Thông tư liên tịch 01/2011/TTLT-VKSTC-TANDTC-BCA-BTP-BLDTBXH

JOINT CIRCULAR

GUIDING A NUMBER OF PROVISIONS OF THE CRIMINAL PROCEDURE CODE ON MINOR PROCEDURE PARTICIPANTS

In order in correctly and consistently implement the provisions of the Criminal Procedure Code on procedures related to minor procedure participants, the Supreme People's Procuracy, the Supreme People's Court, the Ministry of Public Security, the Ministry of Justice and the Ministry of Labor. War Invalids and Social Affairs jointly provide guidance as follows;

Chapter 1

A NUMBER OF- GENERAL MATTERS

Article 1. Purposes

Minors arc persons who are not yet fully developed physically and mentally and are vulnerable, especially when they participate in legal procedures in the course of settling cases, therefore, depending on their age, growth level and personal needs, they should be protected under law when they participate in criminal procedures

Article 2. Scope of governing

This Circular guides a number of provisions of the Criminal Procedure Code concerning minor procedure participants, including persons held in custody, the accused, defendants: witnesses and witnesses.

Article 3. Responsibilities of procedure-conducting bodies and procedure-conducting persons

In the course of investigation, prosecution and adjudication of cases involving minors, procedure-conducting bodies and procedure-conducting persons shall:

1. Strictly comply with the provisions of Chapter XXXII and other provisions of the Criminal Procedure Code, which are not contrary to the provisions of this Chapter.

2. Ensure that the minors rights prescribed by law are respected throughout the legal proceedings. The investigation, prosecution and adjudication of cases involving minors must be suitable to their psychology and age.

3. Keep secret personal information of minors. All procedural activities related to minors must he carried out in an environment convenient for the confidentiality of their personal lives, honor and dignity.

4. Minimize the number of contacts between minor victims and witnesses and the accused or defendants.

5. Apply appropriate and necessary measures prescribed by law to ensure that minor victims and witnesses as well as their relatives are safe in their lives, health, honor, dignity, property and other legitimate rights and interests when such rights are jeopardized or infringed upon.

6. Give priority to the fast, accurate and timely settlement of cases involving minors

Article 4. Assignment of tasks to procedure-conducting persons

During investigation, prosecution and trial of cases involving minors, procedure-conducting bodies shall assign tasks to investigators, procurators and judges who have been trained or have experience in the investigation, prosecution and trial of minors. or persons who have necessary knowledge about psychology and educational science as well as about the combat and prevention of crimes related to minors.

Article 5. Principles of handling of juvenile offenders

In the course of institution, investigation, prosecution and trial of cases involving juvenile offenders procedure-conducting bodies shall strictly comply with the principles of handling of juvenile offenders prescribed in Article 69 of the Penal Code; especially they shall consider lilt! exemption of penal liability if the conditions specified m Clause 2. Article 69 the Penal Code are fully met. hand them over to their families, agencies or organizations for supervision and education with a view to helping them correct their faults and integrate into the community

Chapter 2

CRIMINAL PROCEDURES APPLICABLE TO THE ACCUSED AND DEFENDANTS BEING MINORS

Article 6. Identification of ages of the accused and defendants

The identification of ages of the accused and defendants being minors shall be conducted by procedure-conducting bodies under law. Where lawful measures have been applied but the day s, months and years of birth of the accused or defendants cannot be identified, their age shall be identified as follows:

1. If a specific month of birth is identified but not a Specific day, the last day of that month will be taken as the birthday of the accused or defendant

2. if a specific quarter of a year is identified but not a specific day and a specific month in that quarter, the last day of the last month of that quarter will be taken as the birthday of the accused or defendant:

3. If the first or second half of a year is identified but not a specific day and a specific month in the first or second half of that year. June 30 or December 31 of that year will be taken as the birthday of the accused or defendant;

4. If a specific year of birth is identified but not a specific day and a specific month. December 31 of that year will be taken as the birthday of the accused or defendant

5. It the year of birth cannot be identified, assessment must be carried out to identify the age of the accused or defendant.

Article 7. Supervision of juvenile offenders

1. The investigating bodies, procuracies and courts may decide to hand over juvenile offenders to their parents or sponsors for supervision to ensure the presence of juvenile offenders when they are subpoenaed by procedure-conducting bodies.

