Joint Circular No. 01/2011/TTLT-VKSTC-TANDTC-BCA-BTP-BLDTBXH guiding the implementation of certain provisions of the Criminal Procedure Code concerning participants in criminal proceedings who are minors.

JOINT CIRCULAR

Guidelines for Implementing Certain Provisions of the Criminal Procedure Code

Regarding Participants in Criminal Proceedings Who Are Minors

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To ensure accurate and consistent implementation of the provisions of the Criminal Procedure Code (hereinafter referred to as the CPC) concerning criminal proceedings involving participants who are minors, the Supreme People's Procuracy, the Supreme People's Court, the Ministry of Public Security, the Ministry of Justice, and the Ministry of Labor, Invalids, and Social Affairs provide the following guidelines:

PART I

SOME GENERAL ISSUES

Article 1. Purpose

A minor is an individual who has not fully developed physically and mentally, making them vulnerable, especially when they participate in criminal proceedings during the resolution of cases. Therefore, depending on their age, level of maturity, and personal needs, they must be protected according to the relevant legal provisions when participating in criminal proceedings.

Article 2. Scope of Regulation

These Circulars guide certain provisions of the CPC related to participants in criminal proceedings who are minors, including those who are temporarily detained, suspects, defendants; victims, witnesses.

Article 3. Responsibilities of Investigative Authorities and Investigators

During the investigation, prosecution, and trial of cases involving minors, investigative authorities and investigators must:

1. Ensure compliance with the provisions of Chapter XXXII and other provisions of the CPC that do not conflict with the provisions of this Chapter.

2. Ensure that the rights of minors as stipulated by law are respected throughout the proceedings. The investigation, prosecution, and trial of cases involving minors must be appropriate to their psychological state and age.

3. Ensure the confidentiality of personal information of minors. All activities related to criminal proceedings involving minors must be conducted in an environment conducive to protecting their privacy, honor, dignity, and property.

4. Minimize the number of contacts between minor victims and witnesses with suspects and defendants.

5. Apply appropriate measures as required by law to ensure the safety of life, health, honor, dignity, property, and other legitimate rights and interests of minor victims and witnesses, as well as their relatives, when these rights are threatened or violated.

6. Prioritize the prompt, accurate, and timely resolution of cases involving minors.

Article 4. Assignment of Investigators

When conducting investigations, prosecutions, and trials of cases involving minors, investigative authorities should assign investigators, prosecutors, and judges who have been trained or have experience in investigating, prosecuting, and trying cases involving minors, or individuals with necessary knowledge of psychology, educational science, and activities combating crimes involving minors.

Article 5. Principles for Handling Offenses Committed by Minors

During the initiation, investigation, prosecution, and trial of cases caused by offenses committed by minors, investigative authorities must implement the principles for handling offenses committed by minors as stipulated in Article 69 of the Penal Code. In particular, consideration should be given to exempting minors from criminal responsibility if the conditions specified in Clause 2 of Article 69 of the Penal Code are met, entrusting them to their families, agencies, or organizations for supervision and education to help them correct their mistakes and reintegrate into society.

Chapter II

CRIMINAL PROCEEDINGS FOR SUSPECTS AND DEFENDANTS

WHO ARE MINORS

Article 6. Determining the Age of Accused Persons Who Are Minors

The determination of the age of accused persons who are minors shall be carried out by investigative agencies in accordance with the provisions of the law. In cases where lawful measures have been applied but the exact date, month, and year of birth of the accused person cannot still be determined, their age shall be determined as follows:

1. If the specific month of birth can be determined but not the day, then the last day of that month shall be taken as the day of birth of the accused person.

2. If the specific quarter of the year can be determined but not the specific day and month within that quarter, then the last day of the last month of that quarter shall be taken as the day of birth of the accused person;

3. If the first half or second half of the year can be specifically determined but not the specific day and month within that half-year, then June 30 or December 31 of that year shall be taken as the day of birth of the accused person, respectively;

4. If the specific year of birth can be determined but not the specific day and month of birth, then December 31 of that year shall be taken as the day of birth of the accused person.

5. If the year of birth of the accused person who is a minor cannot be determined, an appraisal must be conducted to determine their age.

