From closed to open
Source: Democracy and Legal Times Author: Our reporter Deng
Xiong Xuanguo, former vice president of the Supreme Court, once said in an interview that the death penalty review procedure is a kind of litigation procedure, because it is a special relief procedure stipulated in the Criminal Procedure Law and a special trial procedure.
After waiting for three months, in mid-September, 20 13, the Supreme People's Court revoked the death penalty ruling of Hebei Provincial High Court, refused to approve Yang Fangzhen's death penalty and sent him back for retrial.
Hebei Yang Fangzhen's death penalty review case once aroused public concern.
Beijing lawyer Xie Tongxiang represented the case. He told the reporter of the Institute of Democracy and Legal System that this case is the deepest participation of both the prosecution and the defense in the death penalty review procedure since the Supreme Court resumed the right to review the death penalty.
"When reviewing cases, for the first time in the death penalty review stage, defense lawyers, the Supreme People's Court and the procuratorate jointly participated in specific cases." Xie Tongxiang said.
The case has a groundbreaking procedure and has also been recognized by the legal profession. Scholars believe that this is a change from closed death penalty review to open death penalty review, which conforms to the trend of modern criminal procedure law.
"novelty" of death penalty review method
On June 2013 17, the Supreme People's Court reviewed Yang Fangzhen's death penalty case in the court of Huanghua City, Hebei Province.
More than a year ago, the 23-year-old young man was accused of robbery. The procuratorate accused him of killing the driver while robbing a taxi and fleeing after dumping the body and burning the car. The Cangzhou Intermediate People's Court sentenced Yang Fangzhen to death in the first instance. In June 5438+10 this year, the Hebei Provincial High Court upheld the original judgment in the second instance and submitted it to the Supreme Court for approval.
Xie Tongxiang has been specialized in death penalty review cases for many years. This is the first time he has encountered such a novel way of reviewing the death penalty: in the court of the local court, the prosecution and the defense sit together as in the trial, the judge is in the middle, the witness is present, and several parties ask questions together.
Since the Supreme Court revoked the power to approve the death penalty in 2007, in such cases, judges will also read the case files, go to the scene of the case, interrogate relevant witnesses and ask investigators to verify.
The Supreme Court's definition of death penalty review procedure is that it is a special procedure and special relief form designed by law for death penalty cases besides the final judgment of the second instance.
In March 2007, Xiong Xuanguo, then vice president of the Supreme Court, said in an interview that the death penalty review procedure is a kind of litigation procedure, because it is a special relief procedure stipulated in the Criminal Procedure Law and a special trial procedure.
"This is not an administrative procedure, but a judicial procedure. Because during the review of the death penalty by the Supreme Court, a collegial panel was formed in a way similar to the trial work procedure, which was tried by the collegial panel and then discussed and decided by the judicial Committee. " Xiong Xuanguo said.
After the implementation of the new Criminal Procedure Law, it was made clear that the Supreme People's Procuratorate has the right to supervise the death penalty review, and the Supreme People's Procuratorate established the death penalty review prosecutor's office, which officially replaced the death penalty review prosecutor's office and became one of the internal institutions of the Supreme People's Procuratorate 2 1.
However, for the review of death penalty, the Supreme Procuratorate can only "put forward opinions" to the Supreme Court, and the Supreme Court only needs to inform the Supreme People's Procuratorate of the results of the review of death penalty. When making a request, the judge will listen to the opinions of the defense lawyer.
Like the case of Yang Fangzhen, during the review stage, both the prosecution and the defense questioned witnesses and expressed their opinions. Even in the influential Zhejiang Wuying case, this evidence verification procedure has not been realized.
Therefore, Xie Tongxiang was quite surprised when he received a call from the Supreme Court Judge.
As Yang Fangzhen's defense lawyer, he had already met with the judge in charge of death penalty review in the Supreme Court and talked about the case for nearly two hours. He clearly stated his views to the judge.
"Cooperate with the court and make an exception"
/kloc-On the afternoon of June, 0/7, almost all the people involved or involved in the case of Yang Fangzhen came to Huanghua City Court-Yang Fangzhen himself was not present, and was still detained in Haixing County Detention Center, waiting for the final judgment.
Yang Fangzhen's parents have been sitting in court for an hour, but the procedure has not yet started.
They heard the prosecutor and the judge talking all the time.
