Joint Circular No. 01/2010/TTLT-VKSNDTC-BCA-TANDTC guiding the implementation of provisions of the Criminal Procedure Code on returning case files for supplementary investigation

JOINT CIRCULAR

Guidelines for Implementing Provisions of the Criminal Procedure Code on Returning Case Files for Supplementary Investigation

 __________________________________

To properly implement the provisions of the Criminal Procedure Code (hereinafter referred to as the CPROC) regarding returning case files for supplementary investigation, the Supreme People's Procuracy, the Ministry of Public Security, and the Supreme People's Court provide the following guidelines:

Article 1. Important Evidence Pertaining to the Case

Clause 1. "Important evidence pertaining to the case" as stipulated in Clause 1, Article 168 and Point a, Clause 1, Article 179 of the CPROC refers to evidence specified in Article 64 of the CPROC used to prove one or more issues specified in Article 63 of the CPROC, and if such evidence is lacking, it would be impossible to resolve the case objectively, comprehensively, and in accordance with the law.

Clause 2. Situations Constituting Lack of Important Evidence Pertaining to the Case

a) Evidence to prove whether "a criminal act has occurred or not" is evidence to determine whether the act that occurred contains all elements of a specific crime as defined in the Penal Code or falls under cases that are not criminal acts (such as justifiable self-defense, emergency situations, unexpected events, civil or economic relations, administrative violations...);

b) Evidence to prove "the time, place, and other circumstances of the criminal act" is evidence to determine when and where the criminal act occurred, and how the criminal act was committed in terms of methods, means, tools, and instruments;

c) Evidence to prove "who committed the criminal act" is evidence to identify a specific individual who committed the criminal act;

d) Evidence to prove "whether there is fault or not" is evidence to determine whether the person committing the socially dangerous act had fault or no fault; if there is fault, it belongs to intentional fault (direct intentional fault or indirect intentional fault) or negligent fault (negligent fault due to overconfidence or negligent fault due to carelessness) as provided for in Articles 9 and 10 of the Penal Code;

đ) Evidence to prove "whether there is criminal responsibility capacity or not" is evidence to determine whether the person committing the socially dangerous act had reached the age of criminal responsibility at the time of committing the act; whether they suffered from mental illness or another disease that impaired their ability to recognize or control their behavior, and if so, when they suffered from such a disease and during which stage of the proceedings;

e) Evidence to prove "the purpose and motive of the criminal act" is evidence to determine the purpose and motive of the person committing the criminal act, and in cases where the purpose and motive of the criminal act are aggravating factors of criminal responsibility or elements of the criminal offense or factors determining the sentencing range;

g) Evidence to prove aggravating or mitigating circumstances of criminal responsibility of the accused or defendant is evidence to determine whether the accused or defendant has any mitigating circumstances of criminal responsibility as stipulated in Article 46 of the Penal Code; whether they have any aggravating circumstances of criminal responsibility as stipulated in Article 48 of the Penal Code, or evidence to determine the sentencing range;

h) Evidence to prove characteristics of the personal history of the accused or defendant is evidence to determine the criminal record of the accused or defendant;

i) Evidence to prove "the nature and extent of damage caused by the criminal act" is evidence to assess the nature and consequences (material and non-material) of the criminal act in determining the criminal offense and deciding the sentence;

k) Other evidence to prove one or more issues specified in Article 63 of the CPROC, the lack of which would make it impossible to resolve the case, such as evidence to accurately determine the age of the accused or defendant as a minor or to accurately determine the age of the victim as a child; evidence to prove the position and role of each accused or defendant in cases of joint criminal offenses or organized crimes...

Clause 3. Conditions for Returning Case Files for Supplementary Investigation When Lacking Important Evidence Pertaining to the Case

a) The Procuracy shall issue a decision to return the case file for supplementary investigation when lacking important evidence pertaining to the case as guided in Clauses 1 and 2 of this Article if the Procuracy cannot supplement such evidence itself;

b) The Judge assigned to preside over the trial session (during the pre-trial phase) or the Bench (at the trial session) shall issue a decision to return the case file for supplementary investigation when additional important evidence pertaining to the case as guided in Clauses 1 and 2 of this Article needs to be considered, and it is deemed that such evidence cannot be supplemented at the trial session;

c) The case file shall not be returned if the evidence is important but its absence does not prevent prosecution or trial, or if the evidence cannot be collected. Example 1: There are three witnesses, but only two can be identified. Example 2: The scene has been altered and cannot be reviewed again, or the evidence has been lost and cannot be found.

