b) In case the total amount of cash or total value of items in each gambling time is equal to or higher than the minimum level subject to penal liability examination (VND 2,000,000 or more), the gambler shall be examined for penal liability for the gambling crime with respect to this gambling time;

c) In case of gambling from the second time on involving a total amount of cash or total value of items each time equal to or higher than the minimum level subject to penal liability examination (VND 2,000,000 or more), gamblers shall be examined for penal liability with an aggravating circumstance of "committing the offence more than once" under Point g, Clause 1, Article 48 of the Criminal Code”.

Therefore, according to the abovementioned Resolution, in case of multiple gambling times, the total value of stakes shall not be aggregated from the values of all gambling times but shall be considered separately for each gambling time; when the stakes amount to less than VND 5.000.000, the gambler shall not face criminal prosecution and be handled according to law on handling administrative violations; when the stakes amount to VND 5.000.000 or more, the gambler shall face criminal prosecution for gambling; if a person gambles more than once and the stakes of each time amount to VND 5.000.000 or more, they shall face criminal prosecution for gambling with the aggravating circumstance of “committing the offence more than once”.

In the abovementioned case, as there are two gambling times where the stakes amount to VND 5.000.000 or more (with one time amounting to more than VND 50.000.000 ), the gambler shall face criminal prosecution according to Point b Clause 2 Article 321 of the 2015 Criminal Law and subject to the aggravating circumstance of “committing the offence more than once” mentioned in Point g Clause 1 Article 52 of the 2015 Criminal Law.

8. Is “has fulfilled part of the civil liability” mentioned in Clause 1 Article 63 of the 2015 Criminal Law applicable to convicts who committed their offences before 00:00 AM on 01/01/2018?

Reply:

Compared to regulations in Article 58 of the 1999 Criminal Code (amended in 2009), Clause 1 Article 63 of the 2015 Criminal Code adds 01 more condition for commutation of sentences imposed upon persons who are sentenced to community sentence, determinate imprisonment or life imprisonment, which is “has fulfilled part of the civil liability”. This means that, according to regulations of the 2015 Criminal Code, in order to have their sentences commuted, convicts must fulfill part of their civil liabilities while the 1999 Criminal Code (amended in 2009) does not require this condition. Thus, the condition of “has fulfilled part of the civil liability” mentioned in Clause 1 Article 63 of the 2015 Criminal Code is less favorable to the offenders than Article 58 of the 1999 Criminal Code (amended in 2009).

Pursuant to Clause 2 Article 7 of the 2015 Criminal Code: “A provision of law that provides for a new crime,…, exemption from sentence, commutation or conviction expungement which is less favorable shall not be applied to criminal offences committed before such provision of law comes into force”; concurrently, according to regulations in Point c Clause 1 Article 2 of Resolution No. 41/2017/QH14: “…provisions of law that limit the scope of exemption from criminal liability, commutation and conviction expungement and other provisions that are less favorable to the offenders shall not be applied to criminal offences committed before 00:00 AM on 01/01/2018 and detected, investigated, prosecuted or tried after such point in time or to persons currently being considered for commutation or conviction expungement; these cases shall be handled according to appropriate regulations of legislative documents on criminal offences that come into force before 00:00 AM on 01/01/2018”.

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9. How is the aggravating circumstance of “committing the offence more than once” mentioned in Point g Clause 1 Article 52 of the 2015 Criminal Code applied to the case where a person commits usury more than once according to regulations in Article 201 of the 2015 Criminal Code? Are civil court fees with monetary-requests in criminal cases applied to this type of crime?

Reply:

9.1. “committing the offence more than once” means the offender has committed the offence more than once and each time constitutes a criminal offence according to appropriate provisions of law and, concurrently, the offender has not faced criminal prosecution for any of those times and the time limit for criminal prosecution has not expired. In case where a person commits usury more than once according to regulations in Article 201 of the 2015 Criminal Code, the aggravating circumstance of “committing the offence more than once” will be applied to this person under the following conditions:

- Each time where the offence is committed constitutes a criminal offence according to regulations in Clause 1 Article 201 of the 2015 Criminal Code, meaning the offender offers loans at an interest rate that is five times higher than the maximum interest rate specified in the Civil Code and earns an illegal profit of from VND 30,000,000.

- The offender has not faced criminal prosecution for any of the times where they commit the offence and the time limit for criminal prosecution has not expired.

To be specific:

 (1) In case where a person commits usury more than once and earns an illegal profit of from VND 30,000,000 to under VND 100,000,000 or from VND 100,000,000 in total from all times where they commit the offence and, among those times of crime commission, two times or more each give the offender an illegal profit of from VND 30,000,000 and the offender has not faced criminal prosecution for any of the times where they commit the offence and the time limit for criminal prosecution has not expired, in addition to penalties corresponding to the total illegal profit that they earn, the offender shall be subject to the aggravating circumstance of “committing the offence more than once” mentioned in Point g Clause 1 Article 52 of the 2015 Criminal Code.

 (2) In case where a person commits usury more than once and earns an illegal profit of from VND 30,000,000 to under VND 100,000,000 or from VND 100,000,000 in total from all times where they commit the offence and the offender does not earn an illegal profit of VND 30,000,000 or more from any of those times or earns VND 30,000,000 or more only once and the time limit for criminal prosecution has not expired, the offender shall be subject to penalties corresponding to the total illegal profit that they earn and not subject to the aggravating circumstance of “committing the offence more than once” mentioned in Point g Clause 1 Article 52 of the 2015 Criminal Code.

