Chương IV Bộ luật Tố tụng Hình sự 2003: Người tham gia tố tụng

Chapter IV: PARTICIPANTS IN THE PROCEDURE

Article 48.- Persons held in custody

1. Persons held in custody are persons arrested in urgent cases, offenders caught red-handed, persons arrested under pursuit decisions, or confessing or self-surrendering offenders against whom custody decisions have been issued.

2. Persons held in custody shall have the following rights:

a/ To be informed of the reasons for their custody;

b/ To be explained on their rights and obligations;

c/ To present their statements;

d/ To defend by themselves or ask other persons to defend them;

e/ To present documents, objects as well as claims;

f/ To complain about their custody, procedural decisions or acts of the bodies and/or persons with procedure-conducting competence.

3. Persons held in custody shall have the obligation to observe the law provisions on custody.

Article 49.- The accused

1. The accused are persons against whom criminal proceedings have been initiated.

2. The accused shall have the following rights:

a/ To be informed of the offenses which they have been accused of;

b/ To be explained on their rights and obligations;

c/ To present their statements;

d/ To present documents, objects as well as claims;

e/ To request the change of procedure-conducting persons, experts and/or interpreters in accordance with the provisions of this Code;

f/ To defend by themselves or ask other persons to defend them;

g/ To receive decisions to institute the criminal cases; decisions to apply, change or cancel deterrent measures; written investigation conclusions; decisions to cease investigation or suspend investigation; decisions to cease or suspend the criminal cases; indictments; decisions on their prosecution; and other procedural decisions as prescribed by this Code;

h/ To complain about procedural decisions and acts of the bodies and persons with procedure-conducting competence.

3. The accused must appear in response to the summonses of investigating bodies or procuracies; in case of non-appearance without plausible reasons, they may be escorted; if they escape, they shall be pursued.

Article 50.- Defendants

1. Defendants are persons whom the courts have decided to bring for trial.

2. Defendants have the following rights:

a/ To receive decisions to bring the cases for trial; decisions to apply, change or cancel deterrent measures; decisions to cease the cases; judgments and/or decisions of the courts; and other procedural decisions as prescribed by this Code;

b/ To participate in court sessions;

c/ To be explained on their rights and obligations;

d/ To request the change of procedure-conducting persons, experts and/or interpreters in accordance with this Code;

e/ To present documents, objects as well as claims;

f/ To defend by themselves or ask other persons to defend them;

g/ To present opinions, argue at court sessions;

h/ To have final words before the judgment deliberation;

i/ To appeal against judgments and decisions of the courts;

j/ To complain about procedural decisions and acts of the bodies and persons with procedure-conducting competence.

3. Defendants must appear in response to the subpoenas of the courts; in case of non-appearance without plausible reasons, they may be escorted; if they escape, they shall be pursued.

Article 51.- Victims

1. Victims are persons suffering from physical, spiritual and/or property damage caused by offenses.

2. Victims or their lawful representatives shall have the following rights:

a/ To present documents, objects as well as claims;

b/ To be informed of the investigation results;

c/ To request the change of procedure-conducting persons, experts and/or interpreters in accordance with the provisions of this Code;

d/ To suggest the compensation levels and measures to secure such compensation;

e/ To participate in court sessions; present their opinions and arguments at court sessions in order to protect their legitimate rights and interests;

f/ To complain about procedural decisions and acts of the bodies and persons with procedure-conducting competence; to appeal against court judgments and decisions regarding the compensations to be paid by, as well as the penalties imposed on, the defendants.

3. Where the criminal cases are instituted at the requests of victims as prescribed in Article 105 of this Code, the victims or their lawful representatives shall present their accusations at court sessions.

4. Victims must appear in response to the summonses of investigating bodies, procuracies or courts; if they refuse to give testimonies without plausible reasons, they may bear penal liability according to Article 308 of the Penal Code.

5. In cases where victims are deceased, their lawful representatives shall have the rights defined in this Article.

Article 52.- Civil plaintiffs

1. Civil plaintiffs are individuals, agencies or organizations suffering from damage caused by offenses and file claims for damages.

