The Relationship Between the Investigation Request and the Investigation Supervision of the Prosecutor in the Investigation Stage of a Criminal Case Regarding Position

In case the decision to initiate criminal proceedings or prosecute a defendant is deemed necessary by the State agency or social organization, before signing the investigation request, the Prosecutor must report and ask for the opinion of the unit leader or the Institute leader (Clause 1, Article 47, Regulation 111).

- Regarding the content of the investigation request

For each type of crime related to different positions such as embezzlement cases, bribery cases, etc., the content of the investigation requirements is also different, in accordance with the crime structure and specific characteristics of that type of crime. In each specific crime related to positions, for each different case, the content of the investigation requirements is also different, in accordance with the nature and development of each case. Currently, there is no common model for the content of the investigation requirements for all types of crimes. However, for any criminal case related to positions, it is required to clarify the crime, the perpetrator and the issues that need to be proven in the criminal case as mentioned above. The content of the investigation requirements must be expressed coherently, clearly and specifically stating the issues that need to be investigated, the evidence and documents that need to be collected; there must be a presentation method that ensures the order of the issues and the logic of the content. The content of the request for investigation must be comprehensive, complete, and thorough, helping the investigation work go in the right direction, serving the prosecution and trial activities well; avoiding making general investigation requests that are not close to the case file and investigation progress. To perform this task, the prosecutor must have good professional knowledge, understand a number of regulations on the field and industry related to the case of the position being handled, such as cases related to the fields of finance, banking, etc.; grasp the signs of composition and characteristics of each specific crime; closely follow the investigation activities of the investigator; grasp the file through fully studying all documents and evidence collected by the investigation agency, promptly detecting criminal acts, criminal subjects that have not been verified by the investigation agency, leaked or contradictory details that need to be clarified; new details arising in the case; civil issues in the case of the position; on the application of the law.

Applying some special investigation measures as prescribed by the Criminal Procedure Code; issues on completing criminal procedure procedures; issues on searching, seizing property, sealing property, freezing corrupt assets, issues on temporary ban on entry and exit, recovery of corrupt assets... In which it is necessary to note:

- To determine that the object is the proper and legal activities of this agency, organization or unit that have been violated, the prosecutor must request the investigator to collect documents and evidence stipulating the functions and tasks (regulations, working rules, operating regulations) of the agency, organization or unit where the person committing a crime in relation to his/her position is working.

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- The prosecutor must request the investigator to collect documents and evidence to determine what position and authority the subject was assigned and assigned, what illegal acts were committed while performing official duties and tasks; physical evidence, such as documents such as official dispatches, decisions, contracts... and traces of comments and instructions... scattered in different documents or in different agencies, organizations, individuals or existing in the form of electronic data. If the investigation request collects complete documents and evidence, we can proactively research, evaluate, synthesize and make recommendations, make accurate, well-founded and legally correct decisions right from the time the investigation agency issues a decision to initiate a case and prosecute the accused.

For those who commit crimes in the position of being Party members or Party committee members, after initiating or detaining the accused, the Investigation Agency must issue a written notice to the Party committee or the competent Inspection Committee to carry out procedures to suspend Party activities according to the provisions of the Party Charter or issue a written report to the Party organization managing that Party member and its superior Party organization according to Directive No. 26-CT/TW dated November 9, 2018 of the Politburo on strengthening the Party's leadership over law enforcement agencies in the investigation and handling of cases and incidents.

- For cases involving positions related to the fields of construction investment, finance, accounting, insurance, banking, etc., where it is necessary to request judicial appraisal and asset valuation to determine damages, the Procuracy must request the Investigation Agency to promptly collect all records, documents, and objects of appraisal and asset valuation to promptly issue a decision to request appraisal and asset valuation, and the content of the investigation request must orient the appraisal content correctly and closely to the issue that needs to be concluded, regularly monitor and urge the implementation of the appraisal request decision, request the organization or individual requested for appraisal to promptly implement to promptly issue the appraisal conclusion as a basis for investigation and handling of the case to ensure that it is well-founded and in accordance with the provisions of law, avoiding the need to request appraisal and asset valuation again or supplement, which prolongs the investigation period of the case.

- The prosecutor requested the investigator to disclose the value of the misappropriated property, bribes as well as the actual value of property damage caused by the crime as prescribed in Articles 353, 354, 355 and 358 of the Penal Code, and how it has a causal relationship with the crime (not including money, property, other material benefits that the offender has or will appropriate) to serve as a basis for determining the crime and determining the aggravating and mitigating circumstances with basis, accuracy and in accordance with the law.

