LAW

AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE CRIMINAL PROCEDURE CODE

Pursuant to the 1992 Constitution of the Socialist Republic of Vietnam;
This Law amends, supplements a number of articles of the Criminal Procedure Code passed by the National Assembly on June 29, 1988 and amended, supplemented by the laws amending, supplementing a number of articles of the Criminal Procedure Code, which were passed by the National Assembly respectively on June 30, 1990 and December 22, 1992.

Article 1.- To amend, supplement a number of articles of the Criminal Procedure Code as follows:

1. To add Article 10a on responsibility of agencies conducting legal proceedings, persons conducting legal proceedings:

"Article 10a.- Responsibility of agencies conducting legal proceedings, persons conducting legal proceedings

In the process of legal proceedings, the agencies conducting the legal proceedings and the persons conducting the legal proceedings must strictly observe the provisions of law and take responsibility for their acts and decisions.

Those who act against law in arrest, detention, custody, investigation, prosecution, trial and/or judgement execution shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability according to the provisions of law."

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"a) Where there exist grounds to believe that a person is preparing to commit a very serious offense or particularly serious offense;"

"4. In all circumstances, the urgent arrest must be notified in writing to the Procuracy of the same level and the materials related to the urgent arrest must also be sent thereto for consideration and approval.

The Procuracy shall have to strictly control the grounds for urgent arrests provided for in this Article. If the Procuracy refuses to approve the arrest, the arrested persons must be immediately set free."

3. Article 70 on detention is amended, supplemented as follows:

"Article 70.- Detention

1. Detention may apply to defendants, accused persons in the following cases:

a) The defendants, accused persons commit particularly serious offenses or very serious offenses;

b) The defendants, accused persons commit serious offenses, commit less serious offenses subject to the imprisonment of over two years as prescribed by the Penal Code and there are grounds to believe that such persons may escape or hinder the investigation, prosecution, trial or may continue committing offenses.

2. To defendants or accused persons who are pregnant women or nursing their children of under 36 months old, who are old and weak persons, or who are seriously ill while their places of residence are obvious, no detention but other preventive measures shall apply, except for special cases.

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4. The agencies issuing the detention warrants shall have to examine identity cards of the detainees and notify their families and commune, ward or township administration or the agencies or organizations, where the detainees reside or work thereof."

4. Article 71 on detention period is amended, supplemented as follows:

"Article 71.- The detention duration

1. The detention time for investigation shall not exceed two months for less serious offenses, three months for serious offenses and four months for very serious and particularly serious offenses.

2. Where a case involves many complicated circumstances and is deemed necessary to require a longer duration for investigation and where there exist no grounds to change or cancel the detention measure, the investigation body shall, at least ten days before the expiry of the detention time, have to file a document requesting the director of the Procuracy to extend the detention.

The extention of detention is stipulated as follows:

a) The director of the People’s Procuracy of the provincial or higher level and the director of the Military Procuracy of the military zone or higher level may permit an extension of no more than one month for less serious offenses, may permit the first extension of no more than two months for serious offenses, no more than three months for very serious offenses and no more than four months for particularly serious offenses;

b) Where the first extension duration prescribed at Point a of this Clause has expired while the investigation cannot be terminated and there appear no grounds for change or cancellation of the detention measure, the director of the People’s Procuracy of the provincial or higher level and the director of the Military Procuracy of the military zone or higher level may give the second extension of no more than one month for less serious offenses. The chairman of the Supreme People’s Procuracy and the chairman of the Central Military Procuracy may give the second detention extension of no more than two months for very serious offenses and no more than four months for particularly serious offenses.

3. For particularly serious offenses, where the second extension of the detention duration prescribed at Point b, Clause 2 of this Article has expired and the case involves many complicated circumstances while there appear no grounds for change or cancellation of the detention measure, the chairman of the Supreme People’s Procuracy may give the third extension of no more than four months.

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4. During the detention, if deeming it unnecessary to continue with the detention, the investigation body shall promptly propose the Procuracy to cancel the detention in order to set free the detainee or to apply other preventive measures if deeming it necessary.

Upon the expiry of the detention duration, the persons who issue the detention warrants shall have to set free the detainees or apply other preventive measures if deeming it necessary."

