Thông tư liên tịch 01/2013/TTLT-BCA-BTP-BNG-VKSNDTC-TANDTC

JOINT CIRCULAR

GUIDELINES FOR THE RECEPTION, TRANSFER AND FURTHER ENFORCEMENT OVER PEOPLE WHO ARE SERVING PRISON SENTENCE

In order to correctly and consistently apply regulations of the law on the transfer of people who are serving prison sentence, the Ministry of Public Security, Ministry of Justice, Ministry of Foreign Affairs, the Supreme People's Procuracy, the Supreme People's Court make uniform guidelines on reception, transfer and further enforcement for people who are serving prison sentence as follows:

Chapter 1.

GENERAL REGULATIONS

Article 1. Scope of regulation and subjects of application

1. This Circular guides the order, procedures and conditions for reception, transfer and further enforcement for people who are serving prison sentence.

2. This Circular applies to Vietnamese and foreign agencies, organizations and individuals; related to the reception, transfer and further enforcement for people who are serving prison sentence.

Article 2. Principle of reception and transfer

1. In conformity with the Constitution and laws of Vietnam and international agreement to which Vietnam is a member.

2. For humanitarian purposes to facilitate people who are serving prison sentence have the opportunity to continue serving the rest of the sentence in the country in which they are nationals or in other countries which agree to receive them.

3. Priority is given to the application of international agreement in which Vietnam is a member. In case there is no international agreement, the principle of “reciprocity” shall apply but must be in line with Vietnamese and international law.

Article 3. Explanation of terms

In this Circular, the terms below are construed as follows:

1. "Reception" means the competent authorities of Vietnam receives Vietnamese citizen who has been sentenced to a specific time in prison or life imprisonment in transferring countries to continue his/her execution of judgment in Vietnam;

2. "Transfer" means the competent agencies of Vietnam remove the persons who are serving a fixed-term sentence or life imprisonment in the Vietnamese detention camps to the receiving country for further execution of judgment in that country;

3. “Sentenced person” is the person who is serving sentence in the detention camps in the territory of the Socialist Republic of Vietnam or territory of transferring country.;

4.."Competent People's Court" is a provincial-level People's Court as the last residence in Vietnam of the sentenced person in the transferring country or the place where the foreigner is serving their sentence in Vietnam;

5. "Detention camps" means the cell house, detention camp or other detention places in the territory of the Socialist Republic of Vietnam or the territory of transferring country.

6. "Special cases" specified at Point d, Clause 1, Article 50 of the Law on Mutual Legal Assistance is meant to be one of the following cases:

a) To serve the foreign requirements between Vietnam and receiving country;

b) The person who is serving sentence suffers from such a serious disease that he/she can not continue to exercise his/her judgment with one of the following diseases: end-stage cancer, cirrhosis ascites, drug-resistant tuberculosis at degree 4, polio, heart failure at degree 3 or higher, kidney failure at degree 4 or higher, HIV moving to AIDS stage with opportunistic infections and poor prognosis ..., and conclusion of the hospital at provincial-level or higher more about the person who is serving sentence while suffering serious diseases.

7. "Person allowed to reside indefinitely in the receiving country" specified at Point a, Clause 2, Article 50 of the Law on Mutual Legal Assistance is understood as those who are permitted to enter and stay permanently in the receiving country;

8. "Kin of the person who is serving sentence" is specified at Point a, Clause 2, Article 50 of the Law on Mutual Legal Assistance are: his maternal and paternal grandparents; natural parents, parents-in-law, legitimate adoptive parents, spouse, natural child, daughter-in-law, son-in-law, legitimate adopted child, natural siblings, wife or husband’s siblings, aunt, uncle…of the person serving that sentence has main residence in the territory of receiving country.

Article 4. Competence of agency and organization in transfer and receiving

1. Ministry of Public Security has the following competence:

a) Receiving and requiring transfer;

b) Checking record and requiring supplementation (if necessary).

In case of reviewing record for transfer sentenced person in detention camps under its management, the Ministry of Public Security sees that person is not eligible for transfer as specified in Clause 2 of Article 50 or subject to one of the cases of transfer refusal as specified in Article 51 of the Law on Mutual Legal Assistance, the Ministry of Public Security shall notify the competent agencies of the transfer requesting country and that sentenced person of the possibility of transfer refusal.

