Chương III Bộ luật Tố tụng Hình sự 2003: Cơ quan tiến hành tố tụng, người tiến hành tố tụng và việc thay đổi người tiến hành tố tụng

Chapter III : PROCEDURE-CONDUCTING BODIES, PROCEDURE-CONDUCTING PERSONS AND THE CHANGE OF PROCEDURE-CONDUCTING PERSONS

Article 33.- Procedure-conducting bodies and procedure-conducting persons

1. Procedure-conducting bodies include:

a/ Investigating bodies;

b/ Procuracies;

c/ Courts.

2. Procedure-conducting persons include:

a/ The heads and deputy heads of investigating bodies, investigators;

b/ Chairmen, vice-chairmen of procuracies, procurators;

c/ Presidents and vice-presidents of courts, judges, jurors, court clerks.

Article 34.- Tasks, powers and responsibilities of heads and deputy heads of investigating bodies

1. The heads of investigating bodies shall have the following tasks and powers:

a/ To directly organize and direct the investigating activities of investigating bodies;

b/ To decide to assign tasks to their deputies and investigators in investigating criminal cases;

c/ To examine investigating activities of their deputies and investigators;

d/ To decide to change or cancel ungrounded and illegal decisions of their deputies and investigators;

e/ To decide to change investigators;

f/ To settle complaints and denunciations falling under the competence of investigating bodies.

When the head of an investigating body is absent, one deputy authorized by such head shall perform the tasks and exercise the powers of the latter. Deputy heads shall be accountable to their heads for their assigned tasks.

2. When investigating criminal cases, the heads of investigating bodies shall have the following tasks and powers:

a/ To decide to institute criminal cases and initiate criminal proceedings against the accused, to decide not to institute criminal cases; to decide to incorporate or separate criminal cases;

b/ To decide to apply, change or cancel deterrent measures ;

c/ To decide to pursue the accused, to search, forfeit, seize, distrain properties, and handle exhibits;

d/ To decide to solicit expertise and exhume corpses;

e/ To make conclusions on the investigation of criminal cases;

f/ To decide to suspend investigation, to decide to cease investigation, to decide resume investigation;

g/ To directly carry out investigating measures; to grant or withdraw defense counsel’s certificates; to issue other decisions and carry out other proceedings falling under the competence of investigating bodies.

3. When being assigned to investigate criminal cases, the deputy heads of the investigating bodies shall have the tasks and powers defined in Clause 2 of this Article.

4. The heads, deputy heads of investigating bodies shall take responsibility before law for their acts and decisions.

Article 35.- Tasks, powers and responsibilities of investigators

1. The investigators assigned to investigate criminal cases shall have the following tasks and powers:

a/ To compile files of criminal cases;

b/ To summon and interrogate the accused; to summon and take testimonies from witnesses, victims, civil plaintiffs, civil dependants and persons with interests and obligations related to the cases;

c/ To decide to escort the accused, decide to escort witnesses;

d/ To execute orders for arrest, custody, temporary detention, search, forfeiture, seizure, distrainment of properties;

e/ To conduct scene examination, autopsy, confrontation, identification and investigative experiments;

f/ To conduct other investigating activities falling under the competence of investigating bodies according to the assignment of the heads of investigating bodies.

2. Investigators shall take responsibility before law and the heads of investigating bodies for their acts and decisions.

Article 36.- Tasks, powers and responsibilities of chairmen, vice-chairmen of procuracies

1. The chairmen of procuracies shall have the following tasks and powers:

a/ To organize and direct activities of exercising the right to prosecute and supervise the law observance in criminal proceedings;

b/ To decide to assign their vice-chairmen and procurators to exercise the right to prosecute and supervise the law observance in criminal proceedings for criminal cases;

c/ To examine their vice-chairmen and procurators in activities of exercising the right to prosecute and supervise their law observance in criminal proceedings;

d/ To protest according to cassation or reopening procedures the legally valid court judgments or decisions in accordance with law;

e/ To decide to change or cancel ungrounded and illegal decisions of their vice-chairmen and procurators;

f/ To decide to withdraw, suspend or cancel ungrounded and illegal decisions of the subordinate procuracies;

g/ To decide to change procurators;

h/ To settle complaints and denunciations falling under the competence of procuracies.

When the chairman of a procuracy is absent, one vice-chairman authorized by the chairman shall perform the chairman’s tasks and powers. Vice-chairmen shall be accountable to their chairmen for their assigned tasks.

