Thông tư liên tịch 07/2011/TTLT-BCA-BQP-BNG

JOINT CIRCULAR

GUIDING THE EXECUTION OF THE EXPULSION SENTENCE

Pursuant to the June 17, 2010 Law on Execution of Criminal Judgments;

Pursuant to the Government's Decree No. 77/2009/ND-CP of September 15, 2009, defining the functions, tasks, powers and organizational structure of the Ministry of Public Security;

Pursuant to the Government's Decree No. 15/2008/ND-CP of February 4, 2008, defining the junctions, tasks, powers and organizational structure of the Ministry of Foreign Affairs;

Pursuant to the Government's Decree No. 104/2008/ND-CP of September 16, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of National Defense;

In order to ensure consistent implementation of the Law on Execution of Criminal Judgments regarding the execution of the expulsion sentence, the Ministry of Public Security, the Ministry of National Defense and the Ministry of Foreign Affairs jointly provide guidance as follows:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular guides the order and procedures for execution of the expulsion sentence; the settlement of cases in which persons subject to expulsion abscond, get ill or die pending their exit; the permission for receipt of corpses, remains or ashes of dead persons subject to expulsion; and the fund for execution of the expulsion sentence.

Article 2. Subjects of application

This Circular applies to persons sentenced to expulsion under court judgments or decisions (below referred to as the expellee) and agencies, organizations and individuals involved in the execution of the expulsion sentence.

Article 3. Principles of execution of the expulsion sentence

1. To ensure political and legal requirements, foreign relations and humanitarian policy of the State.

2. To ensure safety, right persons, set schedule, procedures and competence prescribed by Vietnamese law and conformity with international law and practices.

3. To ensure the rights and lawful interests of the expellees; to strictly prohibit all acts of infringing upon the lives, health, dignity and lawful property of the expellees.

Article 4. Expulsion sentence execution agencies

1. The criminal judgment execution agency of the provincial-level Public Security Department of the place where the People's Court or Military Court which issues a decision on execution of the expulsion sentence is headquartered shall assume the prime responsibility for, and coordinate with related agencies in, organizing the execution of the expulsion sentence under the court sentence execution decision.

2. The criminal judgment execution agency of the provincial-level Public Security Department of the place where a prison of the Ministry of Public Security, a prison of the Ministry of Defense or a prison of the military zone is located shall assume the prime responsibility for, and coordinate with related agencies in, organizing the execution of the expulsion sentence against persons who have completely served their imprisonment penalty accompanied by expulsion as an additional penalty.

Article 5. Fund for execution of the expulsion sentence

The fund for execution of the expulsion sentence shall be allocated from the state budget and included in the annual budget estimate of the criminal judgment execution agency of the provincial-level Public Security Department and the criminal judgment management agency of the Ministry of Public Security. Costs of expellees' home-bound travel tickets shall be paid under Article 102 of the Law on Execution of Criminal Judgments.

Chapter II

ORDER AND PROCEDURES FOR EXECUTION OF THE EXPULSION SENTENCE

Article 6. Notification of the execution of the expulsion sentence

1. Within 3 (three) working days after receiving a court decision on execution of the expulsion sentence, for the cases defined in Clause 1, Article 96 of the Law on Execution of Criminal Judgments, or receiving a prison superintendent's notice of the time of completion of the prison term of a person subject to expulsion as an additional penalty, the criminal judgment execution agency of the provincial-level Public Security Department shall notify such in writing to the Ministry of Foreign Affairs, the Vietnam-based diplomatic mission, consulate or another office authorized to perform the consular function of the country of which the expellee is a citizen or the representative agency of the international organization of which such person is an employee, and the agency or organization which has guaranteed such person's entry into Vietnam.

2. In case a prisoner subject to expulsion as an additional penalty enjoys special amnesty or imprisonment exemption, within 24 (twenty-four) hours after receiving a decision on special amnesty or imprisonment exemption, the prison superintendent shall notify such in writing to the criminal judgment execution agency of the provincial-level Public Security Department of the place where the prison is located for immediate notification to the agencies defined in Clause 1 of this Article.

Article 7. Dossiers of execution of the expulsion sentence

1. Within 3 (three) working days after receiving a court decision on execution of the expulsion sentence or after receiving a person who has completely served his/her prison term or is granted special amnesty or exempt from serving an imprisonment penalty and is subject to expulsion as an additional penalty, the criminal judgment execution agency of the provincial-level Public Security Department shall compile a dossier on execution of the expulsion sentence.