Article 2. Grounds for initiating criminal proceedings against a suspect for another offense or for another co-perpetrator

1. "There are grounds to initiate criminal proceedings against a suspect for another offense or for another co-perpetrator" as stipulated in Clause 2, Article 168 of the Criminal Procedure Code when it falls under one of the following circumstances:

a) Indicting and investigating one or more crimes, but the evidence in the case file shows that the accused's actions have constituted one or more other crimes;

b) Besides the crimes already indicted and investigated, the evidence in the case file shows that there is a basis to indict the accused for one or more other crimes;

c) Besides the accused already indicted and investigated, the evidence in the case file shows that there are other co-perpetrators or other perpetrators related to the case but not yet indicted.

2. The Public Prosecutor's Office shall not return the case file for supplementary investigation if there are grounds to separate the case as provided for in Clause 2, Article 117 of the Criminal Procedure Code.

Article 3. Grounds to consider that the defendant has committed another offense or has another co-perpetrator

1. "There are grounds to consider that the defendant has committed another offense or has another co-perpetrator" as stipulated in Point b, Clause 1, Article 179 of the Criminal Procedure Code when it falls under one of the following circumstances:

a) The Public Prosecutor's Office prosecutes one or more offenses, but the evidence in the case file shows that the suspect's (defendant's) actions have constituted one or more other offenses;

b) In addition to the offense already prosecuted, the evidence in the case file shows that there are grounds to initiate criminal proceedings against the suspect (defendant) for one or more other offenses;

c) In addition to the suspect (defendant) who has been prosecuted, the evidence in the case file shows that there are other co-perpetrators or other offenders related to the case, but they have not been initiated for prosecution.

2. The Court shall not return the case file for supplementary investigation when it falls under any of the following circumstances:

a) In the case of Point a, Clause 1 of this Article, but the evidence in the case file shows that the suspect (defendant) may be tried for one or more corresponding offenses that are equal or less severe, or may be tried for fewer offenses than those charged by the Public Prosecutor's Office;

b) There is a decision to separate the case or there is no decision to separate the case from the Investigative Agency, but there are grounds to separate the case as provided for in Clause 2, Article 117 of the Criminal Procedure Code.

Article 4. Serious Violation of Procedural Rules

1. "There is a serious violation of procedural rules" as stipulated in Clause 3, Article 168 and Point c, Clause 1, Article 179 of the Criminal Procedure Code means that during the investigation, prosecution, and trial, the investigative agencies and individuals conducting the proceedings fail to implement or improperly or incompletely implement the procedures prescribed by the Criminal Procedure Code, thereby seriously infringing upon the rights and legitimate interests of the parties involved in the proceedings or affecting the determination of the objective and comprehensive facts of the case.

2. The following cases are considered to be serious violations of criminal procedural rules:

a) Orders and decisions of the Investigative Agency and other agencies entrusted with certain investigative activities which, according to the Criminal Procedure Code, must be approved by the Public Prosecutor's Office, but were not approved by the Public Prosecutor's Office or the orders and decisions on proceedings were signed beyond their authority;

b) Failure to request the appointment of a defense counsel for the suspect or defendant as provided for in Clause 2, Article 57 of the Criminal Procedure Code;

c) Incorrect determination of the status of participants in the proceedings during the investigation, prosecution, and trial, leading to serious infringement of their rights and legitimate interests;

d) Initiating a criminal case without a request from the victim or the legal representative of the victim as provided for in Clause 1, Article 105 of the Criminal Procedure Code;

đ) Merging or separating cases without grounds and contrary to the provisions of Article 117 of the Criminal Procedure Code;

e) Failing to deliver orders and decisions on proceedings to the suspect or defendant as required by law, thereby infringing upon their right to defense;

g) Not investigating and compiling the suspect's record; failing to determine important personal characteristics of the person committing the offense (age, prior convictions and offenses of the suspect or defendant);

h) Not providing an interpreter for the parties involved in the proceedings when they cannot use Vietnamese or they are deaf-mute as provided for in Article 61 of the Criminal Procedure Code;

i) Not refusing to conduct proceedings or changing the person conducting the proceedings in the cases specified in Articles 42, 60, and 61 of the Criminal Procedure Code;

k) Conducting investigations and collecting important evidence for the case not in accordance with the procedures prescribed by the Criminal Procedure Code, thus making such evidence inadmissible in criminal proceedings;

l) Important evidence and documents collected during the investigation and prosecution are not included in the case file or are altered, added to, or subtracted from, thereby distorting the case file;

m) Conducting investigations and prosecutions beyond jurisdiction, except where the competent authority has assigned specific cases for investigation;

n) There are grounds to determine that there was leading, coercive, or cruel interrogation during the course of criminal proceedings, causing the suspect's statements to be untrue;

o) Complaints and accusations of the suspect, defendant, and other parties involved in the proceedings are not resolved in accordance with the law, thereby seriously infringing upon their rights and interests;

p) Other cases determined according to the guidance in Clause 1 of this Article, but must be clearly stated in the decision to return the case file for supplementary investigation.

