Joint Circular No. 01/2017/TTLT-VKSNDTC-TANDTC-BCA-BTP stipulates the necessary cases for requesting forensic examination in the resolution of corruption and economic cases.

JOINT CIRCULAR

Regulations on cases where it is necessary to request forensic examination in the handling of corruption and economic cases

PURSUANTWHEREAS Criminal Procedure Code No. 101/2015/QH13 dated November 27, 2015;

WHEREAS Law on Forensic Examination No. 13/2012/QH13 dated June 20, 2012;WHEREAS Law on Issuance of Normative Legal Documents No. 80/2015/QH13 dated June 22, 2015;

WHEREAS Decree No. 85/2013/NĐ-CP dated July 29, 2013 of the Government guiding the implementation of the Law on Forensic Examination 2012 and Decree No. 34/2016/NĐ-CP dated May 14, 2016 of the Government guiding the Law on Issuance of Normative Legal Documents 2015.The Prosecutor General of the Supreme People's Procuracy, the President of the Supreme People's Court, the Minister of Public Security, and the Minister of Justice hereby jointly promulgate this Joint Circular regulating cases where it is necessary to request forensic examination in the handling of corruption and economic cases.

This Joint Circular regulates cases where it is necessary to request forensic examination and the coordination between competent investigative agencies with related organizations, entities, and individuals to carry out forensic examinations in the handling of corruption and economic cases.

This Joint Circular applies to the following subjects:1. Competent investigative agencies; persons authorized to conduct investigations;2. Forensic examination organizations, forensic examiners, judicial forensic experts who are requested for examination;

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

Article 3. Principles of requesting forensic examination, evaluating, and using examination conclusions

Article 2. Applicability

1. Requesting forensic examination, evaluation, and use of examination conclusions in the handling of corruption and economic cases must comply strictly with legal regulations and adhere to professional standards to ensure accurate, objective, and lawful case resolution.

2. In addition to mandatory cases requiring forensic examination as stipulated in Article 206 of the Criminal Procedure Code, cases necessitating forensic examination under this Joint Circular may only be implemented when there is insufficient evidence to prove criminal acts, their nature, and the extent of damage caused by such acts.

3. When requesting forensic examination, investigative agencies and investigators must select organizations or individuals with sufficient professional expertise and material conditions to conduct examination in the relevant field or specialty. When evaluating and using examination conclusions, investigative agencies and investigators must ensure a comprehensive and objective assessment of the examination conclusions as the basis for resolving cases.

3. Other relevant agencies, organizations, and individuals.

4. Organizations or individuals requested for examination have the responsibility to conduct examination within the prescribed time frame and provide specific conclusions on the requested examination content, and bear responsibility for the contents of their conclusions according to the law.

5. Organizations or individuals requested for examination must keep confidential and not disclose examination content, information, or conclusions to agencies, organizations, or individuals without authority.

It is prohibited to abuse the process of requesting, conducting, evaluating, or using examination conclusions to obstruct the resolution of cases or affect the accuracy and objectivity of case resolution.

3. When requesting an appraisal, the investigative authority or investigator must select organizations or individuals with sufficient professional expertise and material conditions to conduct the appraisal in the relevant field or specialty. When evaluating and using the appraisal conclusion, the investigative authority or investigator must ensure an objective and comprehensive review of the appraisal conclusion as the basis for resolving the case or matter.

4. Organizations or individuals requested to conduct an appraisal have the responsibility to carry out the appraisal within the prescribed time limit and provide specific conclusions on the requested appraisal content, and bear responsibility for the contents of their conclusions in accordance with the law.

5. Organizations or individuals requested to conduct an appraisal must keep confidential and not disclose the content of information, documents, or appraisal conclusions to agencies, organizations, or individuals without authority.

It is prohibited to abuse the request, implementation, evaluation, or use of appraisal conclusions to obstruct the resolution process of cases or matters or to affect the accuracy and objectivity of the resolution of cases or matters.

