Chương IX Bộ luật Tố tụng hình sự 2015: Khởi tố vụ án hình sự

Chapter IX

CRIMINAL CHARGE

Article 143. Justifications of criminal charges

A charge shall only be filed upon the ascertainment of signs of criminal activities. Signs of criminal activities are ascertained by:

1. A person’s denunciation;

2. Information disclosed by an organization or individual;

3. Information provided through mass media;

4. A governmental authority’s requisitions for charges;

5. Competent procedural authorities' direct exposure of signs of criminal activities;

6. A perpetrator’s confession.

Article 144. Denunciations, criminal information disclosed and requisitions for charges

1. Denunciation refers to an individual’s detection and denouncement of activities denoting crimes to competent authorities.

2. Criminal information disclosed refers to the data on activities denoting crimes as disclosed by authorities, organizations and individuals to competent authorities or the criminal information disclosed through mass media.

3. Requisitions for charges refers to a competent governmental authority's written requisition enclosed with relevant evidences and documents to investigation authorities and procuracies authorized to consider and settle cases with signs of criminal activities0}

4. Denunciation or criminal information may be made or given verbally or in writing.

5. If a person makes or provides false denunciation or criminal information, he shall incur disciplinary or administrative penalties or face criminal prosecution subject to the nature and severity of violations as per the laws.

Article 145. Responsibilities and authority to receive and process denunciations, criminal information disclosed and requisitions for charges

1. All denunciations, information and charge requests must be fully acquired and processed in timely manner. The authorities shall be responsible for receiving and not rejecting denunciations, information and requisitions.

2. The authorities responsible for receiving denunciations, criminal information disclosed and requisitions for charges shall include:

a) Investigation authorities and procuracies that obtain denunciations, information and requisitions;

b) Other authorities that take in denunciations and criminal information disclosed.

3. The authority to handle denunciations, information and charge requests is given to:

a) Investigation authorities processing intra vires denunciations, information and requisitions;

b) Units assigned to investigate process denunciations and criminal information disclosed within its powers;

c) The procuracy processes denunciations, information and charge requests when investigation authorities or units assigned to performed certain activities of investigation are found to commit serious violations of the laws during their inspection and verification of denunciations, criminal information disclosed, requisitions for charges or omission of crimes. Furthermore, such issues have not been settled despite the Procuracy’s written requests.

4. The authorities empowered to process denunciations, information and charge requests are responsible for informing authorities and entities making denunciations, disclosing criminal information and requisitioning for charges of the results of the former's tasks.

Article 146. Procedures for receiving denunciations, criminal information and requisitions for charges

1. When authorities and entities make direct denunciations, disclose criminal information and requisition for charges, investigation authorities, procuracies and units assigned to investigate are authorized as per Section 2, Article 145 of this Law to execute written records of receipt and enter data into a receipt journal. The acquisition of such information may be recorded by sound or sound-and-visual means.

If denunciations, criminal information and requisitions for charges are delivered by post, by telephone or by other means of communication, entries shall be made into a receipt journal.

2. Investigation authorities and units assigned to investigate, if considering certain denunciations, criminal information disclosed and requisitions for charges ultra vires, shall be held responsible for transferring such information and relevant documents to a competent investigation authority in prompt manner.

The procuracy is responsible for promptly transferring denunciations, information and charge requests and relevant documents to a competent investigation authority.

In the events as defined in Point c, Section 3, Article 145 of this Law, competent authorities processing denunciations, information and charge requests shall, in 05 days upon the Procuracy’s requests, transfer relevant documents to The procuracy for consideration and settlement.

3. Ward police units, town police units and police stations shall be responsible for receiving denunciations and criminal information disclosed, making written records of receipt and conducting preliminary verification of such information before promptly transferring such information and relevant documents and items to competent investigation authorities.

Ward police units shall be responsible for acquiring denunciations and criminal information disclosed, making written records of receipt, taking preliminary statements and transferring such information and relevant documents and items to competent investigation authorities.

4. Other authorities and organizations, upon obtaining denunciations and criminal information disclosed, shall transfer such information to competent investigation authorities. In emergency events, information may be given to investigation authorities by phone or other forms of communication. However, such information must subsequently be documented.

5. Investigation authorities and units assigned to investigate, in 03 days upon receiving denunciations, information and requisitions, shall be held responsible for informing the equivalent Procuracy or competent Procuracy of their receipt of information in writing.

