Thông tư 145/2010/TT-BQP

CIRCULAR

GUIDING IMPLEMENTATION MEASURES ON PERSON CUSTODY ACCORDING TO ADMINISTRATIVE PROCEDURE OF BORDER GUARDS, MARINE POLICE

Pursuant to the July 02, 2002 Ordinance on handling of administrative violations; the April 02, 2008 Ordinance on amending and supplementing a number of articles of The Ordinance on handling of administrative violations;
Pursuant to the Governmental Decree No.162/2004/ND-CP of September 07, 2004, promulgating regulation of person custody according to administrative procedure;
Pursuant to  the Governmental Decree No.19/2009/ND-CP of February 19, 2009, supplementing and amending some of articles of the regulation of person custody according to administrative procedure, attached together with the September 07, 2004  Decree No.162/2004/ND-CP;
Pursuant to the Governmental Decree No.104/2008/ND-CP of September 16, 2008 providing function, tasks, powers and organizational structure of The Ministry of National Defense
At the proposal of the Border Guard Commander,

Chapter I

GENERAL PROVISION

Article 1. Governing scope

This Circular guides implementation measures on person custody according to administrative procedure of Border Guard, Marine Police and regime of ensuring for person in custody.

Article 2. Subject of application

1. Vietnamese citizens, foreigners who have administrative violations in section managed by Border Guard, Marine Police, in case international treaties which the Socialist Republic of Vietnam is a member, have different provision, shall implement according to those international treaties.

2. Persons who have authority of person custody according to administrative procedure of Border Guard, Marine Police.

Article 3. Applying measures of person custody according to administrative procedure

1. Applying measures of person custody according to administrative procedure shall be only conducted in case for purpose which the authorities of Border Guard, Marine Police have time to conduct verifying, making clear on record, nature, seriousness of violations and importance circumstances relation to violations which are bases to make decision of sanctioning of administrative violations or ensure for handling of administrative violations.

2. Violation cases may apply measure of person custody according to administrative procedure.

a) Violation of treaty on border regulation, regulation of land border area, regulation of marine border area, regulation of land border gate; violation in territorial waters and continental shelf of Vietnam;

b) It is necessary to prevent, suspend rightly acts disturb public order or cause wounds for other person which happen in the area of border, island, territorial waters and continental shelf of Vietnam;

c) Person in custody according to hunted decision of competent person (district public security, headmasters of reform school, directors of education establishments, treatment establishments).

3. Persons who have authorities for person custody according to administrative procedure of Border Guard, Marine Police, when apply measure of  temporary custody must obey provisions in Article 44 of the Ordinance on handling of administrative violations, the Governmental Decree No.162/2004/ND-CP of September 07, 2004, on promulgating regulation of person custody according to administrative procedure, the Governmental Decree No.19/2009/ND-CP of February 19, 2009, on supplementing and amending some of articles of the regulation of person custody according to administrative procedure, attached together with the September 07, 2004  Decree No.162/2004/ND-CP (the regulation of person custody according to administrative procedure)  and this Circular.

Article 4. Form of document using in person custody according to administrative procedure

Adopting together with this Circular forms of documents using in person custody according to administrative procedure as following:

1. Form No.01: Authorization paper.

2. Form No.02: Minutes of delivering, receiving administrative violator.

3. Form No.03: Decision on person custody according to administrative procedure.

5. Form No.04: Decision on forwarding dossier of administrative violation with criminal sign to examine for penal liability.

4. Form No.05: Decision on extending limit-time of person custody according to administrative procedure.

6. Form No.06: Announcement on temporary custody of administrative violator.

7. Form No.07: Book of monitor person in custody according to decision of hunting of authorities because of administrative offences.

Article 5. Dossier of person custody according to administrative procedure

1. Units of Board Guard, Marine Police have authority of person custody according to administrative procedure must make temporary custody dossier for monitoring, in that must update, note, record fully and specific problems relating to temporary person custody.

