Decree No. 127/2017/ND-CP dated November 16, 2017 of the Government on prescribing in detail the sealing and breaking of seals of exhibits

DECREE

Prescribing in detail the sealing and breaking of seals of exhibits[1]

Pursuant to the June 19, 2015 Law on Organization of the Government;

Pursuant to the November 27, 2015 Criminal Procedure Code;

Pursuant to the November 14, 2008 Law on Enforcement of Civil Judgments, and the November 25, 2014 Law Amending and Supplementing a Number of Articles of the Law on Enforcement of Civil Judgments;

Pursuant to the National Assembly’s Resolution No. 41/2017/QH14 of June 20, 2017, on the implementation of Penal Code No. 100/2015/QH13, which was amended and supplemented under Law No. 12/2017/QH14, and on the effect of Criminal Procedure Code No. 101/2015/QH13, Law No. 99/2015/QH13 on Organization of Criminal Investigation Bodies, and Law No. 94/2015/QH13 on Custody and Temporary Detention;

At the proposal of the Minister of Public Security;

The Government promulgates the Decree prescribing in detail the sealing and breaking of seals of exhibits.

Chapter I

GENERAL PROVISIONS

Article 1.Scope of regulation

This Decree prescribes definition, principles of; order and procedures for and tasks, powers and responsibilities for, sealing and breaking of seals of different types of exhibits in investigation, prosecution, trial and judgment execution.

Article 2.Subjects of application

This Decree applies to bodies and persons competent to conduct legal proceedings, proceeding participants, and agencies, organizations and individuals involved in the sealing and breaking of seals of exhibits.

Article 3.Interpretation of terms

In this Decree, the terms below are construed as follows:

1. Sealing of an exhibit means keeping an exhibit intact in the following ways:

a/ Putting the exhibit in a safely protected state by wrapping or boxing it, putting it into a box, bottle, vial and otherwise (below referred to as wrapping, putting in a closed box) and affixing paper seals onto parts of the wrapper or box which can be opened to take out or swap the exhibit or impacted to alter the originality of the exhibit;

b/ For a heavy or large or immovable exhibit, paper seals shall be affixed to every part or important parts of the exhibit;

c/ Some types of exhibits may be locked, clamped with lead or steel wire or otherwise wrapped up before being affixed paper seals.

2. Breaking the seal of an exhibit means removing its paper seal(s) and opening its wrapping or box, for exhibits which are wrapped up or put into a closed box; or removing the paper seal(s), for exhibits which are not wrapped up or put into a closed box or immovable exhibits.

3. Paper seal means a highly durable paper on which the name of the agency in charge of sealing exhibits, full names, signatures or fingerprints (together with names of fingerprint-pressing persons) of persons organizing the sealing, persons participating in the sealing, and time of sealing are written and the stamp of the related agency
is appended.

4. Person organizing the sealing and breaking of seals of exhibits means the person assigned by a competent agency or person to conduct criminal proceedings or execute a judgment.

Article 4. Principles of sealing and breaking of seals of exhibits

1. To be done only when requested to serve investigation, prosecution, trial or judgment execution activities.

2. To comply with the order, procedures, forms and competence in accordance with law and this Decree.

3. To ensure promptness and timeliness; to ensure respect for the interests of the State, lawful rights and interests of agencies, organizations and individuals.

4. To keep exhibits intact.

Article 5.Exhibits to be sealed and exhibits not to be sealed

All exhibits collected shall be sealed, except the following:

1. Exhibits being live animals and plants.

2. Exhibits being documents which are included in case files.

3. Exhibits which are perishable or hard to be preserved.

4. Other exhibits which the agencies or persons competent to conduct legal proceedings deem they need not to be sealed.

Article 6.Persons organizing the sealing and breaking of seals of exhibits

1. Heads and deputy heads of investigation bodies and investigators.

2. Heads, deputy heads and investigation officers of bodies assigned to carry out a number of investigation activities.

3. Competent persons who are processing the cases at the stage of prosecution, trial or judgment execution in accordance with law.

Article 7.Persons participating in the sealing and breaking of seals of exhibits

1. Persons participating in the sealing of exhibits include:

a/ Witnesses or representatives of the administrations of communes, wards or townships where exhibits are sealed;

b/ Persons concerned; representatives of agencies and organizations with interests, obligations and/or responsibilities related to the exhibits (if any);

c/ Defense counsels (if any).

2. Persons participating in the breaking of seals of exhibits:

a/ Persons concerned; representatives of agencies and organizations with interests, obligations and/or responsibilities related to the exhibits (if any);

b/ Defense counsels (if necessary);

c/ Representatives of the administrations of communes, wards or townships where the breaking of seals of exhibits is carried out (in case of necessity);

d/ Representatives of agencies managing the sealed exhibits, in case exhibits are preserved at specialized agencies.

