Circular No. 01/2006/TT-BNV provides detailed guidance on handling complaints regarding disciplinary decisions against civil servants in administrative state agencies.

CIRCULAR

Detailed Guidelines for Handling Appeals Against Disciplinary Decisions for Civil Servants in Administrative State Agencies

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Pursuant to the Law on Complaints and Petitions dated December 2, 1998, and the Law Amending and Supplementing Certain Provisions of the Law on Complaints and Petitions dated June 15, 2004; based on the Ordinance on Cadres and Civil Servants and related guiding documents; pursuant to Article 35 of Government Decree No. 53/2005/NĐ-CP dated April 19, 2005, the Ministry of Home Affairs issues detailed guidelines for handling appeals against disciplinary decisions for civil servants in administrative state agencies (hereinafter referred to as handling appeals) as follows:

I. GENERAL PROVISIONS

1. These Circulars provide detailed guidelines for handling appeals against disciplinary decisions for civil servants in administrative state agencies.

The term "civil servant" as used in these Circulars refers to individuals recruited or appointed to a civil service rank or assigned to perform a regular public duty in central, provincial, or district-level state agencies; individuals recruited or assigned to perform a specialized professional position under the People's Committee at the commune level as stipulated in point c and point h, Clause 1, Article 1 of the Ordinance on Cadres and Civil Servants in 1998, which was amended and supplemented in 2003.

2. Appeals against disciplinary decisions made by the head of an agency shall be handled by that head; if there is further appeal, it shall be handled by the head of the immediately higher-level agency.

3. Handling appeals against disciplinary decisions must ensure objectivity, democracy, and compliance with the law.

4. During the process of handling appeals, the first-time appeal handler must meet directly with the appealing civil servant or their legal representative, or persons with rights and obligations related to the case (if any) to clarify the content of the appeal, the demands of the appealing civil servant, and the direction for resolving the appeal; such meetings must be conducted openly and democratically.

For second-time appeal handling, direct meetings may only be held when deemed necessary. In cases where the appeal involves complex, prolonged matters or new circumstances that could fundamentally change the nature of the appeal, the appeal handler must meet directly with the appealing civil servant or their legal representative, the first-time appeal handler, or persons with rights and interests related to the case (if any).

An appealing civil servant may authorize their legal representative to participate in meetings and dialogues.

5. The appealing civil servant must have full capacity to act according to the law.

If the appealing civil servant suffers from mental illness or another condition certified by a competent health authority as preventing them from recognizing or controlling their actions, they may exercise their right to appeal through their legal representative. If the appealing civil servant is ill or has physical disabilities certified by a competent health authority as preventing them from exercising their right to appeal, they may also authorize their legal representative to exercise this right.

6. Time Limit

a) The initial time limit for filing an appeal is fifteen days from the date the civil servant receives the disciplinary decision;

b) The time limit for filing a second appeal is ten days from the date the civil servant receives the decision on the initial appeal. For appeals against disciplinary decisions involving dismissal or administrative litigation before the Court, the second appeal time limit is thirty days from the date the civil servant receives the decision on the initial appeal;

c) In cases where the civil servant encounters obstacles due to illness, natural disasters, travel, study away, or other objective reasons preventing them from exercising their right to appeal within the prescribed time limit, the period during which such obstacles exist will not be counted towards the appeal time limit.

7. Appeals against disciplinary decisions in the following situations will not be accepted for resolution

a) The disciplinary decision does not directly relate to the rights and legitimate interests of the appealing civil servant;

b) The appealing civil servant lacks full capacity to act and does not have a lawful representative;

c) The representative is not lawful;

d) The appeal time limit has expired without valid reason;

đ) The appeal has already been resolved at the second level and no new circumstances that could fundamentally alter the content of the resolution have been discovered;

e) Appeals against disciplinary decisions involving dismissal have been accepted for resolution by the Court in accordance with the law or have resulted in a final judgment or decision by the Court;

g) Appeals submitted to an agency without jurisdiction to resolve them.

In cases where appeals are not accepted as mentioned above, upon receipt of the appeal letter, the agency receiving the letter must respond in writing to the appealing civil servant within ten days, clearly stating the reasons why the appeal is not being accepted for resolution. Such responses will only be given once for appeals that are not accepted.