5. Clause 1, Article 88 on institution of criminal cases at the request of the victims is amended, supplemented as follows:

"1. Cases involving offenses prescribed in Clause 1 of Articles 104, 105, 106, 108, 109, 111, 113, 121, 122, 131 and 171 of the Penal Code shall be instituted only when so requested by the victims."

6. Clause 1 of Article 93 on the investigating powers of the border guards, the customs, the rangers and agencies of the people�s police force, the people’s security force, the people�s army, which are tasked to conduct certain investigating activities, is amended, supplemented as follows:

"1. Upon the discovery of any criminal acts which must be examined for penal liability within their respective fields of management, the border guard units, the customs offices and the ranger agencies shall have the powers:

a) For less serious offenses caught in the act with obvious evidences, to issue decision to institute the case, prosecute the convicts, conduct the investigation and transfer the dossiers to the competent procuracy within fifteen days from the date of issuing the decision to institute the case.

b) For serious, very serious and particularly serious offenses or less serious but complicated offenses, to issue decision to institute the case, conduct the initial investigating activities and transfer the dossiers to the competent investigating bodies within seven days from the date of issuing the decision to institute the case."

7. Article 97 on the time limit for investigation is amended, supplemented as follows:

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1. The time limit for investigating a case shall not exceed two months for less serious offenses, three months for serious offenses, four months for very serious and particularly serious offenses, from the time the case is instituted till the time the investigation ends.

2. Where it is necessary to extend the investigation due to the complexity of the case, the investigating body must send a written request at least ten days before the expiry of the investigation time limit to the director of the Procuracy for the extension of the investigation.

The investigation extension is stipulated as follows:

a) For less serious offenses, the investigation shall be extended once for not more than two months;

b) For serious offenses, the investigation shall be extended twice, the first extension shall not exceed three months and the second extension shall not exceed two months;

c) For very serious offenses, the investigation shall be extended twice, each extension shall not exceed four months;

d) For particularly serious offenses, the investigation shall be extended thrice, each extension shall not exceed four months.

3. The investigation extending competence of the directors of the Procuracies of different levels is stipulated as follows:

a) For less serious offenses, the director of the district-level People’s Procuracy and the director of the Military Procuracy of the military zone level shall extend the investigation. Where a case is received and processed at the provincial or military zone level, the director of the provincial-level People’s Procuracy or the director of the Military Procuracy of the military-zone level shall extend the investigation;

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c) For very serious offenses, the director of the provincial-level People’s Procuracy and the director of the Military Procuracy of the military zone level shall extend the investigation;

d) For particularly serious offenses, the directors of the provincial-level People’s Procuracy and the director of the Military Procuracy of the military zone level shall give the first and second extensions of the investigation; the chairman of the Supreme People’s Procuracy and the chairman of the Central Military Procuracy shall give the third extension.

4. Where a case is received and processed for investigation at the central level, the extension of investigation shall fall under the competence of the chairman of the Supreme People’s Procuracy or the chairman of the Central Military Procuracy.

5. For particularly serious offenses where the investigation extension duration has expired, but due to the case’s great complexity which disenables the conclusion of the investigation, the chairman of the Supreme People’s Procuracy may give another extension for not more than four months.

For offenses of infringing upon the national security, the chairman of the Supreme People�s Procuracy may permit further extension.

6. Upon the expiry of the investigation extension duration while it is unable to prove that the defendant has committed the offense, the investigating body shall have to issue a decision to suspend the investigation."

8. Article 98 on time limits for restoration of investigation, additional investigation, re-investigation is amended, supplemented as follows:

"Article 98.- The time limits for restoration of investigation, additional investigation, re-investigation.

1. In case of investigation restoration prescribed in Article 140 of this Code, the time limit for continued investigation shall not exceed two months for less serious offenses, serious offenses and very serious offenses and three months for particularly serious offenses, from the time of issuing the decision on investigation restoration till the time of concluding the investigation.

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a) For serious and very serious offenses, the investigation shall be extended once for not more than two months;

b) For particularly serious offenses, the investigation shall be extended once for not more than three months.

The competence to extend the investigation for each type of offense shall comply with the provisions in Clause 3, Article 97 of this Code.

