Pham Long Hai, LL.M. People’s Police University
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| An investigation police officer announces procedural decisions against the accused in a criminal case in Son La province__Photo: VNA |
The 2015 Criminal Procedure Code (as revised in 2017 and 2021) (the Code) contains new provisions on special procedural investigation measures in addition to conventional measures provided in the 2003 Criminal Procedure Code, such as initiation of criminal cases against the accused, interrogation of the accused, and taking of statements of witnesses and victims, etc. However, the practical application of these new provisions has encountered not a few difficulties and limitations, directly affecting the effectiveness of investigation activities. Therefore, it is necessary to analyze inadequacies of the Code’s provisions on special procedural investigation measures and make recommendations on improvement thereof.
Provisions on special procedural investigation measures and existing problems
Special procedural investigation measures are provided for the first time in Articles 223 thru 228 of the Code, including secret audio recording and video recording, telephone tapping, and secret collection of electronic data. These are only basic and essential measures among “universal” secret investigation measures[1] recommended under international law that have been adopted by Vietnamese lawmakers. In addition to enumerating permitted measures, Vietnamese lawmakers set out a principle on application of such measures, i.e., “after the initiation of a criminal case or during the investigation”, while other ordinary investigation measures such as scene examination[2] may be carried out before the initiation of a criminal case.
As an important stage of Vietnam’s criminal proceedings, investigation basically aims to collect evidences to determine offense(s) and offender(s) as well as evidences on matters that need to be proven in a criminal case. Since special procedural investigation measures are applicable only to dangerous and particularly serious offenses, in addition to requirements on investigation and settlement of initiated criminal cases, the crime prevention requirements in the course of application of these measures should be prioritized. The extent, time and duration of, and cases subject to, application, and types, of special procedural investigation measures should also be prudentially considered by involved subjects with a view to meeting requirements on control of crimes against which criminal cases have been initiated and concurrently preventing power abuse and refraining from infringing upon citizens’ fundamental rights. Furthermore, special procedural investigation measures should also be distinguished from professional measures applied by the Public Security forces.
Cases subject to application of special procedural investigation measures
In order to guarantee the effectiveness of special procedural investigation measures in the course of crime prevention and combat and minimize possible adverse impacts, the Code’s Article 224 specifies only two cases in which these measures may be applied, i.e., application for offenses infringing upon the national security, drug-related offenses, corruption, terrorism or money laundering[3]; and application for other organized offenses categorized as particularly serious offenses[4]. These provisions can be understood that for offenses infringing upon the national security, drug-related offenses, and corruption, terrorism or money laundering offenses, competent authorities may decide to apply special procedural investigation measures in any cases without having to observe regulations on offense severity grading and penalty frames. For other offenses, these measures may only be applied when such offenses are regarded as particularly serious and organized offenses as defined in the 2015 Penal Code.
Competence and responsibility for deciding to apply special procedural investigation measures
Under Article 225.1 of the Code, heads of provincial- or higher-level investigation bodies and heads of military investigation bodies of military-zone level or higher level may decide on application of special procedural investigation measures[5]. The decision on application of special procedural investigation measures by these persons must be based on practical requirements on crime prevention and combat of their bodies or written requests of chief procurators of provincial-level people’s procuracies or military procuracies of military-zone level. For cases accepted for investigation by district-level investigation bodies or regional military investigation bodies, the heads of such bodies will exchange opinions with chief procurators of district-level people’s procuracies or regional military procuracies on special procedural investigation measures that may be applied and grounds for their application. At the same time, heads of district-level investigation bodies or regional military investigation bodies will enclose their written requests with case files sent to heads of provincial-level investigation bodies or military investigation bodies of military-zone level for the latter’s consideration and decision on application of special procedural investigation measures.
Procedures for issuing and executing decisions on application of special procedural investigation measures
Upon issuing decisions on application of special procedural investigation measures, competent persons are required to strictly comply with Article 224 of the Code. That means, they must be aware of the importance of these measures for the settlement of criminal cases and concurrently realize impacts of these measures on target subjects. Only by doing so, can the application of these measures be effective, prevent power abuse and refrain from infringing upon citizens’ lawful rights and interests. A decision on application of special procedural investigation measure(s)[6] must clearly state necessary information about the target subject, the measure(s) to be applied, duration and place of application, and the applying body. It must also contain the information specified in Article 132.2 of the Code, including: (i) serial number, date and place of issuance of the decision; (ii) grounds for issuance of the decision; (iii) contents of the decision; (iv) full name and position of the person signing the decision, and the seal.
Regarding application procedures, decisions on application of special procedural investigation measures must be approved by procuracies at the same level with the issuing bodies before being executed[7]. Upon obtaining the same-level procuracy’s approval, the special procedural investigation measure application decider is required to request in writing specialized bodies of the People’s Public Security forces and the Army to apply special procedural investigation measures to facilitate the case investigation and clarification. In the course of application of these measures, heads of investigation bodies and chief procurators of competent procuracies and executors of decisions on application of these measures have to keep secret the contents, purposes and expected outcomes of such application.
