Thông tư liên tịch 05/2012/TTLT/VKSNDTC-TANDTC-BCA-BTP-BQP-BTC-BNNPTNT

JOINT CIRCULAR

GUIDING THE PERFORMANCE OF THE STATE COMPENSATION LIABILITY IN CRIMINAL PROCEEDINGS

In order to properly and uniformly implement the provisions of the Law on State Compensation Liability on compensation liability in criminal proceedings, the Supreme People’s Procuracy, the Supreme People’s Court, the Ministry of Public Security, the Ministry of Justice, the Ministry of National Defense, the Ministry of Finance and the Ministry of Agriculture and Rural Development jointly provide the following uniform guidance:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Joint Circular guides the implementation of a number of provisions of

the Law on State Compensation Liability (hereafter referred to as the Law) on the State liability to pay compensations to persons suffering from material damage or damage due to mental sufferings caused by competent persons in criminal procedure when conducting criminal proceedings.

Article 2. Cases entitled to compensations for damage

1. The State pays compensations for damage caused by procedure-conducting persons in criminal proceedings in any of the cases specified in Article 26 of the Law.

2. Persons held in temporary custody in the cases specified in Clause 1, Article 26 of the Law are entitled to compensation when there are decisions of competent agencies or persons in criminal procedure to cancel temporary custody decisions for the reason that they have not committed the crimes which are invoked by competent agencies as the foundation for issuance of temporary custody decisions against them.

Example 1: The police of district T holds in temporary custody Nguyen Van A and 8 other people in a case of gambling at C‘s home. It is verified through investigation that by the time of being arrested. A was at C”s home to pay a debt. As a result, the investigative agency issues a decision to cancel the temporary custody decision against A. In this case, Nguyen Van A shall be entitled to compensation for damage.

Example 2: Border-guard station 56 in district A caught on flagrant delict 10

Vietnamese people illegally transporting goods across the border into Vietnam and issued an order to hold them in temporary custody. However, it is determined through investigation that their violation is not serious enough for criminal liability. As a result, the border-guard station cancels the temporary custody decision and administratively handles them. In this case, these people have committed a violation (illegally transporting goods across the border) and are therefore not entitled to compensation.

3. A detainee in the cases specified in Clause Article 26 of the Law is entitled to compensation under a decision of a competent agency or person in criminal procedure to cancel the decision on his/her detention or cessation of investigation of the case, or under a court ruling that he/she is innocent for any of the following reasons:

a/ The detainee has committed no violation;

For example: Nguyen Van A is prosecuted and detained for murder. However, it is proven through investigation that he has not committed the act of murder. The procuracy issues a decision to cancel the detention decision and the investigative agency issues a decision to cease the investigation against him. In this case, Nguyen Van A is entitled to compensation.

b/ The detainee has committed a violation which is not a crime prescribed in the Penal Code;

c/ The time limit for investigation has expired but the accused’s commission of a

crime remains unproved.

4. Persons who have completely served or are serving a terminable imprisonment sentence, life imprisonment sentence, persons sentenced to death or persons who have been executed and fall into the cases specified in Clause 2, Article 26 of the Law are entitled to compensation when there are legally effective judgments or rulings of competent courts determining that they have committed no crime or their acts do not constitute a crime.

Article 3. Cases not entitled to compensation for damage

The State does not pay compensations for damage to the following persons:

1. Persons specified in Article 27 of the Law.

a/ Persons specified in Clause 1, Article 27 of the Law who are exempted from criminal liability under Article 19; Article 25; Clause 2, Article 69; Clause 3, Article 80; Clause 6. Article 289; Clause 6, Article 290; and Clause 3, Article 314 of the Penal Code;

b/ Persons specified in Clause 2, Article 27 of the Law who intentionally make false statements or provide untruthful documents or material evidences in order to plead guilty for other persons or to conceal crimes committed by other persons.

