JOINT CIRCULAR No. 03/2018/TTLT-BCA-VKSNDTC-TANDTC-BQP guiding on the procedures and formalities for recording audio or video with sound; using, preserving, and storing the results of audio or video recordings during investigation, prosecution, and trial

CIRCULARJOINT CIRCULAR

Hướn dFUNCTIONS, DUTIES, POWERS, ORGANIZATIONAL STRUCTURE, OPERATIONAL REGULATIONS, AND RELATIONSHIPS OF MANAGEMENT BOARDS; DUTIES, POWERS OF THE CHAIRPERSON, VICE CHAIRPERSON (IF ANY), SECRETARY, AND MEMBERS OF MANAGEMENT BOARDSArticle 3. Functions, duties, powers of Management Boards and duties, powers of the Chairperson, Vice Chairperson (if any), Secretary, and Members of Management Boardson procedures and formalities for recording audio or video with sound;

using, preserving, andstoring results of audio or video recordings with sound;during the investigation, prosecution, and trial process

during the investigation, prosecution, and trial

Pursuant to the Criminal Procedure Code dated November 27, 2015;

Pursuant to Resolution No. 110/2015/QH13 dated November 27, 2015 of the National Assembly on the implementation of the Criminal Procedure Code; regarding the implementation of the Criminal Procedure Code;

Pursuant to Resolution No. 41/2017/QH14 dated June 20, 2017 of the National Assembly  on the implementation of the Criminal Code No. 100/2015/QH13 which has been amended and supplemented by Law No. 12/2017/QH14; on the effectiveness of the Criminal Procedure Code No. 101/2015/QH13, and Law on the Organization of Investigative Organs in Criminal Matters No. 99/2015/QH13, Law on Temporary Detention and Pretrial Detention No. 94/2015/QH13;Minister of Public Security, Prosecutor-in-Chief of the Supreme People's Procuratorate, Chief Justice of the Supreme People's Court, Minister of National Defense promulgates this Joint Circular guiding the procedures and formalities for recording audio or video with sound;with sound during the investigation, prosecution, and trial process. Article 1. This Joint Circular guides the procedures and formalities for recording audio or video with sound; using, preserving, and storing results of audio or video recordings with sound when interrogating suspects, taking statements from legal representatives of commercial entities committing crimes during the investigation, prosecution, and trial process.

The Minister of the Ministry of Science and Technology issues this Circular on the issuance of National Technical Regulations on Radioactive Waste Containing Naturally Occurring Radioactive Materials.Article 2. This Joint Circular applies to agencies and persons authorized to conduct criminal proceedings during the investigation, prosecution, and trial process; participants in criminal proceedings, other organizations, institutions, and individuals related to the recording of audio or video with sound; using, preserving, and storing results of audio or video recordings with sound when interrogating suspects, taking statements from legal representatives of commercial entities committing crimes. TArticle 3. The provisions of this Joint Circular apply in cases of taking statements from witnesses, victims, parties; confrontation; receiving reports of criminal offenses and recommendations for prosecution.Recording audio or video with soundmeans using technical equipment to record sound or video with sound during the interrogation of suspects; taking statements from legal representatives of commercial entities committing crimes; taking statements from witnesses, victims, parties; confrontation; receiving reports of criminal offenses and recommendations for prosecution.Technical equipment used for recording audio or video with soundincludes audio recording devices, video recording devices with sound, recording heads, servers, and other technical equipment used for recording audio or video with sound as prescribed in this Joint Circular. using, preserving, andstoring results of audio or video recordings with sound;Technical malfunction refers to situations where technical equipment malfunctions, leading to interruptions or inability to record audio or video with sound; or if it is possible to record but the quality is not guaranteed; other objective reasons preventing the recording of audio or video with sound such as power outages, explosions...

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation and Applicability

Audio or video recording room

at detention facilities, investigative agency headquarters, procuratorates, and agencies assigned to carry out certain investigative activities is a specialized room ensuring sufficient space, lighting, safety, and equipped with technical equipment for recording audio or video with sound that meets quality standards for sound and images.

Technical staff

Article 2. Interpretation of Terms

1. refers to staff within the establishment of investigative agencies, procuratorates, and agencies assigned to carry out certain investigative activities, who have technical expertise and proficiency in operating technical equipment for recording audio or video with sound, responsible for managing the system of technical equipment for recording audio or video with sound and preserving, storing recorded data. Article 1. Recording audio or video with sound must ensure the objectivity, transparency, and integrity of the recorded data. Recorded data is part of the criminal case file and is used, preserved, and stored according to the laws on the use, preservation, and storage of criminal case files.