II. RIGHTS AND OBLIGATIONS OF THE APPEALING CIVIL SERVANT, OF THE PERSON WITH JURISDICTION TO RESOLVE APPEALS

Section 1

RIGHTS AND OBLIGATIONS OF THE APPEALING CIVIL SERVANT

1. Rights of the appealing civil servant

a) To file an appeal themselves or through their legal representative to the person with jurisdiction to resolve the appeal if they believe the disciplinary decision against them is contrary to the law and infringes upon their legitimate rights and interests;

b) To directly participate in meetings and dialogues or authorize their legal representative to participate in such meetings and dialogues with the appeal handler, persons with rights and obligations related to the case (if any); to have access to evidence presented by the person with jurisdiction to resolve the appeal as the basis for resolving the appeal; to present relevant evidence concerning the case and explain their views on such evidence;

c) To receive documents from the person with jurisdiction, if their legitimate interests have been infringed upon by a disciplinary decision contrary to the law (if applicable), and to receive compensation for damages in accordance with the law;

d) To have their infringed legitimate rights and interests restored, if caused by a disciplinary decision contrary to the law (if applicable), and to receive compensation for damages in accordance with the law;

d) Has the right to appeal to the authority with the second-level complaint resolution power if disagreeing with the first-level complaint resolution decision; a civil servant who is disciplined with compulsory dismissal, after appealing and the first-level complaint resolution authority still maintains the disciplinary form, has the right to appeal to the authority with the second-level complaint resolution power or initiate an administrative lawsuit at the court in accordance with the laws on cadres and civil servants and the laws on administrative procedure;

e) Withdraw the complaint at any stage of the complaint resolution process.

2. Duties of the complaining civil servant

a) File the complaint with the competent authority within the prescribed time limit;

b) Be present for dialogue or authorize a legal representative to participate in dialogue regarding the complaint content upon request of the competent authority; truthfully present the facts, provide information and documents to the complaint resolver; bear legal responsibility for the content presented and the provision of such information and documents;

c) Strictly comply with the complaint resolution decision that has taken legal effect.

Section 2

 RIGHTS AND DUTIES OF THE AUTHORITY WITH COMPETENT POWER TO RESOLVE COMPLAINTS

1. Rights of the authority with competent power to resolve complaints

a) Resolve complaints within its jurisdiction;

b) Require the civil servant and persons related to the complaint to be present for dialogue regarding the complaint content;

c) Verify and request expert appraisal in accordance with the law;

d) Receive the decision of the authority with the second-level complaint resolution power.

d) The authority with the second-level complaint resolution power has the right to request the authority with the first-level complaint resolution power to provide the complete case file; has the right to request the complaining civil servant or their legal representative, relevant agencies, organizations to provide information, documents and lawful evidence related to the complaint content.

2. Duties of the authority with competent power to resolve complaints

a) Accept complaints within its jurisdiction and notify the complaining civil servant in writing about the acceptance for resolution;

b) Resolve complaints within its jurisdiction in accordance with the prescribed procedures, formalities and within the time limit stipulated by law;

c) Send the resolution decision to the complaining civil servant or their legal representative and the authority with the second-level complaint resolution power;

d) Explain the disciplinary decision being appealed, provide relevant information and documents when requested by authorized agencies, organizations, individuals;

e) Strictly comply with the complaint resolution decision that has taken legal effect from the authority with the second-level complaint resolution power;

g) Compensate for losses and mitigate consequences caused by its unlawful disciplinary decision in accordance with the law.

III. COMPETENT POWER TO RESOLVE COMPLAINTS

1. The head of the organization directly under the Department, Office, Sector of the People's Committee at provincial level and the head of the organization directly under the People's Committee at district level have the competent power to resolve complaints against disciplinary decisions issued by themselves according to the division of powers.

2. The Chairman of the People's Committee at district level has the authority:

a) To resolve complaints against disciplinary decisions issued by himself;

b) To resolve complaints against disciplinary decisions which the head of the organization directly under the People's Committee at district level has resolved initially but there are still complaints.

3. The Director of the Department and equivalent has the authority:

a) To resolve complaints against disciplinary decisions issued by himself;

b) To resolve complaints against disciplinary decisions which the head of the organization directly under the Department, Office, Sector of the People's Committee at provincial level has resolved initially but there are still complaints.