2. For juvenile offenders without parents or clear places of residence or being homeless and hating nobody to rely on. investigating bodies should seek all measures to identify their personal information as well as their families. If unable to do so. investigating bodies shall request the Labor, War Invalids and Social Affairs agency. Youth Union organization or Women's Union organization at the place where juvenile offenders are arrested or commit the crimes or the places where the investigating bodies are competent to conduct investigation to appoint officers to supervise the juvenile offenders.

3. When accepting the requests of the investigating bodies for appointment of officers to supervise juvenile offenders, the concerned agencies shall immediately send officers and promptly notify the procedure-conducting bodies for creating conditions for the officers to contact and meet the juvenile offenders.

4. Persons tasked to supervise juvenile offenders shall closely supervise them, monitor their behaviors and morality and educate them.

Article 8. Application of deterrent measures

1. Before applying such deterrent measures as arrest, custody or temporary detention to juvenile offenders, procedure-conducting bodies shall accurately identify their age for proper application of Article 303 of the Criminal Procedure Code. In case of flagrante delicto or urgent arrest, procedure-conducting bodies shall, after the arrest, expeditiously verify their age for issuing appropriate handling decisions.

Before applying a deterrent measure defined in Article 303 of the Criminal Procedure Code, procedure-conducting bodies shall consider and take into account the application of other deterrent measures defined in Articles 91. 92 and 93 of the Criminal Procedure code

For minors lo whom the deterrent measure of custody or temporary detention has been applied, procedure-conducting Bodies shall regularly monitor and examine such application: when seeing that the application of such deterrent measure is no longer necessary, they shall cancel or replace it with another deterrent measure that does not restrict their freedom.

2. When arresting juvenile offenders, the use of force, if necessary, must comply with the provisions of law and only at an extent strong enough to control the juvenile offenders.

3. When applying the deterrent measure of custody or temporary detention to juvenile offenders, procedure-conducting bodies shall limit the extension of custody or temporary detention duration.

4. Juvenile offenders shall be held in custody or temporarily detained separately, not together with adult offenders. When seeing that juvenile offenders show signs of panic or worry which may lead to reckless negative acts, investigating bodies shall request the custody or detention establishments to apply appropriate measures to avoid any possible adverse consequences.

The custody and temporary detention of juvenile offenders must strictly comply with current laws.

5. Agencies issuing orders to arrest, hold in custody or temporarily detain juvenile offenders shall notify such in writing to their families or lawful representatives immediately after the arrest, custody or temporary detention nuclei Clause v Article 303 of the Criminal Procedure Code.

Article 9. Defense counsels' participation in legal procedures under Clause 2 of Article 57. Article 5£ and Article 305 of the Criminal Procedure code

1. Defense counsels' participation in legal procedures in the eases involving the accused 01 defendants being minors is compulsory. In all circumstances, the absence of defense counsels in the cases involving the accused or defendants being minors constitutes a serious violation, unless the minors or their lawful representatives refuse defense counsels Defense counsels may be lawyers lawful representatives of the persons kept in custody. the accused or defendants; or people's advocates.

2. When handing custody or prosecution decisions, Decision issuing agencies shall notify the person to be held in custody or the accused being minors and their lawful representatives of their right to have defense counsels

3. The lawful representatives of persons held in Custody the accused or defendants being minors may select defense counsels according to law of themselves defend the persons held in custody. the accused or defendants

4. If the accused or defendants being minors or their lawful representatives cannot select defense counsels, the investigating bodies or courts shall request bar associations to assign lawyers' offices to appoint defense counsels for such persons or request the Vietnam Fatherland Front Committees or the Front's member organizations to appoint defense counsels for their members unless the minors or then lawful representatives refuse.

The investigating bodies, procuracies or courts shall request legal aid organizations to provide legal aid for the accused or defendants being minors who have nobody to rely on. or ma) request legal aid for the accused or defendants being other minors.

5. It the accused, defendants or their lawful representatives refuse defense counsels, a minutes of the refusal shall be made and kept in case tiles.

6. Procedure-conducting bodies and persons shall create conditions for defense counsels to contact and meet the accused or defendants being minors as provided for by law.