Article 7. Supervision of Minor Offenders

1. Investigative agencies, Public Prosecution Service, and Courts may decide to entrust minor offenders to their parents or guardians for supervision to ensure their presence when summoned by investigative agencies.

2. For minor offenders without parents, without a clear place of residence, or who are homeless and without support, investigative agencies need to take all measures to ascertain their background and family. In cases where this cannot be done, the investigative agency will request the Labor, Invalids and Social Affairs Department or the Youth Union, Women's Association at the place of arrest, the location of the crime, or the competent investigative authority to assign staff to supervise the minor offender.

3. When accepting the investigative agency's proposal to assign staff to supervise the minor offender, the agency responsible for assigning staff must immediately assign personnel and promptly notify the investigative agency to facilitate their contact and meeting with the minor offender.

4. The person assigned the task of supervising the minor offender must closely monitor and observe their moral character and education.

Article 8. Application of Preventive Measures

1. When applying preventive measures such as arrest, temporary detention, or pretrial detention against minor offenders, investigative agencies must accurately determine their age to apply the relevant provisions of Article 303 of the Criminal Procedure Code. In cases of immediate arrest or urgent arrest, after the arrest, investigative agencies must promptly verify their age to make appropriate decisions. Before applying the preventive measures stipulated in Article 303 of the Criminal Procedure Code, investigative agencies should consider and weigh the application of other preventive measures prescribed in Articles 91, 92, and 93 of the Criminal Procedure Code.

For minor offenders who have been subject to preventive measures of temporary detention or pretrial detention, investigative agencies must regularly monitor and inspect, and if they find that these preventive measures are no longer necessary, they must promptly revoke or replace them with other preventive measures that do not restrict their freedom.

2. When apprehending minor offenders, if it is necessary to use force, the use of force must comply with the provisions of the law and only be to the extent necessary to control the minor offender.

3. When applying preventive measures of temporary detention or pretrial detention against minor offenders, investigative agencies should limit the extension of the duration of temporary detention or pretrial detention.

Minor offenders must be detained separately and not held together with adults. If there are signs of anxiety, fear, or potential for violent behavior leading to negative actions, the investigative agency may require the detention facility to apply appropriate measures to prevent possible adverse consequences.

The conditions for temporary detention or pretrial detention of minor offenders must be ensured in accordance with current legal regulations.

5. The agency issuing orders for arrest, temporary detention, or pretrial detention of minor offenders must inform their families or legal representatives in writing immediately after the arrest, temporary detention, or pretrial detention, in accordance with Clause 3 of Article 303 of the Criminal Procedure Code.

Article 9. Participation in litigation of defense counsel as prescribed in Clause 2 Article 57, Article 58 and Article 305 of the Code of Criminal Procedure

1. It is mandatory to have defense counsel participate in litigation in cases where the accused or defendant is a minor. Any situation where there is no participation of defense counsel in cases involving minors as accused or defendants constitutes a serious violation of procedural rules, except when they or their lawful representatives refuse defense counsel. Defense counsel may be: lawyers; lawful representatives of persons under temporary detention, accused, or defendants; public defenders.

2. When delivering decisions on temporary detention or indictment decisions, the issuing authority must notify the person under temporary detention and the minor accused about their right to have defense counsel.

3. The lawful representative of the person under temporary detention, accused, or defendant who is a minor may choose defense counsel as prescribed by law or represent themselves in defending the person under temporary detention, accused, or defendant.

4. In cases where the accused or defendant is a minor or their lawful representative cannot select defense counsel, the Investigative Agency, Prosecutor's Office, or Court must request the Bar Association to assign a lawyer from a law firm to provide defense counsel for them or propose the Vietnam Fatherland Front Committee or its member organizations to appoint defense counsel for their members, except in cases where the minor or their lawful representative refuses.

The Investigative Agency, Prosecutor's Office, or Court must request the organization implementing legal aid to provide legal aid for child defendants without a place to stay and may request legal aid for other minor defendants.

5. If the accused, defendant, or their lawful representative refuses defense counsel, a record must be made and kept in the case file.

6. Litigation agencies and litigators must create conditions for defense counsel to exercise their rights to meet and communicate with minor accused or defendants as prescribed by law.

