(June 2, 2008) On May 21, 2008, China's Supreme People's Court and the Ministry of Justice issued the Circular Distributing Certain Provisions on Fully Guaranteeing Lawyers' Carrying Out Defense Obligations According to Law and Assuring the Quality of Handling of Death Penalty Cases. Some highlights of the Provisions are:
• Where a legal aid institution is to designate a lawyer for a defendant who may be sentenced to death and who has no defense counsel, it must appoint a lawyer with experience in criminal defense in capital cases within three days of receiving notification from the court.
• Lawyers may not transfer capital cases to assistants and must meet with the defendant before trial.
• After being appointed defense counsel, a lawyer must immediately go to the people's court to review the file; if the perused material involves matters such as state secrets, commercial secrets, individual privacy, and witness identities, the lawyer must preserve their confidentiality. Furthermore, if, during a hearing in open court, a lawyer speaks of matters that involve state secrets or individual privacy or launches a personal attack, the judge should issue a warning or suppress the speech.
• Judges must “'earnestly listen' to lawyers' suggestions, ensure that lawyers are able to complete their presentations, and explain why defense lawyers' motions are honored or denied.”
• Interested parties, lawyers, and prosecutors are to be informed by the court of any change of a court hearing date three days in advance.
• If prosecutors submit new evidence or re-evaluate the case ahead of the second court session, the court must notify the defense “at the latest” three days before the session opens.
• During the period of review of a death penalty case, if a defense lawyer submits motions or evidential documents, the collegiate bench concerned should receive and record them for the file during work hours and at the court premises, and written opinions submitted by the lawyer should also be appended to the file.
(Zuigao Renmin Fayuan, Sifa Bu yin fa “Guanyu Chongfen baozhang lüshi yi fa lüxing bianhu zhize, quebao si xing anjian banli zhiliang de ruogan guiding” de tongzhi (May 21, 2008), Xin fagui su di [New Laws and Regulations Speedily Transmitted] database, available at http://www.law-lib.com/law/law_view.asp?id=259072; China Clarifies Defense Lawyers' Role in Capital Cases, CHINA VIEW, May 22, 2008, available at http://news.xinhuanet.com/english/2008-05/22/content_8230677.htm.)
Although the issuance of the Provisions may in general be a positive step towards improving rule of law in China, commentators have raised the issue of how far they will go towards ameliorating the shortcomings of the country's criminal defense system. As the Congressional Executive Commission on China noted in its 2007 ANNUAL REPORT:
Lawyers have long complained about the 'three difficulties' that they face in criminal defense work: (1) the difficulty in obtaining permission to meet with a client, (2) the difficulty in accessing and reviewing the prosecution's evidence, and (3) the difficulty in gathering evidence in support of the defense. The Commission has reported on multiple cases in which law enforcement officers abused their discretion to deny a defendant access to his lawyer, noting in particular abuse of the 'state secrets'' exception. …
The foregoing problems are made worse by the fact that it is increasingly dangerous for Chinese defense lawyers to carry out their work, especially in high-profile or politically sensitive cases. Law enforcement officials sometimes resort to intimidating lawyers who defend these cases, charging or threatening to charge them with crimes such as 'evidence fabrication'' under Article 306 of the Criminal Law. … Despite official recognition of the chilling effect that such tactics have had on criminal defense work, … as well as indications that Article 306 would be repealed, … this problem persists and has become more damaging to China's legal system in the face of unchecked police power.
(Congressional Executive Commission on China, 2007 ANNUAL REPORT 47-48 (Oct. 10, 2007), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_house_hearings&
docid=f:38026.pdf.)