Measures for handling physical evidence and assets during investigation, prosecution, and trial of criminal incidents and cases in Vietnam

Measures for handling physical evidence and assets during investigation, prosecution, and trial of criminal incidents and cases in Vietnam​ (Image from the internet)

On November 28, 2024, the National Assembly of Vietnam issued Resolution 164/2024/QH15 on a pilot basis to handle evidence and assets during the investigation, prosecution, and trial of criminal cases.

Measures for handling physical evidence and assets during investigation, prosecution, and trial of criminal incidents and cases in Vietnam​

According to Article 3 of Resolution 164/2024/QH15, the measures for handling evidence and assets during the investigation, prosecution, and trial of criminal cases are specified as follows:

(1) Measures for returning money to victims or depositing money into banks pending processing are implemented as follows:

- (*) In cases where evidence or assets are money that have been seized, temporarily held, or frozen, and where the proceeding authority clearly identifies the owner, victim, the amount of damage, and there are written requests from the victim or their representative and from the suspect, defendant, or other owner of the evidence or assets, the proceeding authority shall decide to return the money to the victim in the order and proportion as prescribed by civil enforcement law.

The decision to return money to the victim is sent to the credit institution or State Treasury managing the temporarily seized account or executing the account freeze order for implementation;

- For money seized or temporarily held not subject to processing under the above regulations, if there is a written request from the owner, the proceeding authority decides to deposit the money into a term deposit account opened by the proceeding authority at a commercial bank in which the State holds more than 50% charter capital for pending processing.

For money in an account that has been frozen and not subject to processing under point (*), if there is a written request from the owner, the proceeding authority decides to allow the owner of that account to convert it to a term deposit account and decide on freezing this deposit account pending processing.

(2) The measure of paying a security to annul the seizure, temporary seizure, sequestration, and freezing of evidence and assets is implemented as follows:

- In cases where evidence or assets are immovable property, assets attached to land, securities, or equipment, means, and materials used in production, business, services that have been seized, temporarily seized, sequestrated, or frozen, which belong to the lawful ownership and management of the accused or other related organizations and individuals, if they need to exploit and use, and if they request in writing to pay a security to retrieve the assets, the proceeding authority shall commission an evaluation and request a valuation of the evidence or assets as prescribed by law and consider and decide to allow the accused or the organization, individual to pay a security to annul the seizure, temporary seizure, sequestration, and freezing of said evidence and assets. The security paid must not be less than the value of the evidence or assets as concluded in the asset valuation;

- The security money is deposited into the account of the proceeding authority opened at a commercial bank in which the State holds more than 50% charter capital for processing as prescribed in clause (1). After the security money is deposited into the account, the proceeding authority decides to annul the applied seizure, temporary seizure, sequestration, freezing measures. The person entrusted with the asset must safeguard the evidence or assets during the management, exploitation, and use.

(3) The measure of selling, transferring evidence and assets and handling the proceeds from such sales and transfers is implemented as follows:

- In cases where evidence or assets are immovable property, assets attached to land, securities, or equipment, means, and materials used in production, business, services that have been seized, temporarily seized, sequestrated, or frozen belonging to the lawful ownership or management of the accused or other related organizations and individuals with no disputes, and they are saleable, transferable under law, if they request in writing to sell, transfer, the proceeding authority shall commission an evaluation, request a valuation for the evidence and assets, and consider and decide to allow the sale, transfer of such evidence and assets through public auction as prescribed by law. In cases where co-owners buy back the evidence and assets, auctioning is not required;

- Organizations and individuals purchasing or transferring the evidence and assets must transfer the entire proceeds from the sale or transfer to the account of the proceeding authority opened at a commercial bank in which the State holds more than 50% charter capital for processing as stipulated in clause (1). Once the proceeds are transferred to the account, the proceeding authority shall decide to annul the applied seizure, temporary seizure, sequestration, freezing measures.

(4) The measure of returning evidence and assets to the owner or lawful manager for management, exploitation, and use is implemented as follows:

- In cases where evidence or assets are immovable property, assets attached to land or equipment, means, and materials used in production, business, services that have been seized, temporarily seized, sequestrated, if there is a written request by the owner or lawful manager of the evidence or assets, the proceeding authority shall commission an evaluation, request a valuation for the evidence and assets as prescribed by law, and consider and decide to return the evidence and assets to the owner, lawful manager, or another party to manage, exploit, and use as requested or as assigned by the proceeding authority upon the owner’s or lawful manager’s consent;

- Organizations and individuals assigned management, exploitation, and use must safeguard the evidence or assets, and they must not sell, transfer, pledge, mortgage, swap, destroy, or intentionally damage the evidence or assets.