3. The Public Prosecutor's Office and the Court shall not return the case file for supplementary investigation despite "serious violation of procedural rules" as guided in Clause 1 and further detailed in Clause 2 of this Article when it falls under one of the following circumstances:

a) There is a procedural violation, but it does not seriously infringe upon the rights and legitimate interests of the parties involved in the proceedings;

b) The suspect (defendant) was a minor during the investigation stage, but by the time of prosecution and trial, the suspect (defendant) has reached 18 years of age.

Article 5. Returning the file and the time limit for supplementary investigation

1. The Prosecutor's Office shall issue a decision to return the file for supplementary investigation within the time limit prescribed for the prosecution decision under Clause 1 of Article 166 of the Criminal Procedure Code. The judge assigned to preside over the trial session shall issue a decision to return the file to the Prosecutor's Office for supplementary investigation within the time limit for preparing for trial prescribed in Clause 2 of Article 176 of the Criminal Procedure Code. The Trial Panel must issue a decision to return the file for supplementary investigation in accordance with the provisions of Clause 2 of Article 199 of the Criminal Procedure Code.

2. To avoid returning the file for multiple supplementary investigations, the Prosecutor's Office and the Court must thoroughly study the case file to identify cases requiring the return of the file for supplementary investigation and must promptly issue decisions, without waiting until the prosecution decision time limit or the preparation for trial time limit has expired before issuing a decision to return the file for supplementary investigation.

3. The time limit for supplementary investigation shall be carried out in accordance with the provisions of Clause 2 of Article 121 of the Criminal Procedure Code; specifically, the time limit for the Prosecutor's Office to return the file shall not exceed two months; for the Court to return the file, it shall not exceed one month from the date the Investigation Agency receives the case file and the decision to return the file for supplementary investigation until the Investigation Agency issues the supplementary investigation conclusion.

Article 6. Decision to return the file for supplementary investigation

1. The decision to return the file for supplementary investigation must be issued in writing and signed by the person authorized by law.

2. In the decision to return the file for supplementary investigation, the number, date, month, year, and the number of times the file is returned (first or second) must be recorded. In the content section, specific "important evidence" necessary for supplementary investigation, "other offenses or other co-perpetrators" that need to be prosecuted or indicted, and "serious violations of procedural rules" that need to be addressed must be clearly stated, along with the legal basis provided in one of the clauses 1, 2, and 3 of Article 168 or one of the points a, b, and c of Clause 1 of Article 179 of the Criminal Procedure Code.

3. In cases where the file needs to be returned for further supplementary investigation, the decision must clearly state the issues requested for supplementary investigation in the previous decision that were not adequately investigated or have not met the requirements, or new issues arising from the results of supplementary investigation that require further investigation.

Article 7. Implementation of the decision to return the file for supplementary investigation

1. The Investigation Agency is responsible for fully implementing all requirements set forth in the Prosecutor's Office's decision to return the file for supplementary investigation as stipulated in Article 114 of the Criminal Procedure Code; if it finds that the Prosecutor's Office's decision to return the file for supplementary investigation lacks grounds as guided in Articles 1, 2, and 4 of this Circular, then upon receiving the case file, the Investigation Agency must issue a document detailing the reasons and its viewpoint on the case resolution and return the file to the Prosecutor's Office.

2. After receiving the case file and the Court's decision to return the file for supplementary investigation, if the Prosecutor's Office finds that the Court's decision to return the file for supplementary investigation has grounds but cannot be supplemented independently, it shall issue a decision to return the file for supplementary investigation and immediately transfer the file to the Investigation Agency for further investigation; if the Prosecutor's Office finds that the Court's decision to return the file for supplementary investigation lacks grounds as guided in Articles 1, 3, and 4 of this Circular, it shall issue a document detailing the reasons for maintaining the prosecution decision and return the file to the Court for trial according to Clause 2 of Article 179 of the Criminal Procedure Code.

3. After completing supplementary investigation, the Investigation Agency must issue a supplementary investigation conclusion, clearly stating the findings for each issue of supplementary investigation and the viewpoint on resolving the case. If the results of supplementary investigation lead to the termination of the investigation or the case, the Investigation Agency and the Prosecutor's Office shall issue a decision to terminate the investigation or the case according to their respective authority as prescribed in Article 164 and Article 169 of the Criminal Procedure Code.

