Thông tư 126/2020/TT-BCA

CIRCULAR

REGULATING IMPLEMENTATION OF PRACTICES OF DEMOCRACY IN INVESTIGATIONS OF PEOPLE’S PUBLIC SECURITY FORCES

Pursuant to the Criminal Procedure Code dated November 27, 2015;

Pursuant to the Law on Organization of Criminal Investigation Agencies dated November 26, 2015;

Pursuant to the Law on People’s Police dated November 20, 2018;

Pursuant to the Resolution No. 55/NQ-UBTVQH10 dated August 30, 1998 of the National Assembly’s Standing Committee, regarding the introduction of Regulations on the practice of democracy in activities of authorities;

Pursuant to the Government’s Decree No. 04/2015/ND-CP dated January 9, 2015, prescribing the application of practices of democracy to activities of state administrative authorities and public service units;

Pursuant to the Government's Decree No. 01/2018/ND-CP dated August 6, 2018, defining the functions, tasks, powers and organizational structure of the Ministry of Public Security;

Upon the request of the Chief of Office of the Investigation Police Agency of the Ministry of Public Security;

The Minister of Public Security hereby promulgates the Circular, regulating the implementation of practices of democracy in investigations of the People’s Public Security forces,

Chapter I

GENERAL PROVISIONS

Article 1. Scope and subjects of application

1. This Circular provides for the purposes, principles and contents of practices of democracy in investigation activities of investigation agencies at all levels in the People's Public Security forces; the People's Public Security agencies tasked with conducting a number of investigation activities; commune, ward, town Police Sub-departments, Police Stations or Substations.

2. This Circular applies to Heads, Deputy Heads, junior investigators and investigation officers of investigation agencies; heads, deputies and investigation officers of agencies of the People's Public Security who are tasked with conducting a number of investigation activities; commune, ward, town Police, Police Stations or Substations; persons involved in the legal procedure, agencies, organizations and individuals having the rights and obligations related to investigation activities.

Article 2. Purposes of implementation of practices of democracy in investigation activities

Practices of democracy in investigation activities of the People's Public Security forces are applied in order to promote the People's mastery, and encourage the People to actively participate in activities of prevention and control of crimes; facilitate and ensure the exercise of all rights and obligations of agencies, organizations, individuals and participants in legal proceedings to such activities as receiving and handling various sources of information about crimes, criminal investigation and handling activities in accordance with laws; contribute to building clean, strong and effective collectives at investigation agencies and other affiliates of the People's Public Security that are tasked with conducting, a number of investigation activities, commune, ward, town Police, Police stations or substations; prevent and control manifestations of bureaucracy, authoritarianism, misconduct, harassment, annoyance, infringement upon human rights, legitimate rights and interests of authorities, organizations and individuals.

Article 3. Principles of carrying out practices of democracy in investigation activities

1. Complying with the Constitution and legislation when carrying out criminal investigation activities. When conducting legal proceedings, bodies and persons having jurisdiction to conduct legal procedure must, within the scope of their respective duties and powers, respect and protect human rights, legitimate rights and interests of authorities, organizations and individuals.

2. Ensuring that the democracy accompanies the order, discipline, and instructions of the People's Public Security, and does not infringe upon the operations of judicial bodies.

3. It is strictly prohibitory to abuse the democracy to infringe upon the interests of the State, the legitimate rights and interests of entities, organizations and individuals; obstruct criminal proceedings of investigation agencies and other affiliates of the People's Public Security forces which are tasked with conducting a number of investigation activities in accordance with laws.

Article 4. Relationships between Heads and Deputy Heads of Investigation Agencies; between investigation agencies at all levels and between investigation agencies and affiliates of the People's Public Security that are tasked with conducting a number of investigation activities, which exist to ensure the implementation of practices of democracy in investigation activities

1. A relationship between a head and a deputy head of an investigation agency exists as an assignment relationship under laws which arises from criminal investigation and handling activities on the basis of their respective duties, powers and responsibilities. When any discrepancy between a head and a deputy head in an investigating agency arises, the head shall have the right to decide and take responsibility before law; the deputy head shall be responsible for executing the head’s decision, but also have the right to reserve his/her opinions, and submit his/her report and recommendations in writing to the senior.

2. The relationship between units subordinate to an investigation agency exists as a relationship of cooperation in performing criminal investigation and handling activities based on their respective duties, powers and responsibilities.

