Difference between revisions of "China Criminal Defense Manual - Pretrial Preparation"
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==='''What procedures must the criminal defender follow to apply for the client's release on bail pending trial?'''=== | ==='''What procedures must the criminal defender follow to apply for the client's release on bail pending trial?'''=== | ||
| − | + | :Determine whether the client is eligible for bail: The lawyer should approach the authority handling the case without delay to find out what criminal charges are being held against the suspect or defendant, and then the lawyer should meet with his client. During the interview, he may make further inquiries into the case: the duration and reason for custody, the nature and circumstances of the criminal charges, the range of the possible sentencing, as well as information relating to the client's conduct, state of health, income and family of the client. After the investigation, if the lawyer finds the client suitable for bail pending trial, he may submit, on his own initiative, an application for his client's bail. If the client, the client's legal agent or close relatives request that the lawyer apply for bail on behalf of the client, and furthermore, the lawyer finds the client qualified, the lawyer may either apply for his client's bail in his own name or assist his client in applying directly to the authorities. | |
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| − | + | :Decide on the form of the guarantee: When applying for bail pending trial, a lawyer shall try his best to use a guarantor. In legal aid cases, clients are often very poor and cannot afford to put down a security deposit. In addition, applying for bail with a guarantor is convenient and efficient and may avoid unnecessary trouble created by economic incentives. If it is not possible to get a guarantor, e.g. there is no suitable guarantor available, the lawyer shall advise the client in custody and his close family members on how to prepare a security deposit for bail. Note that the Provisional Regulations on Lawyers in Participating in Criminal Proceedings issued by the All-China Lawyers' Association prohibit the lawyer from acting as guarantor. | |
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| + | :Submit the written application for bail pending trial to the organization handling the case: In the investigation stage, the application shall be submitted to the public security organ or the People's Procuratorate undertaking investigation of the case. During the examination and prosecution stage, the application shall be made to the People's Procuratorate in charge of examination and prosecution. After the case is transferred for trial, the application shall be made to the People's Court. | ||
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'''The lawyer's written application shall include the following main elements:''' | '''The lawyer's written application shall include the following main elements:''' | ||
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*the lawyer's name and the name of his law firm or legal aid institution; | *the lawyer's name and the name of his law firm or legal aid institution; | ||
*the applicant's name and the place of custody; | *the applicant's name and the place of custody; | ||
*the client's physical condition; | *the client's physical condition; | ||
*the facts and reasons supporting bail, including information regarding the client's qualifications for bail pending trial and any related legal grounds. | *the facts and reasons supporting bail, including information regarding the client's qualifications for bail pending trial and any related legal grounds. | ||
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If the bail is to be guaranteed by property, the source and reliability of the security deposit shall be specified. Next, the organization to which the application is submitted shall be specified. The end of the application shall include the seal of the legal aid institution or law firm, the signature of the lawyer and the date of application. The written application shall be submitted with identification proof for both the guaranteed and the guarantor (or security deposit). | If the bail is to be guaranteed by property, the source and reliability of the security deposit shall be specified. Next, the organization to which the application is submitted shall be specified. The end of the application shall include the seal of the legal aid institution or law firm, the signature of the lawyer and the date of application. The written application shall be submitted with identification proof for both the guaranteed and the guarantor (or security deposit). | ||
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| + | :Examination and approval for bail pending trial: After receiving the written application for bail, the relevant authority shall examine the application and reply within seven days. For applications that are rejected, the lawyer may request a review of the decision or apply to a higher authority for re-examination. | ||
