The Rights Practice Briefing Paper
discuss important and difficult cases, including all death sentences. The committees are a channel for
Communist Party influence.
A death sentence with immediate execution must be reviewed and approved by the Supreme People’s
Court. This procedure includes a review of the case files, an interview with the defendant and, more
recently, listening to the views of the defence counsel. The new Legal Aid Law, which comes into effect
on January 1, 2022, expands access to legal aid to include death penalty review cases. Lawyers must
have three or more years’ experience.
The SPC began to publish court judgements online, including some death penalty cases, in 2013. Since
June 2021, millions of judgements have been removed from the database including SPC review
decisions of death penalty cases. This move away from earlier promises of greater judicial
transparency has made it more difficult for lawyers and the wider public to understand court decision
making.
International standards
Article 3 of the Universal Declaration of Human Rights states that everyone has the right to life,
liberty and security of person. Since this landmark document the international community, through
the United Nations, has sought to successively restrict the use of the death penalty. In 1971, in its
first resolution on capital punishment the General Assembly concluded that it was ‘desirable’ for
states to abolish the death penalty. Today, there is a widespread presumption against the use of
the death penalty. Growing understanding of the impact of the death penalty and the risks
associated with it have contributed to the evolution of increasingly stringent international
safeguards regarding its use.
Paragraph 1 of Article 6 of the International Covenant on Civil and Political Rights (ICCPR), adopted
in 1966, states that, “Every human being has the inherent right to life. This right shall be protected
by law. No one shall be arbitrarily deprived of his life.” Although Article 6 exempts the death
penalty, paragraphs 2, 4 and 5, seek to restrict its use, including to the “most serious crimes”. The
Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty was adopted
by the UN General Assembly in December 1989; 88 countries have ratified this treaty. In 2018, the
Human Rights Committee issued a new interpretation of Article 6. General Comment 36 sets out
detailed arguments for the narrowest possible use of the death penalty.
China has no individual executive clemency procedure. Chinese courts, however, support defendants
reaching a victim reconciliation agreement (VRA) in murder cases.6 This entails the defendant or their
family paying compensation to the victim’s family and, usually also issuing an apology. A VRA should
help to mitigate the sentence from immediate execution to a suspended death penalty. In the absence
of a criminal compensation scheme in China a VRA also provides the victim’s family with some financial
recompense for their loss. Although the courts are involved in negotiations between the defendant’s
representatives and the victim’s family there is no legal requirement for the judge to agree a stay of
execution where a VRA is agreed.
6
Pascoe, Daniel and Miao, Michelle. “Victim-Perpetrator Reconciliation Agreements in Murder Cases: What Can MuslimMajority Jurisdictions and the PRC Learn from Each Other?” October 6, 2017. International & Comparative Law Quarterly.
Cambridge University Press.
3
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