3. A relationship between the superior investigation agency and the inferior one constitutes the relationship of assignment and coordination according to the rules under which the superior investigation agency gives instructions and directions about investigation activities and conduct inspections of compliance of the inferior investigation agency with laws and professional practices in receiving and handling sources of information about crimes and criminal investigation and handling activities.

4. A relationship between an investigation agency and an affiliate of the People's Public Security assigned to conduct a number of investigation activities at the same level is the relationship of responsibility allocation and cooperation in investigation activities based on their respective duties and powers. Investigation agencies shall be responsible for providing professional instructions about investigation activities to affiliates of the People's Public Security that are tasked with conducting a number of investigation activities in accordance with the 2015 Law on Criminal Procedures and the 2015 Law on Organization of Criminal Investigation Agencies.

Chapter II

SPECIFIC PROVISIONS

Section 1. RESPONSIBILITIES OF INVESTIGATION AGENCIES

Article 5. Assurance of practices of democracy in receiving and handling criminal information and complaints or denunciations arising in criminal proceedings

1. Investigation agencies must fully receive and handle criminal information, complaints and denunciations or accusations arising in criminal proceedings; notifying handling results to individuals, entities or organizations reporting crimes, informing on criminals, filing petitions, making complaints, denunciations or accusations; must take necessary actions to protect crime reporters, witnesses, victims, their relatives and denunciators or accusers in accordance with the 2015 Criminal Procedure Code and other relevant regulatory documents.

2. The reception, sorting and handling of criminal information, complaints and denunciations or accusations arising in criminal procedures must conform to legislative regulations on authority, processes, procedures and time limits.

3. Investigation agencies must arrange convenient locations and assign staff to undertake 24-hour on-call duties daily to receive and sort out criminal information sources, letters of complaint, denunciation or accusation arising in criminal proceedings from individuals, entities or organizations; written requests for defense counsels from the representatives or relatives of emergency detainees, arrestees, detainees or suspects in detention; application documentation for registration as a defence counsel, application documentation for registration for protection of legitimate rights and interests of victims, litigants, reported persons or persons against whom petitions to bring legal proceedings are filed; and must immediately transfer them to competent agencies to proceed further.

Officers performing on-call criminal duties  must comply with the orders and regulations of the People's Public Security forces, must deal with legitimate requirements with respect, politeness, decorousness, tentativeness and whole-heartedness; must avoid evading or shirking from responsibilities, must not have the authoritarian, patronizing or harassing attitudes towards entities, organizations or individuals.

4. At on-call criminal duty offices, mailboxes must be available to receive public comments or opinions, and must be installed in conspicuous places. Officers on on-call criminal duty must regularly check mailboxes to promptly report them to competent authorities to seek their solutions.

Article 6. Prohibited acts of heads, deputy heads of investigation agencies, investigators and investigation officers

1. Investigators and investigation officers shall be prohibited from performing the acts specified in Article 54 of the 2015 Law on Organization of Criminal Investigation Agencies.

2. In the course of performing assigned duties, investigators and investigation officers shall be excluded from the following acts:

a) Arbitrarily receiving and handling criminal information, complaints and denunciations or accusations in breach of the regulations, or despite heads or deputy heads of investigation agencies have not assigned them to do so; arbitrarily conducting investigation activities without due regard to investigation plans approved by heads or deputy heads of investigation agencies;

b) Adding, removing, modifying, fraudulently swapping, destroying or damaging documents, objects or exhibits involved in cases, or using other schemes to falsify criminal case contents;

c) Meeting accused persons, their relatives, litigants or other participants in legal proceedings outside the Police’s offices, except if such meeting is necessary and allowed by heads or deputy heads of investigation agencies;

d) Having a meal or drink with, receiving money, property or other benefits from, accused persons, their relatives, litigants or other participants in legal proceedings.

dd) Abusing investigation functions to meet accused persons, their relatives, litigants or other participants in legal proceedings, entities or organizations involved, ask for their help, harass or demand benefits from them in any form;

e) Extorting depositions from suspects, put words into suspects’ mouth or torture them in any form;

g) Disclosing secrets, information, documents or records related to cases or matters under investigation or examination without permission in any form to unauthorized persons. In cases where information is needed, written petitions must be filed to seek consents from heads and deputy heads.

h) Allowing persons being held in custody or detention to use their phones or other means of communication to communicate with other people (including those inside and outside detention camps or centers), except in special cases where it is obligatory to seek written consents from heads or deputy heads of investigation agencies that are handling cases or matters to meet investigation demands.

i) Putting participants or citizens in any inconvenience by keeping them waiting and travelling a lot;

3. Heads and deputy heads of investigation agencies shall be prevented from performing the acts prescribed in subparagraphs b, d, dd, e and i of clause 2 of this Article.

