Criminal Legal Aid and the Defendant S Responsibility

Legal Aid for Criminal Cases and Responsibilities of Defenders

Wang Minyuan

The legal aid for the criminal cases means in the course of criminal proceedings, the institutions and the persons that take responsibility for the legal aid should provide the criminal defendants and the crime suspects who face financial difficulties and the parties involved in special cases with free legal aid services in order to safeguard their lawful rights and interests. On account of the special value of the legal aid for the criminal cases in the whole criminal defense system,1 and in view of its positive significance for the criminal judicial justice, I will discuss some issues related to the defenders’ responsibilities during the legal aid for the criminal cases, which is beneficial to deepening of the theoretical studies, promoting the system construction of the legal aid for the criminal cases, developing the criminal defense, and full promotion of the functions of the defenders providing legal aid for the criminal cases. Although debate on this issue based on actual practices will be much more significant, here I will only demonstrate theoretical analysis according to the basic characters of the legal aid for the criminal cases due to a limited understanding of the actual practices.

I. The Defense Responsibility Required by Extended Content of the Legal Aid for Criminal Cases The extended content of the criminal legal aid is that the defenders who take responsibility for providing legal aid services offer more legal services for the targets and bear heavier responsibility compared to the legal aid for civil cases and other cases. In specific, the lawyers affording

 Professor of Institute of Law, Chinese Academy of Social Sciences 1 Chinese criminal legal aid system plays an important role in the criminal defense system, which is reflected not only by the actual number of the criminal cases involving with the legal aid (the statistics show that the number of the criminal cases involving the legal aid amount to 60,693 in 2002, reference to Rule of Law Blue Book------China Rule of Law Development Report, P460, Xia Yong, chief editor, Social and Scientific Document Press, 2004.), but also by the positive influence on the total number of the criminal cases involving with the defense (the percentage of the criminal defense is lower than 30/100 in China, yet the percent of the criminal legal aid cases is considerable).

1 the legal aid for the criminal cases provide the targets with both the defence in courts and the legal services required by the criminal defendants and suspects. The extended content of the criminal legal aid is mainly based on the extended rights of the criminal defendants and criminal suspects. In the modern criminal procedure legal system, the right to defense is a fundamental right of the criminal defendants and suspects. Therefore, the lawyers who are responsible for providing the legal aid to the criminal defendants and suspects are obliged to provide legal services for the criminal defendants and suspects; furthermore, they shall afford other legal services such as application for the bailment and await trial for the criminal defendants and suspects arrested with an aim to protect legal rights and interests of the criminal defendants and suspects. The latter is quite different from the defence, yet it is a kind of important legal service which has a significance for the protection of the legal rights and interests of the criminal defendants and the suspects. Of course, the extended content of the criminal legal aid is preconditioned by the integrality of the legal aid in the course of criminal proceedings. If the lawyers who are responsible for providing the criminal legal aid don’t take part in the whole criminal proceedings, in other words, without complete participation in the whole criminal proceedings, the characteristic of the extension of the content of the criminal legal aid will be greatly restricted. For instance, if the lawyers who are responsible for providing the criminal legal aid don’t get involved in the criminal proceedings at the investigation stage, they certainly may not provide the legal services such as legal consulting opinions and applying for the bailment and await trial to the suspects at this stage. Therefore, the integrality of the legal aid in the course of criminal proceedings is another characteristic that shall be paid more attention to when we emphasize the defenders’ responsibility.

II. The Integrality of the Legal Aid in the Course of the Criminal Proceedings and Defense Responsibilities The integrality of the legal aid in the course of the criminal proceedings means the lawyers who are responsible for providing the criminal legal aid shall provide legal services for the criminal defendants and suspects during the whole criminal proceedings. It developed on a basis that the criminal proceedings are not limited to the court trial. We