2. Civil plaintiffs or their lawful representatives shall have the following rights:

a/ To present documents, objects as well as claims;

b/ To be informed of the investigation results;

c/ To request the change of procedure-conducting persons, experts and/or interpreters in accordance with the provisions of this Code;

d/ To suggest the compensation levels and measures to secure such compensation;

e/ To participate in court sessions; to present their opinions and arguments at court sessions in order to protect their legitimate rights and interests;

f/ To complain about procedural decisions and acts of the bodies and persons with procedure-conducting competence;

g/ To appeal against court judgments and decisions regarding damage compensation.

3. Civil plaintiffs must appear in response to the summonses of investigating bodies, procuracies or subpoenas of courts, and present honestly details related to their claims for damages.

Article 53.- Civil defendants

1. Civil defendants are individuals, agencies or organizations prescribed by law to pay compensation for damage caused by criminal acts.

2. Civil defendants or their lawful representatives shall have the following rights:

a/ To complain about the civil plaintiffs’ claims for damages;

b/ To present documents, objects as well as claims;

c/ To be informed of the investigation results related to the compensation requests;

d/ To request the change of procedure-conducting persons, experts and/or interpreters in accordance with this Code;

e/ To participate in court sessions; to present their opinions and arguments at court sessions to protect their legitimate rights and interests;

f/ To complain about procedural decisions and acts of the bodies and persons with procedure-conducting competence;

g/ To appeal against court judgments and decisions regarding damage compensation.

3. Civil defendants must appear in response to the summonses of investigating bodies, procuracies or subpoenas of courts, and present honestly details related to the damage compensation.

Article 54.- Persons with interests and obligations related to criminal cases

1. Persons with interests and obligations related to criminal cases or their lawful representatives shall have the following rights:

a/ To present documents, objects as well as claims;

b/ To participate in court sessions; to present their opinions and arguments at court sessions in order to protect their legitimate rights and interests;

c/ To appeal against court judgments and decisions regarding matters directly related to their interests and obligations;

d/ To complain about procedural decisions and acts of the bodies and persons with procedure-conducting competence;

2. Persons with interests and obligations related to criminal cases must be present in response to the summonses of investigating bodies, procuracies or subpoenas of courts, and present honestly details directly related to their interests and obligations.

Article 55.- Witnesses

1. Those who know details pertaining to criminal cases may all be summoned to give testimonies.

2. The following persons shall not be allowed to act as witnesses:

a/ Defense counsels of the accused or defendants;

b/ Persons with physical or mental defects which render them incapable of perceiving details of the criminal cases or incapable of giving truthful statements.

3. Witnesses shall have the following rights:

a/ To ask the bodies which have summoned them to protect their life, health, honor, dignity, property and other legitimate rights and interests when participating in the procedure;

b/ To complain about procedural decisions and acts of agencies and persons with procedure-conducting competence;

c/ To be paid by the summoning agencies the travel and other expenses as prescribed by law.

4. Witnesses shall have the following obligations:

a/ To appear in response to the summonses of investigating bodies, procuracies or subpoenas of courts; in case of deliberate absence without plausible reasons and their absence causes impediments to the investigation, prosecution or trial, they may be escorted;

b/ To honestly state all details they know about the cases.

Witnesses who refuse or shirk to testify without plausible reasons shall bear penal liability according to Article 308 of the Penal Code; if giving false testimonies, they shall bear penal liabilities according to Article 307 of the Penal Code.

Article 56.- Defense counsels

1. Defense counsels may be:

a/ Lawyers;

b/ Lawful representatives of the persons in custody, the accused or defendants;

c/ People’s advocates.

2. The following persons shall not be allowed to act as defense counsels:

a/ Persons who have conducted the procedure in such cases; are next of kin of persons who conducted or are conducting the procedure in such cases;

b/ Persons who participate in such cases in the capacity as witness, expert or interpreter.

3. One defense counsel may defend many persons in custody, accused or defendants in the same case provided that the rights and interests of such persons are not conflicting. Many defense counsels may defend one person held in custody, accused or defendant.

4. Within three days counting from the date of receiving the requests of the defense counsels enclosed with papers related to the defense, the investigating bodies, procuracies or courts must consider and grant them the defense counsel’s certificates so that they can perform the defense. If refusing to grant such certificates, they must state clearly the reasons therefor.

In case of keeping persons in custody, within 24 hours as from the time of receiving the requests of the defense counsels enclosed with the papers related to the defense, the investigating bodies must consider and grant them the defense counsel’s certificates so that they can perform the defense. If refusing to grant such certificates, they must state clearly the reasons therefor.

