Circular No. 01/2006/TT-BCA(C11) guiding the implementation of certain contents of Article 35 of the Criminal Procedure Code 2003

CIRCULAR

Guidelines for Implementing Certain Provisions of Article 35 of the Criminal Procedure Code 2003

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Article 35 of the Criminal Procedure Code 2003 stipulates the tasks, powers, and responsibilities of Investigators during criminal proceedings. This is a new issue, therefore, to ensure consistent implementation and meet political, legal, and professional requirements, the Ministry of Public Security guides on implementing certain provisions of Article 35 of the Criminal Procedure Code 2003 as follows:

1. Regarding summoning and interrogating suspects; summoning and taking statements from witnesses, victims, civil plaintiffs, civil defendants, and persons with interests or obligations related to the case; taking statements from persons under temporary detention

1.1. The Investigator assigned to handle the main investigation of the case shall sign a summons to summon suspects outside custody for interrogation, summon and take statements from witnesses, victims, civil plaintiffs, civil defendants, and persons with interests or obligations related to the case according to the plan approved by the Head or Deputy Head of the Investigation Agency assigned to direct the investigation of the case. Summoning suspects, summoning and taking statements from witnesses, victims, civil plaintiffs, civil defendants, and persons with interests or obligations related to the case shall be carried out in accordance with Articles 129, 133, 135, 136, and 137 of the Criminal Procedure Code 2003.

1.2. The Investigator assigned to handle the main investigation of the case has the right to sign a Request for Extraction of Suspects currently detained or persons under temporary detention in a detention center or temporary holding facility to conduct investigative measures such as interrogation, identification, confrontation, reenactment of the crime, or taking statements from persons under temporary detention. If the Investigator deems it necessary to work with suspects or defendants of other cases, they must seek the opinion of the Head of the agency handling that case.

When the Investigator has a Request for Extraction and an Assignment Decision for the Investigator handling the case, the detention center or temporary holding facility must extract suspects currently detained or persons under temporary detention, hand them over to the Investigator to carry out investigative measures such as interrogation, identification, confrontation, reenactment of the crime, etc., or take statements from persons under temporary detention.

1.3. When conducting summoning to take statements from witnesses, victims, civil plaintiffs, civil defendants, and persons with interests or obligations related to the case in criminal cases involving the following subjects, the Investigator must carefully consider each specific case to propose the Head or Deputy Head of the Investigation Agency assigned to direct the investigation of the case to sign a summons or invitation to come to the Investigation Agency's office for statement-taking or may take statements at their place of residence or workplace:

- Persons with religious titles such as Bishops, Priests in the Catholic Church; Monks, Senior Monks, Deacons in Buddhism; Pastors, Professors in the Cao Dai religion, and leaders of other religions;

- People with fame in society or among ethnic minorities;

- People who are intellectuals, artists with significant reputation both domestically and internationally;

- For foreigners, summoning must comply with relevant laws concerning diplomatic relations and foreigners;

- For those who are cadres or party members managed by county committees, provincial committees, department-level or equivalent cadres under ministries and sectors, and cadres or party members managed by the Politburo, when conducting summoning for statement-taking, it shall be carried out as follows:

+ For the Criminal Police Investigation Agency of the Public Security Department at the county level: The Investigator reports to the Head or Deputy Head of the Criminal Police Investigation Agency of the Public Security Department at the county level assigned to direct the investigation of the case to sign a summons or invitation for the person summoned who is a cadre or party member managed by the county committee. If the person summoned is a cadre or party member managed by the provincial committee, department-level or equivalent cadres under ministries and sectors, and cadres or party members managed by the Politburo, then the Head or Deputy Head of the Criminal Police Investigation Agency of the Public Security Department at the county level assigned to direct the investigation of the case reports to the Director of the Provincial Public Security Department, directly under the central government, to seek approval before signing a summons or invitation.

