Thông tư 145/2020/TT-BCA

CIRCULAR

ON POWER, PROCEDURES, SECURITY MEASURES TO PROTECT LIFE, HEALTH, PROPERTY, HONOR, DIGNITY OF CORRUPTION AND WASTE WHISTLEBLOWERS

Pursuant to the Whistleblowing Law dated June 12, 2018;

Pursuant to Anti-corruption Law dated November 20, 2018;

Pursuant to the Law on thrift practice and anti-waste dated November 26, 2013;

Pursuant to the Government’s Decree No. 31/2019/ND-CP dated April 10, 2019 on elaboration and implementation of the Whistleblowing Law;

Pursuant to the Government’s Decree No. 22/2019/ND-CP dated February 25, 2019 on whistleblowing and addressing whistleblowing cases in the public security;

Pursuant to the Government’s Decree No. 01/2018/ND-CP dated August 6, 2018 defining the functions, tasks, entitlements and organizational structure of the Ministry of Public Security;

At the request of the Chief Inspector of Ministry of Public Security;

Minister of Public Security promulgates a Circular on power, procedures, security measures to protect life, health, property, honor, and dignity of corruption and waste whistleblowers.

Article 1. Scope

This Circular set forth power, procedures, security measures to protect life, health, property, honor and dignity of whistleblowers of corrupt practices as prescribed in Anti-corruption Law and violations against thrift practice and anti-waste as prescribed in the Law on thrift practice and anti-waste (hereinafter referred to as corruption and waste whistleblower).

Article 2. Regulated entities

1. Protectees in clause 3 of this Circular.

2. Persons authorized to address whistleblowing of corruption and waste practices.

3. Police authorities; agencies, organizations, units, and individuals responsible for taking security measures to protect life, health, property, honor and dignity of protectees (hereinafter referred as protective measures) as prescribed in clause 1 Article 3 of this Circular.

Article 3. Protectees, scope of protection and grounds for taking protective measures

1. Protectees include: corruption and waste whistleblowers; their spouse, natural parents, adoptive parents, natural children, adoptive children (hereinafter referred to as protectees). Protectees who have lived, worked and studied abroad shall not be regulated in this Circular.

2. Scope of protection: protection of life, health, property, honor and dignity. Protected property is the property under ownership of the protectee. Property of an overseas protectee shall not be regulated in this Circular.

3. Grounds for taking protective measures: upon valid grounds to consider that the life, health, property, honor, dignity of a person mentioned in clause 1 hereof is being infringed or is likely to be infringed immediately as a result of the corruption and waste whistleblowing.

Article 4. Rights and obligations of the protectee

Rights and obligations of the protectee are specified in Article 48 of the Whistleblowing Law. The persons authorized to address whistleblowing report, police authorities competent to take protective measures shall accept no responsibility for any consequence to the life, health, property, honor, dignity of the protectee in a case where the protectee voluntarily requests termination or refusal of protective measures or fails to fulfill obligations as prescribed in clause 2 Article 48 of the Whistleblowing Law.

Article 5. Responsibilities to protect protectees

1. Police authorities where the protectee lives or has property shall take charge and cooperate with relevant entities in protecting the life, health, property, honor, dignity of the protectee; mobilize and use forces, facilities, measures and request relevant entities to cooperate in the protection. Relevant entities shall, within their tasks and powers, cooperate at the request of the police authorities.

2. The person authorized to address the whistleblowing case shall, upon receiving a grounded request for taking protective measures, or deeming that it is grounded, during the settlement of the whistleblowing case, to take protective measures as prescribed in clause 3 Article 3 hereof, promptly request the competent police authority to take protective measures, in specific:

a) The persons authorized to address whistleblowing cases prescribed in clauses 6, 7, 8 Article 13; clause 4 Article 14; clause 4 Article 15; Article 16; clauses 1, 3 Article 17 and Article 20 of the Whistleblowing Law shall send a request to take protective measures to the relevant Director of police of province or central-affiliated city (hereinafter referred to as Director of provincial police department) and seek direction from the Minister of Public Security. On receiving such a request, the Director of provincial police department shall consider taking protective measures or direct affiliated entities to take protective measures;

b) The persons authorized to address whistleblowing case prescribed in clauses 3, 4, 5 Article 13; clauses 2, 3 Article 14; clauses 2, 3 Article 15; clause 2 Article 17 and Article 18, Article 19 of the Whistleblowing Law shall promptly send a request to take protective measures to the Director of provincial police department. On receiving such a request, the Director of provincial police department shall consider taking protective measures or direct affiliated entities to take protective measures;