4. The Chairman of the People's Committee at provincial level has the authority:

a) To resolve complaints against disciplinary decisions issued by himself;

b) To resolve complaints against disciplinary decisions which the Chairman of the People's Committee at district level, the Director of the Department and equivalent have resolved initially but there are still complaints.

5. The head of the agency under the Ministry, under the agency equivalent to the Ministry, under the Government agency has the competent power to resolve complaints against disciplinary decisions issued by themselves according to the division of powers.

6. The Minister, the head of the agency equivalent to the Ministry, the head of the Government agency has the authority:

a) To resolve complaints against disciplinary decisions issued by himself;

b) To resolve complaints against disciplinary decisions which the head of the agency under the Ministry, under the agency equivalent to the Ministry, under the Government agency has resolved initially but there are still complaints.

7. The Minister of the Ministry of Home Affairs has the authority:

a) To resolve complaints against disciplinary decisions issued by himself;

b) To resolve complaints against disciplinary decisions which the head of the agency under the Ministry of Home Affairs has resolved initially but there are still complaints.

c) To resolve complaints against disciplinary decisions which the Minister, the head of the agency equivalent to the Ministry, the head of the Government agency, the Chairman of the People's Committee at provincial level have resolved initially but there are still complaints.

d) Advise and propose solutions for resolving other disciplinary decision complaints according to the Prime Minister's directive.

IV. PROCEDURES FOR COMPLAINT RESOLUTION

Section 1

 PROCEDURE AND PROCEDURES FOR HANDLING COMPLAINTS

1. Within fifteen days from the date of receiving the disciplinary decision, if the civil servant disagrees and files a complaint, the civil servant or their legal representative must submit the complaint letter along with a copy of the disciplinary decision and related documents (if any) to the competent authority.

The content of the complaint letter must clearly state:

a) Date of filing the complaint;

b) Name and address of the complaining civil servant or their legal representative;

c) Content, reasons for the complaint and the complainant's requests.

The complaint letter must be signed by the complaining civil servant or their legal representative.

2. Within ten days from the date of receiving the complaint, the competent authority must accept it for resolution and notify the complaining civil servant or their legal representative in writing. The inspection agency or personnel management department at the same level is responsible for assisting the competent authority in conducting verification, concluding and proposing solutions for resolution.

3. The entity resolving the initial complaint shall have the responsibility to notify in writing the civil servant making the complaint or their legal representative, those with rights or interests related to the matter, about the time, place, participants, and content of the dialogue; the notified parties shall be responsible for attending at the specified time, place, and with the specified participants as stated in the notification.

The presence of the civil servant making the complaint or their legal representative at the dialogue session is mandatory. If the civil servant making the complaint or their legal representative is absent due to objective reasons mentioned in Clause 5, Part I of this Circular, the dialogue shall be postponed and the postponement period shall not be counted within the deadline for resolving the complaint.

If the dialogue cannot be conducted because the civil servant making the complaint or their legal representative intentionally fails to attend despite receiving a second written notification from the competent authority, the resolution of the complaint shall continue to proceed according to the provisions of the law.

The content of the direct dialogue with the civil servant making the complaint or their legal representative, and those with rights or interests related to the matter includes:

a) Clarifying the content of the complaint and the demands of the civil servant making the complaint, and the direction for resolving the complaint; if necessary, representatives of political-social organizations may be invited to participate.

b) During the dialogue, the entity resolving the initial complaint must clearly state the content that needs to be discussed, the results of verifying the content of the complaint; participants in the dialogue have the right to express opinions and present evidence relevant to the complaint and their demands.

d) The dialogue must be recorded in a minutes document, which must clearly record the opinions of the participants, summarize the results of the dialogues conducted, and must be signed by the participants; if a participant does not sign to confirm, the reason must be clearly noted, and this minutes document shall be kept in the file of the complaint case.

đ) The results of the dialogue serve as one of the bases for resolving the complaint.

