What are regulations on transfer of cases to prosecution according to competence; assignment of the exercise of the right to prosecution and first-instance trial supervision in Vietnam?

What are regulations on transfer of cases to prosecution according to competence; assignment of the exercise of the right to prosecution and first-instance trial supervision in Vietnam?

In Article 72 of the Regulation on the exercise of the right to prosecute, supervise the prosecution, investigation and prosecution issued together with Decision 111/QD-VKSTC in 2020, there is a provision on transfer of cases to prosecution according to competence; assignment of the exercise of the right to prosecution and first-instance trial supervision are prescribed as follows:

1. After finishing the investigation of the case, if finding that the case is not within their prosecution competence, the procurator shall report and propose the unit's leader or the Institute's leader to issue a decision to transfer the case to the Procuracy. Prosecutors have the authority to prosecute according to the provisions of Clause 1, Article 239 of the Criminal Procedure Code. The Procuracy competent to prosecute, when receiving the dossier, must assign the procurator to study and report, and propose the unit's leader and the Institute's leader to settle as follows:

a) If they agree with the investigation conclusion and the prosecution request of the investigating authority, they shall issue an indictment to prosecute the accused to a competent court. If the Court returns the file to the Procuracy for additional investigation, the Procuracy that has prosecuted must transfer the file to the Procuracy that has exercised its right to prosecute and investigate to carry out the procedures for returning the file to the Procuracy. the agency has investigated and issued a decision to transfer the case to the competent investigating agency;

b) If you do not agree with the investigation conclusion proposed to prosecute by the investigating authority, the file shall be returned to the Procuracy that has exercised the right to prosecute and investigate to carry out procedures for transferring the case to the competent investigative agency.

2. For cases where the superior procuracies exercise the right to prosecute and investigate, the superior procuracies shall decide to prosecute. The assignment of lower-level procuracies to exercise the right to prosecute and supervise first-instance trials shall comply with the provisions of Clause 1, Article 239 of the Criminal Procedure Code , and the Regulation on coordination between the superior procuracies and the procuracies. The superior procuracy exercises the right to prosecute, supervises the investigation and prosecution, and assigns the lower procuracies to exercise the right to prosecute and supervise the first trial promulgated together with Decision No. 314/QD-VKSTC dated July 5, 2018 of the Procurator General of the Supreme People's Procuracy and other relevant regulations.

What is exercise of the right to prosecute and supervise the application of proceedings against persons under 18 years of age in Vietnam?

In Article 73 of the Regulation on the exercise of the right to prosecute, supervise the prosecution, investigation and prosecution issued together with Decision 111/QD-VKSTC in 2020, there are provisions on exercise of the right to prosecute and supervise the application of proceedings against persons under 18 years of age shall be applied as follows:

1. When exercising the right to prosecute, supervise the application of procedures to accused persons, victims and witnesses who are under 18 years old, procurators must closely supervise and ensure the implementation comply with the provisions of Chapter XXVIII, other provisions of the Criminal Procedure Code on procedures for persons under 18 years of age, relevant laws and this Regulation.

2. In a criminal case where the accused person is a person under the age of 18, if it is discovered that the investigator has not clearly determined the age, level of physical and mental development, level of awareness of behavior committing crimes, living and educational conditions, whether or not there is a person aged full 18 years or older inciting, causes, conditions and circumstances of the crime of a person under 18 years old, the procurator shall request the investigator to comply with the provisions of Article 416 of the Criminal Procedure Code.

3. If it is found that there are sufficient grounds for criminal prosecution of persons under 18 years of age who commit crimes, the procuratorate shall report and propose to the unit leader or the Institute leader to issue a decision approving the decision to prosecute the accused; consider the approval of arrest warrants, decisions on extension of custody and temporary detention orders by investigating agencies as prescribed in Article 419 of the Criminal Procedure Code; if finding that there are not enough grounds, they shall report and propose to the leaders of the units, the leaders of the Institute not to approve the decision to prosecute the accused and other procedural decisions.