Chapter II

SPECIFIC PROVISIONS

Article 4. Cases where it is necessary to request an appraisal

The cases where it is necessary to request an appraisal under this Circular include:

1. When it is necessary to determine the quality, origin, place of manufacture of assets, goods, counterfeit goods, genuine goods, prohibited goods;

2. When it is necessary to trace documents, objects, signatures, handwriting, seals, traces, electronic data;

3. When it is necessary to determine the accuracy of weighing, measuring, gauging, counting tools and other machines and equipment;

4. When it is necessary to determine acts of violating laws in the investment field, including:

a) Regarding the establishment, examination, decision on investment orientation; project investment decisions;

b) Regarding bidding;

c) Regarding survey, design consultancy, construction, supervision, acceptance, settlement;

d) Regarding investment capital management such as: Temporary advance of capital not in accordance with regulations; using construction capital for purposes not intended; guaranteeing loans, temporary advances, contract performance or capital reallocation; lending capital not in accordance with regulations;

đ) Other acts of violating laws in the investment field;

5. In cases where difficulties arise in determining the extent of damage caused by acts of violating laws in the investment field, the extent of damage shall be determined according to the principle of deducting reasonable and lawful costs from the total investment project cost or determined according to one or more of the following methods:

a) Bank interest on the amount temporarily advanced that was improperly used leading to inability to recover or loss of investment capital;

b) Bank interest on investments made through loans, entrusted funds, or reallocated funds, which were improperly used causing losses or wastage;

c) Additional costs arising from borrowing interest on invested capital and other costs for the project from the time construction or operation ceased;

d) The adjusted total investment amount increased compared to the initial total investment due to illegal acts leading to extended implementation time or delayed progress of the project;

6. When it is necessary to determine acts of violating laws related to taxes, finance, accounting, insurance, banking, securities, land, natural resources, agriculture, forestry, water conservancy, and other fields when deemed necessary.

Article 5. Requesting an Appraisal

1. When it falls within the cases where it is necessary to request an appraisal as stipulated in Article 4 of this Circular, the judicial organ or the person conducting proceedings must clearly define the content, field, or specialty requiring the appraisal; select organizations or individuals with the necessary conditions to conduct the appraisal to issue a decision requesting the appraisal.

2. The decision requesting the appraisal must contain all contents as prescribed in Clause 2 of Article 205 of the Criminal Procedure Code.

The content of the request for appraisal only states the technical requirements in the field or specialty requiring the appraisal, without stating legal requirements.

3. The appraisal period starts from the date the organization or individual receiving the request for appraisal receives the decision requesting the appraisal and all relevant files, objects subject to appraisal, and accompanying documents.

The appraisal period is carried out according to the decision requesting the appraisal. If the appraisal cannot be conducted within the period specified in this clause, the organization or individual conducting the appraisal must promptly notify in writing, clearly stating the reasons to the requesting agency or person requesting the appraisal; at the same time, clearly stating the expected completion time for the appraisal and issuance of the appraisal conclusion.

4. If necessary, before issuing the decision requesting the appraisal, the judicial organ or the person conducting proceedings must coordinate and exchange with the organization or individual expected to be requested for the appraisal and related agencies or organizations to unify the content of the request for appraisal, the appraisal period, and other issues (if any).

5. In cases where there are multiple contents requiring appraisal or complex content, the judicial organ or the person conducting proceedings may divide them into different appraisal request contents, issue multiple appraisal request decisions to ensure compliance with the case resolution schedule.

6. In cases where the content of the request for appraisal involves multiple fields and the responsibility of multiple agencies or organizations, the judicial organ or the person conducting proceedings must identify the main field to assign responsibility to the main agency or organization and the cooperating agency or organization to carry out the appraisal.

The agency or organization assigned the main responsibility for carrying out the appraisal must act as the lead, organize the implementation, and sign and stamp to confirm in the appraisal conclusion. The cooperating agency or organization must send personnel to participate in the appraisal.

