Defendants in death penalty cases shall enjoy the right to obtain legal aid

Wu Hongyao

"Criminal Procedure Law" article240The provisions of article, "defense lawyer requested shall listen to the opinions, defense lawyer". Accordingly,The handling during the death penalty cases by the Supreme People's court,If the defendant entrust lawyers, of course, there is no problem. However, if the defendant because of poverty or other reasons not to entrust defenders, Is it right? Would behoove does not enjoy the institutional interests? In other words, in the death penalty review stage, for the defendant's counsel did not entrust, whether the Supreme People's court shall appoint for legal aid?

Criminal legal aid work started late in china. At the system level,1996Years of "Criminal Procedure Law" article34The first time definedThe defendant may be sentenced to death without entrust a defender shall beDesignated defense. However, because of the death penalty review procedure also is a major court unilaterally are written examination program, therefore, is not to the designated defense defendants in death penalty cases of the problem.2007After the Supreme People's court, although the judicial interpretation of the provisions of the defense lawyer may participate in the review procedure of death penalty, but the defendant not entrust a lawyer, the Supreme People's court followed the routine, the designated defense issues. However, since according to the provisions of the new criminal procedure law, lawyers involved in the death penalty review procedureAlreadyBecome an institutionalized practice, then, for those who are poor and cannot afford to hire a lawyer sentenced person, what reason to refuse the application of article34"Shall appoint" provisions?

In modern society, as the poor provision of legal aid is the most basic requirements of procedural justice. In Bates v. Brady case, justice Black once commented, "no one shall be solely because of his poor and deprived of right of access to lawyers. In addition to the appointed lawyer, any other things made in court, in my opinion, is to provide equal democracy against judicial commitment for the people." Therefore, in the modern society, one of the lowest standards to provide free legal aid for the poor has become a fair trial of the accused. "Convention" civil rights and political rights article14Article third explicitly lists the common acceptance of criminal trial "the international community that the" minimum, which guaranteedAvoidanceOne of the measures is "rights specified assistance". The article third (d) paragraph, "at the trial and to defend myself and defended by legal aid his own choice; if he has no legal aid, to inform him to enjoy these rights; in the interest of justice have need of this case, for he assigned legal aid, but he didn't have enough the solvency of legal aid cases, not his own pay." Among them, as a special case directly related to personal life, the issue of legal aid in the case of death penalty is getting more attention of international society. The UN Economic and Social Council in1984Years5Month25Through the "on Safeguard Measures" to protect the rights of those facing the death penalty in5Requirements: "only after legal procedures provided to ensure that the various justice possible security, including any suspected or accused of each stage can be sentenced to death penalty criminals have the right in the litigation process to achieve an appropriate legal assistance, can according to the competent court execution."

In our country, perfect the criminal legal aid system is one of the important content of the criminal law amendment. Among them,Criminal legal aid cases is one of the prominent bright spot of this modification."Criminal Procedure Law" article34The provisions of the third paragraph, "the suspect, the defendant may be sentenced to life imprisonment or death, did not entrust a defender, the people's court, the people's procuratorates and the public security organs shall inform the legal aid institutions appoint lawyers to defend the." Accordingly, the death penalty review procedure behoove should followThis articleMandatory provisions on the designated defense the defendant, appointed defense counsel did not entrust.DetailsThe reasons are as follows:

First of all, in theory, the right to obtain legal aid is an important part of the defense right of the accused. Therefore, the procedure for review of death sentence as "the last hurdle in death penalty cases, should the defendant's counsel. If the accused does not entrust a lawyer, you should assign it a legal aid lawyer."

Secondly, from the standard interpretation, article34The provisions on "may be sentenced to death", the mandatory provisions should be designated defense belongs to legal. As a general rule, there is no reason will be directly related to the life and death of the defendant's procedure for review of death sentences excluded. Some might argue, the death penalty review cases are "has been sentenced to death penalty cases", therefore, does not belong to the34The adjustment range. However, this theory apparently ignoring the following two points: first, on the death penalty, "the Supreme People's court approved the death sentence" is "a legally effective judgment or order". "Criminal Procedure Law" article239Provisions of the Supreme People's court, "review of death penalty cases, approved or not approved the death penalty shall make a ruling." Therefore, on the death penalty cases, although before the first trial, second instance or high court review procedures "has made the death penalty", but, in terms of the final result of the case, the case is still in a state of uncertainty an undecided "". Also, as the defendant, the review procedure of death penalty is approval is still unknown; the final results, is still a "may be sentenced to death" of the state. Second, although the procedure of second instance is "to have ruled in a case", but in the judicial practice of our country, must also comply with section34Article on the designated defense provisions. In this connection, the Supreme People's court has approved the said, "" the people's Republic of China Criminal Procedure Law "article thirty-fourth paragraph third of the defendant may be sentenced to death has not entrusted a defender, the people's court shall designate a lawyer who provides legal aid to defend its, should also be applied to the second death penalty cases. The defendant or the people's Court of first instance has been sentenced to death for appeal or the people's Procuratorate, if the accused does not entrust a defender, the people's Court of second instance shall appoint one for him." Judicial interpretation after also adhere to this position.In addition, in particular, the Supreme Court recently issued "on the application of the people's Republic of China criminal law explanation" article42Section secondRegulations.The higher people's Court of review of death penalty cases, if the accused does not entrust a defender, shall inform the legal aid institutions appoint lawyers to defend the."However, since the death penalty cases, why the higher people's court shall apply the34Article"Shall be designated defense", and the Supreme People's court? Furthermore, may be sentenced to death with reprieve cases must be designated defense, and immediate implementation of the death penalty is not, what are the reasons?

Once again, from the procedure justice perspective, as the designated defense lawyer accused does not entrust a defender, but also the inherent requirement for the death penalty review procedure justice applicable. According to the revised "Criminal Procedure Law" article240The provisions of article, as long as the lawyer asked, should listen to the counsel's opinion, so,InevitableHave a basic problem of Institution Justice: if the defendant did not hire a lawyer do? Allow someone to continue or according to the death penalty is, belongs to the scope of the case and the defence force for the defense? Obviously, if we insist on the death penalty review procedure is not applicable to the appointed defense practice, so, No.240The regulations will become a "rich man special terms". That is, who has the money to afford a lawyer, who will have the opportunity through the counsel's participation to the Supreme People's court more legal standard opinion. However, the basic purpose of criminal legal aid for criminal defense establishment is a fundamental guarantee: no matter rich or poor, law every criminal charges against individuals can enjoy a bottom standard in. In personal life and death of the death penalty, we should adhere to and maintain the justice of this most basic.

To sum up,With the review procedure of death penaltyLawyersBecome aConventionalSystem of practice, the Supreme People's court must keep pace with the times, to give up the death penalty review procedure is not applicable to the wrong idea of the appointed defense, to provide the most basic legal aid services for the defendants in death penalty cases.Therefore,To sum up,SuggestionsSupreme People's courtIn theThe judicial interpretationIn theClearly stipulates, "in handling death penalty cases, if the accused does not entrust a defender shall, according to Article34The provisions in the third paragraph of the designated defense."

(Professor, doctor of law, Litigation Law Research Institute of China University of Political Science and Law. The original published in "Social Sciences" China newspaper, in this paper, the Department of the China University of Political Science and Law Youth Innovation Team (procedural control of death penalty) group stage results.)