Joint Circular No. 03/TTLN guiding the implementation of certain provisions of the Enforcement of Criminal Sentences Ordinance

CIRCULAR

JOINT CIRCULAR NO. 03/TTLN OF JUNE 30, 1993

ISSUED BY THE SUPREME PEOPLE'S COURT - MINISTRY OF INTERNAL AFFAIRS - SUPREME PROCURATORATE

GUIDELINES FOR IMPLEMENTING CERTAIN PROVISIONS OF THE ENFORCEMENT OF PRISON SENTENCES ORDINANCE

TO IMPLEMENT THE ENFORCEMENT OF PRISON SENTENCES ORDINANCE CORRECTLY, THE SUPREME PEOPLE'S COURT, THE MINISTRY OF INTERNAL AFFAIRS, AND THE SUPREME PROCURATORATE ISSUE THE FOLLOWING GUIDELINES:

1. PROCEDURES FOR TRANSFERRING CONVICTED PERSONS TO PRISON TO SERVE THEIR SENTENCES

PURSUANT TO ARTICLE 15 OF THE ENFORCEMENT OF PRISON SENTENCES ORDINANCE, WHEN TRANSFERRING CONVICTED PERSONS TO PRISON TO SERVE THEIR SENTENCES, THE EXECUTION AUTHORITY MUST ENSURE THAT THEY HAVE A COPY OF THE JUDGMENT OR DECISION ON IMPRISONMENT THAT HAS ACQUIRED LEGAL EFFECT AND THE DECISION TO ENFORCE THE JUDGMENT OR DECISION ISSUED BY THE COURT. ACCORDING TO CLAUSE 3 OF ARTICLE 226 OF THE CRIMINAL PROCEDURE CODE, "WITHIN FIFTEEN DAYS FROM THE DATE THE JUDGMENT OR DECISION OF THE COURT BECOMES LEGALLY BINDING, THE PRESIDENT OF THE COURT THAT ISSUED THE PRIMARY JUDGMENT MUST ISSUE A DECISION TO ENFORCE IT." THEREFORE, TO ENSURE THAT THE EXECUTION AUTHORITY HAS ALL THE NECESSARY DOCUMENTS, WITHIN FIFTEEN DAYS FROM THE DATE THE JUDGMENT OR DECISION OF THE COURT BECOMES LEGALLY BINDING, THE PRESIDENT OF THE COURT THAT ISSUED THE PRIMARY JUDGMENT MUST SEND TO THE SAME LEVEL PUBLIC SECURITY ORGANIZATION A COPY OF THE JUDGMENT, THE LEGALLY BINDING IMPRISONMENT DECISION, AND THE COURT’S DECISION TO ENFORCE THE JUDGMENT OR DECISION.

IN CASE THE PRIMARY COURT DELEGATES TO ANOTHER COURT AT THE SAME LEVEL TO ISSUE THE ENFORCEMENT DECISION, THE COURT THAT ISSUED THE DELEGATION DECISION MUST SEND TO THE COURT RECEIVING THE DELEGATION TWO COPIES OF THE LEGALLY BINDING JUDGMENT AND DECISION ON IMPRISONMENT ALONG WITH THE DELEGATION DECISION. THE CRIMINAL PROCEDURE CODE DOES NOT SPECIFY THE TIME LIMIT FOR THE PRESIDENT OF THE COURT RECEIVING THE DELEGATION DECISION TO ISSUE THE ENFORCEMENT DECISION AFTER RECEIVING IT; HOWEVER, TO ENSURE THE STRICT ENFORCEMENT OF THE PRISON SENTENCE, WITHIN FIFTEEN DAYS FROM THE DATE OF RECEIVING THE DELEGATION DECISION, THE PRESIDENT OF THE COURT RECEIVING THE DELEGATION MUST ISSUE THE ENFORCEMENT DECISION AND SEND A COPY OF THE LEGALLY BINDING JUDGMENT AND DECISION ON IMPRISONMENT ALONG WITH THE ENFORCEMENT DECISION TO THE SAME LEVEL PUBLIC SECURITY ORGANIZATION. TO ENSURE THAT THE PRESIDENT OF THE PRIMARY COURT ISSUES THE ENFORCEMENT DECISION OR DELEGATES TO ANOTHER COURT AT THE SAME LEVEL TO ISSUE THE ENFORCEMENT DECISION WITHIN THE LEGISLATIVE TIME LIMIT, THE APPELLATE COURT MUST IMMEDIATELY SEND A COPY OF THE APPELLATE JUDGMENT AND DECISION TO THE PRIMARY COURT AFTER THE END OF THE APPEAL TRIAL.

