Joint Circular No. 02/1998/TTLT-TANDTC-VKSNDTC-BCA guiding the application of certain provisions in Chapter VIIA "Drug-related Offenses" of the Criminal Code

JOINT CIRCULAR

Guidelines for Applying Certain Provisions of Chapter VIIA "Drug-related Offenses" of the Criminal Code

__________________________________

To uniformly apply the provisions of the Law Amending and Supplementing Certain Articles of the Criminal Code adopted by the National Assembly, Session 11, on May 10, 1997, the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Interior issued Circular Jointly No. 01/1998/TTLT-TANDTC-VKSNDTC-BNV dated January 2, 1998, "Guidelines for Applying Certain Provisions of the Law Amending and Supplementing Certain Articles of the Criminal Code" (hereinafter referred to as Circular Jointly No. 01/1998). After this circular took effect, some local law enforcement agencies sent letters, telegrams, and made phone calls requesting the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Public Security to provide more detailed guidance on the acts of "illegally buying and selling drugs"; "organizing illegal drug use"; and also requested additional guidance on certain provisions of the Criminal Code regarding "drug-related offenses."

To correctly and uniformly apply the provisions of Chapter VIIA "Drug-related Offenses" of the Criminal Code, the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Public Security hereby jointly issue the following guidelines:

1. The act of illegally buying and selling drugs as stipulated in Article 185d of the Criminal Code includes one of the following acts: a. Selling drugs illegally to others;

b. Buying drugs with the purpose of selling them illegally to others; c. Requesting drugs with the purpose of selling them illegally to others;

d. Storing drugs with the purpose of selling them illegally to others; d. Transporting drugs to sell them illegally to others;

e. Using drugs to exchange, settle accounts... illegally;

g. Using assets (not money) to exchange, settle accounts... to obtain drugs for resale illegally to others.

When implementing the above guidance, attention should be paid to:

- Any person who commits any of the acts guided in points a and e must be prosecuted for the crime of "illegally buying and selling drugs" under Article 185d of the Criminal Code, regardless of the origin of the drugs.

- To have grounds for prosecuting a person who commits any of the acts guided in points b, c, d, đ, and g for the crime of "illegally buying and selling drugs" under Article 185d of the Criminal Code, it is necessary to prove that their purpose in committing these acts was to sell drugs illegally. In cases where the purpose of selling drugs illegally cannot be proven, depending on specific circumstances, the guidance at item b point 4 section II Part B of Circular Jointly No. 01/1998 shall be applied to handle administratively or prosecute for the crime of "illegally storing drugs" under Article 185c of the Criminal Code or for the crime of "illegally transporting drugs" under Article 185d of the Criminal Code.

- Any person who commits any of the criminal acts guided in point I of this circular, and before or after such acts, commits one or more other drug-related criminal acts, shall be prosecuted according to the guidance at point 5 section II Part B of Circular Jointly No. 01/1998.

- Any person who organizes, incites, or assists another person in committing any of the acts mentioned above shall be prosecuted for the crime of "illegally buying and selling drugs" under Article 185d of the Criminal Code.

- Item 1 of this circular replaces item d point 2 section II Part B of Circular Jointly No. 01/1998.

2. The act of organizing illegal drug use as stipulated in Article 185i of the Criminal Code includes one of the following acts:

a. Directing, assigning, or managing activities to illegally introduce drugs into the bodies of others;

b. Renting, borrowing, using, or finding places under their own possession or management, or otherwise, to serve as locations for illegally introducing drugs into the bodies of others;

c. Providing drugs illegally (excluding the act of illegally selling drugs) to others for them to use drugs illegally;

d. Preparing drugs in any form (buying, requesting, storing, producing...) to illegally introduce drugs into the bodies of others;

d. Finding users of drugs for those organizing illegal drug use to illegally introduce drugs into the bodies of these users;

e. Preparing tools or equipment for the illegal use of drugs in any form (buying, requesting, storing, producing...), to use them to illegally introduce drugs into the bodies of others;

g. Other acts (other than those guided in points a, b, c, d, đ, and e above) that assist others in using drugs illegally (such as: giving others money, lending money to others so they can buy drugs for illegal use; providing others with assets, lending assets not being money to others so they can exchange for drugs for illegal use; helping others to smoke, inhale drugs illegally; helping others to inject, administer drugs illegally...), if the person committing any of these acts has:

- Been convicted of one of the drug-related offenses specified in the Criminal Code but not yet had the conviction removed;

- Been administratively punished for one of the drug-related violations specified in the Criminal Code and detailed in Circular Jointly No. 01/1998 and this circular, but not yet completed the period during which they are considered not to have been administratively punished;

- Been exempted from criminal responsibility for one of the drug-related violations specified in the Criminal Code and detailed in Circular Jointly No. 01/1998 and this circular, but not yet exceeded one year since the date of exemption from criminal responsibility.

