Inconsistent Provisions on Crime Scene Examination

According to the regulations at point b, clause 1, Article 32; point b, clause 1, Article 34; point b, clause 1, Article 35; and point b, clause 1, Article 36 of the Law on Organization of Criminal Investigation Agencies, agencies assigned to perform certain investigation activities such as Border Guard, Forest Ranger, Coast Guard, and Fisheries Surveillance are authorized to initiate criminal cases, examine the crime scene, conduct searches, take declarations, seize and preserve evidence and documents related directly to the case, and transfer the case dossier to the competent Investigation Agency within 07 days from the date of issuing the decision to prosecute the case. This includes cases involving serious, very serious, especially serious crimes, or less serious but complex crimes.

Thus, according to the Law on Organization of Criminal Investigation Agencies, when the Border Guard, Forest Ranger, Coast Guard, and Fisheries Surveillance discover crimes within their management domains, whether less serious but obvious, or involves multiple complex details, serious, very serious, or especially serious crimes, they are obligated and have the authority to examine the crime scene.

However, clause 2 and clause 3 of Article 39 of the Criminal Procedure Code (BLTTHS) stipulate the duties and powers of agencies assigned to perform certain investigation activities as follows:

2. When conducting criminal procedures for less serious crimes in cases of flagrant offenses where evidence and the offender’s identity are clear, the individuals specified in points a, b, c, d, and e of clause 2 of Article 35 of this Code have the tasks and powers:

a) Collect evidence, documents, and items from related persons to verify information about the crime;

b) Decide to temporarily suspend the resolution of crime reports, crime information, recommendations for prosecution; decide to prosecute, not prosecute, change or supplement decisions to prosecute the case; decide to prosecute, change or supplement decisions to prosecute the accused;

c) Directly organize and direct the examination of the crime scene;

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3. When conducting criminal procedures for serious, very serious, especially serious crimes, or less serious but complex crimes, the individuals specified in points a, b, c, d, and e of clause 2 of Article 35 of this Code have the tasks and powers:

a) Collect evidence, documents, and items from related persons to verify information about the crime;

b) Decide to temporarily suspend the resolution of crime reports, crime information, recommendations for prosecution; decide to prosecute, not prosecute, change or supplement decisions to prosecute the case;

c) Decide to search, seize, temporarily detain, and preserve evidence and documents directly related to the case;

d) Summon and take statements from witnesses, victims, and involved persons.

Thus, according to the Criminal Procedure Code, only when conducting criminal procedures for less serious crimes in cases of flagrant offenses where evidence and the offender’s identity are clear, do the agencies assigned to perform certain investigation activities have the duty and authority to examine the crime scene. In other cases, these agencies are not authorized to conduct crime scene examination.

If the agencies assigned to perform certain investigation activities conduct crime scene examinations for serious, very serious, especially serious crimes, or less serious but complex crimes, according to point b, clause 1, Article 32; point b, clause 1, Article 34; point b, clause 1, Article 35; and point b, clause 1, Article 36 of the Law on Organization of Criminal Investigation Agencies, they will be considered in violation of clause 3, Article 39 of the Criminal Procedure Code, as clause 3, Article 39 of the Criminal Procedure Code does not grant these agencies the duty and authority to conduct crime scene examinations.

This lack of alignment between the Law on Organization of Criminal Investigation Agencies and the 2015 Criminal Procedure Code needs to be amended accordingly. However, the 2015 Criminal Procedure Code is considered to have higher effect than the Law on Organization of Criminal Investigation Agencies. Therefore, agencies assigned to perform certain investigation activities should comply with the Criminal Procedure Code. When conducting criminal procedures for serious, very serious, especially serious crimes, or less serious but complex crimes, they must immediately notify the competent Investigation Agency to lead the crime scene examination according to the provisions of the Criminal Procedure Code.

Nguyen Huu Son - Deputy Director of Dien Bien Provincial People's Procuracy

Source: Kiemsat

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