Chương VI Bộ luật Tố tụng hình sự 2015: Chứng minh và chứng cứ

Chapter VI

ATTESTATION AND EVIDENCE

Article 85. Attestation in criminal lawsuits

Competent procedural authorities, when investing, prosecuting and hearing criminal lawsuits must attest:

1. The existence of the crime, time, space and facts of the crime;

2. The perpetrator of the crime; the presence of guilt, intentional or unintentional acts; the existence of criminal capacity; purposes and motive of the crime;

3. Facts aggravating and mitigating criminal liabilities of suspects, defendants and identity traits of suspects and defendants;

4. Nature and severity of damages caused by the crime;

5. Reasons and conditions leading to the crime;

6. Other facts in connection with the exclusion or exemption of criminal liabilities and impunity.

Article 86. Evidences

Evidences are de facto and collected as per the sequence and formalities defined by this Law. Evidences are grounds for the determination of a crime, perpetrators of such crime and other valuable facts for the settlement of the case.

Article 87. Sources of evidences

1. Evidences are collected and determined from these sources:

a) Exhibits;

b) Statements, presentations;

c) Electronic data;

d) Findings of expert examination and valuation;

dd) Records of legal proceedings, investigation, prosecution, adjudication, sentence enforcement;

e) Results of judicial delegation and other international cooperations;

g) Other documents and items.

2. Palpable things not collected as per the sequence and formalities as per this Law bear no legal effect and are not evidences for the settlement of criminal lawsuits.

Article 88. Collection of evidences

1. Competent procedural authorities, to collect evidences, are entitled to perform activities of evidence collection as per this Law, and to request other authorities and entities to provide evidences, documents, items, electronic data and facts that solve the case.

2. Defense counsels, to collect evidences, are entitled to meet persons whom they defend, crime victims, witness testifiers and other individuals knowledgeable about the case to put questions and hear such persons’ stories related to the case; to request authorities and entities to provide documents, items and electronic data for pleading.

3. Other participants in legal proceedings, authorities and entities can provide evidences, documents, items, electronic data and relate matters of the case.

4. Competent procedural authorities, when receiving evidences, documents, items and electronic data related to the case from individuals as stated in Point 2 and Point 3 of this Article, shall make written records of submission, verify and assess such as per this Law.

5. In 05 days’ time upon making written records of investigative activities, collecting and receiving documents on the case, which procurators do not directly administer according to this Law, investigation authorities and units assigned to investigate are responsible for transferring such records and documents to the Procurarcy for the latter’s administration of the establishment of case files.  Such deadline may be extended for at most 15 days in case of objective obstacles. In 03 days' time, the Procuracy affixes seal on records and documents for administration and have them archived and transferred to investigation authorities and units assigned to investigate. The delivery of records and documents are executed in writing according to Article 133 of this Law.

Article 89. Evident materials

Exhibits include tools and means of crimes, objects with criminal traces, criminals' targets, money or other items as satisfactory evidences of crimes and malefactors or of significance to the settlement of cases.

Article 90. Preservation of exhibits

1. Exhibits must be preserved intact and protected from loss, disorder and deterioration. Exhibits are preserved as follows:

a) Sealing of exhibits that must be stored in sealed containers shall be done upon the acquisition of such items.  Sealing and removal of seal are executed in writing and inputted in case files. Sealing and removal of seal on exhibits abide by the government's regulations;

b) Exhibits including money, gold, silver, precious metals, precious stones, antiques, explosives, inflammables, toxic, radioactive substances and military arms must undergo expert examination upon the acquisition of such items and must be subsequently transferred in prompt manner to the State Treasury or specialized units for storage. If exhibits are money, gold, silver, precious metals, precious stones and antiques with criminal traces, they shall be put in sealed containers as per Point a of this Section. If exhibits are harmful bacteria, body parts, tissue samples, blood samples and other samples from human body, they shall be preserved at specialized authorities according to the laws.

c) If exhibits cannot be transported to competent procedural authorities for preservation, competent procedural authorities shall give them to lawful owners or managers of such items or to their kindred or to local authorities or organizations adjacent to the said exhibits;

d) If exhibits are susceptible to damage or subject to difficult process of preservation, competent authorities within their powers shall sanction the sale of such items as per the laws and transfer earnings to a temporary account of a competent authority in the State Treasury for management;

dd) If exhibits are preserved by competent procedural authorities, the units in people's police force, People’s Army force and other units assigned to investigate are responsible for preserving such exhibits during the stage of investigation and prosecution while authorities for civil sentence enforcement are liable for preserving them during the stage of adjudication and sentence enforcement.

