Joint Circular No. 03/2018/TTLT-BCA-VKSNDTC-BQP of the Ministry of Public Security, the Supereme People's Procuracy, the Supereme People's Court and the Ministry of National Defense on guiding the order and procedures for making audio recordings or audio-visual recordings during investigation, prosecution or trial; and the use, preservation and archive of these audio recordings and audio-visual recordings

JOINT CIRCULAR

Guiding the order and procedures for making audio recordings or audio-visual recordings during investigation, prosecution or trial; and the use, preservation and archive of these audio recordings and audio-visual recordings^[1]

Pursuant to the November 27, 2015 Criminal Procedure Code;

Pursuant to the National Assembly’s Resolution No. 110/2015/QH13 of November 27, 2015, on implementation of the Criminal Procedure Code;

Pursuant to the National Assembly’s Resolution No. 41/2017/QH14 of June 20, 2017, on implementation of Penal Code No. 100/2015/QH13, which has been 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 Temporary Detention and Custody;

The Minister of Public Security, Procurator General of the Supreme People’s Procuracy, Chief Justice of the Supreme People’s Court, and Minister of National Defense promulgate the Joint Circular guiding the order and procedures for making audio recordings or audio-visual recordings during investigation, prosecution or trial; and the use, preservation and archive of these audio recordings and audio-visual recordings.

Chapter I

GENERAL PROVISIONS

Article 1.Scope of regulation and subjects of application

1. This Joint Circular guides the order and procedures for making audio recordings or audio-visual recordings; and the use, preservation and archive of audio recordings and audio-visual recordings of the interrogation of the accused or taking of statements of at-law representatives of crime-committing commercial legal entities during the investigation, prosecution or trial.

2. This Joint Circular applies to competent proceeding-conducting bodies and persons during the investigation, prosecution or trial; proceeding participants and other agencies, organizations and individuals involved in the making of audio recordings or audio-visual recordings of the interrogation of the accused or taking of statements of at-law representatives of crime-committing commercial legal entities, and the use, preservation and archive of these audio recordings and audio-visual recordings.

3. The provisions of this Joint Circular apply to the taking of statements of witnesses, victims and involved parties; confrontation; receipt of crime denunciations and reports and proposals on initiation of criminal cases.

Article 2.Interpretation of terms

1. Audio recording or audio-visual recording means the use of technical devices and equipment to record sounds or images with sounds during the interrogation of the accused, taking of statements of at-law representatives of crime-committing commercial legal entities; taking of statements of witnesses, victims and involved parties; confrontation; receipt of crime denunciations and reports and proposals on initiation of criminal cases.

2. Technical devices and equipment used to make audio recordings or audio-visual recordings means those for recording sounds or images with sounds, including: equipment for recording images and sounds, video recorders, servers, and other technical devices and equipment used for recording sounds or images with sounds in accordance with this Joint Circular.

3. Technical failure means a malfunction or breakdown of a technical device or equipment which makes the audio recording or audio-visual recording impossible or interrupts or affects the quality of the audio recording or audio-visual recording; or such objective incident as blackout, fire or explosion which makes the audio recording or audio-visual recording impossible.

4. Audio recording or audio-visual recording room at a detention or custody facility, an office of an investigation body, a procuracy or a body assigned to carry out a number of investigating activities means a special-use room that satisfies all the conditions on space, lighting and safety and is equipped with technical devices and equipment for audio recording or audio-visual recording with quality sounds and images.

5. Professional officer means an officer on the state payroll of an investigation body, a procuracy or a body assigned to carry out a number of investigating activities, possessing professional and technical expertise and skills to use technical devices and equipment for audio recording or audio-visual recording, and responsible for managing these technical devices and equipment and preserving and archiving audio recordings or audio-visual recordings.

Article 3.Principles of application

1. Audio recording or audio-visual recording must ensure the objectiveness, transparency and integrity of recorded data. Audio-recorded or audio-visually recorded data constitute part of criminal case files which shall be used, preserved and archived in accordance with the regulations on use, preservation and archive of criminal case files.

2. The audio recording or audio-visual recording of, and the use, preservation and archive of audio recordings and audio-visual recordings made during, the investigation, prosecution or trial must comply with the Criminal Procedure Code and the order and procedures guided in this Joint Circular.

3. Lawful rights and interests of proceeding participants provided in the Criminal Procedure Code shall be respected.

Article 4.Prohibited acts

1. Editing, modifying, cutting off, putting together, forging, destroying or falsifying without permission, damaging or causing loss of audio-recorded or audio-visually recorded data; reproducing, distributing, exploiting or using audio recordings or audio-visual recordings for purposes other than those prescribed in Articles 7 and 8 of this Joint Circular; disclosing or leaking information about criminal cases or infringing upon lawful rights and interests, reputation and honor of agencies, organizations and individuals.

2. Destroying physical foundations, intentionally damaging or using for improper purposes technical devices and equipment used for audio recording or audio-visual recording.