In case the record for receiving the sentenced person managed by foreign detention camps, if seeing that it is not eligible for reception or incomplete record as specified in Clause 59, 52 and 53 of the Law on Mutual Legal Assistance, the Ministry of Public Security shall notify the competent agencies of the requesting country of the possibility of receiving refusal or require the country requesting the reception to supply complete information as prescribed.

2. The Ministry of Foreign Affairs shall assume the prime responsibility and coordinate with relevant ministries and sectors to consider and make a decision on application of principle of  “reciprocity” in receiving and transferring the sentenced person; direct and guide diplomatic missions, consular missions and other agencies authorized to perform consular function of Vietnam in foreign countries (hereinafter referred to as the Vietnamese representative agencies) related to the transfer and reception of sentenced person.

3. Vietnamese representative agencies shall assist the competent authorities in the country in relation to the foreign competent authorities concerning the transfer and reception of the sentenced person.

4. Provincial People’s Court where the person required to be transferred to Vietnam with the last residence or the place where the foreigner is serving his/her sentence in Vietnam shall consider and make a decision on reception, transfer or refusal of reception or transfer.

5. Supreme People's Court shall review the appeal or protest, the appeal procedures for decisions on reception or transfer or refusal of reception or transfer of provincial-level People's Court.

6. The Supreme People's Procuracy, the provincial People's Procuracy shall express their opinion at the meeting to consider the reception and transfer, performing the control of the judicial activities in the reception and transfer and further execution of judgment over the sentenced person.

Article 5. Reception and transfer in the principle of “reciprocity”

1. The reception and transfer at the request of Vietnamese party

a) On the basis of request of the sentenced person or his/her legal representative, the Ministry of Public Security shall make record to require the reception and transfer as prescribed by law and send written request to the Ministry of Foreign Affairs to consider and apply the principle of “reciprocity” while sending the copy of record and document to the Ministry of Justice, Supreme People’s Court, Supreme People’s Procuracy for study and coordination.  In the document sent to the Ministry of Foreign Affairs, it is required to mention the necessity of applying the principle of “reciprocity” with the countries concerned, the compatibility of the records in accordance with the Law on Mutual Legal Assistance and this Circular.

b) Within 05 (five) working days after receiving the record, the Ministry of Foreign Affairs shall send written request to the Ministry of Justice, the Supreme People's Court, the Supreme People's Procuracy to have their opinions in writing on the need to apply the principle of "reciprocity", compatibility of the record for the provisions of Articles 50, 52 and 53 of the Law on Mutual Legal Assistance.

c) Within 30 (thirty) days from the date of receipt of document of the Ministry of Foreign Affairs, the Ministry of Justice, the Supreme People's Court and Supreme People's Procuracy shall have their written opinion.

d) Within 10 (ten) days from the date of receipt of the written opinion of the Ministry of Justice, the Supreme People's Court and Supreme People's Procuracy, the Ministry of Foreign Affairs shall consider the application of the principle of "reciprocity".

In case of application of the principle of "reciprocity", the Ministry of Foreign Affairs shall notify in writing the Ministry of Public Security, Ministry of Justice, the Supreme People's Court and Supreme People's Procuracy while sending diplomatic note together with the relevant documents to the competent authorities of foreign countries.

In case of no application of principle of “reciprocity”, the Ministry of Foreign Affairs shall return specifying the reason while notifying in writing to the Ministry of Justice, the Supreme People's Court and Supreme People's Procuracy.

e) Within 05 (five) working days from the date of receipt of the opinion of the foreigners on the application of the principle of "reciprocity", the Ministry of Foreign Affairs shall inform the Ministry of Public Security, Ministry of Justice, the Supreme People's Court and Supreme People's Procuracy for coordination.