WITHIN SEVEN DAYS FROM THE DATE OF RECEIVING THE CONVICTED PERSON INTO PRISON, THE PRISON WARDEN MUST NOTIFY IN WRITING THE COURT THAT ISSUED THE ENFORCEMENT DECISION, THE EXECUTION MANAGEMENT AUTHORITY, AND THE RELATIVES OF THE CONVICTED PERSON.

2. SUSPENSION OF THE ENFORCEMENT OF THE PRISON SENTENCE, TEMPORARY HALT OF THE ENFORCEMENT OF THE PRISON SENTENCE, AND REDUCTION OF THE PERIOD OF ENFORCEMENT OF THE PRISON SENTENCE.

a. ACCORDING TO ARTICLE 17 OF THE ENFORCEMENT OF PRISON SENTENCES ORDINANCE, "THE SUSPENSION OF THE ENFORCEMENT OF THE PRISON SENTENCE MUST BE IN ACCORDANCE WITH THE PROVISIONS OF ARTICLES 231 AND 233 OF THE CRIMINAL PROCEDURE CODE," THEREFORE, FOR CONVICTED PERSONS WHO ARE CURRENTLY OUT ON BAIL, THE PRESIDENT OF THE COURT MAY SELF-INITIATE OR ACT UPON THE PROSECUTOR'S, POLICE'S, OR CONVICTED PERSON'S REQUEST TO SUSPEND THE ENFORCEMENT OF THE PRISON SENTENCE ONLY IN THE CASES PROVIDED FOR IN ARTICLE 231 OF THE CRIMINAL PROCEDURE CODE, WITHOUT ANY EXCEPTION. THE COURT MUST HAND OVER THE PERSON WHOSE ENFORCEMENT IS SUSPENDED TO THE LOCAL COMMUNITY ORGANIZATION WHERE THEY LIVE OR WORK FOR MANAGEMENT. IF DURING THE PERIOD OF SUSPENDED ENFORCEMENT, THE CONVICTED PERSON VIOLATES THE LAW GROSSLY OR INTENDS TO ESCAPE, THE PRESIDENT OF THE COURT THAT GRANTED THE SUSPENSION MUST REVOKE THE DECISION AND ORDER THEM TO SERVE THE PRISON SENTENCE. IN THESE CASES, THE SAME LEVEL POLICE ORGANIZATION RECEIVING THE ARREST ORDER MUST ORGANIZE THE ARREST AND TRANSPORTATION OF THE CONVICTED PERSON TO SERVE THE PRISON SENTENCE.

Article 17 of the Enforcement Law on Imprisonment provides that "the court which has suspended the execution of the imprisonment sentence must issue an enforcement decision so that when the suspension period ends, the person sentenced to imprisonment must immediately enter the prison to serve the sentence." To implement this provision, at least seven days before the end of the suspension period, the court which has suspended the execution of the imprisonment sentence must issue an enforcement decision and immediately send the enforcement decision along with a copy of the judgment and the effective penal decision to the same-level public security agency and the person sentenced before the end of the suspension period. If beyond the seven-day period from the end of the suspension period, the person sentenced does not appear at the public security agency to serve the sentence, the public security agency must organize the escort of the person sentenced to serve the sentence.

b. According to Article 17 of the Enforcement Law on Imprisonment, "the temporary suspension of the execution of the imprisonment sentence must comply with the provisions of Articles 232 and 233 of the Criminal Procedure Code," therefore, the Chief Judge who issued the enforcement decision may allow a person sentenced who is not considered a dangerous element to be temporarily suspended from serving the sentence only in cases provided for in Article 231 of the Criminal Procedure Code upon the request of the Prosecutor's Office or the warden of the prison. The temporary suspension for retrial under the supervisory jurisdiction or the cassation jurisdiction must be decided by the person who lodged the protest or by the court of supervisory jurisdiction or cassation jurisdiction.

The court must hand over a person temporarily suspended from serving the sentence to the local authority of the commune, ward, town where they reside or work or to the organization where they work for management. If during the period of temporary suspension from serving the sentence, the person sentenced commits serious violations of the law or intends to escape, the Chief Judge who issued the decision to temporarily suspend the execution of the imprisonment sentence must issue a decision to revoke that decision and issue a decision to continue the execution of the sentence to arrest them and have them serve the sentence. In this case, the same-level public security agency receiving the decision to continue the execution of the sentence has the responsibility to organize the arrest and escort of the person sentenced to serve the sentence.

