Joint Circular No. 02/2006/TTLT/BCA-BQP-BYT-TANDTC-VKHNDTC guiding the implementation of certain provisions of the laws on temporarily suspending the execution of custodial sentences for persons serving custodial sentences who are seriously ill.

JOINT CIRCULAR

Guidelines on implementing certain provisions of laws regarding temporary suspension of execution of imprisonment sentences for persons serving imprisonment sentences who suffer from serious illnesses

To implement correctly and uniformly the provisions of laws regarding temporary suspension of execution of imprisonment sentences for persons serving imprisonment sentences who suffer from serious illnesses; the Ministry of Public Security, Supreme People's Court, Supreme People's Procuracy, Ministry of National Defense, and Ministry of Health hereby provide the following guidelines: 1. Authority to decide on temporary suspension of execution of imprisonment sentence

According to point a, Clause 1, Article 262 of the Criminal Procedure Code, point a, Clause 1, Article 61 and Article 62 of the Penal Code, the President of the People's Court of province or centrally governed city, the President of the Military Region Military Court and equivalent courts (hereinafter referred to collectively as the President of the Provincial People's Court) where the person serving the imprisonment sentence suffers from a serious illness shall have the authority to decide to temporarily suspend the execution of the imprisonment sentence for that person.

2. Conditions for temporary suspension of execution of imprisonment sentence

2.1. A person serving an imprisonment sentence may be temporarily suspended from executing the imprisonment sentence if they suffer from a serious illness.

A person serving an imprisonment sentence who suffers from a serious illness is someone whose condition is so severe that they cannot continue to serve the imprisonment sentence, and continuing to serve the sentence would endanger their life; therefore, it is necessary to allow them to temporarily suspend the execution of the imprisonment sentence to enable them to receive medical treatment; examples include: terminal cancer, cirrhosis with ascites, severe drug-resistant tuberculosis, paralysis, heart failure stage 3 or higher, chronic kidney disease stage 4 or higher, HIV progressing to AIDS with opportunistic infections and poor prognosis...

2.2. There must be a conclusion from a provincial-level hospital or higher regarding the serious illness of the person serving the imprisonment sentence and that continuing to serve the sentence would endanger their life.

2.3. The person serving the imprisonment sentence must have a place of residence at commune, ward, or town level.

3. Documents for requesting temporary suspension of execution of imprisonment sentence

3.1. The documents for requesting temporary suspension of execution of imprisonment sentence for a person serving an imprisonment sentence who suffers from a serious illness include:

a) A copy of the judgment or a copy of the criminal record;

b) A conclusion from a provincial-level hospital or higher regarding the health condition. For individuals infected with HIV progressing to AIDS, only the HIV infection test result according to the regulations of the Ministry of Health is required, and the medical records must clearly state that there are opportunistic infections and poor prognosis;

c) A request for temporary suspension of execution of imprisonment sentence for seriously ill persons issued by the Prison Management Board or the Detention Center Management Board;

For persons serving imprisonment sentences at detention centers, the Head of the Detention Center must report to the Detention Center Management Board with authority to issue a request for temporary suspension of execution of imprisonment sentence for them;

d) An assessment opinion from the competent authority guided in Section 4 of this Circular (except for persons serving imprisonment sentences who are infected with HIV progressing to AIDS with opportunistic infections and poor prognosis);

đ) An opinion from the leadership of the Ministry of Public Security or the Ministry of National Defense for persons serving imprisonment sentences who suffer from serious illnesses but were sentenced to imprisonment for offenses against national security; sentenced to more than 15 years' imprisonment, life imprisonment for intentional homicide, robbery, rape, causing serious injury, intentionally transmitting HIV to others, or sentenced to 20 years or more (including cumulative sentences), life imprisonment for other intentional crimes.

3.2. Through supervision of the enforcement of imprisonment sentences, if the Provincial People's Procuracy or the Supreme People's Procuracy finds that there are persons serving imprisonment sentences who suffer from serious illnesses as guided in Section 2 of this Circular, they shall issue a document requesting the Prison Management Board or the Detention Center Management Board where the seriously ill person is serving the imprisonment sentence to prepare the documents for requesting temporary suspension of execution of imprisonment sentence for that person.

4. Procedures for preparing and assessing documents for requesting temporary suspension of execution of imprisonment sentence

4.1. The Prison Management Board under the Ministry of Public Security prepares the documents for requesting temporary suspension of execution of imprisonment sentence for seriously ill persons under its management and education, then transfers these documents to the Prison Administration Department, educational facilities, and reformatory schools for examination and assessment.

4.2. The Prison Management Board under the Ministry of National Defense prepares the documents for requesting temporary suspension of execution of imprisonment sentence for persons serving imprisonment sentences who suffer from serious illnesses under its management, then transfers these documents to the Criminal Investigation Department of the Ministry of National Defense for examination and assessment.