+ For the Investigation Agency of the Public Security Department at the provincial level: The Investigator reports to the Head or Deputy Head of the Investigation Agency of the Public Security Department at the provincial level assigned to direct the investigation of the case to sign a summons or invitation for those who are cadres or party members managed by the provincial committee, department-level or equivalent cadres under ministries and sectors. If the person summoned is a cadre or party member managed by the Politburo, then the Head or Deputy Head of the Investigation Agency of the Public Security Department at the provincial level assigned to direct the investigation of the case reports to the Director of the Provincial Public Security Department, directly under the central government, to seek approval before signing a summons or invitation.

+ For the Investigation Agency of the Ministry of Public Security: The Investigator reports to the Head or Deputy Head of the Investigation Agency at the Ministry assigned to direct the investigation of the case to seek approval before signing a summons or invitation for those who are cadres or party members managed by county committees, provincial committees. If the person summoned is a cadre or party member managed by the Politburo, then the Head or Deputy Head of the Investigation Agency assigned to direct the investigation of the case reports to the leadership of the Ministry to seek approval before signing a summons or invitation;

- When meeting and conducting statement-taking from participants in criminal proceedings according to the summons or invitation, the Investigator must have a proper attitude, be courteous, and behave culturally in investigative activities. All arrogant, bureaucratic, authoritarian, insulting, and disrespectful behavior towards the dignity, reputation, and personal integrity of the person summoned to the Investigation Agency for statement-taking is strictly prohibited;

- The record of interrogating the suspect shall be prepared by the Investigator in accordance with Article 132 of the Criminal Procedure Code of 2003. Records of statements from witnesses, victims, civil plaintiffs, civil defendants, and persons with interests or obligations related to the case must be carried out strictly in accordance with Articles 95, 125, and 136 of the Criminal Procedure Code of 2003.

- The Investigator must immediately report the results of their work to the leadership of the Investigation Department under the Ministry of Public Security, the leadership of the Investigation Team under the provincial public security agency, the Investigation Police Department under the county-level public security agency, or the Head or Deputy Head of the Investigation Agency.

1.4. The summons is a criminal procedure form used in criminal proceedings, therefore only the Investigation Agency or other agencies within the People's Public Security assigned the task of conducting certain investigation activities may use it. The use of summonses must comply with the purpose, object, and procedures stipulated in the Criminal Procedure Code of 2003. A summons for a suspect at large; a summons or invitation for a witness, victim, civil plaintiff, civil defendant, or person with interests or obligations related to the case to come to the Investigation Agency for work is only valid for one session.

It is strictly prohibited to abuse the use of summonses to resolve matters not in accordance with their intended purpose, object, function, or authority, such as using summonses to call individuals multiple times for unimportant issues unrelated to the case or repeatedly questioning about an issue that they have already presented, etc., which affects the normal operations of organizations or undermines the reputation of organizations or individuals. Investigators are strictly prohibited from making phone calls or through others to request individuals summoned or invited to attend without a summons or invitation. Before issuing a summons or invitation, the Investigator must consider the time and travel arrangements for the individual to avoid causing inconvenience in terms of time or repeated travel. If the individual being summoned or invited resides far from the Investigation Agency’s office, they may be summoned or invited to their place of residence or workplace for interrogation or the Head or Deputy Head of the Investigation Agency responsible for directing the investigation may implement delegated investigation procedures.

2. The decision to escort a suspect at large, the decision to summon a witness

2.1. Escorting a suspect at large or summoning a witness is a complex, sensitive, and easily reactive issue. Therefore, the Investigator must carefully consider; it should only be applied when truly necessary to clarify important aspects of the case and in cases where they intentionally absent themselves without a legitimate reason.

