One year’s pilot work of criminal case quick adjudication procedure： let justice come faster.
In June last year, the National People’s Congress Standing Committee (NPCSC) authorized Lianggao to carry out the pilot work of quick adjudication procedure of criminal cases in 18 cities. Now, the pilot project has been completed for one year, and the criminal speedy trial has achieved remarkable results, and some exposed problems are gradually being solved. The full protection of the rights and interests of the defendant has always been the core of the system design.
Beijing Fengtai District Court held a trial of a criminal quick-cut case cui wei/photo
"Do you voluntarily apply the expedited procedure?"
Since June last year, in a year’s time, defendants suspected of dangerous driving, traffic accidents and theft in Beijing, Shanghai, Nanjing, Wuhan and other cities will be asked such questions by public prosecutors if the facts are clear and they voluntarily plead guilty and meet the applicable conditions of the expedited procedure.
When the defendant learns that he will be sentenced in less than one year, and there is also the possibility of applying control, criminal detention, probation and a single fine, the defendant will generally continue to ask the prosecutor: "To what extent can I reduce the punishment?" "Is it possible to suspend the sentence?"
In the case of quick adjudication, not only the defendant’s concern is different from that of ordinary procedural cases, but also the prosecutor’s handling mode and tradition are different.
The pilot has been completed for one year.
How do judges locate the value of quick adjudication?
On June 27th, 2014, the National People’s Congress Standing Committee (NPCSC) authorized Lianggao to carry out the pilot work of criminal case quick adjudication procedure in 18 cities. According to the relevant plan, the facts are clear and the evidence is sufficient, the defendant voluntarily pleads guilty, and the parties concerned have no dispute about the applicable laws, such as dangerous driving, traffic accidents, theft, fraud, robbery, injury, and crimes of stirring up trouble, and the cases that may be sentenced to fixed-term imprisonment of less than one year, criminal detention, public surveillance according to law, or cases that are only fined according to law, will further simplify the relevant litigation procedures stipulated in the Criminal Procedure Law.
The practice of handling cases by the procuratorial organs in the pilot areas over the past year shows that the establishment of the speedy adjudication procedure greatly shortens the time for trial and adjudication of cases, and the defendants in criminal cases who are detained can be tried quickly, and the litigation rights of the parties are fully guaranteed in the process of handling cases. Taking Nanjing as an example, as of July 5, 2015, the city’s grass-roots procuratorial organs have prosecuted 351 criminal cases with quick adjudication, and the courts have decided 258 cases with quick adjudication procedures. The value of expedited procedure in litigation efficiency has been fully reflected. The average review and prosecution period is only 5.8 days, and the average trial time is 3 minutes to 5 minutes, which greatly improves the litigation efficiency. In the cases that have been adjudicated quickly, the prosecution opinions and sentencing suggestions of the procuratorial organs have been adopted by the court. Up to now, only two cases have been appealed by the defendants because they want to stay in the prison, and all the other parties have recognized the court’s judgment, and the defendant’s confession rate is high.
Han Bing, chief of the Public Prosecution Section of the Procuratorate of Xinzhou District, Wuhan City, Hubei Province, said in an interview that the speedy trial procedure of criminal cases omits the cross-examination of evidence and the court debate, which limits the defendant’s right of defense in court to a certain extent. Therefore, how to fully protect human rights in the process of applying the speedy trial procedure and make it "simple" but "undiminished" is an important topic for the judiciary.
Repeated reminders of three contents
Special treatment of suspects in quick adjudication cases
On the surface, the quick cutting procedure is simplified; In fact, before the simplification of the trial, such cases have to go through more detailed public prosecution work. "The prosecutor will especially inform the suspect of some key points, which is more than what he has to do and say in handling ordinary procedural cases." Huang Jie, Director of Public Prosecution Division I of Fangshan District Procuratorate, told the reporter that there are three important contents that should be carefully explained and repeatedly confirmed with the suspect.
"Do you voluntarily apply the expedited procedure?" This is a question repeatedly confirmed by the public prosecutor during the questioning of suspects. Fangshan District Procuratorate requires the prosecutor handling the case not only to deliver a written Notice of Rights and Obligations to the suspect, but also to explain the applicable provisions and legal consequences of speedy adjudication to the suspect on the spot.