2. In case a person against whom a criminal case is instituted for his/her commission of an act dangerous to the society as prescribed in the Penal Code and who does not have to bear criminal liability but is subject to judicial measures specified in Article 43 or Article 70 of the Penal Code for the reason that he/she has no capacity for bearing criminal liability (he/she suffers a mental illness or another illness which deprives him/her of the ability to perceive or control his/ her act under Article 13 of the Penal Code) or he/she has not yet reached the age subject to criminal liability (under Article 12 of the Penal Code).

Article 4. Agencies liable to pay compensations

1. An investigative agency or an agency tasked to conduct a number of investigating activities shall pay compensations under Article 30 of the Law in any of the following cases:

a/ It has issued a decision to hold a person in temporary custody but a competent procuracy issues a decision to cancel such temporary custody decision for the reason that such person has committed no violation;

b/ It has issued a decision to institute a criminal case against an accused but a competent Procuracy does not approve such decision for the reason that the accused has committed no crime;

c/ It has issued a decision to hold a person in temporary custody but later canceled such decision for the reason that such person has committed no violation.

2. Procuracy shall pay compensations in the following cases:

a/ The cases specified in Article 31 of the Law;

b/ Procuracy has approved a decision to institute a criminal case against an accused or issued such a decision but the accused is not held in temporary custody or detained. then a competent agency in criminal procedure issues a decision to confirm that he/she has not committed the crime and is eligible for compensation under Clause 3, Article 26 of the Law;

c/ It has approved a decision to institute a criminal case against an accused but the accused is not held in temporary custody or detained at the stage of investigation or prosecution; after the transfer of the case file to a court for trial, the court has decided to apply the measure of detention and later the first-instance court has tried and judged the defendant innocent, or the court has returned the case file for additional investigation but later the investigation against the accused has been ceased for the reason that the accused had committed the crime and is eligible for compensation under Clause 3, Article 26 of the Law. The Procuracy which has approved the decision on accused prosecution shall pay compensation for damages.

3. A court shall pay compensation in the cases specified in Article 32 of the Law.

4. In case an agency liable to pay compensation has been split up, merged, consolidated, dissolved or authorized to perform an official duty, the agency liable lo pay compensation shall be identified according to Points a and c, Clause 2, Article 14 of the Law.

For example: Nguyen Van T was prosecuted by the People’s Procuracy of HT province (before it is merged into HN city) for the crime of abusing trust in order to appropriate property, and the People’s Court of HT province at the first-instance hearing issued a judgment, which is now legally effective, that Nguyen Van T was innocent. After the merger of HT province into HN city, if Nguyen Van T claims a compensation for his/her damage, then the People’s Procuracy of HN city is liable to pay compensation.

Chapter II

DETERMINATION OF COMPENSABLE DAMAGE

Article 5. Actual damage

Compensable actual damage is damage actually suffered by a person, including material damage and damage due to mental sufferings.

1. Material damage covered by the State compensation liability in criminal proceedings includes damage caused by property infringement specified in Article 45 of the Law; damage due to loss of or decrease in actual incomes specified in Article 46 of the Law; material loss due to death of sufferers specified in Article 48 of the Law; material loss due to health damage specified in Article 49 of the Law; expenses actually paid by the damage sufferer in the course of investigation, prosecution and trial, such as legal counsel charge and travel fare.

2. Damage due to mental sufferings covered by the State compensation liability in criminal proceedings includes damage due to mental sufferings during the time of temporary custody, detention or serving of imprisonment sentence specified in Clause 2, Article 47 of the Law; damage due to mental sufferings in case of death of sufferers specified in Clause 3, Article 47 of the Law; damage due to mental sufferings in case of health infringement specified in Clause 4 Article 47 of the Law; damage due to mental sufferings in case of institution of a criminal case, prosecution or trial without temporary custody or detention or serving of non-custodial reform or suspended imprisonment sentence specified in Clause 5, Article 47 of the Law.

