Circular No. 126/2020/TT-BCA on the implementation of democracy in the investigation activities of the People's Public Security Force

CIRCULAR
Regulations on the implementation of democracy in investigative activities
of the People's Public Security Forces

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

Pursuant to the Law on Organization of Criminal Investigation Agencies dated November 26, 2015;

Pursuant to the Law on People's Police dated November 20, 2018;

Pursuant to Resolution No. 55/NQ-UBTVQH10 dated August 30, 1998 of the Standing Committee of the National Assembly on the issuance of the Code of Conduct for Implementing Democracy in the Activities of State Agencies;

Pursuant to Decree No. 04/2015/NĐ-CP dated January 9, 2015 of the Government on implementing democracy in the activities of administrative state agencies and public service units;

Pursuant to Decree No. 01/2018/NĐ-CP dated August 6, 2018 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Public Security;

At the proposal of the Director of the Investigation Department under the Ministry of Public Security;

The Minister of Public Security issues this Circular to regulate the implementation of democracy in the investigative activities of the People's Public Security forces,

PART I
GENERAL PROVISIONS

Article 1. Scope of Regulation and Applicability

1. This Circular stipulates the purpose, principles, and contents of implementing democracy in the investigative activities of investigation agencies at all levels within the People's Public Security forces; agencies of the People's Public Security forces assigned tasks to conduct certain investigative activities; police stations, communal police stations, town police stations, police posts, police stations.

2. This Circular applies to Heads, Deputy Heads, Investigators, and Investigation Officers of investigation agencies; heads, deputy heads, and investigation officers of agencies of the People's Public Security forces assigned tasks to conduct certain investigative activities; police stations, communal police stations, town police stations, police posts, police stations; participants in criminal proceedings, organizations, individuals with rights and obligations related to investigative activities.

Article 2. Purpose of Implementing Democracy in Investigative Activities

Implementing democracy in investigative activities of the People's Public Security forces aims to promote the people's right to self-governance, mobilize the people to actively participate in combating crime; create favorable conditions and ensure full exercise of the rights and obligations of agencies, organizations, individuals, and participants in criminal proceedings in receiving and handling information about crimes and conducting investigative activities, processing crimes according to the law; contribute to building investigation agencies, agencies of the People's Public Security forces assigned tasks to conduct certain investigative activities, police stations, communal police stations, town police stations, police posts, police stations clean, strong, and effective operations; prevent and combat manifestations of bureaucracy, arbitrariness, corruption, harassment, inconvenience, and violations of human rights, legitimate rights and interests of agencies, organizations, and individuals.

Article 3. Principles of Implementing Democracy in Investigative Activities

1. Adhere to the Constitution and laws in criminal investigative activities. When conducting criminal proceedings, within the scope of their duties and powers, agencies and persons authorized to conduct criminal proceedings must respect and protect human rights, legitimate rights and interests of agencies, organizations, and individuals.

2. Ensure democracy alongside order, discipline, and regulations of the People's Public Security forces, without infringing upon the activities of judicial organs.

3. Strictly prohibit the abuse of democracy to infringe upon the interests of the State, legitimate rights and interests of agencies, organizations, and individuals; obstruct the criminal investigative activities of investigation agencies, agencies of the People's Public Security forces assigned tasks to conduct certain investigative activities as prescribed by law.

Article 4. Relationship between Heads and Deputy Heads of Investigation Agencies; between Investigation Agencies at different levels and between Investigation Agencies and agencies of the People's Public Security forces assigned tasks to conduct certain investigative activities in ensuring the implementation of democracy in investigative activities

1. The relationship between Heads and Deputy Heads of Investigation Agencies is a division of labor based on the law in investigative and crime prosecution activities, based on their respective duties, powers, and responsibilities. When there are differing opinions between the Head and Deputy Heads of Investigation Agencies, the Head decides and bears responsibility under the law; Deputy Heads have the responsibility to implement the Head's decision but have the right to reserve their opinion and report or propose in writing to higher authorities.

2. The relationship between units under the same level Investigation Agency is a cooperative relationship in investigative and crime prosecution activities, based on the functions, duties, powers, and responsibilities of each unit.