Article 10. Taking of statements of persons kept in custody and interrogation of the accused under Article 131 and Clause 2 of Article 306 of the Criminal Procedure Code

1. The taking of statements of persons kept in custody and interrogation of the accused who are minors may be conducted at places of investigation or their places of residence. Places of statement taking or interrogation should be arranged in a propel manner to reduce the minors' tension or fear.

2 In the course of investigation and prosecution, procedure-conducting bodies shall minimize the number of takings of statements of persons kept in custody or the number of interrogations of the accused w ho are minors.

Investigators and prosecutors, when taking the statements of persons kept in custody and interrogating the accused who are minors, shall adopt behaviors, perform acts and speak the language suitable to their age, sex, perception capacity and growth level.

The time of taking statements or interrogation should he suitable to the minors' age, psychological and health conditions as well as the perception capacity, growth and development levels and the investigation requirements. The taking of statements of persons kept in custody or interrogation of the accused must be ceased when the minors show signs of tiredness, which can affect their accurate and adequate statements.

3. When taking the statements of persons kept in custody or interrogating the accused w ho are minors, procedure-conducting bodies shall notify in advance their defense counsels and law full representatives of the time and place of statement taking or interrogation. When necessary or requested by minors, designated officers, legal aid or counseling officers as well as health officers shall participate in order to ease and relax the minors.

4. When taking statements of persons kept in custody or interrogating the accused who are aged between full 14 and under 16 years or minors with mental or physical defects, or in other necessary cases, procedure-conducting bodies shall notify in advance the representatives of their families so as to ensure their presence. I he taking of statements of persons kept in custody or interrogation of the accused may be conducted in the absence of their families" representatives only in case such persons have no families or their families' representatives are deliberately absent without plausible reasons or refuse to participate.

If representatives of the families or persons kept in custody or the accused cannot show up. in order to ensure that the legal procedures are carried out in a timely manner according to regulations, the taking of statements of interrogation may still be conducted but the procedure conducting bodies shall invite officers of the Labor, War Invalids and Social Affairs agency, the Women's Union organization, the Youth Union organization or a lawyers' organization to participate in the taking of statements or interrogation.

The minors' family representatives, officers of the Labor. War Invalids and Social Affairs agency, representatives of the Women's Union. Youth Union or lawyers' organization can he arranged to sit by the minors in order to ease and relax them.

If it is necessary for the process of taking statements or interrogation, the Illinois' family representatives can he permitted to ask the minors-questions to encourage, persuade or educate them. They may not ask suggestive, orientation, affirmative or negative questions related to the cases. When realizing that the family representatives show signs of effecting mutual deposition or priming the latter about what to say, they must he asked to promptly slop the questioning and a minutes thereon must be made.

5. Representatives of the families of persons kept in custody or the accused w ho are minors may produce documents and objects to request or propose to change procedure conducting persons; lodge complaints about procedural acts of procedure-conducting persons, and read the case files upon conclusion of investigations.

Article 11. Trial of cases involving minor defendants

1 A trial panel to adjudicate cases involving minor defendants must he composed of a people's juror who is currently or used to he a teacher or a Youth Union cadre.

2. In addition to the cases specified in Article 18 of the Criminal Procedure Code. the court may deckle to hear behind-closed-doors cases involving juvenile offenders in order to facilitate the proves- of their re-integration into the community.

Mobile trial of cases involving minors may not be carried out, except for cases of necessity for law education and dissemination and crime prevention-

3. During trial, courts may arrange the seats of procedure conducting persons and procedure participants in the trial room with a view to reducing tension and fear for juvenile offenders

Handcuffs or other coercive equipment may not be used during court hearings, except for offender who intentionally committed exceptionally serious or very serious crimes, performed negative deeds or show signs of resistance or causing disorder at court hearings.

4. At court hearings to try minor defendants, representatives of their families must be present, except for cases where the family representatives are deliberately absent without plausible reasons, and so are the representatives of schools or organizations where they learn or work.

Representatives of the defendants' families, representatives of their schools or organizations attending court hearings may produce documents and objects, request and propose to change procedure-conducting persons; join in the argument process; and complain about procedural acts of persons competent to conduct procedures and court rulings.

