Thông tư liên tịch 01/2014/TTLT-VKSTC-BQP

JOINT CIRCULAR

GUIDING THE ARREST AND HOLDING IN CUSTODY OF CRIMINAL SUSPECTS AND SUPERVISION OF THE ARREST AND HOLDING IN CUSTODY OF CRIMINAL SUSPECTS AT BORDER-GUARD POSTS (*)

Pursuant to the 2003 Criminal Procedure Code;

In order to ensure the proper implementation of the provisions of the Criminal Procedure Code on arrest and holding in custody of criminal suspects and supervision of the arrest and holding in custody of criminal suspects at border-guard posts, the Procurator General of the Supreme People's Procuracy and the Minister of National Defense provide uniform guidance as follows:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Joint Circular guides the implementation of the criminal procedures regulations on arrest and holding in custody of criminal suspects and supervision of the arrest and holding in custody of criminal suspects at border-guard posts of the Vietnam People’s Army’s Border Guard.

Article 2. Subjects of application

Subjects of application of this Circular include:

1. Border-guard posts of the Border Guard in land border areas, along the coastline and on islands (below collectively referred to as border-guard posts);

2. People’s procuracies of districts, towns and provincial cities where border-guard posts are stationed (below collectively referred to as district-level people’s procuracies).

3. Agencies, units, organizations and individuals involved in the arrest and holding in custody of criminal suspects and supervision of the arrest and holding in custody of criminal suspects at border-guard posts.

Article 3. Principles of implementation

1. The arrest and holding in custody of criminal suspects and supervision of the arrest and holding in custody of criminal suspects at border-guard posts must comply with the Criminal Procedure Code and other relevant legal documents.

2. Guarantee of human rights and lawful rights and interests of citizens.

Chapter II

ARREST AND HOLDING IN CUSTODY OF CRIMINAL SUSPECTS AT BORDER-GUARD POSTS

Article 4. Competence to arrest and hold in custody criminal suspects

1. In case border guards, while on duty, detect crimes committed in land .border areas, along coastline, on islands and in sea areas under their management, commanding officers of border-guard posts (below referred to as post commanders) may decide to arrest persons in urgent circumstances, offenders caught red-handed or wanted offenders and hold them in custody in accordance with the Criminal Procedure Code.

2. When post commanders are absent, deputy commanders may be authorized to exercise the powers of commanders in arresting and holding in custody criminal suspects and must be answerable to commanders for their assigned duties. Post commanders and deputy commanders shall be held responsible before law for their acts and decisions in the arrest and holding in custody of criminal suspects.

Article 5. Procedures for arrest of persons in urgent circumstances, offenders caught red-handed or wanted offenders

1. Post commanders shall issue arrest warrants in case of arrest of persons in urgent circumstances. An arrest warrant must clearly state the urgent arrest in which circumstances in accordance with the Criminal Procedure Code; the arrester shall make an urgent arrest minutes under Article 84 of the Criminal Procedure Code, isolate the arrestee, make identity and fingerprint records; take statements and collect documents on personal identification and criminal act of the arrestee; and at the same time promptly send a written request for approval of the urgent arrest warrant enclosed with a file to the district-level people’s procuracy of the locality where the border-guard post is stationed for approval. If the district-level people’s procuracy refuses to approve the urgent arrest warrant, the post commander shall immediately release the arrestee.

2. In case of arrest of an offender caught red-handed or receipt of an offender arrested for being caught red-handed, a border-guard post shall make an arrest minutes, isolate the arrestee, make identity and fingerprint records, take statements, seal up exhibits, and record statements of witnesses and victims (if any). The post commander shall issue a decision to hold in custody (when necessary) or to release the arrestee within 24 hours after the arrestee is escorted to the border-guard post and such is notified to the district-level people’s procuracy of the locality where the border-guard post is stationed.

3. In case of arrest of a wanted offender or receipt of an offender arrested under a pursuit warrant, a border-guard post shall make an arrest minutes, take statements, make identity and fingerprint records of the arrestee and immediately notify such to the agency that has issued the pursuit warrant to come and take the arrestee. If deeming that the agency that has issued the pursuit warrant is unable to immediately come to receive the arrestee (including the case where a wanted person gives himself/herself up), the post commander shall issue and send a custody decision to the district-level people’s procuracy of the locality where the border-guard post is stationed within 12 hours after such decision is issued.

4. Post commanders shall notify the arrest under Article 85 of the Criminal Procedure Code.

Article 6. Arrest of foreign offenders

1. The arrest of foreign offenders must comply with Articles 79, 81 and 82 of the Criminal Procedure Code. Immediately after the arrest, post commanders shall report such to the chiefs of the provincial-level Border-Guard Commands for notification to the Consular Department of the Ministry of Foreign Affairs or the Foreign Affairs Bureau of Ho Chi Minh City in accordance with law.

