At present, the trial of death penalty review cases continues the traditional mode of "judge marking → collegiate bench marking → trial (court) Committee decision". Although the original written trial has developed into a combination of written trial and investigation trial, this trial mode of separation of trial, defense and judgment is still an administrative internal evaluation mechanism in essence, and it is difficult for the death penalty review ruling to win judicial authority and social credibility.
As an "exception" to the death penalty review procedure, Yang Fang Zhen's case may bring a major breakthrough to this procedure, or it may become a real exception, which will never appear again. What are the reasons that hinder the change of death penalty review procedure? As a defense lawyer in the case of "exceptional" death penalty review, Beijing lawyer Xie Tongxiang has in-depth thinking.
Reporter of Democracy and Legal Society (hereinafter referred to as reporter): What's special about the review procedure of death penalty in the Supreme People's Court compared with ordinary criminal cases?
Xie Tongxiang: Compared with ordinary criminal cases, the death penalty review procedure in the Supreme People's Court is very different. In a sense, the death penalty review procedure is an exception to the two-instance final review system and a special procedure.
The first and second trial procedures follow the principle of non-prosecution and disregard, while the start of the death penalty review procedure requires neither prosecution or protest by the procuratorate nor private prosecution or appeal by the parties. As long as the trial of the court of second instance is completed or the defendant fails to appeal after the first instance, and the procuratorate fails to protest within the statutory time limit, the people's court should unconditionally and automatically submit the case to the Supreme People's Court for death penalty review.
20 12 There are several changes in the newly revised Criminal Procedure Law: the Supreme Court can remand a case that does not approve the death penalty for retrial or remand it for retrial; In the procedure of death penalty review, the defendant is interrogated and the opinions of the defender are listened to; Strengthen procuratorial supervision, in the process of reviewing death penalty cases, the Supreme People's Procuratorate can put forward specific opinions on death penalty review cases to the Supreme People's Court.
Since the Supreme People's Court has taken back the right to approve the death penalty, the presiding judge will examine the case file according to the situation and interrogate and verify the condemned prisoners. However, there will generally be no special court session in the review stage of the death penalty, and both the prosecution and the defense will interrogate witnesses and express their opinions.
Reporter: As a defense lawyer in the death penalty review stage of Yang Fang Zhen's case, how do you think that Yang Fang Zhen's case was finally sent back for retrial?
Xie Tongxiang: The Supreme Court's verification of the key evidence of Yang Fangzhen's robbery death penalty review case should be a great progress in the Supreme People's Court's death penalty review, a manifestation of the Supreme People's Court's respect and attention to human rights in death penalty review, and a major measure to promote judicial progress in China. This is the most in-depth case in which both the prosecution and the defense participated in the death penalty review procedure since the Supreme Court resumed the right to review the death penalty, and it is also the first time that the Supreme Court has used this method to review the death penalty case.
I * * * raised 22 doubts, and the Supreme Court adopted some opinions. Finally, on September 20 13, the death penalty ruling of Hebei Higher People's Court was revoked and Yang Fangzhen's death penalty was not approved.
However, due to the large number of people reviewing the death penalty and few cases in the Supreme People's Court, this method of verifying key evidence was quickly stopped.
Reporter: As a lawyer who has been engaged in death penalty review cases for many years, what do you think of the current situation of death penalty review in China?
Xie Tongxiang: There are still some defects in the current review procedure of death penalty in the Supreme People's Court. For example, defense lawyers are not allowed to read papers. The consequence of this is that the death penalty review lawyer can't fully understand the case and can't protect the legitimate rights and interests of the condemned prisoners. Even in the legal documents of death penalty review, lawyers' defense opinions are not written, and lawyers' opinions are not mentioned or expounded.
In addition, there is no time limit for the review of death penalty in the Supreme People's Court, and it is very arbitrary, some months, some years, such as Xia Junfeng's case is more than two years.
When reviewing cases, due to the large demand for personnel, some local judges will be seconded to participate in the review, but in fact, local judges are not qualified for the death penalty review trial. Although this has solved the problem of more people and fewer cases, it does more harm than good.
Why do the media, the Internet and the general public raise so many objections to the Supreme People's Court's death penalty review? It is because many procedures in the death penalty review procedure violate the criminal procedure law and the lawyer law, and the procedures are not open and transparent. In fact, they are all internal administrative examination and approval, not trial procedures at all.
Zhao Bingzhi, a famous professor of criminal law, pointed out that the current death penalty review procedure, whether starting or running, has a strong administrative color.
At present, the trial of death penalty review cases continues the traditional mode of "judge marking → collegiate bench marking → trial (court) Committee decision". Although the original written trial has developed into a combination of written trial and investigation trial, this trial mode of separation of trial, defense and judgment is still an administrative internal evaluation mechanism in essence, and it is difficult for the death penalty review ruling to win judicial authority and social credibility.
Reporter: How to solve the administrative problem of death penalty review procedure?
Xie Tongxiang: Professor Zhao Bingzhi once suggested that the death penalty review procedure should be clearly defined as a trial procedure, and it should be reformed by litigation, so as to establish a trial-level system for the final judgment of death penalty cases.
I think, at the same time, we should also fully increase the opportunities for each procedure to defend the suspect himself or his lawyer.
Preventing unjust, false and wrong cases and killing people well have also become problems faced by the judiciary in various countries. Even in the United States, a country with a series of complicated death penalty cases, the rate of misjudged cases in death penalty cases is still not low. Since 200 1, 12 prisoners in the United States have been acquitted through DNA testing. In Illinois, USA, DNA tests showed that many death row inmates were innocent, so in 2003, the governor of Illinois reduced all 167 death sentences to life imprisonment.
Providing channels for criminal suspects and lawyers to defend as much as possible is the best guarantee for exercising procedural justice and reducing unjust, false and misjudged cases.