9.2. According to Article 21 of Resolution No. 326/2016/UBTVQH14 dated 30/12/2016 by the Standing Committee of the National Assembly on rates, exemption, reduction, collection, payment, management and use of court fees and charges (hereinafter referred to as “Resolution No. 326”), criminal cases incur the following court fees:

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2. Appellate criminal court fees.

3. First-instance civil court fees for cases where the Court settles civil matters in criminal cases, including first-instance civil court fees without monetary requests and first-instance civil court fees with monetary requests.

4. Appellate civil court fees for appeals against judgments on civil matters in criminal cases”.

According to regulations in Point a and Point b Clause 1 Article 46 of the 2015 Criminal Case: “Confiscation of money and items directly related to the crime” and “Return, repair of property or provision of compensation; offering of public apology” are 02 judicial measures to be imposed upon offenders by the Court as per the law. Thus, (1) confiscation of principals offered as loans by the offender (confiscation of vehicle used to commit the offence); (2) confiscation of interest corresponding to an interest rate of 20% (confiscation of property obtained by crime); (3) return of property worth more than the interest rate of 20% to the borrowers - persons with relevant rights and interest (return of property that the offender profited off the borrowers illegally; borrowers are not regarded as the aggrieved persons, thus, the money cannot be considered fulfillment of civil liability) are how the Court takes judicial measures, not how it settles civil matters in a criminal case. In addition, according to regulations in Clause 1 Article 26 of Resolution No. 326: “Litigants shall incur first-instance civil court fees if their requests are rejected by the Court, unless they are exempt from or do not have to incur first-instance court fees".

Therefore, in criminal cases, if the Court does not settle civil matters in a criminal case (not requested by the litigant), there are no first-instance civil court fees (including first-instance civil court fees with monetary requests and first-instance civil court fees without monetary requests). In this case, the defendant shall incur only first-instance criminal court fees according to regulations in Point a Clause 1 Article 23 of Resolution No. 326.

10. How to determine the forest types of forests having been repurposed but not yet issued with a forest repurposing decision by the competent authority for criminal prosecution according to Article 232 and Article 243 of the 2015 Criminal Code?

Reply:

Pursuant to Articles 18, 27 and 28 of the 2004 Law on Forest Protection and Development,  forest repurposing must be decided by the competent authorities mentioned in Clause 2 Article 28 of the Law on Forest Protection and Development. Thus, at the time of determining the forest type of a forest having been repurposed but not yet issued with a forest repurposing decision, its forest type shall be whichever currently designated to it at such time of determination.

11. How to handle illegal transport of legs of the Asian black bear?

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11.1. The Asian black bear has the scientific name of Ursus Thibetanus and is included in Appendix I - List of endangered, precious and rare species prioritized for protection enclosed with the Government’s Decree No. 160/2013/ND-CP dated 12/11/2013 on criteria to determine species and the regime of managing species under lists of endangered, precious and rare species prioritized protection. Thus, any violation against regulations on protection of the Asian black bear that constitutes crime may be handled according to regulations in Article 244 of the 2015 Criminal Code.

11.2. According to regulations in Clause 6 Article 2 of Resolution No. 05/2018/NQ-HDTP dated 05/11/2018 by the Council of Justices of the Supreme People’s Court on guidelines for application of Article 234 on offences against regulations on management and protection of wild animals and Article 244 on offences against regulations on management and protection of endangered, rare animals of the Criminal Code:

 “products from wild, endangered and rare animals” means products that originate from animals (i.e.: meat, egg, milk, sperm, embryo, blood, internal organs, skin, fur, bones, horn, ivory, leg, nail, etc.); whole bodies of aquatic animals which have been preliminary treated and processed; products of which the ingredients are processed from body parts of wild, endangered and rare animals (i.e.: bone glue made from wild animals; handbags, purses and belts made from skins of wild animals)”.

Thus, legs of the Asian black bear are animal products. Therefore, any person who transports legs of the Asian black bear illegally may be handled according to Point b Clause 1 Article 244 of the 2015 Criminal Code.

12. At 10 PM on 19/5/2019, T District Police caught A (15 years old) selling 0,0565 gram of Methamphetamine to N (17 years old) for VND 200.000 in flagrante. At the office of the investigating authority, A confessed to have sold the same drug to N for the same price three times from 21/3-03/5/2019. After those four times, A sold a total of 0,226 gram of drugs to N. How should A’s acts be handled?

Reply:

According to regulations in Clause 2 Article 12 of the 2015 Criminal Code, a person from 14 years of age to below 16 years of age shall bear criminal responsibility for very serious crimes and extremely serious crimes (including the crime of illegal dealing in narcotic substances mentioned in Clause 2 Article 251 of the 2015 Criminal Code).

According to the guidelines in Subsection 2.3 Section 2 Part I of Joint Circular No. 17/2007/TTLT-BCA-VKSNDTC-TANDTC-BTP: ““committing the offence multiple times” mentioned in Clause 2 of Articles 193, 194, 195, 196, 197, 198, 200 and 201 of the Criminal Code means that the offender has committed the offence for two times or more (illegally producing narcotic substances for two times or more, illegally possessing narcotic substances for two times or more, illegally selling narcotic substances for two times or more, etc.) with each of those times constitutes crime according to regulations in Clause 1 of the corresponding Article and, concurrently, the offender has not faced criminal prosecution for any of those times and the time limit for criminal prosecution has not expired”. According to regulations in Subsection 10.1 Section 10 Resolution No. 01/2006/NQ-HDTP: “a person from 14 years of age to below 16 years of age who sells or buys a narcotic substance more than once will not face criminal prosecution for illegal dealing in narcotic substances if total amount of the narcotic substance sold or bought at all times is below the limit or it is not possible to determine whether total amount of the narcotic substance sold or bought at all times reaches the limit mentioned in Point g, h, i, k, l, m, n or o Clause 2 Article 194 of the Criminal Code”.

