Joint Circular No. 04/2013/TTLT-BCA-BQP-TANDTC-VKSNDTC guiding the extraction of prisoners to serve investigation, prosecution, trial, or enforcement

JOINT CIRCULAR

HGuidelines for extracting prisoners

to serve investigation, prosecution, and trial

____________

To implement correctly the provisions of the Criminal Execution Law regarding the extraction of prisoners from prisons, detention centers, and temporary holding facilities to serve investigation, prosecution, and trial purposes, the Ministry of Public Security, the Ministry of National Defense, the Supreme People's Court, and the Supreme People's Procuracy issue this Joint Circular guiding the implementation of prisoner extraction to serve investigation, prosecution, and trial purposes as follows:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Joint Circular guides the implementation of the provisions on extracting prisoners from prisons, detention centers, and temporary holding facilities to serve investigation, prosecution, and trial purposes, and the detention and management system for prisoners during the extraction period.

Article 2. Applicability

1. Investigative agencies, investigative personnel, criminal execution management agencies, criminal execution agencies at all levels, prisons, detention centers, temporary holding facilities, and organizations and individuals related to prisoner extraction activities.

2. Prisoners currently serving their sentences in prisons, detention centers, or temporary holding facilities; persons sentenced to imprisonment whose judgments have taken legal effect and who are being held in detention centers or temporary holding facilities pending execution of the judgment (hereinafter referred to collectively as prisoners).

Article 3. Principles of prisoner extraction

1. Prisoner extraction can only be carried out when there is a written order for extraction issued by a competent authority; the extraction must be conducted with the correct person, within the time limit specified in the extraction order, and in accordance with the provisions of the Criminal Execution Law and the guidance provided in this Joint Circular.

2. The escorting, management, detention, and treatment policies for prisoners during the extraction period must be implemented strictly in accordance with the provisions of the Criminal Execution Law, the guidance provided in this Circular, and other relevant laws.

Chapter II

PROCEDURES FOR EXTRACTION, AUTHORITY TO ISSUE EXTRACTION ORDERS,

HANDOVER AND MANAGEMENT REGIMES FOR EXTRACTED PRISONERS

Article 4. Sending a request for extraction

1. Investigative agencies and investigative personnel under the Ministry of Public Security, the Ministry of National Defense, and the Supreme People's Procuracy, when requesting prisoner extraction to serve investigation and prosecution purposes, shall carry out the submission of written requests for prisoner extraction as follows:

a) In cases where the prisoner is housed in a prison or detention center managed by the Ministry of Public Security or the Ministry of National Defense, a written request for extraction must be sent to the head of the criminal execution management agency under the Ministry of Public Security or the Ministry of National Defense;

b) In cases where the prisoner is housed in a detention center managed by the provincial public security agency; or a prisoner directly managed by the criminal execution agency of the county-level public security agency, a written request for extraction must be sent to the head of the criminal execution agency of the provincial public security agency managing that detention center or temporary holding facility;

c) In cases where the prisoner is housed in a prison or detention center managed by a military region or equivalent level (referred to collectively as a military region), a written request for extraction must be sent to the head of the criminal execution agency of the military region managing that prison or detention center.

2. Agencies and investigative personnel under the Supreme People's Court and the Central Military Court, when requesting prisoner extraction to serve appellate, supervisory, and retrial purposes, shall send a written request for extraction to the criminal execution agency of the provincial public security agency or military region where the initial trial was conducted to issue an extraction order or propose issuance of such an order.

3. Agencies and investigative personnel under the provincial and county-level public security agencies, people's procuracies, and courts, when requesting prisoner extraction to serve investigation, prosecution, and trial purposes, shall send a written request for extraction to the head of the criminal execution agency of the same-level public security agency where the requesting agency has its headquarters to issue an extraction order or propose issuance of such an order.

4. Agencies and investigative personnel under military regions, regional investigative agencies, and investigative personnel, when requesting prisoner extraction, shall send a written request to the head of the criminal execution agency of the military region where the requesting agency has its headquarters to issue an extraction order or propose issuance of such an order.

5. The written request for issuance of an extraction order shall include the following contents:

a) Name of the requesting agency;

b) Full name, date of birth, place of permanent residence of the prisoner;

c) Date of arrest, offense, length of imprisonment sentence according to judgment number, date, month, year, of the court;

d) Enforcement decision number, date, month, year of the court;

đ) Place of detention, serving the sentence;

e) Purpose of extraction, extraction period, escorting unit, and place of detention after receiving the extracted prisoner, signature and seal of the authorized person of the requesting agency.

The written request for issuance of an extraction order must be accompanied by the written request for extraction from the agency or investigative personnel.

Article 5. Authority to issue orders for extraction, request issuance of orders for extraction of prisoners

1. The head of the criminal enforcement management agency under the Ministry of Public Security shall issue orders for extraction of prisoners in detention centers and temporary detention facilities managed by the Ministry of Public Security.

2. The head of the criminal enforcement management agency under the Ministry of National Defense shall issue orders for extraction of prisoners in detention centers and temporary detention facilities managed by the Ministry of National Defense.