Article 6. Damage caused by property infringement

1. Damage caused by property infringement is determined under Article 45 of the Law upon application of Article 45 of the Law. Attention should be paid to the following:

a/ Market prices mentioned in Clauses 1 and 2, Article 45 of the Law are those at the time of compensation settlement and in localities where the damage occurs;

b/ In case the damage occurs due to the failure to use or operate the leased property under a lease contract made before such property is distrained, then the lost actual income to be accounted as compensable damage shall be determined as follows:

- For a property lease contract as operating lease contract, the lost actual income shall be determined according to rent rates of property of the same type or with the same technical standards, properties, utilities and quality at the time of compensation settlement;

- For a property lease contract as financial lease contract, the lost actual income is the residual value of the contract.

c/ In case the infringed property is the use land right, houses, construction works and other property attached to land, compensable damage shall be determined under Article 45 of the Law and the land, construction and housing laws.

2. The period for calculation of interest on money amounts specified in Clause 4, Article 45 of the Law is counted from the date the damage sufferer remits such amounts into the State budget or has them confiscated or kept for judgment execution or deposits them as security at competent agencies to the date of issuance of a decision on compensation settlement by the agency liable to pay compensation, or the date when a court judgment on compensation takes legal effect.

Article 7. Damage due to loss of or decrease in actual incomes

1. A damage sufferer (dead or alive) is entitled to compensation for actual income lost during the time he/she is held in temporary custody, detention or serving imprisonment sentence.

2. Lost or decreased actual incomes of a damage sufferer shall be determined as follows:

a/ The bases for determination of lost or decreased actual income of a damage sufferer as specified in Article 46 of the Law;

b/ In case the damage sufferer, before being held in temporary custody, detained or serving imprisonment sentence, has stable incomes from payroll salary paid under a labor contract. his/her lost actual income shall be determined on the basis of his/her salary paid in the month preceding the month when he/she is held in temporary custody, detained or serving imprisonment sentence;

c/ In case the damage sufferer, before being held in temporary custody, detained or serving imprisonment sentence, has a job and earns regular income at different levels, his/her lost actual income shall be determined on the basis of the average income level of three consecutive months prior to his/her temporary custody, detention or serving of imprisonment sentence;

d/ In case the damage sufferer, before being held in temporary custody, detained or serving imprisonment sentence, is a farmer, fisherman, salt maker, forester, employee, small trader, craftsman or laborer in another sector and actually earns income which are seasonal or irregular, his/her lost actual income shall be determined on the basis of the average income of local laborers of the same type. Such an average income level shall be determined by the administration of the locality where the damage sufferer resides. In case it is impossible lo determine the average income level, compensation shall be determined according to the common minimum salary (hereafter referred to as the minimum salary) set by the State at the time of compensation settlement as the basis for determination of lost actual income..

3. A damage sufferer who has his/her salary or wage and social insurance premiums paid by his/her agency or employer under the labor law during the time of his/her temporary custody, detention or serving of imprisonment sentence is not entitled to compensation for his/ her damage. If he/she has his/her salary or wage partially paid by his/her agency or employer, the unpaid salary or wage amount shall be determined as his/her decreased actual income and he/she is entitled to compensation for such decreased income amount.

Article 8. Material loss due to the death of sufferers

1- Reasonable expenses for medical treatment, health recovery and care for a sufferer before his/her death specified in Clause

1. Article 48 of the Law are those necessary for and suitable to the nature and level of loss and paid at the average price in each locality at the time of payment, including: rental for vehicles for carrying the sufferer to a medical facilities for intensive medical care; expenses for medicines and purchase of medical equipment; expenses for X-ray imaging, tomography, ultrasound, testing, operation, doctor-indicated blood transfusion; hospital fees; expenses for protein fluid transfusion, compensations for health recovery of sufferers as prescribed by doctors; and other actual necessary expenses paid before the death of the damage sufferer (if any).