4. Within thirty days from the date of accepting the case for resolution (for complex cases, the resolution period may be extended but not exceeding forty-five days from the date of accepting the case for resolution), based on the provisions of the law, the results of meetings, dialogues, verification, investigation, conclusions, and recommendations for resolving the complaint from the inspection agency or personnel management department at the same level, the competent authority resolving the initial complaint must issue a written decision on the complaint. The initial complaint resolution decision must include the following contents:

a) Date of issuance of the decision;

b) Name and address of the complaining civil servant or their legal representative;

c) The content of the complaint (specifically stating the disciplinary decision against which the civil servant is complaining. For example: complaining about the content of the decision, the form of the decision, the authority, procedure, and process of handling the complaint...);

d) The results of verification and investigation by the inspection agency or personnel management department at the same level regarding the content of the complaint of the disciplined civil servant;

đ) The results of meetings and direct dialogues;

e) Legal basis for resolving the complaint;

g) Conclusions on each specific issue in the content of the complaint of the disciplined civil servant;

h) Maintaining, amending, or revoking part or all of the disciplinary decision against the complained civil servant; resolving specific issues in the content of the complaint of the disciplined civil servant;

i) Compensation for damages (if applicable);

k) It must clearly state that this is the initial complaint resolution decision, and the civil servant has the right to appeal the second time to the competent authority for resolution or to initiate an administrative lawsuit at the court.

The initial complaint resolution decision must be publicly announced and sent to the complainant civil servant and those with rights or interests related to the matter within the latest seven days from the date of issuing the decision.

5. The initial complaint resolution process must be documented in a file. The initial complaint resolution file includes:

a) The complaint letter of the civil servant against the disciplinary decision sent to the competent authority for resolution;

b) Minutes of meetings and direct dialogues; minutes of verification, investigation, and conclusions by the inspection agency or personnel management department at the same level; results of appraisal (if any);

c) The initial complaint resolution decision;

d) Other related documents.

The initial complaint resolution file must be numbered in sequence according to the documents and must be stored according to the provisions of the law. In the event that the disciplined civil servant disagrees with the initial complaint resolution decision and continues to appeal or initiates an administrative lawsuit at the court, the file must be transferred to the competent authority for the second resolution or the court with jurisdiction upon request.

Section 2

 PROCEDURE AND PROCEDURAL REQUIREMENTS FOR THE SECOND COMPLAINT RESOLUTION

1. Upon receipt of the initial complaint resolution decision, within ten days from the date the civil servant receives the decision, if the civil servant disagrees and continues to make a complaint, the civil servant or their legal representative must submit a complaint letter along with a copy of the previous complaint resolution decision and related documents (if any) to the competent authority for the second complaint resolution.

The content of the second complaint includes:

a) Date of filing the complaint;

b) Name and address of the complaining civil servant or their legal representative;

c) Content, reasons for the complaint and the complainant's requests.

The complaint letter must be signed by the civil servant making the complaint or their legal representative and must not be a photocopied version.

2. Within ten days from the date of receiving the complaint within their jurisdiction, the competent authority for the second complaint resolution must accept the case for resolution and notify in writing the civil servant making the complaint or their legal representative and the previous complaint resolver.

The inspection agency or personnel management department at the same level shall have the responsibility to assist the competent authority for the second complaint resolution in implementing the above procedures.

3. The entity resolving the second complaint has the right to request the civil servant making the complaint or their legal representative, the first complaint resolver, relevant agencies, and organizations to provide information, documents, and evidence related to the complaint content. The first complaint resolver has the responsibility to transfer the entire complaint file to the second complaint resolver.

4. In the case where organizing meetings and direct dialogues is mandatory, the procedure and procedural requirements for meetings and direct dialogues are implemented according to the provisions of Clause 3, Section I, Part IV of this Circular.

5. Based on information, documents, minutes of direct dialogues (in cases where such dialogues are mandatory), conclusions, recommendations of the inspection agency or personnel management department at the same level regarding the handling of complaints, and other lawful evidence concerning the content of the complaint, within thirty days from the date of accepting the case for handling, the authority responsible for handling the second-level complaint must issue a decision to resolve the complaint; for complex cases, the resolution period may be extended but shall not exceed forty-five days from the date of accepting the case for handling.

6. For complex disciplinary decision complaints within the jurisdiction of the People's Committee of a province, before issuing a decision to resolve the complaint, the Chairman of the People's Committee of the province must seek the opinion of the Ministry of Home Affairs. The Ministry of Home Affairs has the responsibility to reply in writing within fifteen days from the date of receipt of the request.

