Joint Circular No. 01/2005/TTLT/TANDTC-VKSNDTC-BQP-BCA guiding the jurisdiction of military courts

JOINT CIRCULAR

GUIDELINES ON THE JURISDICTION OF MILITARY COURTS

To implement correctly and uniformly the provisions of the Criminal Procedure Code and the Military Court Organization Ordinance (hereinafter referred to as the Ordinance) regarding the jurisdiction of military courts; the Supreme People's Court, the Supreme Procuratorate, the Ministry of National Defense, and the Police Department hereby jointly issue the following guidelines:

I. ON THE SUBJECTS UNDER THE JURISDICTION OF MILITARY COURTS

1. According to Clause 1, Article 3 of the Ordinance, criminal cases involving the following subjects fall under the jurisdiction of military courts regardless of the nature of the crime or where it was committed:

a) Active-duty military personnel including officers, non-commissioned officers, soldiers, and professional military personnel as defined in the Law on Military Service and the Law on Officers of the Vietnam People's Army;

b) Defense civil servants comprising citizens recruited for service in the military or transferred from officers and directly managed by military units or enterprises according to laws on cadres and civil servants and the Law on Officers of the Vietnam People's Army;

c) Defense workers comprising: - Citizens recruited within the establishment of military units or enterprises; - Citizens with indefinite-term labor contracts in military units or enterprises, if they commit crimes while performing national defense tasks under such contracts;

d) Reserve military personnel during concentrated training, exercises, or readiness checks as stipulated by laws on reserve forces;

e) Militia and self-defense personnel during their attachment to the military for combat or support services as stipulated by laws on militia and self-defense;

g) Persons conscripted for military duties directly managed by military units comprising citizens conscripted due to combat or support needs or other military tasks and directly managed by military units to meet these needs.

2. According to Clause 2, Article 3 of the Ordinance, criminal cases involving subjects not falling under Clause 1, Article 3 of the Ordinance only fall under the jurisdiction of military courts if they involve state secrets or cause damage to the military, specifically:

a) State secrets are military secrets and security defense secrets determined as military secrets and prescribed in documents issued by competent state agencies;

b) Causing damage to the military means causing harm to the lives, health, freedom, honor, and dignity of those specified in Clause 1, Article 3 of the Ordinance or property provided by the military for them to perform military tasks; causing damage to the military's property, honor, and reputation. Military property includes assets managed and used by the military, including cases where the military entrusts such assets to militia, self-defense personnel, or any other person to manage and use for combat, support, or military tasks. It also includes situations where individuals who are temporarily detained, imprisoned, or serving sentences in military detention centers continue to commit crimes.

3. According to Article 4 of the Ordinance, for those who no longer serve in the military but whose crimes were committed during their service, or for those currently serving in the military whose crimes were committed before joining, military courts will handle crimes related to military secrets or causing damage to the military; other crimes will be handled by civilian courts. The calculation of the start and end times of military service shall be carried out as follows:

a) The start time of military service is calculated from:

a.1) The time when the military unit receives the handover of troops from the local military command;

a.2) The time when registration for military service, concentrated training, exercises, or readiness checks, or attachment to the military for combat or support, or conscription for military duties and direct management by military units is completed;

a.3) The time when they are present at military units or enterprises to perform labor contracts.

b) The end time of military service is determined as:

b.1) The time when the decision to discharge is received in cases of demobilization, discharge, transfer, resignation, retirement, or leave due to social policies. In cases where soldiers are discharged at the end of their term and the unit organizes their discharge, the end time of military service is the time when the unit hands over to the local military command;

b.2) The time recorded in the decision to reduce the number of troops or the time when the decision to reduce the number of troops is made, if the date of reduction is not recorded in the decision for desertion cases;

b.3) The time when the military unit with authority issues the decision to revoke military status becomes effective for disciplinary violations or legal offenses;

b.4) The end time of concentrated training, exercises, or readiness checks;

b.5) The expiration time of conscription for military duties directly managed by military units in cases without an extension decision from authorized military agencies;

b.6) The termination time of the labor contract.

4. According to Article 5 of the Ordinance, in cases where the same case involves both persons committing crimes or offenses within the jurisdiction of the Military Court and persons committing crimes or offenses within the jurisdiction of the People's Court, the Military Court shall adjudicate the entire case; if it is possible to separate the cases for individual adjudication, the Military Court shall adjudicate those persons committing crimes and offenses as stipulated in Articles 3 and 4 of the Ordinance, while other persons committing crimes and offenses within the jurisdiction of the People's Court shall be adjudicated separately; specifically as follows:

a) Separation of the case for investigation, prosecution, and adjudication shall only be allowed if such separation does not affect the determination of the objective and comprehensive facts of the case;

b) When it is deemed necessary to separate the case for individual adjudication, the Military Court that has accepted the case shall consult with the Military Prosecutor's Office responsible for exercising public prosecution at the trial regarding this matter. If the Military Prosecutor's Office agrees with the opinion of the Military Court, the Military Court shall transfer the file back to the Military Prosecutor's Office for handling according to its authority. In the event that the Military Prosecutor's Office disagrees with the opinion of the Military Court, the Military Court that has accepted the case must adjudicate the entire case.

