Rights and Obligations of Criminal Defense Lawyers
RIGHTS AND OBLIGATIONS OF CRIMINAL DEFENSE LAWYERS
A COMPILATION OF RELEVANT STATUTES
The right of criminal defense lawyers to mount a defense is protected by law (Law of the People's Republic of China on Lawyers: Articles 36 and 37)
• Article 36: When serving as a litigant representative or defender, a lawyer’s rights to debate or defend should be protected according to the law.
• Article 37: In legal practice, a lawyer's right of the person is inviolable.
The right to meet with a client (Criminal Procedure Law: Article 39; Interpretation on the Application of the "Criminal Procedure Law of the PRC", Supreme People’s Court, 2021: Article 56)
• Article 39: Defense lawyers can meet and communicate with criminal suspects and defendants in custody. Other defenders may also meet and communicate with criminal suspects and defendants who are in custody with the permission of the People's Court and the People's Procuratorate. Detention centers should promptly arrange meetings no later than 48 hours upon requests from defense lawyers holding a lawyer’s practice certificate, proof from a law firm and a letter of representation or legal aid letter, to meet criminal suspects in custody. During the investigation period of cases of crimes endangering national security or involving terrorist activities, defense lawyers shall obtain permission from investigating organs before they meet the criminal suspects under custody. Investigating organs should inform the detention centers beforehand. Defense lawyers can learn of the case circumstances and offer legal consultation during meetings with criminal suspects or defendants in custody; from the date the case is transferred for examination and prosecution, they can verify the relevant evidence with the criminal suspects and defendants. Defense lawyers meeting criminal suspects and defendants should not be monitored or listened in on. Paragraphs 1, 3, and 4 of the Rules are applicable to defense lawyers meeting and communicating with criminal suspects and defendants under residential surveillance.
• Article 56 of Interpretation on the Application of the "Criminal Procedure Law of the PRC", Supreme People’s Court, 2021: Defense lawyers can meet and communicate with defendants who are in custody or under residential surveillance. Other defenders may also meet and communicate with defendants who are in custody or under residential surveillance with the permission of the people's court.
• According to Article 52 of the Public Security Organs Procedural Rules for Handling Criminal Cases (2020 Revised Edition), where a defense lawyer applies to meet with a criminal suspect in a case of crimes endangering national security or involving terrorist activities, case-handling departments shall, except in circumstances that hinder the investigation or may reveal state secrets, within three days of receiving the application, report to the persons in charge of public security organs at or above the county level to obtain approval, and to make a decision on permission. In cases involving circumstances that hinder the investigation or may reveal state secrets, the public security organ shall permit the meeting after the circumstances disappear.
The right to file petition and complaints (Criminal Procedure Law: Article 38)
• Article 38: During the investigation period, a defense lawyer may provide a criminal suspect with legal aid, file petitions and complaints on the suspect's behalf, apply for alteration of the compulsory measures, find out from the investigating organ the offense of which the criminal suspect is convicted and the information pertaining to the case, and offer his/her opinions.
• According to Article 42(3) of Public Security Organs Procedural Rules for Handling Criminal Cases, defense lawyers are allowed to provide legal aid, file petitions and complaints on the suspect's behalf.
The right to apply for bail on behalf of the defendant (Criminal Procedure Law: Articles 67 and 97)
• Article 67: A people’s court, people’s procuratorate and public security organ may allow a criminal suspect or defendant under any of the following conditions to be released on bail pending trial:
1. The criminal suspect or defendant commits a crime punishable by public surveillance, criminal detention or supplementary punishments separately meted out;
2. The criminal suspect or defendant commits a crime punishable by fixed-term imprisonment or severer punishments, but would not pose a threat to the society if he/she is released on bail pending trial;
3. Where the criminal suspect or defendant is suffering from a serious illness and cannot take care of him/herself, or is during pregnancy and breastfeeding period, thus would not pose a threat to the society if he/she is released on bail pending trial; or
4. His/her case has not been concluded upon expiry of the detention period, and therefore he/she needs to be released on bail pending trial.
Release on bail pending trial shall be executed by public security organs.
• Article 97: A criminal suspect or defendant and his/her statutory representative, close relatives or defender shall be entitled to apply for change of the compulsory measures. The people’s court, people ’s procuratorate and public security organ concerned shall make a decision within three days upon receipt of the application, and shall inform the applicant of the reasons for disapproval of such changes.
The right to consult, excerpt and reproduce the case file materials (Criminal Procedure Law: Article 40; Interpretation on the Application of the "Criminal Procedure Law of the PRC", Supreme People’s Court, 2021: Article 60)
• Article 40: A defense lawyer may, from the date on which the relevant people’s procuratorate begins to examine the case for prosecution, consult, excerpt and reproduce the case file materials.
• Article 60: People's courts shall consent where defense lawyers apply directly to the people's court to gather or collect evidence from a witness, unit, or individual, and the people's court finds that it is truly necessary, and further, that it is inappropriate or impossible for the defense lawyer to gather to collect it.
The right to investigate and collect evidence (Criminal Procedure Law: Article 40; Law of the People's Republic of China on Lawyers: Article 35)
• Article 40: A defense lawyer may, from the date on which the relevant people’s procuratorate begins to examine the case for prosecution, consult, excerpt and reproduce the case file materials. Other defenders, with permission of the people’s procuratorate or people’s court, may also consult, excerpt and reproduce the above-mentioned materials.
• Article 35: When a lawyer investigates to collect evidence for a case on his own, he may, on the strength of his lawyer’s practice certificate and the papers issued by his law firm, inquire of the unit or individual concerned about the legal matters which he has undertaken to handle.
The right to question witnesses (Criminal Procedure Law: Article 194)
• Article 194: Before a witness gives testimony, the judges shall instruct him to give testimony truthfully and explain to him the legal responsibility that shall be incurred for intentionally giving false testimony or concealing criminal evidence. The public prosecutor, the parties, the defenders and agents ad litem, with the permission of the presiding judge, may question the witnesses and expert witnesses. If the presiding judge considers any questioning irrelevant to the case, he shall put a stop to it.