2. Expenses for burial of sufferers specified in Clause 2, Article 48 of the Law shall be determined according to the burial allowance level prescribed by the social Insurance law.

3. Persons to whom sufferers are currently obliged to provide alimonies as specified in Clause 3, Article 48 of the Law and the period during which each of them enjoys alimonies comply with the marriage and family law.

Article 9. Material loss due to health damage

1- Reasonable expenses for medical treatment, health recovery and functional rehabilitation for sufferers specified in Clause 1 Article 49 of the Law include: expenses guided in Clause 1, Article 8 of this Circular and expenses for fitting of artificial limbs or eyes, purchase of wheelchairs and crutches, aesthetical rehabilitation, and other expenses paid as supports or replacement of lost or declined body functions of sufferers (if any).

If State agencies have paid all these expenses, sufferers are not entitled to compensation; if state agencies have paid part of these expenses, sufferers are entitled to compensation for' unpaid expenses.

2. Reasonable expenses for, and lost actual incomes of, persons who take care of sufferers during the period of medical treatment specified in Clause 3, Article 49 of the Law shall be determined as follows:

a/ Sufferers may only be entitled to compensations for reasonable expenses and lost actual incomes of their caretakers in case such care is necessary or requested by medical establishments;

b/ Reasonable expenses of caretakers during the period of medical treatment of suffering include travel and accommodation expenses calculated at the average price in localities where such expenses are paid (if any);

c/ Lost actual incomes of caretakers during the period of medical treatment of sufferers shall be determined according to Article 46 of the Law and the guidance in Clause 2, Article 7 of this Joint Circular.

3. Sufferers who lose their working capacity and need regular caretakers are those who are no longer able to carry out activities of creating material value due to their spinal paralysis, blindness, limb paralysis, severe mental illness or another illness as specified by competent agencies. Reasonable expenses for regular caretakers of sufferers who have lost their working capacity as specified in Clause 4, Article 49 of the Law equal the average wage level paid to caretakers in localities where sufferers reside.

Article 10. Damage due to mental sufferings

1. Damage due to mental sufferings during temporary custody, detention or serving of imprisonment sentence specified in Clause 2, Article 47 of the Law or during the institution of a criminal case, prosecution, trial or judgment execution without temporary custody, detention or execution of termed imprisonment sentence (including also execution of non-imprisonment sentences) specified in Clause 5, Article 47 of the Law shall be determined as follows:

a/ A minimum of one day salary, which is the minimum salary level set by the State for civil servants of State administrative agencies at the time of compensation settlement divided by an average of 22 working days per month;

For example: At the time of issuance of this Joint Circular, the common minimum salary level set by the State is VND 830,000, so one day’s minimum salary is VND 830,000 : 22 = VND 37,723.

b/ The period for calculation of compensation is counted from the date a sufferer is held in temporary custody or accused in a criminal case to the date a judgment or decision is issued by a competent agency in criminal procedure confirming that such person has committed no violation or crime in a case eligible for compensation specified in Article 26 of the Law and guided in Article 2 of this Joint Circular, and specifying the number of days of temporary custody, detention or serving of imprisonment sentence and the number of days he/she is out on bail.

Example 1: Mr. A was held in temporary custody and accused in a criminal case on December 1, 2009. Upon the expiration of the duration of temporary custody, he was subject to the deterrent measure of detention. On March 1, 2010, he was released on bail. On March 20, 2010, the investigative agency issued a decision to cease investigation against him for the reason that he had committed no crime. In this case, the damage due to mental sufferings for which he is entitled to compensation shall be determined as follows:

- The number of days of actual temporary custody or detention is 31 days (of December 2009) + 31 days (of January 2010) + 29 daỵs of February 2010 = 91 days;

- The number of days of being out on bail eligible for compensation is 20 days (from March 1, 2010 to March 20, 2010);

- The number of days eligible for compensation calculated according to the minimum salary level is (91 days X 3) + 20 days = 293 days;

In this example, the amount of compensation to be paid by the State to Mr. A is 293 days x VND 37,723 = VND 10,920.989.