2 know that most public prosecution cases shall be brought into the court trial after the investigation and institution, however as the targets prosecuted in criminal proceedings the criminal defendants (they are called “suspects” at the stage of investigation) are the core from investigating to instituting an action and trial all the time. Therefore, the legal aid required shall be provided in the whole course of the criminal proceedings from investigating to instituting an action and trial. Clearly, if the legal aid were provided at the stages of the criminal prosecution or trial but not at the stage of investigating, the positive significance of the criminal legal aid for protecting legal rights and interests of the criminal defendants and suspects will be seriously damaged. In Chinese criminal proceedings, in view of the special practice that if the criminal defendants convict guilty are mainly determined by the result of the investigation, the general fact that the suspects’ legal rights and interests are frequently violated at the investigating stage, the legal aid shall be provided during the all criminal proceedings with an aim to assure availability of the legal aid to the suspects during the investigation stage. At this point, if the criminal legal aid were provided in some proceedings rather than the whole proceedings of the three stages from the investigating to the prosecuting and the trial in the criminal proceedings, it is inadequate and can not fully protect the legal rights and interests of the criminal defendants and suspects. In this sense, the relative provisions2 in Legal Aid Regulation enacted by the State Council in 2003 assure the availability of the legal aid to the suspects at the investigating stage, which plays a positive role in perfecting China’s criminal legal aid system, fully promoting the functions of the criminal defenders, and assuring their performance of the defense responsibilities.

III. The Special Characters of the Targets of the Criminal Legal Aid and Defense Responsibility The special characters of the targets of the criminal legal aid are mainly reflected in two aspects. Firstly, the targets of the legal aid in civil and administrated cases are plaintiffs in the proceeding, whereas the targets

2 Legal Aid Regulation Article 11(1) provides that the criminal suspect, due to financial difficulties, has not retained a lawyer after first being interrogated by an investigative organ or from the date that compulsory measures are adopted, may apply for the legal aid. This provision makes up for the legal aid at the investigation stage. However, if we take into account of the compulsory defence which will be discussed later on, this provision needs further improved.

3 of the legal aid in the criminal proceeding are criminal defendants;3 secondly, compared to the legal aid in civil and administrative cases, the legal aid in the criminal proceedings are based on both financial difficulty of the criminal defendants and suspects and special characters of the criminal cases. As it is known, the establishment of the legal aid system mainly helps those people who, due to financial difficulty, have not retained legal counsel. Therefore, the targets are those people who, due to financial difficulty, have not retained a lawyer or a legal counsel. In some special civil or administrative proceedings, the parties, due to financial difficulty, have not retained a counsel may apply to the legal aid organ for the legal aid. However, in the criminal proceedings, the targets of the legal aid have the specific characteristic. On one hand, in all public prosecution cases, if the public prosecutor holding the public action appears in court, while the defendant hasn’t retained the defender due to financial difficulty or other reasons, the defendant may apply for the legal aid; on the other hand, if the criminal cases possessed specific nature and the criminal defendants had the specific circumstance, the premise of the ’financial difficulty ’ will not be essential for the criminal defendant to apply for the legal aid. For example, if there is possibility that the defendant may be sentenced to death and yet he hasn’t entrusted anyone to be his defender; or if the defendant is blind, deaf, mute or if he is a minor, the legal aid must be provided to them even without the premise of the ‘financial difficulty’. Compared with the targets of the legal aid in the civil or administrative proceedings, the targets in the criminal proceedings have special characteristics, the reason are as follows: firstly, if the plaintiffs in some specific civil or administrative proceedings may apply for the legal aid is because of their disadvantaged position and it is necessary to provide them with the legal aid; in the criminal public action cases, to certain extent, it is necessary to provided the criminal defendants with the legal aid since they are disadvantaged group compared to the prosecutorater organs. if the defendant is blind, deaf, mute or if he is a minor, the free legal aid must be provided to them in consideration of their disadvantaged position;

3 Of course, according to the Legal Aid Regulation Article 11(2) and (3), in the course of public prosecution, the victim and his lawful representative or close relatives, an individual initiating private prosecution and his lawful representative, due to financial difficulty, have not retained legal counsel, may apply for the legal aid. Yet the legal aid in the criminal proceedings mainly refers to the legal aid provided to the criminal defendants and suspects, which this paper focus on.