3. Persons committing acts specified in Clauses 1 and 2 of this Article shall, depending on the nature and seriousness of their violations, be handled in accordance with law.

Chapter II

SPECIFIC PROVISIONS

Article 5.Order and procedures for making audio recordings or audio-visual recordings of the interrogation of the accused or the taking of statements of at-law representatives of crime-committing commercial legal entities

1. Officers interrogating the accused or taking statements of at-law representatives of crime-committing commercial legal entities shall decide to choose the form of audio recording or audio-visual recording.

2. Order and procedures for making audio recordings or audio-visual recordings of the interrogation of the accused or taking of statements of at-law representatives of crime-committing commercial legal entities at detention or custody facilities, offices of investigation bodies, procuracies and bodies assigned to carry out a number of investigating activities are prescribed as follows:

a/ An officer interrogating the accused or taking statements of the at-law representative of a crime-committing commercial legal entity shall register with the professional officer at the detention or custody facility, office of an investigation body, a procuracy or a body assigned to carry out a number of investigating activities so that the latter arranges a special-use room and provides instructions on the technical process and operations to make audio recordings or audio-visual recordings. Then, the interrogating officer shall carry out the procedures for transferring the detained or summoning the bailed-out accused (or the at-law representative of the crime-committing commercial legal entity) in accordance with law (it is not allowed to interrogate the bailed-out accused in a detention facility, unless he/she is ordered to confront a detainee). As soon as a special-use room is arranged, the interrogating officer shall come to the room and notify the audio recording or audio-visual recording to the accused or at-law representative of the crime-committing commercial legal entity. Such notification shall be recorded in a minutes before the interrogation or taking of statements starts;

b/ The audio recording or audio-visual recording starts when an interrogating officer presses the record button. He/she shall read out the starting time and clearly record it in the minutes. During the interrogation or taking of statements, the audio recording or audio-visual recording may be paused by pressing the pause button. Before pausing the recording, the interrogating officer shall read out the time of pause and reason for the pause. When resuming the interrogation or taking of statements, he/she shall also read out the time of resumption. The pause and resumption shall be clearly recorded in the minutes. At the end of the interrogation or taking of statements, the officer shall inform the accused or at-law representative of the crime-committing commercial legal entity that the interrogation or taking of statements ends and press the stop button. The ending time must be clearly recorded in the minutes;

c/ Interrogation or taking of statements may not be carried out without audio recording or audio-visual recording equipment. Should the audio recording or audio-visual recording equipment stop working due to a technical problem during the interrogation or taking of statements, such interrogation or taking of statements shall be immediately ceased. Such cessation shall be clearly recorded in the minutes with certification by the professional officer involved.

3. In case the interrogation of the accused or taking of statements of the at-law representative of a crime-committing commercial legal entity is carried out at another place, audio recording or audio-visual recording shall be carried out if the accused or at-law representative or a competent proceeding-conducting body or person so requests. The order and procedures for such audio recording or audio-visual recording comply with Point b, Clause 2 of this Article.

In case no audio recording or audio-visual recording equipment is available, the interrogating officer shall notify such to the accused or at-law representative of a crime-committing commercial legal entity and may interrogate or take statements only with the latter’s consent. Should the audio recording or audio-visual recording equipment stop working due to a technical problem during the interrogation or taking of statements, the interrogating officer shall notify such to the accused or at-law representative of the crime-committing commercial legal entity and may continue the interrogation or taking of statements only with the latter’s consent or shall stop it if the latter does not consent. The continuation or discontinuation of the interrogation or statement taking shall be clearly recorded in the minutes with certification by the professional officer involved.

4. The making of minutes of interrogation of the accused or taking of statements of at-law representatives of crime-committing commercial legal entities must comply with the Criminal Procedure Code.

Article 6.Preservation and archive of audio recordings or audio-visual recordings of the interrogation of the accused or taking of statements of at-law representatives of crime-committing commercial legal entities

1. Servers installed at the offices of investigation bodies, procuracies and bodies assigned to carry out a number of investigating activities shall be managed and preserved by officers assigned by these bodies; servers installed at detention and custody facilities shall be managed and preserved by professional officers assigned by competent investigation bodies.

2. Audio recordings and audio-visual recordings of the interrogation of the accused or taking of statements of at-law representatives of crime-committing commercial legal entities shall be fully archived in servers to ensure safety and confidentiality.

After the investigation of a criminal case or prosecution is finished, professional officers shall copy audio recorded or audio-visually recorded data into peripheral devices for storage and hand them over to interrogating officers. Interrogating officers shall hand over these peripheral devices together with case files for investigation, prosecution or trial.

3. For criminal cases or matters transferred for investigation and settlement by competent bodies, transferring bodies shall also hand over peripheral devices storing audio recorded or audio-visually recorded data together with case or matter files to receiving bodies for exploitation, use and preservation and archive under this Joint Circular. Upon returning case files for additional investigation or reinvestigation, peripheral devices storing data of audio recordings or audio-visual recordings shall also be returned and handed over together with cases files.