c) The persons authorized to address whistleblowing case prescribed in clause 2 Article 13; clause 1 Article 14; clause 1 Article 15 and Article 21 of the Whistleblowing Law shall promptly send a request to take protective measures to the Chief police of district, suburban district, district-level town, provincial-affiliated city, city affiliated to centrally-affiliated city (hereinafter referred to as Chief police of district). On receiving such a request, the Chief police of district shall consider taking protective measures or directing the relevant Chief police of ward, station, town, commune in the people’s public security force (hereinafter referred to as Chief police of commune) to take protective measures;

d) The persons authorized to address whistleblowing case as prescribed in clause 1 Article 13 of the Whistleblowing Law shall promptly send a request to take protective measures to the Chief police of commune. On receiving such a request, the Chief police of commune shall consider taking protective measures;

dd) In an urgent case and well-grounded to deem that the life, health, property, honor, dignity of the protectee is likely to be infringed immediately after their disclosure of corruption or waste, the person authorized to address the whistleblowing case shall promptly request the police authority in the nearest place or in the place where the offense is likely to be committed to take appropriate protective measures;

e) If the protectee is an inmate in a prison, correctional facility or reformatory: The person authorized to address the whistleblowing case shall promptly request the superintendent, director of correctional facility or headmaster of reformatory to take protective measures.

3. Within 3 business days after receiving such a request from the person authorized to address the whistleblowing case or the corruption and waste whistleblower or a competent authority, the chief police shall, if deeming that is a well-grounded request, take protective measures in cooperation with relevant entities. In case of a complicated case which requires further verification in multiple places, the time required for making a decision to take protective measures may extend but no later than 5 business days.

If the case does not fall within his/her jurisdiction, the chief police shall forward it to the competent police authority and notify the person authorized to address the whistleblowing case, the whistleblower or competent persons and authorities of such forward.

4. If the request made by the person authorized to address the whistleblowing case or corruption and waste whistleblower is not well-grounded or it is unnecessary to take protective measures, within 3 business days, the chief police shall provide explanation in writing to the competent authorities and the whistleblower or to the person authorized to address the whistleblowing case.

Article 6. Request to take protective measures

1. A request to take protective measures made by the corruption and waste whistleblower shall be made in accordance with clause 2 Article 50 of the Whistleblowing Law.

2. A request to take protective measures made by the person authorized to address the whistleblowing case to the competent police authority shall at least contain:

a) Date of request;

b) Name of the police authority to which the request to take protective measures is filed;

c) Full name, position, agency of the person authorized to address the whistleblowing case;

d) Grounds for the request to take protective measures;

d) Date of acceptance of the whistleblowing report; time required for settlement of the whistleblowing case;

e) Full name, address, phone number of the protectee; details of the protection request.

3. On sending such a request, the person authorized to address the whistleblowing case shall enclose a decision on acceptance of the whistleblowing case, the request to take protective measures made by the corruption and waste whistleblower prescribed in clause 2 Article 50 (originals) and relevant documents (if any).

Article 7. Power to take protective measures of the person authorized to address the whistleblowing case in the public security

1. The person authorized to address whistleblowing case as prescribed in clause 1 Article 5 of Decree No. 22/2019/ND-CP of the Government on whistleblowing and addressing whistleblowing cases in the public security shall, upon receiving a grounded request to take protective measures made by the corruption or waste whistleblower, or deeming that it is grounded, during the settlement of the whistleblowing case, to take protective measures as prescribed in clause 3 Article 3 hereof, promptly take measures to protect the protectees who live or have property in the places under their jurisdiction.

If the protectee lives or has property in a place outside the jurisdiction, the person authorized to address the whistleblowing case as prescribed in clause 1 Article 5 of Decree No. 22/2019/ND-CP shall report it to the Chief police of district.

2. The person authorized to address whistleblowing case as prescribed in clause 2 Article 5 of Decree No. 22/2019/ND-CP shall, upon receiving a grounded request to take protective measures made by the corruption or waste whistleblower, or deeming that it is grounded, during the settlement of the whistleblowing case, to take protective measures as prescribed in clause 3 Article 3 hereof, promptly take measures to protect the protectees who live or have property in the places under their jurisdiction or direct the Chief police of commune to take protective measures (unless the Chief police of commune is the alleged wrongdoer).

If the protectee lives or has property in a place outside the jurisdiction, the person authorized to address the whistleblowing case as prescribed in clause 2 Article 5 of Decree No. 22/2019/ND-CP shall request the Chief police of district to take protective measures and report it to the Chief police of province.

3. The person authorized to address whistleblowing case as prescribed in clause 3 Article 5 of Decree No. 22/2019/ND-CP shall, upon receiving a grounded request to take protective measures made by the corruption or waste whistleblower, or deeming that it is grounded, during the settlement of the whistleblowing case, to take protective measures as prescribed in clause 3 Article 3 hereof, request the Chief police of district to take protective measures.