Article 57.- Selection and change of defense counsels

1. Defense counsels shall be selected by persons kept in custody, the accused, defendants or their lawful representatives.

2. In the following cases, if the accused, defendants or their lawful representatives do not seek the assistance of defense counsels, the investigating bodies, procuracies or courts must request bar associations to assign lawyers’ offices to appoint defense counsels for such persons or request the Vietnam Fatherland Front Committees or the Front’s member organizations to appoint defense counsels for their organizations’ members:

a/ The accused or defendants charged with offenses punishable by death as the highest penalty as prescribed by the Penal Code;

b/ The accused or defendants being minors or persons with physical or mental defects.

In the cases specified at Point a and Point b, Clause 2 of this Article, the accused or defendants and their lawful representatives stall have the right to request the change of, or refuse to have, defense counsels.

3. The Vietnam Fatherland Front Committees and the Front’s member organizations shall have the right to appoint people’s advocates to defend the persons kept in custody, the accused or defendants who are their organizations’ members.

Article 58.- Rights and obligations of defense counsels

1. Defense counsels shall participate in the procedure from the initiation of criminal proceedings against the accused. In case of arresting persons under the provisions of Article 81 and Article 82 of this Code, defense counsels shall participate in the procedure from the time the custody decisions are issued. In case of necessity to keep secret the investigation of the crimes of infringing upon national security, the chairmen of procuracies shall decide to allow defense counsels to participate in the procedure from the time of termination of investigation.

2. Defense counsels shall have the following rights:

a/ To be present when testimonies are taken from the persons in custody, when the accused are interrogated, and, ask questions to the persons in custody or the accused if so consented by investigators; and to be present in other investigating activities; to read the minutes of the proceedings in which they have participated, and procedural decisions related to the persons whom they defend;

b/ To request investigating bodies to inform them in advance of the time and places of interrogating the accused so as to be present when the accused are interrogated;

c/ To request the change of procedure-conducting persons, experts and/or interpreters in accordance with the provisions of this Code;

d/ To collect documents, objects and details related to their defense from the persons in custody, the accused, defendants, their next of kin or from agencies, organizations and individuals at the requests of the persons in custody, the accused or defendants, provided that they are not classified as State secrets or working secrets;

e/ To present documents, objects as well as claims;

f/ To meet the persons kept in custody; to meet the accused or defendants being under temporary detention;

g/ To read, take notes of and copy records in the case files, which are related to their defense, after the termination of investigation according to law provisions;

i/ To participate in questioning and arguing at court sessions;

j/ To complain about procedural decisions and acts of the bodies and persons with procedure-conducting competence;

k/ To appeal against court judgments or decisions if the defendants are minors or persons with physical or mental defects as prescribed at Point b, Clause 2 of Article 57 of this Code.

3. Defense counsels shall have the following obligations:

a/ To apply every measure prescribed by law to clarify the details to prove the innocence of the persons in custody, the accused or defendants as well as circumstances to mitigate the penal liability of the accused or defendants.

Depending on each stage of the procedure, when collecting documents and/or objects related to the cases, defense counsels shall have to deliver them to investigating bodies, procuracies or courts. The delivery and receipt of such documents and objects between defense counsels and the procedure-conducting bodies must be recorded in a minutes according to Article 95 of this Code;

b/ To provide legal assistance to the persons in custody, the accused or defendants in order to defend their legitimate rights and interests;

c/ Not to refuse to defend the persons in custody, the accused or defendants whom they have undertaken to defend if they have no plausible reasons therefor.

d/ To respect truth and law; not to bribe, force or incite other persons to give false statements or supply untruthful documents;

e/ To appear in response to court subpoenas;

d/ Not to disclose investigation secrets they know while performing the defense; not to use notes taken and/or copied from the case files for the purpose of infringing upon the State’s interests; the legitimate rights and interests of agencies, organizations and individuals;

4. Defense counsels who act against laws shall, depending on the nature and seriousness of their violations, have their defense counsel’s certificates revoked, be disciplined, administratively sanctioned or examined for penal liability; if causing damage, they shall have to pay compensation therefor according to law provisions.

