Decree No. 127/2017/ND-CP detailing the procedures for sealing and unsealing evidence

DECREE

Detailed regulations on sealing and unsealing evidence

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Pursuant to the Law on Government Organization dated June 19, 2015;

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

Pursuant to the Civil Enforcement Code dated November 14, 2008 and the Law Amending and Supplementing Certain Provisions of the Civil Enforcement Code dated November 25, 2014;

Pursuant to Resolution No. 41/2017/QH14 dated June 20, 2017 of the National Assembly on the implementation of the Penal Code No. 100/2015/QH13 which has been amended and supplemented by Law No. 12/2017/QH14 and on the effectiveness of the Criminal Procedure Code No. 101/2015/QH13, the Law on Organizational Structure of Criminal Investigation Agencies No. 99/2015/QH13, and the Law on Temporary Detention and Temporary Imprisonment No. 94/2015/QH13;

The Government promulgates this Decree on regulations regarding entry, exit, and residence policies for foreigners at the International Financial Center in Vietnam.

The Government promulgates this Decree detailing the regulations on sealing and unsealing evidence.

PART I
GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree stipulates concepts, principles; procedures and formalities; tasks, powers, and responsibilities for implementing the sealing and unsealing of various types of evidence in investigative, prosecution, trial, and enforcement activities.

Article 2. Applicability

This Decree applies to agencies, persons with jurisdiction to conduct criminal proceedings, participants in criminal proceedings, and agencies, organizations, and individuals related to the sealing and unsealing of evidence.

Article 3. Explanation of Terms

In this Decree, the following terms are understood as follows:

1. Sealing evidence is the act of ensuring the integrity of evidence by:

a) Placing the evidence in a state of secure protection, including packaging, boxing, placing in boxes, bottles, jars, and other forms (called packaging and sealing) and affixing a seal over parts that can be opened to remove, change the evidence, or affect its integrity;

b) For evidence with large volume or size or unable to be moved, affixing a seal on each part or on important components of the evidence;

c) For certain types of evidence, using locks, wire seals, steel wires, and other forms to enclose the evidence before affixing a seal.

2. Unsealing evidence is removing the seal and opening the packaged or sealed evidence for evidence that has been packaged or sealed; removing the seal for evidence that has not been packaged or sealed or cannot be moved.

3. A seal is a durable paper on which the name of the agency organizing the sealing of evidence, the names, signatures, or fingerprints (with annotations of the names of fingerprinters) of those organizing and implementing the sealing of evidence, participants in the sealing of evidence, the time of sealing the evidence, and the stamp of the competent authority are recorded.

4. The person organizing the implementation of sealing and unsealing evidence is the person assigned by the agency or person with jurisdiction to conduct criminal proceedings or enforcement.

Article 4. Principles of Sealing and Unsealing Evidence

1. Sealing and unsealing of evidence shall only be carried out when required to serve investigative, prosecutorial, trial, or enforcement activities.

2. Ensuring compliance with the procedures, formalities, forms, and authorities prescribed by law and this Decree.

3. Ensuring promptness and timeliness; respecting the interests of the State and the legitimate rights and interests of agencies, organizations, and individuals.

4. Ensuring the integrity of the evidence.

Article 5. Sealed evidence and unsealed evidence

All evidence collected must be sealed, except for the following cases:

1. Evidence that is living animals or plants.

2. Evidence that is documents included in the case file.

3. Evidence that is prone to damage or difficult to preserve.

4. Other evidence that the competent authority considers unnecessary to seal.

Article 6. Persons organizing the sealing and unsealing of evidence

1. Heads and Deputy Heads of investigation agencies, investigators.

2. Chiefs and deputies, investigating officers of agencies assigned tasks to conduct certain investigative activities.

3. Competent authorities handling cases at the prosecution, trial, and enforcement stages according to the law.

Article 7. Persons participating in the sealing and unsealing of evidence

1. Persons participating in the sealing of evidence:

a) Witnesses or representatives of the commune, ward, town where the sealing of evidence takes place;

b) Persons related; representatives of organizations with rights, obligations, and responsibilities related to the sealed evidence (if any);

c) Defense counsel (if any).

2. Persons participating in the unsealing of evidence:

a) Persons related; representatives of organizations with rights, obligations, and responsibilities related to the sealed evidence (if any);

b) Defense counsel (if deemed necessary);

c) Representatives of the commune, ward, town where the unsealing of evidence takes place (if necessary);

d) Representatives of the agency managing the sealed evidence when it is stored at specialized agencies.

