Chương XXVIII Bộ luật Tố tụng hình sự 2015: Thủ tục tố tụng đối với người dưới 18 tuổi

Chapter XXVIII

LEGAL PROCEEDINGS FOR PERSONS LESS THAN 18 YEARS OF AGE

Article 413. Scope of regulation

Legal proceedings for accused persons, individuals aggrieved and witness testifiers who are less than 18 years old shall be governed by this Chapter and other regulations of this Law not contrary to those in this Chapter.

Article 414. Principles of legal proceedings

1. Legal proceedings must be congenial and conformable to the mentality, age level, maturity level and awareness of persons less than 18 years of age. Legitimate rights and interests of persons aged under 18 must be assured. Persons under age of 18 must be guaranteed to gain the best benefits.

2. Personal information of individuals below 18 years of age must be kept confidential.

3. The right to participate legal proceedings must be guaranteed for the representatives of persons under 18, schools, Youth Union, individuals with experience and knowledge of psychology and social affairs, places where persons aged below 18 pursue education and do daily activities.

4. The rights of persons under age of 18 to attend and express opinions must be respected.

5. The rights of persons aged under 18 to defense and legal assistance must be guaranteed.

6. Principles of treatments as per the Criminal Code for persons less than 18 years of age must be assured.

7. The cases in connection with persons aged below 18 must be settled in swift and timely manners.

Article 415. Presiding officers

Presiding officers in the cases, in which persons aged under 18 are involved, have been trained or experienced in conducting activities of investigation, prosecution and adjudication related to persons less than 18 years of age. Presiding officers must have essential knowledge of psychology and educational science for persons under age of 18.

Article 416. Elucidation of essential details in the process of legal proceedings against accused persons, whose age is under 18

1. The age, physical and spiritual growth level, awareness level of crimes of persons aged under 18

2. The conditions of life and education.

3. The incitement by persons from 18 years of age.

4. The reasons, conditions and circumstances that lead to crimes.

Article 417. Determination of age of accused persons or crime victims under the age of 18

1. Competent procedural authorities shall determine the age of accused persons and crime victims under 18 years of age according to the laws.

2. The date of birth of such persons shall be determined in the following manner if legitimate approaches do not generate an accurate result:

a) If the month of birth is identified but the day is unknown, the last day of that month shall be the day of birth.

b) If the quarter when birth occurred is identified but the date is unknown, the last date of that quarter shall be the date of birth.

c) If the half of the year when birth occurred is identified but the date is unknown, the last day of the final month of that half of the year shall be the date of birth.

d) If the year of birth is identified but the date is unknown, the last day of the final month of that year shall be the date of birth.

3. If the year of birth is not identified, age shall be determined through expert examinations.

Article 418. Supervision of accused persons aged below 18

1. Investigation authorities and units assigned to investigate, procuracies and courts can decide to have accused persons aged under 18 supervised by their representatives to guarantee their attendance in response to competent procedural authorities’ subpoenas.

2. Individuals assigned with supervisory duties shall be held responsible for supervising persons less than 18 years of age in strict manner, oversee their conduct and morality and educate them.

Individuals assigned with supervisory duties must report and cooperate with competent procedural authorities in prompt manner to implement timely preventive measures if the persons under the age of 18 are likely to abscond or commit the acts of bribing, coercing and fomenting other people to falsify statements or provide false documents; destroying or forging evidences, documents and items related to the case, or shifting property related to the case away; threatening, repressing or avenging witness testifiers, crime victims, denouncers and their kin, or continuing criminal acts.

Article 419. Implementation of preventive and coercive measures

1. Preventive measures and coercive delivery of persons aged below 18 shall be viable only in truly vital circumstances.

Temporary detainment or detention of accused persons less than 18 years of age shall be viable only on the grounds that supervisory approach and other preventive measures fail. The permissible duration of the detention of accused persons under 18 shall be two thirs of the time limit for the detention of individuals from the age of 18 as per this Law. Competent individuals must promptly terminate or change preventive measures when the grounds for temporary detainment or detention evanesce.

2. Persons from the age of 14 to below 16 may be held in emergency custody, apprehended, temporarily detained or held in detention for their crimes as defined in Section 2, Article 12 of the Criminal Code in the presence of grounds as stated in Article 110, 111 and 112, and Point a, b, c, d and dd, Section 2, Article 119 of this Law.

3. Persons from the age of 16 to below 18 may be held in emergency custody, apprehended, temporarily detained or held in detention for intentional felonies, horrific or extremely severe felonies in the presence of grounds as stated in Article 110, 111 and 112, and Point a, b, c, d and dd, Section 2, Article 119 of this Law.

4. Suspects or defendants from the age of 16 to below 18 may be apprehended, detained and held in detention if they continue criminal acts, abscond and are placed under arrest as per wanted notices after being charged, investigated, prosecuted and tried for unintentional felonies or misdemeanors punishable by a maximum term of imprisonment of 2 years according to the Criminal Code.

