Joint Circular No. 02/2013/TTLT-VKSNDTC-TANDTC-BCA-BTP-BNG guides the receipt and transfer of case files and evidence for requesting foreign countries to continue pursuing criminal responsibility.

JOINT CIRCULAR

Pursuant to the Law on Mutual Legal Assistance adopted by the National Assembly of the Socialist Republic of Vietnam at its twelfth session, second meeting, November 21, 2007;

Pursuant to Article 345 and Article 346 of the Criminal Procedure Code adopted by the National Assembly of the Socialist Republic of Vietnam at its eleventh session, fourth meeting, November 26, 2003;

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The Supreme Procuratorate, the Supreme People's Court, the Ministry of Public Security, the Ministry of Justice, and the Ministry of Foreign Affairs hereby provide guidelines on the receipt and transfer of case files and evidence for requesting foreign countries to continue to pursue criminal responsibility against the offenders as follows:

These joint circulars provide guidance on the conditions, principles, procedures, and formalities for the receipt and transfer of case files and evidence of cases requested by competent Vietnamese judicial authorities from foreign countries to continue to pursue criminal responsibility according to Clause 1 of Article 28 of the Law on Mutual Legal Assistance.

Article 2. Conditions for Receipt and Transfer of Case Files and Evidence

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

The receipt and transfer of case files and evidence for requesting foreign countries to continue to pursue criminal responsibility must meet the following conditions:

1. The person being requested to continue to pursue criminal responsibility is a foreign national who committed a crime on the territory of Vietnam, is currently under investigation, prosecution, or trial by competent Vietnamese judicial authorities but has fled to the country of their nationality or another country (the country where the offender is present, hereinafter referred to as abroad).

2. Competent Vietnamese authorities have requested extradition to Vietnam, but the competent authority of that country has refused the extradition.

Article 3. Principles for Transfer of Case Files and Evidence

The transfer of case files and evidence for requesting foreign countries to continue to pursue criminal responsibility against offenders shall be carried out based on ensuring the following principles:

1. Respecting independence, sovereignty, territorial integrity, and ensuring political security of Vietnam.

2. Adhering to the Constitution, laws of Vietnam, international treaties to which Vietnam is a party; conforming to international customs.

3. Ensuring state secrets; confidentiality systems for information, documents, and evidence of the case.

4. Not affecting the pursuit of criminal responsibility against other offenders in the same case or the resolution of other cases in Vietnam.

5. The transferred documents and evidence are those indispensable for the competent authority of the foreign country to continue to pursue criminal responsibility against the offender.

Article 4. Application of Reciprocal Principle

1. In cases where Vietnam and the requested country are not members of an international treaty on mutual legal assistance in criminal matters, the Supreme Procuratorate sends a document with attached file requesting foreign countries to continue to pursue criminal responsibility against the offender

to the Ministry of Foreign Affairs for consideration and decision on requesting the foreign country to apply the reciprocal principle.

2. Within ten working days from the date of receiving the file, the Ministry of Foreign Affairs examines and makes one of the decisions provided for in Clause 3 or Clause 4 of this Article. For cases requiring opinions from the Supreme People's Court, the Ministry of Public Security, and the Ministry of Justice on applying the reciprocal principle, this period does not exceed twenty working days. 3. In cases where it decides to request the foreign country to apply the reciprocal principle, the Ministry of Foreign Affairs issues a Note requesting the requested country to apply the reciprocal principle with attached file through the Vietnamese representative office in the requested country or the representative office of the requested country in Vietnam; simultaneously informing the Supreme Procuratorate. used equipment , process, formalities prescribed in 4. In cases where it decides not to request the foreign country to apply the reciprocal principle, within ten working days from the date of the decision, the Ministry of Foreign Affairs returns the file to the Supreme Procuratorate and specifies the reasons.

5. Within five working days from the date of receiving the official response from the foreign country agreeing to apply the reciprocal principle, the Ministry of Foreign Affairs informs the Supreme Procuratorate in writing and coordinates the implementation.

6. In cases where the foreign country agrees to apply the reciprocal principle with accompanying conditions, the Ministry of Foreign Affairs sends a document seeking the opinions of the Supreme Procuratorate, the Supreme People's Court, the Ministry of Public Security, and the Ministry of Justice.