3. The relationship between upper-level Investigation Agencies and lower-level Investigation Agencies is a division of labor and cooperation relationship based on the principle that upper-level Investigation Agencies guide and direct investigative business and monitor compliance with the law and investigative business in the work of receiving and handling information about crimes and investigative and crime prosecution work for lower-level Investigation Agencies.

4. The relationship between Investigation Agencies and agencies of the People's Public Security forces assigned tasks to conduct certain investigative activities at the same level is a division of responsibility and cooperative relationship in investigative activities based on the functions, duties, powers, and responsibilities of each unit. Investigation Agencies have the responsibility to guide and direct investigative business for agencies of the People's Public Security forces assigned tasks to conduct certain investigative activities according to the Criminal Procedure Code 2015 and the Law on Organization of Criminal Investigation Agencies 2015.

Chapter II
SPECIFIC PROVISIONS

Section 1
RESPONSIBILITIES OF INVESTIGATION AGENCIES

Article 5. Ensuring democracy in receiving and handling information on criminal offenses and complaints and reports in criminal proceedings

1. Investigative agencies must organize the full reception and handling of information on criminal offenses and complaints and reports in criminal proceedings; notify the individuals, agencies, organizations that have reported such information, complaints, or reports about the receipt and results of handling; must apply necessary measures to protect the informants of criminal offenses, witnesses, victims, their relatives, and complainants according to the provisions of the Criminal Procedure Code 2015 and related legal normative documents.

2. The reception, classification, and handling of information on criminal offenses and complaints and reports in criminal proceedings must be within the jurisdiction, follow the prescribed procedures, formalities, and deadlines under the law.

3. Investigative agencies must arrange convenient locations and assign criminal duty officers to work 24/24 hours daily to receive and classify information on criminal offenses, complaint and report documents in criminal proceedings from individuals, agencies, organizations; requests for legal representation from representatives or relatives of persons held in urgent cases, arrested persons, persons under temporary detention, defendants currently detained; registration files for representation, registration files for protecting the legitimate rights and interests of victims, parties, persons reported, persons recommended for prosecution, and immediately transfer them to competent authorities for resolution.

Criminal duty officers must strictly adhere to the regulations of the People's Public Security Force with respect, politeness, appropriateness, listening attentively, and sincerely addressing reasonable requests; they must not evade responsibility, shirk duties, nor exhibit authoritarian attitudes, favoritism, or harassment towards agencies, organizations, or individuals.

4. At the criminal duty station, there must be suggestion boxes to receive citizens' opinions; suggestion boxes should be placed in easily observable locations. Criminal duty officers must regularly check the suggestion boxes to promptly report to competent authorities for consideration and resolution.

Article 6. Matters that Heads, Deputy Heads of Investigative Agencies, Investigators, and Investigative Officers may not perform

1. Investigators and Investigative Officers may not perform the matters stipulated in Article 54 of the Law on Organization of Investigative Agencies 2015.

2. During the performance of their duties, Investigators and Investigative Officers may not perform the following actions:

a) Receiving and handling information on criminal offenses and complaint and report documents contrary to regulations or without being assigned by the Head or Deputy Head of the Investigative Agency; arbitrarily conducting investigative activities not in accordance with the approved investigation plan by the Head or Deputy Head of the Investigative Agency;

b) Adding, deleting, modifying, substituting, destroying, or damaging case materials, objects, evidence of the case or incident, or using other methods to distort the content of the case or incident;

c) Meeting accused persons, relatives of accused persons, parties, or other participants in litigation outside police agency premises, except when required by professional needs and with the consent of the Head or Deputy Head of the Investigative Agency;

d) Consuming food and drink, accepting money, property, or other benefits from accused persons, relatives of accused persons, parties, or other participants in litigation;

đ) Exploiting the guise of work to meet, seek favors, harass, or solicit benefits in any form from accused persons, relatives of accused persons, parties, other participants in litigation, and related agencies or organizations;

e) Coercing confessions, feeding information, or using torture in any form;

g) Disclosing secrets, information, or case materials of ongoing investigations or verifications without permission to be made public to those without responsibility; if information needs to be provided, it must be reported and approved in writing by the Head or Deputy Head of the Investigative Agency.

h) Allowing persons under temporary detention or arrest to use telephones or other communication means to communicate or exchange with others (including both inside and outside the Detention Center, Temporary Holding Facility), except in special cases to serve investigation requirements and with the written consent of the Head or Deputy Head of the Investigative Agency handling the case or incident;

i) Causing inconvenience to make participants in litigation or citizens wait or travel multiple times;

3. Heads and Deputy Heads of Investigative Agencies may not perform the matters stipulated at points b, d, đ, e, and i of Clause 2 of this Article.