2. A dossier of execution of the expulsion sentence (below referred to as execution dossier) must comprise all papers and documents defined in Clause 2 of Article 98 of me Law on Execution of Criminal Judgments. Certificates of complete serving of other penalties or other obligations defined at Point c, Clause 2, Article 98 of the Law on Execution of Criminal Judgments include certificate of complete serving of the prison term, special amnesty, exemption from imprisonment penalty, exemption from or reduction of the fine penalty, decision on termination or suspension of sentence execution, written certification or confirmation of a competent judgment execution agency of the results of judgment execution or fulfillment of other obligations.

3. Upon handing over a person who has completely served his/her prison term or is granted special amnesty or exempt from imprisonment penalty and is subject to expulsion as an additional penalty to the criminal judgment execution agency of the provincial-level Public Security Department of the place where the prison is located, the prison superintendent shall also hand over copies of the judgment, imprisonment execution decision, certificate of complete serving of the prison term, special amnesty certificate, imprisonment exemption certificate and papers evidencing the fulfillment of other obligations (if any), for the compilation of an execution dossier.

Article 8. Designation of places of stay

1. Within 3 (three) working days after the compilation of an execution dossier, the head of the criminal judgment execution agency of the provincial-level Public Security Department which has compiled the execution dossier shall issue a decision designating a place of stay for the expellee pending his/her exit. The designated place of stay must have a clear address and be convenient for management and supervision. Criminal custody rooms or temporary detention rooms of custody houses or temporary detention camps or detention rooms of prisons must not be used for management of expellees pending exit.

2. For an expellee who falls under one of the cases defined in Clause 2, Article 99 of the Law on Execution of Criminal Judgments, the criminal judgment execution agency of the provincial-level Public Security Department which has compiled the execution dossier shall issue a decision on and organize the sending of the expellee to an accommodation establishment of the Ministry of Public Security (below referred to as accommodation establishment).

3. If an expellee or his/her relative or lawful representative requests to stay at a lawful place of temporary stay in another province or city, he/she shall file a request with the criminal judgment execution agency of the provincial-level Public Security Department which has compiled the execution dossier for consideration and decision. Such written request must indicate the full name and address of the requester and his/her relation to the expellee, the address of the place of stay, the commitment to meeting all requirements of the criminal judgment execution agency of the provincial-level Public Security Department and to abiding by the law and regulations of the local administration of the place of stay. The written request must be translated into Vietnamese and certified by the Vietnam-based diplomatic mission, consulate or another office authorized to perform me consular functions of the country of which the expellee is a citizen or by the representative agency of the international organization of which such person is an employee and the commune-level People's Committee of the place or the agency or organization where me expellee comes to stay.

4. Within 2 (two) working days after the issuance of the decision designating a place of stay, the criminal judgment execution agency of the provincial-level Public Security Department which has compiled the execution dossier shall notify such to the court which has issued the judgment execution decision, the same-level procuracy and the agencies defined in Clause 1, Article 6 of this Circular.

Article 9. Management of expellees

1. The criminal judgment execution agency of the provincial-level Public Security Department that has compiled the execution dossier shall assume the prime responsibility for, and coordinate with the functional bodies and the local administration of the place where the expellee comes to stay in, managing the expellee.

2. Within 3 (three) working days after the issuance of a decision to send an expellee to an accommodation establishment or a decision to designate a place of stay in another province or city, the criminal judgment execution agency of the provincial-level Public Security Department which has compiled the execution dossier shall send a notice enclosed with copies of the judgment and the judgment execution decision to the criminal judgment execution agency of the provincial-level Public Security Department of the place where the expellee comes to stay for coordinated management and carrying out handling procedures when the expellee absconds or dies as provided in Clause 4, Article 99 and Article 100 of the Law on Execution of Criminal Judgments.

Article 10. Settlement of cases in which persons subject to expulsion abscond

1. If an expellee absconds during his/her stay pending exit, the criminal judgment execution agency of the provincial-level Public Security Department of the place where the accommodation establishment is located or the criminal judgment execution agency of the provincial-level Public Security Department of the place where the designated place of stay is located shall immediately organize the pursuit and notify such to the criminal judgment execution agency of the provincial-level Public Security Department which has compiled the execution dossier. In case the pursuit is in vain, within 7 (seven) days after the expellee absconded, a decision on the hunt shall be issued under law.