Article 10. Taking statements from persons under temporary detention, interrogating accused persons as prescribed in Article 131 and Clause 2 Article 306 of the Code of Criminal Procedure

1. Taking statements from persons under temporary detention or interrogating accused persons who are minors can be conducted at the location of investigation or at their residence. The location for taking statements or interrogation should be arranged in a manner suitable to reduce tension and fear for minors.

2. During the investigation and prosecution process, litigation agencies need to minimize as much as possible the number of times statements are taken from persons under temporary detention or interrogations of accused minors.

Investigators and Prosecutors when conducting statements from persons under temporary detention or interrogating accused minors must have attitudes, behaviors, and use language appropriate to their age, gender, cognitive ability, level of maturity.

The time for taking statements or interrogations should be determined based on the age, psychological state, health condition, cognitive ability, level of maturity, and development of minors, as well as the requirements of the investigation. Taking statements from persons under temporary detention or interrogating accused minors must be immediately suspended if the minor shows signs of fatigue affecting their ability to accurately and fully report.

3. When taking statements from persons under temporary detention or interrogating accused minors, litigation agencies must notify defense counsel and their lawful representatives in advance about the time and location of the statement-taking or interrogation. In necessary cases or when the minor requests it, staff specializing in legal assistance or counseling, medical personnel may be invited to participate to create a comfortable and relaxed atmosphere for them.

4. When taking statements from persons under temporary detention or interrogating accused minors aged 14 or older but under 16 years old or minors with mental or physical disabilities, or in other necessary cases, litigation agencies must notify family representatives in advance to ensure their presence. Taking statements from persons under temporary detention or interrogating accused minors without the presence of family representatives can only be carried out if the minor has no family, the family representative intentionally absents themselves without a valid reason, or they refuse to participate.

If the family representative of the person under temporary detention or accused cannot be present to ensure timely progress of the litigation procedures, taking statements from persons under temporary detention or interrogating accused minors will still be carried out, but the litigation agency must invite staff from one of the following agencies: Labor - Invalids and Social Affairs, Women's Union, Youth Union, or Lawyers to participate in taking statements or interrogations.

Family representatives, staff from the Labor - Invalids and Social Affairs agency, Women's Union representatives, Youth Union representatives, or lawyers may be seated next to minors to create a comfortable and relaxed atmosphere for them.

If deemed necessary during the process of taking statements or interrogations, family representatives may ask the person under temporary detention or accused questions aimed at encouragement, persuasion, and education. Family representatives are not allowed to ask leading, suggestive, or affirming/negating questions related to the case. If signs of collusion or prompting are observed, family representatives must immediately stop questioning and record this incident.

5. Family representatives of persons under temporary detention or accused who are minors have the right to present documents, objects, request changes in the litigation subject, lodge complaints against the actions of litigators, and read the case file upon completion of the investigation.

Article 11. Trial of cases involving defendants who are minors

1. The composition of the trial panel for cases involving defendants who are minors must include a People's Judge who is currently or has been a teacher or Youth League cadre.

2. In addition to the cases specified in Article 18 of the Criminal Procedure Code, the Court may decide to conduct a closed trial for cases where minors commit crimes to facilitate their reintegration into society.

Mobile trials shall not be conducted for cases caused by minors, except when it is necessary for education, legal awareness promotion, and crime prevention.

3. When conducting the trial, the Court may rearrange the positions of those involved in the proceedings within the courtroom to reduce the tension and fear experienced by minor defendants.

Handcuffs or other coercive measures shall not be used during the trial at the Court, except in cases where they commit particularly serious or very serious offenses intentionally, engage in negative actions, or show resistance, causing disorder in the courtroom.

4. At the trial of a defendant who is a minor, representatives of the defendant's family, except in cases where the representative of the family intentionally absents themselves without a valid reason, representatives of the school or organization where the minor studies or lives must be present.

Representatives of the defendant's family, representatives of the school, or organizations participating in the trial have the right to submit documents, objects, requests, and proposals to change the persons conducting the proceedings; participate in debates; appeal procedural acts of authorized persons conducting the proceedings and decisions of the Court.

