People's Justice: How to deal with procedural flaws in the investigation and prosecution stages?

Gist of the Adjudication: Where a defense lawyer is not assigned to a criminal suspect who might be sentenced to death in accordance with law during the investigation and prosecution phases, but there is no illegal collection of evidence or other conduct that infringes on the criminal suspect's right to personal liberty, the court of first instance shall make a judgment on the substance of the case in accordance with law after review, and the court of second instance shall not revoke the original judgment and remand for a new trial on the procedural issue before trial.

Basic facts of the case

Public prosecution organ: People's Procuratorate of Zhuzhou City, Hunan Province.

Defendants: Li Xiao, Liu Gao, Zeng Xiangling.

In early November 2012, defendants Li Xiao and Liu Gao conspired several times to find a rich woman, steal the money, and then kill people. On the afternoon of November 5, Liu Moumou (the victim), a villager in Nanyangqiao Village, Zhuzhou County, Hunan Province, called to invite Li Xiao to sing. In the process of singing, Li Xiao fabricated the situation that there was a second-hand house purchase in Shifeng District, Zhuzhou City, to test whether he was willing to buy a second-hand house. On the evening of November 5, after many premeditations, Li Xiao and Liu Gao selected the victim Liu Moumou as the target of the robbery, and agreed that Li Xiao would be responsible for luring Liu Moumou to Liu Gao's house, robbing Liu Gao of the money, and killing Liu, and having Liu Gao dismember and destroy the body. For this reason, Li Xiao and Liu Gao successively bought an anonymous mobile phone card, pressure cooker, wig, bone chopping knife, cinnamon, star anise, hammer, textile bag and other crime tools, and Li Xiao handed over the two sharp knives at home to Liu Gao. On the afternoon of November 19, Li Xiao called Liu Moumou and lured Liu to Liu Gao's dormitory in 601 Community, Hetang District, Zhuzhou City, on the grounds that he wanted to buy a second-hand house and asked Liu Moumou to see the house and provide reference. After Liu Moumou entered the room, he inspected Liu Gao's room, and Liu Gao introduced the relevant situation of the house. After Liu Moumou entered the bedroom, Li Xiao and Liu Gao pushed Liu Moumou down on the bed in the room from behind, tied his hands and feet with nylon ropes, sealed his mouth with transparent glue, and snatched away the women's satchel he was carrying. In his satchel, he found 8,800 yuan, 200 Hong Kong dollars, bank cards, passbooks and other items, and took off a gold bracelet, a pair of gold earrings, and a platinum necklace worn by Liu. After that, Li Xiao and Liu Gao repeatedly threatened to kill Liu Moumou, forcing him to write out the amount and password of the bank card, except for 128 yuan on one of the bank cards, there was no money on the other bank cards. Subsequently, Li Xiao and Liu Gao sealed Liu's head with wet plastic bags, causing him to suffocate to death. Li Xiao asked Liu Gao to send a text message to Liu's sister on Liu's mobile phone, so that her family thought she was still alive. Then, Li Xiao took the 4,400 yuan in cash and left. After Li Xiao left, Liu Gao dragged the corpse to the toilet, dismembered the corpse with a knife and hammer, and added the corpse pieces and bones to the star anise and cinnamon bark, and then boiled and pressed them in a pressure cooker. On November 21, Liu Gao packed the cooked corpses, bones, and Liu Moumou's clothes, satchels, and items in the satchel in plastic bags, and together with Li Xiao, discarded the above items to the roadside of Xiangyun Middle Road next to the high-speed rail station in Tianyuan District, Zhuzhou City, the roadside of 007 County in Xiawan Village, Hehua Township, Shifeng District, Zhuzhou City, the Xiangjiang Riverside of Zhaojia Group, Yunhe Village, Majiahe Township, Xiangtan City, and Shifeng Park in Zhuzhou City. On December 7, 2012, Li Xiao and Liu Gao were arrested by the public security organs.