(5) The measure of temporarily ceasing transactions, pausing the registration, transfer of ownership, use rights of assets is implemented as follows:

- When there is a basis to believe it is necessary to prevent the accused or other organizations and individuals from transferring ownership, use rights, disposing of, or damaging assets related to the case, the proceeding authority can apply the measure of temporarily ceasing transactions, pausing the registration, ownership transfer, and use rights of such assets.

If the assets can be partitioned, only the transactions, registration, ownership transfer, and use rights of the portion of assets equivalent to the potential fines, asset confiscation, or damage compensation are paused;

- Within two months from the decision to apply the measure of temporarily ceasing transactions, pausing the registration, transfer of ownership, use rights of assets, the proceeding authority is responsible for inspection, verification.

In cases with sufficient grounds and conditions according to the Criminal Procedure Code, the proceeding authority shall promptly issue a decision to apply seizure, temporary seizure, sequestration, freezing measures to the asset. Seized, temporarily seized, sequestrated, or frozen assets are reviewed and handled according to regulations in clauses (1) to (4).

In cases without sufficient grounds, conditions for seizure, temporary seizure, sequestration, freezing, the proceeding authority shall promptly issue a decision to annul the measure of temporarily ceasing transactions, pausing the registration, transfer of ownership, use rights of assets already applied;

- In complex cases where inspection and verification cannot be concluded for processing within the above time limit, the Chief Procurator of the equivalent or competent level Procuracy may extend the time of applying the measure of temporarily ceasing transactions, pausing the registration, transfer of ownership, use rights of assets once, but not beyond two months.

Note:

- The proceeds generated during the handling of evidence and assets according to this Resolution are handled according to the court judgment or decision.

- The authority, sequence, and procedures for deciding the application, annulment of measures to handle evidence and assets are stipulated as follows:

(i) The application of measures to handle evidence and assets as provided in clauses (1) to (5) is decided by the Head, Deputy Head of the Investigation Agency during the processing of crime information, prosecution, investigation; by the Chief Prosecutor, Deputy Prosecutor of the Procuracy during prosecution; by the Chief Judge, Deputy Chief Judge of the Court during trial preparation; by the Trial Panel if a decision has been made to bring the case to trial;

(ii) The measures to handle evidence and assets are applied throughout the processing of crime information, prosecution, investigation, prosecution, trial. The application must be coordinated among the proceeding authorities before issuing a decision, except in cases decided by the Trial Panel.

The application and annulment of measures to handle evidence and assets must be recorded in the investigation conclusion, indictment, and court verdict or decision;

(iii) In cases with insufficient grounds or conditions for application, or unnecessary or could be replaced by other measures prescribed in this Article, the competent authority who issued the decision under point (i) must promptly issue a decision to annul the measures to handle evidence and assets, except for measures under point (*) of clause (1) and clause (3) if completed;

(iv) Decisions on application, annulment of the measures to handle evidence and assets are included in the case file; handed to the accused; sent to the bank, civil enforcement authorities, relevant agencies, organizations, individuals. The decisions of the Investigation Agency, Court on application, annulment of measures to handle evidence and assets are sent to the Procuracy;

(v) When necessary, during handling crime information, prosecution, investigation, the Procuracy proposes inspection, verification, investigation requirements to the Investigation Agency or directly carries out certain inspection, verification, investigation activities in considering and deciding on applying measures to handle evidence and assets.

In cases where it is found that the application of measures to handle evidence and assets by the Investigation Agency, Court is subject to annulment according to point (iii) but the Investigation Agency, Court does not annul, the Procuracy annuls the decision of the Investigation Agency on applying measures to handle evidence and assets; recommends, protests the decision of the Court on applying measures to handle evidence and assets according to provisions of criminal procedure law;

(vi) The Trial Panel has the authority to review the decision on applying measures to handle evidence and assets by the proceeding authorities.

- Disputes over ownership of evidence and assets on which the handling measures have been applied are resolved under civil procedure law. Complaints about procedural actions and decisions, denunciations, and resolution of denunciations about procedural acts involving evidence and asset handling are conducted according to the criminal procedure law. In cases causing damage due to applied measures on evidence and asset handling, the State is responsible for compensating organizations and individuals whose assets have been damaged. The authority issuing the decision on applying measures to handle evidence and assets is responsible for resolving compensation as per the law on State liability and other relevant laws.

- The Chief Prosecutor of the Supreme People's Procuracy presides, cooperates with the Chief Justice of the Supreme People's Court, the Minister of Public Security, the Minister of National Defense to detail and guide the implementation of this Article.

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