5. In 24 hours upon the emergency custody, apprehension, temporary detainment or detention, the individuals issuing custodial orders against persons aged under 18 must inform the representatives of such juveniles.

Article 420. Representative, school and organization participating in legal proceedings

1. Representatives of persons aged below 18, teachers and representatives of the school, Youth Union and other organizations, where persons aged under 18 pursue education and perform daily activities, shall have the right and duty to participate in legal proceedings as per the decisions of investigation authorities, procuracies and courts.

2. Representatives of persons less than 18 years of age can attend the session of deposition and interrogation of persons under 18. Such representatives can submit evidences, documents, items, requests, complaints and Charges. They can read, transcribe and photocopy documents related to charges against persons aged below 18 from the case file after investigative activities end.

3. Individuals as defined in Section 1 of this Article shall be entitled, in court, to present evidences, documents, items, requests, to requisition the replacement of presiding officers, to express opinions, arguments, and to file complaints against procedural acts of authorized procedural persons and the Court’s decisions.

Article 421. Deposition of persons held in emergency custody, apprehended or temporarily detained, crime victims, witness testifiers; interrogation of suspects; confrontation

1. When a person under 18 gives depositions while held in emergency custody or apprehended or temporarily detained, or suffers harms of crimes, or testify, or is interrogated, the competent procedural authorities must inform the defense counsel, representative and protector of such person’s legitimate rights and benefits of the time and location of the deposition or interrogation in advance.

2. The defense counsel or representative must be present during the taking of depositions from person held in emergency custody, apprehended or temporarily detained or during the interrogation of suspects.

The representative or protector of legitimate rights and benefits of crime victims or witness testifiers must attend the deposition of such persons.

3. The defense counsel and representative can pose questions, with the consent of the investigators or procurators, to the persons apprehended and detained or suspects under the age of 18.  After competent individuals end each session of despotion or interrogation, the defense counsel and representative can raise questions to the suspects or persons held in emergency custody, apprehended or held in termporary custody.

4. There shall be at most, on daily basis, two sessions of deposition of persons under 18. Each session shall be less than 02 hours, unless the case comprises a variety of complex factors.

5. Only two sessions of interrogation of suspects under 18 shall be permissible per day. The duration of each session shall be limited to 02 hours, except for:

a) Organized crimes;

b) Seeking of fugitive criminals;

c) Prevention of crimes;

d) Search of tools or instruments of crime or other exhibits related to the case;

dd) Cases with several complex facts.

6. Authorized procedural persons shall have suspects or defendants confronted with crime victims aged below 18 for the sole purpose of elucidating facts of the case if the case cannot be solved without confrontation.

Article 422. Defense

1. Accused persons under 18 years of age shall be entitled to defend themselves and be defended.

2. Representatives of accused persons aged under 18 shall be entitled to select a defense counsel or themselves defend such juveniles charged.

3. If accused persons under 18 do not have or their representatives do not select a defense counsel, investigation authorities, procuracies or courts shall appoint a defense counsel according to Article 76 of this Law.

Article 423. Adjudication

1. The trial panel of the first-instance court must consist of a lay assessor who has been a teacher or Youth Union’s official or possessed experience and psychological knowledge regarding persons less than 18 years of age.

2. If a defendant or crime victim below 18 years of age must be protected in special circumstances, the Court can decide to hold a secret trial.

3. The representatives of defendants aged under 18, representatives of the school or organization where such defendants pursue education and do daily activities must attend the trial against the juveniles, unless such representatives are absent not due to force majeure or objective obstacles.

4. The session of questioning or debate in court for defendants, crime victims and witness testifiers under 18 must correspond with their age and growth level. The courtroom must be congenial and conformable to persons less than 18 years of age.

5. If crime victims and witness testifiers are less than 18 years old, the Trial panel must limit the interaction between such juveniles and defendants when the said adolescent give testiomines in court. The presiding judge can request the representative, protector of legitimate rights and benefits to question the victims and witness testifiers.

6. The trial panel, when holding the trial, shall have defendants to undergo educational remedies in a reform school if considering penalties not necessary.

7. The president of the Supreme People’s Court shall elaborate the juvenile and family Court's adjudication of cases involved in persons under 18.

Article 424. Termination of educational remedies at the commune, ward or town, in the reform school, mitigation or exemption of penalties

Sentenced persons aged below 18 may benefit from the termination of educational remedies at the commune, ward or town, or in the reform school, of from the mitigation or exemption of penalties upon the satisfaction of requirements in Article 95 or Article 96 or Article 105 of the Criminal Code.

Article 425. Expungement of criminal records

Criminal records of persons aged under 18 shall be expunged according to this Law upon the fulfillment of requirements in Article 107 of the Criminal Code.