On the afternoon of November 22, 2012, Liu Gao and Li Xiao went to Xinda Consignment Store in Shifeng District, Zhuzhou City, and told Zeng Xiangling that they had stolen a gold bracelet, a pair of gold earrings, and a platinum necklace to sell. Zeng Xiangling bought the above-mentioned gold jewelry for 11,500 yuan. After Liu Yue received 11,500 yuan in cash, he distributed 5,500 yuan to Li Xiao. Zeng Xiangling resold the above-mentioned gold jewelry to Liu Xi'an at a price of 13,380 yuan, making a profit of 1,880 yuan. After identification, the value of the above-mentioned gold jewelry is 18,530.55 yuan.

Adjudication Results

The Intermediate People's Court of Zhuzhou City, Hunan Province, held at trial that defendants Li Xiao and Liu Gao used violent means to rob other people's property for the purpose of illegal possession, and their conduct constituted the crime of robbery; After robbing property, defendants Li Xiao and Liu Gao killed and destroyed the victim's body in order to conceal the facts of the crime, and their conduct constituted the crime of intentional homicide. Defendant Zeng Xiangling clearly knew that the stolen goods were the proceeds of crime, but purchased and sold them, and his conduct constituted the crime of covering up and concealing the proceeds of crime or the proceeds of crime. Defendants Li Xiao and Liu Yue committed multiple crimes, and should be punished concurrently in accordance with law. Defendants Li Xiao, Liu Gao, and Zeng Xiangling truthfully confessed the facts of their crimes, and may be given a lighter punishment in accordance with law. Defendants Li Xiao and Zeng Xiangling were sentenced to fixed-term imprisonment for intentional crimes, and within 5 years after the completion of the criminal punishment, they intentionally committed another crime that should be sentenced to fixed-term imprisonment or higher, and are recidivists and should be given a heavier punishment in accordance with law. Li Xiao and Liu Gao had the same status and role in the joint intentional homicide and robbery crimes, and they were both principal offenders. Accordingly, the Zhuzhou City Intermediate People's Court made a judgment in accordance with the law: 1. The defendant Li Xiao committed the crime of intentional homicide and was sentenced to death and deprived of political rights for life; committed robbery and was sentenced to 9 years imprisonment and a fine of 80,000 yuan; It was decided to carry out the death penalty, deprive him of his political rights for life, and impose a fine of 80,000 yuan. 2. Defendant Liu Yue committed intentional homicide and was sentenced to death and deprived of political rights for life; committed robbery and was sentenced to 9 years imprisonment and a fine of 80,000 yuan; It was decided to carry out the death penalty, deprive him of his political rights for life, and impose a fine of 80,000 yuan. 3. Defendant Zeng Xiangling committed the crime of covering up and concealing criminal proceeds and the proceeds of criminal proceeds, and was sentenced to 1 year imprisonment and a fine of 10,000 yuan. 4. Defendants Li Xiao and Liu Gao shall compensate the plaintiffs in the attached civil lawsuit, Hu Yongjun and Hu Bin, for economic losses of 166,560 yuan, which shall be paid within three months after the judgment takes effect. 5. Reject the plaintiff's other litigation claims in the attached civil lawsuit. After the first-instance verdict was announced, the defendant Li Xiao was dissatisfied with the verdict of the criminal part and appealed. The Hunan Provincial High People's Court ruled to reject the appeal, uphold the original verdict, and report the death sentences of defendants Li Xiao and Liu Gao to the Supreme People's Court for review and approval in accordance with law. The Supreme People's Court ruled to approve the Hunan Provincial High People's Court's death sentence against Li Xiao and Liu Gao.