4. If the results of supplementary investigation do not change the prosecution decision, the Prosecutor's Office shall issue a document detailing the reasons for maintaining the prosecution decision and return the file to the Court; if the results of supplementary investigation change the prosecution decision, the Prosecutor's Office shall issue a new indictment to replace the old one and transfer the file to the Court for trial.

Article 8. Coordination between the Prosecution Office and the Investigative Agency during the investigation phase

1. In order to minimize the need for returning case files for supplementary investigation, the Prosecution Office and the Investigative Agency must closely coordinate from the moment of receiving, classifying, handling reports of criminal offenses, and throughout the entire investigation process. Investigators must proactively submit all collected evidence and materials in a timely manner to the Prosecutor handling the case and fully implement investigative requirements of the Prosecution Office. Prosecutors must continuously monitor and keep track of the progress of the case investigation, carefully study all collected evidence and materials, promptly propose investigative requirements, actively coordinate with Investigators to clarify issues that need proof immediately during the investigation phase; while strictly supervising investigative activities and the establishment of case files by the Investigative Agency to ensure the objectivity, comprehensiveness, and legality of the case investigation.

2. At least ten days before concluding the case investigation, Investigators and Prosecutors must cooperate to evaluate the collected evidence and materials, ensuring their completeness and legality; if any missing evidence, procedural violations, or overlooked crimes or criminals are discovered, they must be supplemented and rectified immediately during the investigation phase. For particularly serious and complex cases, before concluding the case investigation, the Investigative Agency and the Prosecution Office must conduct a comprehensive review and evaluation of the investigation results, direct the resolution of any conflicting or unresolved issues, and decide on the conclusion of the investigation and the direction of case handling in accordance with the law.

Article 9. Coordination between the Investigative Agency, the Prosecution Office, and the Court during the prosecution phase

1. After receiving the case file and the investigation conclusion, the Prosecutor must thoroughly study the file, check compliance with procedural regulations, and the completeness of the case's evidence and materials. If necessary, the Prosecutor must directly interrogate each suspect in the case. If there is a lack of evidence or materials, or procedural violations that can be supplemented by themselves, the Prosecutor must coordinate with the Investigator to promptly supplement and rectify; if supplementation is not possible, the Prosecutor must report to the Leadership of the Prosecution Office or the Head of the Unit for consideration and decision.

2. Within the prosecution period, if the case involves complex issues regarding evidence or charges, the Prosecutor must report to the Leadership of the Prosecution Office or the Head of the Unit to discuss with the Investigative Agency and the Court about the direction of case resolution.

3. If supplementary investigation is complex, the Prosecution Office must proactively organize inter-agency meetings to clarify issues requiring supplementary investigation to ensure that returning case files for supplementary investigation is focused, thorough, and timely.

4. In cases where the trial agencies at the same level cannot reach an agreement on supplementary investigation, the agency handling the case file must represent the inter-agency leadership in reporting to the higher-level inter-agency leadership for comments on the resolution of the case.

Article 10. Coordination between the Prosecution and the Court during the trial stage

1. Within the preparation period for the trial, if after reviewing the case file, the Judge assigned to preside over the session finds that there are important missing evidence, procedural violations, the defendant has committed another crime, or there are other co-perpetrators, the Judge shall discuss with the Prosecutor to take timely measures to remedy these issues or to supplement them at the trial without having to return the file for supplementary investigation. If the Prosecutor and the Judge have not reached an agreement, they shall report to the leadership of the relevant agencies for consideration and comments on the resolution of the case.

2. At the trial, the Prosecutor shall proactively coordinate with the Bench to clarify evidence related to the proper resolution of criminal cases. In cases where new or complex issues arise that cannot be supplemented, the Bench shall issue a decision to return the file for supplementary investigation.

3. For cases handled by a higher-level Prosecution exercising public prosecution rights, supervising investigations, and transferring to a lower-level Prosecution to exercise public prosecution rights and conduct first-instance trials, if grounds are found to return the file for supplementary investigation, the lower-level Prosecution shall exchange with the Court at the same level to clarify the issues of supplementary investigation before reporting to the higher-level Prosecution for consideration and decision.

Article 11. Management of returning files for supplementary investigation

1. Judicial agencies have the responsibility to manage the return of files for supplementary investigation at their own level. The Prosecution has the responsibility to manage the number of cases and the number of times files are returned for supplementary investigation by judicial agencies at the same level. Provincial-level Prosecutions have the responsibility to compile and evaluate the situation of returning files for supplementary investigation by provincial-level and district-level judicial agencies under their management.