4.3. The Prison Management Board or Detention Center Management Board of Military Region under the Ministry of National Defense prepares the documents for requesting temporary suspension of execution of imprisonment sentence for persons serving imprisonment sentences who suffer from serious illnesses under their management, then transfers these documents to the Military Region Criminal Investigation Agency for examination and assessment.

4.4. The Detention Center Management Board of the Public Security Department of province or centrally governed city prepares the documents for requesting temporary suspension of execution of imprisonment sentence for persons serving imprisonment sentences who suffer from serious illnesses at the prisoner management section within the Detention Center, then transfers these documents to the Public Security Department of province or centrally governed city for examination and assessment.

4.5. Within two working days from the date of receipt of the documents for requesting temporary suspension of execution of imprisonment sentence, the competent authority responsible for examination and assessment must complete the examination and assessment process. After receiving the assessment opinion from the competent authority, the Prison Management Board or Detention Center Management Board must complete the documents and transfer them to the Provincial People's Court where the person serving the imprisonment sentence who suffers from a serious illness is located, while simultaneously sending copies to the Procuracy at the same level as the Court for the purpose of supervising compliance with the law.

4.4. The Board of Supervisors of the Provincial or Central City Detention Center shall establish a file to propose the temporary suspension of the execution of the custodial sentence for a person serving a custodial sentence who is seriously ill at the Sub-detention Facility for Prisoner Management within the Detention Center, then transfer that file to the Provincial or Central City Police for examination and verification.

4.5. Within two working days from the date of receipt of the file proposing the temporary suspension of the execution of the custodial sentence, the competent authority must complete the examination and verification. After receiving the verification opinion of the competent authority, the Board of Supervisors of the Prison or Detention Center shall finalize the file and transfer it to the Court of the province where the person serving the custodial sentence who is seriously ill resides, while sending a copy to the Procuracy at the same level as the Court for the purpose of supervising compliance with the law.

4.6. For persons currently serving a custodial sentence who are infected with HIV and have progressed to the AIDS stage, suffering from opportunistic infections, and have a poor prognosis, the Prison Management Board or Detention Center Management Board shall prepare a file to request a temporary suspension of the execution of the custodial sentence, then transfer it to the Provincial Court where the convicted person is serving the sentence for consideration and decision, without seeking the opinion of the competent authority but must send a copy to the People's Procuracy at the same level as the Court where the prison or detention center is located to perform its function of supervising compliance with the law.

5. Consideration and Decision on Temporary Suspension of Execution of Custodial Sentence

5.1. The Chief Judge of the Provincial Court where the convicted person is serving a custodial sentence due to serious illness shall only consider and decide on the temporary suspension of the execution of the custodial sentence when the file contains all the documents guided in Section 3 of this Circular. Within five working days from receiving the file, the Chief Judge of the Court must review and decide whether to grant or deny the temporary suspension of the execution of the custodial sentence. If there are any missing documents or unclear points, the Chief Judge of the Court shall require the Prison Management Board or Detention Center Management Board to supplement or clarify them.

5.2. In cases where the Chief Judge of the Court disagrees with the proposal of the Prison Management Board or Detention Center Management Board, the Chief Judge of the Court must respond in writing, clearly stating the reasons for not accepting the temporary suspension of the execution of the custodial sentence for the person serving a custodial sentence due to serious illness, informing the proposing agency.

5.3. In cases where the Chief Judge of the Court agrees with the proposal of the Prison Management Board or Detention Center Management Board, the Chief Judge of the Court shall issue a decision on the temporary suspension of the execution of the custodial sentence in accordance with the provisions of the law and the guidance of the Supreme People's Court.

5.4. When discovering that a document does not accept the temporary suspension of the execution of the custodial sentence for a person serving a custodial sentence due to serious illness for an unwarranted reason, or when discovering that the decision on the temporary suspension of the execution of the custodial sentence violates the law, the People's Procuracy has the right to lodge a protest requesting the Court to reconsider and issue a decision on the temporary suspension or revoke the decision on the temporary suspension of the execution of the custodial sentence.

6. Sending and Notifying the Decision on Temporary Suspension of Execution of Custodial Sentence

6.1. The decision on the temporary suspension of the execution of the custodial sentence must be sent by the Court to:

a) The person temporarily suspended from serving the custodial sentence;

b) The prison or detention center where the convicted person is serving the custodial sentence;

c) The Court that issued the enforcement decision; the Provincial Court where the convicted person is temporarily suspended from serving the custodial sentence for treatment purposes;

d) The People's Procuracy at the provincial level where the prison is located;

đ) The commune, ward, town authorities responsible for managing the person temporarily suspended from serving the custodial sentence.