II. ON THE JURISDICTION OF MILITARY COURTS BASED ON TERRITORIAL JURISDICTION

The territorial jurisdiction prescribed in Article 171 of the Criminal Procedure Code for Military Courts shall be implemented as follows:

1. Cases falling under the jurisdiction of a certain level of Military Court that occur within the territory of that level of Military Court shall be adjudicated by that level of Military Court. The division of territory within the military to determine the jurisdiction of Military Courts shall be specified by the Ministry of National Defense.

2. In cases where the person committing the crime belongs to a unit of a military branch or equivalent organization that has a Military Court, the case shall be adjudicated by the Military Court of that military branch or equivalent organization, regardless of the place where the crime was committed. In cases where the person committing the crime is one of those specified in Clause 2 of Article 3 of the Ordinance and their crime causes direct damage to a military branch or equivalent organization, the case shall also be adjudicated by the Military Court of that military branch or equivalent organization.

3. In cases where the place where the crime was committed cannot be determined or in cases where there are multiple Military Courts with jurisdiction over the case due to multiple persons committing crimes belonging to different units or due to the person committing the crime committing the crime in multiple places, if the Military Prosecutor's Office prosecutes the suspect before a particular Military Court, then that Military Court shall adjudicate the case.

4. In cases where the defendant is a military personnel who commits a crime abroad and is to be tried in Vietnam, the case shall be adjudicated by the Military Court of the Military Region, Military Branch, or equivalent organization according to the decision of the Chief Justice of the Central Military Court.

III. ON THE PRIMARY JURISDICTION OF MILITARY COURTS AT DIFFERENT LEVELS

1. According to Article 170 of the Criminal Procedure Code and Clause 2 of Article 29 of the Ordinance, Military Courts in regions have primary jurisdiction over criminal cases specified in Clause 1 of Article 170 of the Criminal Procedure Code where the defendant had a rank of Colonel or lower when committing the crime or when being indicted, or held a position of Regiment Commander or lower.

2. According to Article 170 of the Criminal Procedure Code, Clause 1 of Article 26 and Clause 2 of Article 29 of the Ordinance, Military Courts at the Military Region level and equivalent have primary jurisdiction over the following criminal cases:

a) Regarding particularly serious crimes;

b) Regarding crimes against national security;

c) Regarding crimes of destroying peace, crimes against humanity, and war crimes;

d) Regarding crimes stipulated in Articles 93, 95, 96, 172, 216, 217, 218, 219, 221, 222, 223, 224, 225, 226, 263, 293, 294, 295, 296, 322, and 323 of the Penal Code;

đ) Regarding crimes where the defendant had a rank of Senior Colonel or higher when committing the crime or when being indicted, or held a position of Deputy Division Commander, Deputy Department Director, or equivalent;

e) Regarding crimes within the jurisdiction of Military Courts in regions, but which Military Courts at the Military Region level and equivalent take up for adjudication.

3. Equivalent positions mentioned in Item 1 and Item 2 of Part III are defined according to regulations of the military (for example: Deputy Commander of the Provincial Military Command, equivalent to Deputy Division Commander and Deputy Department Director; Deputy Commander of the District Military Command, equivalent to Deputy Regiment Commander, etc.).

4. Ranks mentioned in Item 1 and Item 2 of Part III include the ranks of officers and the ranks of professional soldiers.

IV. EFFECTIVE DATE OF THE CIRCULAR

1. This Circular takes effect fifteen days from the date of publication in the Official Gazette and replaces Joint Circular No. 01/TTLN dated February 1, 1994, issued by the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of National Defense guiding the jurisdiction of Military Courts.

2. Investigative agencies, Prosecutors' Offices, and Courts at all levels when conducting investigations, prosecutions, and trials of criminal cases shall strictly implement the guidelines set forth in this Circular.

3. During implementation, if there are any issues requiring guidance or explanation, investigative agencies, Prosecutors' Offices, and Courts at all levels shall report to the Supreme People's Court, the Supreme People's Procuracy, the Ministry of National Defense, and the Ministry of Public Security for timely supplementary guidance or explanation.