If the protectee is an inmate in a prison, correctional facility or reformatory: Upon receiving a grounded request to take protective measures made by the corruption or waste whistleblower, or deeming that it is grounded, during the settlement of the whistleblowing case, to take protective measures as prescribed in clause 3 Article 3 hereof, the superintendent, director of correctional facility, headmaster of reformatory shall promptly take protective measures.

4. The person authorized to address whistleblowing case as prescribed in clause 4 Article 5 of Decree No. 22/2019/ND-CP shall, upon receiving a grounded request to take protective measures made by the corruption or waste whistleblower, or deeming that it is grounded, during the settlement of the whistleblowing case, to take protective measures as prescribed in clause 3 Article 3 hereof, promptly take measures to protect the protectees who live or have property in the places under their jurisdiction or direct the Chief police of district to take protective measures. The inspectorate of provincial police department shall advise the Director of provincial police department to direct a deputy chief police of district or another competent entity to take protective measures if the Chief police of district are the alleged wrongdoer.

If the protectee lives or has property in a place outside the jurisdiction, the person authorized to address the whistleblowing case as prescribed in clause 4 Article 5 of Decree No. 22/2019/ND-CP shall request the Director of provincial police department to take protective measures.

5. The person authorized to address whistleblowing case as prescribed in clauses 5, 6 Article 5 of Decree No. 22/2019/ND-CP shall, upon receiving a grounded request to take protective measures made by the corruption or waste whistleblower, or deeming that it is grounded, during the settlement of the whistleblowing case, to take protective measures as prescribed in clause 3 Article 3 hereof, request the Director of provincial police department to take protective measures.

If the protectee is an official, soldier, inmate in a prison, correctional facility or reformatory and the alleged wrongdoer is the superintendent or deputy superintendent, Director or Deputy Director of correctional facility, headmaster or deputy headmaster of the reformatory: The Director of Public Security Department in charge of prisons, correction facilities and reformatories  shall, upon receiving a grounded request to take protective measures made by the corruption or waste whistleblower, or deeming that it is grounded, during the settlement of the whistleblowing case, take protective measures as prescribed in clause 3 Article 3 hereof, promptly take protective measures.

The inspectorate of Ministry of Public Security shall advise the Minister of Public Security to direct a Deputy Director - Vice Secretary of Communist Party of provincial police department or another competent entity to take protective measures if the Director of provincial police department is the alleged wrongdoer.

Article 8. Procedures for protection

1. Procedures for protection of the life, health, property, honor, dignity of corruption and waste whistleblowers are specified in Section 2 Chapter VI of the Whistleblowing Law.

2. If the person authorized to address the whistleblowing case give a conclusion about or terminate the whistleblowing case, he/she must promptly give a notice in order for the competent police authority to terminate the protective measures. The decision on termination of protective measures shall be sent to the protectees, the person authorized to address the whistleblowing case and relevant entities.

3. After the person authorized to address the whistleblowing case gave a conclusion about or terminated the whistleblowing case and the competent police authority, upon request, terminated the protective measures, if the person authorized to address the whistleblowing case keeps receiving a grounded request made by the corruption or waste whistleblower that the protectee’s life, health, property, honor and dignity keeps being or is likely to be infringed, that person shall forward the request to the competent police authority and notify the whistleblower in writing.

Article 9. Dossiers of protective measures

Dossiers of protective measures are specified in Article 55 of the Whistleblowing Law and regulations on archives of documents in the public security (dossiers related to corruption prevention and control).

Article 10. Protective measures

Depending upon the circumstances, the competent police authorities may take one or several measures to protect the life, health, property, honor and dignity of the protectees as prescribed in Article 58 of the Whistleblowing Law.

Article 11. Funding for protective measures

Funding for protective measures shall be financed by the state budget. Local police authorities shall make budget estimates of protective measures and then consolidate into an annual budget estimates for security and send it to Ministry of Public Security (via Department of Plan and Finance) for forwarding to Ministry of Finance as prescribed.

Article 12. Entry into force, grandfather clause, implementation

1. This Circular comes into force as of February 15, 2021.

2. If any regulation referred to in this Circular is amended or superseded, the new regulation shall prevail.

3. The heads of police authorities affiliated to Ministry, Directors of provincial police departments and relevant entities shall implement this Circular.

4. The inspectorate of the Ministry of Public Security shall take charge, monitor, inspect and consolidate the reports on implementation of the Circular; the heads of police authorities affiliated to Ministry shall designate affiliates to advise and consolidate the reports of the affiliates, the heads of local police authorities shall designate the inspectorate to take charge, monitor, inspect and consolidate the reports on implementation of the Circular. Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Public Security (via Inspectorate of Ministry of Public Security) for consideration.