2. Dossier of person custody includes the following documents:

a) Minutes of administrative offence;

b) Minutes of delivering, receiving administrative violator;

c) Decision on person custody according to administrative procedure; Decision on extending limit-time of person custody according to administrative procedure and other documents relating to person in custody according to decision of hunting of authorities according to administrative procedure;

3. Documents in Dossier of person custody according to administrative procedure must put ordinal number, bind in cover of dossier and manage according to the provisions of laws on managing, security, storing dossier. To strictly prohibit of erasing, deleting, amending, modifying content or destroying willingly documents, dossiers of temporary person custody. Persons who have duty of making, managing dossiers of temporary violator custody, depend on nature, seriousness of violation, shall be discipline handled or be handled according to provisions of laws.    

Charter II

AUTHORITIES AND PROCEDURES OF PERSON CUSTODY ACCORDING TO ADMINISTRATIVE PROCEDURES

Article 6. Authorities of person custody according to administrative procedures

1. Authorities of person custody according to administrative procedures shall conduct according to provisions in point h, point I, clause 1, article 7 of the Regulation on person custody according to administrative procedures, including:

a) The small chiefs of border little area; commanders of Marine Border Guard Fleet, commanders of marine border guard squadron, commanders of border guard station and heads of border guard unit in borders, islands;

b) Commanders of Marine Police Regiments, Groups.

2. Case persons who provided in clause 1, this Article absent, may authorize for deputy level to conduct the competent on temporary person custody. The authorization must conduct in written (as Form No.01), in that determine clearly authorized scope, content and period.

Authorized person is not entitled to re-authorize for other person and must take responsibility on making decision on person custody according to administrative procedures before heads and the laws.

Article 7. Delivering, receiving administrative violator

Delivering, receiving administrative violator provided in Article 8 of the Regulation on person custody according to administrative procedures shall implement as following:

1. The competent person provided in clause 1, clause 2, Article 6 of this Circular, when receiving administrative violator alleged by other organizations, individuals, must promptly implement making violating minutes (if those organizations, individuals have not yet made) and minutes on  delivering, receiving person.

Minutes on delivering, receiving administrative violator must write fully, clearly content as regulations (Form No.02); with signature of deliver, receiver, violator, witness, damaged person (if any). If violator, witness, damaged person refuse for signing, person making minutes must write clearly in minutes the reason of that refusing.

2. Regarding to administrative offence discovered, prevented and made minutes of administrative offence or after made minutes of delivering, receiving administrative violator, if consider necessary to apply measure of temporary custody, must promptly make decision on person custody according to administrative procedures.

Article 8. Decision on person custody according to administrative procedures

1. When have enough bases and consider necessary to apply measure of temporary custody with administrative offender, competent persons of Border Guard, Marine Police must immediately issue decision on person custody according to administrative procedures.

Decision on person custody according to administrative procedures must write fully, clearly content as regulations (Form No.03) and affix seal of agency of person issuing decision on temporary custody.

2. When have base to reckon that violation of person in custody according to administrative procedures has sign of criminal, person issuing decision on temporary custody must forward all dossier, person in custody according to decision of hunting of authorities together with exhibits, means (if any) to competent investigation agency for implementation of investigation according to provisions of laws.

Decision on forwarding dossiers which have sign of criminal for examine for penal liability must write fully, clearly provided content (Form No.04).

Article 9. Time Limit of person custody according to administrative procedures 

1. According to provisions in clause 3, Article 2 of the Regulation on person custody according to administrative procedures, time limit of person custody according to administrative procedures shall not exceed 12 hours, since the time point of beginning of custody violator; time limit of temporary custody may extend, but not exceed 24 hours.

Regarding to offences on Border Regulation of administrative violations in far-flung mountainous regions, islands, the custody duration can be longer but must not exceed 48 hours.

2. The extending of custody duration only apply in very necessary cases, those are cases need more time to verify record of violator and importance and complex details relating to violations of person in custody for use as basis to decide handling administrative violation or to ensure handling violator.

Before out of custody duration, authority of Border Guard, Marine Police must make decision on prolonging custody duration according to administrative procedures (Form No.05), but not exceed the maximum custody duration.

