Chương 3 Luật tương trợ tư pháp 2007: Tương trợ tư pháp về hình sự

Chapter III

LEGAL ASSISTANCE IN CRIMINAL MATTERS

Article 17. Scope of criminal legal assistance

The scope of criminal legal assistance between Vietnam and foreign countries covers:

1. Service of papers, dossiers and documents related to criminal legal assistance;

2. Summon of witnesses and experts;

3. Collection and supply of evidence;

4. Penal liability examination;

5. Information sharing;

6. Other requests for criminal legal assistance.

Article 18. Criminal legal mandate dossiers

1. A criminal legal mandate dossier comprises the following documents:

a/ A competent proceedings-conducting bodys written request for criminal legal assistance;

b/ The written criminal legal mandate prescribed in Article 19 of this Law.

2. A criminal legal mandate dossier is made in three sets in accordance with this Law and the law of the requested country. Language used in the dossiers complies with Article 5 of this Law.

Article 19. Criminal legal mandate documents.

1. A criminal legal mandate document must contain the following details:

a/ Date, month, year and place of making the document;

b/ Name and address of the legal mandator;

c/ Name and address or head office of the legal mandatory;

d/ Full names and places of permanent residence or working of individuals, full names, addresses or head offices of agencies or organizations directly involved in the criminal legal mandate;

dd/ The jobs subject to criminal legal mandates, clearly indicating the mandate purpose; summarized contents of the case, related circumstances, applicable legal provisions and penalties; schedule of investigation, prosecution and trial; the mandate performance duration.

2. In addition to the contents defined in Clause 1 of this Article, depending on each specific case and at the request of competent bodies of Vietnam or foreign countries, a criminal legal mandate document may cover the following contents:

a/ Signs of identity, nationality and places of residence of subjects in the criminal case or persons having information relating to that case;

b/ Matters to be questioned, questions to be asked, documents, dossiers or material evidences shown and, if possible, a description of characters and appearance of persons requested to produce documents, dossiers and material evidences with regard to evidence collection mandates;

c/ Contents of jobs, questions and requests for summoned witnesses and experts;

d/ Description of assets and places where assets need to be searched for; grounds for determining that the assets acquired from commission of crimes are located in the requesting country and may fall under the jurisdiction of the requesting country; the execution of court judgments or rulings on mandate for search, seizure of, or look for, confiscation of assets acquired from commission of crimes;

dd/ Measures applicable to the criminal legal mandate, which may lead to detection or recovery of assets acquired from commission of crimes;

e/ Requests or procedures of the requesting country to ensure the effective performance of legal mandate, mode or form of supplying information, evidence, documents and articles;

g/ Request for confidentiality of legal mandate;

h/ The purpose, expected time and itinerary of the trip in case competent persons of the requesting country need to arrive in the territory of the requested country for the purpose related to the legal mandate;

i/ The criminal judgment or ruling of a court and documents, evidence or other information necessary for the performance of legal mandates.

3. In case the information stated in the criminal legal mandate document defined in Clauses 1 and 2 of this Article is not sufficient for the performance of legal mandate, competent bodies of the requested country may also send documents to the requesting country, requesting the supply of additional information and fixing a specific deadline for reply on the additional results.

Article 20. Requesting foreign countries to provide criminal legal assistance

1. Vietnams competent proceedings-conducting bodies, in the course of handling criminal cases, may request competent foreign bodies to provide legal assistance in the following circumstances:

a/ Service of papers, dossiers and documents on persons who are residing in the requested countries;

b/ Summon of witness and experts who are living in the requested countries;

c/ Collection or supply of evidence in the requested countries for settlement of criminal cases in Vietnam;

d/ Examination of penal liability of persons who are staying in the countries of which they bear the nationality;

dd/ Other circumstances prescribed by Vietnamese law.

2. Requests for criminal legal assistance from foreign countries must be made in the form of criminal legal mandate under the provisions of this Law.

