1. The Court's judgment determines whether the defendant is guilty or not guilty, the penalty and other judicial measures. The judgment must be discussed and approved in the deliberation room.
2. Decisions on changing members of the Trial Panel, Prosecutor, Court Secretary, expert, interpreter, transferring the case, requesting additional investigation, suspending or dismissing the case, and arresting or releasing the defendant must be discussed and approved in the deliberation room and must be made in writing.
According to the provisions of Clause 2, Article 121 of the 2003 Criminal Procedure Code, the time limit for the Court to return the file to the Procuracy for further investigation is no more than 01 month.
In general, the return of files for additional investigation of the 1988 Criminal Procedure Code and the 2003 Criminal Procedure Code does not change the grounds for returning files for additional investigation.
However, the 2015 Criminal Procedure Code has significant changes compared to the 2003 Criminal Procedure Code. These changes are more suitable and contribute to creating unity between the Investigation Agency, the Procuracy, and the Court in the fight against crime, in accordance with the interrogation model of our country and in accordance with the current economic and social development conditions of Vietnam.
The court's request for additional investigation is stipulated in Articles 245 and 280 of the 2015 Criminal Procedure Code. [23]
Article 245 Return of case files for further investigation
1. The Procuracy shall issue a decision to return the case file and request the Investigation Agency to conduct additional investigation in one of the following cases:
a) There is still a lack of evidence to prove one of the issues specified in Article 85 of this Code that the Procuracy cannot supplement by itself;
b) There is a basis to prosecute the accused for one or more other crimes;
c) There are accomplices or other criminals involved in the case but have not been prosecuted;
d) There is a serious violation of procedural law.
2. The decision to return the file to request additional investigation must clearly state the issues requiring additional investigation as prescribed in Clause 1 of this Article and the contents prescribed in Clause 2, Article 132 of this Code.
3. The investigation agency is responsible for fully implementing the requirements stated in the decision to return the file for additional investigation of the Procuracy; in case of force majeure or objective obstacles that cannot be implemented, the reasons must be clearly stated in writing.
At the end of the supplementary investigation, the Investigation Agency must have a supplementary investigation conclusion. The supplementary investigation conclusion must clearly state the supplementary investigation results and the viewpoint on resolving the case. If the supplementary investigation results fundamentally change the previous investigation conclusion, the Investigation Agency must issue a new investigation conclusion to replace it.
The transfer of case files together with supplementary investigation conclusions to the Procuracy; the delivery, receipt and sending of notices of supplementary investigation results shall be carried out in accordance with the provisions of Articles 232 and 238 of this Code.
Article 280. Return of files for further investigation
1. The presiding judge of the trial shall decide to return the case file to the Procuracy for further investigation in one of the following cases:
a) When there is a lack of evidence to prove one of the issues specified in Article 85 of this Code that cannot be supplemented at the trial;
b) There is reason to believe that in addition to the acts prosecuted by the Procuracy, the accused also committed other acts that the Penal Code stipulates as crimes;
c) There is reason to believe that there are other accomplices or other people who have committed acts that the Penal Code stipulates as crimes related to the case but the case has not been prosecuted or the accused has not been prosecuted;
d) Prosecution, investigation and prosecution of serious violations of procedural law
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2. In case the Procuracy discovers grounds to return the file for investigation
If there is any additional information, the Procuracy shall issue a written request to the Court to return the file.
3. The decision to return the case file for further investigation must clearly state the issues requiring further investigation and send it to the Procuracy together with the case file within 03 days from the date of the decision.
If the results of the additional investigation lead to the suspension of the case, the Procuracy shall issue a decision to suspend the case and notify the Court within 03 days from the date of the decision.
If the results of the additional investigation lead to a change in the prosecution decision, the Procuracy shall issue a new indictment to replace the previous indictment.
In case the Procuracy cannot supplement the issues requested by the Court and still maintains the prosecution decision, the Court shall proceed to try the case.
1.2.2 Regulations of the current BLTTHS on THSĐTBS
Comparison of additional investigation between the 2003 Criminal Procedure Code and the 2015 Criminal Procedure Code.
Criteria
Criminal Procedure Code 2003 | Criminal Procedure Code 2015 | |
Law | 179 | 280 |
Base | 3 cases | 4 cases Add a new case where the defendant commits another act that the criminal code defines as a crime. |
Number of times the file is returned | 2 times | The presiding judge may only return the file for further investigation once and the Trial Panel may only return the file for further investigation once. |
The Procuracy proactively requested the return of the file. | Do not have Can self-investigate without returning the file to the investigation agency | As provided in Clause 2, Article 280 |
Text construction techniques | BLTTHS 2003 used The phrase "Evidence important to the case" but does not specify what evidence it is. | The provisions of Article 85 on the disclosure of evidence are essential to the trial of the case. |
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In addition, the correction of errors in returning additional investigation records of the 2003 Criminal Procedure Code in the 2015 Criminal Procedure Code led to the replacement of Joint Circular No. 01/2010/TTLT-VKSNDTC-BCA-TANDTC with Joint Circular No. 02/2017/TTLT-VKSNDTC-BCA-TANDTC dated December 22, 2017.
Joint Circular No. 01/2010/TTLT-VKSNDTC-BCA-TANDTC has been amended and supplemented in terms of content and form to comply with new regulations [27]. Specifically, the following amendments are made:
Firstly, Circular 02 has amended the terms and provisions cited in the Circular to conform to the provisions of the 2015 Criminal Procedure Code. For example, the 2015 Criminal Procedure Code has used new phrases such as "evidence to prove", "person under 18 years old", "committing other acts that the Penal Code stipulates as crimes"...