2. For foreigners who are entitled to diplomatic and consular immunities and caught red-handed while committing a crime, post commanders shall make arrest minutes and seize exhibits, then release them and immediately report such to the chiefs of the provincial-level Border-Guard Commands for notification to the Consular Department of the Ministry of Foreign Affairs or the Foreign Affairs Bureau of Ho Chi Minh City for coordinated handling in accordance with law.

Article 7. Procedures for holding persons in custody

1. When holding in custody persons arrested in urgent circumstances, offenders caught red-handed, offenders who give themselves up or offenders arrested under pursuit warrants, post commanders shall issue custody decisions.

2. When confining persons to be held in custody, officers shall explain their rights and obligations under Article 48 of the Criminal Procedure Code; give them a health checkup; check their belongings before being brought into the confinement; and inform them of confinement rules.

Health checkup of persons held in custody shall be conducted by medical officers of border-guard posts and related persons. The body search of male persons to be held in custody shall be conducted by males and females by females in closed rooms. If a border-guard post has no female soldier or defense worker, the post commander shall coordinate with the local administration in inviting a female citizen to help conduct the body search.

The health checkup and body search of persons held in custody must be recorded in health checkup and body search minutes made according to set forms and filed in custody files.

3. Commanders of border-guard posts that have no custody rooms shall appoint subordinate officers or soldiers to escort persons subject to custody decisions to custody houses of district-level police offices or detention camps of provincial-level police departments of localities where their posts are stationed for being held in custody (under Joint Circular No. 112/2002/TTLT-BQP-BCA of August 16, 2002, of the Ministry of National Defense and the Ministry of Public Security, allowing border-guard posts having no custody rooms to send persons to be held in custody to custody houses or detention camps managed by the Ministry of Public Security for detention).

4. In case of necessity to prolong the custody duration, the post commander shall issue a decision to prolong the custody duration under Clause 2, Article 87 of the Criminal Procedure Code. At least 12 hours before the expiration of the custody duration, the border-guard post shall send a dossier of request for prolongation of the custody duration to the district-level people’s procuracy of the locality where the post is stationed for approval.

Article 8. Management of the holding of persons in custody at border-guard posts

1. Post commanders who directly manage criminal custody rooms have the following tasks and powers: To manage and take responsibility for the holding of persons in custody; to conduct the holding of persons in custody or release them; to hand over persons held in custody to competent agencies; to conduct other activities in accordance with law.

2. The holding of persons in custody must be zoned off and persons held in custody must be categorized under regulations. Persons held in custody must stay in custody rooms which have security guards and are protected in the course of custody. The transfer and escort of persons held in custody are subject to warrants and the handover of persons held in custody must be recorded in writing in accordance with law.

3. Post commanders shall assign an officer to make and manage custody dossiers which include documents related to the criminal arrest and holding of persons in custody.

A custody dossier must include an arrest warrant (or pursuit warrant, minutes of arrest of an offender caught red-handed, minutes of receipt of a person who turns himself in); a custody decision; a minutes of handover and receipt of the arrestee; the procuracy’s approval decision (in case of arrest in an urgent circumstance and prolongation of the custody duration); minutes of search of body marks and health checkup; custody logbook; transfer order; minutes of handover of the person held in custody to another agency; decision on release of person held in custody or change of the custody decision; the procuracy’s documents showing the supervision of the holding of persons in custody and other relevant documents (if any).

Documents included in a dossier must be numbered and listed and managed together with custody monitoring books in accordance with law.

Article 9. Food ration, clothing and lodging for persons held in custody

Food ration, clothing and lodging for persons held in custody as criminal suspects at border-guard posts must comply with the Regulation on custody and detention (promulgated together with the Government’s Decree No. 89/1998/ND-CP of November 7, 1998) and current legal documents. The provision of food ration, clothing and lodging must be fully recorded in monitoring books under regulations.

Article 10. Handling of cases in which persons held in custody fall ill or die during the custody period

1. Persons held in custody who fall ill or get injured will be medically examined and treated by medical officers of border-guard posts.

In case persons held in custody suffer serious illness or injuries which go beyond the medical examination and treatment capacity of medical officers of border-guard posts, procedures shall be carried out for transferring them to local medical establishments or higher- level hospitals for treatment and watch-keeping. Medical examination and treatment expenses shall be paid by border-guard posts to medical establishments.

