Phần thứ năm Bộ luật Tố tụng hình sự 2015: Một số quy định về thi hành bản án, quyết định của Tòa án

PART FIVE

REGULATIONS ON THE ENFORCEMENT OF THE COURT’S SENTENCES AND RULINGS

Chapter XXIII

SENTENCES AND RULINGS THAT ARE IMMEDIATELY ENFORCED AND THE AUTHORITY TO DECIDE THE ENFORCEMENT OF SENTENECS

Article 363. The court’s sentences and rulings that are immediately enforced

The court's sentences or rulings, though appealable, shall be immediately enforced when the first-instance court decides to dismiss the case for a defendant in detention or declare that defendant guiltless or exempt from criminal liabilities or punishments. Moreover, alternatives to incarceration or suspended prison sentences or jail sentences, whose length of time is equal to or shorter than the detention time served, shall take immediate effect.

Warnings shall be delivered in court.

Article 364. Authority and procedure to order the enforcement of sentences

1. The president of the court that held the first-instance trial shall assume authority to order the enforcement of sentences or delegate the president of an equivalent court to order the execution of sentences.

2. The time limit for the issuance of an order for sentence enforcement shall be 07 days upon the effect of the first-instance court's sentences and rulings or upon the receipt of sentences and rulings from the appellate court or decisions generated through cassation or reopening procedures.

The court president, when delegated by the president of the court that held the first-instance trial, shall in 07 days upon the receipt of the written delegation issue an order to enforce the sentences.

3. If a person on bail is sentenced to jail, the order on the enforcement of such prison sentence must state that the said person must in 07 days upon receiving the written order present himself to a criminal sentence enforcement unit of a district police office to serve time.

If a person on bail and sentenced to jail absconds, the President of the Court that has ordered the sentence enforcement shall request a wanted notice to be issued by the criminal sentence enforcement police unit of the provincial Police office at the location where the prison sentence was passed.

Article 365. Explication and revision of the Court’s sentences and rulings

1. Criminal and civil sentence enforcement authorities, procuracies, sentenced persons, crime victims and litigants in connection with the enforcement of sentences shall be entitled to petition the Court that passed such sentences and rulings for its explication and revision of obscure details of such judgments and decisions for the purpose of enforcement.

2. The presiding judge of the court that pronounced the sentences and rulings shall be held responsible for explicating and revising vague details of the Court’s judgments and decisions. The president of the Court that passed the sentences and rulings, if the presiding judge cannot explicate or revise such, shall undertake the tasks.

Article 366. Settlement of motions against the Court’s sentences and rulings

If a criminal or civil sentence enforcement authority makes a motion for revision of the Court’s sentences or rulings through the reopening or cassation procedures, the competent Court shall be responsible for responding to such motion in 90 days upon the receipt of the motion made in writing. The time limit for response, in complex cases, can be extended for 120 more days at most upon the receipt of the written motion.

Chapter XXIV

PROCEDURES FOR THE EXECUTION OF DEATH PENALTY, PAROLE AND EXPUNGEMENT OF CRIMINAL RECORDS

Article 367. Procedures for the review of death penalty before execution

1. The following procedures shall apply to the review of a death penalty before execution:

a) When a death penalty comes into force, the case file shall be promptly sent to the President of the Supreme People’s Court and the sentences shall be immediately delivered to the Head of the Supreme People’s Procuracy;

b) Supreme People’s Court, after reviewing the case file to make decisions to or not to file an appeal through reopening or cassation procedures, shall have the case file sent to the Supreme People’s Procuracy. Supreme People’s Procuracy, in 01 month upon receiving the case file, shall return it to the Supreme People’s Court;

c) The president of the Supreme People’s Court or head of the Supreme People’s Procuracy, in 02 months upon the receipt of the case file, must decide to or not to appeal through reopening or cassation procedures;

d) The sentenced person shall be allowed to, in 07 days upon the effect of the sentence, petition for the State president’s commutation;

dd) A death penalty shall be executed if the President of the Supreme People’s Court and the Head of the Supreme People’s Procuracy do not appeal through reopening or cassation procedures and the sentenced person does not petition for the State president’s amnesty.

If an appeal is filed against the death penalty through the reopening or cassation procedures but is rejected by the Reopening panel or Cassation panel of the Supreme People’s Court for sustaining the death penalty, the Supreme People’s Court shall promptly notice the sentenced person for the latter’s petition for amnesty;

e) If the sentenced person petitions for remission, the death penalty shall be executed upon the State President’s rejection of the petition.

2. The president of the Court that held the first-instance trial, in the presence of grounds as defined in Section 3, Article 40 of the Criminal Code, shall not order to enforce the death penalty and report to the President of the Supreme People’s Court for the reduction of the death sentence to incarceration for life.

Article 368. Procedures for parole

1. Prisons and detention centers of the Ministry of Public Security, detention centers of the Ministry of Defense, criminal sentence enforcement units of provincial Police offices and military zones shall be responsible for preparing and sending the application for parole to the provincial Procuracy or military Procuracy of the military zone, provincial People’s Court, military Court of the military zone at the location where the convict serves time.

