Chương X Bộ luật Tố tụng Hình sự 2003: Khởi tố bị can và hỏi cung bị can

Chapter X: INITIATION OF CRIMINAL PROCEEDINGS AGAINST THE ACCUSED AND INTERROGATION OF THE ACCUSED

Article 126.- Initiation of criminal proceedings against the accused

1. When having sufficient grounds to determine that persons have committed criminal acts, the investigating body shall issue decisions to initiate criminal proceedings against the accused.

2. A decision to initiate criminal proceedings against the accused shall contain the time and place of its issuance; full name and position of its issuer; full name, birth date, occupation and family conditions of the accused; which offense the accused is charged with, under which articles of the Penal Code; time and place of commission of the offense, and other circumstances of the offense.

If the accused is charged with many different offenses, the decision to initiate criminal proceedings against him/her must contain the title of each offense and the applicable articles of the Penal Code.

3. After initiating proceedings against the accused, investigating bodies must take photographs and compile personal records of the accused and put them in the case files.

4. Within 24 hours after issuing the decisions to initiate criminal proceedings against the accused, the investigating bodies must send them to the procuracies of the same level for consideration and approval. Within three days after receiving such decisions, the procuracies must issue decisions to approve or cancel them and immediately send their decisions to the investigating bodies.

5. Where they detect that there are offenders against whom criminal proceedings have not yet been initiated, the procuracies shall request the investigating bodies to issue the decisions to initiate criminal proceedings against such offenders.

After receiving the files and investigation conclusions, if the procuracies detect other offenders in the cases against whom criminal proceedings have not yet been initiated, the procuracies shall issue decisions to initiate criminal proceedings against the accused. Within 24 hours after issuing such decisions, the procuracies must send them to the investigating bodies for investigation.

6. The investigating bodies must immediately hand their decisions or the procuracies’ decisions to initiate criminal proceedings against the accused or such to the accused and explain on their rights and obligations prescribed in Article 49 of this Code. After receiving the procuracies’ decisions to approve or cancel the decisions to initiate criminal proceedings against the accused, the investigating bodies must immediately hand them to the persons against whom criminal proceedings are initiated. The handing and receipt of these decisions must be recorded in the minutes prescribed in Article 95 of this Code.

Article 127.- Change or supplementation of decisions to initiate criminal proceedings against the accused

1. While conducting investigation, if having grounds to determine that the criminal acts committed by the accused do not constitute the offenses for which criminal cases have been instituted against them or there remain other criminal acts, the investigating bodies or procuracies shall issue decisions to change or supplement the decisions to initiate criminal proceedings against the accused.

2. Within 24 hours after issuing the decisions to change or supplement the decisions to initiate criminal proceedings against the accused, the investigating bodies must send their decisions together with documents related to such change or supplementation to the procuracies of the same level for consideration and approval. Within three days after receiving the decisions to change or supplement the decisions to initiate criminal proceedings against the accused, the procuracies must decide to approve or cancel such decisions.

Within 24 hours after issuing the decisions to change or supplement the decisions to initiate criminal proceedings against the accused, the procuracies must send them to the investigating bodies for investigation.

3. The investigating bodies must immediately hand to the accused the decisions to change or supplement their decisions to initiate criminal proceedings against the accused or the procuracies’ decisions to change or supplement their decisions to initiate criminal proceedings against the accused and explain on their rights and obligations prescribed in Article 49 of this Code. After receiving the procuracies’ decisions to approve or cancel the decisions to change or supplement the decisions to initiate criminal proceedings against the accused, the investigating bodies must immediately hand them to the accused. The handing and receipt of the above-said decisions must be recorded in the minutes prescribed in Article 95 of this Code.

Article 128.- Suspension of the accused from their current positions

When deeming that the accused’s continued holding of their positions would cause difficulties to the investigation, the investigating bodies or procuracies shall have the right to propose the agencies or organizations with competence to manage the accused to suspend the accused from their positions. Within seven days after receiving such proposals, these agencies or organizations must reply in writing the proposing investigating bodies or procuracies.