6.2. The Prison Management Board or Detention Center Management Board is responsible for sending a copy of the decision on the temporary suspension of the execution of the custodial sentence to the Ministry of Public Security (Prison Management Bureau, Educational Institution Management Bureau, and Juvenile Correctional School) and the Provincial Police Office (Provincial Police Office) to implement state management over the enforcement of custodial sentences; for prisons or detention centers under the Ministry of National Defense, the Prison Management Board or Detention Center Management Board is responsible for sending a copy of the decision on the temporary suspension of the execution of the custodial sentence to the Criminal Investigation Department of the Ministry of National Defense or the Military Region Criminal Investigation Department.

In cases where the person temporarily suspended from serving the custodial sentence is infected with HIV, the Prison Management Board or Detention Center Management Board also has the responsibility to notify in writing the Health Center at the district level where the person temporarily suspended resides so that the relevant authority can proactively manage and advise the person temporarily suspended and their family.

7. In cases where a person serving a custodial sentence is infected with HIV and has progressed to the AIDS stage, but has not yet completed the procedures for temporary suspension of the execution of the custodial sentence according to the guidance of this Circular and they die in the prison or detention center without any grounds to suspect death due to other causes, there is no need for an autopsy or sample testing, but a record of the cause of death must still be established in accordance with Article 28 of the Law on Enforcement of Criminal Sentences.

8. Management of Persons Temporarily Suspended from Serving the Custodial Sentence

8.1. According to Article 263 of the Criminal Procedure Code, the Court that issued the decision on the temporary suspension of the execution of the custodial sentence shall hand over the person temporarily suspended from serving the custodial sentence to the commune, ward, or town authorities where they reside for management. The prison or detention center has the responsibility to coordinate with the Court that issued the decision on the temporary suspension of the execution of the custodial sentence in handing over the person temporarily suspended from serving the custodial sentence to the commune, ward, or town authorities.

8.2. During the period of temporary suspension of the execution of the custodial sentence, if the person temporarily suspended from serving the custodial sentence commits serious violations of the law or there is evidence suggesting that they will abscond, the commune, ward, or town authorities responsible for managing the person temporarily suspended must immediately report to the Chief Judge of the Court that issued the decision on the temporary suspension of the execution of the custodial sentence to revoke the decision on the temporary suspension of the execution of the custodial sentence and immediately issue a decision to enforce the sentence to arrest them and make them serve the custodial sentence. The decision to continue enforcing the sentence is sent to the Provincial Public Security Agency, the Military Region Criminal Investigation Department where the person temporarily suspended from serving the custodial sentence resides for treatment. The Provincial Public Security Agency, the Military Region Criminal Investigation Department has the duty to organize the arrest and escort of the person to the prison or detention center to continue serving the custodial sentence.

8.3. The President of the Court where the person temporarily suspended from serving the custodial sentence resides for medical treatment shall be responsible for coordinating with the commune, ward, town authorities managing the suspended person to monitor the execution of the temporary suspension decision by the suspended person serving the custodial sentence. If their health has recovered, they must immediately report this to the President of the Court that issued the temporary suspension decision to issue a decision to continue enforcing the custodial sentence. In cases where it is difficult to assess whether the convicted person's health has recovered, the President of the provincial Court where the convicted person resides for medical treatment shall be responsible for requesting a health examination. The conclusion of the provincial Medical Examination Council or higher shall serve as the basis for the President of the Court that issued the temporary suspension decision to decide whether to continue enforcing the sentence against them.

8.4. In the event of the death of a person temporarily suspended from serving the custodial sentence, their family or the commune, ward, town authorities managing the suspended person must report to the President of the Court that issued the temporary suspension decision and the President of the provincial Court where the convicted person resides. The President of the Court that issued the temporary suspension decision shall be responsible for notifying the Court that issued the enforcement decision to issue a decision to suspend the execution of the custodial sentence due to the death of the convicted person and send this decision to the commune, ward, town authorities where the convicted person resides, the Prison Management Board, detention center where the convicted person was temporarily suspended from serving the custodial sentence.

9. Funding for health examinations, medical treatment, and funeral expenses for persons serving custodial sentences who suffer from serious illness or have died

Funding for health examinations, medical treatment for persons serving custodial sentences who suffer from serious illness, or funeral expenses when they die shall be sourced from state funding and other sources of funding, including from the families of persons serving custodial sentences.

10. Effective date

10.1. This Circular takes effect fifteen days from the date of publication in the Official Gazette. Previous guidelines on temporarily suspending the execution of custodial sentences for seriously ill persons that conflict with this Circular are hereby abolished.

10.2. During implementation, if there are difficulties or lack of guidance, requiring further explanation or supplementary guidance, please reflect these issues to the Ministry of Public Security, Supreme People's Court, Supreme People's Procuracy, Ministry of National Defense, and Ministry of Health for timely clarification or supplementary guidance.