In cases of necessity or when minors request it, the Court may invite representatives from the Department of Labor - Invalids and Social Affairs, Women's Union, Youth League, or other assisting officers to participate in the trial to support them.

5. Interrogation and examination of a defendant who is a minor at the trial must comply with the provisions of Article 209 of the Criminal Procedure Code and be appropriate to the age and level of development of the defendant.

Explanations about rights and obligations, trial procedures, and questions asked at the trial must be simple and clear to ensure that minors and their family representatives can understand and answer correctly.

The trial panel must allow minors to express their opinions, viewpoints, and wishes, and must consider and take these opinions, viewpoints, and wishes into account before rendering a judgment or decision.

Chapter III

CRIMINAL PROCEDURE FOR MINORS AS VICTIMS OR WITNESSES

Article 12. Determining the Age of Minor Victims

The determination of the age of minor victims is carried out by the investigative authority according to the law. In cases where legal measures have been applied but the exact date of birth of the minor victim cannot be determined, their age will be determined as follows:

1. If the specific month of birth is determined but the day of birth within that month cannot be determined, the first day of that month will be considered the date of birth.

2. If the specific quarter of the year is determined but the specific day and month within that quarter cannot be determined, the first day of the first month of that quarter will be considered the date of birth.

3. If the specific half-year (first half or second half of the year) is determined but the specific day and month within that half-year cannot be determined, the first day of January or July of that year will be considered the date of birth.

4. If the specific year of birth is determined but the specific day and month of birth cannot be determined, the first day of January of that year will be considered the date of birth.

5. If the year of birth of the minor victim cannot be determined, a forensic assessment must be conducted to determine their age.

Article 13. Guardianship and Assistance for Minor Victims

1. When identifying the victim as a minor, the investigative authority must immediately notify the parents, guardians, or lawful representatives of the minor victim so that they may meet and exercise their rights and obligations during the proceedings.

2. In addition to individuals participating in the proceedings as guardians or lawful representatives, the investigative authority may request representatives from the Department of Labor, Invalids, and Social Affairs, women's associations, youth unions at the location where the proceedings are taking place, or other support staff to assist minor victims, particularly those without families, homeless minors, children without shelter, trafficked, swapped, or abducted children, when they or their families request assistance with accommodation, counseling, medical care, health services, legal, and psychological support during the proceedings or when deemed necessary.

For minor victims who are homeless children, the investigative authority must request legal aid organizations to provide legal aid to them. The investigative authority may also request legal aid organizations to provide legal aid to other minor victims.

3. When the investigative authority requests the assignment of staff to participate in the proceedings to support minor victims, the agency or organization requested must immediately assign staff and inform the investigative authority to facilitate the support staff's contact and meetings with minor victims.

4. Parents, guardians, lawful representatives, and support staff who have taken responsibility for assisting minor victims may participate in the various stages of the case proceedings.

5. The investigative authority and the investigators must:

a) Ensure the provision of necessary information about the proceedings to minor victims as well as to their parents, guardians, lawful representatives, and support staff;

b) Ensure the presence of parents, guardians, lawful representatives, and support staff so that they can support and encourage minor victims throughout the proceedings;

c) Ensure that minor victims, especially children, receive appropriate specialized assistance regarding medical care, health services, legal, and psychological support when needed.

Article 14. Participation of Representatives Protecting the Interests of Minor Victims

1. The investigative authority must notify minor victims or their parents, guardians, or lawful representatives about their right to seek legal representation from lawyers, public defenders, or others to protect their interests.

In cases where minor victims or their parents, guardians, or lawful representatives cannot choose a representative to protect their interests, upon their request or suggestion, the Investigative Agency, Prosecutor's Office, or Court must request the Bar Association to designate a law firm to appoint a lawyer or an organization with the minor as a member to appoint a public defender to protect their interests.

2. Representatives protecting the interests of minor victims have the right to participate in the proceedings from the time of indictment, to be present when the investigative authority takes statements from the person they represent; they have the right to appeal parts of the judgment or decision of the court related to the rights and obligations of the person they represent; they have the right to request the replacement of the investigator, expert, or interpreter according to the provisions of the Code of Criminal Procedure.

