Chương XIII Bộ luật Tố tụng hình sự 2015: Khám xét, thu giữ, tạm giữ tài liệu, đồ vật

Chapter XIII

SEARCH, SEIZURE AND IMPOUNDMENT OF DOCUMENTS AND ITEMS

Article 192. Justifications for search of body, residence, workplace, area, vehicle, document, item, mail, telegraphy, postal package and electronic data

1. Search of body, residence, workplace, area, vehicle shall only be permissible in the presence of justifications showing the existence of criminal instruments, documents, items, property obtained by crime or other objects, electronic data, documents related to the case on the body or in the residence, workplace, site and vehicle.

Search of residence, workplace, area and vehicle shall be conducted to seek wanted persons or search and rescue crime victims.

2. If there are justifications showing the existence of criminal instruments, documents, items and property related to the case in mails, telegraphs, postal packages and electronic data, such items and data shall be searched.

Article 193. The authority to issue search warrants

1. Competent individuals as defined in Section 1, Article 113 of this Law are entitled to issue search warrants. Search warrants issued by individuals as defined in Section 2, Article 35 and Point a, Section 1, Article 113 of this Law must be approved by The procuracy prior to the enforcement of such warrants.

2. In emergency events, competent individuals as defined in Section 2, Article 110 of this Law shall be entitled to issue search warrants. Individuals issuing search warrants, in 24 hours upon the completion of the search, must send written notices to the equivalent Procuracy or The procuracy empowered to exercise prosecutors; rights and administer cases and lawsuits.

3. Investigators, before conducting the search, must inform the equivalent Procuracy of the time and location of the search to have procurators assigned to administer the search, except for emergency circumstances. Procurators must be present to administer the search. The procurators' absence shall be clearly described in the written record of the search.

4. All cases of search shall be executed in writing according to Article 178 of this Law and entered into case files.

Article 194. Search of body

1. Enforcers of a search warrant, before searching body, must read out the warrant and let the searched person read it. The searched person and attendees in the search shall hear explanations of their rights and duties.

Searchers must request the searched persons to present documents and items related to the case. If they refuse or present insufficient items and documents related to the case, the search shall occur.

2. The search of a person's body shall be carried out by a person of same gender and witnessed by other individuals of same gender. The search process shall not affect the life, health, property, honor and dignity of the person searched.

3. Body search shall be permissible without a warrant in case of an arrest or in the presence of justifications asserting that the person present at the location of the search is concealing weapons, evidences, documents and items in connection with the case.

Article 195. Search of residence, workplace, area and vehicle

1. Search of residence requires the presence of the suspect or a co-resident person from 18 years of age, representatives of local authorities at communal of the commune, ward or town (at communal or lower level). If the suspect or the co-resident person is intentionally absent, absconds or fails to appear for any reasons, the search of residence, if not deferrable, shall be conducted in the presence of the representatives of local authorities at communal or lower level and two witnesses.

Search of residence shall not commence at night, except for emergency circumstances that must be specified in writing.

2. The person, when his residence is searched, must be present. Despite the absence of such person, the search of residence, if not deferrable, shall occur and be reduced to writing.

Search of workplace requires the presence of the representative of the organization employing the suspect. If the said representative of the employer is absent, the search shall occur in the presence of the representatives of local authorities at communal or lower level and 02 witnesses.

3. Search of an area requires the presence of the representatives of local authorities and witnesses.

4. Search of a vehicle requires the presence of the owner or manager of such vehicle or witnesses. If the owner or manager of the vehicle is absent, absconds or fails to appear for any reasons, the search, if not deferrable, shall occur in the presence of two witnesses.

A relevant specialist may be summoned to participate in the search of a vehicle.

5. The persons attending a search of residence, workplace, area or vehicle shall not be left to the discretion of leaving the place searched, contacting or interacting with each other or other individuals until the completion of the search.

Article 196. Seizure of electronic media and data

1. Seizure of electronic media and data is conducted by authorized procedural persons. Relevant specialists may be summoned to attend the search. If seizure is not viable, data shall be transferred to a storage medium and stored as a piece of evidence.

2. Seizure of electronic media may include accompanying peripherals and relevant documents.

Article 197. Seizure of mails, telegraphs and postal packages at the premises of providers of postal or telecommunications services

1. Investigation authorities, when affirming the necessity of the seizure of mails, telegraphs and postal packages at the premises of providers of postal or telecommunications services, shall issue a search warrant. The said warrant, prior to enforcement, must be approved by an equivalent Procuracy.

2. If the seizure of the said items cannot be delayed, investigation authorities shall carry it out and specify reasons in writing. The report of the seizure, after completed, and relevant documents shall be promptly delivered to the equivalent Procuracy for ratification.

The procuracy, in 24 hours upon receiving the request for ratification and documents related to the seizure of mails, telegraphs and postal packages, shall decide to approve and reject the request. If The procuracy rejects the said request, the issuer of the seizure warrant shall immediately return the items seized to the providers of postal and telecommunications services. Moreover, the recipients of mails, telegraphs or postal packages seized shall be informed.

3. The enforcers of the warrant, before seizing items, must inform the managerial personnel of the concerned providers of postal or telecommunications services. Managerial personnel of concerned providers of postal or telecommunications services must support the enforces of the warrant to accomplish their missions.

Seizure of mails, telegraphs and postal packages requires the presence of the representative of postal or telecommunications service providers, who shall sign the written record of the seizure.

The authority issuing the seizure warrant shall notice the recipients of mails, telegraphs and postal packages seized. If the said notice obstructs investigative activities, the authority issuing the seizure warrant shall promptly deliver the notice upon the disappearance of such obstruction.

Article 198. Impoundment of documents and items during a search

1. Investigators, when conducting a search, shall be permitted to impound items deemed as evidences and documents in direct connection with the case. Items prohibited from storage or circulation shall be seized and transferred to competent authorities in prompt manner. If sealing is necessary, items shall be sealed in the presence of the owner, manager, witnesses, family members as representatives, and representatives of local authorities at communal or lower level.

2. The impoundment of items and documents during a search shall be executed in writing as per Article 133 of this Law. A written record of impounds shall be made into four originals. One is given to the owner or manager of the items or documents. One is stored in the case file. One is submitted to the equivalent Procuracy. One is delivered to the authority managing items and documents impounded.

Article 199. Responsibilities for preserving vehicles, documents, items, electronic data, mails, telegraphs, postal packages seized, impounded or sealed

1. Vehicles, documents, items, electronic data, mails, telegraphs and postal packages seized, impounded or sealed must be preserved in intact conditions.

2. Criminal liabilities as per the Criminal Code shall be imposed on persons breaking seals, consuming, transferring, swapping, hiding or ruining vehicles, documents, items, electronic data, telegraphs and postal packages.

Article 200. Liabilities of individuals issuing and enforcing warrants of search, seizure and impoundment.

Individuals issuing or enforcing warrants of search, seizure or impoundment in illegal manners shall incur disciplinary treatments or face criminal prosecution according to the nature and degree of violations as per the laws.