7. In cases where issues arise in coordinating the request for and implementation of the appraisal, the judicial organ or the person conducting proceedings must take the lead and coordinate with the agency or organization requested for the appraisal and related agencies or organizations to resolve the issues.

Article 6. Handing over and receiving the decision to request forensic examination, files, objects for forensic examination

1. The handing over and receiving of the decision to request forensic examination, files, objects for forensic examination, related documents, and items (if any) shall be carried out in the following manner:

a) Directly at the office of the organization or individual requested to conduct the forensic examination;

b) Directly at the office of the investigative agency when the examiner conducts the forensic examination at the investigative agency according to special requirements and tasks;

c) Directly at the scene for objects that cannot be moved;

d) By postal service.

2. The handing over and receiving of the decision to request forensic examination, files, objects for forensic examination, related documents, or accompanying comparison samples (if any) must be recorded in a protocol. The protocol of handover and receipt must contain all contents as prescribed in Clause 2 of Article 27 of the Law on Forensic Examination and Article 133 of the Criminal Procedure Code.

In cases where the object for forensic examination is sealed, the unsealing must be carried out in accordance with the provisions of the law.

3. The deadline for handing over or sending the decision to request forensic examination, files, objects for forensic examination, and related documents to the organization or individual conducting the forensic examination shall be implemented in accordance with the provisions of Clause 3 of Article 205 of the Criminal Procedure Code.

Article 7. Coordination in organizing and implementing forensic examinations

1. During the period of conducting the forensic examination, the investigative agency and the investigator, after handing over the decision to request forensic examination, files, objects for forensic examination, and related documents, must monitor and urge the implementation of the decision to request forensic examination, require the organization or individual requested to conduct the forensic examination to assign personnel to carry out the examination, develop an examination plan, estimate the forensic examination allowance and costs, and notify the investigative agency and the investigator.

2. The head of the organization requested to conduct the forensic examination must develop an examination plan, select judicial examiners, and forensic examiners suitable for the content of the request for forensic examination, decide on the form of examination as either individual or collective examination, and within five days from the date of receiving the decision to request forensic examination, files, objects for forensic examination, and related documents, the organization requested to conduct the forensic examination must send a document to the requesting agency or person listing those assigned to conduct the examination, contact points, and the form of examination.

Within five days from the date of receiving the decision to request forensic examination, files, objects for forensic examination, and related documents, the individual requested to conduct the forensic examination must prepare a written examination plan, send it to the requesting agency or person, and fully comply with the requirements of the requesting agency or person.

3. In cases where the decision to request forensic examination involves the responsibility of multiple forensic examination organizations, the organization entrusted with the main responsibility for conducting the examination must request the involved forensic examination organizations to assign qualified personnel to participate in the examination. The organization entrusted with the main responsibility for conducting the examination must designate a person in charge of the examination and notify the requesting agency or person in writing.

The organization requested to conduct the examination must send a document assigning qualified personnel to participate in the examination.

4. During the process of conducting the examination, if there is a change in the examiner, the examination period is insufficient to complete the examination, or other issues arise, the organization or individual conducting the examination must promptly notify the requesting agency in writing to reach a solution. If necessary, the requesting agency may convene meetings and exchange opinions with the organization or individual conducting the examination and relevant agencies or individuals to resolve arising issues or disagreements between the requesting party and the examined party.

5. The requesting agency has the responsibility to timely and fully pay the forensic examination allowance and costs to the organization or individual conducting the examination and fulfill all obligations and responsibilities of the requesting party for forensic examination as stipulated by the Law on Forensic Examination, this Circular, and other relevant laws to ensure the time limit and conditions for conducting the examination.

Article 8. Evaluation and Utilization of Expert Opinions

1. Investigative agencies and investigative personnel must ensure consistency and compatibility with other evidence related to the case when reviewing, evaluating, and utilizing expert opinions.