Article 7. Responsibilities of heads, deputy heads of investigation agencies, investigators and investigation officers for guarantee of implementation of practices of democracy

1. When conducting investigation activities, heads, deputy heads of investigating agencies, investigators and investigation officers assigned to investigation duties must act within their delegated authority and responsibilities governed under laws; must explain to procedure participants their rights and obligations, and ensure that they can exercise their rights according to the provisions of law; must document what they have explained.

2. For cases of emergency detentions or arrests, persons issuing arrest warrants must notify families of detainees, arrestees, governments of communes, wards or towns where they are residing, or entities or organizations where these persons are working or studying; If they are foreign nationals, diplomatic agencies of Vietnam must be informed to notify diplomatic missions of the countries whose citizens are arrested or held in detention. If such notifications are likely to hinder the arrest of other suspects or interfere with ongoing investigation activities, they may be pending. Later, after the concern for such hindrance no longer exists, persons issuing arrest warrants, investigation agencies receiving detainees or arrestees must issue notifications promptly.

3. When searching, seizing, temporarily impounding, distraining property, freezing accounts, handling documents, disposing of physical objects and exhibits, under no circumstances must investigation agencies not comply with the provisions of law. Investigators shall be responsible for explaining regulations of laws on such searching, seizure, temporary impoundment, distraint of property or freezing of accounts to affected persons or their legal owners or custodians involved in cases or matters. Such explanation must be documented.

4. Heads, deputy heads, investigators and investigation officers of investigation agencies shall be responsible for assuring the rights of defense of emergency detainees and the accused; assuring the legitimate rights and interests of victims, litigants or persons against whom denunciations or petitions to bring legal proceedings are file; carrying out amicable processes and procedures towards the accused, victims or witnesses who are under 18 years old in accordance with legislation.

5. Guidelines or directions of heads or deputy heads of investigation agencies about acts subject to legal procedures or criminal investigation and handling views must be expressed in writing. If guidelines or directions are given in person verbally, investigators must clearly keep detailed records of these guidelines in writing with certification given by heads or deputy heads of investigation agencies who give these guidelines or directions, and filed them into the archives of cases (AK) or matters (AD).

If investigators disagree with guidelines and directions of deputy heads of investigation agencies, they can appeal or petition against these guidelines; If deputy heads of investigation agencies disagree with those proposals or recommendations stated in these appeals or petitions, then investigators must remain to duly comply, but will have the right to reserve their opinions and petition heads of investigation agencies to consider their proposals or recommendations, and must be responsible for the contents of these proposals or recommendations. If heads of investigation agencies agree, guidelines or directions of heads of investigation agencies shall prevail.

In case of disagreeing with guidelines or directions of heads of investigation agencies, investigators can appeal or petition against these guidelines or directions; If heads of investigation agencies disagree with those proposals or recommendations stated in these appeals or petitions, then investigators must remain to duly comply, but will have the right to reserve their opinions and petition the directly superiors of the heads to consider their proposals or recommendations, and must be responsible for the contents of these proposals or recommendations.

Section 2. RESPONSIBILITIES OF AFFILIATES OR SUBODINATE UNITS OF THE PEOPLE'S PUBLIC SECURITY TASKED WITH CONDUCTING A NUMBER OF INVESTIGATION ACTIVITIES; COMMUNE, WARD, TOWN POLICE SUB-DEPARTMENTS, POLICE STATIONS OR SUBSTATIONS

Article 8. Assurance of practices of democracy in receiving and handling criminal information and complaints or denunciations arising in criminal proceedings

1. Affiliates or subordinate units of the People's Public Security that are tasked with conducting a number of investigation activities must assign officers performing on-call duties to receive criminal reports, complaints, denunciations, accusations or allegations arising in criminal proceedings.

2. When receiving and handling criminal information (even when detecting any alleged crime by themselves), if there are grounds to consider that criminal denunciations, allegations or criminal reports are not falling under their jurisdiction, within 24 hours after gaining such knowledge, affiliates or subordinate units of the People's Public Security tasked with conducting several investigation activities shall immediately refer them to investigation agencies having proper jurisdiction according to regulations of laws. In case where criminal allegations, denunciations or reports fall under their authority of examination, prosecution or investigation, they must issue either decisions on assignment of handling tasks or decisions on initiation of criminal proceedings and, concurrently, notifying handling results to agencies, organizations and individuals that have reported and denounced criminals according to the provisions of laws.