On June 30, Dong Ying, deputy director of the Public Prosecution Department of Fangshan District Procuratorate, explained to Hu, a criminal suspect suspected of dangerous driving, the application of the expedited procedure. "If you plead guilty, agree with the prosecutor’s sentencing proposal and are willing to apply the expedited procedure, there will be no court investigation and court debate at the court session. You have the right to make a final statement, and the prosecutor will supervise the court to ensure that you complete the final self-statement link. " Dong Ying told reporters that the strict right to inform is to ensure the authenticity of the parties’ willingness to cut quickly.
"You can apply for the lawyer on duty to provide legal assistance", which is a warm reminder given by the public prosecutor of Fangshan District Procuratorate when interrogating each suspect.
According to Huang Jie, Fangshan District has set up duty lawyers in detention centers and courts. Once the suspect asks for legal help, the lawyer on duty will be in place the day after the application, which is the slowest situation. "Once requested by the suspect, the undertaker immediately fills in the Application for Providing Legal Aid and sends it to the lawyer on duty on the same day, so that he can have a deeper understanding of the case and provide legal help as soon as possible". Huang Jie said that according to the program design, when the public security organ transfers it for review and prosecution, it will send a copy of the Prosecutions Opinion with the special seal for the expedited procedure to the detention center, and the detention center will then send the document to the lawyer on duty for filing. Theoretically speaking, the lawyer on duty in the detention center can grasp the overall situation of the cases in hand in time on the same day.
"We will tell the suspect what the range of sentencing is." Dong Ying told reporters that at this stage, Fangshan’s main practice is to explain to the suspect the statutory punishment, the heavier punishment points and the lighter punishment points involved in the crime, so that he can have a basic understanding of his sentence, and then inform him of the floating range of sentencing. "For cases that apply ordinary procedures, prosecutors generally do not clearly inform the scope of sentencing recommendations."
After detailed explanation and repeated confirmation, if the suspect agrees to apply the expedited procedure, the public prosecutor will continue to review according to this procedure; If the suspect expresses his unwillingness to apply at any time, he will be rejected by one vote and the case will be transferred to the ordinary procedure. However, Fangshan has not yet encountered the latter situation.
From approval to court appearance
Key links in the process of quick adjudication of public prosecution
The most powerful support for completing the review and prosecution of quick-cut cases within 8 days is a smooth and fast handling mechanism. In terms of mechanism construction, the Nanjing Procuratorate, together with the Municipal Court, the Municipal Public Security Bureau and the Judicial Bureau, signed the Implementation Measures for Handling Criminal Cases by Quick-cut Procedure, and formulated the Working Rules for Handling Quick-cut Cases by Procuratorial Organs (hereinafter referred to as the Working Rules) according to the actual procuratorial work, making the operating rules for handling quick-cut cases clear, specific and detailed.
According to the procedure design of Nanjing, within the procuratorial organs, the power of examination and approval for applying the expedited procedure lies with the person in charge of the public prosecution department or the chief prosecutor. The Working Rules also carefully considered the special situation of the victims. Huang Zhijian, the main maker of the "Working Rules" and the deputy director of the Second Public Prosecution Division of the Nanjing Procuratorate, told the reporter that for crimes such as minor injuries, theft and fraud, the victim is either physically injured or his property is lost. If the quick ruling procedure is applied, the defendant may be given a lighter punishment; However, the judicial rights and interests of the victims must also be protected according to law, so in these cases, we all ask the public prosecutor to find out whether the defendant and the victim have reached a mediation or reconciliation agreement.
According to the "Working Rules", in addition to the examination and approval of whether the expedited procedure is applicable, the sentencing proposal must also be examined and approved by the head of the public prosecution department or the chief prosecutor. Moreover, if it is recommended to be sentenced to public surveillance, criminal detention or fixed-term imprisonment, the recommended sentencing range should not exceed one month in principle. Then, why should Nanjing set the scope of sentencing suggestions so accurately?
Huang Zhijian told reporters that there is indeed the consideration of "strengthening trial supervision", and more accurate sentencing suggestions can limit judges’ discretion and prevent judges from breaking the legal bottom line of mitigating punishment in order to handle cases quickly. "The" Working Rules "has been tried out for more than five months. The public prosecutor found in handling the case that the range of one month is really narrow, and the judicial organ also hopes to have some discretion. At present, we have revised the sentencing suggestion interval to 1 to 2 months."