2. Where a case is remanded by the Procuracy for additional investigation, the time limit for additional investigation shall not exceed two months; if it is remanded by the court for additional investigation, the time limit for additional investigation shall not exceed one month. The Procuracy and the court may return the files for additional investigation for not more than twice. The time limit for additional investigation shall be counted from the date the investigating body receives the returned case files and the request for investigation.

3. Where a case is remanded for re-investigation, the investigation time limit and investigation extension shall comply with the general procedures.

The investigation time limit shall be counted from the time the investigating body receives the files and the request for re-investigation.

4. Upon the restoration of investigation, additional investigation or re-investigation, the investigating body may apply, change or cancel preventive measures according to the provisions of this Code.

Where there exist grounds for detention as provided for by this Code, the detention duration for the restored investigation or additional investigation must not exceed the time limit for restored investigation or additional investigation prescribed in Clause 1 and Clause 2 of this Article.

The time limits for detention and detention extension where the case is re-investigated shall comply with the general procedures prescribed in Article 71 of this Code."

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"1. Within a period of not more than twenty days for less serious offenses and serious offenses and not more than thirty days for very serious offenses and particularly serious offenses, after the receipt of the case files and the written investigation conclusion, the Procuracy shall have to issue one of the following decisions:

a) To prosecute the defendant before court with a bill of indictment;

b) To remand the case file for additional investigation;

c) To stop or temporarily suspend the case.

In case of necessity, the director of the Procuracy may permit the extension which, however, must not exceed ten days for less serious offenses and serious offenses, fifteen days for very serious offenses or thirty days for particularly serious offenses.

The Procuracy shall have to inform the defendant and his/her defense counsel of the above-mentioned decisions. The bill of indictment, the decision to stop or temporarily suspend the case must be handed to the defendant. The defense counsel shall be entitled to read the bill of indictment, take note of necessary things and make requests.

2. After receiving the case file, the Procuracy may decide to apply, change or cancel the preventive measures. The detention duration must not exceed the time limits prescribed in Clause 1 of this Article."

10. Article 145 on the jurisdiction of courts at all levels is amended, supplemented as follows:

"Article 145.- The jurisdiction of courts at all levels

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a) The offenses of infringing upon the national security;

b) The offenses prescribed in Articles 95, 96, Clause 1 of Article 172 and Articles 222, 223, 293, 294, 295 and 296 of the Penal Code.

1. The provincial-level people’s courts and the military courts of the military zone level shall conduct first-instance trial of criminal cases involving offenses which do not fall under the jurisdiction of the district-level people’s courts and the regional military courts or cases falling under the jurisdiction of the subordinate courts and taken to trial by their discretion."

11. Clause 2, Article 151 on the time limits for trial preparation is amended and supplemented as follows:

"2. Within no more than thirty days for less serious offenses, forty five days for serious offenses, two months for very serious offenses and three months for particularly serious offenses, from the date of receiving the case files, the judge must issue one of the following decisions:

a) To bring the case to trial;

b) To return the files for additional investigation;

c) To stop or temporarily suspend the case.

For complicated cases, the president of the court may decide to prolong the time limits of trial preparation, but for not more than fifteen days for less serious and serious offenses and thirty days for very serious and particularly serious offenses.

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With regard to remanded cases for additional investigation, the judge must, within fifteen days after receiving the returned case files, issue a decision to bring the case to trial."

12. Clause 1 of Article 226 on to be- executed judgements and decisions is amended as follows:

"1. The to be- executed judgements and decisions are those which have already taken legal effect, including:

a) The judgements and decisions made by the courts of first instance which are not appealed or protested according to the appeal procedures;

b) The judgements and decisions made by the courts of appeal;

c) The decisions made by the courts of casassion or trial review."

13. Clauses 1, 5 and 6 of Article 227 on agencies and organizations, which are charged with the duty to execute judgements and decisions of courts are amended, supplemented as follows:

"1. The police shall execute expulsions, termed imprisonment, life imprisonment and join the council for the execution of death sentence as prescribed in Article 229 of this Code."

"5. The civil judgement executing agencies shall execute the judgement on pecuniary penalty, property confiscation. The commune, ward or township administration or agencies and organizations shall have the duty to assist the executor of court in the execution of judgement. If it is necessary to apply coercive measures for judgement execution, the police and other concerned agencies shall have the duty to coordinate therefor."