2. If the absconded expellee is re-arrested or surrenders himself/herself, the agency arresting the expellee or receiving the surrendering expellee shall make a record thereof and immediately notify the criminal judgment execution agency of the provincial-level Public Security Department which has compiled the execution dossier to receive and send such person into an accommodation establishment and notify the agency which has issued the hunt decision for issuance of a decision to terminate the hunt according to regulations.

3. If the expellee absconds on the way under escort to an accommodation establishment or a place for exit, the criminal judgment execution agency of the provincial-level Public Security Department which has organized the escort shall organize the pursuit and issue a decision on the hunt and termination of the hunt.

4. The criminal judgment execution agency of the provincial-level Public Security Department which has compiled the execution dossier shall immediately notify the same-level procuracy, the court which has issued the expulsion decision, the criminal judgment execution management agency of the Ministry of Public Security and the agencies defined in Clause 1, Article 6 of this Circular of the expellee's absconding, re-arrest or surrender.

Article 11. Settlement of cases in which persons subject to expulsion get ill or die

1. During his/her stays at an accommodation establishment pending exit, the expellee is entitled to medical examination and treatment under the Government's regulations applicable to persons subject to expulsion and foreigners who have completely served their prison terms and are staying at accommodation establishments pending exit. If the expellee is so seriously ill that he/she must go to a public medical establishment for treatment, the accommodation establishment or designated place of stay shall immediately notify such to the criminal judgment execution agency of the provincial-level Public Security Department of the place in which the accommodation establishment or designated place of stay is located for notification to the agencies defined in Clause 1, Article 6 of this Circular.

2. If the expellee is receiving emergency care or so seriously ill that he/she cannot move as certified by a provincial- or central-level hospital, the criminal judgment execution agency of the provincial-level Public Security Department which manages the expellee at the designated place of stay or the criminal judgment execution agency of the provincial- level Public Security Department of the place in which the accommodation establishment is located shall notify such to the criminal judgment execution agency of the provincial-level Public Security Department which has compiled the execution dossier for written notification to the court which has issued the judgment execution decision for consideration and decision to prolong his/her stay.

3. If the expellee dies during his/her stay, the accommodation establishment or designated place of stay shall immediately notify the criminal judgment execution agency of the provincial-level Public Security Department of the place in which it is located, the investigation agency or a competent procuracy for determination of the cause of his/her death. Within 24 (twenty-four) hours after the expellee dies, the criminal judgment execution agency of the provincial-level Public Security Department of the place in which the expellee dies shall immediately notify such in writing or in telegraph to the court which has issued the judgment execution decision and the agencies defined in Clause 1, Article 6 of this Circular. After carrying out the procedures for determination of the cause of the death and receiving permission from a competent agency, the criminal judgment execution agency of the provincial-level Public Security Department of the place in which the accommodation establishment or designated place of stay is located shall organize a funeral for the dead expellee.

If the expellee dies on the way under escort to an accommodation establishment or a place for exit, the criminal judgment execution agency of the provincial-level Public Security Department which has organized the escort shall the assume prime responsibility for, and coordinate with the criminal judgment execution agency of the provincial-level Public Security Department, the investigation agency and the competent procuracy in the place where the expellee dies in, carrying handling procedures as provided for in Clause 4, Article 99 of the Law on Execution of Criminal Judgments.

4. Expenses for funeral of a dead expellee:

a/ Expenses for a funeral of an expellee who dies at an accommodation establishment comply with the Government's regulations on meals, accommodation, clothing, daily-life allowances, medical examination and treatment and funeral expenses for persons subject to expulsion during their stay at accommodation establishments;

b/ Expenses for a funeral of an expellee who dies during his/her stay at another designated place of stay are similar to those for expellees who die at an accommodation establishment, except where his/her relative or lawful representative pays the expenses.

Article 12. Permission for receipt of corpses, remains or ashes of dead expellees

1. If the relative or lawful representative of a dead expellee requests to receive the latter's corpse for burial, within 48 (forty-eight) hours after the expellee dies, he/she shall file a written request with the criminal judgment execution agency of the provincial-level Public Security Department for consideration and decision.