An application for parole comprises:

a) The convict’s letter of application for parole, including his undertakings to obey the laws and perform mandatory duties of the parole;

b) A copy of the sentence in effect and sentence enforcement order;

c) A copy of the decision to mitigate the prison sentence’s term of length for a person convicted of felonies or harsher crimes;

d) The documents showing the fulfillment of additional pecuniary fines, court fees and civil liabilities;

dd) The personal records of the convict and his family background;

e) The ranking result of the convict’s serving of his time on quarterly, 6-month and annual basis;  the decision to commend or the competent authority's written confirmation of the convict's merit, if existing;

g) The written request for parole from the authority that prepares the application.

2. The written request for parole from the authority that prepares the application shall contain these primary details:

a) Number and date of the written request;

b) Full name, position and signature of the individual authorized to make the request;

c) Full name, gender, year of birth, residential place of the convict; and the location where the convict undergoes probation;

d) Length of time served and remaining;

dd) Remarks and requests by the authority that prepares the application.

3. The provincial People’s Procuracy or military Procuracy of the military zone must, in 15 days upon receiving the application for parole, expresses its opinions in writing on such application.

If the Procuracy demands further documents, the authority making the application must, in 03 days upon receiving such demand, prepare and send additional papers to the Procuracy and Court.

4. The president of the provincial People’s Court or military Court of the military zone, in 15 days upon obtaining the application, must hold a meeting to consider the parole and inform the equivalent Procuracy in writing to have procurator(s) assigned to such meeting. If the Court demands further documents, the authority making the application must, in 03 days upon receiving such demand, prepare and send additional papers to the Court and Procuracy.

5. The parole board is composed of the Court president, chairing the board, and 02 judges.

6. A member of the Board shall brief the application in the meeting. The procurator shall state the Procuracy’s standpoints on the concerned authority’s application for parole and the legal compliance of the ratification of parole. The representative of the authority making the application can present additional details to elucidate the application for parole.

7. The parole meeting shall be recorded in writing. The written record shall specify the date and location of the meeting, participants, contents and events in the meeting and the Board's decision to approve or reject the application for parole for each convict.

At the end of the meeting, the Procurator shall view the written record and request amendments (if any) to such record. The chairman of the Board must review the record and, together with the meeting clerk, sign the record.

8. In 03 days upon the issuance of the decision to grant parole, the Court must send such decision to the convict, equivalent Procuracy, immediate superior Procuracy, authority making the application, Court that ordered sentence enforcement, criminal sentence enforcement unit of district Police or military zone, local authorities at the commune, ward or town where the person on parole resides, military unit managing such person, and Department of Justice adjacent to the office of the Court issuing the decision.

9. The prison, upon receiving the decision to grant parole, shall announce such decision and handle formalities to execute the parole decision. If the person on parole does not violate Section 4, Article 66 of the Criminal Code during his probation, the criminal sentence enforcement unit of the district Police or military zone that managed such person, upon the expiration of the probation, shall certify his fulfillment of jail sentence in writing.

10. If the person on parole violates Section 4, Article 66 of the Criminal Code, the criminal sentence enforcement unit of the district Police office adjacent to the residential location of the person on parole or the military unit managing such person must submit documents to the Procuracy and Court that decided the parole. The said Procuracy and Court shall consider such documents to annul the decision issued and compel that person to serve the jail time remaining.

The court, in 05 days upon receiving a request, must hold a meeting to review details and make decision.

The court, in 03 days upon annulling the parole decision, must send its new decision to the authorities and individuals as stated in Section 8 of this Article.

11. The procuracy and the convict are entitled to appeal or complain, respectively, against the decision to approve or reject the parole and the decision to annul the parole decision.

The order, procedures and authority to settle such appeals and complaints against the decisions as stipulated in this section shall abide by Chapter XXII and Chapter XXXIII of this Law.

Article 369. Procedures for expungement of criminal records

1. The authority managing criminal record database, in 05 days upon receiving the request by the person whose criminal records are eligible for expungement, shall consider the conditions as stated in Article 70 of the Criminal Code and issue a certificate of no justice records.

2. The court shall decide the expungement in the events as defined in Article 71 and Article 72 of the Criminal Code. The sentenced person must send the Court, which held the first-instance trial, his petition bearing remarks of the local authority at the commune, ward or town where he resides or of his workplace or educational facility.

The court that held the first-instance trial, in 03 days upon receiving the sentenced person’s petition, shall send the application for expungement to the equivalent Procuracy. The equivalent Procuracy, in 05 days upon obtaining the documents from the Court, shall respond in writing and return such papers to the Court.

The president of the Court that held the first-instance trial, in 05 days upon retrieving documents from the Procuracy, shall consider the eligibility and approve or reject the application for expungement.

The court, in 05 days upon issuing a decision to approve or reject the application for expungement, must have such decision sent to the sentenced person, equivalent Procuracy, local authorities at the commune, ward or town where the person resides or his workplace or educational facility.