Circular No. 06/1998/TT-BCA guiding the implementation of certain provisions of the Administrative Surveillance Regulation issued together with Decree No. 31/CP dated April 14, 1997 of the Government.

CIRCULAR

Guidelines for implementing certain provisions of the Administrative Probation Regulation issued

together with Decree No. 31/CP dated April 14, 1997 of the Government.

__________________________________

On April 14, 1997, the Government issued the Administrative Probation Regulation attached to Decree No. 31/CP. To ensure consistent implementation, the Ministry of Public Security provides guidance on the following points:

1. Regarding the subjects of administrative probation

According to Article 2 of the Administrative Probation Regulation, the subjects of administrative probation must meet the following conditions:

a) They must have committed acts that infringe upon national security as defined in Chapter I, Part on crimes of the Criminal Code but not to the extent of being prosecuted criminally.

Determining individuals who have committed acts that infringe upon national security but not to the extent of being prosecuted criminally for the application of administrative probation measures must be considered objectively and comprehensively; accurately assessing the nature and severity of such violations as administrative offenses. The assessment also depends on the nature and consequences caused by the violation, the motive and purpose when committing the act, the background of the violator, as well as the political, economic, social situation and political requirements of the locality at the time of the national security infringement. In cases where it is difficult to determine whether it is a crime or an administrative offense, discussions and consensus should be reached between the Police Agency, the Office of the Prosecutor, and the Court.

b) They must be at least 18 years old.

Determining age must be based on the birth certificate; if there is no birth certificate, it must be based on the household registration book, Identity Card, or personal history and other documents certified by the local authority. Only individuals aged 18 or older can be subject to administrative probation. The age determination point is the date of the administrative probation decision.

2. Regarding the duration of administrative probation.

According to Article 1 of the Regulation, the duration of administrative probation ranges from six months to two years; the duration of administrative probation must be recorded in the administrative probation decision.

Depending on the nature, severity of the violation, and the background of the individual requiring the application of administrative probation measures, the Chairman of the Provincial People's Committee shall consider and decide on the appropriate duration of administrative probation for each specific individual. The duration of administrative probation starts from the day the person under administrative probation reports to the People's Committee office of the commune where they are executing the administrative probation decision.

3. Place of execution of the administrative probation decision

According to Article 4 of the Regulation, the administrative probation decision is executed at the place of residence of the person under administrative probation.

If the place of residence of the person under administrative probation is in important areas concerning politics, economy, security, defense, or places where the person may have opportunities to continue committing acts that infringe upon national security, the execution of the decision may be carried out in another commune, ward, town within the same district, city under province, or in another district but still within the province or centrally-administered city. To implement the directive of the Chairman of the Provincial People's Committee as stipulated in Article 11 of the Regulation, while creating favorable conditions for the person under administrative probation to execute the decision smoothly, the Standing Advisory Council has the responsibility to exchange and reach consensus with the District People's Committee and Commune People's Committee proposing to put the person under administrative probation and the District People's Committee and Commune People's Committee where the person will go to execute the decision before submitting a report to the Provincial People's Committee to issue the decision. The police agency has the responsibility to assist the same-level People's Committee in implementing the administrative probation decision of the Chairman of the Provincial People's Committee. Upon completion of the probation period, the person under administrative probation returns to their original place of residence.

4. Preparing the proposal for administrative probation

The proposal for administrative probation is prepared by the Chairman of the District People's Committee where the individual requiring the application of administrative probation measures resides. The District Police, assisting the Chairman of the same-level People's Committee in preparing the file, directs the Commune Police and coordinates with the Commune People's Committee where the individual resides in collecting necessary documents. The content of the proposal for administrative probation must include the documents prescribed in Article 6 of the Administrative Probation Regulation. Attention should be paid to documents reflecting the violation of laws by the individual, especially those reflecting the actual situation and having evidentiary value, serving as the basis for concluding about the act of infringing upon national security of the individual requiring administrative probation measures.

5. Reviewing and deciding on administrative probation

When reviewing and deciding on administrative probation, the provisions of Articles 8 to 12 of the Regulation must be strictly followed, and the following additional points should be noted:

a) The Advisory Council is established by the Chairman of the Provincial People's Committee, and members of the Advisory Council work on a part-time basis.

b) The Advisory Council operates on a collective basis. The Standing Advisory Council chairs the meetings of the Council. The Council must carefully examine each case of administrative probation, and each member of the Council must express their views on each proposed administrative probation case, then vote. In cases where further verification and clarification of the file of the individual requiring administrative probation are needed before concluding, the Council discusses the resolution method and the meeting may be postponed. After clarifying the documents in the file, the Standing Advisory Council must organize another meeting, but not later than 30 days from the previous meeting. Meetings of the Advisory Council must be recorded in minutes.

c) The Standing Advisory Council is undertaken by a representative of the leadership of the Provincial Police Agency (Director or Deputy Director in charge of security). The Standing Advisory Council is responsible for preparing materials for the meeting of the Council and sending them to the members of the Council and the Provincial People's Procuracy at least seven days before the meeting; organizing the venue, time, and location of the meeting, recording the minutes of the meeting, and representing the Council in preparing documents to submit to the Chairman of the Provincial People's Committee.

d) Within ten days from the date of receipt of the administrative supervision proposal document of the Advisory Board (in case the Advisory Board and the Prosecutor's Office have conflicting opinions, they must attach the minutes reflecting the meeting's opinions to the Chairman of the Provincial People's Committee), the Chairman of the Provincial People's Committee must examine and issue a decision or not issue an administrative supervision decision. The administrative supervision decision shall be in the format prescribed by the Ministry of Public Security and must include all contents as stipulated in Article 11 of the Administrative Supervision Regulation.