Article 7. Responsibility for Ensuring Democratic Implementation in Investigative Activities of Heads, Deputy Heads of Investigation Agencies, Investigators, and Investigation Officers

1. When conducting investigative activities, Heads, Deputy Heads of Investigation Agencies, Investigators, and Investigation Officers assigned to conduct investigations must perform their duties and responsibilities within the scope of authority as prescribed by law; they must inform participants in litigation of their rights and obligations and ensure that they can exercise their rights as prescribed by law; such explanations must be recorded in the minutes.

2. In cases of detaining persons in emergency situations or arresting persons, those issuing orders to detain or arrest must notify the family of the detained or arrested person, the local authorities of the commune, ward, town where the person resides, or the organization or institution where the person works or studies; if the detained or arrested person is a foreign citizen, the Vietnamese diplomatic agency must be notified to inform the diplomatic representative of the country of which the detained or arrested person is a citizen. If notification impedes the pursuit of other suspects or hinders investigative activities, it may be temporarily suspended, but once the impediment ceases, those issuing orders to detain or arrest, and the Investigation Agency receiving the detained or arrested person must immediately notify.

3. In all cases, when conducting searches, seizures, temporary detentions, attachments, freezing of accounts, processing of documents, objects, evidence, the Investigation Agency must comply with the provisions of the law. Investigators have the responsibility to explain to the subjects of searches, seizures, temporary detentions, attachments, account freezes, owners, or lawful managers involved in the case about the legal provisions governing the ongoing activities; such explanations must be recorded in the minutes.

4. Heads, Deputy Heads, Investigators, and Investigation Officers of the Investigation Agency are responsible for ensuring the right to defense of persons detained in emergency situations and accused persons; ensuring the rights and legitimate interests of victims, parties, persons reported, and persons recommended for prosecution; implementing friendly procedures and processes for accused persons, victims, and witnesses under 18 years old according to the provisions of the law.

5. Directives from the Head or Deputy Head of the Investigation Agency regarding investigative actions or investigative viewpoints on criminal offenses must be expressed in writing. In cases of direct oral directives, Investigators must record the specific and clear content of such directives in writing and obtain confirmation from the Head or Deputy Head of the Investigation Agency who issued the directive, and include it in the case file (AK) or incident file (AĐ).

If Investigators disagree with the directive of the Deputy Head of the Investigation Agency, they have the right to continue proposing or re-recommending; if the Deputy Head of the Investigation Agency does not agree with the proposed or recommended opinion, Investigators still must strictly comply, but have the right to retain their own opinions, while recommending their opinions to the Head of the Investigation Agency and must bear responsibility for the content of their recommendations. If the Head of the Investigation Agency agrees, then implement according to the directive of the Head of the Investigation Agency.

If Investigators disagree with the directive of the Head of the Investigation Agency, they have the right to continue proposing or re-recommending; if the Head of the Investigation Agency does not agree with the proposed or recommended opinion, Investigators still must strictly comply, but have the right to retain their own opinions, while recommending their opinions to the immediate superior of the Head of the Investigation Agency and must bear responsibility for the content of their recommendations.

Section 2
RESPONSIBILITIES OF THE ORGANIZATIONS OF THE PEOPLE'S PUBLIC SECURITYASSIGNED TO PERFORM SOME INVESTIGATIVE ACTIVITIES, COMMUNE POLICE STATION, WARD POLICE STATION, TOWN POLICE STATION,
POLICE STATION, POLICE OUTPOST

Article 8. Ensuring Democratic Implementation in Receiving and Handling Information on Criminal Offenses and Complaints and Allegations in Criminal Proceedings

Clause 1. The agencies of the People's Public Security assigned to conduct certain investigative activities must arrange staff to be on duty for receiving reports and information about criminal offenses and complaints and allegations in criminal proceedings.

