New points in receiving and settling denouncement, provision of criminal information and requisitions for charges under the 2015 Criminal Procedure Code

Master. LE VAN THANH (Department of Legal and Administrative Reform, Ministry of Public Security)

ABSTRACT:

The Criminal Procedure Code in 2015 has inherited and developed the criminal procedure law of Vietnam one step further, concretizing the provisions of the Constitution 2013, institutionalizing the path of the Communist Party of Vietnam on judicial reform. It is a legal tool serving the fight against criminals, assuring the interests of the State, of the human rights, of the citizenship, legitimate the rights and the interests of organizations and individuals. Accordingly, the content of the 2015 Criminal Procedure Code has many new provisions compared to the Criminal Procedure Code in 2003, including provisions on the reception and handling of denunciations, criminal information disclosed; requisitions for charges,decisions on pressing charges. This paper is to presents new points in receiving and settling denouncement, provision of criminal information and requisitions for charges under the 2015 Criminal Procedure Code.

Keywords: Denunciations, criminal information, requisitions for charges.

1. Regarding the concept of denunciations, criminal information disclosed, requisitions for charges

The 2015 Criminal Procedure Code has added a provision on concepts related to denunciations, criminal information disclosed; requisitions for charges,decisions on pressing charges, specifically: Criminal denunciation is the discovery and denunciation by individuals when detecting signs of criminal activities to competent procedural authorities; Criminal information is information on a case with criminal signs notified by agencies, organizations or individuals to competent procedural authorities or criminal information on the media; Requisitions for charges is a petition written by a competent state agency and enclosed with relevant evidences and documents to the investigation authorities and Procuracy for consideration and handling of the case with criminal signs. This supplement comes from the practice of receiving and handling denunciations, criminal reports and petitions for prosecution. According to Articles 100, 101, 103 of the Criminal Procedure Code in 2003, the subject denouncing the crime is a citizen, the subject providing criminal information is an agency, organizations, media, the subject of the petition to prosecute is a competent state agency (inspection, audit, etc.). However, in reality, criminal denunciations are not only provided by Vietnamese citizens but also by foreigners, stateless persons in cases where they have their property, dignity and honor infringed in the territory of Vietnam. Therefore, it is not enough to only stipulate that people who are Vietnamese citizens have the right to denounce crimes. In the context of our country's increasingly deepening international integration, with more foreigners, stateless people come to Vietnam to work, to study, to travel, etc., it is necessary to expand the subject denouncing the crime to include Vietnamese citizens, foreigners and stateless people. Regarding criminal information disclosed, if the regulations are provided by agencies or organizations or on media, it is not appropriate. Practical application shows that information about a crime, apart from news agencies and organizations, individuals also report a lot of information about the case they know to the competent agency to resolve, it is also one of the bases to determine criminal signs.

The Code also specifies the form of denunciation, the information about a crime can be verbally or in writing, and provides for the handling of “false information”: “Those who knowingly denounce, report about Criminals that are false, depending on the nature and seriousness of their violations, shall be disciplined, administratively sanctioned or examined for penal liability according to the provisions of law”.

2. Responsibilities and authority to receive and process denunciations, criminal information disclosed and requisitions for charges

Basically inheriting Clauses 1 and 3, Article 103 of the Criminal Procedure Code in 2003, Article 145 of the Criminal Procedure Code in 2015 provides for the responsibility to receive and process denunciations, criminal information disclosed and requisitions for charges in a specific direction, ensuring the most convenient conditions for denunciations, criminal information disclosed to encourage this action. Accordingly, the 2015 Criminal Procedure Code clearly stipulates that the Investigation Agency, the Procuracy receives denunciations, criminal information disclosed and requisitions for charges and other agencies and organizations to receive and process denunciations, criminal information disclosed and requisitions for charges. All denunciations, criminal information disclosed and requisitions for charges must be fully received and promptly settled. Agencies and organizations responsible for receiving must not refuse to receive denunciations, criminal information disclosed and requisitions for charges. Thus, any individual, when detecting an act or a crime case, can go to the nearest agency or organization to denounce and report. These agencies and organizations are responsible for receiving information sent by individuals and immediately forward them to competent agencies such as local authorities, police agencies, procuracies, investigation agencies. A state agency, when proposing a prosecution, it has to be in writing and enclosed with relevant evidences and documents, in this case, the state agency must send it to an investigation agency or the Procuracy to receive.

