What is prosecution? What are the tasks of the prosecution phase in Vietnam?

Hello, Lawnet would like to answer as follows:

1. What is prosecution? Who has the authority to prosecute in Vietnam?

Currently, Vietnamese law does not define what prosecution is. However, based on practice, it can be simply understood that prosecution is a stage in criminal procedures, after the conclusion of the prosecution and investigation stages.

This is an activity performed by the Procuracy to bring offenders before the Court for trial or to make other procedural decisions to more accurately resolve a criminal case.

Pursuant to Article 239 of the Criminal Procedure Code 2015, provisions on the authority to prosecute are as follows:

- The procuracy exercising prosecution rights and administering investigative activities shall make decisions on prosecution. A procuracy’s authority to prosecute shall be subject to the Court's jurisdiction over the case.

If a case goes beyond a Procuracy's authority to prosecute, the Procuracy shall promptly decide to transfer the case to another competent Procuracy. A provincial People’s Procuracy or Military procuracy of a military zone shall decide the transfer of cases to procuracies out of the province, centrally-affiliated city or military zone.

A superior Procuracy shall decide to prosecute cases, against which it exercises prosecution rights and administer investigation. The superior Procuracy, in 02 month prior to the closure of the investigation, must inform the lower Procuracy, at the level equivalent to that of the first-instance Court having jurisdiction over the case, to assign procurators to examine case files. The superior Procuracy, when issuing a decision to prosecute, shall assign the lower Procuracy to exercise prosecution rights and administer the process of adjudication. The competent inferior Procuracy, upon receiving case files and charging documents, shall exercise prosecution rights and administer the process of adjudication as per this Law.

- A Procuracy, in 03 days upon issuing a decision on case transfer, must inform in writing the investigation authority closing the investigation, suspects or their representatives, defense counsels, aggrieved persons and other participants in legal proceedings.

The delivery of case files and charging documents shall occur as per Section 2, Article 240 of the Criminal Procedure Code 2015. In such event, the time limit for prosecution shall commence after the prosecutor authorized to prosecute receives case files.

2. Regulations on the time limit for the issuance of decisions to prosecute in Vietnam

The prosecution phase will begin when the Procuracy receives the investigation conclusion documents for the criminal case and the prosecution request from the investigation agency.

The Procuracy will take the necessary measures to comprehensively and objectively evaluate the investigation agency's concluding documents based on legal regulations.

According to the provisions of Article 240 of the Criminal Procedure Code 2015:

- A Procuracy, in 20 days for misdemeanors and felonies or 30 days for horrific and extremely severe felonies upon receiving case files and written conclusion of investigation, must make one of the following decisions:

+ Prosecute suspects in a Court;

+ Return documents for further investigation;

+ Dismiss or adjourn the case; dismiss or adjourn lawsuits against suspects;

The head of The procuracy, when necessary, may extend the time limit for the issuance of a decision to prosecute for 10 more days for misdemeanors or felonies or 15 more days for horrific felonies or at most 30 more days for extremely severe felonies.

- The procuracy, in 03 days upon making one of the decisions as stated in Section 1 of Article 240 of the Criminal Procedure Code 2015, must inform suspects, their defense counsels or representatives and crime victims of the return of documents for further investigation. Moreover, it shall in 03 days provide suspects or their representatives, investigation authorities and defense counsels with charging documents, decisions to adjourn or dismiss the case or lawsuit against suspects. Furthermore, it shall send notices to crime victims, litigants and protectors of their legitimate rights and benefits.

The delivery of the said documents shall be executed in writing according to Article 133 of the Criminal Procedure Code 2015 and be inputted in case files.

If the case is complex, the time limit for the delivery of charging documents and decisions on suspension or dismissal of the case to suspects or their representatives may be extended for 10 more days at most.

- The decisions as stated in Section 1 of Article 240 of the Criminal Procedure Code 2015, when made, must be promptly sent to the superior Procuracy. The head of the superior Procuracy shall be entitled to revoke, terminate or annul decisions deemed groundless or unlawful and to request the lower Procuracy to make lawful decisions.

3. What are the tasks of the prosecution phase in Vietnam?

In Article 15 of the the Criminal Procedure Code 2015, there are regulations on determination of facts in a lawsuit as follows:

- Competent procedural authorities are held liable for proving guilt.  A accused person is entitled to but is not obliged to prove his innocence.

- Competent procedural authorities, within their duties and authority, must use legitimate measures to determine the facts of a lawsuit in unbiased, thorough and complete ways, to clarify the evidences of guilt and innocence, aggravation and mitigation of criminal liabilities of the accused person.

During the prosecution phase, the tasks of the Procuracy that need to be performed include:

- Determine the legality and objectivity of the case:

+ The Procuracy will check the legality of the entire investigation process, ensuring it complies with criminal procedure laws.

+ Evaluate the objectivity, completeness, and accuracy of case files; ensure the collection of all relevant evidence and testimony. Consider what limitations and shortcomings need to be overcome to make the most correct litigation decisions.

- Issue a decision to prosecute, return files for additional investigation, or suspend the case or defendant.

At the same time, the Procuracy must notify relevant people about the return of documents for additional investigation; send the indictment, decision to suspend/temporarily suspend the case, and decision to suspend/temporarily suspend the case against the defendant to the suspect or the defendant's representative; and send for investigation agencies and defense counsel; Notify victims, litigants, and defenders of their legitimate rights and interests.

- Ensuring the fairness and accuracy of the case:

+ The Procuracy exercises prosecutorial power, ensuring fairness and objectivity in the prosecution process.

+ The Procuracy is also responsible for protecting the legitimate rights and interests of the accused, victims, and people with related rights and obligations.

Best regards!

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