Nghị định 62/2012/ND-CP

DECREE

PROVIDING ON THE GROUNDS DEFINING TRAFFICKED VICTIMS AND SAFETY PROTECTION FOR VICTIMS AND THEIR RELATIVES

Pursuant to the Law on Organization of the Government, of December 25, 2001;

Pursuant to the Law on Human Trafficking Prevention and Combat of March 29, 2011;

At the proposal of the Minister of Public Security;

The Government promulgates the Decree providing on the grounds defining trafficked victims and safety protection for victims and their relatives,

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree stipulates in details the implementation of a number of articles of the Law on Human Trafficking Prevention and Combat regarding the grounds defining victims and safety protection for victims and their relatives.

Article 2. Subjects of application

This Decree applies to victims of one of the acts specified in Clauses 1, 2 and 3, Article 3 of the Law on Human Trafficking Prevention and Combat; their relatives; the agencies, organizations and individuals involved in the identification of victims and safety protection for victims and their relatives.

Article 3. Rights and obligations of victims and their relatives

1. Victims and their relatives have the rights:

a/ To request competent agencies and persons to apply protection measures when their lives, heath, honor, dignity or property are encroached upon or threatened with encroachment;

b/ To refuse protection measures applied by competent agencies or persons as prescribed in Article 8 of this Decree.

2. Victims and their relatives have the obligations:

a/ To fully abide by the requirements of agencies, persons competent to apply protection measures when being protected;

b/ To be self-responsible for their own safety when they refuse the protection measures or fail to fully abide by the requirements of agencies, persons competent to apply the protection measures.

Article 4. Funding

The fund to implement safety protection for victims and their relatives shall be assured by the state budget in the annual regular expenditure estimates assigned to agencies or units under the State Budget Law and documents guiding implementation.

Chapter II

SPECIFIC PROVISIONS

Article 5. Grounds defining victims

1. A person is defined as a victim when he/she is the subject of one of the following acts:

a/ Human trafficking: Persons are regarded as a type of commodity for exchange for cash or other material benefits;

b/ Transferring or receiving persons for:

- Forced prostitution;

- Forced performing as characters for the production of video tapes, discs, paintings, photos, calendars and articles in other forms with content propagating depraved lifestyle and pornography;

- Forced performances for others to watch their bodies, aiming to stimulate sex;

- Sex slavery;

- Forced labor;

- Taking illegally human organs;

- Forced beggary;

- Forced to be as a wife or husband;

- Forced childbirth contrary to their will;

- Forced to commit acts of law violation;

- For other inhuman purposes.

c/ Recruiting, transporting or harboring persons for performance of acts specified in Points a and b of this Clause or for other inhuman purposes.

2. The identification of victims must be based on the following sources of documents and evidences:

a/ Documents and evidences supplied by procedural bodies;

b/ Information and documents supplied by victim-rescuing agencies;

c/ Information and documents supplied by overseas Vietnamese missions;

d/ Documents supplied by competent overseas agencies or organizations;

dd/ Statements and documents supplied by victims;

e/ Statements and documents supplied by persons who commit acts specified in Clause 1 of this Article;

g/ Statements and documents supplied by persons who are aware of the matters;

h/ Other lawful information and documents.

3. Where functional bodies cannot prove whether a person is the victim or not, after verifying his/her personal record, period of absence at local where he/she residents, the reasons for his/her absence which conform to his/her declarations to be object of one of the acts specified in Clause 1 of this Article, they shall consider the following grounds to confirm he/she is a victim:

a/ That person is detected and rescued together with other victims;

b/ He/she once lived together with other victims at places where he/she was detained, managed and treated like these victims by persons who commit acts specified in Clause 1 of this Article;

c/ Physical and mental manifestations: he/ she shows signs of being sexually exploited, forced to work, maltreated, injured, frightened, panicked, stressed or sick;

d/ During his/her absence from his/her residence place, his/her relatives has reported to a functional body on his/her missing or being object by one of the acts specified in Clause 1 of this Article;

e/ Other lawful information to have grounds for believing that such person is a victim.

Article 6. Protected persons

1. Victims of one of the acts specified in Clause 1, Article 5 of this Decree.

2. Relatives of victims, including wives, husbands, fathers, mothers, adoptive fathers, adoptive mothers, stepfathers, stepmothers, children, adopted children, parents in law, siblings, paternal grandfathers, paternal grandmothers, maternal grandfathers, maternal grandmothers, paternal grandchildren and maternal grandchildren of victims.