Huang Zhijian said that, in essence, there is a plea negotiation between the defendant and the prosecution in the speedy trial procedure. In order to restrain the judiciary from keeping the legal bottom line of sentencing, the Nanjing Municipal Law Committee made it clear in the guidance of the speedy trial that the judicial organ should reduce the sentence by less than 20% on the basis of the proposed sentence calculated by the sentencing guidance of the people’s court, and then determine the pronounced sentence as appropriate. However, if there is no statutory mitigating circumstances, it shall not be lower than the sentencing range stipulated in the criminal law.
During the trial, Hu Jing, director of the Public Prosecution Division I of Chaoyang District Procuratorate, told the reporter that the court applied the expedited procedure to hear the case. If the defendant pleaded guilty in court, agreed to the sentencing proposal and applied the expedited procedure, no court investigation and debate would be conducted, but the defendant’s final statement should be heard before the judgment was announced. The reporter found that Nanjing’s "Working Rules" was based on simple procedures, but it still requires the public prosecutor to read the indictment in summary, show the evidence list briefly, and directly express the public prosecution opinions on the conviction and sentencing of the case when attending the court.
Huang Zhijian pointed out that Nanjing did not oversimplify the way of court hearing: the court hearing was based on the indictment, and since the court hearing was held, the judge’s trial, lawyer’s defense and the suspect’s self-defense should all revolve around the indictment. We stipulate that the indictment should still be read in summary in court, summarizing the main facts and listing the main evidence that confirms the facts. These general contents should be read. In order to inform both the facts and the evidence, it not only builds the basis of cross-examination, but also fully explains the basis of sentencing suggestions.
Build a special case-handling office
Please open postal procuratorial express mail.
It is a consensus on the construction of case-handling organization to set up a special department and handle cases quickly by special personnel to ensure quality and improve efficiency. But from imagination to reality, there are many practical difficulties. Fengtai District, Beijing is one of the first pilot areas to turn this basic understanding into a realistic operation mode.
At present, the public security, procuratorial work and courts in Fengtai District have set up specialized institutions (personnel) to handle cases of quick adjudication. In public security organs, full-time legal examiners are responsible for screening cases that can be applied to quick adjudication; In the court, there are fixed judges who specialize in speedy cases; In Fengtai Procuratorate, seven prosecutors from the Third Public Prosecution Office are specially responsible for quick adjudication of public prosecutions. In addition, the hospital has also set up a full-time case-handling team in the Public Prosecution Department, which is responsible for screening out cases that can be applied to quick adjudication among all cases transferred according to ordinary procedures. The prosecutors of this case-handling team review and prosecute the screened cases, appear in court for public prosecution, and "take responsibility to the end". Zhao Cheng, deputy director of the third department of public prosecution of the hospital, told reporters that since the pilot, the connection with public security and court professionals, as well as the internal connection and cooperation of procuratorial organs, has been relatively smooth. It is common that a case can be reviewed and prosecuted in two to three days, and this pace will enable the suspect to get a fairly quick trial.
At the beginning of this year, Yang was arrested after the theft in Fengtai. After a comprehensive investigation, Zhao Cheng, the public prosecutor, intends to make sentencing suggestions for him to apply probation. Therefore, Zhao Cheng sent a social investigation letter to the judicial office of a county in Zhoukou City, Henan Province, where Yang lived, using "postal procuratorial express mail". A few days later, the judicial office replied to confirm that Yang had the conditions for community correction. Subsequently, the court recognized the sentencing recommendations of the procuratorate and announced the application of probation to Yang.
Cui wei, director of the Third Public Prosecution Division of Fengtai District Procuratorate, told the reporter that the main prerequisite for the defendant to apply probation in a quick ruling case lies in the degree of social investigation and evaluation. According to Fengtai District’s plan, the social investigation of criminal suspects (defendants) who are not in custody is initiated by procuratorial organs. Fengtai Procuratorate signed a cooperation agreement with China Post EMS, which opened a special procuratorial express channel for the hospital, and realized the unit-to-unit postal mode. "The recipient only needs to write to the unit and does not need a specific recipient, thus avoiding the embarrassment that the specific recipient of the foreign judicial administrative organ cannot be found and the document cannot be mailed. Let the social investigation documents be sent to the foreign judicial bureau as soon as possible, so that it can arrange social investigation matters as soon as possible. "
The procuratorial special delivery mode initiated by Fengtai has solved the dilemma of difficult receipt of ordinary express delivery and difficult delivery of legal documents. The Beijing Municipal Procuratorate is gradually promoting this practice throughout the city.