- Shall be educated by state agencies (such as People's Committees or police from ward, commune, town level upwards, workplace agencies...), organizations, mass organizations (such as residential group, youth organization, women's organization...), as well as responsible persons at the workplace or place of residence (such as heads of agencies, area police officers, representatives of People's Committees at all levels, residential group leaders...), but not exceeding one year from the date of education. It should be noted that there must be sufficient grounds to confirm that the person who committed one of the above acts has been educated (such as meeting minutes; self-criticism statements or commitment letters of the violator; being summoned to state agencies with jurisdiction for education; responsible persons visiting their homes for education...).

Whoever organizes the illegal use of narcotic drugs and commits one or more other drug-related offenses as prescribed in corresponding articles of the Criminal Code shall, in addition to being criminally prosecuted under Article 185i of the Criminal Code, also be criminally prosecuted for other crimes committed as prescribed in corresponding articles of the Criminal Code, depending on the circumstances.

- Point 2 of this Circular replaces paragraph e of point 2, Section II, Part B of the Joint Circular No. 01/1998.

3. The act of illegally using narcotic drugs as prescribed in Article 185i of the Criminal Code is the act of oneself or through another person introducing narcotic drugs into one’s body in any form (such as smoking, inhaling, injecting, administering... narcotic drugs) to satisfy the need for drug use.

Criminal responsibility for the crime of illegally using narcotic drugs as prescribed in Article 185 of the Criminal Code shall only be pursued when the person who illegally uses narcotic drugs has been educated multiple times and has been administratively sanctioned by compulsory treatment in a facility, but continues to illegally use narcotic drugs.

"Educated multiple times" means having been persuaded, reminded, or administratively punished by state agencies, organizations, and responsible persons in the locality two or more times, but still continues to illegally use narcotic drugs.

- Shall be considered as having been administratively sanctioned by compulsory treatment in a facility if the compulsory treatment measure is implemented in accordance with Articles 10 and 24 of the Administrative Violation Handling Decree (approved by the Standing Committee of the National Assembly on July 6, 1995) and in accordance with the regulations of the "Regulations on Treatment Facilities under the Administrative Violation Handling Decree dated July 6, 1995" (issued together with Decision No. 20/CP dated April 13, 1996 of the Government).

Whoever has been convicted of the crime of "illegally using narcotic drugs" and reoffends shall be criminally prosecuted according to Clause 2 of Article 185 of the Criminal Code.

4. The act of harboring the illegal use of narcotic drugs as prescribed in Article 185k of the Criminal Code is the act of a person who owns or manages a location knowing that another person is an object of illegal drug use, but still allows them to borrow or rent the location for them to directly use narcotic drugs to satisfy their need for drug use.

A person who lends or rents a location to others knowing that they use it not to satisfy their own need for drug use, but to introduce narcotic drugs into another person's body for them to illegally use narcotic drugs shall be criminally prosecuted for the crime of "organizing the illegal use of narcotic drugs" as prescribed in Article 185i of the Criminal Code.

5. The act of forcing others to illegally use narcotic drugs as prescribed in Article 185m of the Criminal Code is the act of using violence, threatening to use violence, or other methods to intimidate the spirit of others to force them to illegally use narcotic drugs against their will.

6. The act of enticing others to illegally use narcotic drugs as prescribed in Article 185m of the Criminal Code is the act of inviting, persuading, inciting, or using other methods to arouse the desire of others to illegally use narcotic drugs so that they illegally use narcotic drugs.