The Supreme Procuratorate, the Supreme People's Court, the Ministry of Public Security, and the Ministry of Justice must provide written responses within ten working days from the date of receiving the document from the Ministry of Foreign Affairs.

The Ministry of Foreign Affairs will examine and decide on applying the reciprocal principle with the accompanying conditions of the foreign country within five working days from the date of receiving the response document from the Supreme Procuratorate, the Supreme People's Court, the Ministry of Public Security, and the Ministry of Justice, issue a Note responding to the competent authority of the foreign country, and send a copy of the Note to the Supreme Procuratorate for coordination.

PROCEDURE AND FORMALITIES FOR RECEIPT

TRANSFER OF CASE FILES AND EVIDENCE

PROCEDURE AND FORMALITIES FOR RECEIPT, TRANSFER OF CASE FILES AND EVIDENCE

Chapter II

BETWEEN COMPETENT AUTHORITIES OF VIETNAM

TRANSFER OF FILES AND EVIDENCE

Section 1

PROCEDURES AND FORMALITIES FOR RECEIVING AND TRANSFERRING FILES AND EVIDENCE BETWEEN COMPETENT AUTHORITIES IN VIETNAM

COMPETENT AUTHORITIES

OF VIETNAM

Article 5. Establishing a file to request foreign countries to continue pursuing criminal responsibility for offenders

1. When requesting foreign countries to continue pursuing criminal responsibility for offenders, the prosecution agency making the request (hereinafter referred to as the "requesting agency") must establish a file. requesting authorityshall establish a file.

2. The file shall include:

a) A letter from the requesting agency requesting the Supreme People's Procuracy to consider transferring the file to a foreign country;

b) A document requesting a foreign country to pursue criminal responsibility for offenders, established by the requesting agency according to the model issued together with this Circular;

c) A certified true copy of the original case file in cases where there is no co-defendant, or in cases where there is a co-defendant, the case file of the person requested to be pursued for criminal responsibility shall be separated and established separately according to the provisions of Article 6 of this Circular;

d) Documents proving that the subject is present in the requested country;

đ) A document refusing extradition from the competent authority of the foreign country. In cases where Vietnam and the requested country have an Extradition Agreement and the person requested to be pursued for criminal responsibility falls under the circumstances of refusal of extradition as stipulated in the Agreement, the requesting agency shall cite that provision in the accompanying letter instead of the refusal document;

e) Other necessary documents and evidence related thereto.

3. The file must be numbered and accompanied by a list of documents and evidence (if any), and established in three copies. The requesting agency is responsible for translating the file into a suitable language in accordance with the Law on Mutual Legal Assistance. If the requesting agency cannot determine the language of the requested country or another language accepted by the requested country, it shall send a document to the Ministry of Foreign Affairs for determination.

4. Costs arising during the process of establishing the file, translation, and transferring the file to the Supreme People's Procuracy shall be borne by the requesting agency from the state budget.

Article 6. Handling cases involving co-defendants being investigated, prosecuted, or tried in Vietnam

In cases where there are co-defendants being investigated, prosecuted, or tried in Vietnam, based on the decision to request a foreign country to pursue criminal responsibility for offenders, the requesting agency shall separate or extract the case file of that person before establishing the file to be sent to the Supreme People's Procuracy. The separation or extraction of the case file of the person requested to be pursued for criminal responsibility by a foreign country must comply with the principles stipulated in Article 3 of this Circular.

Article 7. Form of transferring files to the Supreme People's Procuracy

Article 7. Form of transferring the file to the Supreme People's Procuracy

1. The requesting agency is responsible for directly transferring the file to the Supreme People's Procuracy or through postal service.

2. In cases of direct transfer, the handover and receipt must be recorded in a protocol, specifying the following contents:

a) Time, date, month, year, and location of handover and receipt of the file;

b) Name of the requesting agency; name, position of the person handing over;

c) Name of the receiving agency; name, position of the person receiving;

d) Documents contained in the file according to the list of documents already listed; number of pages in the file already numbered;

đ) Type of evidence and condition of evidence (whether the evidence accompanies the file or is under the custody responsibility of which agency) is stated in the list of evidence.