3. The head of the criminal enforcement agency at the provincial level public security organ shall issue orders for extraction or request issuance of orders for extraction as follows:

a) Issue orders for extraction of prisoners in temporary detention facilities and holding houses managed by their own locality;

b) Request the head of the criminal enforcement management agency under the Ministry of Public Security or the Ministry of National Defense to issue orders for extraction of prisoners in detention centers and temporary detention facilities managed by the Ministry of Public Security or the Ministry of National Defense;

c) Request the head of the criminal enforcement agency at the provincial level public security organ in another locality to issue orders for extraction of prisoners being held in temporary detention facilities and holding houses managed by the public security organ of that locality;

d) Request the head of the criminal enforcement agency at the military region level to issue orders for extraction of prisoners in detention centers and temporary detention facilities managed by the military region.

4. The head of the criminal enforcement agency at the military region level shall issue orders for extraction or request issuance of orders for extraction as follows:

a) Issue orders for extraction of prisoners in detention centers and temporary detention facilities managed by the military region;

b) Request the head of the criminal enforcement management agency under the Ministry of Public Security or the Ministry of National Defense to issue orders for extraction of prisoners in detention centers and temporary detention facilities managed by the Ministry of Public Security or the Ministry of National Defense;

c) Request the head of the criminal enforcement agency at the provincial level public security organ to issue orders for extraction of prisoners in temporary detention facilities and holding houses managed by the public security organ of that locality;

d) Request the head of the criminal enforcement agency at the military region level in another military region to issue orders for extraction of prisoners in detention centers and temporary detention facilities managed by that military region.

Article 6. Time limit for extraction, extension of time limit for extraction of prisoners

1. Investigative agencies, investigative personnel shall base on investigation, prosecution, and trial requirements to propose time limits for extraction and extension of time limits for extraction. The time limit for extraction and the time limit for extension of extraction shall not exceed the remaining time for serving the prison sentence of the prisoner to be extracted.

The time limit for extraction and the time limit for extension of extraction shall be included in the time limit for serving the prison sentence, except in cases where the prisoner escapes from the place of detention during the period of extraction.

2. In cases where the time limit for extraction has expired but it is deemed necessary to extend the time limit for extraction, the agency receiving the prisoner to be extracted must send a request for extension of extraction to the agency that issued the extraction order at least seven days before the expiration of the extraction time limit. The document requesting the extension of extraction of the prisoner must clearly state the reasons for the extension and the time limit for the extension of extraction.

3. Within three working days from the date of receipt of the document requesting extraction or requesting extension of extraction of the prisoner, the competent authority must issue an order for extraction or an order for extension of extraction. The order for extraction and the order for extension of extraction must be sent to the place of delivery, the place of reception of the prisoner to be extracted, and the criminal enforcement management agency under the Ministry of Public Security and the Ministry of National Defense for monitoring.

4. In cases where the court with jurisdiction revokes the judgment or decision of the court that has taken legal effect for investigation or retrial of the prisoner to be extracted during the extraction period, the agency receiving the extracted prisoner shall not make a request for extension of extraction but shall implement the detention and management of the extracted prisoner according to the regulations of the law applicable to suspects, defendants, and persons temporarily detained or held. In cases where the court retries and sentences that person to imprisonment, and after the execution of the imprisonment sentence decision, the agency receiving the extracted prisoner shall proceed with the procedures to request the transfer of the convicted person to serve the sentence according to Article 22 of the Criminal Enforcement Law.

Article 7. Returning the prisoner who has been extracted

Upon expiration of the period specified in the extraction order, the extended extraction order, or during the extraction period and the extended extraction period, but there is no longer a need for extraction, the agency receiving the extracted prisoner shall act as follows:

1. Notify the Criminal Enforcement Management Agency under the Ministry of Public Security, the Ministry of National Defense, the Criminal Enforcement Agency of the provincial public security organs, and the military region where the extraction order was issued and deliver the extracted prisoner along with related documents to the prison, temporary detention center, or criminal enforcement agency of the county-level public security organ that had previously handed over the prisoner before extraction.

2. In cases where the extracted prisoner is extracted for trial under another judgment, when such judgment becomes legally effective, the sentence is consolidated, and a decision on enforcement is made, the agency receiving the extracted prisoner must notify the Criminal Enforcement Management Agency under the Ministry of Public Security, the Ministry of National Defense, the Criminal Enforcement Agency of the provincial public security organs, and the military region where the extraction order was issued and deliver the extracted prisoner along with related documents to the prison, temporary detention center, or criminal enforcement agency of the county-level public security organ that had previously handed over the prisoner before extraction.

3. In cases where the extracted prisoner is extracted from a temporary detention center or holding facility and, after being tried under another judgment, does not fall within the category of persons serving temporary detention or holding according to Clause 2, Article 171 of the Criminal Enforcement Law, the agency receiving the extracted prisoner must report to the Criminal Enforcement Management Agency under the Ministry of Public Security, the Ministry of National Defense to issue a decision to transfer the prisoner to a prison to serve the sentence. The agency receiving the extracted prisoner must inform the agency that had previously handed over the extracted prisoner about the transfer of the prisoner to the prison to serve the sentence.