3. Commune, ward, town Police Sub-departments, Police Stations or Substations shall be responsible for receiving criminal reports and allegations. In case of emergency or where urgent requirements arise or when it is necessary to immediately deter crimes, collect evidence or protect crime scenes, commune, ward or town Police Sub-departments, Police Stations or Substations must promptly notify competent investigation agencies by using the fastest method of communication, and take timely actions prescribed in laws.

Article 9. Prohibited acts of heads, deputy heads and investigators of affiliates and subordinate units of the People's Public Security that are tasked with conducting a number of investigation activities

1. Heads, deputy heads and investigation officers assigned investigation tasks shall be prohibited from performing the acts specified in Article 54 of the 2015 Law on Organization of Criminal Investigation Agencies.

2. In the course of performing tasks, investigation officers shall be prohibited from performing the acts referred to in subparagraphs a, b, c, d, dd, e, g and i of clause 2 of Article 6; heads and deputy heads shall be prohibited from the acts defined in subparagraphs b, d, dd, e and i of clause 2 of Article 6 herein.

Article 10. Responsibilities for guarantee for implementation of practices of democracy in investigation activities of heads, deputy heads and investigation officers of affiliates and subordinate units of the People's Public Security that are tasked with conducting a number of investigation activities

1. When conducting criminal proceedings, heads, deputy heads and investigators of affiliates and subordinate units of the People's Public Security that are tasked with conducting a number of investigation activities must comply with the following regulations:

a) Acting within their delegated authority and responsibilities governed by laws; having to explain to participants in legal proceedings their rights and obligations, and ensure that they can exercise their rights according to the provisions of law; having to document what they have explained;

b) Guidelines or directions of heads or deputy heads about acts subject to legal procedures or criminal investigation and handling views must be expressed in writing. If guidelines or directions are given in person verbally, investigation officers must clearly keep detailed records of these guidelines or directions in writing with certification given by heads or deputy heads who give these guidelines or directions, and filed them into the archives of cases (AK) or matters (AD).

If investigation officers disagree with guidelines and directions of deputy heads, they will have the rights to appeal or petition against these guidelines or directions; If deputy heads disagree with those proposals or recommendations stated in these appeals or petitions, then investigation officers must remain to duly comply, but will have the right to reserve their opinions and, concurrently, petition heads to consider their proposals or recommendations, and must bear responsibility for the contents of these proposals or recommendations. If heads agree, guidelines or directions of heads shall prevail.

If investigation officers have yet to agree with guidelines and directions of deputy heads, they will have the rights to appeal or petition against these guidelines or directions; If heads disagree with those proposals or recommendations stated in these appeals or petitions, then investigation officers must remain to duly comply, but will have the right to reserve their opinions and, concurrently, petition the direct superiors of the heads to consider their proposals or recommendations, and must bear responsibility for the contents of these proposals or recommendations.

2. When searching, seizing, temporarily impounding or storing documents, physical objects and exhibits involved in cases or matters, under no circumstances must they not comply with the provisions of law. Investigators shall be responsible for explaining these regulations to persons affected by these searching, seizure or temporary impoundment sanctions. Such explanation must be documented.

Article 11. Prohibited acts of officers, servicemen of commune, ward, town Police Sub-departments, Police Stations or Substations during the process of receiving and handling criminal allegations and reports

1. Prohibited acts of public officers, civil servants or officers or servicemen of People’s armed forces are prescribed in laws;

2. Receiving applications, letters and addressing issues of citizens at their own homes or anywhere outside the police’s office, except in urgent cases where citizens come to report criminals; at the same time, having to report immediately to their direct superiors;

3. Harassing or running rackets in any form from participants in legal proceedings, their relatives, agencies, entities and organizations involved;

4. Illegally offering counseling for the accused, their relatives, litigants or other participants in legal proceedings;

5. Illegally interfering in the settlement of legal cases or matters, or abusing their influence to manipulate persons responsible for settlement of legal cases or cases

6. Bringing files, documents and records out of the office if they are not used for fulfilling the assigned tasks, or without the competent person’s consent.