2. Reception and transfer at the request of foreign party.

a) In case the Ministry of Foreign Affairs receives the request for reception and transferfrom foreign party but there is no international agreement between Vietnam and that country concerning the reception and transfer of sentenced person and no agreement and precedent on application of principle of “reciprocity” about this issue. The Ministry of Foreign Affairs shall have document together with the record (if any) to request the Ministry of Public Security, Ministry of Justice, the Supreme People's Court and Supreme People's Procuracy to coordinate and consider the application of principle of “reciprocity”.

b) In case the Ministry of Public Security receives the request for reception and transferfrom foreign party but there is no international agreement between Vietnam and that country concerning the reception and transfer of sentenced person and no agreement and precedent on application of principle of “reciprocity” about this issue. The Ministry of Public Security shall have document together with the copy of record (if any) to request the Ministry of Foreign Affairs to coordinate with the Ministry of Justice, the Supreme People's Court and Supreme People's Procuracy to consider and make a decision on application of principle of “reciprocity”. In the document it is necessary to specify the opinions of the Ministry of Public Security on the necessity of application of principle of “reciprocity”, the compatibility of record for provisions in Article 50, 52 and 53 of the Law on Mutual Legal Assistance.

In this case, the Ministry of Foreign Affairs shall have document within 05 (five) working days after receipt of record, to request the Supreme People's Court and Supreme People's Procuracy and Ministry of Justice to have their opinion on the necessity of application of principle of “reciprocity”. The compatibility of record for provisions in Article 50, 52 and 53 of the Law on Mutual Legal Assistance.

c) Within 30 (thirty) days after receipt of document from the Ministry of Foreign Affairs, the Supreme People's Court and Supreme People's Procuracy and Ministry of Justice shall have their opinions in writing.

d) Within 05 (five) working days after receiving opinions from the Supreme People's Court and Supreme People's Procuracy and Ministry of Justice, the Ministry of Foreign Affairs shall consider and make a decision on application of principle of “reciprocity” and reply in writing to the requesting foreign competent agencies and send a copy of that document to the Ministry of Public Security, the Supreme People's Court and Supreme People's Procuracy and Ministry of Justice for coordination. In case of application with consent of principle of “reciprocity” on the basis that the record was sent by foreign party, the agencies concerned shall receive and transfer the sentenced person as prescribed.

Chapter 2.

RECEIVING THE SENTENCED PERSON IN FOREIGN COUNTRY BROUGHT BACK TO VIETNAM FOR FURTHER EXECUTION OF JUDGMENT

Article 6. Conditions for reception of sentenced person

A sentenced person who is serving sentence in the transferring country is only received back to Vietnam for further execution of remaining sentence upon meeting the following conditions:

1. Being Vietnamese citizen;

2. Having the last residence in Vietnam;

3. Acts of criminal by which the offender is sentenced in foreign country also constitute a criminal under the provisions of Vietnamese law;

4. At the time of receiving request for transfer, the period of remaining sentence must be at least 01 (one) year. In special case, this period must be at least 06 (six) months.

5. The judgment for the person to be transferred back to Vietnam has legal effect and no procedural proceedings for that person in the transferring country;

6. The transferring country and the sentenced persons have agreed upon the transfer. In case the sentenced person is a minor, person with physical or mental defects, he/she must have the consent of his or her legal representative;

7. The Vietnamese competent Court has a decision on reception with legal effect

Article 7. Record for receiving transfer

Record for receiving transfer shall be made in 03 (three) sets as prescribed in Article 52 and 53 of the Law on Mutual Legal Assistance except that international agreements on transfer of sentenced person in which Vietnam and the transferring country are members have different provisions.

Article 8. Identification of Vietnamese nationality of the sentenced person.

When receiving request for transfer reception, the focal agency of the Ministry of Public Security shall coordinate with the competent agencies of the Ministry of Justice to verify the Vietnamese nationality of the sentenced person. Order and procedures for verification of nationality shall comply with current regulations of Vietnamese laws.

Article 9. Order and procedures for receiving transfer request; consideration and decision on reception.

1. Vietnamese citizen commiting a crime guilty and sentenced to life imprisonment or fixed-term sentence in foreign countries and wishing to be transferred back to Vietnam for further execution of the remaining sentence may apply petition (or through his/her legal representative) to express his/her desire to foreign competent authorities or the Ministry of Public Security of the Socialist Republic of Vietnam or Vietnamese representative agencies.

2. Within 10 (ten) days after receiving petition for transfer of the sentenced person, the Vietnamese representative agencies shall forward the petition and record to the Ministry of Public Security for record.