2. When exercising the right to prosecute and supervising the law observance in the proceedings for criminal cases, the chairmen of procuracies shall have the following tasks and powers:

a/ To decide to institute criminal cases, to decide not to institute criminal cases, to decide to initiate criminal proceedings against the accused; to request investigating bodies to institute criminal cases or change decisions to institute criminal cases or initiate criminal proceedings against the accused in accordance with this Code;

b/ To request the heads of investigating bodies to change investigators;

c/ To decide to apply, change or cancel deterrent measures; to decide to extend the investigation period; to decide to prolong the temporary detention period; to request investigating bodies to pursue the accused;

d/ To decide to approve or disapprove decisions of investigating bodies;

e/ To decide to revoke ungrounded and illegal decisions of investigating bodies;

f/ To decide to transfer cases;

g/ To decide to prosecute, to decide to return the files for additional investigation; to decide to solicit expertise;

h/ To decide to suspend or cease criminal cases, to decide to resume investigation; to decide to handle exhibits;

i/ To protest according to appellate procedures court judgments and decisions;

j/ To grant and withdraw the defense counsel’s certificates; to issue other decisions and conduct other proceedings falling under the competence of procuracies.

3. When being assigned to exercise the right to prosecute and supervise the law observance in the proceedings for criminal cases, vice-chairmen of procuracies shall have the tasks and powers defined in Clause 2 of this Article.

4. The chairmen and vice-chairmen of procuracies shall take responsibility before law for their acts and decisions.

Article 37.- Tasks, powers and responsibilities of procurators

1. Procurators assigned to exercise the right to prosecute and supervise the law observance in the proceedings for criminal cases shall have the following tasks and powers:

a/ To supervise the institution of criminal cases, supervise investigating activities and the compilation of case files by investigating bodies;

b/ To set investigation requirements;

c/ To summon and interrogate the accused; to summon and take testimonies of witnesses, victims, civil plaintiffs, civil defendants, and persons with interests and obligations related to the cases;

d/ To supervise arrests, custody and temporary detention;

e/ To participate in court sessions; to read the procuracies’ indictments and decisions related to the case settlement; to ask questions, present evidences and make arraignments; to express their views on the case settlement and argue with the participants in the procedure at court sessions;

f/ To supervise the law observance by courts in their adjudicating activities, by participants in the procedure, and to supervise court judgments and decisions;

g/ To supervise the execution of court judgments and decisions;

h/ To perform other tasks and exercise other powers falling under the procuracies’ scope of competence as assigned by their chairmen.

2. Procurators shall take responsibility before law and the chairmen of the procuracies for their acts and decisions.

Article 38.- Tasks, powers and responsibilities of presidents, vice-presidents of courts

1. The presidents of courts shall have the following tasks and powers:

a/ To organize the adjudicating work of their courts;

b/ To decide to assign their vice-presidents, judges and jurors to settle and adjudicate criminal cases; to decide to assign court clerks to conduct the procedure for criminal cases;

c/ To decide to change judges, jurors and court clerks before opening court sessions;

d/ To protest according to cassation procedures legally valid court judgments and decisions in accordance with the provisions of this Code;

e/ To issue decisions to execute criminal judgments;

f/ To decide to postpone the serving of imprisonment penalties;

g/ To decide to suspend the serving of imprisonment penalties;

h/ To decide to remit criminal records;

i/ To settle complaints and denunciations falling under the jurisdiction of their courts.

When the president of a court is absent, one vice-president authorized by the president shall perform the tasks and exercise the powers of the latter. Vice presidents shall be accountable before the presidents for their assigned tasks.

2. When settling criminal cases, the presidents of courts shall have the following tasks and powers:

a/ To decide to apply, change or cancel the temporary detention measure; to decide to handle exhibits;

b/ To decide to transfer criminal cases;

c/ To grant, withdraw the defense counsel’s certificates; to issue decisions and conduct other proceedings falling under the jurisdiction of their courts.

3. When being assigned to settle or adjudicate criminal cases, vice-presidents of courts shall have the tasks and powers defined in Clause 2 of this Article.

4. Presidents and vice-presidents of courts shall take responsibility before law for their acts and decisions.

Article 39.- Tasks, powers and responsibilities of judges

1. The judges assigned to settle, adjudicate criminal cases shall have the following tasks and powers:

a/ To study the case files before the opening of court sessions;

b/ To participate in adjudicating criminal cases;

c/ To conduct proceedings and vote on matters falling under the jurisdiction of the trial panels;

d/ To conduct other proceedings falling under the jurisdiction of their courts according to the assignment of the presidents of their courts.

2. The judges assigned to preside over court sessions shall have, apart from the tasks and powers defined in Clause 1 of this Article, the following tasks and powers:

a/ To decide to apply, change or cancel deterrent measures in accordance with the provisions of this Code;

b/ To decide to return files for additional investigation;

c/ To decide to bring cases for trial; to decide to cease or suspend cases;

d/ To decide to summon persons whom they need to inquire to court sessions;

e/ To conduct other proceedings falling under the competence of their courts according to the assignment of the presidents of their courts.