2. A written request must clearly state the full name and address of the recipient of the corpse and his/her relation with the expellee, the burial location, the commitments to meeting the requirements on security and order and environmental sanitation and to paying related expenses. It must be certified by the diplomatic mission of the country of which the expellee is a citizen or the representative agency of the international organization of which the expellee is an employee, and must be translated into Vietnamese. If the requester is Vietnamese, he/ she shall acquire certification of the commune-level People's Committee of his/her residence. If the corpse is to be received for burial within the Vietnamese territory, consent of the commune-level People's Committee of the place of burial is required.

3. Within 24 (twenty-four) hours after the receipt of a written request, the head of the criminal judgment execution agency of the provincial-level Public Security Department shall decide to permit the receipt and notify in writing the requester, the court which has issued the judgment execution decision and the agencies defined in Clause 1, Article 6 of this Circular of the permission or refusal when it has grounds to believe that the receipt of the corpse will affect security, order and environmental sanitation.

4. Within 24 (twenty-four) hours after the notification of the corpse receipt, the criminal judgment execution agency of the provincial-level Public Security Department and the requester shall proceed with the handover and receipt of the corpse, money and lawful belongings (if any) of the dead expellee and make a record thereon with the signatures of the hander, recipient and witnesses. Beyond this time limit, if the requester fails to appear for receipt of the corpse, the criminal judgment execution agency of the provincial-level Public Security Department shall organize the burial.

5. The receipt of the expellee's remains is only permitted after 3 (three) years from the burial. In case of cremation, the receipt of ashes can be permitted after the cremation completes. The requester for receipt of remains or ashes shall file a written request with the criminal judgment execution agency of the provincial-level Public Security Department of the place where the expellee is buried for consideration and decision. The written request must have all details prescribed in Clause 2 of this Article.

Within 7 (seven) working days after the receipt of a written request, the head of the criminal judgment execution agency of the provincial-level Public Security Department shall decide to permit the receipt of remains or ashes, and notify in writing the requester, the court which has issued the judgment execution decision and the agencies defined in Clause 1, Article 6 of this Circular of the permission or refusal when it has grounds to believe that the receipt of remains or ashes will affect security, order and environmental sanitation.

6. The preservation and transport of corpses, remains and ashes of an expellee shall be undertaken by the requester or the diplomatic mission or consulate of the country of which such expellee is a citizen, or the representative agency of the international organization where such person is an employee, and comply with regulations on medical handling; environmental sanitation, contagious-disease prevention and combat and cross-border medical quarantine and other applicable Vietnamese laws.

Article 13. Grant of exit permits

1. The criminal judgment execution agency of the provincial-level Public Security Department which has compiled the execution dossier shall check the passport or passport substitute paper of the expellee. Where a passport bears no visa or an expired visa, it shall propose an immigration authority to grant an exit visa according to regulations. In urgent cases where a visa must be granted at the border gate, a written request must be filed at least 12 (twelve) hours before the expellee arrives at the border gate.

2. If the expellee has no passport or passport substitute paper, the criminal judgment execution agency of the provincial-level Public Security Department shall notify such in writing to the Ministry of Foreign Affairs and the Immigration Authority of the Ministry of Public Security for requesting the diplomatic mission or consulate of the country of which such person is a citizen or the representative agency of the international organization of which such person is an employee to issue necessary papers for carrying exit procedures.

In case the request is already sent, but not yet responded by such agency or organization, for immediate expulsion or the time limit for compulsory departure from the Vietnamese territory under law has expired, the criminal judgment execution agency of the provincial-level Public Security Department shall request the Immigration Authority of the Ministry of Public Security to grant a paper valid for exit and request the Ministry of Foreign Affaire notify in writing the country of which the expellee is a citizen thereof for carrying out receipt and entry procedures. If the country of which the expellee is a citizen rejects the receipt and entry, the Ministry of Foreign Affairs shall assume the prime responsibility for, and coordinate with the Immigration Authority of the Ministry of Public Security and the criminal judgment execution agency of the provincial-level Public Security Department in, handling the case via diplomatic channel or proceeding with the expulsion according to international practices.