“committing the offence multiple times” mentioned in Point b Clause 2 Article 194 of the 1999 Criminal Code and “committing the offence more than once” mentioned in Point b Clause 2 Article 251 of the 2015 Criminal Code are identical in nature. On the other hand, the 2015 Criminal Code and 1999 Criminal Code provide for similar ways of handling juvenile drug offenders. Thus, guidelines in Joint Circular No. 17/2007/TTLT-BCA-VKSNDTC-TANDTC-BTP and Resolution No. 01/2006/NQ-HDTP may be applied to handle A’s act of illegal dealing in narcotic substances.

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- A does not fall under the case of “committing the offence more than once” according to regulations in Point b Clause 2 Article 251 of the 2015 Criminal Code as each time at which A dealt the narcotic substance does not constitute crime according to regulations in Clause 1 of the corresponding Article (because A is under 16 years of age);

- Total amount of drug that A sold to N from 04 times is 0,226 gram, which is below the limit mentioned in Point i Clause 2 Article 251 of the 2015 Criminal Code (05 gram);

- A did not sell drugs to a person under 16 years of age (N was 17 years old).

Therefore, there are no grounds to prosecute A for illegal dealing in narcotic substances according to regulations in Article 251 of the 2015 Criminal Code.

13. B worked overseas. On 06/11/2018, B bought 21 amphetamine pills. On 07/11/2018, B returned to Vietnam and brought the amphetamine pills for personal use; he was caught when carrying out entry procedures at the border checkpoint. Through examination, it was determined that B possessed 2,1625 gram of amphetamine in total. Does B’s act constitutes illegal transport of narcotic substances with the circumstance of “across border” or illegal possession of narcotic substances?

Reply:

According to Article 249 of the 2015 Criminal Code, any person who possesses narcotic substances for purposes other than trading, transporting or manufacturing narcotic substances illegally in any of the mentioned circumstances commits the crime of illegal possession of narcotic substances. According to Article 250 of the 2015 Criminal Code, any person who transports narcotic substances for purposes other than manufacturing, trading or possessing narcotic substances in any of the mentioned circumstances commits the crime of illegal transport of narcotic substances.

Thus, B’s act of bringing 2,1625 gram of drugs in total for personal use instead of illegal trade, transport or manufacturing of narcotic substances constitutes the crime of illegal possession of narcotic substances according to regulations in Point c Clause 1 Article 249 of the 2015 Criminal Code.

14. D was caught selling 01 glass syringe and 01 plastic syringe for narcotic use in flagrante and possessing a total of 141 glass syringes, 32 gas bottles, 32 lighters, 15 glass bottles, 55 white plastic syringes, 03 straw packs and 63 transparent nylon bags, which were to be sold to people using narcotic substances illegally for illegal profit. D’s acts denote which crime? Is the competent authority required to seek solicitation for items confiscated?

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According to regulations in Article 254 of the 2015 Criminal Code, D’s acts denote the crime of trading of equipment serving illegal use of narcotic substances.

According to regulations in Article 206 of the 2015 Criminal Procedure Code, equipment serving illegal use of narcotic substances does not require expert examination. During the handling process, the competent authority may seek solicitation for the equipment where necessary.

15. X had the intention of buying and storing 65,2 gram of opium for personal use. X sent VND 4.000.000 to T to buy 65,2 gram of opium. T received VND 4.000.000 from X. However, T was caught in flagrante with the exhibit when delivering the opium to X. Is X liable to criminal prosecution?

Reply:

That T was caught before delivering 65,2 gram of opium to X, resulting in X not receiving the 65,2 gram of opium as agreed upon, was not what T and X wished for. X intentionally committed the crime of illegal possession of narcotic substances but did not commit the crime to the end due to unwanted reason. Therefore, X is liable to criminal prosecution for unsuccessful illegal possession of narcotic substances.

16. In case where a drug addict lets another drug addict use drugs illegally more than once or lets multiple drug addicts use drugs illegally at a location that they own, appropriate or manage, does this constitute concealment of illegal use of narcotic substances? Besides the abovementioned acts, the drug addict also provides drugs for another drug addict (it is not possible to determine this amount as it has been fully used by the addicts), how should this act be handled?

Reply:

16.1. According to Clause 1 Article 256 of the 2015 Criminal Code, any person with criminal capacity who leases out, lends premises or otherwise conceals the illegal use of narcotic substances is an offender, including the case where this person is a drug addict. Thus, in case where a drug addict lets another drug addict uses drugs at a location that they own, appropriate or manage, they are liable to criminal prosecution for concealment of illegal use of narcotic substances.

16.2. According to Clause 1 Article 255 of the 2015 Criminal Code, any person who facilitates illegal use of narcotic substances in any shape of form shall face a penalty of 02 - 07 years' imprisonment. Thus, any person with criminal capacity who facilitates illegal use of narcotic substances is an offender, including the case where this person is a drug addict. In addition, according to Official Dispatch No. 89/TANDTC-PC dated 30/6/2020:  “…providing another person with a narcotic substance for their use is an act of “facilitation of illegal use of narcotic substances”. Persons committing this act shall be handled according to regulations in Article 255 of the Criminal Code”. Therefore, in case where a drug addict provides another drug addict with drugs for use at a location that they own, appropriate or manage, they are liable to criminal prosecution for facilitation of illegal use of narcotic substances.

