Phần thứ bảy Bộ luật Tố tụng Hình sự 2003: Thủ tục đặc biệt

Part Seven

SPECIAL PROCEDURES

Chapter XXXII: PROCEDURES APPLICABLE TO MINORS

Article 301.- Scope of application

The criminal procedure applicable to arrestees, persons kept in custody, accused and defendants, who are minors, shall comply with the provisions of this Chapter, and concurrently with other provisions of this Code which are not contrary to those of this Chapter.

Article 302.- Investigation, prosecution and trial

1. Investigators, procurators and judges who carry out the criminal procedure towards minor offenders must possess necessary knowledge about the psychology and education of minors as well as activities of preventing and fighting crimes committed by minors.

2. In the process of investigation, prosecution and trial, the following information must be clarified:

a/ The ages, physical and mental development levels, the level of perception of criminal acts of minors;

b/ Living and education conditions;

c/ Whether or not they are incited by adults;

d/ Causes and conditions of the commission of offenses.

Article 303.- Arrest, custody and temporary detention

1. Persons aged between full 14 years and under 16 years may be arrested, held in custody or temporary detention if there are sufficient grounds prescribed in Articles 80, 81, 82, 86, 88 and 120 of this Code, but only in cases where they commit very serious offenses intentionally or commit especially serious offenses.

2. Persons aged between full 16 years and under 18 years may be arrested, held in custody or temporary detention, if there are sufficient grounds prescribed in Articles 80, 81, 82, 86, 88 and 120 of this Code, but only in cases where they commit serious offenses intentionally or commit very serious or especially serious offenses.

3. The bodies ordering the arrest, custody or temporary detention of minors must notify their families or lawful representatives thereof immediately after the arrest, custody or temporary detention is effected.

Article 304.- Supervision of minor offenders

1. The investigating bodies, procuracies or courts may issue decisions to assign minor offenders to their parents or guardians for supervision so as to secure their appearance in response to the summonses of the procedure-conducting bodies.

2. Persons assigned to supervise minor offenders shall have to closely supervise them, oversee their behaviors, ethics and educate them.

Article 305.- Defense

1. Lawful representatives of persons kept in custody, the accused or defendants who are minors may select defense counsels to defend or defend by themselves the persons kept in custody, the accused or defendants.

2. Where the accused or defendants are minors or their lawful representatives refuse to select defense counsels for them, the investigating bodies, procuracies or courts must request bar associations to assign lawyers’ offices to appoint defense counsels for them or propose the Vietnam Fatherland Front Committee or the Front’s member organizations to appoint defense counsels for their organizations’ members.

Article 306.- Participation in the procedure by families, schools and organizations

1. Representatives of the families of the persons kept in custody, the accused or defendants, teachers or representatives of schools, the Ho Chi Minh Communist Youth Union or other organizations where the persons kept in custody, the accused or defendants study, work and live shall have the right as well as obligation to participate in the procedure under decisions of the investigating bodies, procuracies or courts.

2. Where the persons kept in custody or the accused are between full 14 years and under 16 years old or minors with mental or physical defects, or in other necessary cases, the taking of their statements and interrogation must be attended by their families’ representatives, except for the cases where their families’ representatives are deliberately absent without plausible reasons. The families’ representatives may inquire the persons kept in custody or the accused, if the investigators so agree; they may produce documents, objects, make requests or complaints, and read the case files upon the termination of the investigation.

3. At the court sessions to try minor defendants, the presence of their families’ representatives, except for the cases where their families’ representatives are deliberately absent without plausible reasons, of their schools’ and/or organizations’ representatives is compulsory.

Representatives of the defendants’ families and representatives of their schools and/or organizations attending the court sessions shall have the rights to produce documents, exhibits, to request or propose to change the procedure-conducting persons; to join in the arguing process, and lodge complaints about procedural acts of the persons with procedure-conducting competence, and court decisions.

Article 307.- Trial

1. The composition of a trial panel must include a juror being a teacher or a Ho Chi Minh Communist Youth Union cadre.

In case of necessity, the courts may decide to conduct the trial behind closed door.

2. In the course of trial, if deeming it unnecessary to impose penalties on the defendants, the courts may apply one of the judicial measures prescribed in Article 70 of the Penal Code.

Article 308.- Serving of imprisonment penalties

1. Minor offenders shall serve their imprisonment penalties according to a separate detention regime prescribed by law.

It is forbidden to keep minor offenders together with adult offenders.