Chapter II
SEALING OF EVIDENCE

Article 8. Procedures and formalities for sealing evidence

An item of evidence may be sealed and unsealed multiple times. After each unsealing, when the use of the evidence ends, it must be resealed according to the procedures and formalities stipulated in this Decree and returned to the storage location as prescribed by law. The sealing of evidence shall be carried out as follows:

1. Preparing to seal evidence

a) The person organizing the sealing of evidence invites or summons persons participating in the sealing of evidence;

In cases where the person related or representative of an organization with rights, obligations, and responsibilities related to the sealed evidence loses their capacity to act under the law or has died, the person organizing the sealing of evidence invites relatives or legal representatives of such persons to participate in the sealing of evidence;

If the person with rights, obligations, and responsibilities related to the sealed evidence is a suspect or defendant who is temporarily detained or imprisoned, when sealing the evidence, the person organizing the sealing of evidence invites relatives of such persons or their defense counsel (if any) or representatives of the commune, ward, town where the sealing of evidence takes place to witness.

For evidence requiring special preservation conditions such as toxic substances, radioactive materials, explosives, flammable materials, bacteria, viruses, harmful parasites, blood samples, tissue samples, human body parts, and other human body samples or similar evidence, the participation of specialized agencies is required when sealing the evidence. In cases where specialized agencies have not arrived on time but it is deemed necessary to seal immediately to ensure the integrity of the evidence, sealing can still be carried out but safety must be ensured.

For evidence that cannot be sealed at the scene, it must be sealed in parts or important sections, then transported to a location determined by the competent authority handling the case to proceed with sealing according to the procedures and formalities stipulated in this Decree.

b) Prepare necessary conditions for sealing evidence.

The person in charge of organizing the sealing of evidence must direct the preparation of necessary tools and means to serve the sealing process, affixing seals, preserving, and transporting evidence.

2. Implementing the sealing of evidence

a) Inspect the evidence to be sealed and describe its specific, complete, and accurate condition in the sealing record;

b) Package or securely close the evidence to be sealed (in cases where packaging or secure closure is possible);

c) Those organizing and participating in the sealing of evidence sign and clearly write their full name or mark their signature (with a note of their name for those marking signatures) on the seal paper (written or marked clearly with indelible ink);

d) Stamp the seal paper with the seal of the agency or organization conducting the sealing of evidence or the seal of the commune, ward, town where the sealing takes place;

e) Affix the seal paper;

For packaged or securely closed evidence, the seal paper must be affixed over parts that can be opened to retrieve the evidence or parts that could affect the integrity of the evidence;

For large-sized or immovable evidence, the seal paper must be affixed over parts that determine the origin, characteristics, and connections of the evidence;

Depending on specific circumstances, appropriate measures must be taken to protect the seal paper during transportation and storage.

f) Check the sealing of the evidence (the seal paper must be intact without tears or deformations; information on the seal paper must not be lost or deformed);

3. Completing the sealing of evidence

Establish a sealing record of the evidence. The record must accurately describe the condition of the evidence before and after sealing, and include full signatures, full names, or marks (with a note of the name for those marking signatures) of the persons organizing and participating in the sealing of evidence as stipulated by law and this Decree. The record is established, included in the case file, and given one copy to the person, agency, or organization with rights, obligations, and responsibilities related to the sealed evidence.

In case the related person; representative of the agency, organization with rights, obligations, responsibilities related to the sealed evidence does not sign on the sealing record, sealing paper, the person organizing the sealing of the evidence must prepare a record clearly stating the reasons with the presence of the representative of the local authority of the commune, ward, town where the sealing of the evidence takes place.

In cases where: The related person; representative of the agency, organization with rights, obligations, responsibilities related to the sealed evidence (or their relatives, lawful representatives), defense counsel are absent or do not come without a legitimate reason upon request of the agency, the person organizing the sealing of the evidence; the evidence has no owner or the owner has not been identified, the lawful manager, then a record must be prepared, clearly stating the reasons and requesting those participating in the sealing to sign on the record.

Article 9. Tasks, powers, and responsibilities of the person organizing the sealing of evidence

1. Lead the sealing of evidence.

2. Invite, summon persons participating in the sealing of evidence.

3. Inspect the evidence to be sealed.

4. Prepare necessary conditions for sealing the evidence.

5. Sign, write down full name on the sealing paper; annotate the name of the person who made the thumbprint (if any) on the sealing paper.

6. Package or seal the evidence (for packaged or sealed evidence) and affix the sealing paper.

7. Check the sealing of the evidence.

8. Sign, write down full name on the sealing record; annotate the name of the person who made the thumbprint (if any) on the sealing record.

Article 10. Responsibilities of persons participating in the sealing of evidence

1. Be present to participate in the sealing of evidence when requested by the person organizing the sealing of evidence.

2. Witness the process of sealing the evidence.

3. Sign, write down full name or make a thumbprint on the sealing paper of the evidence.

4. Participate in checking the sealing of the evidence.

5. Sign, write down full name or make a thumbprint on the sealing record.

Chapter III
OPENING THE SEAL OF EVIDENCE

Article 11. Procedures and formalities for opening the seal of evidence

1. Preparing to open the seal of evidence

a) The person leading the organization to open the seal of evidence invites, summons persons participating in the opening of the seal of evidence to be present at the time and place they were invited, summoned to open the seal of evidence.