The following persons are considered dangerous elements to society: those sentenced to imprisonment for particularly dangerous offenses against national security; those currently serving life imprisonment; those sentenced to ten years or more imprisonment for acts of murder, intentional infliction of serious injury resulting in death, robbery, rape, and those sentenced to fifteen years or more (including cumulative sentences) for other intentional offenses; those who are professional ruffians, violent hooligans, habitual offenders convicted of serious crimes.

Article 17 of the Enforcement Law on Imprisonment stipulates: "The court which has temporarily suspended the execution of the imprisonment sentence must issue a decision to continue the execution of the sentence so that when the suspension period ends, the person temporarily suspended from serving the sentence must immediately enter the prison to continue serving the sentence." To implement this provision, at least seven days before the end of the temporary suspension period, the court which has temporarily suspended the execution of the imprisonment sentence must issue a decision to continue the execution of the sentence and send it to the same-level public security agency and the person sentenced before the end of the temporary suspension period. If beyond the seven-day period from the end of the temporary suspension period, the person sentenced does not appear at the public security agency to continue serving the sentence, then the public security agency must organize the escort of the person sentenced to serve the sentence.

c. In the case where a person sentenced to imprisonment whose execution of the sentence has been suspended or temporarily suspended has absconded, as well as in the case where a person currently serving the sentence has escaped from the prison, the public security agency must issue an arrest warrant for them and send a copy of the arrest warrant to the court which issued the enforcement decision, so that the court can monitor the enforcement of the judgment and have grounds for calculating the statute of limitations for enforcing the judgment.

d. One of the reasons for the court to allow a person sentenced to have their execution of the sentence suspended or temporarily suspended is "the person sentenced is seriously ill." "The person sentenced is seriously ill" means the person sentenced is sick to the extent that they cannot go to serve the sentence or continue serving the sentence, going to serve the sentence or continuing to serve the sentence would be very dangerous to their life, and it is necessary to allow them to be suspended or temporarily suspended from serving the sentence so that they can have the opportunity to treat their illness (such as cancer, severe tuberculosis, paralysis...). The court will only consider and decide to allow the person sentenced to be suspended or temporarily suspended from serving the sentence when there is a medical examination conclusion. Therefore, depending on the specific situation, the warden of the prison, the public security agency, the Prosecutor's Office, or the court will organize a medical examination of the health condition of the person sentenced to conclude about their illness (the cost of the medical examination is borne by the person sentenced).

The court which issued the decision to suspend or temporarily suspend the execution of the imprisonment sentence is responsible for coordinating with the local authority of the commune, ward, town where the person sentenced resides to monitor their health condition so that if their health has recovered, they immediately issue an enforcement decision for the person temporarily suspended from serving the sentence or a decision to continue the execution of the sentence for the person temporarily suspended from serving the sentence. If the court finds it difficult to assess whether the health of the person sentenced has recovered or not, they need to organize a medical examination of their health (the cost of the medical examination is borne by the person sentenced). The conclusion of the medical examination is the basis for the court to decide whether to allow them to continue being suspended or temporarily suspended from serving the sentence or to issue an enforcement decision or a decision to continue the execution of the sentence for them.

đ. Pursuant to Article 17 of the Enforcement Decree on Imprisonment, "The reduction of the term of imprisonment must be in accordance with the provisions of Articles 49 and 51 of the Criminal Code and Articles 237 and 238 of the Criminal Procedure Code," therefore, when implementing the reduction of the term of imprisonment, the police agency, the Procuracy, and the Court must comply with the provisions of Articles 49 and 51 of the Criminal Code and Articles 237 and 238 of the Criminal Procedure Code regarding the subjects eligible for reduction, conditions for reduction, and the period of reduction; they must strictly follow the guidelines set forth in Circular Joint No. 04-89/TTLN dated August 15, 1989, issued by the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Justice, and the Ministry of Interior concerning the reduction of the term of imprisonment.

3. The placement of persons serving a sentence who suffer from mental illness in specialized facilities for compulsory treatment.

