Circular No. 07/1998/TT-BCA guiding the implementation of certain provisions of the Regulation on educational facilities issued together with Decree No. 32/CP dated April 14, 1997 of the Government.

CIRCULAR

Guidelines for Implementing Certain Provisions of the Regulation on Educational Facilities Issued Together with Decree No. 32/CP dated April 14, 1997 of the Government

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To ensure compliance with legal provisions regarding the placement of individuals in educational facilities, the Ministry of Public Security provides guidelines for implementing certain fundamental issues of the Regulation on Educational Facilities issued together with Decree No. 32/CP dated April 14, 1997 of the Government as follows:

1. Regarding the subjects to be placed in educational facilities (hereinafter referred to as EFS).

Article 2 of the Regulation on EFS stipulates that "Subjects to be placed in EFS include those who have committed acts violating the law that infringe upon state assets, economic organizations' assets, social organizations' assets, foreign organizations' assets, citizens' health, honor, and dignity, foreigners' health, honor, and dignity, and violate public order and social safety regularly but not to the extent of criminal prosecution, and have been educated multiple times by local authorities and the people without showing improvement."

Individuals under 18 years old, women over 55 years old, and men over 60 years old shall not be placed in EFS."

To ensure the correct placement of subjects in EFS, the following conditions must be noted during implementation:

a) The act of violating the law must be "not to the extent of criminal prosecution." Therefore, during implementation, competent agencies need to thoroughly understand the provisions of criminal law and administrative law to clearly distinguish between criminal acts and administrative violations. They must base their decision on the nature and severity of the violation, the background of the violator, and the practical requirements of the political and social situation at the local level to apply appropriate and lawful measures. Absolutely, individuals whose acts of violating the law have reached the extent of criminal prosecution and do not fall within the category of subjects to be placed in EFS should not be placed in EFS.

b) The act of violating the law must be "regular" and "have been educated multiple times by local authorities and the people without showing improvement."

- Regular violations refer to cases where there are at least two violations or more within a year.

- "Have been educated multiple times by local authorities and the people without showing improvement" includes:

+ Having been subject to community education measures at commune, ward, town level according to Decree No. 19/CP dated April 6, 1996 of the Government or having been discovered, documented, and educated by the People's Committee, public security agency through warnings, criticism before the public or mass organizations at least twice or more within a year.

+ Being subject to community education measures at commune, ward, town level but committing further violations as stipulated in Article 2 of the Regulation on EFS.

It is necessary to note that the period for calculating the number of violations and being educated multiple times must be based on the provisions of Article 10 of the Administrative Violation Handling Law.

c) Regarding the age for placing individuals in EFS as stipulated in Article 2 of the Regulation: "Individuals under 18 years old, women over 55 years old, and men over 60 years old shall not be placed in EFS." When determining the age of the subject to be placed in EFS, the following points should be noted:

- The legal basis for determining the age of the subject is the birth certificate, if there is no birth certificate, then the household registration book or identity card must be used. If there is no household registration book or identity card, then the personal history and other documents confirmed by the People's Committee at the commune level must be used.

- The date for calculating age is the date of the decision to place them in EFS. Therefore, if someone commits a violation of the law and falls within the category requiring a file to be placed in EFS, but on the date of the decision to place them in EFS, they are over 55 years old for women or over 60 years old for men, they shall not be decided to be placed in EFS. In this case, a decision to apply community education measures at commune, ward, town level will be proposed to the Chairman of the People's Committee at the commune level.

2. Regarding the procedures for placing individuals in EFS "For individuals currently detained or held in custody in criminal cases, if after investigation it is found that they do not reach the extent of criminal prosecution but belong to the category subject to placement in EFS, the Head of the Investigative Agency reports to the Chairman of the People's Committee at the same level to establish a file to propose placement in EFS" (Clause 2, Article 6 of the Regulation on EFS). To comply with the above regulations, the following points should be noted:

- First, the individual must belong to the category subject to placement in EFS as stipulated in Article 2 of the Regulation on EFS, therefore, there must be complete files and evidence to prove that the individual has committed regular acts of violating the law but not reaching the extent of criminal prosecution, and have been educated multiple times by local authorities and the people without showing improvement as guided in point b, clause 1 above.

- Second, during the investigation of the case, if it is determined that the act is clearly not reaching the extent of criminal prosecution, but the subject belongs to the category for placement in EFS, then within the detention period, the Investigative Agency must proactively gather sufficient materials and evidence to report to the Chairman of the People's Committee at the same level to establish a file to propose or review the placement of the subject in EFS. It is not allowed to wait until the detention period ends to establish a file for placement in EFS, while also notifying the People's Committee at the commune level where the individual resides to coordinate in handling.

+ If the subject is investigated by the provincial police, the file is transferred to the People's Committee at the provincial level for the Advisory Council to review and submit to the Chairman of the People's Committee at the provincial level for a decision.

+ If the subject is investigated by the district police, the file is transferred to the People's Committee at the district level to submit to the People's Committee at the provincial level.