4. If it is found that a person under 18 years of age has sufficient grounds, conditions and is eligible for criminal liability exemption and application of supervision and education measures as prescribed in Clause 2, Article 91, provisions of Article 92, 93, 94 and 95 of the Penal Code, the Procurator shall report and propose to the unit leader and the Institute leader to settle as follows:

a) If the case has not been finished with investigation, it shall issue a written request to the investigating authority to issue a decision to terminate the investigation or investigation of the accused, exempt from criminal liability and apply other measures of supervision and education according to the provisions of Articles 230, 427, 428 and 429 of the Criminal Procedure Code;

b) If the case is in the prosecution stage, issue a decision to terminate the case or terminate the case against the accused, exempt from penal liability and apply supervision and education measures as prescribed in Clause 1 of this Article. Articles 248, 427, 428 and 429 of the Criminal Procedure Code.

What are regulations on exercise of the right to prosecute and supervise the application of the measure of compulsory medical treatment in Vietnam? 

In Article 74 of the Regulation on the exercise of the right to prosecute, supervise the prosecution, investigation and prosecution issued together with Decision 111/QD-VKSTC in 2020, there are provisions on exercise of the right to prosecute and supervise the application of the measure of compulsory medical treatment is prescribed as follows:

1. When there is a suspicion that the accused person has a mental illness or another disease that causes him to lose the ability to perceive or control his behavior, the procurator must promptly report and propose to the unit leader or leader. The Institute deals with the following:

a) During the investigation period, if the investigating authority does not solicit forensic psychiatric assessment, it shall issue a written request to the investigating authority to solicit forensic psychiatric assessment;

b) During the prosecution stage, the Procuracy shall issue a decision to solicit forensic psychiatric assessment.

2. Within 03 days from the date of receipt of the written request for application of compulsory medical treatment measure from the investigating agency together with the conclusion of forensic mental examination, if finding sufficient grounds, the procurator shall report a report. Report and propose to leaders of units, leaders of Institute to solve as follows:

a) Issue a decision to apply the measure of compulsory medical treatment to the accused and request the investigating authority to issue a decision to suspend the investigation or to suspend the investigation of the accused if the forensic examination concludes that It is determined that at the time of committing the offence, the accused does not have a mental illness or another disease that causes loss of awareness or ability to control behavior;

b) Issue a decision to apply the measure of compulsory medical treatment to the accused and issue a written request to the investigating authority to issue a decision to terminate the investigation or to terminate the investigation of the accused if the forensic examination concludes. mentally determined at the time of committing the offence, the accused suffers from a mental illness or another disease that causes loss of awareness or ability to control behavior.

3. During the prosecution stage, if the Procuracy issues a decision to solicit forensic psychiatric expertise as prescribed at Point b, Clause 1 of this Article, after receiving the forensic psychiatric assessment conclusion, the procurator shall report and propose to leaders of units, leaders of the Institute to consider and settle according to the provisions of Article 450 of the Criminal Procedure Code.

4. If the content of the conclusion of the forensic psychiatric assessment is unclear or incomplete or when there is doubt that the conclusion of the forensic psychiatric assessment is incorrect, the additional assessment or re-examination shall be carried out in accordance with provisions of the Criminal Procedure Code, the Law on Judicial Assessment, inter-sectoral guidelines and other regulations on solicitation of expertise by the Supreme People's Procuracy.

5. In case the procuracies receive a notice from the head of the compulsory medical treatment establishment that the person subject to compulsory medical treatment has recovered from the disease, the procurator shall report and propose the unit's leader and the institute's leader to settle the matter as follows:

a) If the case is in the investigation stage, it shall issue a written request to the investigating authority to issue a decision to solicit an assessment of the current medical condition of the person subject to compulsory medical treatment;

b) If the case is in the prosecution stage, the Procuracy shall issue a decision to solicit an assessment of the current medical condition of the person subject to compulsory medical treatment.

In the cases mentioned at Points a and b of this Clause, if the assessment results conclude that the person subject to compulsory medical treatment has recovered from the disease, the Procuracy shall issue a decision to suspend the enforcement of the measure of compulsory medical treatment. After the suspension of enforcement of the compulsory medical treatment measure, the temporarily suspended proceedings may be reinstated according to the provisions of Article 454 of the Criminal Procedure Code.

Best Regards!