3. Within 20 (twenty) days aftere receving record for transfer reception of the sentenced person, the Ministry of Public Security shall record and check the records as specified in Article 52 and 53 of the Law on Mutual Legal Assistance. The Ministry of Public Security may request the competent agencies of the transferring country to supply additional information in the record. After 60 (sixty) days from the date of sending document for additional information without receiving additional information, the Ministry of Public Security shall return the record to the transferring country specifying the reason and also to the sentenced person requesting the transfer back to Vietnam (or his/her legal representative). In case of valid record, the Ministry of Public Security shall immediately forward 02 (two) sets of record to the competent provincial People’s Court to consider and decide whether to accept the transfer to Vietnam or not.

4. Within 10 (ten) days after fully receiving records for reception forwarded by the Ministry of Public Security, the competent provincial-level People’s Court shall handle and notify in writing the People’s Procuracy of the same level. Within the period to prepare the request for reception, the People's Court shall request the competent authorities of foreign country to clarify unclear points in the records for reception request. The written request and written reply are sent through the Ministry of Public Security.

5. Within 30 (thirty) days from the date of handling, depending on each case, the provincial-level People’s Court shall make one of the following decisions:

a) Considering request for reception upon having sufficient conditions specified in Article 50 of the Law on Mutual Legal Assistance and Article 6 of this Circular.

b) Suspending the consideration for receipt and return of record to the Ministry of Industry and Trade in case not under the competence or the foreign competent agencies or the requester takes back his/her request for transfer or for other reasons that the consideration cannot be done.

6. Provincial-level People’s Court shall consider the request for reception within 30 (thirty) days after fully receiving record specified in Clause 3 of this Article and immediately forward to the People’s Procuracy of the same level.

7. The consideration for reception is done at the meeting chaired by a judge in a Board of 03 (three) judges with participation of prosecutors of People's Procuracy of the same level.

8. The Board shall consider the request for reception shall perform work in the order specified in Clause 4, Article 55 of the Law on Mutual Legal Assistance.

9. Within 10 (ten) days from the date of making a decision on reception or refusal of reception, the provincial-level People’s Court shall send it decision to the People's Procuracy of the same level to consider whether to protest or not while sending it to the Ministry of Public Security to inform the foreign party.

10. Decision on reception, refusal of reception with legal effect includes:

a) Decision of the First Instance Court can not appealed or protested;

b) Decision of the Court of Appeal

11. In case of decision on reception, within five (05) days, after receiving the decision on reception with legal effect, the Tribunal President who made the first instance decision and the following decisions:

a) Decision to implement the decision on reception;

b) Decision on further execution of judgment in Vietnam;

c) Decision on conversion of penalty as prescribed in Article 19 of this Circular in case the nature and duration of the penalty of the transferring country adjudicated are not compatible with the provisions of Vietnamese law.

Article 10. Verification of transferee’s consent

In case of necessity, before there is a decision on reception of transfer of the sentenced person, the Ministry of Public Security shall send officials to the transferring country or authorize the Vietnamese representative agencies in the transferring country to determine whether he or she has agreed voluntarily and with full awareness of the legal consequences of the transfer or not.

Article 11. Organization of reception of sentenced person

1. After receiving decision on executing the reception decision, the Ministry of Public Security’s criminal judgment execution management agency shall agree with the competent agencies and organizations of the transferring country upon the time, location, way of reception and organization of reception and escoriting of the transferee to detention camps for further execution of his/her sentence in Vietnam.

2. Composition of the group receiving the sentenced person includes:

a) Representative of the Ministry of Public Security’s criminal judgment execution management agency as the Head of the group

b) Judicial police

3. The reception of the sentenced person from the transferring country must be made into record including 03 (three) Vietnamese copies, 03 (three) English copies and 03 (three) copies in language of the receiving country with the signature of representatives of responsible agencies specified in Clause 2 of this Article and representatives of competent agencies of the transferring country.

4. The Head of the Ministry of Public Security’s criminal judgment execution management agency shall decide and appoint the detention camp to execute further judgment over the sentenced person who has reception decision.

Chapter 3.