Article 147. Time limit and procedures for processing denunciations, criminal information disclosed and requisitions for charges

1. Investigation authorities and units assigned to investigate, in 20 days upon receiving denunciations, information and requisitions, shall inspect and verify such information and issue one of the following decisions:

a) Decision to press criminal charges;

a) Decision not to file criminal charges;

c) Decide to suspend the processing of denunciations, information and requisitions.

2. If denunciations, criminal information disclosed or requisitions for charges contain complex facts or the verification of such information must be done in several locations, the time limit for processing such information may be extended but shall not exceed 02 months. If activities of investigation and verification cannot end within the time limit as stated in this Section, the head of the equivalent Procuracy or competent Procuracy can sanction one extension of 02 months at most.

Investigation authorities and units assigned to investigate, in at most 05 days before the end of the time limit for investigation and verification, must send a written request for extension to the equivalent Procuracy or competent Procuracy.

3. Competent authorities, when processing denunciations, information and requisitions, shall perform these activities:

a) Collect data, documents and items from relevant authorities and entities to verify the information;

b) Examine the scenes;

c) Conduct autopsy;

d) Requisition expert examinations and valuation.

4. The sequence, formalities and time limit for the Procuracy's processing of denunciations, information and charge requests are governed by this Article.

Article 148. Suspension of the processing of denunciations, criminal information disclosed and requisitions for charges

1. Competent authorities, upon the expiration of the time limit as defined in Article 147 of this Law, shall decide to suspend the processing of denunciations, information and charge requests in one of the following events:

a) Expert examination, valuation and foreign judicial assistance have been requisitioned to no avail;

b) Though authorities and entities have been asked to provide essential documents and items that lead to the decision to or not to press charges, nothing works.

2. Investigation authorities and units assigned to investigate, in 24 hours upon the decision to suspend the processing of denunciations, information and requisitions, must send such decision and relevant documents to the equivalent Procuracy or competent Procuracy, which administer and forward such decision to the authorities and entities making denunciations, disclosing criminal information and requisitioning charges.

If a suspension decision is unsubstantiated, the Procuracy shall annul such decision to have investigative activities continued. The procuracy, in 24 hours upon its decision to abrogate the suspension, must send its decision to investigation authorities and units assigned to investigate, and authorities and entities making denunciations, disclosing criminal information or requisitioning charges. The time limit for the continued processing of denunciations, information and charge requests shall not exceed 01 month after investigation authorities and units assigned to investigate receive the decision to invalidate the suspension.

3. If the processing of denunciations, information and charge requests is suspended, expert examination, valuation or judicial assistance shall persist until final findings are available.

Article 149. Resumption of the processing of denunciations, criminal information disclosed and requisitions for charges

1. When the vindication for the suspension of the processing of denunciations, information and charge requests languishes, investigation authorities and units assigned to investigate shall decide to resume the processing of denunciations, information and requisitions. The time limit for the continued processing of denunciations, information and charge requests shall not exceed 01 month upon the decision on resumption.

2. Investigation authorities and units assigned to investigate, in 03 days upon their decision to resume the processing of denunciations, information and requisitions, must send such decision to the equivalent Procuracy or competent Procuracy, and authorities and entities making denunciations, disclosing criminal information or requisitioning charges.

Article 150. Settlement of disputes over the authority to process denunciations, criminal information disclosed and requisitions for charges

1. The immediate superior Procuracy shall settle disputes over the authority to process denunciations, information and requisitions. The competent Procuracy shall settle disputes over the authority to process denunciations, information and charge requests among units assigned to investigate.

2. The Supreme People’s Procuracy or the Central military procuracy shall settle disputes over the authority to process denunciations, information and charge requests among provincial investigation authorities or among military investigation units in military zones, respectively. The provincial People’s Procuracy or Military procuracy related to the authority or military zone that first receive denunciations, information and charge requests shall settle disputes over the authority to process denunciations, information and charge requests among district investigation authorities from various provinces or centrally-affiliated cities or among military investigation units from different military zones.

3. The head of the Supreme People’s Procuracy shall settle disputes over the authority to process denunciations, information and charge requests among investigation units of the people's police force, People’s Army and Supreme People’s Procuracy.