Case Analysis

In this case, it is worth discussing the two defense opinions put forward by the defendant Liu Gao's defender: first, there were flaws in the investigation procedures in this case, and the legal aid institution was not notified to provide a defense for the defendant in accordance with the law; Second, this case only constituted the crime of robbery. The analysis is as follows:

1. On the issue of procedural flaws in the investigation and prosecution phases

The amended Criminal Procedure Law and the corresponding case-handling rules promulgated by the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security came into effect on January 1, 2013. The case was transferred for review and prosecution by the Hetang District Public Security Bureau of Zhuzhou City on February 20, 2013 after the investigation was concluded, and the investigation period spanned before and after the amended Criminal Procedure Law took effect, and the review for prosecution occurred after the amended Criminal Procedure Law took effect. In accordance with article 34 of the new Criminal Procedure Law, article 41 of the "People's Procuratorate Rules of Criminal Procedure (Provisional)", and article 44 of the "Provisions on Procedures for the Handling of Criminal Cases by Public Security Organs", where a criminal suspect may be sentenced to life imprisonment or death and no defender has been retained, the public security organs and people's procuratorates shall promptly notify the legal aid institution to appoint a defense lawyer for the criminal suspect during their respective litigation phases. However, judging from current judicial practice, the investigation and procuratorial organs of many cases have not strictly observed this provision. This is the case in this case, as neither the investigating agency nor the people's procuratorate notified the legal aid agency to appoint a defense lawyer for Li Xiao and Liu Gao, who may be sentenced to death. Liu Gao's defender in the first instance also pointed out this problem. So, how should the court deal with this procedural issue? In other words, how to understand the impact of this procedural issue on the present case?

Illegal acts in the investigation and prosecution stages usually infringe on two types of rights of criminal suspects: first, the physical rights of criminal suspects such as personal dignity, privacy, and personal freedom; The second is the procedural rights of criminal suspects, such as the right to obtain the assistance of a lawyer. For these two types of infringements, the procedural sanctions provided for in the Criminal Procedure Law of the Mainland only provide for the exclusion of illegal evidence, that is, only the first category of rights of criminal suspects is restricted, which is also the only provision for the court to punish the illegal investigation acts of the investigating organs in accordance with the law. With regard to the second category of rights of criminal suspects, such as the need to notify legal aid institutions to appoint a defense lawyer for criminal suspects who may be sentenced to death, the Criminal Procedure Law does not violate the post-sanction provisions. The stipulation that a defense lawyer shall be appointed to meet the requirements of criminal suspects during the investigation and prosecution phases has been reduced to a declaratory provision, which is also the direct reason why this provision has not been complied with and implemented in judicial practice. As far as the court of first instance is concerned, there is no legal basis to impose sanctions on this procedural violation of the investigation and procuratorial organs, so it can only make a judgment on the substantive handling of the case. As far as the court of second instance is concerned, article 227 of the amended Criminal Procedure Law only stipulates that the trial of the court of first instance shall be ruled to revoke the original judgment and remand for a new trial if the trial violates the following procedures provided by law: (1) the provisions of this law on open trials are violated; (2) Violating the recusal system; (3) Depriving or restricting a party's legally-prescribed procedural rights, which might impact the fairness of the trial; (4) The composition of the trial organization is unlawful; (5) Other litigation procedures that violate legal provisions that might impact the fairness of trial. This is the only provision of the law on criminal procedure on the procedure of the court of second instance for violations of the provisions of the law. This provision is clearly made in response to the procedural problems existing in the court of first instance, and there are no provisions on how to deal with the procedures of the investigation and procuratorial organs that violate the relevant laws and regulations. In this case, there were no procedural issues in the trial of the court of first instance, and the court of second instance had no legal basis to remand the case for retrial in the investigation and prosecution stages.

According to article 36 of the Criminal Procedure Law, the legal assistance provided by defense lawyers to criminal suspects during the investigation phase is mainly to represent them in appeals and accusations, apply for modification of compulsory measures, and learn about the crimes suspected by the criminal suspect and the relevant circumstances of the case. This provision is mainly to protect the defendant from the illegal investigation acts of the investigating authorities, that is, to protect the aforementioned first category of rights of criminal suspects. Judging from the circumstances of this case, the investigating organs investigated and collected evidence against Liu Gao and Li Xiao in accordance with the law, and did not commit acts that violated their substantive rights such as personal dignity, privacy, and personal freedom. Therefore, in this case, although the public security and procuratorial organs did not appoint lawyers for Li Xiao and Liu Gao in accordance with the law, they did not carry out acts such as illegal evidence collection that might be sanctioned by court procedures, and the criminal suspect's failure to be assigned a defense lawyer in accordance with the law during the investigation and prosecution stages did not have a substantial impact on his rights. Therefore, the courts of first and second instance should not magnify the impact of this procedural issue on the trial, but should make a judgment on the substance of the case.