Article 21. Refusal or postponement of performance of criminal legal mandates of foreign countries

1. Foreign criminal legal mandates are rejected for performance in one of the following cases:

a/ They do not conform to treaties to which Vietnam is a contracting party or to Vietnamese law;

b/ They cause harm to national sovereignty or security;

c/ They are related to the examination of penal liability of a person for his/her criminal act for which he/she was sentenced, declared unguilty or granted general or special amnesty in Vietnam;

d/ They are related to criminal acts for which the penal liability examination statute of limitations has expired under the provisions of Vietnams Penal Code.

dd/ They are related to law-breaking acts which, however, do not constitute a crime under the provisions of Vietnams Penal Code.

2. The performance of criminal legal mandates in Vietnam may be postponed if it obstructs the process of investigation, prosecution, trial or judgment enforcement in Vietnam.

3. When deciding to refuse or postpone the performance of criminal legal mandates as provided for in Clauses 1 and 2 of this Article, the Supreme Peoples Procuracy shall notify the requesting countries of the reasons therefor and measures to be applied.

Article 22. Procedures for criminal legal mandates to foreign countries

1. Vietnams competent proceeding-conducting bodies requesting competent foreign bodies to provide criminal legal assistance shall make legal mandate dossiers as provided for in Article 18 of this Law and send them to the Supreme Peoples Procuracy.

2. Within ten working days after receiving the criminal legal mandate dossiers, the Supreme Peoples Procuracy shall record in the legal mandate book, examine the validity of the dossiers and transfer them to competent bodies of foreign countries under the provisions of treaties to which Vietnam and those foreign countries are contracting parties or through the diplomatic channel. If the dossiers are invalid, the Supreme Peoples Procuracy shall return them to the dossier-making agencies and clearly state the reasons therefor.

3. Within five working days after receiving the documents of competent bodies of foreign countries notifying the performance of criminal legal mandates, the Supreme Peoples Procuracy shall transfer those documents to Vietnams competent bodies which have sent the criminal legal mandate dossiers.

Article 23. Procedures for receiving and handling criminal legal mandates of foreign countries

1. Within fifteen days after receiving the criminal legal mandate dossiers of competent foreign bodies, the Supreme Peoples Procuracy shall record in the legal mandate book, examine the validity of the dossiers and transfer them to competent proceedings-conducting bodies of Vietnam for implementation. If the dossiers are invalid, the Supreme Peoples Procuracy shall return them to the competent bodies of the requesting countries and clearly state the reasons therefor.

2. Within five working days after receiving the written notices of Vietnams competent proceedings-conducting bodies on the performance of the legal mandates, the Supreme Peoples Procuracy shall transfer the notices to competent bodies of the requesting countries under the provisions of treaties to which Vietnam and the requesting countries are contracting parties or through the diplomatic channel.

3. In case the criminal legal mandates cannot be performed or expire while foreign countries request or need to supplement relevant information or documents, the competent proceedings-conducting bodies of Vietnam shall notify in writing the Supreme Peoples Procuracy thereof and clearly state the reasons therefor so that the latter notifies such to competent bodies of the requesting countries.

Article 24. Service of summons on witnesses, experts

1. The requesting countries wishing to summon witnesses or experts who are residing in Vietnam shall send the summons to the Supreme Peoples Procuracy at least ninety days before the expected date of those persons presence in the requesting countries. The procedures to receive summons of witnesses or experts comply with Article 23 of this Law.

2. Agencies serving the summons shall immediately send to the Supreme Peoples Procuracy written certifications of such service so that the latter transfers them to the requesting countries; in case of non-service, they shall notify such in writing and clearly state the reasons therefor.

Article 25. Transfer of persons who are serving their imprisonment sentence for supply of evidence

1. Persons who are serving their imprisonment sentence in Vietnam may be transferred to competent bodies of requesting countries for supply of evidence in criminal cases in the requesting countries.

2. Competent bodies of Vietnam may transfer persons who are serving their imprisonment sentence as provided for in Clause 1 of this Article only under the following conditions:

a/ Such persons agree with the transfer and to supply evidence in requesting countries;

b/ Competent bodies of the requesting countries commit in writing to ensure their life safety, health, accommodation and meal, travel conditions, duration and mode of receipt and return as well as other specific conditions related to the transfer as proposed by competent proceedings-conducting bodies of Vietnam. Such written commitment is made in accordance with the Vietnamese law and international law related to the transfer of persons who are serving their imprisonment sentence for supply of evidence. The return of transferred persons to competent proceedings-conducting bodies of Vietnam must be made on time as committed.