Article 15. Taking statements from victims and witnesses who are minors

1. The act of taking statements from victims and witnesses who are minors may be conducted at the place where the investigation is being carried out or at their residence. The location for taking statements from victims and witnesses who are minors must be arranged in a manner that makes them feel safe and comfortable.

2. Investigators and Prosecutors when taking statements from victims and witnesses who are minors must have a friendly and gentle attitude, using language appropriate to their age, gender, cognitive ability, and level of maturity.

3. When taking statements from victims and witnesses who are children, the judicial organ must invite their parents, guardians, representatives protecting the interests of the victim, or other legal representatives, or teachers to attend.

At the request of the victim, witness who is a minor, or their legal representative, the judicial organ may invite representatives from the Department of Labor - Invalids and Social Affairs, Women's Union, Youth Union, or other assisting officers to participate to support them.

4. The judicial organ needs to base on the age, psychological state, health condition, cognitive ability, level of maturity, and development of victims and witnesses who are minors, and the requirements of the investigation to apply appropriate investigative measures to minimize the number of times they need to give statements as well as determine the duration of each statement session. The act of taking statements from victims and witnesses who are minors must immediately stop when they show signs of fatigue affecting their ability to provide accurate and complete statements.

5. Collecting evidence, taking statements from victims who are minors, including examining physical marks, photographing injuries, recording audio, and video must comply with the provisions of the Criminal Procedure Code and must ensure that it does not affect their psychological state or personal privacy and dignity.

When taking statements from victims and witnesses who are minors, the judicial organ may record audio and video and must note this in the record so that during the trial, the Trial Panel can use these recordings to supplement the evidence collected during the investigation.

6. The judicial organ must limit as much as possible the confrontation between victims who are minors, especially children, and defendants to avoid damaging their mental health. For cases involving sexual offenses, abuse, buying, and selling of children, confrontation should only be conducted if deemed necessary to clarify case details that cannot be resolved without confrontation.

Article 16. Trial of cases involving victims who are minors

1. When conducting trials of cases involving victims who are minors, to ensure their best interests, the Court should create conditions for the Trial Panel to include People's Assessors who are teachers or Youth Union officials, similar to cases involving defendants who are minors.

2. During the trial, the Court may rearrange objects and positions of those involved in the proceedings in the courtroom to reduce tension and fear for victims and witnesses who are minors.

The explanation of rights and obligations, trial procedures, and questions asked at the hearing must be simple and clear to help victims and witnesses who are minors and their family representatives understand and answer correctly.

The presiding judge may request parents, guardians, or teachers to assist in questioning minor witnesses.

3. To protect the privacy and dignity of victims who are minors and reduce their fear, before the trial, the Court must consider and evaluate relevant circumstances of the case to decide whether to conduct a closed trial, particularly in cases of sexual offenses against children and buying and selling of children.

4. For cases involving victims and witnesses who are minors, especially in cases of sexual offenses against children and buying and selling of children, the Court must base on existing documents and evidence in the case file to decide on the trial when the victim or witness who is a minor is absent, limiting the postponement of the trial.

5. When it is necessary to request victims and witnesses who are minors to present their statements at the hearing under permissible conditions, the Trial Panel may allow them to stand behind a screen or in another room through a camera system connection.

6. To help victims and witnesses who are minors better understand the Court, when they or their legal representatives, defense counsel, or parents request, the Court may allow them to visit the courtroom before the trial related to them begins.

Chapter IV

IMPLEMENTING PROVISIONS

Article 17. Effective Date

This Circular takes effect forty-five days from the date of publication in the Official Gazette. Provisions in guiding documents issued by the Supreme People's Procuracy, Supreme People's Court, Ministry of Public Security, Ministry of Justice, and Ministry of Labor - Invalids and Social Affairs concerning persons who are arrested or involved in proceedings who are minors (if any) contrary to this Circular shall be abolished.

In the course of implementation, if there are difficulties or issues requiring clarification and guidance, please report to the Supreme People's Procuracy, Supreme People's Court, Ministry of Public Security, Ministry of Justice, and Ministry of Labor - Invalids and Social Affairs for timely explanation or guidance and supplementation./.