3. The judges holding the post of president or vice-president of the Court of Appeal of the Supreme People’s Court shall have the right to grant and withdraw the defense counsel’s certificates.

4. Judges shall take responsibility before law for their acts and decisions.

Article 40.- Tasks, powers and responsibilities of jurors

1. When being assigned to adjudicate criminal cases, jurors shall have the following tasks and powers:

a/ To study case files before the opening of court sessions;

b/ To participate in adjudicating criminal cases according to first-instance or appellate procedures;

c/ To conduct proceedings and vote on matters falling under the jurisdiction of the trial panels.

2. Jurors shall take responsibility before law for their acts and decisions.

Article 41.- Tasks, powers and responsibilities of court clerks

1. Court clerks assigned to carry out the procedure for criminal cases shall have the following tasks and powers:

a/ To announce the internal rules of court sessions;

b/ To report to the trial panels the list of persons summoned to court sessions;

c/ To write minutes of court sessions;

d/ To conduct other proceedings falling under the jurisdiction of their courts according to the assignment by the presidents of their courts.

2. Court clerks shall take responsibility before law and the presidents of courts for their acts.

Article 42.- Cases of refusal or change of procedure-conducting persons

Procedure-conducting persons must refuse to conduct the procedure or be changed if:

1. They are concurrently victims, civil plaintiffs, civil defendants; persons with interests and obligations related to the cases; lawful representatives or next of kin of such persons or of the accused or defendants;

2. They have participated as defense counsels, witnesses, experts or interpreters in such cases;

3. There are explicit grounds to believe that they may not be impartial while performing their duties.

Article 43.- Right to request to change procedure-conducting persons

The following persons shall have the right to request to change procedure-conducting persons:

1. Procurators;

2. The accused, defendants, victims, civil plaintiffs, civil defendants and their lawful representatives;

3. Defense counsels, defense counsels of interests of victims, civil plaintiffs or civil defendants.

Article 44.- Change of investigators

1. Investigators must refuse to conduct the procedure or be changed if:

a/ They fall into one of the cases prescribed in Article 42 of this Code;

b/ They have conducted the procedure in such cases in the capacity as procurator, judge, juror or court clerk.

2. The change of investigators shall be decided by the heads of investigating bodies.

If the investigators being the heads of investigating bodies fall into one of the cases prescribed in Clause 1 of this Article, the investigation of the cases shall be conducted by the immediate superior investigating bodies.

Article 45.- Change of procurators

1. Procurators must refuse to conduct the procedure or be changed if:

a/ They fall into one of the cases prescribed in Article 42 of this Code;

b/ They have conducted the procedure in such cases in the capacity as investigator, judge, juror or court clerk.

2. The change of procurators before the opening of court sessions shall be decided by the chairmen of the procuracies of the same level.

If the to be-changed procurators are procuracy chairmen, such change shall be decided by the chairmen of the immediate superior procuracies.

In cases where the procurators must be changed at court sessions, the trial panels shall issue decisions to postpone the court sessions.

The appointment of other procurators shall be decided by the chairmen of the procuracies of the same level or the chairmen of the immediate superior procuracies.

Article 46.- Change of judges, jurors

1. Judges or jurors must refuse to participate in the trial or be changed if:

a/ They fall into one of the cases prescribed in Article 42 of this Code;

b/ They sit on the same trial panel and are next of kin;

c/ They have participated in the first-instance trial or appellate trial, or conducted the procedure in such cases in the capacity as investigator, procurator or court clerk.

2. The change of judges and/or jurors before the opening of court sessions shall be decided by the presidents of the courts. If the to be-changed judges are the presidents of the courts, such change shall be decided by the presidents of the immediate superior courts.

The change judges and/or jurors at court sessions shall be decided by the trial panels before starting the inquiry by voting at the deliberation chambers. When a member is considered, he/she may present his/her opinions; the panels shall make decisions by majority.

In case of change of judges and/or jurors at court sessions, the trial panels shall issue decisions to postpone the court sessions.

The appointment of new trial panel members shall be decided by the presidents of the courts.

Article 47.- Change of court clerks

1. Court clerks must refuse to conduct the procedure or be changed if:

a/ They fall into one of the cases prescribed in Article 42 of this Code;

b/ They have conducted the procedure in such cases in the capacity as procurator, investigator, judge or juror.

2. The change of court clerks before the opening of court sessions shall be decided by the presidents of the courts.

The change of court clerks at court sessions shall be decided by the trial panels.

In cases where court clerks must be changed at court sessions, the trial panels shall issue decisions to postpone the court sessions.

The appointment of other court clerks shall be decided by the presidents of the courts.