On The Supervision Of Procuratorial Organs To The Procedure Of Death Sentences Review

The procedure of death sentences review is a special procedure in Criminal Procedure Law of the People's Republic of China. This procedure aims at carrying out China's death policy, executing death sentences strictly, cautiously and preventing wrong convictions. Although the review of death sentences is an independent judicial procedure, the legislation is too simple, which reduces severely the function of the judicial review. As for a long period, there exist several problems in the procedure, such as the rights for the approval of the immediate execution to some higher courts, the way of the review, participants in the review, the period and its supervising system.For a long term, only judges have been examining the written files for the review. They do not open a court session for the review. It seems like an administrative way, but not judicial one. Only one party participates in the procedure, which is against the rule of the Criminal Procedure Law. The procuratorial organs and the defendant should also take part in the review according to the rule of the Criminal Procedure Law. With the participation of the procuratorial organs, the complete supervising system of the review could be set up.According to the constitution and the criminal procedure law, the procuratorial organs should act both as a public prosecutor and as a law supervisor in the procedure of death penalty review. But We should confirm that the purpose of the supervision is to avoid wrong conviction, which is the same the procedure of death sentences review. So the procuratorates'function in the review is to supervise the procedure, so as to execute death penalty prudently and avoid"mis-killing".Firstly, the participation of the people's procuratorates has theoretical basis, including the theory of the balance of the power, the theory of the human rights protection, and the theory of the relief of the legal rights. Secondly, article 129 of the Constitution of the People's Republic of China states that the people's procuratorates are state organs for legal supervision. And article 8 of the criminal procedure law states that the People's Procuratorates shall, in accordance with law, exercise legal supervision over criminal proceedings. According to the regulation of the law, the people's procuratorate has the power to participate in all the period of the criminal cases, which includes the period of filing, investigation, initiation of prosecution, trial and execution. As the procedure of death sentences review is regulated in the criminal procedure law, the people's procuratorates could also participate in the procedure of the reviewThirdly, there are several advantages for the supervision of the procuratorial organs to the procedure of death sentences review. The constitution states that the state respects and protects human rights. And the criminal procedure law is enacted in accordance with the constitution and for the purpose of punishing crimes and protecting people. One task of the procuratorial organs is to protect the citizens' rights of the person and their democratic and other rights. So the participation of the procuratorial organs could protect human rights. Furthermore, the supervision of the procuratorial organs could avoid the abuse of the power of trial, ensure the legality of the death sentences, show the legal value and social value of the system of death sentences review. In this way, it can safeguard the judicial justice. Finally, with the retrieval of the rights of the review in January, 2007, a large amount of death penalty cases will flow into the Supreme People's courts. The public will center more on the process and the results of the death sentences review. The supervising system could ensure people's courts to better carry out the review work.Lastly, the supervising of the procuratorial organs helps to prove that although our country does not abolish the death penalty, we carry it out in prudent and strict way. It could consolidate the diplomatic status, As for the concrete regulation to the supervision, I have several suggestions as follows:I. the way of supervisioni. The Supreme People's Procuratorate should bring forward the opinion to the result of the trial for death sentences made by the higher people's courts.ii. The chief procurator of the Supreme People's Procuratorate participates in the discussion of the death penalty cases reviewed by the judicial committee.iii. Procurators participate in the collegial panels to discuss the death sentences review.iv. If the Supreme People's Procuratorate finds some definite error in a legally effective judgment of the Supreme People's court, it has the power to present a protest against the judgment in accordance with the procedure for trial supervision. And the Supreme People's Court should try the case again.v. During the period of review, if the Supreme People's Procuratorate discover any illegalities, it should put forward the suggestion or opinion in paper and send it to the Supreme People's Court.II. The content of supervisionThe procuratoial organs have the rights to supervise both the process and the result of the review. Furthermore, it has the power to supervise if the judges in trying the case committed acts of embezzlement, bribery, or malpractices for personal gain, or bended the law in making judgment.III. The range of supervisionAccording to the law, The procuratorial organs have the rights to supervise all cases. But in consideration of the cost of the lawsuit, it should supervise those cases based on their complexity, difficulty and social effects.IV. The department of supervision The Supreme People's Procuratorate should set up an independent department to be responsible for all supervising work concerning the procedure of death sentences review.Above all, I think, the effective way to set up the supervising system is to revise the criminal procedure law. Concrete regulation should be included in the law. In this way, we could confirm the supervision of the procuratorial oragns to assure the legality of death sentences review,to protect human rights, and to maintain the judicial justice.