Article 426. Authority to implement supervisory and education remedies against criminals under 18 who are exempt from criminal liabilities

Investigation authorities, procuracies and courts shall be empowered to decide the enforcement of one of following supervisory and educational remedies against criminals aged below 18 who are exempt from criminal liabilities:

1. Reprimand;

2. Community conciliation;

3. Edification at the commune, ward or town.

Article 427. Order and procedures of the remedy of reprimand

1. When a criminal under 18 is exempt from criminal liabilities but is eligible for reprimand according to the Criminal Code, the head or vice head of investigation authorities, procuracies or the Trial panel shall decide to implement the remedy of reprimand against the juvenile criminals in cases that they settle.

2. A decision to implement the remedy of reprimand shall have these primary details:

a) Number, issue date and issuing place of the decision;

b) Full name, position and signature of the individual authorized to make the decision and seal of the issuing authority;

c) Reasons and grounds of the decision;

d) Full name, date of birth and residential address of the suspect or defendant;

dd) Offence title, applicable points, sections and articles from the Criminal Code;

e) Length of time of duties of persons reprimanded.

3. Investigation authorities, procuracies and courts must promptly send their decisions to reprimand to the person reprimanded, his parents or representative.

Article 428. Order and procedures of the remedy of community conciliation

1. When requirements for community conciliation as per the Criminal Code are deemed satisfied, the head or vice head of investigation authorities, procuracies or the Trial panel shall decide to implement the remedy of community conciliation.

2. A decision to implement the remedy of community conciliation shall have these primary details:

a) Number, issue date and issuing place of the decision;

b) Full name, position and signature of the individual authorized to make the decision and seal of the issuing authority;

c) Reasons and grounds of the decision;

dd) Offence title, applicable points, sections and articles from the Criminal Code;

dd) Full name of the investigator or procurator or judge assigned to organize a conciliation;

d) Full name, date of birth and residential address of the suspect or defendant;

g) Full name of the crime victim;

h) Full name of other participants in the conciliation;

i) Time and location of the conciliation.

3. The decision on community conciliation must be delivered, in no more than 03 days prior to the conciliation, to the criminals aged under 18, their parents, crime victims and their representatives and People’s committee of the commune, ward or town where the conciliation happens.

4. When conducting the conciliation, the investigator, procurator or judge assigned to conciliate must cooperate with the People's committee of the commune, ward or town where the conciliation takes place. Moreover, the conciliation must be recorded in writing.

5. The written record of conciliation shall contain these primary details:

a) Location, time and date of the conciliation, starting and ending time;

b) Full name of the investigator, procurator or judge assigned to organize the conciliation;

d) Full name, date of birth and residential address of the suspect or defendant;

d) Full name, date of birth and residential address of the crime victim;

dd) Full name, date of birth and residential address of other participants in the conciliation;

e) Questions, answers and colloquy of participants in the conciliation;

g) Results of the conciliation; persons under 18, their parents or representatives giving apologies and amends (if any); victims and their representatives voluntarily conciliating and petitioning for exemption of criminal liabilities (if any);

h) Signature of the investigator, procurator or judge organizing the conciliation.

6. At the end of the conciliation, the investigator, procurator or judge organizing the conciliation shall re-read the written record to the participants in the conciliation. The investigator, procurator or judge making the written record must enter amendments requested into the record and have them confirmed by signature. If such requests are rejected, reasons for rejection must be specified in the record. The written record of conciliation shall be immediately given to the participants in the conciliation.

Article 429. Order and procedures of the remedy of edification at the commune, ward or town

1. When a criminal under 18 is exempt from criminal liabilities but is eligible for edification at the commune, ward or town according to the Criminal Code, the head or vice head of investigation authorities, procuracies or the Trial panel shall decide to implement such remedy against the juvenile criminals in cases that they settle.

2. A decision to implement the remedy of edification at the commune, ward or town shall have these primary details:

a) Number, issue date and issuing place of the decision;

b) Full name, position and signature of the individual authorized to make the decision and seal of the issuing authority;

c) Reasons and grounds of the decision;

d) Full name, date of birth and residential address of the suspect or defendant;

dd) Offence title, applicable points, sections and articles from the Criminal Code;

e) Length of time of the remedy;

g) Responsibilities of local authorities at the commune, ward or town where the remedied person resides.

3. Investigation authorities, procuracies and courts must send their decisions, in 03 days upon issuing a decision to implement the remedy, to the remedied person, his parents or representative, and local authorities at the commune, ward or town they the concerned person reside.

Article 430. Order and procedures of the educational remedy in the reform school

1. The trial panel, when considering penalties not necessary, shall sentence the criminal under 18 to educational remedy in a reform school.

2. A decision to implement the educational remedy in a reform school have these primary details:

a) Number, issue date and issuing place of the decision;

b) Full name and signatures of members of the Trial panel issuing the decision;

c) Reasons and grounds of the decision;

d) Full name, date of birth and residential address of the suspect or defendant;

dd) Offence title, applicable points, sections and articles from the Criminal Code;

e) Length of time of education remedy in the reform school;

g) Responsibilities of the reform school that educate the remedied person.

3. The decision to implement this remedy shall be immediately given to the criminals under 18, their parents or representatives and the reform school.