About the authority to settle denunciations, criminal information disclosed and requisitions for charges are determined by the investigative competence of investigation authorities, agencies assigned to conduct a number of investigative activities. Investigation agencies handle denunciations, criminal information disclosed and requisitions for charges according to their investigation competence; while agencies assigned to conduct a number of investigative activities are only competent to settle denunciations and criminal information disclosed according to their investigative competence, not to receive and settle petitions for prosecution.

For the Procuracy, to ensure compliance with the 2015 Law on Organization of the Procuracy, the Criminal Procedure Code stipulates that the Procuracy processes denunciations, information and charge requests when investigation authorities or units assigned to performed certain activities of investigation are found to commit serious violations of the laws during their inspection and verification of denunciations, criminal information disclosed, requisitions for charges or omission of crimes. Furthermore, such issues have not been settled despite the Procuracy’s written requests.

In terms of responsibility, along with the settlement of denunciations, criminal information disclosed and requisitions for charges, the authorities empowered to process denunciations, information and charge requests are responsible for informing authorities and entities making denunciations, disclosing criminal information and requisitioning for charges of the results of the former's tasks.

3. Regarding procedures for receiving denunciations, criminal information and requisitions for charges

The 2015 Criminal Procedure Code added one article (Article 146) on procedures for receiving denunciations, criminal information and requisitions for charges. Currently Clause 1, Article 103 of the Criminal Procedure Code in 2003 only stipulates that investigation authorities, procuracies have the responsibility to fully receive denunciations, criminal information and requisitions for charges; but there are no regulations on receiving procedures, so the application has not been uniform, causing difficulties in receiving denunciations, criminal information. Therefore, to overcome this limitation, the Code clearly stipulates the procedures for receiving denunciations, criminal information and requisitions for charges, specifically:

-       When authorities and entities make direct denunciations, disclose criminal information and requisition for charges, investigation authorities, procuracies and units assigned to investigate are authorized as per Section 2, Article 145 of this Code to execute written records of receipt and enter data into a receipt journal. The acquisition of such information may be recorded by sound or sound-and-visual means.

If denunciations, criminal information and requisitions for charges are delivered by post, by telephone or by other means of communication, entries shall be made into a receipt journal.

-       Investigation authorities and units assigned to investigate, if considering certain denunciations, criminal information disclosed and requisitions for charges ultra vires, shall be held responsible for transferring such information and relevant documents to a competent investigation authority in prompt manner.

The procuracy is responsible for promptly transferring denunciations, information and charge requests and relevant documents to a competent investigation authority.

In case the Procuracy detects that the investigating agency or the agency assigned to investigate has committed serious violations of law in the inspection and verification of denunciations and crime reports, if the Procuracy has requested to initiate a prosecution or has signs of omission of a crime, which the Procuracy has requested in writing but is not remedied, within 05 days from the date the Procuracy has requested, the competent agency that is accepting and handling denunciations, criminal information and requisitions for charges must transfer all relevant documents and documents to the Procuracy for consideration and settlement.

-       Clause 3 of the laws implement the responsibility of ward police units, town police units and police stations as the “nearest" local level police in receiving denunciations, criminal information to create the legal basis for the force (receiving and categorizing about 80% of the denunciations, criminal information) perform the following tasks, meeting the practical requirements of the work as follows: Ward police units, town police units and police stations shall be responsible for receiving denunciations and criminal information disclosed, making written records of receipt and conducting preliminary verification of such information before promptly transferring such information and relevant documents and items to competent investigation authorities; Ward police units shall be responsible for acquiring denunciations and criminal information disclosed, making written records of receipt, taking preliminary statements and transferring such information and relevant documents and items to competent investigation authorities.