According to Article 27 of the Enforcement Decree on Imprisonment, when a person serving a sentence exhibits signs of mental illness, upon the proposal of the prison warden, the competent enforcement management agency must request a forensic medical examination and send the examination conclusion to the court with jurisdiction to issue a decision on compulsory treatment; based on the conclusion of the forensic medical examination council, the court issues a decision to place the person suffering from mental illness in a specialized healthcare facility for compulsory treatment; (the organization of specialized healthcare facilities for compulsory treatment for persons serving a sentence who suffer from mental illness will be specifically regulated by the Ministry of Health in coordination with the Ministry of Interior, the Ministry of Defense, and the Ministry of Finance).

The enforcement management agency is responsible for monitoring the treatment results. When receiving reports from the treatment facility about the recovery of the person undergoing compulsory treatment, applications from relatives of the person undergoing compulsory treatment, or requests from the Procuracy to terminate the compulsory treatment measure, and the conclusion of the forensic medical examination council, the enforcement management agency must submit these to the court that issued the compulsory treatment decision so that the court can consider terminating the compulsory treatment measure and ordering the convicted person to continue serving their sentence.

According to Article 36 of the Criminal Code, "The time spent in compulsory treatment is deducted from the time served for the sentence." Therefore, if the term of imprisonment ends while the convicted person is still undergoing compulsory treatment at a specialized healthcare facility for persons serving a sentence who suffer from mental illness, the enforcement management agency must notify the court that issued the compulsory treatment decision that the term of imprisonment has ended and inform the family to pick up the person or transfer them to another specialized healthcare facility for further treatment. In cases where the convicted person does not have family or close relatives, the enforcement management agency must coordinate with health authorities, labor and social affairs departments to transfer the person to another specialized healthcare facility under the health sector for treatment.

4. The handling of persons serving a sentence who die in prison.

According to Article 28 of the Enforcement Decree on Imprisonment, "When a person serving a sentence dies in prison, the prison warden is responsible for immediately notifying the investigation agency, the Procuracy, and the nearest health authority to come and record the cause of death, witnessed by representatives of those serving sentences; to complete the death registration procedures with the local authority; and simultaneously notify the deceased's relatives and the provincial court or military court of the military region where the prison is located before organizing the burial." Therefore, upon receiving notification (such as through a phone call, direct oral report, or written notice...), the investigation agency, the Procuracy, and the health authority must dispatch authorized personnel to the prison to jointly record the cause of death according to the prescribed procedures with the prison warden. After 24 hours, if the aforementioned agencies have not arrived despite being notified, the prison warden shall proceed to record the cause of death, witnessed by representatives of those serving sentences, complete the death registration procedures with the local authority where the prison is located, and organize the burial. The provincial court or military court of the military region needs to check whether the name of the deceased appears among those proposed for temporary suspension of sentence execution or reduction of the term of imprisonment that the court has yet to resolve, and if it does, issue a decision to terminate the resolution due to the death of the individual.

5. To ensure strict enforcement of the sentence and social fairness, persons sentenced to imprisonment but who have not commenced serving their sentence or have not completed their sentence and have fled abroad and subsequently returned to Vietnam must be apprehended to serve their sentence or continue serving their sentence, provided that the statute of limitations for enforcing the judgment as stipulated in Article 46 of the Criminal Code remains valid.

6. To facilitate the Procuracy in fulfilling its functions of supervising compliance with the law in the enforcement of sentences, copies of decisions or documents from the courts, police agencies, and prison wardens related to the enforcement of sentences must be sent to the Procuracy at the same level.

7. The extraction of persons serving a sentence.

The extraction of persons serving a sentence from prisons at the request of the investigation agency, the Procuracy, and the Court must be decided by the head of the prison management agency. According to the current regulations of the Ministry of Interior on the organization of prison management, the extraction of persons serving a sentence from prisons managed by V26 of the Ministry of Interior is decided by the head of V26 of the Ministry of Interior; the extraction of persons serving a sentence from prisons managed by provincial or centrally-administered city public security agencies is decided by the director of the provincial or centrally-administered city public security agency.

In the case where, after receiving the request document from the investigating agency, the prosecution agency, or the court regarding the extraction of a person serving a custodial sentence, those persons with the authority to decide on such extraction find that the person serving the custodial sentence has been transferred to another prison not under their management, then those persons shall be responsible for transferring the request document of the investigating agency, the prosecution agency, or the court to the management agency of the prison where the convicted person is serving the custodial sentence for them to decide on the extraction of the person serving the custodial sentence within their jurisdiction.

8. This Circular takes effect from the date of issuance.

The enforcement of custodial sentences in the Military is carried out by organizations within the Military and in accordance with specific guidelines of the Ministry of National Defense.

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