Article 7. Measures of safety protection for victims and their relatives

Depending on each specific case and practical conditions, agencies being responsible for protection may apply one or some of the following protection measures to ensure safety for victims and their relatives (hereinafter referred to as protected persons):

1. To keep secret protected persons' supply of documents and evidences.

2. To keep secret information on the protected persons' privacy, identification characteristics, residence places, working or studying places and other information relating to them.

3. To arrange security forces at protected persons' residence places, working, studying and traveling places, at court hearings and other necessary places.

4. To restrain the traveling and communication scope of protected persons.

5. To arrange temporary shelters for protected persons.

6. To arrange new residence places, work or study places for protected persons.

7. To apply measures to prevent and stop acts of encroaching upon or threatening with encroachment upon the lives, health, honor, dignity or property of protected persons as prescribed by law.

8. To conduct trial behind closed doors.

Article 8. Competence to apply protection measures

1. Agencies competent to apply protection measures include:

a/ The investigating police offices in the People's Public Security;

b/ The criminal investigation offices in the People’s Army;

c/ The border guard;

d/ The Marine Police Force;

dd/ The People's Procuracies and the Military Procuracies at all levels;

e/ The People's Courts and the Military Courts at all levels;

g/ The People's Committees of communes, wards or townships, district-level Labor- War Invalids and Social Affairs Sections, social relief establishments and victim support establishments;

h/ Overseas Vietnamese representative missions.

2. Persons competent to issue decisions on application of protection measures include:

a/ Heads, deputy heads of the investigating police offices in the People's Public Security, are competent to issue decisions to apply the protection measures specified in Clauses 1, 2,3,4,5, 6 and 7 of Article 7 of this Decree to victims and their relatives in matters, criminal cases being handled by their respective agencies;

b/ Heads, deputy heads of the investigation police offices in the People's Army, are competent to issue decisions to apply the protection measures specified in Clauses 1, 2, 3, 4, 5, 6 and 7, Article 7 of this Decree to victims and their relatives in matters, criminal cases being handled by their respective offices;

c/ The director of the Drug-Related Crime Prevention and Combat Department of the Border Guard, heads of task teams of the Drug-Related Crime Prevention and Combat Department of the Border Guard, commanders of provincial-level Border Guards, heads of border posts, heads of Marine Guard Fleets and commanders of border gate ports, are competent to issue decisions to apply the protection measures specified in Clauses 1, 2, 3, 4, 5, 6 and 7, Article 7 of this Decree to victims and their relatives in matters, criminal cases being handled by their respective agencies. When the heads stipulated at this Point are absent, one of their deputies may be authorized to implement heads' powers defined at this Point and must be responsible before his/her heads for the assigned tasks;

d/ Directors, regional commanders, heads of the Drug-Related Crime Prevention and Combat Sections, heads of the Drug-Related Crime prevention and combat task teams, heads of marine guard fleets and heads of the marine groups and heads of the marine teams of the Marine Police Force, are competent to issue decisions to apply the protection measures defined in Clauses 1,2,3, 4,5,6 and 7, Article 7 of this Decree to victims and their relatives in matters, criminal cases being handled by their respective agencies. When the heads defined at his Point are absent, one of their deputies may be authorized to implement heads' powers defined at this Point and must be responsible before his/her head for the assigned tasks;

dd/ Heads and deputy heads of the People's Procuracies are competent to decide on the application of the protection measures specified in Clauses 1, 2 and 5, Article 7 of this Decree to victims in the criminal cases being handled by their respective agencies; propose the investigating police offices in the People's Public Security or the criminal investigation offices in the People's Army, which have handled the cases, to apply measures of safety protection for victims and their relatives;

e/ Court presidents, vice presidents and judges presiding over court hearings, are competent to decide on the application of the protection measures specified in Clauses 1,2,4, 5 and 8, Article 7 of this Decree to victims and their relatives in criminal cases being handled by their respective agencies; propose the investigating police offices in the People's Public Security or the criminal investigation offices in the People' Army, which have handled the cases, to apply measures of safety protection for victims and their relatives;

g/ Chairpersons of People's Committees in commune/ward/ township, heads of the district-level Sections of Labor, War Invalids and Social Affairs, directors of the social relief establishments and directors of the victim support establishments, are competent to decide on the application of protection measures specified in Clauses 1, 2, 4 and 5, Article 7 of this Decree to victims and their accompanying relatives, who are received by their respective agencies; to propose competent agencies and/or persons specified in this Article to apply measures of safety protection for victims and their relatives;

h/ Heads of overseas Vietnamese representative missions are competent to decide on the application of protection measures specified in Clauses 1, 2, 4 and 5, Article 7 of this Decree to victims and their accompanying minors, who are Vietnamese citizens in the host territories or countries.