3. The duration for which the persons who are serving their imprisonment sentence are transferred to and stay in the requesting countries is counted into their sentence-serving duration.

Article 26. Supply of information

Upon request of competent bodies of Vietnam or foreign countries, the Supreme Peoples Procuracy shall request competent bodies of foreign countries or competent proceedings-conducting bodies of Vietnam to supply information relating to criminal legal assistance requests or copies of the criminal judgments or rulings of courts which have taken legal effect on citizens of the requesting countries.

Article 27. Use of information and evidence in criminal legal assistance

1. Information or evidence supplied by competent proceedings-conducting bodies of Vietnam may be used only for the purposes stated in the criminal legal mandates, must not be disclosed or transferred, unless prior written consent of competent bodies of Vietnam is obtained.

2. Competent proceedings-conducting bodies of Vietnam shall apply appropriate measures to keep secret criminal legal mandates, mandate contents, enclosed documents and criminal proceedings to be conducted under legal mandates. In case of non-performance of criminal legal mandates of foreign countries under the law on protection of state secrets, the Supreme Peoples Procuracy shall notify in writing competent bodies of foreign countries thereof, clearly stating the reasons therefor and reach agreement with the latter on substitute measures, if any.

3. When making criminal legal mandates to foreign countries, the Supreme Peoples Procuracy shall request competent bodies of such foreign countries to apply measures to:

a/ Keep secret the information and evidence supplied by Vietnam and use the information and evidence within a scope necessary for the purpose stated in the criminal legal assistance request;

b/ Ensure that information and evidence are not distorted, modified, illegally disclosed or otherwise abused.

Article 28. Request for penal liability examination; hand-over of files and material evidence of cases to foreign countries

1. For cases involving foreigners who committed crimes in the Vietnamese territory but have fled abroad and Vietnam has made an extradition request which was, however, rejected by foreign competent bodies, the agencies which are handling the cases shall transfer the case files to the Supreme Peoples Procuracy for requesting the countries where the offenders are present to continue with the penal liability examination. When deciding to transfer the case files, the Supreme Peoples Procuracy may also transfer material evidence of the cases.

2. The Supreme Peoples Procuracy shall prescribe specific conditions for receipt and transfer of case files and material evidence.

Article 29. Handling of foreign requests for penal liability examination of Vietnamese citizens in Vietnam

The Supreme Peoples Procuracy shall consider requests of competent bodies of foreign countries for further penal liability examination of Vietnamese citizens who committed crimes overseas and are present in Vietnam in the following order:

1. If the case is being under investigation and falls under the jurisdiction of the proceedings-conducting body of a province or centrally run city (below referred to as provincial-level proceedings-conducting body), such request will be transferred to the provincial-level Peoples Procuracy of the locality where those Vietnamese citizens resided last before fleeing abroad in order to request the investigating body of the same level to conduct the investigation; if the case falls under the jurisdiction of the investigating body of the Ministry of Public Security, it will be transferred to the investigating body of the Ministry of Public Security for investigation;

2. If the case is being under prosecution and falls under the jurisdiction of the provincial-level Peoples Procuracy, it will be transferred to the provincial-level Peoples Procuracy of the locality where those Vietnamese citizens last resided before fleeing abroad for prosecution;

3. The investigation, prosecution and trial applicable to the cases specified in this Article comply with Vietnams criminal procedure law.

Article 30. Performance of foreign legal mandates for investigation of foreign nationals in Vietnam

Within five working days after the receipt of legal mandate dossiers for investigation of foreign nationals, who have committed crimes in their countries and are residing in Vietnam, the Supreme Peoples Procuracy shall transfer the dossiers to competent investigating bodies of Vietnam for investigation. Investigation results will be sent to the Supreme Peoples Procuracy for transfer to the requesting countries.

Article 31. Expenses for provision of criminal legal assistance

Expenses for provision of criminal legal assistance between Vietnam and foreign countries will be paid by the requesting countries, unless otherwise agreed upon. In case Vietnam bears the cost of criminal legal mandate performance, such cost will be covered by the state budget.