In addition, as far as the court of second instance is concerned, the procedural issues in the case will either be remanded for a new trial or continue to be heard on the substance, depending on the circumstances. If the litigation procedures for violating the law occur during the investigation and prosecution stage, and the court of first instance cannot retroactively make up for the case after the case is remanded for retrial, the court of first instance has no legal basis to return the case to the procuratorate or public security organ, let alone a legal basis to rule that the defendant is not guilty just because of this procedural issue of the public security or procuratorate. Therefore, it is of no practical significance for the second-instance trial of this case to take measures to revoke the original judgment and remand for a new trial for the procedural issue of not appointing a defense lawyer for the criminal suspect during the investigation and prosecution stages.

2. On the issue of the characterization and number of crimes in this case

There were different opinions in the first instance as to whether Li Xiao and Liu Gao were convicted and punished for the crime of robbery or the crimes of intentional homicide and robbery, and the defenders of the first and second trials both proposed that they should be convicted of the crime of robbery. The difference lies in the different understandings of the Supreme People's Court's Reply on the Issue of How to Convict Cases of Intentional Homicide in the Process of Robbery (hereinafter referred to as the "Reply"). The main content of the "Reply" is: "Where the perpetrator premeditates and intentionally kills in order to steal property, or intentionally kills in order to subdue the victim's resistance in the process of stealing property, it shall be convicted and punished as the crime of robbery." Where, after committing robbery, the perpetrator intentionally kills people in order to silence his mouth, he is to be convicted of the crimes of robbery and intentional homicide, and punishment for multiple crimes is to be combined. The difference in understanding is that if the intentional homicide was initiated and premeditated before the robbery, the "Reply" should be applied: "the perpetrator premeditated the murder for the purpose of stealing property...... conviction and punishment for the crime of robbery", or should the provisions of the "Reply" be applied: "If the perpetrator intentionally kills a person for the purpose of killing his mouth after committing robbery, he shall be convicted of the crime of robbery and intentional homicide, and the punishment for several crimes shall be combined"?

In the author's opinion, the content of the Reply should be understood as follows: the nature of intentional homicide in the crime of robbery is determined by the purpose of the intentional homicide, and is not limited by the time of intent, that is, no matter when the perpetrator intends to kill, as long as the act of killing is to remove obstacles and achieve the purpose of robbing property, then the act of intentional homicide is an act of robbery by means and is an objective manifestation of the crime of robbery. If the homicide is an act of silence committed after the completion of the robbery in order to prevent the crime from being exposed, then the same should be evaluated separately from the robbery, regardless of when the intention to kill was initiated, and the crime of robbery and intentional homicide should be punished concurrently. This is the case in this case, although Li Xiao and Liu Gao premeditated the robbery and then killed people before the robbery, the purpose of their premeditated and intentional homicide was to prevent the crime from being exposed; On the objective side, Li Xiao and Liu Gao also committed murder after the robbery was successful. Therefore, the original sentence was appropriate for the crimes of intentional homicide and robbery. After the original verdict was upheld in the second instance, the Supreme People's Court also approved the conviction and sentencing of Li Xiao and Liu Gao in the first and second instance.

Author: Zhou Zhihua

Author's Affiliation:Hunan Provincial High People's Court

Case No. First instance: (2013) Zhu Zhong Fa Xing Yi Chu Zi No. 15 Second instance: (2014) Xiang Gao Fa Xing Yi Zhong Zi No. 239 Review: Supreme People's Court (2015) Xing Yi Fu No. 96316912

Source: People's Justice, Issue 5, 2017

Transferred from Fayao Starry Sky