Chapter II

SEALING OF EXHIBITS

Article 8.Order and procedures for sealing of exhibits

Sealing and seal breaking may be carried out once or more than once for a single exhibit. After breaking the seal of an exhibit and using it, such exhibit shall be sealed again according to the order and procedures prescribed in this Decree, and sent to the place of exhibit preservation in accordance with law. The sealing of an exhibit shall be carried out according to the following order and procedures:

1. Preparing for the sealing of an exhibit

a/ The person organizing the sealing shall invite or summon persons to participate in the sealing;

In case the person concerned or the representative of an agency or organization with interests, obligations and/or responsibilities related to the exhibit has lost his/her act capacity in accordance with law or has died, the person organizing the sealing shall invite a relative or lawful representative of such person to participate in the sealing.

In case a person with interests, obligations and/or responsibilities related to the exhibit is an accused or defendant who is being held in custody or detention, the person organizing the sealing shall invite a relative or the defense counsel (if any) of such person or a representative of the administration of the commune, ward or township where the sealing of the exhibit is done to witness the sealing.

For exhibits in need of special preservation such as toxins, radioactive substances, explosives, flammables, bacteria, superbugs, harmful parasites, blood samples, tissue samples, human organs and other human body parts or other similar exhibits, their sealing must be participated by a relevant specialized agency. In case it is deemed necessary to immediately seal an exhibit in order to keep it intact and the representative of such specialized agency cannot be waited for, the exhibit may still be sealed, but safety must be ensured.

For an exhibit which can not be sealed on the scene, every part or important parts of such exhibit shall be sealed before it is transported to a place designated by the body competent to process the case in order to be sealed properly according to the order and procedures prescribed in this Decree.

b/ Preparing necessary conditions for the sealing of an exhibit.

The person in charge of organizing the sealing of an exhibit shall direct the preparation of necessary tools and equipment to serve the sealing, affixture of paper seals, and preservation and transportation of the exhibit.

2. Sealing an exhibit

a/ To inspect the exhibit and describe its real state in the record of sealing of the exhibit in a detailed, full and accurate manner;

b/ To wrap up the exhibit or put it into a closed box (for exhibits which may be wrapped or put into a closed box);

c/ The persons organizing and participating in the sealing shall sign and write their full names or press their fingerprints (together with the names of the fingerprint-pressing persons) on the paper seals (in unfadable ink);

d/ To append the stamp of the agency or organization organizing the sealing or of the administration of the commune, ward or township where the sealing is done to paper seals;

dd/ To affix paper seals;

For an exhibit wrapped or put into a closed box, paper seals shall be affixed onto parts of the wrapper or box which can be opened to take out the exhibit or impacted to alter the originality of the exhibit;

For a heavy, large or immovable exhibit, paper seals shall be affixed onto its important parts which display the origin and typical features of the exhibit and its couplings or joints;

On a case-by-case basis, measures shall be taken to protect the paper seals as suitable to the transport and preservation conditions.

e/To inspect the seal of the exhibit (the paper seal should not be torn or ragged and the information written thereon should not be faded or altered).

3. Finishing the sealing of an exhibit

A written record of the sealing of an exhibit shall be made, accurately describing the real state of the exhibit before and after the sealing and bearing the signatures, full names or fingerprints (together with the names of the fingerprint-pressing persons) of the persons organizing and participating in the sealing in accordance with law and this Decree. The record shall be included in the case file and one copy of the record shall be handed over to each person, agency or organization with interests, obligations and/or responsibilities related to the sealed exhibit.

In case the person concerned, the representative of an agency or organization with interests, obligations and/or responsibilities related to the sealed exhibit, or a defense counsel refuses to sign the record of the sealing of an exhibit or paper seal, the person organizing of the sealing shall make a written record clearly stating the reason for such refusal, to the witness of a representative of the administration of the commune, ward or township where the exhibit is sealed.

In case the person concerned, the representative of an agency or organization with interests, obligations and/or responsibilities related to the sealed exhibit (or his/her relative or lawful representative), or a defense counsel is absent or does not turn up without a plausible reason at the request of the agency or person organizing the sealing of the exhibit, or the exhibit is ownerless or the owner or lawful manager of the exhibit has not been identified yet, a written record shall be made, clearly stating the reason for the absence and bearing the signatures of persons participating in the sealing.

Article 9.Tasks, powers and responsibilities of persons organizing the sealing of exhibits

1. To assume the prime responsibility for organizing the sealing of exhibits.

2. To invite and summon persons to participating in the sealing of exhibits.

3. To inspect the exhibits to be sealed.

4. To prepare necessary conditions for the sealing of exhibits.

5. To sign and write their full names on paper seals; to write the full names of fingerprint-pressing persons (if any) on paper seals.

6. To wrap up exhibits or put them into closed boxes (for exhibits which may be wrapped or kept in closed boxes) and affix paper seals.

7. To check the seals of exhibits.

8. To sign and write their full names in the records of the sealing of exhibits; to write down the full names of fingerprint-pressing persons (if any) in the records of the sealing of exhibits.

Article 10.Responsibilities of persons participating in the sealing of exhibits

1. To be present so as to participate in the sealing of exhibits when requested by persons organizing the sealing of exhibits.