2. Article 2. Recording audio or video with sound; using, preserving, storing, and results of audio or video recordings with sound during the investigation, prosecution, and trial process must comply with the provisions of the Criminal Procedure Code and follow the procedures and formalities as directed in this Joint Circular. Article 3. Ensuring respect for the rights and legitimate interests of participants in criminal proceedings as stipulated in the Criminal Procedure Code.

3. Article 1. Unauthorized modification, cutting, splicing, falsification, illegal destruction, distortion, damage, loss of recorded audio or video data; unauthorized copying, dissemination, exploitation, and use of results of audio or video recordings with sound outside the purposes specified in Articles 7 and 8 of this Joint Circular; leaking or disclosing case information or infringing upon the rights, legitimate interests, reputation, and honor of agencies, organizations, and individuals. Article 2. Destroying physical infrastructure, intentionally damaging or misusing technical equipment used for recording audio or video with sound.

4. Article 3. Persons who commit acts as stipulated in Clause 1 and Clause 2 of this Article shall be held accountable according to the law depending on the nature and severity of the violation. at detention facilities, offices of the Investigative Agency, Public Prosecutor's Office, and agencies assigned to conduct certain investigative activities, specialized rooms must be provided with sufficient area, lighting, safety, and equipped with audio recording or video recording devices with sound quality that meets standards for sound and image.

5. Professional staff are officers within the establishment of the Investigative Agency, Public Prosecutor's Office, and agencies assigned to conduct certain investigative activities, possessing technical expertise and proficiently using audio recording or video recording devices with sound, responsible for managing the system of audio recording or video recording devices with sound, preserving, and storing the results of audio or video recordings with sound data.

2. Industrial emission testing must ensure timeliness, accuracy, objectivity, compliance with procedures, and adherence to legal provisions.

1. Audio recording or video recording with sound must ensure the objectivity, transparency, and integrity of the audio or video recording with sound data. The audio or video recording with sound data is part of the criminal case file used, preserved, and stored according to the provisions of the law on the use, preservation, and storage of criminal case files.

2. Audio recording or video recording with sound; the use, preservation, storage, and results of audio or video recording with sound during the investigation, prosecution, and trial must comply with the provisions of the Criminal Procedure Code and follow the procedures and guidelines set forth in this Joint Circular.

3. Ensuring respect for the rights and legitimate interests of participants in criminal proceedings as stipulated in the Criminal Procedure Code.

Article 4. Prohibited Conduct

1. Unauthorized modification, cutting, splicing, forging, illegal destruction, distortion, damage, loss of audio or video recording with sound data; unauthorized copying, dissemination, exploitation, and use of the results of audio or video recording with sound outside the purposes specified in Article 7 and Article 8 of this Joint Circular; leaking or divulging case information or infringing upon the rights, legitimate interests, reputation, and honor of agencies, organizations, or individuals.

2. Destruction of physical infrastructure, intentional damage, or improper use of audio recording or video recording devices with sound.

3. Persons who commit acts as prescribed in Clause 1 and Clause 2 of this Article shall be held accountable according to the provisions of the law depending on the nature and degree of violation.

Chapter II

SPECIFIC PROVISIONS

Article 5. Procedure and formalities for recording audio or video with sound during interrogations of suspects or taking statements from legal representatives of commercial entities committing crimes

1. The investigator conducting the interrogation of a suspect or taking statements from the legal representative of a commercial entity committing a crime decides to choose the method of audio recording or video recording with sound.

2. The procedure and formalities for recording audio or video with sound during interrogations of suspects or taking statements from the legal representative of a commercial entity committing a crime at detention facilities, investigative agencies, prosecution offices, or other agencies assigned to conduct certain investigative activities shall be as follows:

a) The investigator conducting the interrogation or taking statements from the legal representative of a commercial entity committing a crime must register with the specialized staff at the detention facility or at the headquarters of the investigative agency, prosecution office, or other agency assigned to conduct certain investigative activities to arrange a dedicated room and receive guidance on the procedures and technical operations for audio and video recording with sound. Afterward, the investigator conducting the interrogation or taking statements from the legal representative of a commercial entity committing a crime must follow the legal procedures to extract the detained suspect or summon the suspect who is under house arrest (or the legal representative of the commercial entity committing a crime) according to the law (the suspect under house arrest may not be brought to interrogation at the detention facility except in cases of confrontation with a detained suspect). Once the workroom is arranged, the investigator conducting the interrogation or taking statements from the legal representative of a commercial entity committing a crime goes to the workroom, informs the suspect or the legal representative of the commercial entity committing a crime about the audio or video recording with sound, and this notification must be recorded in the minutes before proceeding with the work;