Article 59.- Defense counsels of interests of involved parties

1. Victims, civil plaintiffs, civil defendants, persons with interests and obligations related to criminal cases shall all have the right to ask lawyers, people’s advocates or other persons, who are accepted by investigating bodies, procuracies or courts, to protect their interests.

2. Defense counsels of the interests of the involved parties may participate in the procedure from the time when criminal proceedings are initiated against the accused.

3. Defense counsels of the interests of the involved parties shall have the following rights:

a/ To produce documents, objects as well as claims;

b/ After the investigation completes, to read, take note of and copy documents in the case files, which are related to the protection of the interests of the involved parties according to law provisions;

c/ To participate in questioning and arguing at court sessions; to read the minutes of court sessions;

d/ To complain about procedural decisions and acts of the bodies and persons with procedure-conducting competence.

Defense counsels of the interests of victims, civil plaintiffs, civil defendants shall have the right to request the change of procedure-conducting persons, experts and/or interpreters in accordance with the provisions of this Code.

For involved parties being minors or persons with physical or mental defects, the defense counsels of their interests shall have the right to be present when the procedure-conducting bodies are taking statements from the persons whom they protect; to appeal parts of court judgments or decisions regarding the interests and obligations of the persons whom they protect.

4. The defense counsels of the interests of the involved parties shall have the following obligations:

a/ To apply all measures prescribed by law to contribute to clarifying the truths of the cases;

b/ To provide the involved parties with legal assistance in order to protect their legitimate rights and interests.

Article 60.- Experts

1. Experts are persons possessing necessary knowledge about the domains to be expertised, who are invited by the procedure-conducting bodies according to law provisions.

2. Experts shall have the following rights:

a/ To study documents of the cases, which are related to the to be-expertized objects;

b/ To request the expertise-soliciting bodies to supply documents necessary for the conclusion;

c/ To join the interrogation, taking of statements and to ask questions about matters related to the to be-expertized objects;

d/ To refuse to expertise in cases if they are not given enough time for the expertise; are supplied with documents which are inadequate or invalid for making conclusions; or the contents asked to be expertised are beyond their expert knowledge;

e/ To write their own conclusions in the written general conclusions if disagreeing with the general conclusions in cases where the expertise has been conducted by a group of experts.

3. Experts must appear in response to the summonses of investigating bodies, procuracies or subpoenas of courts; they must not disclose investigation secrets which they know while participating in the procedure in the capacity as expert.

Experts who refuse to make expertise conclusions without plausible reasons shall bear penal liability under Article 308 of the Penal Code. If making false conclusions, they shall bear penal liability under Article 307 of the Penal Code.

4. Experts must refuse to participate in the criminal procedure or be changed if:

a/ They fall into one of the cases defined in Clause 1 and Clause 3, Article 42 of this Code;

b/ They have conducted the procedure in the capacity as head, deputy head of the investigating body, investigator, chairman or vice-chairman of the procuracy, procurator, president or vice-president of the court, judge, juror or court clerk, or have participated in the capacity as defense counsel, witness or interpreter in such cases.

The change of experts shall be decided by the expertise-soliciting agencies.

Article 61.- Interpreters

1. Interpreters shall be required by investigating bodies, procuracies or courts in cases where the procedures are participated by persons who cannot use Vietnamese.

2. Interpreters must appear in response to the summonses of investigating bodies, procuracies or subpoenas of courts and must interpret truthfully, must not disclose investigation secrets; if they interpret falsely, the interpreters shall bear penal liability according to Article 307 of the Penal Code.

3. Interpreters must refuse to participate in the procedure or be changed if:

a/ They fall into one of the cases defined in Clause 1 and Clause 3, Article 42 of this Code;

b/ They have conducted the procedure in the capacity as head, deputy head of the investigating body, investigator, chairman or vice-chairman of the procuracy, procurator, president or vice-president of the court, judge, juror or court clerk, or have participated in the capacity as defense counsel, witness or expert in such cases.

The change of interpreters shall be decided by the requesting agencies.

4. The provisions of this Article shall also apply to persons who know signs of the dumb and the deaf.

Article 62.- Responsibility to explain and guarantee the exercise of the rights and the performance of obligations of participants in the procedure

The procedure-conducing bodies and persons shall have to explain and guarantee the exercise of the rights and the performance of obligations of participants in the procedure in accordance with of this Code. The explanation must be recorded in a minutes.