TRANSFERRING SENTENCED PERSON IN THE TERRITORY OF VIETNAM TO FOREIGN PARTY

Article 12. Information of right to request transfer

1. When adjudicating a fixed-term sentence or life imprisonment, the People’s Court has exercised the hearing of first instance and appeal shall inform defendants who are subjects specified at Point a, Clause 2, Article 50 of the Law on Mutual Legal Assistance of the right to request transfer.

2. Annually, the Ministry of Public Security shall inform the sentenced persons who are foreigners and serving their sentence at detention camps managed by the Ministry of Public Security of the right to request transfer.

Article 13. Record for transfer request

Record for transfere request and attached documents specified in Article 52 and 53 of the Law on Mutual Legal Assistance and provisions in international agreements in which Vietnam and foreign party are members.

Article 14. Determination of consent of transfer of the sentenced person.

1. The determination of consent of transfer of the sentenced person is based on:

a) Petition for transfer of that person.

b) Declaration of the sentenced persons or legal representative in case the sentenced person are minors or persons with physical or mental defects that make those persons have insufficient capacity and behaviour, cognitive abilities of their full understanding of the consequences of the transfer and the rights and obligations of the transfer.

2. Based on the requirement of the receiving country and each specific case, the Minister of Public Security shall decide on permitting the receiving country to send its representative to Vietnam to verify the consent of transfer of the sentenced person.

Article 15. Order and procedures for considering decision on transfer and refusal of transfer

The order and procedures for considering decision on transfer and refusal of transfer to foreign party shall comply with provisions in Article 50, 51 and 55 of the Law on Mutual Legal Assistance and other regulations in international agreements in which Vietnam and foreign party are members and provisions in this Circular.

Article 16. Decision on reservation of judgment and decision of the Court of the Socialist Republic of Vietnam

In case of consent to transfer of the sentenced person to the foreign party, the first instance and appellate People’s Court shall decide upon reservation of judgment and decision adjudicated for the criminal.

Article 17. Execution of transfer

1. Right after receiving the decision on execution of transfer decision, the Ministry of Security shall agree with the foreign competent authorities on the time, location and way of transfer.

2. Based on decision of the Head of the Ministry of Public Security’s criminal judgment execution management agency, the detention camp of sentenced person shall coordinate with other Vietnamese competent agencies to escort the sentenced person to the location and at the right time as agreed for transfer to thee foreign party. The composition of the escorting group of sentenced person includes:

a) Representative of the Ministry of Public Security’s criminal judgment execution management agency as the head of group;

b) Suprintendent or deputy superintendent of detention camp of the sentenced person.

3. The transfer of sentenced person to the receiving country must be made in record including 03 (three) Vietnamese copies, 03 (three) English copies and 03 (three) copies in language of receiving country with the signature of representatives of responsible agencies specified in Clause 2 of this Article and representative of competent authorities of the receiving country.

4. Upon expiration of 07 (seven) days from the fixed time in the agreement of transfer of sentenced person but the country requesting the transfer does not receive transfer without any plausible reason, the Ministry of Public Security’s criminal judgment execution management agency shall make a record of this and immediately notify the Court which has made a decision on transfer to consider and annul the transfer decision. Within 05 (five) working days after receiving notice of the Ministry of Public Security’s criminal judgment execution management agency, the Court which has made a decision on transfer shall organize a meeting to annul the transfer decision and immediately notify the Ministry of Public Security to inform the foreign party.

After receiving decision on annulling the transfer decision, the Ministry of Public Security shall inform immediately the foreign party and the sentenced person of the Vietnamese Court’s decision and make a decision on returning the sentenced person to the detention camp for further execution of judgment in Vietnam.

5. Upon expiration of 07 (seven) days from the fixed time in the agreement of transfer of sentenced person but the country requesting the transfer cannot receive the transfer due to objective reasons and has informed the Ministry of Public Security of this delay and committed in writing to receive the sentenced person and pay all expenses arising due to this delay, the Ministry of Public Security shall decide to postpone the implementation of transfer decisions and make agreement with foreign party to fix the new time and location to implement the transfer. The delay of implementation of transfer decision must not exceed 15 (fifteen) days after receving the written commitment from foreign party concerning the reception of sentenced person.

The Head of the Ministry of Public Security’s criminal judgment execution management agency shall decide to bring the sentenced person to the nearest and most convenient detention camp for the transfer under new agreement

Article 18. Notification of remission of prison term, amnesty and general amnesty for sentenced persons who have been transferred.