b) Audio or video recording with sound begins when the investigator conducting the interrogation or taking statements from the legal representative of a commercial entity committing a crime presses the start button, and the investigator conducting the interrogation of a suspect or taking statements from the legal representative of a commercial entity committing a crime must read out the start time and record it clearly in the minutes. During the interrogation or statement-taking process, the audio or video recording with sound may be paused by pressing the pause button. Before pausing, the investigator conducting the interrogation or statement-taking must clearly read out the pause time and reason, and when resuming work, they must also clearly read out the resumption time, all of which must be recorded clearly in the minutes. At the end of the session, the investigator conducting the interrogation or statement-taking informs the suspect or the legal representative of the commercial entity committing a crime that the interrogation or statement-taking has ended and presses the end button, with the end time recorded clearly in the minutes;

c) In cases where audio or video recording equipment with sound cannot be arranged, the interrogation or statement-taking from the legal representative of a commercial entity committing a crime cannot proceed. If there is a technical malfunction with the audio or video recording equipment with sound during the interrogation or statement-taking, the session must be immediately stopped. This must be clearly recorded in the minutes, with confirmation from the specialized staff.

3. In cases where the interrogation of a suspect or taking statements from the legal representative of a commercial entity committing a crime takes place at another location and is recorded with audio or video with sound upon request of the suspect, the legal representative of the commercial entity committing a crime, or the competent authority conducting criminal proceedings, the procedure and formalities for audio or video recording with sound shall be carried out in accordance with point b, Clause 2 of this Article.

In cases where audio or video recording equipment with sound cannot be arranged, the investigator conducting the interrogation or statement-taking must inform the suspect or the legal representative of the commercial entity committing a crime, and if they agree, the work may proceed; if they disagree, the interrogation or statement-taking cannot take place. If there is a technical malfunction with the audio or video recording equipment with sound during the interrogation or statement-taking, the investigator conducting the interrogation or statement-taking must inform the suspect or the legal representative of the commercial entity committing a crime, and if they agree to continue working, the interrogation or statement-taking will still proceed. If the suspect or the legal representative of the commercial entity committing a crime does not agree to continue working, the session must be stopped. This must be clearly recorded in the minutes, with confirmation from the specialized staff.

4. The preparation of minutes for the interrogation of suspects and the taking of statements from the legal representative of a commercial entity committing a crime shall be carried out in accordance with the provisions of the Criminal Procedure Code.

Article 6. Preservation and storage of audio recording or video recording with sound of interrogating a suspect or taking statements from the legal representative of a commercial entity committing a crime.

1. The server system located at the Investigation Agency, Prosecutor's Office, or agency assigned to conduct certain investigative activities shall be managed and preserved by specialized staff appointed by these agencies; the server system located at detention facilities shall be managed and preserved by specialized staff of the Investigation Agency authorized by the competent Investigation Agency. For mobile audio recording or video recording with sound devices, the unit handling and resolving the case shall be responsible for managing and preserving them.

2. Audio recordings or video recordings with sound of interrogating a suspect or taking statements from the legal representative of a commercial entity committing a crime must be fully preserved and stored on the server system to ensure safety and confidentiality.

Upon completion of the criminal investigation phase or prosecution phase, specialized staff shall copy the data of audio recordings or video recordings with sound onto external data storage devices and hand over to the staff who conducted the interrogation or took statements from the legal representative of the commercial entity committing a crime. Staff conducting interrogations or taking statements from the legal representative of the commercial entity committing a crime shall hand over the external data storage devices along with the case file serving the investigation, prosecution, and trial.

3. In cases where the case or matter is transferred for investigation and handling according to jurisdiction, the transferring agency shall be responsible for transferring the external data storage devices containing audio or video recordings with sound collected, together with the case file or matter, to the receiving agency for continued exploitation, use, and preservation and storage in accordance with this Circular. When returning the case file for supplementary investigation or re-investigation, the external data storage devices containing audio or video recordings with sound shall also be returned and handed over together with the criminal case file.

4. The handover of data of audio recordings or video recordings with sound of interrogating a suspect or taking statements from the legal representative of a commercial entity committing a crime must be recorded in a protocol.

Article 7. Use of audio recording or video recording with sound of interrogating a suspect or taking statements from the legal representative of a commercial entity committing a crime during the investigation and prosecution phases.