Second, there is a lack of evidence to prove one of the issues stipulated in Article 85 of the 2015 Criminal Procedure Code that the Procuracy and the Court cannot supplement themselves. According to the provisions of Article 85 of the 2015 Criminal Procedure Code, a number of new issues have been added that the prosecuting agencies must prove in criminal cases, such as:
The causes and conditions of crime are evidence to determine the subjective and objective causes and specific conditions that led to the crime. When the causes and conditions of crime are proven, the prosecuting agencies will, on the one hand, apply more effective measures to reform and educate the offender, helping them reintegrate into the community after serving their sentences, and on the other hand, propose or apply effective measures to combat and prevent crime.
Other circumstances related to the exclusion of criminal liability, exemption from criminal liability, and exemption from punishment are issues regulated in the 2015 Penal Code, namely Chapter IV on cases of exclusion from criminal liability, Article 29 on grounds for exemption from criminal liability, and Article 59 on exemption from criminal liability.
The evidence to prove the above issues needs to be guided by the Circular on the content and basis for application as a basis for requesting additional investigation. In addition, in the matter of needing to prove "Who committed the crime" is evidence to identify a specific person or legal entity that committed the crime, Circular 02 has provided additional guidance on returning the file for additional investigation in case the legal entity commits a crime at Point n, Clause 2, Article 3 according to the new provisions of the 2015 Penal Code.
Third, on the basis of the conduct that the Procuracy has prosecuted, the accused also committed other acts that the Penal Code stipulates as crimes. Point b of Article 179 of the 2003 Criminal Procedure Code was separated into points b and c of Article 280 of the 2015 Criminal Procedure Code, so the provisions of Circular 02 have amended and supplemented the cases where the case file must be returned for further investigation according to this basis to be consistent with the provisions of the 2015 Criminal Procedure Code, specifically the following cases:
- Prosecution and investigation of one or more crimes but evidence in the case file shows that the defendant's actions constitute one or more other crimes;
- In addition to the crime prosecuted and investigated, evidence in the case file shows that there is a basis to prosecute the defendant for one or more other crimes;
- In addition to the defendant who has been prosecuted and investigated, evidence in the case file shows that there are other accomplices or other criminals related to the case but have not been prosecuted.
Fourth, on the basis of assuming that the accused (defendant) has committed other acts that the Penal Code stipulates as crimes or that there are accomplices or other criminals related to the case that have not been prosecuted. This is a new provision of the 2015 Criminal Procedure Code to overcome the inconsistent views of the prosecution agencies on the understanding of the term "other crimes" in the 2003 Criminal Procedure Code and to add the case where there are other accomplices related to the case that have not been prosecuted. Therefore, Circular 02 has specifically guided the cases where the case file must be returned for further investigation according to this basis in Articles 4 and 5 as follows:
- In addition to the crimes that have been prosecuted, investigated, and prosecuted, evidence in the case file shows that the suspect or defendant also committed other acts that the Penal Code stipulates as crimes.
- The investigation agency and the Procuracy have initiated, investigated, and prosecuted a crime, but evidence in the case file shows that the act committed by the suspect or defendant constitutes another crime prescribed in the Penal Code.
- In addition to the accused, the defendant has been prosecuted, investigated, and indicted, and evidence in the case file shows that there are other accomplices or other people who committed acts that the Penal Code stipulates as crimes related to the case but have not yet been prosecuted or prosecuted.
Fifth, regarding the grounds for serious violations of procedural law, the 2015 Criminal Procedure Code has overcome the shortcomings of the 2003 Criminal Procedure Code on this basis. Specifically, the 2015 Criminal Procedure Code has added the concept of “Serious violations of procedural law” at Point o, Clause 1, Article 4, amended a number of procedural laws and added a number of new participants in criminal proceedings. Therefore, Circular 02 has provided additional guidance on a number of cases of serious violations of procedural law such as:
- Not appointing a defense attorney for the accused, defendant, or accused in cases prescribed by law;
- Failure to deliver or notify procedural orders and decisions to suspects, defendants, legal entities and participants in the proceedings in accordance with the provisions of law, infringing upon the right to defense of suspects, defendants, legal entities, and the legitimate rights and interests of participants in the proceedings in accordance with the provisions of law;
- Important characteristics of the criminal legal entity's operations have not been determined, such as its form of establishment, organizational structure, assets, and how it participated in legal relationships in its own name...
- No translator participates in the proceedings in cases where the litigation documents are not in Vietnamese...
Sixth, regarding the number of times the case file is returned for further investigation, the 2015 Criminal Procedure Code has amended the regulations on the number of times the Procuracy and the Court return the case file for further investigation to overcome practical difficulties. Therefore, Circular 02 has guided the amendments to comply with the provisions of Clause 2, Article 174 of the 2015 Criminal Procedure Code, specifically the number of times the case file is returned is as follows: “The Procuracy may only return the case file for further investigation twice. The presiding judge of the trial may only return the case file for further investigation once and the Trial Panel may only return the case file for further investigation once”.
2. Legal provisions on returning additional investigation files
2.1 Regarding the authority to return the case file for additional investigation:
The authority to decide to return the case file for further investigation is stipulated in Clause 2, Article 45 and Clause 2, Article 277 of the 2015 Criminal Procedure Code.