2.2. The Investigator specified in Point 1.1 Section 1 of this Circular has the right to sign the decision to escort a suspect at large, the decision to summon a witness in accordance with Point c Clause 1 Article 35 of the Criminal Procedure Code of 2003. Decisions to escort suspects at large and summon witnesses shall be implemented in accordance with Clause 3 Article 129, Article 130, Article 133, and Article 134 of the Criminal Procedure Code of 2003 and relevant regulatory legal documents. The Investigator must report to the Head or Deputy Head of the Investigation Agency before deciding to escort a suspect at large or summon a witness.

2.3. The Investigator must closely coordinate with the Protective and Judicial Support Police at the same level so that the Head of the Protective and Judicial Support Police unit is responsible for assigning officers to escort suspects at large and summon witnesses to the Investigation Agency for the Investigator to conduct work in accordance with Circular No. 15/2003/TT-BCA dated September 10, 2003 of the Ministry of Public Security.

3. On the assignment of tasks and authorities of the Investigator in the work of inspecting the scene and autopsy

3.1. While awaiting new regulations from the Ministry of Public Security on this matter, the inspection of the scene will continue to be conducted in accordance with Decision No. 57/2001/QĐ-BCA dated February 6, 2001 of the Ministry of Public Security. The Investigator is responsible for organizing, directing, and leading the inspection of the scene and bears responsibility for the inspection of the scene. To ensure effective inspections of the scene and autopsy, the Investigation Agency invites (or requisitions) experts in specific fields to participate in the inspection of the scene and autopsy, such as criminal technical officers, forensic doctors, fire prevention and firefighting police, traffic police, railway engineers, aviation engineers, etc.

3.2. For particularly serious and complicated cases, the Head or Deputy Head of the Investigation Agency assigned to direct the investigation may directly lead or chair the inspection of the scene.

Regarding the use of the Investigation Agency seal by the Investigator

4.1. Summonses, invitations, decisions to escort suspects at large, decisions to summon witnesses, and records of investigative activities prepared and signed by the Investigator assigned to handle the case shall be stamped by the Investigator. The Investigator must present the Decision assigning the Investigator to handle the case to the clerk before stamping the procedural documents bearing the Investigator's signature; do not stamp hanging seals on the records of investigative activities prepared and signed by the Investigator, nor stamp the Investigation Agency seal on photocopied investigative documents. After assigning the Investigator to handle the case, there is no need to write the name of the Head or Deputy Head of the Investigation Agency on the records of investigative activities if the Head or Deputy Head of the Investigation Agency does not directly carry out those investigative measures; the Head or Deputy Head of the Investigation Agency does not need to sign the records of investigative activities conducted by the Investigator.

4.2. Investigators must register their signatures with the Office of the Investigation Agency at the same level or the Investigation Team under the Criminal Police Investigation Agency of the police department at the district level. If an investigator does not register their signature, they shall not affix the seal of the Investigation Agency. Investigative officers who have not been appointed as investigators shall not be assigned in the Decision on the assignment of investigators handling cases; when assisting investigators in investigating cases, investigative officers shall carry out according to the investigation plan and shall not affix the seal of the Investigation Agency to their signatures in investigation activity records.

5. This Circular takes effect fifteen days after its publication in the Official Gazette. The Investigation Security Bureau of the Ministry of Public Security and the Office of the Criminal Police Investigation Agency of the Ministry of Public Security shall assist the leadership of the Ministry in supervising, guiding the implementation of this Circular at all levels of Investigation Agencies within the People's Public Security. During the implementation process, if there are any difficulties or new issues arising, the Investigation Agencies at all levels within the People's Public Security shall report to the Ministry (through the Investigation Security Bureau of the Ministry of Public Security and the Office of the Criminal Police Investigation Agency of the Ministry of Public Security) for timely supplementary guidance.

During the implementation process, if there are any difficulties or new issues arising, the Investigation Agencies at all levels within the People's Public Security shall report to the Ministry (through the Investigation Security Bureau of the Ministry of Public Security and the Office of the Criminal Police Investigation Agency of the Ministry of Public Security) for timely supplementary guidance.