1. During the investigation phase: Heads and Deputy Heads of the Investigation Agency; Chiefs and Deputy Chiefs of agencies assigned to conduct certain investigative activities; Investigators and Investigative Officers; Prosecutors and Assistant Prosecutors may use the results of audio recordings or video recordings with sound to serve the investigation work when the suspect or the legal representative of the commercial entity committing a crime changes their statement compared to previous statements; use and evaluate evidence to clarify the criminal acts of the suspect, the commercial entity, and other accomplices (if any), ensuring that the case resolution is objective and comprehensive. At the same time, check the compliance with the law by Investigators, Investigative Officers, Prosecutors, and Assistant Prosecutors during the interrogation or taking statements from the legal representative of the commercial entity committing a crime.

2. During the prosecution phase: Heads and Deputy Heads of the Prosecutor's Office, Prosecutors may use the results of audio recordings or video recordings with sound to serve prosecution and establish objectivity in the interrogation of suspects or taking statements from the legal representative of the commercial entity committing a crime by the Investigation Agency or agencies assigned to conduct certain investigative activities; use the results of audio or video recordings with sound of interrogating a suspect or taking statements from the legal representative of the commercial entity committing a crime to evaluate evidence to clarify the criminal acts of the suspect and accomplices. Check and detect signs of wrongful conviction or violation of the law during the investigation phase.

3. The results of audio recordings or video recordings with sound are also used during the process of checking compliance with the law in investigative, prosecution, and trial activities; resolving complaints and denunciations; reviewing criminal cases.

4. Those authorized under Clause 1 and Clause 2 of this Article may copy the results of audio recordings or video recordings with sound from the server system to serve investigative and prosecutorial work.

Article 8. Use of recorded audio or video with sound of interrogating a suspect or taking statements from the legal representative of a commercial entity committing a crime during the trial phase

1. During the preparation for the trial, the presiding judge must proactively examine and study evidence and documents contained in the case file. In cases where there are recorded audio or video with sound that cannot be heard or viewed, it is necessary to request the Prosecutor's Office to copy and provide the court with the recorded audio or video with sound data.

2. The Trial Council decides on hearing or viewing the contents of recorded audio or video with sound at the trial session in the following situations:

a) Checking evidence, documents, and objects related to the case that the Trial Council deems necessary to check publicly at the trial session;

b) The defendant alleges torture or cruel treatment during the interrogation of the suspect or taking statements from the legal representative of a commercial entity committing a crime, or the defendant or the legal representative of a commercial entity committing a crime changes their statement;

c) When requested by the Prosecutor, Investigator, and other persons conducting litigation proceedings.

3. In cases stipulated in Clause 2 of this Article, the Court needs to prepare plans for hearing or viewing the contents of recorded audio or video with sound at the trial session.

Article 9. Implementation of recording audio or video with sound in other cases

1. When taking statements from witnesses, victims, parties; cross-examination; receiving reports of criminal offenses and recommendations for prosecution, recording audio or video with sound may be conducted according to Articles 146, 187, 188, and 189 of the Criminal Procedure Code. The procedures and formalities for implementing recording audio or video with sound; using, preserving, and storing recorded audio or video with sound data shall be carried out as prescribed for interrogating suspects or taking statements from the legal representative of a commercial entity committing a crime under this Joint Circular. In cases where technical issues occur during the recording of a working session, the work continues normally and the reason is noted in the minutes.

2. When conducting cross-examination involving the participation of a suspect or the legal representative of a commercial entity committing a crime at detention facilities, investigative agency offices, the Prosecutor's Office, or agencies assigned to conduct certain investigative activities, recording audio or video with sound must be conducted. The procedures and formalities are carried out according to points b and c of Clause 2 of Article 5 of this Joint Circular.

Chapter III

IMPLEMENTATION PROVISIONS

Article 10. Effective Date

This Joint Circular takes effect from March 18, 2018.

Article 11. Implementation Organization

1. The Ministry of Public Security, the Supreme People's Procuracy, the Supreme People's Court, and the Ministry of National Defense within their respective functions, tasks, and authorities are responsible for organizing the implementation of this Joint Circular.

2. Funding to ensure the implementation of recording audio or video with sound; using, preserving, and storing results of recorded audio or video with sound is implemented according to State regulations.

3. The Ministry of Public Security will coordinate with relevant Ministries and sectors to decide specifically on places with conditions to implement recording audio or video with sound during investigation, prosecution, and trial. By no later than January 1, 2020, the implementation of recording audio or video with sound during investigation, prosecution, and trial nationwide will be unified.

4. During the implementation of this Joint Circular, if there are difficulties, they should be reported to the Ministry of Public Security, the Supreme People's Procuracy, the Supreme People's Court, and the Ministry of National Defense for timely guidance.