Clause 2. When receiving and handling information on criminal offenses (including when self-discovering signs of criminal offenses), if there is evidence to determine that the report or information about the criminal offense does not fall within the jurisdiction of their agency, then within 24 hours from the time such evidence is determined, the agencies of the People's Public Security assigned to conduct certain investigative activities have the responsibility to immediately transfer it to the competent investigative agency according to the provisions of the law. In cases where the report or information about the criminal offense falls within the jurisdiction of their own agency for verification, prosecution, and investigation, they shall issue a Decision assigning the resolution or a Decision initiating a criminal case, and at the same time, notify the results of receiving and handling to the agencies, organizations, or individuals who reported or alleged the crime according to the provisions of the law.

Clause 3. Village, Ward, Town Police Stations, Police Posts have the responsibility to receive reports and information about criminal offenses. In urgent and critical situations requiring immediate prevention of crimes, collection of evidence, and protection of the scene, Village, Ward, Town Police Stations, Police Posts must immediately report to the competent investigative agency through the fastest communication method and promptly implement measures according to the provisions of the law.

Article 9. Matters That Heads, Deputy Heads, and Investigators of Agencies of the People's Public Security Assigned to Conduct Certain Investigative Activities Are Not Allowed To Do

Clause 1. Heads, Deputy Heads, and Investigators assigned to conduct investigations are not allowed to perform the matters prescribed in Article 54 of the Law on Organization of Criminal Investigation Agencies 2015.

Clause 2. During the performance of their duties, investigators are not allowed to perform the matters prescribed at points a, b, c, d, đ, e, g, i Clause 2 Article 6; heads and deputy heads are not allowed to perform the matters prescribed at points b, d, đ, e, and i Clause 2 of this Circular.

Article 10. Responsibilities for Ensuring Democratic Implementation in Investigative Activities of Heads, Deputy Heads, and Investigators of Agencies of the People's Public Security Assigned to Conduct Certain Investigative Activities

Clause 1. When conducting criminal proceedings, heads, deputy heads, and investigators of agencies of the People's Public Security assigned to conduct certain investigative activities must strictly comply with the following regulations:

Point a) Implementing their authority and responsibilities as assigned according to the provisions of the law; they must explain to participants in the proceedings their rights and obligations and ensure that they can exercise their rights according to the provisions of the law; the explanation must be recorded in the minutes;

Point b) Directives of heads and deputy heads regarding procedural actions or investigative viewpoints and handling of criminal offenses must be expressed in writing. In cases of direct oral directives, investigators must record the specific and clear content of these directives in writing and obtain confirmation from the head or deputy head who gave the directive, and include it in the case file (AK), incident file (AĐ).

If investigators disagree with the directive of the deputy head, they have the right to continue proposing or recommending again; if the deputy head disagrees with the proposed or recommended directive, the investigator still has to strictly comply, but has the right to reserve their opinion, while recommending to the head about their opinion and must bear responsibility for the content of the recommendation. If the head agrees, it will be implemented according to the directive of the head.

If they disagree with the directive of the head, the investigator has the right to continue proposing or recommending again; if the head disagrees with the proposed or recommended directive, the investigator still has to strictly comply, but has the right to reserve their opinion, while recommending to the immediate superior of the head and must bear responsibility for the content of the recommendation.

Clause 2. In all cases, when conducting searches, seizures, temporary detentions, and preservation of documents, objects, and evidence related to incidents and cases, they must be carried out according to the provisions of the law. Investigators have the responsibility to explain to the subjects of search, seizure, and temporary detention about these provisions; the explanation must be recorded in the minutes.

Article 11. Matters that police officers of village, ward, town police stations, police posts, and police stations are not allowed to perform when receiving reports and information about criminal offenses

1. Matters prohibited for public officials or civil servants, or people's armed forces officers under the law;

2. Accepting petitions and letters and handling citizens' affairs at their private residences or any place outside the police office premises, except in urgent cases where citizens report crimes; and immediately reporting such incidents to their direct supervisors;

3. Harassing or seeking benefits from participants in judicial proceedings, their relatives, and related organizations, institutions, or individuals in any form;

4. Providing illegal advice to accused persons, relatives of accused persons, parties involved, or other participants in judicial proceedings;

5. Illegally interfering with the resolution of cases or matters or using their influence to affect those responsible for resolving cases or matters;

6. Removing case files and documents out of the office unless it is for assigned tasks or with the consent of authorized persons.