2. The minor convicts must be provided with job training or general education while they are serving their imprisonment penalties.

3. If the minors reach the age of full 18 years while serving their imprisonment penalties, they shall be shifted to be subject to the imprisonment regime applicable to adults.

4. For minors who have completely served their imprisonment penalties, the superintendence boards of their prisons shall have to coordinate with the administrations and social organizations in the communes, wards or townships in helping them to lead a normal life in the society.

Article 309.- Termination of serving of judicial measures, commutation of penalties or exemption from serving of penalties

If they fully meet the conditions prescribed in Article 70 or Article 76 of the Penal Code, the minor offenders may be permitted to stop serving judicial measures, have their penalties commuted or be exempt from serving their penalties.

Article 310.- Remission of criminal records

The remission of criminal records for minor offenders who fully meet the conditions specified in Article 77 of the Penal Code shall comply with general procedures.

Chapter XXXIII: PROCEDURES FOR APPLICATION OF THE COMPULSORY MEDICAL TREATMENT MEASURE

Article 311.- Conditions for application of, and competence to apply, the compulsory medical treatment measure

1. Where there are grounds to believe that the persons having committed acts dangerous to the society have no capacity for penal liability as provided for in Article 13 of the Penal Code, depending each particular proceeding stage, the investigating bodies, procuracies or courts must solicit forensic examination.

2. Basing themselves on the conclusions of the forensic examination councils, the procuracies shall decide to apply the compulsory medical treatment measure at the investigation and prosecution stages; the courts shall decide to apply the compulsory medical treatment measure at the trial and judgment execution stages.

Article 312.- Investigation

1. For the cases involving grounds specified in Clause 1, Article 311 of this Code, the investigating bodies must clarify:

a/ Committed acts dangerous to the society;

b/ The mental conditions and mental diseases of the persons having committed acts dangerous to the society;

c/ Whether or not the persons having committed acts dangerous to the society have lost their capacity to perceive or control their acts.

2. When conducting the procedure, the investigating bodies must ensure the participation by defense counsels in the procedure from the time it is determined that the persons having committed acts dangerous to the society suffer from mental diseases. In case of necessity, lawful representatives of such persons may participate in the proceedings.

Article 313.- Decisions of procuracies upon termination of investigation

After receiving the case files and the written investigation conclusions, the procuracies may issue one of the following decisions:

1. To suspend or cease the case;

2. To cease the case and decide to apply the compulsory medical treatment measure.

3. To prosecute the accused before court.

Article 314.- Trial

1. The courts may issue one of the following decisions:

a/ To exempt the penal liability or penalties and apply the compulsory medical treatment measure;

b/ To cease the case and decide to apply the compulsory medical treatment measure;

c/ To suspend the case and decide to apply the compulsory medical treatment measure;

d/ To return the file for re-investigation or additional investigation.

2. Apart from deciding to apply the compulsory medical treatment measure, the courts may settle the issue of damage compensation or other matters related to the cases.

Article 315.- Application of the compulsory medical treatment measure to persons serving imprisonment penalties

Where there are grounds to believe that the persons who are currently serving imprisonment penalties suffer from mental diseases or other ailments which have deprived them of the capacity to perceive or control their acts, at the requests of the imprisonment penalty-executing agencies, the presidents of the provincial-level people’s courts or the presidents of the military zone-level military courts in the localities where the convicts are serving their penalties must solicit forensic examination.

Basing themselves on the conclusions of the forensic examination councils, the presidents of the provincial-level people’s courts or the presidents of the military zone-level military courts in the localities where the convicts are serving their penalties may decide to send them into specialized medical establishments for compulsory medical treatment. After recovery, such persons shall have to continue serving their penalties if they have no reasons for exemption from serving their penalties.

Article 316.- Complaints, protests, appeals

1. When the procuracies’ decisions to apply the compulsory medical treatment measure are complained about, the cases must be brought for first-instance trial by the courts of the same level.

2. Protests or appeals against the courts’ decisions to apply the compulsory medical treatment measure shall be lodged in the same way as against first-instance judgments.

3. Despite complaints, protests or appeals, the courts’ decisions to apply the compulsory medical treatment measure shall still take implementation effect.

Article 317.- Implementation, suspension of implementation of the compulsory medical treatment measure

1. The compulsory medical treatment measure shall be implemented at specialized medical establishments designated by the procuracies or courts.