- The prosecutor requested the investigator to collect documents and evidence to determine that the defendant's behavior was taking advantage of his/her assigned position and power to violate, not do or do not do according to the provisions of the law or exceeding the assigned authority, responsibilities and tasks even though he/she was not assigned or assigned tasks and powers in that field so that he/she could commit the crime; documents and evidence to determine the fault of the defendant and accomplices, revealing the roles and responsibilities of the people involved in the case; documents and evidence to determine that the offender had a motive of personal gain or other personal motives as prescribed in the crimes of Abusing position and power while performing official duties (Article 356);

The crime of Abuse of power while performing official duties (Article 357) and the crime of Forgery in work (Article 359) ensure that the prosecution and handling of the accused and related subjects are based on and in accordance with the law.

- Regarding the recovery of damaged assets in cases involving positions, because the criminals are people with positions, powers, qualifications, and legal knowledge, they often have tricks to deal with, defend, and conceal criminal acts and corrupt assets, or cases that occur after a long time are only discovered and handled, leading to slow and difficult recovery of assets. Therefore, immediately after initiating a case, the Procuracy must promptly make investigation requests to conduct investigations and verifications, to disclose lost and misappropriated assets in order to promptly apply necessary measures to seize, seize, and freeze assets, accounts, etc. to avoid dispersion as well as loss and damage of assets, in order to ensure the most effective recovery of assets for the state and companies and enterprises.

1.1.3. The relationship between the Investigation Request and the Investigation Control of the Prosecutor during the investigation phase of a criminal case regarding position

There are the following similarities and differences between the investigation of YCĐT and the investigation activities of the Procuracy during the investigation phase of a criminal case regarding position:

- Alike

+ The investigation and prosecution of criminal cases regarding positions are both functions and duties of the People's Procuracy as prescribed by law.

+ Regarding the subject: The prosecutor assigned to investigate and prosecute criminal cases on the position is responsible for implementation.

+ Regarding scope: Starting from the time of the decision to initiate a case, prosecute the accused until the criminal case on position is completed investigation according to the provisions of criminal procedure law:

+ Purpose: To ensure that the investigation activities of the Investigation Agency in collecting evidence documents are objective, timely, well-founded and in accordance with the law, avoiding the omission of criminals and criminals and not wrongfully convicting innocent people.

- Different

+ Subject: The subject of the Investigation Request is the right to propose the Investigation Request of the Prosecutor during the investigation phase of a criminal case regarding position and the Investigating Agency must be responsible for implementing the contents of the Investigation Request of the Prosecutor to prosecute the criminal responsibility of the offender and prosecute them before the Court for trial. The subject of the Investigation Request work is the compliance with the law of the investigation agency, the agency assigned with a number of investigation tasks, the competent persons in the investigation and other participants in the proceedings during the investigation phase of a criminal case regarding position.

+ Regarding duties: Proposing the request for investigation is the duty of exercising the right to prosecute of the prosecutor during the investigation phase of a criminal case regarding the position as prescribed in Clause 6, Article 165 of the Criminal Procedure Code. The task of investigation is to supervise the compliance with the law by the prosecutor in initiating, investigating and filing criminal case files regarding the position of the investigation agency and the investigator; supervise the criminal proceedings of the participants in the proceedings; request the investigation agency to provide relevant documents to supervise the compliance with the law in initiating, investigating... and a number of other duties and powers as prescribed in Article 166 of the Criminal Procedure Code.

+ Content: The content of the request for investigation is the documents and evidence that the prosecutor requests the investigator to collect to reveal the crime, the criminal and other evidentiary details of the case. The proposal for investigation is expressed in 2 forms, either verbally or in writing.

The content of the investigation is the activity of researching, examining, and evaluating the basis and legality of evidence documents and procedural documents in the case file that the investigation agency and the investigating agency collect and issue; is to examine and supervise

Monitor the activities of the subjects conducting the proceedings and the subjects participating in the proceedings during the investigation phase of criminal cases regarding positions.

- Relationship

Between the investigation requirements and the investigation supervision activities of the prosecutor in the investigation phase of the case of position, there are different subjects, tasks and contents, but there is a close, dialectical and mutually supportive relationship because the investigation requirements and the investigation supervision of the prosecutor in the investigation phase of the criminal case of position both have the same purpose, which is to ensure that the prosecution and investigation of criminal cases of position are objective, timely, correct in terms of the person, the crime, and the law, without missing out on criminals or offenders and without wrongful convictions or mistakes. The effective investigation supervision activities of the prosecutor in criminal cases of position are a condition to ensure that the exercise of the right to prosecute in proposing the investigation requirements of the prosecutor is correct, accurate, and objective and vice versa.