Article 129.- Summoning of the accused

1. When summoning the accused, investigators must send summonses to them. Such summons must contain the full name and residence of the accused, date, hour, and place of his/her presence; the person he/she will meet, and his/her responsibility for non-appearance without plausible reasons.

2. The summonses to the accused shall be sent to the administrations of the communes, wards or townships where the accused reside or to the agencies or organizations where they work. The agencies or organizations receiving the summonses shall have to immediately deliver them to the accused.

Upon receiving the summonses, the accused must sign for certification of the receipt thereof, clearly writing the hour and date of receipt thereon. The deliverers of the summonses must deliver the portions of the summonses containing the signatures of the accused to the summoning bodies; if the accused refuse to sign, the minutes thereof must be made and sent to the summoning bodies; if the accused are absent, the summonses may be handed to an adult member of their families to sign for certification and hand the summonses to the accused. For the accused being in temporary detention, they shall be summoned through the superintending boards of the detention centers.

3. The accused must appear in response to the summonses. If they are absent without plausible reasons or show signs of escape, investigators may issue decisions to escort them.

4. In case of necessity, procurators may summon the accused. The summoning of the accused shall comply with the provisions of this Article.

Article 130.- Escort of the accused on bail

1. A decision to escort the accused shall contain the time and place of its issuance; full name and position of its issuer; full name, birth date and residence of the accused; the offense with which the accused has been charged; the time and the place for the accused to appear;

2. Executors of the escort decisions must read, explain the decisions, and make minutes of the escort as prescribed in Article 95 of this Code.

3. It is forbidden to escort the accused at night.

Article 131.- Interrogation of the accused

1. The interrogation of the accused must be conducted by investigators immediately after the decisions to initiate criminal proceedings against the accused are issued. The accused may be interrogated at the places of investigation or at their residences.

Before conducting the interrogation, investigators must read the decisions to initiate criminal proceedings against the accused and clearly explain to the accused about their rights and obligations prescribed in Article 49 of this Code. This must be recorded in the minutes.

If a case involves many accused, each of them shall be questioned separately and they shall not be allowed to contact one another. The accused may be allowed to write by themselves their statements.

2. It is forbidden to conduct interrogation at night, except for cases where interrogation cannot be delayed, provided that the reasons therefor must be clearly recorded in the minutes.

3. In case of necessity, procurators may interrogate the accused. The interrogation of the accused shall comply with the provisions of this Article.

4. Investigators or procurators who extort statements from the accused or apply corporal punishment to the accused must bear penal liability prescribed in Article 299 or Article 298 of the Penal Code.

Article 132.- Minutes of interrogation of the accused

1. The minutes of interrogation of the accused must be made according to Article 95 and Article 125 of this Code.

A minutes must be made for each time of interrogation. It must contain all statements of the accused, questions and answers. Investigators are strictly forbidden to add, cut or modify by themselves the statements of the accused.

2. After the interrogation, investigators shall read the minutes to the accused or let the accused read them. In case of supplementing or modifying the minutes, the accused and investigators both sign for certification. If the minutes consist of many pages, the accused shall sign every page. Where the accused write their statements by themselves, the investigators and the accused shall sign such written statements for certification.

Should the interrogation is audio-recorded, such records, at the end of the interrogation, must be played back for the accused and the investigators to listen to. The minutes must be recorded with the contents of the interrogation and be signed for certification by the accused and the investigators.

Where the interrogation of the accused is conducted with the aid of interpreters, the investigators must explain the interpreters’ rights and obligations, and also inform the accused of their right to request change of the interpreters. The interpreters and the accused shall both sign every page of the interrogation minutes.

3. When conducting interrogations in the presence of the defense counsels and/or lawful representatives of the accused, the investigators must explain to these persons their rights and obligations in the course of interrogation of the accused. The accused, the defense counsels and/or lawful representatives shall all sign the interrogation minutes.

Where the counsel defenses are allowed to question the accused, the minutes must contain fully the questions of the defense counsels and the answers of the accused.

4. In cases where procurators interrogate the accused, they must observe the provisions of this Article.

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