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Reply:

According to regulations in Point b Clause 1 Article 322 of the 2015 Criminal Code:

“1. Any person who organizes gambling or runs a gambling den in any of the following circumstances shall be liable to a fine of from VND 50,000,000 to VND 300,000,000 or face a penalty of 01 - 05 years' imprisonment:

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b) The offender uses a place under his/her ownership or management for ≥ 10 people to gamble at the same time or for ≥ 02 gambling mats with the stakes of ≥ VND 5,000,000”.

Thus, the 2015 Criminal Code does not exclude the case where the offender is not one of the 10 persons or more who gamble at the same time. Therefore, the circumstance of “for ≥ 10 people to gamble at the same time” mentioned in Point b Clause 1 Article 322 of the 2015 Criminal Code includes the organizer of illegal gambling or gambling den, meaning (1) if a person does not gamble but uses a place under their ownership or management for 9 other persons to gamble at the same time, the number of gamblers is 9 in total (excluding the gambling or gambling den organizer); (2) if a person uses a place under their ownership or management for 9 other persons to gamble and gambles at the same time, the number of gamblers is 10 in total (including the gambling or gambling den organizer).

Therefore, in case where A organizes for 09 other persons to gamble in a place under their ownership and earns an illegal profit of VND 600.000 from these persons; concurrently, A gambles with these 09 persons at the same time with total stakes of VND 15.045.000, A is liable to criminal prosecution for gambling and organizing gambling or running gambling-dens.

II. Some difficulties concerning regulations of the 2015 Criminal Procedure Code

1. How to organize for the suspect to read and write digital documents or copies of such regarding charges and vindication or other copies related to their defense so as to ensure the suspect’s rights and settlement of the case by the competent presiding authority?

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 “Read and write digital documents or copies of such regarding charges and vindication or other copies related to their defense” is one of the suspect’s rights as mentioned in Point i Clause 2 Article 60 of the 2015 Criminal Procedure Code, which ensures the suspect’s right to defend themselves according to regulations in Clause 4 Article 31 of the 2013 Constitution and shall be exercised after the investigation (Clause 1 Article 82 of the 2015 Criminal Procedure Code). Concurrently, Joint Circular No. 02/2018/TTLT-BCA-VKSNDTC-TANDTC-BQP (hereinafter referred to as “Joint Circular No. 02/2018”) also provides for this matter. According to regulations in Article 2 of Joint Circular No. 02/2018, when organizing for the suspect or the legal representative of a commercial juridical person to read and write digital documents or copies of such regarding charges and vindication or other copies related to their defense, the competent presiding authority “must ensure confidentiality requirements as per the law, not cause obstruction and ensure that investigation, prosecution and trying activities are on schedule”. When requesting to read and write documents in writing, the suspect or the legal representative of the commercial juridical person committing the offence must specify the documents to be read and written for the competent presiding authority and presiding officer to consider and handle. Upon receipt of the request for reading and writing the documents, the competent presiding authority and presiding officer shall, based on regulations on time limit for prosecution and documents to be read and written, immediately prepare digital documents or copies of such and send a written notification containing a suitable location and time to the suspect or the legal representative of the commercial juridical person committing the offence for them to read and write the documents. The suspect or the legal representative of the commercial juridical person committing the offence may read and write documents for no more than 03 hours at a time and no more than 02 times a day (Article 7 of Joint Circular No. 02/2018). These regulations aim to protect the suspect’s rights and ensure case settlement as per the law.

2. In case there is no other evidence of a crime aside from the admission of crime by the suspect or defendant, are there grounds for handling that crime?

Reply:

According to regulations in Clause 2 Article 98 of the 2015 Criminal Procedure Code, 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. Thus, aside from the deposition, the crime must be proven by other evidences; if there is no other evidence of the crime aside from the admission of crime by the suspect or defendant, there are no grounds for handling that crime.

Reply:

3.1. According to regulations in Clause 5 Article 88 of the 2015 Criminal Procedure Code: “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…”. According to Point a Clause 1 Article 35 of Joint Circular No. 04/2018/TTLT-VKSNDTC-BCA-BQP (hereinafter referred to as “Joint Circular No. 04/2018”):  “Before transferring records and documents on investigative activities not directly administered by the Procuracy, records and documents on the investigation for the Procuracy’s administration of the establishment of case files or written requests for the Procuracy's approval for orders and decisions of the investigating authority, the investigator shall enumerate the names of all records and documents, number the records and documents in list of records and documents and affix the seal of the investigating authority (without assigning numbers to the records and documents) to the top right corner of each page of the records and documents”. Thus, the Procuracy starts affixing its seal on records and documents collected according to regulations in Clause 5 Article 88 of the 2015 Criminal Procedure Code from the time upon which the criminal lawsuit is filed. If, from the time where the criminal report is processed, the investigating authority and/or authority assigned to carry out some investigative activities transfer/s records and documents to the Procuracy, the Procuracy may affix its seal to these records and documents to administer processing of the criminal report in a manner similar to how it affixes its seal after a lawsuit is filed.

3.2. In case the procurator has directly administered the investigation, the investigating authority is not required to transfer records to the Procuracy for the Procuracy’s seal according to regulations in Clause 5 Article 88 of the 2015 Criminal Procedure Code.

4. After holding a person in emergency custody, arresting a person or receiving a detainee or arrestee, if a temporary detention decision is not issued, does the competent presiding authority or officer issue an arrestee release decision or make an arrestee release record?

Reply:

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In case a temporary detention decision is not issued, the competent presiding authority or officer issue must issue an arrestee release decision (the release of the arrestee must be recorded into a written procedural decision of the competent authority to record an event and identify the responsibility of the presiding authority). The arrestee release decision shall be made using Form No. 48 enclosed with Circular No. 61/2017/TT-BCA.