1.2. Provisions of Vietnamese criminal procedure law on the investigation request of the Prosecutor during the investigation stage of a criminal case regarding position

1.2.1. Provisions of legal documents on the investigation requirements of the Prosecutor during the investigation phase of a criminal case regarding position

The People's Procuracy is the only agency assigned to investigate and prosecute all criminal cases in general, and criminal cases involving positions in particular, and must be responsible to the State and society for its prosecution decisions. Therefore, in order to determine the objective truth of the case, to help the Procuracy's prosecution be well-founded and in accordance with the law, the Procuracy has the responsibility to make investigation requests. During the investigation phase, the Procuracy is not a witness to the investigation activities but must use all legal powers, including the right to make investigation requests, to request the Investigation Agency to conduct an investigation in order to discover, collect, and consolidate evidence to ensure that the prosecution of the offender is accurate and in accordance with the law.

Clause 7, Article 14 of the Law on Organization of the People's Procuracy 2014 stipulates that when the People's Procuracy is in the stage of investigating a criminal case, the People's Procuracy has the duty and power to "Propose investigation requirements and request the Investigation Agency and the agency assigned to conduct a number of investigation activities to conduct the investigation to uncover crimes and criminals" .

Point e, Clause 1, Article 42 of the 2015 Criminal Procedure Code stipulates that "Prosecutors assigned to exercise the right to prosecute and supervise compliance with the law in criminal proceedings have the following duties and powers: ... e) Proposing investigation requirements" .

Clause 6, Article 165 of the 2015 Criminal Procedure Code stipulates the duties and powers of the People's Procuracy when exercising the right to prosecute during the investigation phase of a criminal case as follows: "Proposing investigation requirements and requesting the Investigation Agency and the agency assigned to conduct a number of investigation activities to conduct investigations to uncover crimes and criminals" .

In short, "proposing investigation requests and requesting the investigating agency to carry them out" is an important and fundamental legal power of the prosecutor as prescribed by criminal procedure law, and only the prosecutor when assigned the task of investigation and investigation in the investigation phase of a criminal case on the position has this authority.

1.2.2. Provisions of sub-law documents on the investigation requirements of the Prosecutor during the investigation phase of a criminal case regarding position

Clause 1, Article 11 of Joint Circular No. 04/2018/TTLT-VKSNDTC-BCA-BQP dated October 19, 2018 of the Supreme People's Procuracy, the Ministry of Public Security, and the Ministry of National Defense stipulates that, in addition to cases of direct supervision of investigation activities, the Procurator has the right to "make requests for investigation orally" , and for other investigation activities, "The Procurator must make requests for investigation in writing, clearly and specifically stating the issues to be investigated, evidence, and documents to be collected" .

Resolution No. 96/2019/QH14 dated November 27, 2019 of the National Assembly on crime prevention and control, law violations, the work of the People's Procuracy, the People's Court and the execution of judgments, requires: "The Supreme People's Procuracy directs the Procuracies to synchronously apply solutions to better implement the practice of the right to prosecute,... closely supervise investigation activities, promptly propose investigation requests to resolve cases urgently and in accordance with the law".

In the People's Procuracy sector, the Chief Justice of the Supreme People's Procuracy has also issued many regulations related to the proposal of investigation requirements of the Procuracy when assigned to the Supreme People's Procuracy and the Investigation Police Department during the investigation phase of criminal cases in general and criminal cases on positions in particular, specifically:

Directive No. 06/CT-VKSTC dated December 6, 2013 of the Chief Justice of the Supreme People's Procuracy "on strengthening the responsibility of prosecution in investigation activities, linking prosecution with investigation activities to meet the requirements of fighting and preventing crime" aims to improve the quality and effectiveness of fighting and preventing crime; ensure the prosecution of criminal responsibility for the right person, the right crime, and the law, minimize the omission of criminals, resolutely not let injustice and mistakes happen, including the direction "Procuracies at all levels proactively and actively propose investigation requirements to ensure they are well-founded and close to the content of the case" .

Directive No. 04/CT-VKSTC dated July 10, 2015 of the Chief Justice of the Supreme People's Procuracy "on strengthening measures to prevent wrongful convictions and enhance responsibility in resolving compensation for victims of wrongful convictions in criminal proceedings" which requires units in the entire Procuracy sector to "increase the issuance of investigation requests" .

Directive No. 05/CT-VKSTC dated April 27, 2020 of the Chief Justice of the Supreme People's Procuracy "on strengthening the responsibility of prosecution in handling criminal cases, meeting the requirements of fighting and preventing crime" which includes the content requiring

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