Quick trial
The prosecutor in court focuses on legal supervision?
The speedy adjudication procedure cancels the court investigation and court debate, and the presiding judge is the sole judge, so the legal supervision function of the public prosecutor has been promoted to a new height. Han Bing, chief of the Public Prosecution Section of Xinzhou District Procuratorate, Wuhan City, Hubei Province, believes that the focus of supervision lies in the fact that the defendant denied the crime and questioned the facts and evidence alleged in the indictment during the trial, and disagreed with the charges; Defenders plead not guilty and change the nature of the case; After new evidence needs to be verified and the victim objects to the application of the expedited procedure, the court shall resume the legal supervision of the ordinary procedure trial.
When a court in a certain district of Nanjing tried a dangerous driving case by applying the expedited procedure, it happened that the defender once again asked for a lighter punishment: the defender had no objection to the facts and evidence identified by the public prosecution agency, but only disagreed with the sentencing suggestion range of the public prosecutor’s detention for 2 to 3 months, and suggested that the public prosecutor should be detained for 1 month, thus asking the court for a lighter sentence again. This brings a question worthy of discussion, that is, if the defendant’s self-appointed defender disagrees with the sentencing circumstances or the sentencing proposal of the public prosecution agency in court, is it necessary to hold a court debate or reconfirm the defendant’s willingness to apply the expedited procedure?
Huang Zhijian told reporters that the whole trial should focus on the defendant, and his rights and interests should be fully protected. If the defender’s defense opinion is inconsistent with the negotiation reached by the public prosecutor and the defendant, the public prosecutor shall remind the presiding judge to confirm whether the defendant agrees to continue to apply the expedited procedure for trial. If the defendant does the work through a lawyer, he will no longer accept the summary judgment and change it to the ordinary procedure, then the prosecutor should protect his right. In the case of changing to ordinary procedure, the defendant will no longer enjoy the lighter sentencing range given by the public prosecution agency based on the quick ruling procedure. If the defendant refuses the lawyer’s defense opinion and still insists on applying the quick adjudication procedure and accepting the prosecutor’s sentencing suggestion, then the court should also respect his opinion.
"At present, it is up to the judge to ask whether the defendant voluntarily accepts a quick ruling and whether he has any opinions on the indictment and sentencing suggestions. I think it is more appropriate for the public prosecutor, as the prosecutor and the legal supervisor, to be responsible for confirming these issues. " Han Bing said that at present, there are different practices in the trial procedure of expedited cases in different places, and there is no unified trial standard procedure.
"In addition to sentencing, whether the defendant’s exercise of the final statement right is complete is also an important part of the public prosecutor’s legal supervision." Han Bing said.
Should the parties be allowed to appeal again after the judgment of the expedited case? This has happened in practice in Nanjing. The parties to the two cases appealed after the judgment, and when the procuratorial organ received the appeal, the protest period had passed. The reasons for the two defendants’ appeals have nothing to do with the facts, evidence and sentencing of the cases involved. The parties claimed that they wanted to continue serving their sentences in prison, so as to delay the time.
Huang Zhijian told reporters that at present, in operation, the defendant’s right to appeal is fully guaranteed.
From the legal point of view, after the defendant in the case of quick adjudication appeals, can the procuratorate lodge a protest? If the procuratorial organ does not protest, due to the limitation of the principle of no additional punishment on appeal, will it make the defendant use the expedited procedure as a means to mitigate punishment, and then abuse the right of appeal, which will have the effect that the expedited procedure cannot be "expedited"?
"If these two cases have not passed the protest period when they receive the appeal, we will certainly lodge a protest. Because the defendant is given a lighter punishment of less than 20%, the basis is the way he voluntarily pleads guilty, accepts sentencing suggestions and accepts a quick trial. When the defendant disagrees with the result of the summary sentencing and requests to enter the appeal trial procedure, then the lighter punishment range of less than 20% based on the summary sentencing procedure loses its foundation of existence. The procuratorial organ should protest against the result of the light sentence in the first instance. "
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The pilot of quick cutting is still being explored. All kinds of operation methods and doubts that are constantly emerging will gradually build consensus through the continuous cycle of discussion and practice.