3. In cases of transfer through postal service, the Supreme People's Procuracy is responsible for checking the documents and evidence in the file before accepting it. In cases where the check reveals that the documents and evidence in the file are missing or do not match the list of documents and evidence, it must immediately notify the agency sending the file to cooperate in resolving the issue.

Article 8. Responsibilities of the Supreme People's Procuracy in receiving and processing files

Within ten working days from the date of receipt of the file, the Supreme People's Procuracy shall be responsible for:

1. Registering the file;

2. Checking the completeness and validity of the file in accordance with Article 5 of this Joint Circular. In case the file is invalid, it shall be returned to the requesting agency with clear reasons stated. If the file lacks necessary documents, a request for supplementation shall be made. The time limit for supplementing documents shall not exceed ten working days from the date of receipt of the request;

3. Reviewing and deciding on the types of documents and evidence to be transferred to foreign countries in accordance with Article 3 of this Joint Circular. In case documents and evidence are attached to the file but are deemed unnecessary to transfer to foreign countries, they shall be returned to the requesting agency;

4. Contacting the competent authority of the foreign country regarding the transfer of the file and evidence to request continued prosecution of the offender according to international treaties to which Vietnam and the requested country are members;

In case there is no international treaty between Vietnam and the requested country in this field, the Ministry of Foreign Affairs shall be requested to consider and decide on the proposal to continue criminal prosecution of the offender abroad based on the principle of reciprocity as stipulated in Article 4 of this Joint Circular;

5. Notifying the requesting agency about the transfer of the file and evidence to foreign countries. The notification content must specify the time and place of transfer; the types of documents and evidence to be transferred; the types of documents and evidence not to be transferred.

Article 9. Receiving and transferring evidence among Vietnamese competent authorities

1. In case evidence is attached to the file:

a) When transferring the file, the responsible agency must also transfer the attached evidence;

b) The agency receiving the file has the responsibility to preserve the attached evidence during the period of managing the file.

2. In case evidence is being stored in the evidence warehouse:

a) The requesting agency must take photographs or record videos of the evidence along with descriptions to include in the file and notify the evidence storage agency;

b) The agency currently storing the evidence has the responsibility to continue preserving the evidence until an order to extract the evidence from the competent authority is issued or until a decision on handling the evidence according to the law is made.

Section 2

PROCEDURE AND FORMALITIES FOR TRANSFERRING FILES,

EVIDENCE TO FOREIGN COUNTRIES

Article 10. Responsibilities for contacting and transferring files and evidence to foreign countries

1. In case both Vietnam and the requested country are members of an international treaty on mutual legal assistance in criminal matters, the Supreme People's Procuracy shall directly contact and transfer the file and evidence to foreign countries in accordance with the provisions of the international treaty.

2. In case neither Vietnam nor the requested country are members of an international treaty on mutual legal assistance in criminal matters, the Supreme People's Procuracy shall send a letter accompanying the file to the Ministry of Foreign Affairs to fulfill the responsibility of contacting and transferring to the requested country in accordance with the provisions of Article 4 of this Joint Circular.

Article 11. Procedures for transferring evidence to foreign countries

1. If the evidence needs to be transferred along with the file to a foreign country, when transferring the file, the Supreme People's Procuracy or the Ministry of Foreign Affairs shall also transfer such evidence to the competent authority of that foreign country.

2. If the evidence to be transferred is stored in the evidence warehouse, it shall be handled according to the following procedures:

a) At least five working days before the date of transfer to the foreign country, the Supreme People's Procuracy must notify in writing the requesting agency about the time and place of transfer. The requesting agency is responsible for taking the lead and coordinating with the evidence storage agency to extract and transport the evidence according to the time and place specified in the notification of the Supreme People's Procuracy;

b) In cases where the transfer is made through diplomatic channels, when contacting the competent authority of the foreign country to agree on the transfer, the Ministry of Foreign Affairs should pay attention to ensuring at least seven working days for the extraction and transportation of the evidence prior to the transfer date. Within two working days from obtaining agreement on the transfer with the foreign country, the Ministry of Foreign Affairs shall inform the Supreme People's Procuracy and coordinate to implement the transfer.

The notification by the Supreme People's Procuracy to the requesting agency to fulfill the responsibility of leading and coordinating the extraction and transportation of the evidence shall be carried out in accordance with point a of this Clause.