5. According to Clause 1 Article 134 of the 2015 Criminal Procedure Code: “A month-based time limit ends on the repeated date in the following month”, thus, does a month-based time limit ends at 24:00 of the repeated date in the following month or at 24:00 of the date immediately preceding the repeated date in the following month?

Reply:

“A month-based time limit ends on the repeated date in the following month” in Clause 1 Article 134 of the 2015 Criminal Procedure Code means that a month-based time limit ends at 24:00 of the repeated date in the following month (the time limit expires at 24:00 of that date), not at 24:00 of the date immediately preceding the repeated date in the following month.

For example: for an extremely serious case whose lawsuit is filed on 08/02/2019 and time limit for investigation is 04 months from 08/02/2019, this time limit will expire at 24:00 on 08/6/2019. If the investigation is extended for another 04 months with the extension starting from 09/6/2019, the time limit for investigation will expire at 24:00 on 09/10/2019.

6. Do Procuracies have competence in directly administering receipt and processing of criminal reports by commune-level police and police stations?

Reply:

According to regulations in Clause 2 Article 160 of the 2015 Criminal Procedure Code, when administering processing of criminal reports, Procuracies have the duties and authority to administer the acquisition of information, administer the verification of information and the documentation of criminal information by investigation authorities and units assigned to investigate. The Code does not provide for Procuracies’ administration of receipt and processing of criminal reports by commune-level police and police stations, thus, Procuracies do not have competence in directly administering receipt and processing of criminal reports by commune-level police and police stations. Where necessary, via exercise of right of prosecution and administration of prosecution and investigation by investigating authorities, Procuracies may request investigating authorities to let them participate in inspection of receipt and processing of criminal reports by commune-level police and police stations.

7. Clause 4 Article 123 of the 2015 Criminal Procedure Code stipulates that the length of time of residential confinement shall not exceed the time of investigation. According to regulations in Article 232 of the 2015 Criminal Procedure Code, investigation authorities, in 02 days upon concluding the investigation in writing, shall send case files to the equivalent Procuracy. During this 02 days, which authority has the competence in issuing the residential confinement order against the suspect? If the suspect fails to fulfill their obligation during this period, which authority has the competence in handling?

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Article 31 of Joint Circular No. 04/2018 provides for preparation for end of investigation, according to which: “At least 10 days for less serious cases and serious cases, 15 days for very serious cases and 20 days for extremely serious cases before investigation ends or time limit for investigation expires, the investigator and procurator shall cooperate in assessing all evidences, documents and legal proceedings of the case; if there are sufficient grounds for the investigation to end, they shall reach an agreement so that the investigator may report that the investigation may end to the head or deputy head of the investigating authority; if further investigation is necessary, report to the head or deputy head of the investigating authority and head or deputy head of the Procuracy to extend the investigation and temporary detention of the suspect according to regulations of the Criminal Procedure Code”. Thus, before the investigation ends or time limit for investigation expires, within the abovementioned time limit, the investigator and procurator shall cooperate in assessing legal proceedings of the case, including decision on, imposition and annulment of and change to preventive measures. To ensure continuity of imposition of preventive measures on the suspect, the investigating authority and Procuracy shall cooperate in transferring the case file and investigating conclusion while preventive measures, including residential confinement, are imposed.

8. How should cases suspended because the suspects suffer from a mental illness and, after monitoring, are deemed incurable be handled?

Reply:

For cases suspended because the suspects suffer from a mental illness, according to regulations in Article 454 of the 2015 Criminal Procedure Code and Article 139 of the 2019 Law on Execution of Criminal Judgments, compulsory treatment for a suspect suffering from a mental illness may end when the suspect recovers (as concluded by the medical examination council) and a decision to terminate treatment is issued by the competent presiding authority. After the decision to terminate treatment is issued, suspended procedural activities may resume according to regulations of the Criminal Procedure Code.

If, after a period of monitoring, the suspect is deemed incurable, the investigating authority shall request a mental examination; if the examination confirms that the suspect has not recovered, treatment shall continue. If treatment lasts until the time limit for criminal prosecution expires, implement regulations in Clause 2 Article 7 of Joint Circular No. 01/2020/TTLT-VKSNDTC-TANDTC-BCA-BQP-BNN&PTNT-BTC-BTP, according to which, the competent investigating authority shall discuss with the Procuracy in writing before issuing a decision to suspend investigation without issuance of a decision to resume investigation.

9. When processing criminal information, the investigating authority collects statements from witnesses and sufficient evidences. After a lawsuit is filed, is it necessary to recollect statements from witnesses?

Reply:

Statements of witnesses collected while criminal information is processed are an evidence source, have legal value if collected, assessed and used according to regulations of the Criminal Procedure Code and may be used throughout the settlement of the case.

The Criminal Procedure Code and other legal documents do not limit the number of times where statements may be collected from witnesses. Thus, although the investigating authority has collected statements from witnesses and sufficient evidences when processing criminal information, after a lawsuit is filed, it may recollect statements from witnesses to reinforce evidences or clarify new contents and circumstances arising during the investigation.

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Reply:

10.1. According to Clause 3 Article 147 of the 2015 Criminal Procedure Code:

 "3. Competent authorities, when processing denunciations, information and requisitions, shall perform these activities:

a) Collect data, documents and items from relevant authorities and entities to verify the information;

b) Examine the scenes;

c) Conduct autopsy;

d) Seek expert examinations and property valuation”.