2. To witness the process of sealing exhibits.

3. To sign and write their full names or press their fingerprints on paper seals.

4. To participate in inspecting the seals of exhibits.

5. To sign and write their full names or press their fingerprints in the records of the sealing of exhibits.

Chapter III

BREAKING OF SEALS OF EXHIBITS

Article 11.Order and procedures for breaking seals of exhibits

1. Preparing for breaking the seal of an exhibit

a/ The person in charge of organizing the breaking of the seal of an exhibit shall invite and summon persons to participate in the seal breaking at the right time and place.

In case the person concerned, or the representative of an agency or organization with interests, obligations and/or responsibilities related to the seal breaking has lost his/her act capacity in accordance with law or has died, the person organizing the seal breaking shall invite a relative or lawful representative of such person to participate in the seal breaking.

In case a person with interests, obligations and/or responsibilities related to the sealed exhibit is an accused or defendants who is being held in custody or detention, the person organizing the seal breaking shall invite his/her relative or defense counsel (if any) or a representative of the administration of commune, ward or township where the seal breaking is carried out to witness the seal breaking.

b/ To prepare necessary conditions for the seal breaking: To carry out the procedures for bringing the exhibit out of the storehouse (for exhibits kept in an exhibit storehouse), or notify the agency, organization or persons currently storing or preserving the exhibit.

2. Breaking the seal of an exhibit

a/ To check the seal of the exhibit before removing it;

b/ To remove the paper seal and open the wrapping or closed box, for exhibits wrapped or kept in a closed box;

To remove the paper seals for exhibits unwrapped or not put in a closed box;

c/ To inspect the exhibit after removing its seal.

3. Finishing the seal breaking

A written record of the breaking of the seal of an exhibit shall be made, accurately describing the seal’s condition before it is removed, the actual state of the exhibit after its seal is removed, and bearing the signatures, full names or fingerprints (together with the names of fingerprint-pressing persons) of the persons organizing and participating in the seal breaking in accordance with law and this Decree. The record shall be made by the person organizing the seal breaking and included in the case file. One copy of the record shall be handed over to each person, agency or organization with interests, obligations and/or responsibilities related to the sealed exhibit.

In case the seal is no longer intact, a written record of the condition of the seal and actual state of the exhibit shall be made for investigation to find out the cause and handling responsible persons in accordance with law.

In case the person concerned (if any), the representative of an agency or organization with interests, obligations and/or responsibilities related to the sealed exhibit, or a defense counsel refuses to sign the written record of the breaking of the seal of an exhibit, the person organizing the seal breaking shall make a written record clearly stating the reason for such refusal, to the witness of a representative of the administration of the commune, ward or township where the seal breaking is carried out.

In case the person concerned (if any), the representative of an agency or organization with interests, obligations and/or responsibilities related to the sealed exhibit (or his/her relative or lawful representative), or defense counsel is absent without a plausible reason at the request of the agency or person organizing the seal breaking, or the exhibit is ownerless or the owner or lawful manager of the exhibit has not been identified yet, a written record shall be made, clearly stating the reason for the absence and bear the signatures of persons participating in the seal breaking.

In case the seal of an exhibit is removed to serve investigation, prosecution, trial or judgment execution activities, then the exhibit is to be  sealed again, persons carrying out this sealing include: persons organizing and participating in the sealing; the representative of the agency assigned to manage the exhibit; witnesses (the representative of the administration of the commune, ward or township, representative of a procuracy or defense counsels of the accused or defendant), if necessary.

Article 12.Tasks, powers and responsibilities of persons organizing the breaking of seals of exhibits

1. To assume the prime responsibility for organizing the breaking of seals of exhibits.

2. To invite and summon persons, agencies and organizations with interests, obligations and/or responsibilities related to exhibits.

3. To propose and carry out the procedures for ex-warehousing exhibits; to notify related agencies, organizations and individuals.

4. To check seals of exhibits before breaking them.

5. To remove seals of exhibits.

6. To inspect exhibits after removing their seals.

7. To sign and write their full names in the records of the breaking of seals of exhibits; to write down full names of fingerprint-pressing persons (if any) in the records.

Article 13.Responsibilities of persons participating in the breaking of seals of exhibits

1. To be present so as to participate in the breaking of seals of exhibits upon request of persons organizing the seal breaking.

2. To witness the process of breaking seals of exhibits.

3. To participate in checking seals of exhibits before they are removed

4. To sign and write their full names or press their fingerprints in the records of the breaking of seals of exhibits.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 14.Effect

This Decree takes effect on January 1, 2018.

Article 15.Implementation responsibility

1. The Ministry of Public Security and the Ministry of Justice shall coordinate with the Supreme People’s Procuracy and the Supreme People’s Court in guiding the sealing and breaking of seals of exhibits by criminal proceedings-conducting bodies and persons of the procuracies and courts.

2. The Minister of Public Security shall organize, urge, guide and inspect the implementation of this Decree.

3. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People’s Committees, and related organizations and individuals shall implement this Decree.-

On behalf of the Government
Prime Minister
NGUYEN XUAN PHUC