2. In case a person held in custody dies in the custody room, the post commander shall organize protection of the scene and immediately notify such to a competent agency and district-level procuracy of the locality where the border-guard post is stationed for autopsy. The post commander shall assign a person to witness the scene investigation and autopsy and notify such to relatives of the deceased.

Other procedures must comply with the Regulation on holding in custody and detention of persons (promulgated together with the Government’s Decree No. 89/1998/ND-CP of November 7, 1998) and current legal documents.

Article 11. Transfer of files for settlement according to competence

1. When there is a ground to determine that an arrestee or a person held in custody does not fall under his/her settling competence, the post commander shall request in writing the competent investigative agency to receive the file, exhibits and arrestee or person held in custody and concurrently notify such to the district-level procuracy of the locality where the border-guard post is stationed.

2. The transfer and receipt of files, exhibits and arrestees or persons held in custody must be recorded in writing under Clause 1, Article 95 of the Criminal Procedure Code.

3. In case the border-guard post commander institutes a criminal case, the transfer of the case file for investigation according to competence must comply with Article 116 of the Criminal Procedure Code and relevant legal documents.

Chapter III

SUPERVISION OF ARREST, HOLDING IN CUSTODY OF CRIMINAL SUSPECTS AT BORDER-GUARD POSTS

Article 12. Competence to supervise the arrest and holding in custody of criminal suspects at border-guard posts

1. District-level procuracies of localities where border-guard posts are stationed shall supervise the law observance by border-guard posts and responsible persons in the arrest and holding in custody of criminal suspects.

2. When supervising the law observance in the holding in custody of criminal suspects at border-guard posts, district-level procuracies have the following tasks and powers:

a/ To directly supervise criminal custody rooms at border-guard posts stationed in their localities on a regular or irregular basis;

b/ To request post commanders to notify and provide relevant documents and examine the law observance in the arrest and holding in custody of criminal suspects;

c/ To receive and settle complaints and denunciations about the arrest and holding in custody of criminal suspects at border-guard posts;

d/ To detect and promptly handle cases of injustice or violation in the arrest and holding in custody of criminal suspects at border-guard posts; to decide on immediate release of persons held in custody without legal grounds;

dd/ To file protests or petitions in accordance with law.

3. Post commanders and related persons shall strictly execute decisions and respond to requests of district-level procuracies in accordance with law.

Article 13. Supervision of arrest and holding in custody of persons in urgent circumstances, offenders caught red-handed or wanted offenders

1. Upon receiving written requests of border-guard posts for approval of warrants to arrest persons in urgent circumstances, assigned procurators shall examine documents and evidences

proving that the urgent arrest is well-grounded in each case specified in Clause 1, Article 81 of the Criminal Procedure Code. Procurators shall strictly supervise the grounds and lawfulness of decisions on arrest of offenders caught red-handed or wanted offenders.

In case of necessity to meet and question arrestees, procurators shall notify such in advance to border-guard posts for coordination in the course of meeting and questioning arrestees. Written records of statements of arrestees made by procurators must comply with Article 95 of the Criminal Procedure Code and be included in arrest and custody files.

2. Upon receiving decisions on holding in custody of persons or decisions on prolongation of the custody duration of border-guard posts, procurators shall examine the grounds and lawfulness of the holding in custody of persons and prolongation of the custody duration, and report them to chief procurators or deputy procurators of their procuracies for handling according to competence.

Article 14. Direct supervision of law observance in the holding in-custody of criminal suspects at border-guard posts

1. Once a year, district-level procuracies shall directly supervise the law observance in the arrest and holding in custody of criminal suspects by border-guard posts stationed in their localities and having custody rooms.

District-level procuracies may irregularly supervise the holding in custody of persons at border-guard posts stationed in their localities when a person held in custody absconds or dies in a custody room or when they detect signs of violation in the arrest or holding in custody of persons or deem it necessary.

2. Contents of direct supervision

Direct supervision includes supervision of the making of files, preservation of documents, taking of notes in monitoring books and comparison of information in such files, documents and books with actual persons held in custody in accordance with law. Persons held in custody must have lawful and legally valid custody decisions of competent agencies or persons. Dossiers for receipt of persons held in custody must be made in accordance with law and updated with all documents collected in the custody duration.

Direct supervision includes also supervision of the classification of custody, transfer and handover of persons held in custody in accordance with law, and provision of entitlements to persons held in custody; assurance of safety of life, health, belongings, honor and dignity of persons held in custody; and adequate provision of meals and lodging for persons held in custody in accordance with law.

3. Procedures for direct supervision

Before conducting direct supervision on a regular or irregular basis, procuracies shall issue decisions and prepare plans. Contents of such decisions and plans must comply with the guidance of the Supreme People’s Procuracy.