2. When there are reports of the medical treatment establishments and written requests of the relatives of the persons subject to compulsory medical treatment or requests of the procuracies, on the basis of the conclusions of the forensic medicine examination councils, the procuracies or courts which have issued the decisions to apply the compulsory medical treatment measure may issue decisions to cease the implementation of the compulsory medical treatment measure and may concurrently decide to resume the suspended proceedings.

Chapter XXXIV: SUMMARY PROCEDURES

Article 318.- Scope of application of summary procedures

The summary procedures for investigation, prosecution as well as first-instance trial shall be applied under the provisions of this Chapter, and concurrently under other provisions of this Code which are not contrary to those of this Chapter.

Article 319.- Conditions for application of summary procedures

Summary procedures shall be applied only when the following conditions are fully met:

1. The persons committing criminal acts are caught red-handed;

2. The offenses are simple with obvious evidences;

3. The committed offences are less serious ones;

4. The offenders have clear personal identifications and records.

Article 320.- Decisions to apply summary procedures

1 After the criminal cases are instituted, at the requests of the investigating bodies or if deeming that the cases fully meet the conditions prescribed in Article 319 of this Code, the procuracies may issue decisions to apply summary procedures.

2. Decisions to apply summary procedures must be sent to the investigating bodies and the accused or their lawful representatives within 24 hours after their issuance.

3. Decisions to apply summary procedures may be complained about. The accused or their lawful representatives shall have the right to complain about the decisions to apply summary procedures; the statute of limitations for lodging such complaints is three days after the decisions are received. Complaints shall be sent to the procuracies which have issued the decisions to apply summary procedures and must be settled within three days after they are received.

Article 321.- Investigation

1. The time limit of investigation according to summary procedures is twelve days after the issuance of the decisions to institute the criminal cases.

2. Upon the termination of the investigation, the investigating bodies shall not have to make written investigation conclusions but issue decisions proposing the prosecution and send the case files to the procuracies.

Article 322.- Custody and temporary detention for investigation and prosecution

1. The grounds, competence and procedures for custody and temporary detention shall comply with the provisions of this Code.

2. The time limit for custody shall not exceed three days as from the date the investigating bodies receive the arrestees.

3. The time limit for temporary detention for investigation and prosecution shall not exceed sixteen days.

Article 323.- Decision on prosecution

1. Within four days after receiving the case files, the procuracies shall have to issue one of the following decisions:

a/ To prosecute the accused before court by a prosecution decision;

b/ To return the file for additional investigation;

c/ To suspend the case;

d/ To cease the case.

2. In case of returning the files for additional investigation or suspending the cases prescribed at Point b or c, Clause 1 of this Article, the procuracies must issue decisions to cancel the decisions to apply the summary procedures and the cases shall then be settled according to general procedures

Article 324.- Trial

1. Within seven days after receiving the case files, the judges assigned to preside over the court sessions shall have to issue one of the following decisions:

a/ To bring the case for trial;

b/ To return the file for additional investigation;

c/ To suspend the case;

d/ To cease the case.

2. In case of issuing decisions to bring the cases for trial prescribed at Point a, Clause 1 of this Article, within seven days as from the date of issuing such decisions, the courts must open court sessions to try the cases. The first-instance trial shall be conducted according to general procedures.

3. In case of returning the files for additional investigation or suspending the cases as prescribed at Point b or c, Clause 1 of this Article, the courts shall transfer the files to the procuracies and the cases shall then be settled according to general procedures.

4. In case of necessity, the courts of first instance shall decide to keep the defendants in temporary detention in order to secure the trial. The temporary detention time limit shall not exceed fourteen days.

5. The appellate trial, the review according to cassation or reopening procedures of the cases which underwent first-instance trial according to summary procedures, shall be conducted according to general procedures.

Chapter XXXV: COMPLAINTS, DENUNCIATIONS IN CRIMINAL PROCEDURE

Article 325.- Persons with the right to complain

Agencies, organizations and individuals shall have the right to complain about procedural decisions and acts of bodies and persons with procedure-conducting competence when they have grounds to believe that such decisions or acts are contrary to law, infringe upon their legitimate rights and interests.

Appeals against legally valid first-instance judgments or decisions, complaints about legally valid judgments or decisions shall not be settled under the provisions of this Chapter but under the provisions of Chapters XXIII, XXIV, XXX and XXXI of this Code.

Article 326.- Rights and obligations of complainants

1. Complainants shall have the following rights:

a/ To lodge complaints by themselves or through their lawful representatives;

b/ To lodge complaints at any stage of the process of settling criminal cases;

c/ To withdraw their complaints at any stage of the process of settling criminal cases;

d/ To receive written replies on the settlement of their complaints;

e/ To have their infringed legitimate rights and interests restored; and receive damage compensation in accordance with law.