-       Other authorities and organizations, upon obtaining denunciations and criminal information disclosed, shall transfer such information to competent investigation authorities. In emergency events, information may be given to investigation authorities by phone or other forms of communication. However, such information must subsequently be documented.

-       In order to ensure supervision in settlement of denunciations, criminal information and requisitions for charges, the Code stipulates that investigation authorities and units assigned to investigate, in 03 days upon receiving denunciations, information and requisitions, shall be held responsible for informing the equivalent Procuracy or competent Procuracy of their receipt of information in writing.

4. Regarding the time limit and procedures for processing denunciations, criminal information disclosed and requisitions for charges

To fit with practice, the 2015 Criminal Procedure Code continues to stipulate the time limit for handling denunciations, criminal information and requisitions for charges in an urgent manner, in 20 days upon receiving denunciations, information and requisitions, shall inspect and verify such information and issue one of the following decisions: Decision to press criminal charges; Decision not to file criminal charges; Decide to suspend the processing of denunciations, information and requisitions. If denunciations, criminal information disclosed or requisitions for charges contain complex facts or the verification of such information must be done in several locations, the time limit for processing such information may be extended but shall not exceed 02 months. If activities of investigation and verification cannot end within the time limit as stated in this Section, the head of the equivalent Procuracy or competent Procuracy can sanction one extension of 02 months at most. Investigation authorities and units assigned to investigate, in at most 05 days before the end of the time limit for investigation and verification, must send a written request for extension to the equivalent Procuracy or competent Procuracy.

Regarding procedures, competent authorities, when processing denunciations, information and requisitions, shall perform these activities: Collect data, documents and items from relevant authorities and entities to verify the information; Examine the scenes; Conduct autopsy; Requisition expert examinations and valuation.

In case the Procuracy settles it according to its competence, the order, procedures and time limit for settling denunciations, information and requisitions shall also comply with the above provisions.

Such provisions are to overcome the limitations in the Criminal Procedure Code in 2003. Practically applicable shows that, for complicated denunciations, crime information, requisitions for charges, which involve many localities or foreign countries, the inspection and verification time is often prolonged, the maximum 2-month period is not appropriate. On the other hand, the Criminal Procedure Code in 2003 did not have specific provisions on the procedures for settling denunciations, criminal information and requisitions for charges, so the application still faced many problems.

5. Regarding suspension of the processing of denunciations, criminal information disclosed and requisitions for charges

The Criminal Procedure Code 2015 has stipulated to extend the time limit for settling denunciations, criminal information disclosed and requisitions for charges to 4 months, but in many cases, the time limit needs to be extended to make sure the settlement is reached. However, it is impossible to foresee the specific time for each case, and if the regulations extend the settlement time further it might be taken advance of, not ensuring the timeliness in the work. Therefore, Article 148 of the Criminal Procedure Code 2015 stipulated the suspension of the processing of denunciations, criminal information disclosed and requisitions for charges, specifically the competent authorities, upon the expiration of the time limit as defined in Article 147 of this Law, shall decide to suspend the processing of denunciations, information and charge requests in one of the following events: Expert examination, valuation and foreign judicial assistance have been requisitioned to no avail; Though authorities and entities have been asked to provide essential documents and items that lead to the decision to or not to press charges, nothing works.

The Code provides specific regulations on the time limit for investigation authorities and units assigned to investigate to send the decision to suspend the processing of denunciations, information and requisitions, and relevant documents to the equivalent Procuracy or competent Procuracy, which administer and forward such decision to the authorities and entities making denunciations, disclosing criminal information and requisitioning charges.

The time limit for the continued processing of denunciations, information and charge requests shall not exceed 01 month after investigation authorities and units assigned to investigate receive the decision to invalidate the suspension.

If the processing of denunciations, information and charge requests is suspended, expert examination, valuation or judicial assistance shall persist until final findings are available.”

