Many readers sent questions to Dan Tri newspaper, wondering what to do when the injury assessment conclusion is not clear and accurate?
Lawyer Tran Xuan Tien, head of Dong Dong law office, had answers surrounding this issue.
Accordingly, the expert’s conclusion is one of the sources of evidence collected according to legal proceedings. serve as a basis for litigation-conducting agencies and litigators to consider, evaluate and decide when resolving cases. Therefore, if the expert’s conclusion is wrong, it can lead to injustice, mistakes or the omission of criminals.
So how is the appraisal authority determined and in case of disagreement with the appraisal conclusion, what procedures must be followed?
Inspection What is injury?
Injury is the physical damage that the victim suffers due to the violating acts of another person caused by the organ. has the authority to determine.
Injury percentage plays a very important role in criminal cases, the injury rate is the direct basis for prosecution. criminal, determine the penalty level for the offender’s crime.
So injury assessment plays an important role in the process of criminal proceedings. However, current law does not have specific regulations on the definition Injury assessment based on relevant legal provisions, we can understand injury assessment as a criminal proceeding activity of the agency conducting the proceedings. Litigation is demonstrated by making decisions to request people with necessary professional knowledge in the fields of science, technology, etc. according to the provisions of law to research and conclude injury issues that need to be clarified in the case. the process of investigation and prosecution of criminal cases.
Who has the right to request expert examination in criminal proceedings?
According to Article 207 of the 2015 Criminal Procedure Code regulates requests for expertise as follows:
– Litigants or their representatives have the right to < strong>requestcompetent authorities to conduct proceedings to request an assessment of issues related to their legitimate rights and interests, except in cases where the assessment is related to the determination of criminal liability of the accused person.
Within 07 days from the date of receiving the written requestthe agency conducting the proceedings must consider and issue a decision to requisition appraisal.In case the request is not accepted, notify the person who requested the appraisal in writing and clearly state the reason.
At the end of this period or from the date of receipt If notified of the refusal to request an appraisal from an agency competent to conduct proceedings, the person requesting the appraisal has the right to request the appraisal himself/herself.
– The person requesting the appraisal has the rights and obligations according to the provisions of the Law on Judicial Expertise.
Thus, litigants or their representatives have the right to request for expert examinationexcept in cases where the expert examination relating to determining the criminal liability of an accused person. And the agency conducting the proceedings has the authority to issue a decision to request injury assessment.
Agency with authority to assess injuries
According to Clause 1, Article 205 of the 2015 Criminal Procedure Code“When falling into one of the cases requiring injury assessment (Article 206 of the 2015 Criminal Procedure Code) or when considering If deemed necessary, the competent authority conducting the proceedings shall issue a decision to request an assessment.”
However, the conclusion of the injury rate assessment is only recognized when the assessment is carried out. expertise at public judicial expertise organizations by competent state agencies as prescribed in Article 12 of the Law on Judicial Expertise 2012, amended and supplemented in 2020 including:
+ In the field of forensics: Forensic Institute of the Ministry of Health, Military Forensic Institute of the Ministry of National Defense, Provincial forensic examination center or Institute of Criminal Science, Ministry of Public Security.
+ Central Institute of Forensic Psychiatry under the Ministry of Health or Regional Center for Forensic Psychiatry under the Ministry of Health
+ Institute of Forensic Sciences under the Ministry of Public Security Criminal Technical Examination Department under the Ministry of National Defense criminal technical department of the Provincial Police.
Thus, when an individual is physically violated due to the actions of another person, when wanting to determine the rate of injury, one must go to one of the following: the organizations mentioned above to conduct the assessment.
Appeal to the conclusion of the injury assessment
From the above analysis, we can see the conclusion Injury assessment plays an important role in collecting and establishing evidence, consolidating evidence, and examining evidence as the basis for agencies conducting proceedings to initiate investigation, prosecution and trial. Wrong assessment conclusions can lead to wrongful convictions or the omission of criminals.
Due to such an important nature, the 2015 Procedural Code and the 2012 Law on Judicial Expertise, amended and supplemented in 2020, have stipulated re-assessment and additional assessment.
Re-inspection is performed when there is suspicion that the first appraisal conclusion is incorrect (Illustration photo: Hoang Le).
According to the provisions of Article 210 of the 2015 Criminal Procedure Code, additional assessment is conducted in the case of:“The content of the assessment conclusion is unclear and incomplete; When a new issue arises, it is necessary to conduct an assessment related to the details of the case with a previous assessment conclusion.” Pursuant to Clause 1, Article 211 of the 2015 Criminal Procedure Law regulations: “Re-assessment is carried out when there is suspicion that the first assessment conclusion is incorrect”.
More in Article 29 The Law on Judicial Expertise 2012, amended in 2020 also stipulates that: If it is deemed that the content of the injury assessment conclusion is not clear and complete or there are grounds to believe that it is inaccurate, the person being injured or harming their health or their representative has the right to request a competent authority to request a re-examination.
Therefore, in case the content of the assessment conclusion is considered If the determination is not objectively clear, the injured person or their representative has the right to request a competent authority to request a re-examination including: Investigation agency, Procuracy, Court depending on each stage of the case’s proceedings.
In addition to requesting re-examination injury, appealing the assessment conclusion is a necessary procedure. In case of complaining about the assessment results, you must file a complaint and provide evidence to prove that the assessment results are not objective or true so that the competent authority can re-check the results based on that. appraisal.
Specific case
Lawyer Tien cited a specific case.
Due to a land dispute, Mr. D. and Mr. T. had a fight when T and D were arguing when Nguyen Van T1. (Mr. D’s biological son) and some people present at the nearby church went there. After that. pulled out a knife from the basket tied to the car and walked towards Mr. D. Seeing that, Mr. D. backed away from T1. While standing, T. held a knife and slashed at Mr. D…
Mr. D. and T. were both injured and were taken to a medical facility for treatment. Mr. D. was taken for treatment and had tendon fusion surgery at Central Military Hospital 108 in Hanoi. But T. had a complaint against Mr. D.’s family to the Police Department of District H., so Mr. D. asked the Dong Doi Law Office to participate in protecting D.’s legitimate rights and interests.
In the Decision to solicit appraisal No. 85 dated May 11, 2021 of the Police Department of Investigation of District H., conducted a solicitation of the appraiser from the Provincial Forensic Center of T. province to assess the level of damage in percentage ( %) of Mr. D.’s health.
Forensic assessment conclusion on injuries No. 72/2021/TgT dated May 14, 2021 of the Provincial Forensic Center concluding the rate of muscle damage The possibility of injury caused to Mr. D. is currently 03%.
It was found that the assessment conclusion inaccurately reflects the injury that T. caused to Mr. D. Law Office Dong Doi advised Mr. D. to request a re-examination.
According to the forensic assessment conclusion on injuries No. 124/21/TgT dated July 2, 2021 of the National Institute of Forensic Medicine Experts and second forensic conclusions No. 159/TgT dated October 19, 2021 of the National Forensic Institute. The conclusion is that the rate of bodily harm caused by injuries is 22%.
From the above case, it can be seen that assessment plays an extremely important role in the process of resolving criminal cases. .
In case it is concluded that the rate of bodily harm caused by the injury is 3%, there is no basis to prosecute Mr. criminal. After being asked to re-examine the injury, it was concluded that the rate of physical damage caused by the injury was 22%.
The rate of injury from 3% to 22% is an extreme gap. from innocent to guilty and from accuser to defendant. Therefore, it can be said that the expert’s conclusion is the key for the agency conducting the proceedings to consider, evaluate and decide when resolving the case to avoid the case of missing wrongful convictions.