6. Reduction of the term of administrative supervision.

A person under administrative supervision may be considered for a reduction in the term of administrative supervision by the Chairman of the Provincial People's Committee if they meet the conditions specified in Article 13 of the Administrative Supervision Regulation and there is a recommendation from the Chairman of the District People's Committee where the person under administrative supervision is implementing the administrative supervision decision.

A person under administrative supervision must submit a request to reduce the term of administrative supervision to the Chairman of the Provincial People's Committee. Based on the request of the person under administrative supervision, the Head of the Police Department at the district level has the responsibility to assist the Chairman of the same-level People's Committee in examining and providing comments on the compliance with laws or the achievements made by the person under administrative supervision during the implementation of the administrative supervision decision, while the Chairman of the District People's Committee makes a report recommending the examination and decision by the Chairman of the Provincial People's Committee.

Depending on the progress or achievements and the remaining term of the administrative supervision decision, the Chairman of the Provincial People's Committee will consider and decide on the reduction period for each specific case. Those who are granted reductions from the second time onwards must show genuine progress or new achievements compared to the previous reduction, but the total reduction period cannot exceed one-third of the original administrative supervision term.

The decision to reduce the term of administrative supervision must be sent to the person under administrative supervision, the District People's Committee, the same-level police agency, and the commune People's Committee where the person under administrative supervision is implementing the administrative supervision decision.

7. Issuing permits for persons under administrative supervision to leave the place where the administrative supervision decision is being implemented.

The model of the permit issued to persons under administrative supervision to leave the place where the administrative supervision decision is being implemented is prescribed by the Ministry of Public Security.

The issuance of permits for persons under administrative supervision to leave the place where the administrative supervision decision is being implemented must comply with the provisions of Article 17 of the Administrative Supervision Regulation and should pay attention to:

a) Permits shall only be issued when the person under administrative supervision submits a request clearly stating legitimate reasons such as visiting seriously ill relatives, dealing with floods or fires in their family, or attending funerals. The police agency is responsible for reviewing and reporting to the Chairman of the same-level People's Committee regarding the issuance of permits to persons under administrative supervision.

b) For cases where persons under administrative supervision must attend a designated place daily for study, work, or medical treatment, the Chairman of the People's Committee with the authority as mentioned above may issue monthly permits based on the application and confirmation from the place where the person under administrative supervision studies, works, or receives medical treatment.

8. Issuing certificates confirming completion of the administrative supervision decision.

The issuance of certificates confirming completion of the administrative supervision decision must be carried out in accordance with the provisions of Article 84 of the Law on Handling Administrative Violations and Article 26 of the Administrative Supervision Regulation. Upon expiration of the administrative supervision term, the Commune People's Committee must issue a certificate to the person under administrative supervision. The certificate confirming completion of the administrative supervision decision shall be in a unified format prescribed by the Ministry of Public Security.

9. Implementation organization.

a) This Circular takes effect fifteen days after the date of signature; all previous regulations of the Ministry of Interior (now the Ministry of Public Security) on administrative supervision that conflict with this Circular are abolished.

b) The Provincial People's Committee directs relevant sectors and lower-level People's Committees to implement the legal provisions on administrative supervision.

c) The National Security General Bureau leads and coordinates with the Police General Bureau and the Legal Affairs Department to direct and urge local police agencies to properly implement legal provisions on administrative supervision; assists the Minister in monitoring, summarizing the situation, and reporting to the Government on the implementation of legal provisions on administrative supervision; assists the Minister in resolving complaints about administrative supervision according to the Law on Handling Administrative Violations.

d) The Investigation Security Department leads and coordinates with related departments to assist the provincial-level public security leadership in fulfilling the standing responsibilities of the Advisory Board; summarizes the situation and reports on the implementation of legal provisions on administrative supervision to the Provincial People's Committee and the Ministry of Public Security.

e) The district-level public security agency is responsible for monitoring, summarizing the situation, assisting the same-level People's Committee in preparing reports every six months to send to the Provincial People's Committee and the provincial-level public security agency regarding the implementation of administrative supervision in the locality, and retaining administrative supervision files.

g) The commune-level public security agency is responsible for assisting the same-level People's Committee in monitoring, managing, and educating persons under administrative supervision in the locality, preparing reports every three months to send to the People's Committee and the district-level public security agency regarding the implementation of administrative supervision in the locality.

h) During the implementation process, if there are any difficulties, units and localities need to report to the Ministry (through V19) for timely guidance.