2. Complainants shall have the following obligations:

a/ To present truthfully the facts, supply information and documents to the complaint settlers; to take responsibility before law for such presentation and supply of information and documents.

b/ To abide by the complaint settlement results.

Article 327.- Rights and obligations of complained persons

1. Complained persons shall have the following rights:

a/ To produce evidences on the lawfulness of their procedural decisions or acts which are complained about;

b/ To receive documents on the settlement of complaints about their procedural decisions or acts.

2. Complained persons shall have the following obligations:

a/ To explain the complained procedural decisions or acts, supply relevant information and documents when competent bodies, organizations or individuals so request;

b/ To abide by the complaint settlement results;

c/ To pay compensation for damage and overcome consequences caused by their illegal procedural decisions or acts according to law provisions.

Article 328.- Statute of limitations for complaining

The statute of limitations for complaining is fifteen days after the complainants receive or know about the procedural decisions or acts which they deem unlawful.

In case where due to illness, natural calamities, enemy sabotage, working or studying in distant places or other objective obstacles the complainants cannot exercise their right to complain within the prescribed statute of limitations, the period when such obstacles exist shall not be included in the statute of limitations for complaining.

Article 329.- Competence and time limit for settling complaints against investigators, deputy heads and heads of investigating bodies

Complaints about procedural decisions and acts of investigators, deputy heads of investigating bodies shall be considered and settled by the heads of the investigating bodies within seven days after receiving the complaints. If disagreeing with the settlement results, the complainants shall have the right to lodge further complaints with the procuracies of the same level. Within seven days after receiving the complaints, the procuracies of the same level must consider and settle them. The procuracies of the same level shall have the competence to make final settlement.

Complaints about procedural decisions or acts of the heads of investigating bodies and procedural decisions of investigating bodies, which have been approved by the procuracies of the same level, shall be settled by the procuracies of the same level within seven days after receiving the complaints. If disagreeing with the settlement results, the complainants shall have the right to lodge further complaints with the immediate superior procuracies. Within fifteen days after receiving the complaints, the immediate superior procuracies must consider and settle them. The immediate superior procuracies shall have the competence to make final settlement.

Article 330.- Competence and time limits for settling complaints against procurators, vice-chairmen and chairmen of procuracies

Complaints about procedural decisions and acts of vice-chairmen of procuracies or procurators shall be settled by the chairmen of the procuracies within seven days after receiving the complaints. If disagreeing with the settlement results, the complainants shall have the right to lodge further complaints with the immediate superior procuracies. Within fifteen days after receiving the complaints, the immediate superior procuracies must consider and settle them. The immediate superior procuracies shall have the competence to make final settlement.

Complaints about procedural decisions or acts of chairmen of procuracies shall be settled by the immediate superior procuracies within fifteen days after receiving the complaints. The immediate superior procuracies shall have the competence to make final settlement.

Article 331.- Competence and time limits for settling complaints against judges, vice-presidents and presidents of courts

Complaints about procedural decisions and acts of judges or vice-presidents of courts before the opening of court sessions shall be settled by the presidents of courts within seven days after receiving the complaints. If disagreeing with the settlement results, the complainants shall have the right to lodge further complaints with the immediate superior courts. Within fifteen days after receiving the complaints, the immediate superior courts must consider and settle them. The immediate superior courts shall have the competence to make final settlement.

Complaints about procedural decisions or acts of presidents of courts shall be settled by the immediate superior courts within fifteen days after receiving the complaints. The immediate superior courts shall have the competence to make final settlement.

Article 332.- Competence and time limits for settling complaints against persons with competence to conduct a number of investigating activities

Complaints about procedural decisions and acts of persons with competence to conduct a number of investigating activities shall be considered and settled by the procuracies with prosecuting competence within seven days after receiving the complaints. If disagreeing with the settlement results, the complainants shall have the right to lodge further complaints with the immediate superior procuracies. Within fifteen days after receiving the complaints, the immediate superior procuracies must consider and settle them. The immediate superior procuracies shall have the competence to make final settlement.

Complaints about procedural decisions or acts which have been approved by the procuracies shall be settled by such procuracies within seven days after receiving the complaints. If disagreeing with the settlement results, the complainants shall have the right to lodge further complaints with the immediate superior procuracies. Within fifteen days after receiving the complaints, the immediate superior procuracies must consider and settle them. The immediate superior procuracies shall have the competence to make final settlement.