Article 12. Forms of transferring files and evidence to foreign countries

1. Depending on each case, the transfer of files and evidence to foreign countries may be conducted directly or via postal service.

2. In cases of direct transfer, the transfer must be recorded in a protocol, detailing all documents in the file, the list of evidence, and the condition of the transferred evidence, signed by the representative of the relevant agencies of Vietnam at the handover location and the representative of the competent authority of the foreign country at the handover location.

3. In cases of transfer via postal service, the transferring agency must seal the file and evidence before sending and retain the post office receipt.

Article 13. Costs of transferring files and evidence to foreign countries

Costs arising during the process of transferring files and evidence to foreign countries shall be borne by the transferring agency (the Supreme People's Procuracy or the Ministry of Foreign Affairs) from the state budget.

Chapter III

IMPLEMENTATION AND EFFECTIVE DATE OF ENFORCEMENT

Article 14. Responsibilities of the Supreme People's Procuracy

1. Guide and organize implementation within the People's Procuracy system regarding the establishment of files and procedures for requesting foreign countries to continue pursuing criminal responsibility against offenders as stipulated in this Joint Circular.

2. Monitor and report the results of foreign countries' pursuit of criminal responsibility against offenders to the requesting agency within five working days from receiving the results from the competent authority of the foreign country or from the Ministry of Foreign Affairs; request the foreign side to return the files and evidence to Vietnam in cases where the foreign country refuses to pursue criminal responsibility against the offender.

3. Annually, compile and send to the Supreme People's Court, the Ministry of Public Security, the Ministry of Justice, and the Ministry of Foreign Affairs any new mutual legal assistance treaties in criminal matters that Vietnam has concluded or joined.

Article 15. Responsibilities of the Supreme People's Court

Guide and organize implementation within the judiciary system regarding the establishment of files and procedures for requesting foreign countries to continue pursuing criminal responsibility against offenders as stipulated in this Joint Circular.

Article 16. Responsibilities of the Ministry of Public Security

1. Guide and organize implementation within the People's Public Security system regarding the establishment of files and procedures for requesting foreign countries to continue pursuing criminal responsibility against offenders as stipulated in this Joint Circular.

2. Guide the management agencies of the evidence warehouses in the People's Public Security system to organize the implementation of the preservation, extraction, and transfer of evidence in cases to be handed over to foreign countries as stipulated in this Joint Circular.

Article 17. Responsibilities of the Ministry of Justice

Guide civil enforcement agencies at all levels to organize the implementation of the preservation, extraction, and transfer of evidence from cases for transfer to foreign countries in accordance with the provisions of this Joint Circular.

Article 18. Responsibilities of the Ministry of Foreign Affairs

1. Organize the implementation within the Foreign Affairs sector regarding the tasks and authorities of the Ministry of Foreign Affairs related to receiving and transferring case files and evidence to foreign countries in accordance with the provisions of this Joint Circular.

2. Determine the language of the requested country based on the request of the file-establishing agency within five working days from the date of receipt of the request.

3. In cases where the principle of reciprocity is applied, coordinate with the Supreme People's Procuracy to contact the competent authority of the foreign country to know the results of implementing the request to continue pursuing criminal responsibility of Vietnam; propose that the foreign side return the case files and evidence to Vietnam in cases where the foreign country refuses to pursue criminal responsibility of the offender; receive the results of pursuing criminal responsibility of the offender or returned case files and evidence from the foreign country and transfer them to the Supreme People's Procuracy within three working days from the date of receipt.

4. Annually compile a list of countries and territories with treaties or agreements with Vietnam on applying the principle of reciprocity related to requests to continue pursuing criminal responsibility of offenders and notify the Supreme People's Procuracy, the Supreme People's Court, the Ministry of Public Security, and the Ministry of Justice.

Article 19. Effectiveness of Implementation

1. This Joint Circular takes effect from November 1, 2013.

2. During the implementation process, if there are difficulties or new issues arise, please promptly reflect them to the Supreme People's Procuracy, the Supreme People's Court, the Ministry of Public Security, the Ministry of Justice, or the Ministry of Foreign Affairs for explanation or supplementary guidance./.