In case of necessity or upon request of minors, courts may invite representatives of the Labor, War Invalids and Social Affairs agency. Women's Union. Youth Union or other aid officers lo participate in court hearings lo support them.

5. The questioning of minor defendants at court hearings must comply with the provisions of Article 209 of the Criminal Procedure Code and suit their age and growth level

The explanation of the rights and obligations, trial procedures us well as questions raised at court hearings should be simple and clear so that the minors and their family representatives can understand and correctly answer the questions.

The trial panels shall allow minors to express their ideas, viewpoints and aspirations and lake into account such ideas, viewpoints and aspirations before issuing judgments or rulings.

Chapter 3

CRIMINAL PROCEDURES FOR MINOR VICTIMS AND WITNESSES

Article 12. Identification of ages of minor victims

The identification of ages of minor victims shall be carried out by procedure-conducting bodies under law. If lawful measures have been applied but the exact day. month and year of birth of minor v victims cannot be identified, their age shall be identified as follows:

1 If a specific month of birth is identified but inn a specific day, the first day of that month will be taken as the birthday.

2. If a specific quarter of a year is identified hut not a specific day and a specific month in that quarter, the first day of the last month of that quarter will be taken as the birthday:

3 It the first or second hall of a year is identified but not a specific day and a specific month in the first or second half of that year. January 1 or July 1 of that year will be taken as the birthday;

4. If a specific year of birth is identified but not a specific day and a specific month. January 1 of that year will be taken as the birthday

5. If the year of birth of the minor victim cannot be identified, assessment must be carried out to identify his/her ape.

Article 13. Guardianship and assistance for minor victims

1. When determining that victims are minors, procedure-conducting bodies shall immediately notify their parents, sponsors of lawful representatives to meet the victims and exercise their rights and perform their obligations in the procedural process,

2. In addition to persons participating in the procedures in the capacity as guardians or lawful representatives procedure-conducting bodies may request representatives of the Labor, War Invalids and Social Affairs agency. Women's Union and Youth Union organization at the place where the procedures are carried out or other assistance officers to assist the minor victims, especially street children, children without support, trafficked, fraudulently exchanged or appropriated children. when they of their families request assistance in accommodation, counseling, medical and health care, legal and psychological aid in the procedural process or when necessary.

For child victims who have nobody to rely on, procedure-conducting bodies shall request the legal aid organization to provide legal aid to them. They may also request the legal aid organization to provide legal and to other minor victims.

3. At the procedure-conducting bodies' request for appointment of officers to participate in the legal procedures to assist minor victims. the requested agencies or organizations shall immediately send their officers and notify the procedure-conducting bodies to create conditions for the officers to contact and meet the minor victims.

4. The parents, sponsors, lawful represen­tatives and aid officers who have assumed the responsibility to assist minor victims may participate in all procedural stages of cases.

5. Procedure-conducting bodies and persons shall:

a/ Provide necessary information on the procedural process to minor victim as well as their parents, sponsors, lawful representatives and aid officers:

b/ Ensure the presence of their parents, sponsors, lawful representatives and aid officers so that they can assist and encourage the minor victims throughout the procedural process:

c/ Ensure that minor victims, particularly children, receive appropriate medical, health. legal and psychological assistance when the) so need

Article 14. Participation of defense counsels of the interests of minor victims

1. Procedure conducting bodies shall notify minor victims or their parents, sponsors or lawful representatives of their rights to ask for lawyers, people's advocates or other persons to defend the- interests of the minor victims.

If minor victims or their parents, sponsors or lawful I representatives cannot select defense counsels of the victims' interests, at their request or proposal, the investigating bodies, procuracies or courts shall request bar associations to assign lawyers offices to appoint lawyers or the agencies or organizations of which the victims are members to appoint people's advocates to defend their interests

2. The defense counsels of the interests of minor victims may participate in the procedures from the time of initiation of criminal cases; be present when the procedure-conducting bodies take the statements of persons the) defend, protest against parts of court judgments or rulings related to the rights and interests of the persons they defend: and propose change of procedure-conducting persons, assessors or interpreter as provided for by the Criminal Procedure Code.