Article 333.- Time limits for settling complaints related to the application of arrest, custody and temporary detention measures

Complaints related to the application of arrest, custody and temporary detention measures must be immediately considered and settled by the procuracies. If it takes time to conduct further verification, the complaints must be settled within three days after the date of receipt thereof. If disagreeing with the settlement results, the complainants shall have the right to lodge further complaints with the immediate superior procuracies. Within seven days after receiving the complaints, the immediate superior procuracies must consider and settle them. The immediate superior procuracies shall have the competence to make final settlement.

Article 334.- Persons with the right to denounce

Citizens shall have the right to denounce to competent bodies or individuals law violation acts of any persons with procedure-conducting competence, which cause damage or threaten to cause damage to the interests of the State, the legitimate rights and interests of citizens, agencies or organizations.

Article 335.- Rights and obligations of denouncers

1. Denouncers shall have the following rights:

a/ To send written denunciations or denounce in person to competent bodies or individuals;

b/ To request the confidentiality of their full names, addresses and autographs;

c/ To request to be notified of the denunciation settlement results;

d/ To request the bodies with procedure-conducting competence to protect them when they are intimidated, harassed or revenged.

2. Denouncers shall have the following obligations:

a/ To present truthfully the denunciation contents;

b/ To clearly state their full names and addresses;

c/ To take responsibility before law for untruthful denunciation.

Article 336.- Rights and obligations of denounced persons

1. Denounced persons shall have the following rights:

a/ To be informed of the denunciation contents;

b/ To produce evidences to prove that the denunciation contents are untruthful;

c/ To have their infringed legitimate rights and interests restored, their honor restored, and to receive compensation for damage caused by untruthful denunciation;

d/ To request competent bodies, organizations or individuals to handle slanderers.

2. Denounced persons shall have the following obligations:

a/ To explain their denounced acts; supply relevant information and documents when competent bodies or individuals so request;

b/ To abide by the denunciation-handling results of competent bodies or individuals;

c/ To pay compensation for damage and overcome consequences caused by their illegal acts.

Article 337.- Competence and time limit for settling denunciations

1. For denunciations of law violation acts of persons with procedure-conducting competence of an agency with procedure-conducting competence, the head of such agency shall have the responsibility to settle them.

Where the denounced persons are heads of investigating bodies, chairmen of procuracies or presidents of courts, the immediate superior investigating bodies, procuracies or courts shall have the responsibility to settle them. Denunciations of procedural acts of persons with competence to conduct a number of investigating activities shall be considered and settled by the procuracies with prosecuting competence.

The time limit for settling denunciations is sixty days counting from the date of receipt of denunciations; for complicated cases, it may be longer but must not exceed ninety days.

2. Denunciations of law violation acts with criminal signs shall be settled under the provisions of Article 103 of this Code.

3. Denunciations related to arrest, custody or temporary detention must be immediately considered and settled by the procuracies. If further verification is required, the time limit shall not exceed three days.

Article 338.- Responsibilities of persons with competence to settle complaints or denunciations

Competent bodies or individuals shall, within the ambit of their respective tasks and powers, have to receive and settle promptly according to law complaints and denunciations and send notices on the settlement results to complaints and denouncers; stringently handle violators; apply necessary measures to prevent possible damage; ensure the settlement results be strictly implemented and take responsibility before law for their settlement.

Persons who are competent to settle complaints or denunciations but fail to settle them, have settled irresponsibly or illegally such complaints or denunciations shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability; if causing damage, they must pay compensation therefor according to law.

Article 339.- Tasks and powers of procuracies in supervising the settlement of complaints and denunciations in the criminal procedure

1. The procuracies shall request the investigating bodies and courts of the same and subordinate levels, the border guard, customs, ranger and coast guard forces, and other agencies of the people’s police and people’s army, which are assigned to conduct a number of investigating activities:

a/ To issue written settlements of complaints or denunciations according to the provisions of this Chapter;

b/ To examine the settlement of complaints or denunciations by their level and subordinate levels; notify the examination results to the procuracies;

c/ To supply dossiers and documents related to the settlement of complaints and denunciations to the procuracies.

2. The procuracies shall directly supervise the settlement of complaints and denunciations at the investigating bodies, courts, border guard, customs, ranger offices, coast guard offices and other agencies of the people’s police and army’s police, which are assigned to conduct a number of investigating activities.