3. Case duration of custody stated in decision on custody has not ended yet, but to verify or finished handling violation or duration of custody has ended according to administrative procedures, person issuing decision must stop holding person in custody and must note in monitor book on administrative custody, with signature of person in custody for confirmation.

If person in custody don’t sign, person who make decision on custody must conduct making minutes or assign for person who is direct conducting mission to make and write clearly in the minutes of the reason of not signing by person in custody. The minutes must have signature of person making, person making decision on custody and witness (if any).

Article 10. Notice of decision on holding person in custody according to administrative procedures

Informing of decision on holding person in custody according to administrative procedures to family, organization, place of working, studying or father, mother, and guardian of person in custody provided in Article 10 of the Regulation on holding person in custody according to administrative procedures shall conduct as the following:

1. Regarding to Vietnamese citizen who violating in custody

a) At the requirement of person in custody and base on each detail case, person making decision on custody may inform in written, telephone, fax or through other information means of decision on holding person in custody to family, organization, place of working, studying of person in custody know;

b) Case minors are held in custody in the night time (from 10PM to 05AM of morning the next day), or custody them for over 6 hours, their parents or guardians must be notified thereof immediately. If their parents or guardians are undefined, must inform to person in custody know and write clearly in monitor book of person in administrative custody.

2. Regarding to foreigner who violating in custody

a) Foreigner with passport or paper with value of replacing passport, book of crew members or without passport have violation and held in custody, person making decision on custody must conduct fully procedures according to provisions of laws (make minutes of administrative violation, make decision on custody…), and report head of direct higher level to inform immediately for the Ministry of Foreign Affairs (Consular department or Hochiminh department for external relations) to coordinate in handling.

Case diplomatic missions or Consular missions require contact with person in custody of their country, agencies, units send notice shall have responsibility to coordinate with the Ministry of Foreign Affairs to arrange for representative of  diplomatic missions or Consular missions of these country in visiting consular and coordinating to handle other related foreign affairs;

b) For foreigners resident in border area with neighbor countries (China, Lao, Cambodia) pass by border with border identity card, passport, certification according to the Regulation of the Treaty on Regulation on border or passport to exit/enter a country (using for purpose of visit, tourist) according to effect agreement between Vietnam and neighbor country, have administrative offence and are held in custody according to administrative procedures, commanders of border guard station or authorized person must conduct fully procedures according to provisions of laws (make minutes of administrative violation, make decision on custody…) and report promptly to commanders of border guard of provinces, cities to inform to border safeguard force of  neighbor countries having violator thereof to coordinate handle

3. The notice on custody person according to administrative procedures must write clearly bases, unit implement custody, information on person in custody and time-limit, place of temporary detention (Form No.06).

Chapter III

PLACE OF TEMPORARY DETENTION, REGIME OF ENSURING FOR PERSON IN CUSTODY ACCORDING TO ADMINISTRATIVE PROCEDURES 

Article 11. Places of temporary detention according to administrative procedures

1. Places of temporary detention according to administrative procedures are house or room for administrative detention (herein called as administrative detention house) which are build at barracks of units (border little area, border guard station, Marine Border Guard Fleet, marine border guard squadron under Border Guard Commands of centrally-affiliated provinces or cities, marine police fleet, marine police squadron), and hang signboard: “ADMINISTRATIVE DETENTION HOUSE”.

2. Form, size of administrative detention houses in units stated in clause 1 this Article when building must conduct according to Article 11 of the Regulation on custody person according to administrative procedures and must ensure the following requirements:

a) Base on area, nature, characteristic, conditions, flow of person in custody according to administrative procedures, real requirements of temporary detention to lay, design, build logically; chosen position to build detention houses need avoid nearing dining room, arsenal, places nor ensuring hygiene, safe for person in custody, not influence to garrison, defend and ready for fighting of units;

b) The administrative detention houses must arrange temporary detention place in particular for juvenile person, woman or foreigner; have lock door, ensure light, airy, hygiene and safe on preventing and fighting fire, convenient for management and protection and have officer charge management concurrently. Person in custody according to administrative procedures by night must arrange bed or floor with sedge mat, blanket, mosquito-net; the minimum lying area for each person is 2m2;

c) Case unit has no detention house, may let violator in custody at guard room, meeting-hall, room for reception of citizens, other room in barrack, administrative detention compartment on the ship of marine police or ship, boat of the violator arrested, but must ensure provisions of laws on administrative detention.