Time limit for application of special procedural investigation measures
Article 226.1 of the Code says that the time limit for application of a special procedural investigation measure is two months after the chief procurator approves the decision on application of such measure. For a complicated case, such time limit may be extended but must not exceed the investigation time limit specified in the Code. In other words, the time limit for application of special procedural investigation measures in a criminal case depends on the law-specified time limit for such case’s investigation. At least 10 days before the expiration of the above time limit, if deeming it necessary to extend such time limit, the head of the investigation body that has issued the decision on application of the special procedural investigation measure will request in writing the chief procurator who has approved the decision to consider and decide on the extension. For a special procedural investigation measure applied to serve the investigation of a criminal case falling within the competence of a district-level investigation body or regional military investigation body, if deeming it necessary to extend the time limit for application of such measure, the head of such investigation body will have to request in writing the head of a provincial-level investigation body or the head of an investigation body of the military zone level to issue a decision requesting extension of the time limit for application of the special procedural investigation measure according to the above procedures.
Cases subject to cancellation of the application of special procedural investigation measures
In principle, a special procedural investigation measure needs to be cancelled when it is no longer necessary. The competence to cancel the application of a special procedural investigation measure rests upon the chief procurator who has approved the decision on application of such measure. Regarding procedures, chief procurators may not cancel decisions on the application of special procedural investigation measures at their own discretion. They may do so only when receiving written requests of heads of competent investigation bodies or when there is a violation committed in the course of application of such measures. For criminal cases falling under the jurisdiction of district-level investigation bodies or regional military investigation bodies, if deeming it necessary to cancel the application of a special procedural investigation measure, the head of such an investigation body has to request in writing the head of the provincial-level investigation body or the head of the investigation body of the military zone level to issue a decision requesting the cancellation according to law-specified procedures.
Article 228 of the Code on cancellation of the application of special procedural investigation measures provides no mechanism for cancellation in case of a violation committed in the course of application of such a measure or when it is no longer necessary to apply such a measure. Moreover, since special procedural investigation measures are to be carried out in a secret manner by specialized bodies of the People’s Public Security forces or the Army, it is hard to determine whether there is a violation in the course of application of such a measure or whether it is necessary to continue applying such a measure.
Use of information and documents collected through special procedural investigation measures
Information and documents collected through the application of special procedural investigation measures are abundant and diverse, including information relevant and irrelevant to criminal cases. It is stated in Article 227 of the Code that information and documents collected through special procedural investigation measures may be used for the initiation, investigation, prosecution and trial of criminal cases. Meanwhile, Article 223 of the Code stipulates that special procedural investigation measures may only be applied after the initiation of a criminal case or during a criminal case’s investigation. So, the word “initiation” referred to in Article 227 should be understood as the initiation of criminal proceedings against the accused in a criminal case.
Collected information and documents that are irrelevant to criminal cases must be promptly destroyed may not be used for other purposes. However, it is not clearly stipulated whether information and documents that are collected through special procedural investigation measures serving the investigation of an initiated criminal case and are relevant to a criminal case not yet initiated can be used for initiation of criminal cases under Article 143 of the Code.
Also under Article 227, information and documents collected through the application of special procedural investigation measures may be used as evidence in the settlement of criminal cases provided they are lawful and truthful and relevant to such cases. Investigation bodies have to immediately notify results of the application of special procedural investigation measures to chief procurators who have approved the application of such measures.
Recommendations
Firstly, the Ministry of Public Security should assume the prime responsibility for, and coordinate with the Supreme People’s Procuracy in, providing guidance on unclear contents of the Code’s provisions on special procedural investigation measures as analyzed above. In the long run, they should propose the National Assembly to revise these provisions toward providing more specific application mechanisms and adding new special procedural investigation measures in compliance with international criminal law.
Secondly, the specialized bodies of the Public Security forces and the Army should take the initiative in drafting and submitting to the Minister of Public Security and Minister of National Defense for approval the regulations on procedures for applying the measures of secret audio recording and video recording, telephone tapping, and secret collection of electronic data. These will constitute a legal ground for the application of special procedural investigation measures and serve as a basis for inspecting and identifying violations committed in the course of application of these measures.
Thirdly, the specialized bodies of the Public Security forces and the Army requested to apply special procedural investigation measures and officers assigned to directly implement these measures should strictly adhere to the law-specified principles while applying these measures. All acts of committing violations in the course of application of special procedural investigation measures will be strictly handled in accordance with law.
Last but not least, the specialized bodies of the Public Security forces and the Army competent to apply special procedural investigation measures should take the initiative in checking and inventorying the existing systems of equipment and tools in order to promptly propose the liquidation of those that can no longer properly function and procurement of new and modern ones to serve the application of special procedural investigation measures in accordance with law.-
[1] Such as controlled delivery, cross-border surveillance, undercover operations, etc.
[2] Article 147.3 of the Code.
[3] Specified in Chapters XIII and XX, Section 1 of Chapter XXIII, and Articles 113 and 324 of the 2015 Penal Code.
[4] Specified in Articles 17.2 and 9.1.d of the 2015 Penal Code.
[5] They include the Head of the Ministry of Public Security’s Investigative Police Body, the Head of the Ministry of Public Security’s Investigative Security Body, the Head of the Ministry of National Defense’s Criminal Investigation Body, the Head of the Ministry of National Defense’s Investigative Security Body, the Head of the Supreme People’s Procuracy’s Investigation Body, the Head of the Central Military Procuracy’s Investigation Body, and heads of provincial-level investigation bodies (including criminal investigation bodies and investigative security bodies).
[6] To be made according to Form 216 provided in the List issued together with the Ministry of Public Security’s Circular 119/2021/TT-BCA dated December 8, 2021, providing forms, papers, documents and books for use in criminal investigation.
[7] The Code is silent about whether decisions on application of special procedural investigation measures at the request of chief procurators must be approved by procuracies.