2. Periodically (monthly, quarterly, semi-annually, annually), each judicial agency must self-evaluate and determine the number of cases returned for supplementary investigation. This includes analyzing the reasons for returning files for supplementary investigation regarding evidence, procedure, or related to the initiation of criminal cases, defendants (changes or supplements to the indictment decision); the number of cases returned with grounds, the number of cases returned without grounds; the causes and responsibilities of the Investigative Agency, the Prosecution, the Court, and those conducting the proceedings in returning files for supplementary investigation.

3. The calculation of the rate of returning case files for supplementary investigation by the Prosecutor's Office and the Court is as follows:

a) The ratio of returning files for supplementary investigation by the Prosecution is calculated as the number of criminal cases decided by the Prosecution to return for supplementary investigation with grounds divided by the total number of cases concluded by the Investigative Agency and transferred to the Prosecution for prosecution (including both old unresolved cases and new cases).

Example: In 2009, the Prosecution of Province H decided to return 9 files for supplementary investigation accepted by the Investigative Agency out of a total of 150 cases (10 old cases, 140 new cases) concluded by the Investigative Agency and transferred to the Prosecution for prosecution, then the ratio of returning files for supplementary investigation by the Prosecution relative to the Investigative Agency is 6% (9 cases: 150 cases x 100%).

b) The ratio of returning files for supplementary investigation by the Court is calculated as the number of criminal cases decided by the Court to return for supplementary investigation with grounds divided by the total number of cases prosecuted by the Prosecution and transferred to the Court for trial (including both old unresolved cases and new cases).

Example: In 2009, the Court decided to return 5 files for supplementary investigation accepted by the Prosecution out of a total of 100 cases (10 old cases, 90 new cases) prosecuted by the People's Prosecution and transferred to the Court for trial, then the ratio of returning files for supplementary investigation by the Court relative to the Prosecution is 5% (5 cases: 100 cases x 100%).

c) In cases where the same case is returned for supplementary investigation multiple times by both the Prosecutor's Office and the Court, it shall be counted as one case and analyzed as being returned multiple times;

d) In cases where the Court returns a file for supplementary investigation, and subsequently the Prosecution returns the file requesting the Investigative Agency to supplement according to the Court's requirements, this counts as one case and is analyzed as being returned once (the case is counted due to the Court returning the file for supplementary investigation).

Article 12. Determination of Responsibility in Returning Case Files for Supplementary Investigation

1. The responsibility lies with the Investigative Agency and Investigators in the following cases:

a) Failing to implement or implementing incorrectly, incompletely, or untimely the investigation requirements or decisions to return case files for supplementary investigation made by the Prosecutor's Office, leading to the case file being returned for supplementary investigation on issues that the Prosecutor's Office had requested to be investigated;

b) Failing to provide timely and complete evidence and materials related to the investigation process as required by law upon request of the Prosecutor, causing the Prosecutor not to grasp the content of the case in time to propose investigation requirements, leading to the Prosecutor's Office or Court having to return the case file for supplementary investigation.

2. The responsibility lies with the Prosecutor's Office and Prosecutors in the following cases:

a) Failing to propose investigation requirements or decisions to return case files for supplementary investigation for issues that could have been discovered, leading to the case file being returned for supplementary investigation later;

b) Deciding to return the case file for supplementary investigation without legal basis and the Investigative Agency has a document maintaining the investigative conclusion, subsequently the Prosecutor's Office decides to prosecute as requested by the Investigative Agency.

3. The responsibility lies with the Judge or Trial Panel in the case where the decision to return the case file for supplementary investigation lacks legal basis and the Prosecutor's Office maintains the prosecution decision, subsequently the Court adjudicates the case as requested by the Prosecutor's Office.

4. When situations as guided in Clause 1, 2, and 3 of this Article occur, the leadership of the litigation agency shall organize reviews to determine the specific responsibilities of each litigator at each level involved in returning case files for supplementary investigation for consideration and handling according to the provisions of the law and take measures to rectify.

Article 13. Implementation Provisions

This Circular takes effect 45 days from the date of publication in the Official Gazette. Previous guidelines issued by the Ministry of Public Security, Supreme People's Procuracy, and Supreme People's Court that contradict the guidelines in this Circular are hereby abolished.

During implementation, if there are difficulties requiring guidance, local sectors shall report to their superior agencies, namely the Ministry of Public Security, Supreme People's Procuracy, and Supreme People's Court, to unify timely explanations or additional guidance./.