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14. Clause 1 and Clause 5 of Article 229 on the execution of death penalty are amended, supplemented as follows:

"1. The president of the court which has conducted the first-instance trial shall issue the judgement execution decision and establish the death setence execution council comprising representatives of the court, the procuracy and the police. The judgement execution council must check the identity card of the convicted before the execution.

Where the convicted is a woman, before issuing the judgement execution decision, the president of the first-instance court shall have to organize the examination of the conditions for non-application of the death penalty as prescribed in Article 35 of the Penal Code. If there appear the grounds showing that the convicted has the conditions prescribed in Article 35 of the Penal Code, the president of the first-instance court shall not issue the judgement execution decision and report such to the president of the Supreme People’s Court for considering the conversion of the death penalty into the life imprisonment for the convicted."

"5. In cases where exists a special circumstance, the judgement execution council shall postpone the execution and report such to the president of the court who has issued the judgement execution decision for further report to the president of the Supreme People’s Court."

15. Article 231 on reprieve of execution of imprisonment judgement is amended, supplemented as follows:

"Article 231.- Reprieve of execution of imprisonment judgement

For persons sentenced to imprisonment and being let out on the bail, the court president may postpone on his/her own or at the request of the Procuracy, the police or the convicted the execution of imprisonment judgement in cases prescribed in Clause 1, Article 61 of the Penal Code."

16. Article 234 on execution of suspended sentence, non-custodial reform and reform at disciplinary units of the army is amended as follows:

"Article 234.- The execution of suspended sentence, non-custodial reform

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17. To add Article 234a on execution of expulsion penalty

"Article 234a. Execution of expulsion penalty

The expelled persons shall have to leave Vietnam within fifteen days after the issuance of the judgement execution decision. Where persons penalized with expulsion have to serve other penalties or to fulfill other obligations, the time limits for their departure from Vietnam shall be prescribed by law."

18. Article 236 on execution of pecuniary penalty or property confiscation

Decisions on the execution of pecuniary penalty or property confiscation must be addressed to the Procuracy of the same level, the executor, the convicted and the administration of the communes, wards or townships where the convicted reside.

The property confiscation shall be effected according to the provisions in Article 40 of the Penal Code."

19. Clause 1, Article 237 on conditions for reduction of penalty-serving terms or exemption of penalty is amended, supplemented as follows:

"1. Persons who are serving the penalty of imprisonment, non-custodial reform, residence ban or probation may have their penalty-serving terms reduced according to the provisions in Articles 57, 58, 59 and 76 of the Penal Code; if they have not yet served their penalties, they may be exempt from the execution of the entire penalty as provided for in Clauses 1, 2, 3 and 5, Article 57 of the Penal Code.

Persons enjoying temporary suspension of the execution of imprisonment penalty may be exempt from the execution of the remainder of their penalties as provided for in Clause 4, Article 57 of the Penal Code.

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20. Clause 1 and Clause 2 of Article 238 on procedures for penalty term reduction or penalty execution exemption are amended, supplemented as follows:

"1. The courts competent to decide the reduction of imprisonment terms shall be the provincial-level people’s courts and the military courts of the military zone level, where the convicted serve their penalties.

The courts competent to decide the exemption from execution of imprisonment penalty shall be the provincial-level courts and the military courts of the military zone level, where the convicted reside or work.

The reduction of terms or exemption from execution of other penalties or the reduction of probation period fall under the deciding competence of the district-level people’s courts and the regional military courts in localities where the convicted serve their penalties or are put under probation.

2. The dossiers proposing the consideration of the exemption of non-custodial reform penalty, the exemption from the execution of whole or remaining part of imprisonment penalty, the exemption for the execution of the remaining part of pecuniary penalty must be made with the recommendation of the director of the Procuracy of the same level.

The dossiers proposing the consideration of the reduction of imprisonment terms must be made with the recommendation of the imprisonment execution agencies.

The dossiers proposing the consideration of the reduction of non-custodial reform terms must be made with the recommendation of the agencies, organizations or local administrations which have been assigned the tasks of direct supervision and education.

The dossiers proposing the consideration of reduction of or exemption from other penalties or reduction of the period under probation of the suspended sentence must include the recommendations or remarks of agencies or organizations which are tasked to execute judgements as provided for in Article 227 of this Code."