In case the related person; representative of the agency, organization with rights, obligations, responsibilities related to the opening of the seal of evidence loses capacity to act according to the provisions of the law or has died, the person organizing the opening of the seal of evidence invites their relatives or lawful representatives to participate in opening the seal of evidence.

In case the person with rights, obligations, responsibilities related to the sealed evidence is a suspect, defendant being detained, when opening the seal, the person organizing the opening of the seal invites their relatives or defense counsel (if any) or the representative of the local authority of the commune, ward, town where the opening of the seal of evidence is organized to witness.

b) Prepare necessary conditions for opening the seal of evidence: Proceed with the procedures for removing evidence from storage (for evidence managed in the evidence warehouse) or notify the relevant agencies, organizations, individuals currently holding, preserving the evidence.

2. Implementing the opening of the seal of evidence

a) Inspect the seal of the evidence before opening it;

b) Remove the sealing paper and open the packaged or sealed evidence for evidence that is packaged or sealed;

Remove the sealing paper for evidence that is not packaged or sealed;

c) Inspect the evidence after opening the seal.

3. Completion of Opening Seals

When the opening of the seal is completed, a record must be established; the record must accurately describe the condition of the seal before opening, the actual state of the evidence after opening the seal, and have all signatures, full names or thumbprints (with annotations of the names of those who made the thumbprints) of the person organizing, persons participating in opening the seal of evidence according to the provisions of the law and this Decree. The record is prepared by the person organizing the opening of the seal of evidence, included in the case file, and handed over one copy to the person, agency, organization with rights, obligations, responsibilities related to the sealed evidence.

In case the inspection of the seal is no longer intact, a record about the condition of the seal of the evidence, the actual state of the evidence must be established to investigate, clarify the cause and handle according to the relevant laws.

In case the related person (if any); representative of the agency, organization with rights, obligations, responsibilities related to the sealed evidence, defense counsel do not sign on the record of opening the seal of the evidence, the person organizing the opening of the seal of the evidence must establish a record clearly stating the reasons with the presence of the representative of the local authority of the commune, ward, town where the opening of the seal of the evidence takes place.

In cases: The related person; representative of the agency, organization with rights, obligations, responsibilities related to the sealed evidence (or their relatives, lawful representatives), defense counsel are absent or do not come without a legitimate reason upon request of the agency, the person organizing the opening of the seal of the evidence; the evidence has no owner or the owner has not been identified, the lawful manager, then a record must be established, clearly stating the reasons and requesting those participating in the opening to sign on the record.

In case the opening of the seal serves investigative, prosecution, trial, enforcement activities, and then re-sealing is required, the components of the re-sealing include: Those organizing, participating in the sealing; the person, representative of the agency entrusted with managing the evidence; witnesses (representatives of the local authority of the commune, ward, town, representatives of the People's Procuracy or defense counsel of the suspect, defendant) if deemed necessary.

Article 12. Duties, powers, and responsibilities of the person organizing the opening of sealed evidence

1. Take the lead in organizing the opening of sealed evidence.

2. Invite and summon persons, agencies, organizations with rights, obligations, and responsibilities related to the evidence.

3. Propose and implement procedures for removing evidence from storage; notify relevant agencies, organizations, and individuals.

4. Inspect the seal before opening the sealed evidence.

5. Open the sealed evidence.

6. Inspect the evidence after opening the seal.

7. Sign and clearly write their full name on the record of opening sealed evidence; annotate the full name of the person who has affixed their signature (if any) on the record of opening sealed evidence.

Article 13. Responsibilities of persons participating in the opening of sealed evidence

1. Be present to participate in the opening of sealed evidence when requested by the person organizing the opening of sealed evidence.

2. Witness the process of opening sealed evidence.

3. Participate in inspecting the seal of the evidence before opening the sealed evidence.

4. Sign and clearly write their full name or affix their signature on the record of opening sealed evidence.

Chapter IV
IMPLEMENTING PROVISIONS

Article 14. Effective Date

This Decree takes effect from January 1, 2018.

Article 15. Responsibility for Implementation

1. The Ministry of Public Security, the Ministry of Justice shall coordinate with the Supreme People's Procuracy and the Supreme People's Court to provide specific guidance on sealing and opening sealed evidence by criminal proceedings agencies of the Procuracy and the Court.

2. The Minister of Public Security is responsible for organizing, urging, guiding, and supervising the implementation of this Decree.

3. Ministers, Heads of ministerial-level agencies, Heads of agencies under the Government, Chairpersons of provincial and centrally-run city People's Committees, and related organizations and individuals are responsible for implementing this Decree./.