4. The handover of audio recorded or audio-visually recorded data of the interrogation of the accused or taking of statements of at-law representatives of crime-committing commercial legal entities shall be recorded in a a minutes.

Article 7.Use of audio recordings and audio-visual recordings of the interrogation of the accused or taking of statements of at-law representatives of crime-committing commercial legal entities during the investigation or prosecution

1. During the investigation: Heads or deputy heads of investigation bodies; heads or deputy heads of bodies assigned to carry out a number of investigating activities; investigators; chairpersons, deputy chairpersons of procuracies, procurators and examiners shall use audio recordings or audio-visual recordings for the investigation in case the accused or at-law representatives of crime-committing commercial legal entities change their previous statements; use and evaluate evidence to clarify criminal acts of the accused or crime-committing commercial legal entities and other accomplices (if any), ensuring the objective and comprehensive settlement of criminal cases. At the same time, they shall examine the law observance by investigators, procurators and examiners during the interrogation of the accused or taking of statements of at-law representatives of crime-committing commercial legal entities.

2. During the prosecution: Chairpersons, deputy chairpersons of procuracies and procurators shall use audio recordings or audio-visual recordings for the prosecution and as grounds for verifying the impartiality of the interrogation of the accused or taking of statements of at-law representatives of crime-committing commercial legal entities by investigation bodies or bodies assigned to carry out a number of investigating activities; and use these audio recordings or audio-visual recordings to evaluate evidence so as to clarify criminal acts of the accused and accomplices; and examine to detect any signs of injustice, extortion of statements or corporal punishment against the accused, or other violations committed during the investigation.

3. Audio recordings and audio-visual recordings may be also used in the examination of law observance during the investigation, prosecution, trial, settlement of complaints and denunciations; and in the assessment of criminal cases.

4. Competent persons specified in Clauses 1 and 2 of this Article may copy audio recordings and audio-visual recordings in servers to serve investigation and prosecution activities.

Article 8.Use of audio recordings or audio-visual recordings of the interrogation of the accused or taking of statements of at-law representatives of crime-committing commercial legal entities during trial

1. During the trial preparation, a judge that chairs a court hearing shall take the initiative in considering and studying evidence and documents in the case file. In case an audio recorded or audio-visually recorded evidence or document cannot be replayed, he/she shall request the procuracy to make and provide to the court audio recorded or audio-visually recorded data.

2. A trial panel shall decide to permit audio recordings or audio-visual recordings to be replayed at a court hearing in the following cases:

a/ Open examination at the court hearing of evidence, documents and objects related to the case as deemed necessary by the trial panel;

b/ Defendants complain that they have been extorted for statements or corporally punished during the interrogation or taking of statements, or the accused or at-law representatives of crime-committing commercial legal entities change their previous statements;

c/ When procurators, investigators and other proceeding-conducting persons so request.

3. In the cases specified in Clause 2 of this Article, the court is required to make arrangements for the replay of audio recordings or audio-visual recordings at court hearings.

Article 9.Audio recording or audio-visual recording in other cases

1. Upon the taking of statements of witnesses, victims and involved parties; holding of confrontation; receipt of crime denunciations and reports and criminal case initiation proposals, audio recording or audio-visual recording may be carried out under Articles 146, 187, 188 and 189 of the Criminal Procedure Code. The order and procedures for making of audio recordings or audio-visual recordings, and the use, preservation and archive of audio recorded and audio-visually recorded data are the same as those for interrogation of the accused or taking of statements of at-law representatives of crime-committing commercial legal entities prescribed under this Joint Circular. In case a technical failure occurs during a session of interrogation or statement taking, the session may still proceed normally and the reason of the technical failure shall be clearly stated in the minutes.

2. In case of confrontations with the accused or at-law representatives of crime-committing commercial legal entities at detention or custody facilities, offices of investigation bodies, procuracies or bodies assigned to carry out a number of investigating activities, audio recording or audio-visual recording shall be carried out. The order and procedures for audio or audio-visual recording of confrontations must comply with Points b and c, Clause 2, Article 5 of this Joint Circular.

Chapter III

IMPLEMENTATION PROVISIONS

Article 10.Effect

This Joint Circular takes effect on March 18, 2018.

Article 11.Organization of implementation

1. The Ministry of Public Security, Supreme People’s Procuracy, Supreme People’s Court and Ministry of National Defense shall, within the ambit of their functions, tasks and powers, organize the implementation of this Joint Circular.

2. Funds for making, use, preservation and archive of audio recordings and audio-visual recordings must comply with the State’s regulations.

3. The Ministry of Public Security shall coordinate with related ministries and sectors in deciding on specific places where there are sufficient conditions for audio recording or audio-visual recording during the investigation, prosecution and trial. By January 1, 2020 at the latest, audio recording or audio-visual recording during the investigation, prosecution and trial shall be uniformly implemented nationwide.

4. Any problems arising in the course of implementation of this Joint Circular should be reported to the Ministry of Public Security, Supreme People’s Procuracy, Supreme People’s Court and Ministry of National Defense for timely guidance.-