21. Article 273 on arrest, custody, detention is amended, supplemented as follows:

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1. Persons aged between full 14 and under 16 may be arrested, put into custody or detained if there are enough grounds provided for in Articles 62, 63, 64, 68 and 71 of this Code, but only in cases of intentionally committing serious offenses, committing very serious offenses or committing particularly serious offenses."

22. Article 279 on termination of execution of judicial measures and reduction of penalty-serving terms is amended, supplemented as follows:

"Article 279.- Termination of execution of judicial measures, penalty service reduction or exemption

Minor convicted may be entitled to the termination of execution of judicial measures, the penalty service reduction or exemption when there appear all conditions prescribed in Article 70 or Article 76 of the Penal Code."

Article 2.- To replace numerals and phrases of the Criminal Procedure Code as follows:

1. To amend the numerals of articles and clauses of the Penal Code cited in the Criminal Procedure Code into the corresponding numbers of articles and clauses of the 1999 Penal Code as follows:

a) To replace the numeral "Article 242" in Clause 3 of Article 39, Clause 4 of Article 43, Clause 3 of Article 44 with the numeral "Article 308";

b) To replace the numeral "Article 241" in Clause 4 of Article 43, Clause 3 of Article 44, Clause 2 of Article 45 with the numeral "Article 307";

c) To replace the numeral "Article 236" in Clause 3 of Article 57 with the numeral "Article 300";

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e) To replace the numerals "Articles 92, 93, 222, 223, 262, 263" in Article 101 with the numerals "Articles 263, 264, 286, 287, 327, 328";

f) To replace the numerals "Article 234", "Article 235" in Clause 3 of Article 107, with the numerals "Article 298", "Article 299";

g) To replace the numeral "Article 244" in Clause 2 of Article 121 and Article 122 with the numeral "Article 310";

h) To replace the numerals "Paragraph 1, Clause 1, Article 48" in Clause 3 of Article 139 with the numerals "Clause 1 and Clause 3 of Article 25";

i) To replace the numerals "Article 16, Clause 1 of Article 48 and Clause 3 of Article 59" in Clause 1, Article 143b with the numerals "Article 19, Article 25 and Clause 2 of Article 69";

j) To replace the numeral "Article 231 of this Code" in Clause 1 of Article 232 with the numerals "Clause 1 of Article 61 and Article 62 of the Penal Code";

k) To replace the numeral "Article 44" in Clause 2, Article 237 with the numeral "Article 60";

l) To replace the numeral "Article 53" in Article 239 with the numeral "Article 64";

m) To replace the numerals "Article 54", "Article 55" in Clause 1, Article 240 with the numerals "Article 65", "Article 66";

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o) To replace the numeral "Article 60" in Clause 2, Article 277, with the numeral "Article 70";

p) To replace the numeral "Article 67" in Article 280 with the numeral "Article 77";

q) To replace the numeral "Article 12" in Clause 1, Article 281 with the numeral "Article 13".

2. To amend the phrases of the Criminal Procedure Code as follows:

a) The phrase " particularly dangerous offenses of infringing upon the national security" in Article 36 is replaced by the phrase "the offenses of infringing upon national security";

b) The phrase "the Council of Ministers" in Article 72 is replaced by the phrase "the Government";

c) The phrase "the State Council" in Article 92 and Article 93 is replaced by the phrase "the National Assembly Standing Committee";

d) The phrase "the State Council" in Article 228 and Article 229 is replaced by the phrase "the State President";

e) The phrase "the supreme court martial" in Articles 146, 215, 244, 248, 250 and 266 is replaced by the phrase "the Central Court Martial";

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Article 3..- To annul Article 160a on composition of the collegiate bench acting as court of first instance-cum-final tribunal.

Article 4.- This Law takes implementation effect as from July 1st, 2000

Article 5.- The Government, the Supreme People’s Court and the Supreme People’s Procuracy shall, within the scope of their respective functions, tasks and powers, guide the implementation of this Law.

This Law was passed on June 9, 2000 by the Xth National Assembly of the Socialist Republic of Vietnam at its 7th session.

NATIONAL ASSEMBLY CHAIRMAN




Nong Duc Manh