7. Issue a second-level complaint resolution decision.

Based on legal provisions and on the basis of information, documents, minutes of direct dialogues (in cases where such dialogues are mandatory), conclusions, recommendations of the inspection agency at the same level regarding the handling of complaints, and other lawful evidence concerning the content of the complaint, the authority responsible for handling the complaint issues a second-level complaint resolution decision.

The second-level complaint resolution decision includes the following basic contents:

a) Date of issuance of the decision;

b) Full name and address of the civil servant making the complaint or their legal representative;

c) The content of the complaint (specifically stating the disciplinary decision against which the civil servant is complaining. For example: complaining about the content of the decision, the form of the decision, the authority, procedure, and process of handling the complaint...);

d) Results of verification and investigation by the inspection agency or personnel management department at the same level regarding the content of the complaint of the disciplined civil servant;

đ) Results of meetings and direct dialogues (if any);

e) Legal basis for resolving the complaint;

g) Conclusions on each specific issue in the content of the complaint of the disciplined civil servant and the handling of the previous complaint resolver;

h) Maintaining, amending, revoking, or requiring the amendment or revocation of part or all of the disciplinary decision against the complained civil servant, resolving specific issues in the content of the complaint of the disciplined civil servant;

i) Compensation for damages (if any);

The second-level complaint resolution decision must be sent to the civil servant who made the complaint, the first-level complaint resolver, and those with related rights and interests within seven days from the date of issuance.

The second-level complaint resolution decision of the Minister, Head of a ministry equivalent to a ministry, head of a government agency, Chairperson of the People's Committees of provinces and centrally governed cities must be sent to the General Inspectorate and the Minister of Home Affairs.

The issuer of the second-level complaint resolution decision must publicly announce the decision to the civil servant making the complaint or their legal representative and the first-level complaint resolver, and those with related rights and obligations.

8. The resolution of the second-level complaint must be recorded in a file. The file for resolving the second-level complaint includes:

a) The complaint letter of the disciplined civil servant submitted to the authority responsible for handling the second-level complaint;

b) The entire file of the first-level complaint resolution case transferred by the first-level complaint resolver;

c) Minutes of meetings and direct dialogues (in cases where such dialogues are mandatory), minutes of verification and investigation, conclusions of the inspection agency at the same level, and results of appraisal (if any);

d) The complaint resolution decision;

đ) Other related documents.

The file for resolving the second-level complaint must be paginated according to the order of documents and stored in accordance with legal regulations.

9. Effectiveness of the decision resolving the disciplinary decision complaint of a civil servant

a) A complaint resolution decision with legal effect must be strictly complied with by all parties involved;

b) If the complaint resolution decision concludes that the disciplinary decision against the civil servant was wrongful, the head of the agency where the civil servant works must, at the latest thirty days from the date the complaint resolution decision takes effect, publicly announce the conclusion to all cadres and civil servants and must also have the responsibility to compensate the legitimate rights of the wrongfully disciplined civil servant in accordance with legal provisions;

c) In cases where the authority responsible for handling the complaint concludes that the disciplinary action against the civil servant was conducted in violation of the content, form, and procedure of the disciplinary process, the person who signed the disciplinary decision must issue a decision to revoke the disciplinary decision, and simultaneously instruct the head of the civil servant management agency to re-examine the disciplinary action against the civil servant in accordance with the prescribed regulations.

V. IMPLEMENTATION

1. The Minister, Heads of ministries equivalent to ministries, agencies under the Government, Chairpersons of the People's Committees of provinces and centrally governed cities are responsible for implementing this Circular;

2. Every six months, ministries, agencies equivalent to ministries, agencies under the Government, People's Committees of provinces and centrally governed cities must compile the situation of handling disciplinary decision complaints and send it to the Ministry of Home Affairs for review, resolution within their jurisdiction, and consolidation and reporting to the Government Inspectorate and the Prime Minister.

3. This Circular takes effect fifteen days from the date of publication in the Official Gazette.

4. During the implementation of this Circular, if there are any difficulties, ministries, agencies equivalent to ministries, agencies under the Government, People's Committees of provinces and centrally governed cities are requested to reflect them to the Ministry of Home Affairs for consideration and revision./.