3. If the expellee is subject to another sentence or fails to pay a fine or fulfill other civil obligations, thus falling into the case of exit suspension under Vietnamese law, the criminal judgment execution agency of the provincial-level Public Security Department which has compiled the execution dossier shall immediately send a written report to the court which has issued the execution decision for issuance of a decision to prolong the time limit for the expellee's departure from the Vietnamese territory; coordinate with the Ministry of Foreign Affairs in notifying and requesting the Vietnam-based diplomatic mission, consulate or another agency authorized to perform the consular functions of the country of which the expellee is a citizen or the representative agency of the international organization of which such person is an employee, and the agency or organization which has guaranteed such person's entry into Vietnam for settlement or contact with the expellee's family and the agency for which he/she works for providing funding supports for him/her to pay the fine and fulfill other civil obligations; and concurrently notify the civil judgment execution agency competent to execute the judgment to carry out procedures for judgment execution with regard to amounts payable into the state budget under the Law on Execution of Civil Judgments. After the civil judgment execution agency issues a decision or document on termination of the judgment execution against the expellee, the criminal judgment execution agency of the provincial-level Public Security Department shall carry out procedures to compel the expellee to leave the Vietnamese territory.

Article 14. Compulsory departure from Vietnamese territory

1. The criminal judgment execution agency of the provincial-level Public Security Department which has compiled the execution dossier shall decide on the exit time, which, however, must not beyond the time limit indicated in the judgment execution decision of the court or beyond the time limit prescribed by law.

2. The criminal judgment execution agency of the provincial-level Public Security Department which has compiled the execution dossier shall buy travel tickets for the expellee in case the latter pays for his/her travel or the diplomatic mission or consulate of the country of which such person is a citizen, or the representative agency of the international organization of which such person is an employee, or the agency or organization which has guaranteed such person's entry into Vietnam shall pay for the expellee's home-bound travel.

If air, car, train or ship tickets for the expellee's departure from the Vietnamese territory are covered by the state budget under Article 102 of the Law on Execution of Criminal Judgments, the criminal judgment execution management agency of the Ministry of Public Security shall decide on the use of state budget to buy travel tickets for the expellee's departure from the Vietnamese territory.

3. At least 24 (twenty-four) hours before the exit time, the criminal judgment execution agency of the provincial-level Public Security Department shall notify the expellee, the competent immigration authority, the Border-Gate Department of the Border-Guard Command and the agencies defined in Clause 1, Article 6 of this Circular of the exit time and place for coordination in conducting the expulsion. In case of expulsion by land to a country bordering on Vietnam, the exit must not be carried out at nighttime, except for special cases.

If the expellee has money and lawful belongings deposited at the criminal judgment execution agency of the provincial-level Public Security Department or accommodation establishment, 24 (twenty-four) hours before the exit time, the criminal judgment execution agency of the provincial-level Public Security Department or the accommodation establishment shall return the money and belongings to the expellee. Such return must be recorded in writing with the signatures of the transferor, the transferee and witnesses.

4. The criminal judgment execution agency of the provincial-level Public Security Department which has compiled the execution dossier shall organize the escort of the expellee to the place of exit; coordinate with the Ministry of Foreign Affairs, the Immigration Authority of the Ministry of Public Security and the Border-Gate Department of the Border Guard Command in carrying procedures to compel the expellee to leave Vietnam. The expulsion effected at the place of exit must be recorded in writing, with the signatures of the expellee and present persons representing the agencies involved in effecting the expulsion, the diplomatic mission or consulate of the country to which the expellee is a citizen or the representative agency of the international organization of which such person is an employee.

5. If the expellee fails to voluntarily abide by the expulsion and refuses to exit Vietnam, the criminal judgment execution agency of the provincial-level Public Security Department which has compiled the execution dossier shall escort such person to the border gate of the country of which he/she is a citizen; in case of escorted exit by air, the criminal judgment execution agency of the provincial-level Public Security Department shall notify and reach agreement with the airline of measures to ensure security and safety throughout the escort as provided for in Clause 2, Article 17 of the Government's Decree No. 81/2010/ND-CP providing for civil aviation security, and strictly comply with treaties on civil aviation security to which Vietnam is a contracting party.

Chapter III

IMPLEMENTATION PROVISIONS

Article 15. Effect

This Circular takes effect on January 1, 2012.

Article 16. Organization of implementation

Functional agencies of the Ministry of Public Security, the Ministry of Defense and the Ministry for Foreign Affairs shall, within the ambit of their respective functions, tasks and powers, organize, guide and inspect the implementation of this Circular.

Any problems arising in the course of implementation should be reported to the Ministry of Public Security, the Ministry of National Defense and the Ministry of Foreign Affairs for timely guidance.-

FOR THE MINISTER OF FOREIGN AFFAIRS
DEPUTY MINISTER




Nguyen Thanh Son