Section 3
ENSURING RIGHTS AND OBLIGATIONS OF PARTICIPANTS IN JUDICIAL PROCEEDINGS, ORGANIZATIONS, AND INDIVIDUALS

Article 12. Matters that organizations, institutions, and individuals have the right and obligation to participate in when the Investigation Agency or the People's Public Security Agency is tasked with conducting certain investigative activities

1. Discovering, reporting, and providing information and materials related to cases and matters being resolved by the Investigation Agency or the People's Public Security Agency tasked with conducting certain investigative activities;

2. Arresting suspects caught in the act or those being sought according to the law;

3. Identifying causes and conditions leading to criminal offenses and proposing preventive and corrective measures;

4. Contributing opinions to enhance the effectiveness of the Investigation Agency and the People's Public Security Agency tasked with conducting certain investigative activities;

5. Immediately informing the Investigation Agency or the People's Public Security Agency tasked with conducting certain investigative activities about criminal acts occurring within their agencies or areas of management; having the right to propose and submit relevant materials to the Investigation Agency for consideration of prosecution against perpetrators; and fulfilling requirements and creating conditions for the Investigation Agency or the People's Public Security Agency tasked with conducting certain investigative activities to carry out their investigative tasks;

6. Organizations, institutions, and individuals must strictly comply with decisions and requests of the Investigation Agency or the People's Public Security Agency tasked with conducting certain investigative activities regarding the resolution of sources of information on criminal offenses, criminal investigations, and complaints and accusations in criminal proceedings.

Article 13. Ensuring democratic procedures in the resolution of complaints and accusations in criminal proceedings

1. Organizations, institutions, and individuals have the right to complain and accuse the heads, deputy heads, investigators, and investigation officers of the Investigation Agency; and the heads, deputy heads, and investigation officers of the People's Public Security Agency tasked with conducting certain investigative activities, as stipulated by law;

2. The head of the Investigation Agency and the head of the People's Public Security Agency tasked with conducting certain investigative activities within their scope of duties and authority are responsible for promptly and legally resolving complaints and accusations, sending written resolutions to the complainants and accusers; strictly dealing with violators; applying protective measures when requested; ensuring strict compliance with the decision on complaint and accusation resolution and bearing legal responsibility for their resolution decisions; if causing damage, they must compensate for losses and restitution as prescribed by law.

Article 14. Compensation Resolution in Investigation Activities

In all cases where citizens are indicted, arrested, detained, temporarily detained, temporarily imprisoned, searched, seized, temporarily held items, documents, assets confiscated, bank accounts frozen contrary to the law, they must be restored their reputation, rights, and legitimate interests, as well as compensated for material and spiritual damages according to the provisions of the Law on State Liability for Compensation.

Heads, Deputy Heads, Investigators, Investigation Officers of the Investigation Agency; heads, deputy heads, investigation officers of the agencies of the People's Public Security assigned tasks to conduct certain investigation activities shall make decisions, commit unlawful investigative acts and be subject to examination and handling according to the provisions of the law.

Chapter III
IMPLEMENTING PROVISIONS

Article 15. Effective Date

This Circular takes effect from January 15, 2021.

This Circular replaces the Regulation on Implementing Democracy in Investigation Activities of the People's Public Security Forces promulgated together with Decision No. 729/1998/QĐ-BCA(V19) dated November 9, 1998 of the Minister of Public Security.

In case the regulatory legal documents cited in this Circular are amended, supplemented, or replaced by new documents, they shall be applied according to those new documents.

Article 16. Responsibility for Implementation

1. Heads of units under the Ministry's agencies, Directors of Public Security of provinces and centrally governed cities are responsible for organizing the implementation of this Circular.

2. The Office of the Criminal Police Investigation Department of the Ministry of Public Security, the Investigation Security Bureau of the Ministry of Public Security, the Legal System and Administrative Reform Bureau have the responsibility to advise and assist the Ministry in organizing inspections, urging, and guiding the implementation of this Circular.

3. During the implementation process, if there are difficulties, public security units and localities shall report to the Ministry of Public Security (through the Office of the Criminal Police Investigation Department of the Ministry of Public Security and the Investigation Security Bureau of the Ministry of Public Security) for guidance and resolution./.