Article 15. Taking of statements of minor victims and witnesses

1 The taking of statements of minor victims or witnesses may be conducted at places of investigations or their places of residence The places of taking statements of minor victims of witnesses must be arranged in an appropriate manner to ease and relax them.

2. Investigators and prosecutors, when taking statements of minor victims and witnesses, shall show friendly and tender altitudes and use the language suitable to their age. sex, perception capacity and growth level

3 W hen taking statements of child victims or witnesses, procedure conducting bodies shall invite their parents, sponsors or defense counsels or other lawful representatives or teachers to participate.

At the request of minor victims or witnesses or their lawful representatives, procedure-conducting bodies may invite representatives of the Labor, War Invalids and Social Affairs agency, Women's Union. Youth Union or other aid officers lo participate in order to assist them.

4 Procedure-conducting bodies shall base themselves on the age. psychological and health conditions, the perception capacity and growth level of minor victims or witnesses and the investigation requirements to apply appropriate professional measures aiming lo minimize the number of statement takings and lo determine the length of time of each statement taking. The taking of statements of minor victims or witnesses must immediately cease when they show signs of tiredness, which can affect their accurate and full statements.

5. The collection of evidence and taking of Statements of minor victims, including examination of marks on their bodies, injury photographing, sound and video recording, must comply with the Criminal Procedure Code and not affect their psychology as well as the confidentiality of their personal information, honor and dignity

When taking the statements of minor victims or witnesses, procedure conducting bodies may audially and visually record the taking and record it in a minutes so that during court hearings the trial panel may use those audio and video tapes to support the evidence already collected in the course of investigation.

6. Procedure-conducting bodies shall limit to the utmost confrontations between minor victims, especially children, and the accused or defendants so as not to injure them psychologically and mentally, for eases of sexual abuse, torture, trafficking or appropriation of children, confrontations may be carried out only when it is necessary to clarity details of cases which cannot be settled without the confrontations.

Article 16. Trial of cases involving minor victims

1. When conducting trial of cases involving minor victims, in order to ensure their best interests, the courts shall create conditions for the trial panel to be composed of people's jurors or ex-teacher or Youth Union cadre as in the trial of cases involving the accused being minors.

2 During trial, the court may re arrange objects and the seats of procedure-conducting persons and procedure participants in the trial room in order to reduce tension and fear of the minor victims and witnesses.

The explanation of the rights and obligations, the trial procedures as well as questions put at court hearings must be simple and clear so that the minor victims and witnesses as well as the representatives of their families understand them and give correct answers.

The court hearing chairmen may request their parents, sponsors or teachers to assist in questioning minor witnesses.

3. In order to protect the personal rights, honor and dignity of minor victims and reduce their fear, before the trial, the courts shall examine and take into account details related to the cases in order to decide whether to conduct the trials behind-closed-doors, especially for cases of sexual abuse or trafficking of children

4. For cases involving minor victims and witnesses, especially cases of sexual abuse or trafficking of children, the courts shall base on the documents and evidence include in case files in order to decide whether to conduct the trial when the minor victims or witnesses arc absent, restricting the postponement of court hearings.

5. When it is necessary to request minor victims or witnesses to present their statements at court hearings when conditions permit, the trial panel may permit them to stand behind a screen or shield so as not to directly see the accused or to directly witness m another room through a camera system.

In order to enable the minor victims and witnesses to understand more clearly about the court, at the request of their own or their lawful representatives, defense counsels or parents, the courts may allow them to arrive at the trial room before the opening of the court hearing to try the cases related to them.

Chapter 4

IMPLEMENTATION PROVISIONS

Article 17. Effect

This Circular takes effect 45 days after it is published in Cong Bao. The provisions in guiding documents of the Supreme People's Procuracy, the Supreme People's Court, the Ministry of Public Security, the Ministry of Justice and the Ministry of Labor. War Invalids and Social Affairs concerning arrested persons and procedure participants being minors (it any) which are- contrary to this Circular are all annulled.

Any problems arising in the course of implementation and matters in need of explanation and guidance shall be reported to the Supreme People's Procuracy, the Supreme People's Count the Ministry of Public Security, the Ministry of Justice and the Ministry of Labor. War Invalids and Social Affairs for timely explanation, guidance or supplementation.-