At first, the prosecutor did not seem to agree to start this procedure. "The prosecutor said to the judge, you either approve or disapprove. How can this procedure still exist? What is the applicable procedure? Is it a first-instance procedure or a second-instance procedure? " Yang Fangzhen's father, yangjin, said.
The judge hesitated for a moment and replied, "There is no procedure, neither a first trial nor a second trial, but there are some questions. Please check it. "
Yang Jinming suddenly felt that the air in the courtroom was a little tense. He heard the judge ask the prosecutor, "Will you appear in court or not?"
After asking the leadership, the prosecutor finally agreed to "cooperate with the court and make an exception."
According to lawyer Xie Tongxiang, the main procedure of the day was to let a new witness testify in court and state what he knew about Yang Fangzhen's confession by torture. Then the public prosecutor, the defender and the judge ask questions respectively, and then the clerk prints out the record, which is signed by the witness for confirmation.
The new witness of the day was Yang Fangzhen's roommate in the detention center, and they were locked in the same room.
Similar to the trial procedure, after the witness is present, the judge first verifies his identity. After the judge asked the witness, the defense lawyer asked him questions, and finally the prosecutor asked questions.
Questions from all sides lasted for about half an hour.
On the same day, another key witness in the case did not appear in court.
According to lawyer Xie Tongxiang, this key witness is an informant in the case of Yang Fang Zhen. He claimed to have seen Yang after the crime and listened to Yang's statement about carjacking and murder. However, according to Yang Fangzhen's statement when he met with his lawyer, this witness and he were at the crime scene at the same time, and * * * witnessed the killing process, and the real murderer was someone else.
"Walking on thin ice, walking on the abyss"
This special procedure of death penalty review, which integrates trial, prosecution and defense, is unprecedented.
The news that "the Supreme Court is hearing the death penalty review procedure" quickly attracted media attention.
Professor Chen Guangzhong, a famous jurist, after learning about this procedure of the Supreme Court, also thought that this was not a court session, which was "somewhat similar to an internal hearing".
"I am very happy to see this attempt by the Supreme Court. This is the trend of future reform. The draft proposal of the Criminal Procedure Law was designed a long time ago. " Chen Guangzhong said.
Hong Daode, a professor at China University of Political Science and Law, also believes that the Supreme Court's practice of reviewing the death penalty in Yang Fang Zhen's case is actually different from that in the first and second trials in terms of procedure and content, and only checks the disputed places. This practice is a kind of progress and fully conforms to the legal spirit of the Criminal Procedure Law. The cooperation between the procuratorate and the Supreme Court is also worthy of recognition.
The presiding judge of the case said that he was unwilling to be interviewed when facing the media for verification, and repeatedly stressed: "This is not a court session, and it is by no means a court session!"
Afterwards, the Supreme Court urgently communicated with relevant media through defense lawyer Xie Tongxiang, clarifying that this procedure was not a court session. The Supreme Court responded: "It is not a trial to verify the key evidence of individual conviction and sentencing, which reflects the cautious attitude of the Supreme Court to death penalty cases, respects and protects human rights, and is very cautious about the death penalty."
According to lawyer Xie Tongxiang, this way of verifying key evidence was quickly stopped internally.
In fact, it is understandable that the judge in charge of death penalty review in the Supreme Court is so cautious.
According to the reporter of the Institute of Democracy and Legal System, the Supreme Court has five criminal courts, from Criminal Court I to Criminal Court V, with judges handling death penalty review cases and a working team of about 400 people.
The number seems quite large, but according to lawyer Xie Tongxiang, the Supreme Court handles at least 60,000 death penalty review cases every year.
"More people and fewer cases have always plagued the development of the Supreme Court's death penalty review work." Lawyer Xie Tongxiang said, "The reason why the Supreme Court stopped like this is not a procedural problem, but a heavy load."
"Sometimes the judges are just too busy. However, for the review of death penalty cases, we still advocate the cautious attitude of' walking on thin ice, like an abyss'. " A judge in charge of the review of the death penalty in the Supreme Court told the reporter of the Institute of Democracy and Legal System.
Previously, lawyer Xie Tongxiang raised 22 questions about Yang Fangzhen's death penalty review case. Based on the above-mentioned concept of handling cases, after the Supreme Court summoned all parties to appear in court and heard new witnesses testify, Yang Fangzhen's fate finally turned to an inflection point-under the review of the death penalty by the Supreme Court, he was "biased by the sword".