Thus, besides the 04 specific activities (scene examination, autopsy, expert examination and property valuation), when handling criminal reports and requisitions for charges, competent authorities have the right to carry out general activities (collecting information, documents and objects from relevant regulatory bodies, organizations and individuals to verify information).

In addition, according to regulations in Point d Clause 3 Article 83 of the 2015 Criminal Procedure Code: “Defenders of legitimate rights and benefits of persons accused or facing request for prosecution are entitled to: d) Be present during a session of confrontation or identification or recognition of voices of accused persons or facing requisitions for charges”.

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Previously, according to regulations in Point c Clause 3 Article 10 of Joint Circular No. 06/2013/TTLT-BCA-BQP-BTC-BNN&PTNT-VKSNDTC, investigators assigned to handle denunciations, information and requisitions have the duty and power to carry out scene examination, autopsy, confrontation and identification.

Therefore, although not provided for in Article 147 of the 2015 Criminal Procedure Code, competent authorities have the rights to confrontation and identification and recognition of voices when handling criminal reports and requisitions for charges. However, these are measures to verify criminal reports and requisitions for charges, not investigative measures mentioned in the 2015 Criminal Procedure Code.

10.2. As these are measures to verify criminal reports and requisitions for charges, not investigative measures mentioned in the 2015 Criminal Procedure Code, administration of these activities by procurators shall adhere to regulations in Clause 2 Article 160 of the 2015 Criminal Procedure Code, according to which, procurators may administer these verifying activities directly.

11. A is charged for murder according to regulations in Article 123 of the 2015 Criminal Code; the time limit for investigation is 04 months. The investigating authority issued an order to arrest A for temporary detention for 04 months starting from the date upon which A was arrested; however, when the arrest order was executed, A was found to have made a getaway from his place of residence; the investigating authority arrested A 20 days later. Thus, in this case, does the investigating authority issue a new temporary detention order or keep using the existing temporary detention order?

Reply:

In the abovementioned case, it is necessary to determine whether the investigating authority has issued a wanted notice for suspect A, according to which:

(1) If the investigating authority has issued a wanted notice, the existing temporary detention order will be annulled and A is arrested according to regulations in Clause 1 Article 112 of the 2015 Criminal Procedure Code. After arresting A, the investigating authority will issue a new temporary detention order.

 (2) If there are not sufficient grounds to determine that A has made a getaway to issue a wanted notice and A is caught during the search, the investigating authority may keep using the existing temporary detention order because: (1) the temporary detention order comes into force from the time it is approved by the Procuracy; the duration of temporary detention starts from the time where the suspect is arrested; (2) when the time limit for investigation expires, the investigating authority either requests for the investigation to be extended or ends the investigation and transfers to the Procuracy to request for prosecution. As the duration of temporary detention in the temporary detention order exceeds the time limit for investigation (the suspect was arrested 20 days later), in case the competent authority continues to detain the suspect, the remaining duration of temporary detention is in effect if the investigation is extended or during the prosecution process according to regulations in Clause 2 Article 172 of the 2015 Criminal Procedure Code and Article 18 of Joint Circular No. 04/2018.

12. Who have the competence in organizing sealing and unsealing of evidences in case commune-level police or police stations confiscate relevant weapons, items and documents when detecting, arresting or receiving offenders caught in flagrante or wanted persons or receiving criminal reports?

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According to regulations in Clause 3 Article 146, Clause 3 Article 111 and Clause 3 Article 112 of the 2015 Criminal Procedure Code, in case commune-level police or police stations confiscate relevant weapons, items and documents when detecting, arresting or receiving offenders caught in flagrante or wanted persons or receiving criminal reports, these objects shall be transferred to competent investigating authorities to determine whether they are evidences. If they are evidences, according to regulations in Article 6 of Decree No. 127/2017/ND-CP, the persons who have the competence in organizing sealing and unsealing of evidences include heads and deputy heads of investigating authorities, investigators; heads, deputy heads and investigators of units assigned to investigate; and competent persons per the law in charge of the case during prosecution, trying and sentence enforcement processes.

13. Is the phrase “(if any)” in Point a Clause 2 Article 7 of Decree No. 127/2017/ND-CP applicable to “representatives of regulatory bodies and organizations whose rights, obligations or responsibilities are related to the  sealed evidences” only or also to “relevant persons”? Who are “relevant persons” in this Point?

Reply:

13.1. According Point a Clause 2 Article 7 of Decree No. 127/2017/ND-CP, participants in unsealing of evidences include relevant persons; representatives of regulatory bodies and organizations whose rights, obligations or responsibilities are related to the sealed evidences (if any). The phrase “if any” here is applicable to both relevant persons and representatives of regulatory bodies and organizations whose rights, obligations or responsibilities are related to the sealed evidences.

According to Clause 3 Article 11 of Decree No. 127/2017/ND-CP, upon end of unsealing of evidences: “In case relevant persons (if any); … do not sign the evidence unsealing record, the person organizing the unsealing shall draw up a record specifying the reason in the presence of the representative of the government of the commune where the evidences are unsealed. In case where a relevant person… is not present as requested by the regulatory body or person organizing the unsealing without legitimate reason… draw up a record specifying the reason and request participants in the unsealing to sign the record”.

Therefore, if there is any relevant person, this person must participate in evidence unsealing. In this case, if the relevant person is not present without legitimate reason, the person organizing the unsealing shall draw up a record specifying the reason for such absence, request participants in the unsealing to sign the record and carry out the unsealing.