Upon completion of supervision, procuracies shall notify supervision conclusions to post commanders and persons involved in the arrest and holding in custody of criminal suspects.

Regular or irregular supervision shall be conducted by chief procurators, deputy chief procurators or authorized procurators.

Article 15. Exercise of the right to request

1. Upon detecting signs of violation or after a violation occurs within a criminal custody room of a border-guard post stationed in its locality but the conditions for a direct supervision are not yet met or when finding it necessary, the district-level people’s procuracy shall request in writing the post commander to notify the law observance in the arrest and holding in custody of the criminal suspect, explain the law-breaking decision, measure or act in the arrest and holding in custody of the criminal suspect, conduct self-examination and notify results or provide files and documents related to the arrest and holding in custody of the criminal suspect.

2. Within the scope of their tasks and powers, border-guard post commanders shall respond to requests of procuracies in accordance with law.

Article 16. Exercise of the right to file protests and petitions

1. If detecting violations while conducting the supervision of the arrest and holding in custody of criminal suspects at border-guard stations, chief procurators and deputy chief procurators of district-level people’s procuracies may file protests to request post commanders or responsible persons to stop the execution, modify or cancel law-breaking decisions; stop lawbreaking acts in the arrest and holding in custody of criminal suspects; and handle violators.

2. Upon identifying causes and conditions of violations or acts which may lead to violations if no remedy is applied, district-level people’s procuracies shall request post commanders, competent agencies and persons responsible for arrest and holding in custody of criminal suspects to take measures to remedy or prevent violations.

3. Within the scope of their tasks and powers, post commanders shall implement and respond to protests and petitions of district-level people’s procuracies in accordance with law.

4. In case they disagree with contents of protests and petitions of district-level people’s procuracies, post commanders may request in writing provincial-level people’s procuracies to review these protests and petitions and concurrently request in writing the Military Procuracy of the Border Guard for coordination in settlement. Provincial-level people’s procuracies shall consider and review such protests and petitions and reply to requests of post commanders within 15 days.

Article 17. Settlement of complaints and denunciations about the arrest and holding in custody of criminal suspects at border-guard posts

1. Complaints and denunciations about the application of the measure of arrest or holding in custody at border-guard posts of persons falling under the handling competence of military procuracies shall be settled by competent military procuracies.

2. Complaints and denunciations about the application of the measure of arrest or holding in custody at border-guard posts of persons falling beyond the handling competence of military procuracies and complaints and denunciations about the observance of regulations on management of and provision of regimes to persons held in custody at border-guard posts shall be settled by district-level people’s procuracies of localities where border-guard posts are stationed.

3. Procedures and time limits for settlement of complaints and denunciations and supervision of the settlement of complaints and denunciations about the arrest and holding in custody of criminal suspects at border-guard posts must comply with Joint Circular No. 02/2005/TTLT-VKSTC-TATC-BCA-BQP-BTP of August 10, 2005, of the Supreme People’s Procuracy, the Supreme People’s Court, the Ministry of Public Security, the Ministry of National Defense and the Ministry of Justice, guiding the implementation of a number of provisions of the Criminal Procedure Code on complaints and denunciations.

Article 18. Coordination

1. Within the scope of their responsibility, border-guard posts and district-level people’s procuracies of localities where border-guard posts are stationed shall actively coordinate with one another in reporting on the situation of, and reaching agreement on solving problems related to, the arrest and holding in custody of criminal suspects at border-guard posts and supervising the arrest and holding in custody of criminal suspects at border-guard posts in order to serve requirements of crime prevention and combat in border and island areas.

2. Provincial-level people’s procuracies and district-level people’s procuracies of localities where border-guard posts are stationed shall actively coordinate with military procuracies of the Border Guard in grasping the situation of arrest and holding in custody of criminal suspects, transferring files for settlement according to their own competence, settling complaints and denunciations about the arrest and holding in custody of criminal suspects, supervising the arrest and holding in custody of criminal suspects at border-guard posts, and settling protests and petitions of district-level people’s procuracies about border-guard posts.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 19. Effect

This Circular takes effect on April 15, 2014.

Article 20. Responsibility for implementation organization

1. The Border Guard High Command shall direct provincial-level border guard commands and related units in organizing the implementation of this Joint Circular at border-guard posts and related units.

2. Provincial-level people’s procuracies of localities where border-guard posts are stationed shall organize the implementation of this Joint Circular at district-level people’s procuracies of localities where border-guard posts are stationed, and at related agencies and units.

3. Any problems arising in the course of implementation should be reported to the Supreme People’s Procuracy and Ministry of National Defense for consideration and settlement.-