Article 151. Settlement of cases exhibiting signs of crime uncovered directly by authorities given authority to institute legal proceedings

Competent procedural authorities, when directly exposing signs of crime, shall decide to press charges within their powers or transfer the cases to competent investigation authorities.

Article 152. Offenders confessing or surrendering

1. The authorities taking in an offender confessing or surrendering must execute written records of his full name, age, occupation, residential address and statements. The authorities taking in offenders confessing or surrendering shall be responsible for informing investigation authorities or procuracies of such matter in prompt manner.

2. Investigation authorities taking in ultra vires offenders confessing or surrendering shall inform competent investigation authorities that handle such offenders.

3. Competent investigation authorities, in 24 hours upon their acceptance of offenders confessing or surrendering, must inform the equivalent Procuracy in writing.

Article 153. Authority to press criminal charges

1. Investigation authorities shall make decisions on pressing criminal charges against all matters exhibiting criminal signs, save those handled by units assigned to investigate, procuracies or juries as per Section 2, 3 and 4 in this Article.

2. Units assigned to investigate shall make decisions on pressing criminal charges in the events as defined in Article 164 of this Law.

3. The procuracy makes decisions on pressing criminal charges in the following events:

a) The procuracy decides to rescind a decision not to press criminal charges from investigation authorities or units assigned to investigate;

b) The procuracy directly processes denunciations, information and requisitions;

c) The procuracy directly exposes signs of crime or respond to a requisition for charges by the Trial panel.

4. The Trial panel decides to press charges or request The procuracy to press criminal charges if omission of crimes is detected during the trial.

Article 154. Decision to press criminal charges

1. A decision to press criminal charges must specify grounds for charges, quote relevant Articles and clauses from the Criminal Code and present details as required in Section 2, Article 132 of this Law.

2. The procuracy, in 24 hours upon its decision to press criminal charges, shall send such decision to competent investigation authorities that carry out investigative activities.

Investigation authorities and units assigned to investigate, in 24 hours upon their decision to press criminal charges, shall deliver such decision and relevant documents to the competent Procuracy that administers the charges.

A Court, in 24 hours upon its decision to press criminal charges, must have such decision and relevant documents delivered to the equivalent Procuracy.

Article 155. Filing of criminal charges as per the crime victim’s petitions

1. Only criminal charges against offences as defined in Section 1 of Article 134, 135, 136, 138, 139, 141, 143, 155, 156 and 226 of the Criminal Code can be pressed at the requests for the crime victim or the representative of the crime victim less than 18 years of age or having mental or physical defects or passing away.

2. If the petitioner withdraws his petition for charges, the lawsuit shall be dismissed. If such person is evidently found to withdraw the petition against his will out of coercion or duress, the investigation authority, Procuracy or Court shall maintain the charges regardless of the petition for withdrawal.

3. The crime victim or its representative is not permitted to resubmit a petition withdrawn, unless such withdrawal results from coercion or duress.

Article 156. Amendments to the decision on pressing criminal charges

1. Investigation authorities, units assigned to investigate or procuracies shall amend their decisions to press criminal charges when gaining justifications that charges deviate from actual criminal acts. Moreover, they shall add criminal charges when identifying other criminal acts left uncharged.

2. Investigation authorities and units assigned to investigate, in 24 hours upon their decisions to amend or add criminal charges, must send such decisions to the equivalent Procuracy or competent Procuracy that administers such charges.

The procuracy, in 24 hours upon the decision to amend or add criminal charges, must send such decision to investigation authorities for investigative activities.

Article 157. Justifications of the decision not to press criminal charges

A criminal charge shall not be filed in the presence of one of these justifications:

1. Criminal acts do not exist;

2. Acts do not constitute crime;

3. Persons committing dangerous acts against the society have not reached the age of criminal responsibility;

4. Persons whose criminal acts have been sentenced or lawsuits have been dismissed validly;

5. The prescriptive period for criminal prosecution passes;

6. General amnesty has been granted;

7. The person causing peril against the society is deceased, unless other persons must undergo reopening procedure;

8. The crime victim or its representative does not petition for charges against offences as defined in Section 1 of Article 134, 135, 136, 138, 139, 141, 143, 155, 156 and 226 of the Criminal Code.

Article 158. Decision not to press or to drop criminal charges

1. When one of the justifications as stated in Article 157 of this Law exists, the individuals authorized to press charges shall decide not to file or to drop criminal charges, if filed, and send notices of reasons to the authority or entities making denunciations, disclosing criminal information or requisition charges. If different measures are deemed necessary, the case shall be transferred to competent authorities for settlement.