Section 3. ASSURANCE OF RIGHTS AND OBLIGATIONS OF PARTICIPANTS IN LEGAL PROCEEDINGS, AGENCIES, ORGANIZATIONS AND INDIVIDUALS

Article 12. Rights and obligations of agencies, organizations and individuals to join with investigation agencies, affiliates and subordinate units of the People's Public Security tasked with conducting a number of investigation activities in carrying out legal proceedings

1. Detecting, denouncing, reporting crimes, providing information and documents related to legal cases or matters that are settled by investigation agencies, affiliates or subordinate units of the People's Public Security tasked with conducting a number of investigation activities.

2. Catching persons red-handed while committing criminal offences or wanted fugitives in accordance with the law.

3. Discovering the causes and preconditions for commission of crimes and recommending preventive or remedial measures.

4. Contributing opinions to developing investigation agencies, affiliates or subordinate units of the People's Public Security tasked with conducting a number of investigation activities into efficient and effective ones.

5. Promptly notifying investigation agencies, affiliates or subordinate units of the People's Public Security tasked with conducting a number of investigation activities of criminal acts occurring within their system and within their remit; having the right to petition and submit relevant documents to investigation agencies to seek their consent to bringing legal action against the persons committing crimes; bearing responsibility for observing investigation requirements, and enabling investigation agencies and affiliates or subordinate units of the People's Public Security tasked with conducting a number of investigation activities to fulfill their assigned investigation duties.

6. Agencies, organizations and individuals must strictly comply with decisions and requirements of investigation agencies, and affiliates or subordinate units of the People's Public Security tasked with conducting a number of investigation activities with respect to the handling of information about criminal, criminal investigation and settlement of complaints and denunciations or accusations arising in criminal proceedings.

Article 13. Assurance of practices of democracy in handling and addressing complaints, denunciations or accusations arising in criminal proceedings

1. Agencies, organizations and individuals may file their complaints or denunciations about law-breaking decisions and acts of heads, deputy heads, investigators and investigation officers of investigation agencies; heads, deputies and investigation officers of affiliates or subordinate units of the People's Public Security tasked with conducting a number of investigation activities in accordance with law;

2. Heads of investigation agencies, heads of affiliates or subordinate units of the People's Public Security tasked with carrying out a number of investigative activities shall, within the scope of their respective duties and powers, take timely and lawful actions and send written responses to these complaints and denunciations to complainants and denunciators; strictly sanction law-breaking people; take relevant measures to protect complainants or denunciators where necessary; ensure that decisions on settlement of complaints and denunciations are strictly enforced and take responsibility before law for these decisions; in case of any loss or damage that arises, must pay compensations or indemnities as legally required.

Article 14. Payment of compensation or indemnification obligations arising during investigation processes

In all cases, if citizens are classified as suspects under legal proceedings, arrested, detained, held in custody, or subject to such sanctions as search, seizure, temporary impoundment of physical objects, distraint of property and freezing of accounts, in contravention of laws, all of them must be reinstated in their honor, legitimate rights and interests, as well as must receive material and mental compensations in accordance with the Law on State Compensation Liability.

If heads, deputy heads, investigators, investigation officers of investigation agencies; heads, deputies and investigation officers of affiliates or subordinate units of the People's Public Security tasked with conducting a number of investigation activities, issue decisions or perform acts of legal proceedings in breach of laws, they shall be sanctioned as per laws.

Chapter III

IMPLEMENTARY PROVISIONS

Article 15. Entry into force

This Circular shall enter into force as of January 15, 2021.

This Circular shall supersede the Regulations on implementation of practices of democracy in investigation activities of the People’s Public Security annexed to the Decision No. 729/1998/QD-BCA(V19) dated November 9, 1998 of the Minister of Public Security.

In case where legislative documents used as referents in this Circular are amended, supplemented or replaced by other new ones, the latter shall be applied.

Article 16. Implementation responsibilities

1. Heads of subordinate units of Ministries, Directors of Police Departments of provinces or centrally-affiliated cities shall undertake the implementation of this Circular.

2. The Office of the Investigation Police Agency of the Ministry of Public Security, the Department of Security and Investigation of the Ministry of Public Security, the Department of Legal Affairs and Administrative and Judicial Reform shall be responsible for counseling and assisting the Ministry’s leadership in undertaking inspection of, supervision in a way that may help speed up, and provision of instructions for, the implementation of this Circular.

3. In the course of implementation, if any difficulty or problems arises, Police forces of units and administrative subdivisions must send issue reports to the Ministry of Public Security (via the Office of the Investigation Police Agency of the Ministry of Public Security and the Department of Security and Investigation of the Ministry of Public Security) to seek their instructions and further solutions./.