Example 2: Mr. B was held in temporary custody from January 1, 2010. The investigative agency extended the duration of temporary custody twice on January 3, 2010, and January 6, 2010 (the Procuracy approved the decisions on extension of the duration of temporary custody). On January 7, 2010, the Procuracy cancelled the temporary custody decision and the investigative agency later released Mr. B for lack of grounds for prosecution of accused against him. In this case, the damage due to mental sufferings for which he is entitled to compensation shall be determined as follows:

- The number of days of his/her actual temporary custody is 8 days;

- The number of days eligible for compensation calculated according to the minimum salary level is (8 days X 3) = 24 days;

- The amount of compensation to be paid bỵ the State to Mr. B is 24 days X VND 37,723 = VND 905.352.

Example 3: Mr. C was prosecuted in a criminal case (without being held in temporary custody or detained) from January 1, 2010. On March 20, 2010, the investigative agency decided to cease the investigation against him for the reason that he had committed no crime. In this case, the damage due to mental sufferings for which he is entitled to compensation shall be determined as follows:

- The number of days for which Mr. C is entitled to compensation is 80 days (31 days of January 2010 + 29 days of February 2010 + 20 days of March 2010);

- The amount of compensation to be paid by the State to Mr. C is 80 days x VND 37,723 = VND 3,017.840.

2. Damage due to mental sufferings in case of death of sufferers specified in Clause 3, Article 47 of the Law shall be determined as follows:

a/ In case a sufferer dies while being held in temporary custody, detained or serving his/her imprisonment sentence neither due to his/her fault nor in a force majeure event, he/she is entitled to a compensation of three hundred sixty months’ common minimum salary set by the State at the time of compensation settlement. In this case, no compensation for damage due to mental sufferings shall be additionally paid according to Clauses 2 and 4 Article 47 of the Law and the guidance in Clause 1 of this Article;

b/ In case the sufferer dies while being held in temporary custody, detained or serving his/ her imprisonment sentence due to his/her fault or in a force mạịeure event, he/she is not entitled to compensation for damage due to mental sufferings according to Clause 3, Article 47 of the Law but is entitled to compensation for damage due to mental sufferings according to Clause 2, Article 47 of the Law and the guidance in Clause 1 of this Article;

c/ Compensation for damage due to mental sufferings is a compensation amount payable to all relatives of a sufferer (his/her spouse, blood parents, adoptive parents, natural children, adopted children and direct fosterer). Persons entitled to compensation in this case must be alive at the time the sufferer dies.

3. Damage due to mental sufferings eligible for compensation is other than damage specified in Articles 45, 46, 48 and 49 of the Law.

Chapter III

COMPENSATION SETTLEMENT PROCEDURES

Article 11. Compensation claim dossier

1. Damage sufferers and their relatives or lawful representatives shall send written claims for compensation to agencies liable to pay compensation defined in Clause 1, Article 34 of the Law. A written claim for compensation must contain the principal details specified in Clause 2 Article 34 of the Law and other contents specified in the set form No. 01a together with this Joint Circular.

2. Enclosed with a compensation claim must be the following papers:

a/ The legally effective judgment or ruling, which serves as the ground for determining that the case is eligible for compensation as specified in Article 26 of the Law and guided in Article 2 of this Joint Circular;

b/ The original or a valid copy of any of personal identification papers of the sufferer. In case the sufferer does not directly send the compensation claim but his/her lawful representative does so on his/her behalf, there must be a written authorization and papers proving the personal status of the authorized person, such as identity card or certification by the administration of the locality where the sufferer resides or by the agency or organization where the sufferer works;

In case the sufferer dies and his/her relatives send a compensation claim, there must be papers proving their relationships with the sufferer, such as household registration book, marriage registration certificate, birth certificate or identity card of the claimant, or certification by the administration of the locality where the sufferer resides or by the agency or organization where the sufferer works that the sufferer is a relative of the claimant.

c/ Valid documents evidencing reasonable expenses and incomes of the sufferer before being held in temporary custody, detained or serving his/her imprisonment sentence (if any).