2. If individuals liable for preserving exhibits brook damage, loss, breakage of seal, consumption, illegal use, transfer, swap, concealment or destruction of such exhibits, disciplinary penalties or criminal prosecution shall be imposed according to the nature and severity of violations as per the laws.

If exhibits are inserted, dwindled, modified, swapped, disposed or broken to falsify case files, criminal liabilities shall be imposed. Amends for damage of exhibits are mandatory as per the laws.

Article 91. Deposition by witness testifiers

1. Witness testifiers depose their knowledge of the crimes, cases, kin and their relationship with accused persons or aggrieved, other witness testifiers and respond to questions.

2. If witness testifiers state facts whose origin cannot be clarified, such facts shall not become evidence.

Article 92. Deposition by crime victims

1. Crime victims depose the facts on the crimes, cases, their relationship with accused persons and respond to inquiries.

2. If circumstances leading to crime victims’ knowledge of certain facts cannot be clarified, such facts shall not be deemed as evidence.

Article 93. Deposition by civil plaintiffs and civil defendants

1. Civil plaintiffs and civil defendants state facts on amends for damage caused by crimes.

2. If civil plaintiffs or civil defendants fail to clarify situations leading to their knowledge of certain facts, such facts shall not be considered as evidence.

Article 94. Deposition by individuals having interests and duties related to the lawsuit

1. Individuals having duties and interests in connection with the lawsuit state facts directly related to their duties and benefits.

2. If such individuals fail to explain the origin of their acquisition of certain facts, such facts shall not be qualified as evidence.

Article 95. Deposition by emergency detainees, accused persons or facing requisitions for charges, offenders confessing or surrendering, arrestees and temporary detainees

Emergency detainees, accused persons and facing requisitions for charges, offenders confessing and surrendering, arrestees and temporary detainees state facts directly related to their alleged acts of crime.

Article 96. Statements by denouncers and informants

Denouncers and informants state facts related to their denunciation and information of the crimes.

Article 97. Deposition by witnesses

Witnesses state facts that they perceive from legal proceedings.

Article 98. Deposition by suspects and defendants

1. Suspects and defendants state facts of the cases.

2. The admission of crimes by suspects or defendants, if matching other evidences, shall be valid evidence.

The admission of crimes by suspects or defendants shall not be the sole evidence for conviction.

Article 99. Electronic data

1. Electronic data is composed of signals, letters, numbers, images, sound or similar elements created, stored and transmitted or acquired through electronic media.

2. Electronic data is collected through electronic media, computer networks, telecommunication networks, transmission lines and other electronic sources.

3. Electronic data constitutes evident values according to the methods of its creation, storage or transmission; the methods for assurance and maintenance of the entirety of electronic data; and the methods for identifying creators and other proper factors.

Article 100. Results of expert examination

1. Results of a expert examination are produced by entities conducting such examination in writing to give final professional findings on matters examined as per requisition or petition.

2. Authorities and entities are held liable for conclusions they have made regarding matters examined as per requisition or petition.

If a team of expert witnesses carry out a expert examination, all of its members shall affix signatures on the final report. Each person, if providing different opinions, shall have their findings presented in the final report.

3. If competent procedural authorities disagree with the results of a expert examination, their reasons must be specified. If results are found unclear or inadequate, expert examinations shall be furthered or repeated according to this Law.

4. Findings given by expert witnesses who must decline to perform examinations or submit to replacement shall be deemed null and invalid for the settlement of the case.

Article 101. Results of valuation

1. Results of valuation are produced by the Panel of valuation in writing to conclude values of property as per requests.

The Panel of valuation is held liable for its findings on property values.