2. In cases where the expert opinion is unclear or when necessary, to create a basis for accurately and objectively evaluating and utilizing the expert opinion, the requesting agency or individual may request the organization or individual conducting the expert examination to provide detailed explanations about the process and results of the examination.

The organization or individual conducting the expert examination has the responsibility to participate in or appoint a representative to participate in proceedings and present and explain the expert opinion according to the requirements of the investigative agency or investigative personnel.

3. In cases involving corruption and economic offenses where there are multiple expert opinions on the same matter, including situations where an expert opinion has been re-examined under Article 212 of the Criminal Procedure Code, and the investigative agencies still cannot reach a consensus on using the expert opinion as a basis for resolving the case, the investigative agency handling the case shall report to the competent authority for consideration, evaluation, and utilization of the expert opinion based on the following criteria:

a) The expertise and professional qualifications of the expert;

b) The methods and procedures for conducting the expert examination;

c) The specialized equipment and means used in the expert examination;

d) The independence and objectivity of the expert examination.

4. When necessary, the investigative agency handling the case may coordinate with other investigative agencies, organizations or individuals conducting the expert examination, experts in the field of forensic examination, and other relevant organizations or individuals to clarify necessary matters to serve the evaluation and utilization of the expert opinion as a basis for resolving the case.

Article 9. Coordination in Statistical Reporting

1. Investigative agencies have the responsibility to conduct statistics and reports on the implementation of forensic examinations periodically (every six months and annually) in accordance with the Law on Forensic Examination and other relevant laws.

The report must clearly state the results and statistical data on requests for forensic examinations; difficulties and obstacles in issuing and utilizing expert opinions; participation in proceedings by the expert; costs and allowances for forensic examination; information exchange during the examination process, progress notifications; refusal of examination by agencies, organizations, or individuals when requested, and other necessary contents in resolving corruption and economic cases.

2. Reports and statistics on forensic examinations from investigation agencies, prosecution offices, and courts at the central level shall be sent to the Ministry of Justice; reports and statistics from investigation agencies, prosecution offices, and provincial courts shall be sent to the Department of Justice.

Article 10. Responsibilities of the Ministry of Justice and Provincial Departments of Justice in Coordinating Forensic Examinations to Serve the Resolution of Corruption and Economic Cases

1. Upon request from investigative agencies within their functional scope, the Ministry of Justice and Provincial Departments of Justice have the responsibility to inform and urge management agencies in the field of forensic examination to resolve difficulties and obstacles in forensic examinations or to report and propose recommendations to

2. Based on information and statistical data on forensic examinations provided by investigative agencies in accordance with Article 9 of this Circular, the Ministry of Justice and Provincial Departments of Justice have the responsibility to urge ministries, agencies equivalent to ministries, or departments managing forensic examinations to implement measures to strengthen the number and quality of organizations and individuals conducting examinations to promptly and effectively meet the requirements for resolving corruption and economic cases.

3. The Ministry of Justice and Provincial Departments of Justice have the responsibility to coordinate with relevant levels and sectors to compile, establish, and publish lists of forensic examiners, public forensic examination organizations, non-public forensic examination organizations, case-specific forensic examiners, and case-specific forensic examination organizations; the fields of forensic examination of each organization and individual, and publicly post this information on their websites. In cases of changes or additions to examination organizations or individuals, they must promptly post this information on their websites.

Chapter III

IMPLEMENTING PROVISIONS

Article 11. Effective Date

1. This Circular takes effect from February 1, 2018.

2. For corruption and economic cases that have been resolved by the People's Court and whose judgments and decisions have become legally binding before the effective date of this Circular, the provisions of this Circular shall not be applied to file supervisory appeals through the supervisory review procedure.

Article 12. Implementation Organization

During the implementation of this Circular, if there are any difficulties or issues requiring supplementation, please promptly reflect them to the Supreme People's Procuracy for consolidation and coordination with the Supreme People's Court, the Ministry of Public Security, and the Ministry of Justice for consideration and resolution./.