Decree No. 163 establishes the Military Court temporarily located in Hanoi

DECREE

Regarding the establishment of a temporary military court located in Hanoi

PRESIDENT OF THE VIETNAM DEMOCRATIC REPUBLICIC GOVERNMENT

Pursuant to Decree No. 34 dated March 25, 1946 organizing the Ministry of National Defense;

Pursuant to Decree No. 71 dated May 22, 1946 setting forth the rules of the Vietnam Army;

Considering the current situation;

Upon the proposal of the Minister of National Defense and after the Council of Ministers has reached an agreement;

ISSUES THE DECREE:

Article 1: Pending the issuance of a decree establishing formal military courts, a temporary military court with its headquarters in Hanoi shall now be established.

Article 2: The temporary military court shall have jurisdiction to try:

- Military personnel who commit offenses, regardless of the nature of the offense, except for minor offenses within the jurisdiction of civil courts and "ordinary crimes" defined in Article 49 of Decree No. 71 dated May 22, 1946, which fall under the disciplinary authority of military commanders;

- Specialized staff members in the military, and persons working for the military such as workers and contractors when they commit offenses related to the military;

- Persons of any rank who commit offenses within military camps, military hospitals, military prisons, or any military agency, or offenses that cause damage to the military.

Article 3: If a civilian is simultaneously subject to prosecution before the temporary military court for an offense within its jurisdiction and before a civil or military court for an offense within their jurisdictions, then the temporary military court shall hear the case first.

Except in cases where a civil court imposes a fine or compensation, if the defendant is sentenced by both courts, he shall only be required to serve the more severe punishment.

Article 4: In cases where multiple individuals are charged with the same offense, including both military personnel and civilians, the matter shall be heard by the temporary military court.

Article 5: The temporary military court consists of:

- A Chief Judge and two Associate Judges;

- A Government Prosecutor (who also serves as a pre-trial judge);

- A Recorder responsible for recording the proceedings, maintaining the record, and managing documents.

The Chief Judge shall be a military officer from the command level or a senior official of the Ministry of National Defense appointed by the Minister of National Defense. The Minister of National Defense may also reach an agreement with the Minister of Justice to appoint a senior judge from the judiciary to serve as Chief Judge.

The first Associate Judge shall be a military officer from the command level, appointed by the Minister of National Defense.

The second Associate Judge shall be a judicial judge, appointed by the Minister of Justice after reaching an agreement with the Minister of National Defense.

The Government Prosecutor shall be a military officer or an official of the Ministry of National Defense, appointed by the Minister of National Defense upon the recommendation of the Military Legal Bureau Director.

The Recorder shall also be appointed by the Minister of National Defense among military officers from the command level.

Each time a decree is issued to appoint a Judge of the temporary military court, the Minister of National Defense or the Minister of Justice will designate one official and one alternate.

Article 6: The temporary military court shall have jurisdiction to try offenses classified as petty or serious crimes under general criminal law, imposing penalties as prescribed therein, if the accused falls within the categories specified in Articles 2 and 4 above.

Article 7: Additionally, regarding offenses with a military character, the temporary military court shall have jurisdiction to try the following offenses defined in Article 50 of Decree No. 71 dated May 22, 1946:

a) Due to negligence in duty causing damage to civilians or military personnel:

From 1 month to 3 years imprisonment;

b) Losing firearms or ammunition entrusted, or selling uniforms, firearms, or ammunition:

From 1 month to 3 years imprisonment;

c) Gambling, opium smoking:

From 1 month to 3 years imprisonment;

d) Refusing orders, assaulting superiors:

From 1 month to 3 years imprisonment;

e) Desertion:

- From 6 months to 5 years imprisonment if deserting without carrying weapons or important items belonging to the military;

- From 2 years to 10 years imprisonment if deserting while carrying weapons or important items belonging to the military, or if inciting others to desert in groups of two or more;

- From 5 years to 10 years hard labor if inciting others to desert in groups of two or more while carrying weapons or important items belonging to the military, or if inciting others to desert in groups of two or more in the presence of enemy forces;

f) Surrendering to the enemy:

- From 5 years to 20 years hard labor if a soldier;

- Death penalty if a commander-level official;

g) Retreat before the enemy without just cause:

- Soldier: From 1 year to 10 years imprisonment;

- Officer: From 5 years to 10 years hard labor;

- Lieutenant, Captain, Major: Death penalty.

h) Destroying equipment or weapons without authorization or in non-emergency situations:

From 5 years to 15 years hard labor;

i) Misusing authority to threaten other government agencies or officials:

From 1 month to 3 years imprisonment;

j) Propagating to divide military units:

From 1 month to 3 years imprisonment;

k) Sabotaging national defense:

From 10 years to 20 years hard labor;

l) Communicating with the enemy:

Capital punishment may be imposed. Additionally, the court may order confiscation of part or all of the offender's property.

Article 8: When a crime occurs, military commanders must promptly investigate and collect evidence, then submit the file and report to the Military Legal Bureau for the Bureau Director to decide whether to prosecute.

If the Bureau Director issues an order to dismiss the case, the matter ends there, and if the suspect was detained, he shall be immediately released.

If the Bureau Director issues an order to prosecute, the order and file, if any, shall be transferred to the Government Prosecutor.

The Government Prosecutor shall, depending on the circumstances, either immediately forward the file to the Chief Judge for trial or conduct a thorough investigation before bringing the suspect to court.

Article 9: In cases of misconduct or unfair trials at lower levels, even without a complaint, the Bureau Director has the authority to review all files and decide whether to re-prosecute or retry the case.

Article 10: The temporary military court shall hold public hearings and may convene outside its headquarters.

An honor guard consisting of at least a squad with weapons shall be assigned to enhance the solemnity of the hearing.

For special reasons, the court may decide to hold a closed hearing but the verdict must still be announced publicly.

The accused may defend himself, or seek the assistance of a lawyer or another person to defend him.

For offenses punishable by more than five years' imprisonment, if the accused does not have a lawyer, the court shall request the Bar Association to appoint a lawyer to represent him.

Article 11When imposing imprisonment, the Court may grant suspended sentence if there are grounds for leniency. The suspended judgment will be temporarily suspended from execution: if within five years from the date of judgment, the offender is not again sentenced by a Military Court for a new offense, the previously pronounced judgment shall be considered null; if within that five-year period, the offender is again sentenced once more before a Military Court, the suspended judgment shall be enforced.

Article 12: Judgments of temporary Military Courts shall be immediately enforceable, with no right of appeal except in the following case:

If the Court pronounces a death sentence, the convict has the right to submit a petition to the President of the Government requesting clemency. The judgment shall be temporarily suspended pending the decision of the President of the Government.

Each time a death sentence is pronounced, the Presiding Judge must inform the convict of his right to request clemency and ask him whether he wishes to submit a petition. This question and the convict's answer must be recorded in the judgment, otherwise the judgment cannot be enforced.

Article 13: If necessary, the Minister of National Defense may issue regulations to provide further details on implementation.

Article 14: This Decree shall apply to all cases occurring before its promulgation date, which have not yet been prosecuted before a Military Court, or have not yet become final judgments.

Article 15: This Decree shall automatically be repealed upon the issuance of the Decree organizing formal Military Courts.

Article 16: This Decree shall take effect according to the expedited procedure set forth in Article 14 of the Decree dated October 10, 1945.

Article 17: The Minister of National Defense and the Minister of Justice shall implement this Decree.