6. Regarding resumption of the processing of denunciations, criminal information disclosed and requisitions for charges

Along with the provisions on suspending the suspension of the processing of denunciations, criminal information disclosed and requisitions for charges, Article 149 of the CPC 2015 stipulates, when the vindication for the suspension of the processing of denunciations, information and charge requests languishes, investigation authorities and units assigned to investigate shall decide to resume the processing of denunciations, information and requisitions. The time limit for the continued processing of denunciations, information and charge requests shall not exceed 01 month upon the decision on resumption.

The Code also specified that within 03 days upon the decision of the investigation authorities and units assigned to investigate, to resume the processing of denunciations, information and requisitions, they must send such decision to the equivalent Procuracy or competent Procuracy, and authorities and entities making denunciations, disclosing criminal information or requisitioning charges.

7. Regarding the settlement of disputes over the authority to process denunciations, criminal information disclosed and requisitions for charges

The Criminal Procedure Code 2015 adds one article (Article 150) providing for the settlement of disputes over the authority to process denunciations, criminal information discloses and requisitions for charges as follows: The immediate superior Procuracy shall settle disputes over the authority to process denunciations, information and requisitions to suits the practice. Practical application shows that since the Criminal Procedure Code 2003 has no provisions on the settlement of disputes over the authority to process denunciations, criminal information disclosed and requisitions for charges, there are many problems in practice with the phenomenon of extrusion in solving them. Therefore, the Criminal Procedure Code in 2015 specifies as follows: The competent Procuracy shall settle disputes over the authority to process denunciations, information and charge requests among units assigned to investigate; The Supreme People’s Procuracy or the Central military procuracy shall settle disputes over the authority to process denunciations, information and charge requests among provincial investigation authorities or among military investigation units in military zones, respectively. The provincial People’s Procuracy or Military procuracy related to the authority or military zone that first receive denunciations, information and charge requests shall settle disputes over the authority to process denunciations, information and charge requests among district investigation authorities from various provinces or centrally-affiliated cities or among military investigation units from different military zones; The head of the Supreme People’s Procuracy shall settle disputes over the authority to process denunciations, information and charge requests among investigation units of the people's police force, People’s Army and Supreme People’s Procuracy.”

 

REFERENCES:

  1. Criminal Procedure Code 2003.
  2. Criminal Procedure Code 2015.

 

NHỮNG ĐIỂM MỚI TRONG TIẾP NHẬN, GIẢI QUYẾT TỐ GIÁC, TIN BÁO VỀ TỘI PHẠM VÀ KIẾN NGHỊ KHỞI TỐ THEO BỘ LUẬT TỐ TỤNG HÌNH SỰ NĂM 2015

ThS. LÊ VĂN THÀNH

Cục Pháp chế và cải cách hành chính, tư pháp - Bộ Công an

TÓM TẮT:

Bộ Luật Tố tụng hình sự (BLTTHS) năm 2015 đã kế thừa và phát triển một bước pháp luật tố tụng hình sự của Nhà nước ta, cụ thể hóa các quy định của Hiến pháp năm 2013, thể chế chủ trương của Đảng về cải cách tư pháp; là công cụ pháp lý phục vụ cuộc đấu tranh phòng, chống tội phạm, bảo đảm lợi ích của Nhà nước, quyền con người, quyền công dân, quyền và các lợi ích hợp pháp của tổ chức và cá nhân. Theo đó, nội dung của BLTTHS năm 2015 có nhiều quy định mới so với BLTTHS năm 2003, trong đó có các quy định về công tác tiếp nhận, xử lý tố giác, tin báo về tội phạm, kiến nghị khởi tố. Trong bài viết này, tác giả đề cập đến những điểm mới về công tác tiếp nhận, xử lý tố giác, tin báo về tội phạm, kiến nghị khởi tố theo quy định của BLTTHS năm 2015.

Từ khóa: Bộ Luật Tố tụng hình sự, tiếp nhận, giải quyết tố giác, tội phạm, khởi tố.