4. Within five working days from the date of expiration of the extraction period or the extended extraction period, if the agency that had previously handed over the extracted prisoner does not receive the prisoner, the extended extraction order, or notification that the prisoner has been transferred to another place to serve the sentence, then the agency that had previously handed over the extracted prisoner has the responsibility to notify the agency that received the prisoner and the agency that issued the extraction order to request the return of the prisoner or to send the extended extraction order.

Article 8. Issuing a certificate of completion of imprisonment for the extracted prisoner

1. Two months before the extracted prisoner completes the term of imprisonment (the judgment the prisoner is currently serving), the prison or temporary detention center under the Ministry of Public Security, the Ministry of National Defense, or the criminal enforcement agency of the provincial public security organ, or the military region where the extracted prisoner was handed over must notify the date the prisoner will complete the term of imprisonment according to Clause 1, Article 40 of the Criminal Enforcement Law. On the last day of the term of imprisonment, the prison or temporary detention center under the Ministry of Public Security, the Ministry of National Defense, or the criminal enforcement agency of the provincial public security organ, or the military region where the extracted prisoner was handed over must issue a certificate of completion of imprisonment to the extracted person and notify the agency receiving the extracted person and relevant agencies. The agency receiving the extracted person has the responsibility to immediately release that person according to Article 40 of the Criminal Enforcement Law.

2. In cases where the extracted prisoner is temporarily detained for investigation, prosecution, or trial for another crime, and the term of imprisonment has expired, the prison or temporary detention center under the Ministry of Public Security, the Ministry of National Defense, or the criminal enforcement agency of the provincial public security organ, or the military region where the extracted prisoner was handed over must issue a certificate of completion of imprisonment and send it to the agency that issued the extraction order, the agency receiving the extracted prisoner, and other agencies as stipulated in Clause 6, Article 40 of the Criminal Enforcement Law. After the new judgment becomes legally effective and a decision on enforcement is made, the agency receiving and managing the extracted prisoner does not hand over the prisoner to the agency that had previously handed over the extracted prisoner but must proceed with the procedure to request the Criminal Enforcement Management Agency under the Ministry of Public Security, the Ministry of National Defense to issue a decision to transfer the prisoner to serve the sentence.

Article 9. Procedures for the handover and escort of extracted convicts

1. After receiving the order to extract a convict, the agency responsible for escorting the extracted convict must dispatch an officer carrying an introduction letter, People's Public Security Identity Card, Investigator's Card, Officer Identity Card, or Non-Commissioned Officer Identity Card (for officers and soldiers under the Ministry of National Defense), along with the extraction order to receive and escort the convict; if the extraction order is sent via confidential mail, it must be confirmed (signed and stamped) by the head of the agency receiving the document via confidential mail.

2. The warden of the detention center or temporary detention facility, and the head of the criminal enforcement agency at the county-level public security agency shall be responsible for inspecting, preparing a record of the handover and receipt, registering, and transferring the convict together with any money or property held in custody (if any) to the agency receiving and escorting the extracted convict.

3. In cases where the convict named in the extraction order is seriously ill, has escaped, died, had their sentence temporarily suspended, been transferred to another location, or been released according to the decision of an authorized person, and the handover and receipt of the convict cannot be carried out as per the extraction order, the agency implementing the extraction order must immediately notify in writing the agency requesting the extraction, the agency proposing the extraction order, and the agency issuing the extraction order.

4. When handing over the extracted convict to the detention center, temporary detention facility, or county-level criminal enforcement agency to continue serving the prison sentence, there must be a review of the results of compliance with the detention center rules and regulations, temporary holding house rules, and related documents during the extraction period.

5. The reception of the extracted convict to the detention center, temporary detention facility, or temporary holding house to continue serving the sentence shall be implemented in accordance with Article 26 of the Criminal Enforcement Law.

Article 10. Detention and management regime for extracted convicts

The detention and management regime for extracted convicts shall be implemented in accordance with the provisions of the Criminal Enforcement Law; in cases where the extracted convict is a suspect or defendant in a case currently under investigation, prosecution, or trial, the detention and management regime shall be implemented in accordance with the laws on temporary detention and pre-trial detention.

Chapter III

IMPLEMENTATION

Article 11. Effective Date

This Circular takes effect from July 15, 2013.

Any previous guidance from the Ministry of Public Security, the Ministry of National Defense, the Supreme People's Court, and the Supreme People's Procuracy that conflicts with this Joint Circular are hereby abolished.

Article 12. Responsibility for Implementation

Agencies, organizations, and individuals responsible within the Ministry of Public Security, the Ministry of National Defense, the People's Courts, Military Courts, the People's Procuracies, and Military Procuracies are responsible for implementing and organizing the implementation of this Joint Circular.

During the implementation of this Joint Circular, if any difficulties arise, agencies and units shall report to the Ministry of Public Security, the Ministry of National Defense, the Supreme People's Court, and the Supreme People's Procuracy for timely guidance.