4 secondly, Secondly, because of the criminal proceedings relating to the criminal defendants’ important rights, such as right to property, right to freedom even right to life and so on, therefore, it is very important that the defenders play a great role in safeguarding the criminal defendants’ rights and interests in proceedings. In the cases in which defendants might be sentenced to death, their rights and interests shall be more completely protected. From this sense, the defenders undertake more important responsibility for providing the legal aid in the criminal proceedings than that in other kinds of proceedings. Furthermore, they confront with the stronger prosecution and face more difficulties in the criminal proceedings compared with other kind of proceeding. These difficulties are compounded by the failure of the guaranteeing mechanism for the defenders to perform their duties in Chinese Criminal Procedural Law. The above-mentioned characteristics of the targets of the legal aid in the criminal proceedings and the specific requirements put forward for the defenders and the difficulties faced by them will be further illustrated by the mandatory characteristic of the legal aid in the criminal proceedings.

IV. The Mandatory Characters of the Legal Aid in Criminal Proceedings and Defense Quality The mandatory characters of the legal aid in criminal proceedings means the court presiding a trial, the prosecutorates organ responsible for prosecution and institution of proceedings and the investigation organ shall designate a lawyer to the targets of the legal aid in cases ‘demanded by the judicial interests’, which is a duty and mandatory. Although there is a clear provision about the cases ‘demanded by the judicial interests’ in UN Civil Rights and Political Rights Convernant Article 14(3), it mainly means the criminal cases committed by minors in view of the related international documents. what’s more, UN Economic and Social Council considers that the cases involving the death penalty obviously needs lawyers, which falls into the category of cases ‘demanded by the judicial interests’.4 Of course, the mandatory characteristic of the legal aid in criminal

4 “ Provisional Agenda Item” Article 10(D), adopted by UN Economic and Social Council,in1991. Pursuant to the Revised Criminal Procedure Law, Act of Lawyer, Legal Aid Regulation mentioned above and the relative judicial interpretations, at present, cases involving possible imposition of the death penalty or if the defendant is a minor or if the defendant is blind, deaf and mute fall into the category of the cases ‘demanded by the judicial interests ’ in China and the mandatory defence shall be provided to them.

5 proceedings has different meaning to the different subjects in criminal proceedings. From actual situation in China at the moment, the mandatory character is reflected mainly in the two aspects. On one hand, the court presiding a trial, the prosecutorater organ responsible for prosecution and the investigating apparatus shall designate a lawyer to the parties in cases involving possible imposition of the death penalty, or if the defendant is a minor, or if the defendant is a blind, deaf or mute, and have not entrusted anyone to be his defender due to financial difficulty or other reasons5; on the other hand, the legal aid organs, when the court assigned the defenders to provide legal aid, are obliged to provide the legal aid. This mandatory characteristic of the legal aid in criminal proceedings helps to extend its application scope in order to fully promote judicial justice and protection of human rights in the criminal proceedings. Of course, it also means greater difficulties for assuring defence quality. On one hand, the court presiding a trial and the prosecutorater organ responsible for prosecution and the investigating apparatus shall designate a lawyer for the criminal defendants and suspects in cases ‘demanded by the judicial interests’, which often reveals inadequate qualification and defence experience of the designated lawyer; on the other hand, the designated lawyer may not provide best defence for the defendants due the mandatory character of the defence responsibility. If we consider the present misunderstanding for the criminal defenders and their responsibility, which comes from both official and civil society, if we consider different kinds of actual difficulties in carrying out the defence responsibility, we shall have a further understanding for the responsibility of the criminal lawyers in the legal aid in criminal proceedings. By the above analysis, we can conclude that although the legal aid in criminal proceedings is important, and defence lawyers take important responsibility, the promotion of their functions still faces different kinds of actual difficulties. Greater efforts shall be made to assure availability of the legal aid in criminal proceedings provided by the defence lawyers and to assure promotion of the positive development of the legal aid in criminal proceedings.

5 Pursuant to the “The Explanation of Problems about Executing Criminal Procedure Law of PRC” Article 38, the Supreme Court, in 1998, the force is so emphasized prominently that the problems with the defendants refusal of defense in this kind of case also become very complex.