13.2. According to Point a Clause 1 Article 11 of Decree No. 127/2017/ND-CP: “In case a person whose right, obligation or responsibility is related to sealed evidence is a suspect or defendant in temporary detention, upon evidence unsealing, the person organizing the unsealing shall invite their family or advocate (if any) or representative of the government of the commune where the evidences are unsealed to participate as witness”.

According to Clause 3 Article 11 of Decree No. 127/2017/ND-CP, in case where a relevant person; representative of a regulatory body or organization whose right, obligation or responsibility is related to the sealed evidences (or family member or legal representative thereof) or advocate thereof is not present as requested by the regulatory body or person organizing the unsealing without legitimate reason; an evidence has no owner or an evidence’s owner or lawful manager is not yet identified, draw up a record specifying the reason and request participants in the unsealing to sign the record.

Therefore, based on the abovementioned regulations, "relevant persons" participating in evidence unsealing should include persons whose rights, obligations or responsibilities are related to sealed evidences such as the suspect, defendant, owners or lawful managers of sealed evidences, etc.

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Reply:

According to Clause 3 Article 27 of the 2015 Criminal Code: “The time limit for criminal prosecution begins from the day on which the crime is committed. During the time limit set out in Clause 2 of this Article, if the offender commits another crime for which the maximum sentence is over 1 year's imprisonment, the time limit for prosecution for the previous crime will be reset and begins from the day on which the new crime is committed”. On 01/01/2015, A committed an offence and, within 5 years (on 02/12/2019), A committed another offence (the maximum sentence for property theft is over 1 year’s imprisonment). Therefore, the time limit for criminal prosecution for the offence committed by A on 01/01/2015 shall be reset and start from the date where the new offence was committed - 02/12/2019.

In case the investigating authority has suspended the investigation into the property theft on 01/01/2015 because the time limit for criminal prosecution has expired, the Procuracy shall request the investigating authority to annul the decision to suspend investigation into the case to resume investigation and add this case to the new case for investigation and handling as prescribed by law.

15. Case-specific valuation councils may be established at which levels? Who have the competence in establishing ministerial-level case-specific valuation councils? What is the composition of ministerial-level valuation councils? Ministerial-level case-specific valuation councils value property in which cases?

Reply:

According to regulations in Decree No. 30/2018/ND-CP and Decree No. 97/2019/ND-CP:

15.1. Case-specific valuation councils may be established at the following 04 levels:

- Case-specific valuation councils of districts (hereinafter referred to as “district-level case-specific valuation councils”);

- Case-specific valuation councils of provinces and central-affiliated cities (hereinafter referred to as “provincial case-specific valuation councils”);

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- Valuation councils established under the Prime Minister’s decisions.

15.2. Ministerial-level case-specific valuation councils shall be established by heads of Ministries and ministerial-level agencies exercising state management of the types of property to be valued as per the law. 

15.3. Composition of a ministerial-level case-specific valuation council:

- The leader of a specialized agency affiliated to the Ministry or ministerial-level agency that establishes the council shall be the council chairperson;

- An official of a specialized agency affiliated to the Ministry or ministerial-level agency that establishes the council shall be a standing member of the council;

- Council members include representatives of relevant specialized agencies and organizations affiliated to the Ministry or ministerial-level agency that establishes the council; representatives of other regulatory bodies and organizations related to property to be valued (if any). For any case involving multiple types of property but the property cannot be classified, council members shall include representatives of Ministries and ministerial-level agencies exercising state management of the remaining property seconded at the request of the Ministry or ministerial-level agency in charge of establishing the council according to regulations in Point c Clause 4 Article 6 of Decree No. 97/2019/ND-CP.

Based on the property valuation request, leader of the specialized agency affiliated to the Ministry or ministerial-level agency that establishes the council mentioned in Point a Clause 3 Article 8 of Decree No. 97/2019/ND-CP shall propose members for each case as appropriate to the characteristics of property to be valued.

15.4. Ministerial-level case-specific valuation councils shall value property in the following cases:

- Revalue property in the cases mentioned in Article 21 and Article 22 of Decree No. 30/2018/ND-CP and Decree No. 97/2019/ND-CP.

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- For any case with multiple types of property, the competent procedural authority shall, based on economic-technical characteristics of the property and requirements of the case, classify the property and request Ministries and ministerial-level agencies to establish valuation councils within their competence in either of the following cases:

+ If the property can be classified to value each group of property separately, the competent procedural authority shall request Ministries and ministerial-level agencies to establish a valuation council for each group of property.

+ If the property cannot be classified, the competent procedural authority shall request a Ministry or ministerial-level agency exercising state management of a type of property among the types of property involved in the case to take charge of establishing a valuation council; if land or land use rights is/are one of the property to be valued, a central land authority shall take charge of establishing a valuation council (regardless of type of property ownership). Ministries and ministerial-level agencies exercising state management of the remaining property shall second representatives to the valuation council as requested by the Ministry or ministerial-level agency in charge of establishing the council.

16. According to regulations in Clause 1 Article 274 of the 2015 Criminal Procedure Code: “a Court shall return files of a case beyond its jurisdiction to the Procuracy initiating prosecution, which shall transfer the case to a competent Procuracy for prosecution”. Is the Procuracy having competence in prosecution required to issue a new indictment to replace the existing indictment?

Reply:

According to regulations in Clause 1 Article 274 of the 2015 Criminal Procedure Code: “…the Procuracy initiating prosecution, which shall transfer the case to a competent Procuracy for prosecution”.