Article 12. Determination of limitation for making a compensation claim

According to Clause 1, Article 5 of the Law, the statute of limitations for making a compensation claim is 2 years after the issuance of a legally effective judgment or ruling of a criminal procedure-conducting agency confirming that the sufferer has committed no violation or crime in any of the cases eligible for compensation. The date of claim for counting the statute of limitations for making compensation claim is determined as follows:

1. In case the compensation claimant submits the dossier directly to an agency competent to settle compensation, the date of claim is the date of dossier submission.

2. In case the compensation claimant sends the dossier by post, the date of claim is the date of the postal mark of the sending post office. In case it is impossible to identify the date. According to the postal mark on the dossier, such date shall be determined as follows:

a/ In case the agency competent to settle compensation receives the dossier sent by post when the limitation for making compensation claim has not expired, the date of claim is the date of receipt of the dossier;

b/ ln case the agency competent to settle compensation receives the dossier sent by post when the statute of limitations for making compensation claim has expired, this agency shall verify the date when the claimant sends the claim by post and identify the date of claim as follows:

- If the date when the compensation claimant sends the dossier by post can be verified, such date is the date of claim;

- If the date when the compensation claimant sends the dossier by post cannot be verified, the date of claim is the date stated in the compensation claim.

Article 13. Acceptance of compensation claim

1. Upon receiving a compensation claim dossier, an agency liable to pay compensation shall examine and determine the validity of the claim and accompanying papers and documents. In case the dossier is incomplete, the agency shall guide the claimant for supplementation.

2. Within 5 working days after receiving a compensation claim with valid accompanying papers and documents, if seeing that this compensation claim falls under its settling competence, the dossier-receiving agency shall accept the dossier and send a notice of acceptance to the claimant. In case the claim-receiving agency considers that this claim falls beyond its settling competence, it shall issue a written reply, specifying the reason for return of the dossier, return the dossier, and guide the claimant to send the claim to an agency liable to pay compensation defined in Article 34 of the Law and guided in Article 4 of this Joint Circular.

Article 14. Organization of compensation settlement

1. Within 3 working days after the date of acceptance of a compensation claim, the head of the procedure-conducting agency liable to pay compensation shall issue a decision to appoint a person to settle the compensation claim.

In case the head of the agency liable to pay compensation is the procedure-conducting person who has caused damage or his/her or the damage sufferer’s spouse (wife or husband), paternal or maternal grandfather or grandmother, natural or adoptive father or mother, natural or adopted child, natural sibling, patemal or matemal grandchild, in-law son or daughter (hereafter collectively referred to as related person), the collective leadership of the agency shall discuss and reach agreement to appoint a representative to settle compensation.

2. A representative to settle compensation must fully satisfy the following conditions:

a/ Being a judicial officer (investigator, procurator or judge) who holds the following post:

- At district level: Head or deputy head of an investigative agency; chairperson or vice chairperson of a People’s Procuracy; president or vice president of a People’s Court;

- Al provincial level: Leader of a section or equivalent unit authorized by the head of the procedure-conducting agency;

- At Central level: Head or deputy head of an investigative agency; head or deputy head of an agency assigned to perform a number of investigating activities; leader of a departmental unit or Vice Chairman of the Central Military Procuracy authorized by the Chairman of the Supreme People’s Procuracy; Presidenl or Vice Presidcnt of the Appellate Court or the Criminal Tribunal of the Supreme People's Court, or Vice President of the Central Military Court authorized by the Chairman of the Supreme People’s Court;

b/ Having working experience in the field of criminal procedure;

c/ Being not an affiliated person of the official-duty performer who has caused the damage, or of the damage sufferer.