1. Right after receiving the notification of decision on remission of prison term, amnesty, general amnesty, the Ministry of Public Security shall inform immediately the foreign competent authority to execute the remission of prison term, amnesty, and general amnesty for the sentenced persons.

2. The Vietnamese representative agencies shall coordinate with the Ministry of Public Security to monitor the execution of remission of prison term of Vietnamese competent authority from the receiving country’s competent authorities

Chapter 4.

FURTHER EXECUTION OF SENTENCE

Article 19. Transformation of sentence

The transformation of sentence is executed as follows:

1. When making a decision on receiving Vietnamese citizens who are serving sentence in foreign countries back to home for further execution of jusgment in Vietnam, the competent Court shall consider whether to transform the penalty or not. If the nature or the term of that penalty is not in line with regulations of Vietnamese laws, that penalty may be transformed in line with that of Vietnamese laws prescribed for the same crime. Upon transformation of penalty, the competent Court shall base on the conclusions of the case presented in opinions, impeachment, judgment or penalty adjucated by the transferring country. The transformed penalty must not be severe than that adjucated by the transferring country concerning the nature and term.

2. In case the offender is imprisoned for a term of over 30 (thirty) years for many offences or over 20 (twenty) years for one offence, after consultation with the foreign competent authorities, the Vietnamese competent Court may consider and make a decision on the term so that the execution of the remaining penalty is 30 (thirty) years imprisonment at most (in case of committing many offences) or up to 20 (twenty) years (in case of committing one offence) as prescribed by the decision on penalty of the Vietnam Penal Code and deduct the time of penalty execution of that person in foreign country.

Article 20. Implementation of regulation for the sentenced persons transferred back to Vietnam.

1. The regulations and interest of the sentenced persons who are transferred back to Vietnam are the same as those of the sentenced person executing judgment in Vietnam.

2. During the term of imprisonment in Vietnam, the sentenced persons are entitled to regulations on detention management, education, reformation, consideration for suspension of sentence execution, remission of sentence term, release, amnesty and general amnesty as prescribed by Vietnamese laws as those who are serving other prison penalty.

3. If receiving notice concerning the remission of prison term, release, amnesty, general amnesty or any decision and measure of the transferring country for persons transferred back to Vietnam leading to the remission of prison term, the Ministry of Public Security shall comply with the order and procedures specified in Clause 2, Article 22 of this Circular.

4. If the transferee is a minor, he/she shall be entitled to regulations on detention for the sentenced person who is a minor as prescribed by Vietnamese laws.

Article 21. Notification of the execution of judgment of the sentenced person.

The Ministry of Public Security shall inform the foreign competent authorities when:

1. The sentenced person is suspended from execution of judgment, granted remission of sentence or amnesty;

2. The sentenced person has finished his/her prison sentence;

3. The sentenced person has escaped from the detention camp;

4. The sentenced person has died before completion of prison sentence.

5. The foreign party requests the notice on the execution of judgment of the sentenced persons.

Article 22. Execution of decision on amnesty or remission of prison term of the transferring country for the sentenced person.

When receiving notice concerning the decision on amnesty or remission of prison term from the transferring country for the sentenced person, the Ministry of Public Security shall send notice immediately to the competent authorities to consider and decide according to the order and procedures as follows:

1. Making a report to propose the Government to submit the State President the decision on amnesty of foreign party for the sentenced person who has been received in Vietnam for decision under competence.

2. Informing the Supreme People’s Court of decision on remission of prison term of the transferring country in order to decide on recognition and execution of decision on remission of prison term in Vietnam of the Court of transferring country.

3. After receiving decision of the competent authorities, the Ministry of Public Security shall execute the amnesty and remission of prison term for the sentenced person.

Chapter 5.

EFFECT

Article 23. Effect of the Joint Circular

This Joint Circular takes effect on April 15, 2013.

Article 24. Implementation organization

Any difficulty arising during the implementation of this Circular should be promptly to the Ministry of Public Security, Ministry of Justice, Ministry of Foreign Affairs, the Supreme People's Procuracy, the Supreme People's Court for timely explanation, guidance and supplementation.