According to regulations in Article 72 of the Regulation on exercise of right of prosecution and administration of pressing of charges, investigation and prosecution enclosed with Decision No. 111/QD-VKSTC dated 17/4/2020 by Chief Prosecutor of the Supreme People’s Procuracy:

 “1. After investigation ends, if finding the case beyond their prosecution competence, the procurator shall propose to the leader of their unit or Procuracy that the case be handed over to the competent Procuracy for prosecution according to regulations in Clause 1 Article 239 of the Criminal Procedure Code. Upon receipt of the case files, the competent Procuracy shall assign a procurator to research and propose how the case should be handled to the leader of their unit or Procuracy as follows:

a) If agreeing with the written conclusion of investigation for prosecution of the competent investigating authority, issue an indictment to bring the case to trial by the competent Court. If the Court returns the case files to the Procuracy for additional investigation, the prosecuting Procuracy must transfer the case files to the Procuracy having exercised the right of prosecution and administration of investigation to return the case files to the authority having carried out the investigation and issue a decision to hand the case over to the competent investigating authority;

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Thus, after the Court returns the case files for intra vires prosecution, if finding the case within its prosecution competence and agreeing with the written conclusion of investigation for prosecution of the competent investigating authority, the Procuracy having competence in prosecution shall issue a new indictment (replacing the existing indictment) to bring the case to trial by the competent Court; if not agreeing with the written conclusion of investigation for prosecution of the competent investigating authority,  the Procuracy having competence in prosecution shall transfer the case files to the Procuracy having exercised the right of prosecution and administration of investigation to hand the case over to the competent investigating authority.

17. Are complaints and denunciations concerning receipt of criminal reports by commune-level police judicial complaints and denunciations?

Reply:

According to regulations in Article 145 of the 2015 Criminal Procedure Code, receipt of criminal reports is a judicial activity. Commune-level police have the responsibility to receive criminal reports. According to regulations in Article 470 of the 2015 Criminal Procedure Code, procedural decisions and legal proceedings prone to complaints, which shall be handled according to regulations in Chapter XXXIII of the Criminal Procedure Code, are procedural decisions and actions of presiding officers, competent persons and persons assigned to investigate. However, according to regulations in Article 35 of the 2015 Criminal Procedure Code and Article 9 of the 2015 Law on Organization of Criminal Investigation Bodies, commune-level police are not units or persons assigned to investigate, thus, complaints and denunciations shall be handled as per regulations of law on complaints and denunciations instead of criminal procedure law.

III. Criminal judgment enforcement

1. Besides the primary sentence of determinate imprisonment, A is subject to an additional sentence of prohibition from holding certain positions for 03 years from the end of the imprisonment. As the prison term is equal to the time during which A is kept in temporary detention, the Court does not issue a decision to execute prison sentence and only notifies relevant regulatory bodies that A is prohibited from holding certain positions for the abovementioned duration. Is it correct for the Court to only send such notification?

Reply:

2. A is granted parole with a probation period of 03 years. After such 03 years, the criminal judgment enforcement authority proposes annulment of this decision for the person granted parole. Will the Court consider this proposal?

Reply:

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3. For persons who have fulfilled and are fulfilling their obligations to provide support fully and promptly and, at the time for parole consideration, make a written commitment to continue fulfilling their obligations to provide support as per regulations, may these persons be considered for parole application?

Reply:

In principle, for parole consideration, besides having served their prison sentences for a required amount of time, no prior criminal record, fixed place of residence and good or very good inmate performance, parole applicants must meet the condition of "having paid fines, legal costs and civil compensation in full" according to regulations in Point d Clause 1 Article 66 of the 2015 Criminal Code.

In case compensation entails providing support for a person for whom the aggrieved person is obliged to provide support, the convict will be considered to have paid compensation in full when they have written confirmation that they have provided support promptly and fully as per the decision of the judgment and a written commitment to continue providing support as per regulations.

Thus, for persons who have fulfilled and are fulfilling their obligations to provide support fully and promptly and, at the time for parole consideration, make a written commitment to continue fulfilling their obligations to provide support as per regulations, the competent authorities may formulate applications for parole, consider and decide to grant parole when the applicants meet other conditions according to regulations of the Criminal Code.

4. When deciding to shorten the probation period of a suspended sentence, is the competent authority required to consider the condition of having abided by all additional penalties, obligations of compensation for damage?

Reply:

According to Point b Clause 1 Article 8 of Resolution No. 02/2018/NQ-HDTP, persons serving suspended sentences may have their probation periods shortened under a decision of the district-level People’s Court or Regional Military Court when they fulfill the following conditions: “b) Have made much progress during the probation period, which is evidenced by properly abiding by the law, meeting obligations as per the Law on Execution of Criminal Judgments; actively studying, working, correcting their mistakes or making achievements in working or protecting the Fatherland’s security and being commended by the competent authority”.

According to Point b Clause 1 Article 89 of the 2019 Law on Execution of Criminal Judgments, persons serving suspended sentences may apply to have their probation periods shortened when they fulfill the following conditions: “During the probation period, they properly abide by the law, meet obligations mentioned in Article 87 of this Law; actively studying, working, correcting their mistakes or making achievements in working or protecting social order or security and being commended by the competent authority”.

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Therefore, when deciding to shorten the probation period of a suspended sentence, the competent authority is required to consider the condition of having abided by all additional penalties and obligations of compensation for damage.

Here are the resolutions for some difficulties concerning regulations of the 2015 Criminal Code and Criminal Procedure Code and criminal sentence enforcement. Any difficulty arising during the adoption of these resolutions should be promptly reported to the Supreme People’s Procuracy (via Department of Legal Affairs) for timely guidance./.

P.P. PROSECUTOR GENERAL
DIRECTOR GENERAL
DEPARTMENT OF LEGAL AFFAIRS




Hoang Thi Quynh Chi