3. Cadre direct managing persons in custody take responsibility to inform regulations of administrative detention house to persons in custody to them consciously abide.  

Article 12. The regime of eating and drinking for persons in custody according to administrative procedures

On principle, all expenditure of eating, drinking, activities of persons in custody in duration of detention shall paid by persons in custody or their family; case persons in custody or their family cannot ensure by themselves, agency or unit of person issuing decision on detention, shall ensure regime of eating, drinking, activities in duration of detention according to provision in Article 14 of the Regulation on custody person according to administrative procedures.

Article 13. Handling person in custody according to administrative procedures ill in duration of detention

1. Person in custody according to administrative procedures ill in duration of detention, agency or unit of person issuing decision on detention must treat on the premises; case of serious ill need give first aid, in all capacity, possible conditions, must prompt arrange to rush them to the nearest medicine establishment of state or private to emergency aid, treat, and concurrent, inform promptly to their family, relatives coming to care. When take person in custody to medical examination and treatment establishments, must make minutes closely, detail, clearly on time of medical examination and treatment, situation of ill of the person in custody and other related problems, the minutes must have signature (write clearly full name or pressing finger print) of person in custody, competent person of detention and representative of treatment place.

Time of medical examination and treatment shall not calculate in duration of detention.

2. Case their relatives, family have application of suggesting to bring back home for caring, treatment and whereas it is not necessary to continue detaining, competent person of custody shall issue decision on termination custody according to administrative procedures and let them return home.

Before let person in custody return home, competent person of detention must make minutes. The minutes must write clearly healthy situation of person in custody at the time of making decision on termination person detention according to administrative procedures and other related problems such as property, means, money, papers v.v… of person in custody, signature of persons in custody or their family, relatives and competent person of detention according to administrative procedures. Case their money or property in custody are lost, damaged, agency, unit issuing decision on detention shall have responsibility for compensation.

3. For persons in custody according to administrative procedures have no certain resident, no family, no relatives or family and relatives are so far to come for caring timely or refuse caring, unit of person issuing decision on detention shall arrange person direct come place where persons in custody are medical examine and treat to manage and care.

Article 14. Handling person in custody according to administrative procedures die in duration of detention

Handling person in custody according to administrative procedures die in duration of detention shall conduct according to provision in clause 2, Article 15 of the Regulation on custody person according to administrative procedures; competent person issuing decision on detention must conduct some of following activities:

1. Organize to safe for the scene, inform promptly to commander of direct higher level, investigation agency, competent procuracy to solve according to provisions of laws, concurrency inform to relatives, family of dead person thereof.

2. Coordinate closely with investigation agency, procuracy, medical agency, related agencies to investigate, make clear reason of death of person in custody; supply fully related documents, information as required by functional agency.

3. Complete dossier of matter, report the direct higher level as regulations.

4. Case dead person in custody is foreigner, agency or unit of Border Guard, Marine Police beside of implementation as guideline in clause 1, clause 2 and clause 3 of this Article, base on each detail case, shall conduct the following content:

a) Person in custody have passport or paper with value of replacing passport, book of crew members in valid time, person making decision on detention must report commander of direct higher level to inform promptly to the Ministry of Foreign Affairs (Consular department or Hochiminh department for external relations) or competent state agency to coordinate with diplomatic missions or consular missions of the country where death person have nationality to solve;

b) Person in custody is resident of border area with neighbor countries, commander of border guard station report to commanders of border guard of centrally-affiliated provinces or cities to ask directing opinion, concurrent inform promptly to border safeguard force of neighbor countries where have death resident to coordinate to solve. 