3. Compensation-settling representatives shall take responsibility before heads of agencies liable to pay compensation for the compensation settlement and have the tasks and powers specified in Article 8 of the Govemment’s Decree No. 16/2010/ND-CP of March 3, 2010, detailing and guiding a number of articles of the Law.

Article 15. Damage verification

Within 5 working days after accepting a compensation claim, a representative shall organize the verification of the damage based on documents and evidences provided by compensation claimants. In cases of necessity specified in Clauses 2 and 3, Article 18 of the Law, agencies liable to pay compensation may request agencies or organizations to valuate property or assess property or Health damage or consult related agencies on the compensation settlement.

The time limit for damage verification is 20 days after the date of acceptance of a compensation claim. For cases involving many complicated circumstances or when it is necessary to verify a circumstance in many localities, the time limit for verification may be prolonged but must not exceed 40 days.

Article. 16. Negotiations on compensation

1. Within 3 working days after the completion of the damage verification, a compensation-settling representative shall conduct negotiations with the sufferer or his/ her relatives on compensation payment.

The time limit for conducting negotiations is 30 days after the damage verification is completed. For a case involving many complicated circumstances, the time limit for negotiations may be prolonged but must not exceed 45 days.

2. In case a sufferer dies and has many relatives, these relatives are required to appoint a representative to negotiate on compensation. The appointment of a representative must be established in writing.

3. Participants in negotiations include compensation-settling representatives and sufferers or their lawful representative.

4. Negotiations must be conducted at the office of the compensation-settling agency or the People’s Committee of the commune, ward or township where sufferers reside or work.

5. During negotiation, negotiation participants shall examine damage for which compensations are claimed as stated in written claims and accompanying papers and documents. Based on compensable damage specified in Articles 45, 46, 47, 48 and 49 of the Law, other State regulations on the compensation regime, norms and limits (if any) and the guidance in this Joint Circular, they shall negotiate on the damage for which compensation will be paid and the compensation level.

6. Negotiations must be recorded in writing. A negotiation record must contain the details specified in Clause 4, Article 19 of the Law and be made according to a set form.

Article 17. Compensation settlement decisions

1. According to Article 20 of the Law, regardless of whether negotiations are successful or not, an agency liable to pay compensation shall issue a compensation settlement decision.

Within 10 days after the conclusion of negotiations, based on results of the damage verification and negotiations with the damage sufferer, his/her lawful representative and opinions of related agencies (if any), the head of the agency liable to pay compensation shall issue a compensation settlement decision.

A compensation settlement decision must have the principal details specified in Clause 1 Article 20 of the Law and be made according to a set form.

2. Compensation settlement decisions must be promptly sent to sufferers, immediate superior agencies of agencies liable to pay compensation and procedure-conducting persons who have caused damage.

3. A compensation settlement decision takes effect 15 days after the sufferer receives it, unless the sufferer disagrees with it and initiates a lawsuit at court.

Article 18. Delivery of compensation settlement decisions to persons entitled to compensation

1. The delivery of a compensation settlement decision to a person entitled to compensation shall be conducted by any of the following persons:

a/ Representative of the agency liable to pay compensation;

b/ Representative of the commune-level People’s Committee of the locality where the suffering person resides or the suffering organization is located, in case the compensation settlement decision is delivered through a commune-level People’s Committee;

c/ Other persons as prescribed by law (e.g. bailiff…).

2. Procedures for delivery of compensation settlement decisions:

a/ The deliverer of a compensation settlement decision shall directly hand over it to the person entitled to compensation. The person entitled to compensation shall sign in the written record or book of delivery and receipt of compensation settlement decisions. The date when the person entitled to compensation signs to certify the receipt of the compensation settlement decision is regarded as the date of receipt of such decision;

b/ In case the person entitled to compensation is absent, the compensation settlement decision may be delivered to his/ her relative who has civil act capacity and lives together with the former. The relative of the person entitled to compensation shall sign in the written record or book of delivery and receipt of compensation settlement decisions. The date when the relative of the person entitled to compensation signs to certify the receipt of the compensation settlement decision is regarded as the date of receipt of such decision.