7. When pursuing criminal responsibility for the crime of producing, storing, transporting, buying, and selling tools and equipment used for the illegal production or use of narcotic drugs, the following points should be noted:

a. Acts of illegal production, illegal storage, illegal transportation, and illegal purchase and sale are understood similarly to the corresponding acts guided in paragraphs a, b, c of point 2, Section II, Part B of the Joint Circular No. 01/1998 and point 1 of this Circular.

b. If someone produces, stores, transports, or buys tools and equipment used for the illegal use of narcotic drugs for their own illegal use of narcotic drugs for the first time, they shall not yet be subject to criminal prosecution, but shall be subject to administrative sanctions; if they have already been administratively sanctioned and continue to violate, they shall be criminally prosecuted according to Article 185h of the Criminal Code.

c. Shall be considered as "a large quantity of prohibited items" as prescribed in point d of Clause 2 of Article 185h of the Criminal Code if there are five or more tools or equipment (which may be of the same type or different types).

8. Attention should be paid to some circumstances which are factors in determining the crime or sentencing range as follows:

a. In the articles on drug-related crimes where the circumstance "having been administratively sanctioned and still violating" is prescribed, only cases of administrative sanctions from May 22, 1997 onwards shall be counted;

b. Shall be considered as committing the crime "against many people" in the articles on drug-related crimes where this circumstance is prescribed as a factor in determining the sentencing range, if in one instance the offender commits the crime against two or more people (such as organizing the illegal use of narcotic drugs in one instance against two or more people; in one instance forcing, enticing two or more people to illegally use narcotic drugs...);

c. The aggravating circumstance "committing the crime repeatedly" prescribed in point b of Clause 2 of Article 185d of the Criminal Code shall be applied in the following cases:

- Illegally purchasing narcotics two times or more with the purpose of illegally selling them to others, regardless of whether it is sold once or multiple times;

- Illegally purchasing narcotics once and then illegally reselling the quantity of narcotics from two times or more to others, regardless of whether it is resold from two times or more to one person or multiple people;

- Illegally purchasing narcotics once and then illegally reselling the quantity of narcotics to two or more persons at the same time.

9. Amend and supplement some guidelines of Circular Joint Circular No. 01/1998 as follows:

a. Paragraph 2, item a, point 1, Section II, Part B of Circular Joint Circular No. 01/1998 shall be supplemented and guided as follows:

"It should be noted that opium resin includes: opium resin extracted from the opium poppy plant, opium resin concentrated into a sticky form, bead form... For opium solution for injection, it is not considered as narcotic liquid but the morphine content in the solution must be determined to calculate the weight of morphine. For opium smoke, it is not considered as opium resin but the morphine content in opium smoke must be determined to calculate the weight of morphine."

b. The guidance marked by the second (+) sign under the second (*) sign in paragraph b, item 4, Section II, Part B of Circular Joint Circular No. 01/1998 shall be amended and supplemented as follows:

"A person who has been convicted of one of the drug-related offenses stipulated in the Penal Code, but whose conviction has not yet been expunged, if they illegally store or transport one of the narcotics specified above (as guided in the first (*) sign in paragraph b, item 4, Section II, Part B of Circular Joint Circular No. 01/1998), and if it does not constitute a dangerous recidivism, shall be criminally prosecuted according to Clause 1 Article 185c or Clause 1 Article 185d accordingly; if it constitutes a dangerous recidivism, shall be criminally prosecuted according to Clause 2 Article 185c or Clause 2 Article 185d accordingly."

Also, a person who illegally stores or transports two or more types of narcotics, each type having a weight as specified above (as guided in the first (*) sign in paragraph b, item 4, Section II, Part B of Circular Joint Circular No. 01/1998) shall be criminally prosecuted according to Clause 1 Article 185c or Clause 1 Article 185d accordingly.

10. This Circular takes effect from August 20, 1998.

- Any guidance in this Circular that reduces criminal liability compared to previous guiding documents shall be applied during investigation, prosecution, first-instance trial, appeal trial, cassation trial, or retrial for those who committed the criminal act before this Circular takes effect.

- In cases where the offender has been correctly sentenced according to previous guiding documents and the judgment has become legally binding, these guidelines in this Circular shall not be applied to file cassation or retrial complaints.

- In cases where investigation, prosecution, first-instance trial, appeal trial, cassation trial, or retrial are ongoing and these guidelines in this Circular are applied to declare exemption from criminal liability for the accused, the investigating agency, the Prosecution Office, and the Court need to clearly explain to them that such exemption from criminal liability is not grounds for claiming compensation for damages caused by the authority of the investigative agencies.

During the implementation of this Circular, if there are any difficulties encountered, the investigating agency, the Prosecution Office, and the Court shall immediately report to the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Public Security for timely guidance.