 After 24 hours, since informing to border safeguard force of neighbor countries, but they have not assigned representative, relatives come to receive or have other requirements, commander of border guard station report to commanders of border guard of centrally-affiliated provinces or cities to ask directing opinion, concurrent coordinate with functional agencies, local authorities to ensure procedures, dossier and bury death person according to provisions of Vietnam laws.  

5. Burying death person in custody need pay attention:

a) When investigation agency and procuracy unite to permit interring, family of the death person take responsibility to hold burying;

b) Case death person in custody is Vietnam citizen, have no family, no relatives or cannot verifying place of their resident, working, studying… to inform, agency, unit of detention shall coordinate with local authority  to solve interring. Burying death person conduct according to provisions of laws on procedures of death registration and ensure requirements of environmental hygiene;

c) Case death person in custody is foreigner, interring shall be solved according to international treaties of which Vietnam is a member or according to provisions of Vietnam laws include consideration of aspiration of the death person’s relatives or suggestion of  diplomatic missions or Consular missions of country which death person have nationality.

Case of have no international treaty or Vietnam state and country of death person have no agreement, uniting of each detail case or cannot verify nationality of the death, burying shall apply such as case of Vietnamese person in custody die;

d) Holding burying detention person die must describe in minutes, with taking photo to save in dossier of case of unit.

6. Expenditure to ensure for burying the detention death paid by family. Case their family cannot ensure, agency, unit of Border Guard, Marine Police of competent person making decision on detention shall take responsibility for ensuring the burying expenditure as regulations.

Article 15. Case cannot self-ensure expenditure

1. The following cases are considered that person in custody according to administrative procedures or family of person in custody cannot self-ensure expenditure:

a) Persons in custody or their family have no money or property;

b) Family or relatives or juvenile guardian of person in custody abandon them;

c) Persons in custody is subject cannot verify place of resident, cannot verify family or have no family or relatives;

d) Family or relatives of person in custody live too far the detention place to have conditions for rearing, caring, supplying or have no conditions to undertake interring.

2. Expenditure for ensuring on eating and drinking, medical examination and treatment, interring for cases of person in custody according to administrative procedures cannot self-ensure shall supplied by state budget and take from expenditure of agency, unit of competent person making decision on detention.

Unit of Border Guard, Marine Police conduct custody person must open book to monitor and settlement according to provisions of laws.

Charter IV

IMPLEMENTATION ARTICLE

Article 16. Expenditure for ensuring

1. Expenditure for ensuring of applying measure of holding person in custody according to administrative procedures includes the following expenses:

a) Expenses for printing forms, books servicing applying measure of holding person in custody according to administrative procedures;

b) Expenses for investment to build, repair, and upgrade detention material facilities;

c) Expenses for buying furniture, means servicing for holding in custody;

d) Expenses for delivering, receiving administrative violator;

e) Expenses for eating and drinking, medical examination and treatment for person in custody, Expenses for burying when person in custody die in detention duration for case they or their family cannot self-ensure;

f) Other expenses servicing for holding person in custody according to administrative procedures.

2. Expenditure ensure for person custody according to administrative procedures shall be supplied by state budget, be arranged in yearly estimate which assigned for The Ministry of National Defense by competent level.

Article 17. Organization of implementation

1. This Circular take effect since December 16, 2010.

2. Commanders of Border Guard, Marine Police have responsibilities:

a) Organization to grasp it thoroughly for units under Border Guard, Marine Police and related agencies to deploy implementation of Regulation on custody person according to administrative procedures;

b) Annually, base on demand, duty and real situation of temporary detention, make estimates ensuring as provisions of Law on state budget and documents guiding of implementation;

c) To coordinate with functional agencies under General department of logistics, related agencies under The Ministry of National Defense in uniting the form of design to build administrative detention house, report to the ministry for approving;

d) To monitor, supervise, speed up, and examine organization of implementation. Annually, implementing preliminary summing-up, report the result of organization of implementation for The Ministry of National Defense./.