In case the person entitled to compensation has no relative with civil act capacity living together with him/her or his/her relative refuses to receive the compensation settlement decision on his/her behalf, such decision may be delivered via the commune-level People's Committee of the locality where the person entitled to compensation resides.

In case the compensation settlement decision is delivered through a person who is not the sufferer, the deliverer shall make a written decision clearly stating the sufferer's absence and the person to whom the decision is delivered; reason(s); date and time of delivery; relationship between the recipient and the sufferer; commitment on handover of the decision to the sufferer. Such a written record must have signatures of the deliverer of the compensation settlement decision, the recipient who commits to handing over the decision and a witness.

3. In case the person entitled to compensation is absent and the time of his/her return or his/her current address is unknown, the deliverer of the compensation settlement decision shall make a written record of failure to deliver the decision. Such a written record must have the signature of the person providing information on the person entitled to compensation.

4. In case the person entitled to compensation refuses to receive the compensation settlement decision, the deliverer of such decision shall make a written record clearly stating the reason(s) for refusal.

Article 19. Restoration of honor for damage sufferers

1. The restoration of honor for damage sufferers in criminal proceedings complies with Article 51 of the Law.

2. Representatives of agencies liable to pay compensation who shall make apologies to damage sufferers are specified at Point a, Clause 2, Article 14 of this Joint Circular.

3. Places for making apologies are places of residence or working place of damage sufferers. Agencies liable to pay compensation shall notify the time and places for making apologies to agencies where damage sufferers work or administration of localities where damage sufferers reside and socio-political organizations of which damage sufferers are members for these agencies or organizations to send their representatives to participate in the making of apologies.

Chapter IV

PAYMENT 0F COMPENSATION AMOUNTS AND SETTLEMENT OF DISPUTES OVER COMPENSATION LIABILITY

Article 20. Payment of compensation amounts

Based on effective compensation settlement decisions of agencies liable to pay compensation or legally effective court judgments or rulings, agencies liable to pay compensation shall allocate compensation funds and pay compensation amounts to persons entitled to compensation in the Article 54 of the Law and the guidance of the Ministry of Finance and the Ministry of Justice on the estimation, management, use and finalization of funds for performance of the State compensation liability.

Article 21. Settlement of disputes-over compensation liability

In the course of settlement of compensation for damage in criminal proceedings, if a dispute over compensation liability arises between competent agencies in criminal procedure, it must be settled as follows:

1. For a dispute arising between competent agencies within the same sector, the head of the immediate superior agency of these agencies shall consider and settle the dispute.

2. For a dispute arising between competent agencies from different sectors, the heads of relevant agencies in these sectors shall coordinate with one another in settling the dispute.

Chapter V

IMPLEMENTATION PROVISIONS

Article 22. Effect

1. This Joint Circular takes effect 45 days from the date of its signing.

2. This Joint Circular replaces Joint Circular No. 04/2006/TTLT-VKSNDTC-TANDTC- BCA-BTP-BQP-BTC of November 22, 2006, of the Supreme People’s Procuracy, the Supreme People’s Court, the Ministry of Public Security, the Ministry of Justice, the Ministry of National Defense and the Ministry of Finance, guiding the implementation of a number of provisions of the National Assembly Standing Committee’s Resolution No. 388/ 2003/UBTVQH11 of March 17, 2003, on compensation for persons suffering injustice caused by competent persons in criminal proceedings.

Article 23. Organization of implementation

In the course of implementation, any arising problems or unclear points which need explanation or additional guidance should be reported to the Supreme Peop!e’s Procuracy, Supreme People’s Court, the Ministry of Public Security, the Ministry of Justice, the Ministry of National Defense, the Ministry of Finance and the Ministry of Agriculture and Rural Development for timely explanation or additional guidance.