict’s facts are unclear or its evidence insufficient, a decision not to approve [the death penalty] shall be made, the original verdict vacated, and the case remanded for retrial; |
（四）复核期间出现新的影响定罪量刑的事实、证据的，应当裁定不予核准，并撤销原判，发回重新审判； | (4) Where, during the review period, new facts or evidence emerge that affect the conviction or penalty imposed, a decision not to approve [the death penalty] shall be issued, the original verdict vacated, and the case remanded for retrial; |
（五）原判认定事实正确，但依法不应当判处死刑的，应当裁定不予核准，并撤销原判，发回重新审判； | (5) Where the original verdict’s finding of fact is correct but, in accordance with the law, the death penalty shall not be imposed, a decision not to approve [the death penalty] shall be issued, the original verdict vacated, and the case remanded for retrial; |
（六）原审违反法定诉讼程序，可能影响公正审判的，应当裁定不予核准，并撤销原判，发回重新审判。 | (6) Where the original trial violated statutory judicial procedure in a way that could potentially affect the fairness of the trial, a decision not to approve [the death penalty] shall be issued, the original verdict vacated, and the case remanded for retrial. |
第三百五十一条 对一人有两罪以上被判处死刑的数罪并罚案件，最高人民法院复核后，认为其中部分犯罪的死刑判决、裁定事实不清、证据不足的，应当对全案裁定不予核准，并撤销原判，发回重新审判；认为其中部分犯罪的死刑判决、裁定认定事实正确，但依法不应当判处死刑的，可以改判，并对其他应当判处死刑的犯罪作出核准死刑的判决。 | Article 351: In cases in which a person has been sentenced to death after the sentences for two or more crimes have been combined, where the SPC finds after its review that the facts are unclear or the evidence is insufficient for the death penalty verdicts or decisions covering a portion of the crimes, it shall issue a ruling not to approve the [death sentence] in the entire case, the original verdict shall be vacated, and the case remanded for retrial; where it finds that the finding of fact is correct for the death penalty verdicts or decisions covering a portion of the crimes but, in accordance with the law, the death sentence shall not be applied, [the SPC] may change the verdict and issue a decision to approve the death penalty for the other crimes for which the death penalty ought to be applied. |
第三百五十二条 对有两名以上被告人被判处死刑的案件，最高人民法院复核后，认为其中部分被告人的死刑判决、裁定事实不清、证据不足的，应当对全案裁定不予核准，并撤销原判，发回重新审判；认为其中部分被告人的死刑判决、裁定认定事实正确，但依法不应当判处死刑的，可以改判，并对其他应当判处死刑的被告人作出核准死刑的判决。 | Article 352: In cases in which two or more defendants have been sentenced to death, where the SPC finds after its review that the facts are unclear or the evidence is insufficient for the death penalty verdicts or decisions covering a portion of those defendants, it shall issue a ruling not to approve any of the [death sentences] in the entire case, the original verdict shall be vacated, and the case remanded for retrial; where it finds that the finding of fact is correct for the death penalty verdicts or decisions covering a portion of those defendants but, in accordance with the law, they should not be sentenced to death, [the SPC] may change the verdict and issue a decision to approve the death penalty for the other defendants who ought to be given the death penalty. |
第三百五十三条 最高人民法院裁定不予核准死刑的，根据案件情况，可以发回第二审人民法院或者第一审人民法院重新审判。 | Article 353: Where the SPC decides not to approve a death sentence, it may, according to the circumstances of the case, remand the case to the second-instance people’s court or the first-instance people’s court for retrial. |
第一审人民法院重新审判的，应当开庭审理。第二审人民法院重新审判的，可以直接改判；必须通过开庭查清事实、核实证据或者纠正原审程序违法的，应当开庭审理。 | Where the first-instance court retries the case, it shall hold a trial hearing. Where the second-instance court retries the case, it may impose a new sentence directly; if it is necessary to hold a hearing to examine the facts, verify the evidence, or correct improper procedure used in the original trial, it shall hold a trial hearing. |
第三百五十四条 高级人民法院依照复核程序审理后报请最高人民法院核准死刑，最高人民法院裁定不予核准，发回高级人民法院重新审判的，高级人民法院可以依照第二审程序提审或者发回重新审判。 | Article 354: When a high people’s court has tried a case in accordance with the procedures for reviewing [a death sentence] and reported the case to the SPC for review and approval of the death sentence, where the SPC rules not to approve [the death penalty] and remands the case to the high people’s court for retrial, the high people’s court may either try the case itself in accordance with the procedures for second-instance trials or remand the case for retrial. |
第三百五十五条 最高人民法院裁定不予核准死刑，发回重新审判的案件，原审人民法院应当另行组成合议庭审理，但本解释第三百五十条第四项、第五项规定的案件除外。 | Article 355: Where the SPC rules not to approve the death penalty and remands the case for retrial, the people’s court that originally tried the case shall form a new collegiate bench to try the case, except in cases covered by Article 350.4‒5 of this interpretation. |
第三百五十六条 死刑复核期间，辩护律师要求当面反映意见的，最高人民法院有关合议庭应当在办公场所听取其意见，并制作笔录；辩护律师提出书面意见的，应当附卷。 | Article 356: During the death penalty review period, where a defense lawyer requests to make his or her opinions known in person, the relevant collegiate bench of the SPC shall hear his or her opinions in a workplace and make a transcript; where the defense lawyer submits opinions in writing, they shall be included in the case file. |
第三百五十七条 死刑复核期间，最高人民检察院提出意见的，最高人民法院应当审查，并将采纳情况及理由反馈最高人民检察院。 | Article 357: During the death penalty review period, the SPC shall review any proposals made by the Supreme People’s Procuratorate and provide the SPP with feedback regarding its acceptance of the proposals and the reasoning involved. |
第三百五十八条 最高人民法院应当根据有关规定向最高人民检察院通报死刑案件复核结果。 | Article 358: The SPC shall report the results of its review of death penalty cases to the Supreme People’s Procuratorate in accordance with the relevant provisions. |