3. Where the protected persons' residence places are not situated in the territories of agencies competent to apply protection measures, the persons competent to issue protection decisions shall entrust the implementation of protection measures to the agencies of the corresponding level in the areas where the protected persons reside. The agencies entrusted to carry out protection measures shall implement protection measures under entrustment of the agencies competent to apply measures of safety protection for the victims and their relatives.

Article 9. Responsibility for holding to implement protection measures

Persons competent to issue decisions on the application of protection measures as prescribed in Clause 2, Article 8 of this Decree, shall organize the implementation of measures of the safety protection for victims and their relatives, and have the following tasks and powers:

1. To apply protection measures when there are grounds to believe that the lives, health, honor, dignity or property of the victims and/or their relatives are encroached upon or threatened with encroachment.

2. To select the application of one or many of the protection measures within their competence as prescribed in Article 7 of this Decree.

3. To request protected persons to abide by regulations in order to ensure their safety during course of protection.

4. To request local administrations, agencies, organizations and individuals to coordinate in the application of protection measures.

5. To keep secret the safety protection for victims and their relatives.

6. To set up, manage, archive and utilize protection records according to the confidential regime.

Article 10. Order of and procedures for application of protection measures

1. Organizations and individuals requesting application of protection measures must file written requests to competent agencies. In case of emergency, they may request in person or via telephone and other forms of communication or contact, which, however, must be presented in writing later.

A written request for application of protection measures must specify: the time and place of making the request; full name, birth date, native place, occupation, residence place of the person making request; the person for whom the protection is requested; full name, birth date, native place, occupation and residence place of the person for whom the protection is requested (if person making written requests application of protection measures for another person); the reason of request for application of protection measures  and other relevant contents.

2. The agency receiving request for protection shall consider and determine the necessity to apply protection measures. If there are grounds to believe that the victim's and/or his/her relatives' lives, health, honor, dignity or property are encroached upon or threatened with encroachment and need to apply protection measures, it shall issue a decision to apply protection measures. If deeming it is unnecessary to apply protection measures, it shall reply the protection requester in writing, clearly stating the reasons.

3. In the course of handling of a case, if there are grounds to believe that the victim's and/or his/her relatives' lives, health, honor, dignity and/or property are encroached upon or threatened with encroachment, and need to apply protection measures, competent persons defined in Clause 2, Article 8 of this Decree shall issue a decision to apply protection measures according to their competence or propose competent bodies to apply protection measures.

4. A decision on protection measure application must specify: the time and place of issuance of the decision; names of agencies with protection responsibility; full name and position of the decision issuer; full name, birth date, native place, occupation and residence place of the protected person; the applied protection measures; time of starting the application of protection measures and other contents relating to the protection.

5. In urgent case, persons competent to apply protection measures may appoint forces and means to arrive for protection or arrange temporary shelters to ensure safety for the protected persons before issuing a decision to apply protection measures.

6. In the course of protection, if arising request for application of additional protection measures, persons competent to issue decisions on application of protection measures shall issue a decision supplementing the decision on application of protection measures.

7. When the protected person is no longer encroached upon or threatened with encroachment, the person competent to decide on the application of protection measures shall issue a decision to terminate the application of protection measures, which must specify the reason for termination of protection measures.

8. Decisions on application of protection measures, decisions supplementing decisions on application of protection measures and decisions terminating protection measures must be addressed to the protected persons and agencies requesting application of protection measures and relevant agencies or units.

Article 11. Protection measure application files

A protection measure application file comprises:

1. The written request for protection.

2. The personal records of the protected person.

3. Documents showing that the protected person is encroached upon or has risk of being encroached upon his/her life, health, honor, dignity or property.

4. The decision on application of protection measures.

5. The decision on application of additional protection measures (if any).

6. The protection measures having been already applied and results of implementation.

7. The decision terminating the application of protection measures.

8. Other documents and materials relating to the protection.

Chapter III

IMPLEMENTATION PROVISIONS

Article 12. Effectiveness

This Decree takes effect on October 10, 2012.

Article 13. The responsibility for implementation

1. The Ministry of Public Security shall assume the prime responsibility for, and coordinate with relevant ministries and sectors in, guiding, inspecting and urging the implementation of this Decree.

2. Ministers, heads of ministerial-level agencies, heads of government-attached agencies and chairpersons of People's Committees of centrally-affiliated cities and provinces shall implement this Decree.-