2. All members of the Panel of valuation must affix signatures on the written conclusion of valuation. A member of the Panel, if debating property values determined by the Panel, shall present his findings in the final report.

3. If competent procedural authorities disagree with the findings on valuation, their reasons must be specified. If findings are found obscure, valuation process shall be repeated according to this Law.

4. If findings from the Panel of valuation violate this Law or other laws, they shall be invalid and not usable for the settlement of the case.

Article 102. Records of inspection and verification of criminal information, charges, investigations, prosecution, adjudication

The facts on inspection and verification of criminal information, charges, investigations, prosecution and adjudication, which are established and recorded in writing according to this Law, shall be evidences.

Article 103. Results of legal delegation and international cooperation

The results of legal delegation and international cooperation from competent foreign authorities, if matching other evidences, shall become evidences.

Article 104. Other documents and items in the case

Case facts available in documents and items from authorities and entities may become evidences. If such documents and items possess traits as defined in Article 89 of this Law, they shall be exhibits.

Article 105. Acquisition of exhibits

Exhibits must be acquired promptly and fully and their actual conditions must be described precisely in writing and in case files. If exhibits cannot be put in case files, they shall be photographed and recorded by camcorder to be stored in case files. Exhibits must be sealed or preserved as per the laws.

Article 106. Handling of exhibits

1. Investigation authorities and units assigned to investigate make decisions on the handling of exhibits if the case is dismissed at the stage of investigation. The procuracy decides the handling of exhibits if the case is dismissed at the stage of prosecution. The court president governs the handling of exhibits if the case if dismissed at the preliminary stage of adjudication. The Trial panel make decisions on the handling of exhibits if the case is heard.

The enforcement of decisions on the handling of exhibits must be executed in writing.

2. Exhibits are handled as follows:

a) Exhibits including tools or means of crime, objects prohibited from storage and trading shall be seized, confiscated into the state budget or disposed;  

b) Exhibits including money or property gained through criminal acts shall be seized and confiscated into the state budget.

c) Exhibits that are not valuable and usable shall be seized and disposed.

3. During the processes of investigation, prosecution and adjudication, the competent authorities and individuals as stated in Section 1 are entitled to

a) Return property seized and detained but not deemed as evidences to legitimate owners or managers of such in promptly manner;

b) Return evidences to legitimate owners or managers if such return is deemed not to affect the settlement of the case and the enforcement of sentences;

c) Evidences susceptible to damage or subject to strenuous preservation may be sold as per the laws. If they are not salable, disposal shall occur;

d) Evidences including wild animals and exotic plants shall be handled by competent specialized control units immediately after the release of findings of expert examinations as per the laws.

4. If disputes over the ownership of exhibits exist, the settlement of such shall be governed by the Civil procedure code.

Article 107. Acquisition of electronic means and data

1. Electronic media must be obtained promptly and fully, described precisely by actual conditions and sealed upon acquisition. Sealing and unsealing shall abide by the laws.

If electronic data storing means cannot be seized, competent procedural authorities shall copy electronic data into another electronic medium for storage of evidence. Moreover, relevant authorities and entities shall be requested to store and preserve the entirety of electronic data that competent procedural authorities have copied, and assume legal liabilities for storage and preservation of such data.

2. Competent procedural authorities, when attaining, intercepting and copying electronic data from electronic media, computer networks or transmission lines, must execute written records for case files.

3. Upon receiving competent procedural authorities’ requisition for expert examination, entities deemed responsible shall restore, search and examine electronic data.

4. Only copies of electronic data shall be restored, sought and examined. Results from restoration, search and expert examination must be converted to readable, audible or visible formats.

5. Electronic media and data are preserved as evidences according to this Law. Electronic data, when displayed as evidences, must come with its storage means or copies.

Article 108. Inspection and evaluation of evidences

1. Each evidence must be inspected and evaluated to verify its validity, authenticity and connection with the case. The verification of evidences acquired must be adequate to settle criminal cases.

2. Authorized procedural persons within their powers and duties must inspect and evaluate all evidences of the case in fully, unbiased and thorough manners.

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