A decision not to press or to drop criminal charges and relevant documents, in 24 hours upon the issuance of such decision, must be sent to the equivalent or competent Procuracy.

2. The authority or entities making denunciations or disclosing criminal information are permitted to file complaints against the decision not to press criminal charges. The authority and procedures for the settlement of such complaints are defined in Chapter XXXIII of this Law.

Article 159. Duties and authority of The procuracy exercising prosecution rights to handle criminal information

1. Approve or deny an order on emergency custody, extension of temporary detainment, and other measures that restrict human rights and citizen rights in connection with the handling of criminal information as per this Law.

2. Propose to inspect and verify information, when necessary, and request authorities empowered to process criminal information to conduct inspection and verification.

3. Decide to extend the time limit for the processing of denunciations, criminal information disclosed and requisitions for charges; decide to press criminal charges.

4. Request investigation authorities and units assigned to investigate to press criminal charges.

5. Directly process denunciations, criminal information disclosed or requisitions for charges in the events as defined in the Law.

6. Annul decisions on temporary detainment, decisions to or not to press criminal charges, decisions to suspend the processing of criminal information and other unlawful procedural decisions from investigation authorities and units assigned to investigate.

7. Carry out other duties and powers to exercise prosecution rights as per this Law to prevent omission of crimes and unjust conviction against guiltless people.

Article 160. The procuracy’s duties and authority to acquire and administer the processing of criminal information

1. Receive all denunciations, criminal information disclosed and requisitions for charges from authorities and entities, take in and transfer offenders confessing or surrendering to competent authorities for treatments.

2. Administer the acquisition of information, administer the verification of information and the documentation of criminal information by investigation authorities and units assigned to investigate; administer the suspension of the processing of criminal information; administer the resumption of the processing of criminal information.

3. Request investigation authorities and units assigned to investigate to perform the following activities upon the detection of deficiency or violations in the acquisition and processing of criminal information:

a) Receive, inspect, verify and decide the processing of criminal information in adequate and legitimate manners;

b) Inspect the acquisition and processing of criminal information and report to The procuracy;

c) Provide documents on breach of laws on the acquisition and processing of criminal information;

d) Correct violations of laws and impose strict penalties against the violators;

dd) Request the replacement of investigators and investigation officers.

4. Settle disputes over the authority to handle criminal information.

5. Request investigation authorities and units assigned to investigate to provide documents for the administration of the processing of criminal information.

6. Perform other duties and powers to administer the acquisition and processing of criminal information as per this Law.

Article 161. Duties and authority of The procuracy exercising prosecution rights and administering the pressing of criminal charge

1. The procuracy, when exercising prosecution rights of criminal charges, bears the following duties and authority:

a) Request investigation authorities and units assigned to investigate to press charges or amend or add criminal charges;

b) Annul groundless and unlawful decisions to press charges, decisions to amend or add criminal charges, decisions not to file criminal charges;

c) Appeal to the Court immediately superior to the trial panel that issues an unjustified decision to press criminal charges;

d) Press charges, amend or add criminal charges in the events as defined in this Law;

dd) Perform other duties and authority to exercise prosecution rights of criminal charge as per this Law.

2. The procuracy, when administering the filing of criminal charges, bears the following duties and authority:

a) Administer the legal compliance of charges filed by investigation authorities and units assigned to investigate, make sure that all criminals exposed must face justified and lawful charges;

b) Request investigation authorities and units assigned to investigate to provide relevant documents for the administration of criminal charges;

c) Perform other duties and authority to administer criminal charges as per this Law.

Article 162. Responsibilities of investigation authorities and units assigned to investigate for fulfilling requests and decisions by The procuracy on filing of charges

1. Investigation authorities and units assigned to investigate must execute the requests and decisions to charge from The procuracy.

2. Investigation authorities and units assigned to investigate, despite their protests, bear the obligation to execute decisions as defined in Section 1 and Section 6, Article 159, and Point b, Section 1, Article 161 of this Law and preserve the right to address their angles to the immediate superior Procuracy. The immediate superior Procuracy, in 20 days upon receiving motions from investigation authorities or in 05 days upon obtaining standpoints from units assigned to investigate, shall consider such angles and respond to such authorities and units.