Chapter 6. Pardons, Appeals, Commutations This chapter considers Safeguards Six, Seven and Eight. These Safeguards focus on the right to appeal to a court of higher jurisdiction, the right to seek pardon, or commutation of sentence, and that capital punishment shall not be carried out pending any of these procedures. We examine the extent to which the right to appeal a death sentence is minimally respected in China. This includes the low rate of overturning a death sentence at the Supreme People’s Court review stage, the impact of seeking compensation and forgiveness from the victim’s family and trial supervision procedures. International Law Regional and international materials on Safeguards Six, Seven and Eight reveal four practices characteristic of an effective appeals process: (1) substantive review of all matters of law and fact; (2) right to counsel during review; (3) right to appeal for amnesty, pardon, or commutation; and (4) stay of execution during review. The UN Human Rights Committee (UNHRC) has stated that there is “a duty to review substantively, both on the basis of sufficiency of the evidence and of the law, the conviction and the sentence, such that the procedure allows for due consideration of the nature of the case.” In its General Comment on article 6 the Committee has stated that States must “take all feasible measures in order to avoid wrongful convictions in death penalty cases.” The UNHRC has also stated that free legal assistance must be provided for appeals and constitutional challenges. The Working Group on the Death Penalty at the African Commission on Human and People’s Rights has expressed concerns about executions pending review by a regional human rights body. Chinese Law The right to appeal against a death sentence in China is minimally respected through both the defendant’s right to appeal and the automatic review that takes place by both the higher court and SPC. The procedure for these reviews is set out below. Although it is generally agreed that the SPC review has contributed to a drop in the number of executions, it is not clear how far the appeals procedures in China really allow a case to be properly reconsidered. While higher level courts can consider both the facts in a case and the application of the law, the political and bureaucratic factors discussed in Chapter 4 suggest that it is very difficult for the courts to overturn decisions taken by lower courts and, particularly, by the police and procuratorate. Lawyers’ participation in the appeals procedures remains limited and poor defendants are discriminated against by the lack of comprehensive quality legal aid. Although deadlines in hearing an appeal against the death penalty can be extended with approval from the SPC, the defence does not have a right to request a delay in order to have adequate time to prepare the defence. The trial supervision procedure does not provide an adequate mechanism for considering death penalty cases where there may be serious grounds for concern that violations of the right to a fair trial have taken place (see section on Trial Supervision Procedures later in this chapter). 45