- Third, the file proposing the placement of individuals in EFS must be implemented in accordance with Clause 3, Article 6 of the Regulation on EFS, including: Summary of personal history, documents about the individual's violations of the law, applied educational measures, comments from the public security agency, opinions from relevant social organizations at the grassroots level.

3. Regarding the file for placing individuals in EFS.

According to Article 10 of the Regulation on EFS, when placing individuals in EFS, the following files must accompany:

- Decision to place individuals in EFS;

- Summary of the individual's acts of violating the law who are proposed to be placed in EFS;

- A summary of the personal history of the person to whom the measure of placement in a correctional facility is applied;

- A physical description of the person to whom the measure of placement in a correctional facility is applied;

- Other relevant documents concerning the personal background of the person to whom the measure of placement in a correctional facility is applied, necessary for educating that person (if any).

Regarding the summary of the violation of laws by the person proposed for placement in a correctional facility, it must be recorded specifically and fully with details about the process, development, nature, degree... of the violation to serve as a basis for applying appropriate management and educational measures suitable for the individual upon entry into the correctional facility; it should not be overly summarized or too brief, which would cause difficulties in educating and reforming the individual within the correctional facility.

Other relevant documents concerning the personal background of the person to whom the measure of placement in a correctional facility is applied, necessary for educating that person (if any), are documents proving good personal history, outstanding achievements (awards, certificates of medals, etc.) or conversely, such as when the individual resists the decision to place them in a correctional facility or escapes (in these cases, records of resistance behavior, enforcement orders, etc., are considered "other relevant documents" as mentioned).

When receiving a person to whom the measure of placement in a correctional facility is applied, the regulations at Clause 2, Article 10 of the Regulation on Correctional Facilities must be strictly followed.

4. The organization of placing individuals into correctional facilities.

Within five days from the date of receipt of the decision of the Chairman of the Provincial People's Committee to place into a correctional facility, the provincial police agency shall be responsible for organizing the placement of that person into the correctional facility. In cases where time is needed to complete necessary procedures such as fingerprinting, photographing, creating a physical description, waiting for placement into the correctional facility, the Director of the provincial police agency shall issue a decision to detain the person who has been decided to be placed into a correctional facility at the administrative detention location of the provincial police agency. The detention period shall not exceed fifteen days and shall be counted towards the execution period of the decision at the correctional facility. This decision shall be attached to the file for placement into the correctional facility to serve as the basis for calculating the execution period of the decision at the correctional facility for that person.

The food and accommodation conditions of persons detained during the detention period shall be treated the same as those of inmates in correctional facilities. The provincial people's committee shall be responsible for providing food money for these individuals. To address temporary difficulties in places without administrative detention locations, the police agencies of provinces and centrally governed cities must allocate some rooms in temporary detention centers as administrative detention locations for persons with decisions to be placed into correctional facilities. There must be a sign "administrative detention room" at the entrance to distinguish it from pre-trial detention. Male and female individuals shall not be detained in the same room.

The provincial police agency must immediately develop plans and propose to the provincial people's committee to provide funding and locations for building temporary detention and administrative detention facilities.

5. The suspension of the execution of the decision to place into a correctional facility.

According to Article 71 of the Ordinance on Handling Administrative Violations, the person to whom the measure of placement in a correctional facility is applied may have their decision suspended if they meet one of the following reasons:

a) Seriously ill or suffering from a life-threatening disease, as certified by a hospital at district level or higher.

- "Seriously ill" refers to a person being in a condition where they are severely ill to the point of being unable to work or live normally, or are in a critical condition endangering their life, and according to the doctor's recommendation, requires long-term treatment before recovery.

- "Life-threatening disease" refers to a person suffering from one of the diseases that seriously endanger their life, such as cancer, polio, cirrhosis, leprosy, severe tuberculosis, HIV/AIDS, or other diseases recognized by the health sector as life-threatening.

b) Pregnant women with a certificate from a hospital at district level or higher, or women nursing a child under twelve months old.

c) Families facing extraordinary difficulties, with a request letter confirmed by the People's Committee of the commune where the person resides. These include situations where the person is the sole breadwinner to ensure family livelihood, families affected by natural disasters, major fires, or have relatives seriously ill or suffering from life-threatening diseases, and there is no one else to handle the aftermath of natural disasters or fires or care for the sick.

Regarding the suspension period: For cases of serious illness, life-threatening diseases, or extraordinary family difficulties, they can be granted a suspension until they recover from their illness or disease, or the family difficulty ends. At the same time, regular checks and supervision must be conducted; if the conditions for suspension no longer exist, they must be promptly placed into the correctional facility to execute the decision. For pregnant women or those nursing a child, the specific suspension period will be determined based on each case (according to the hospital certificate or birth certificate).

When the conditions for suspension no longer exist, the decision to place into a correctional facility shall continue to be executed. The person to whom the measure of placement in a correctional facility is applied must voluntarily report to the police agency to be taken to execute the decision. If they do not voluntarily report, they will be forcibly executed, and if they escape, the Director of the provincial police agency will issue an arrest warrant according to Article 12 of the Regulation on Correctional Facilities.

6. The exemption from executing the decision to place into a correctional facility.

Clause 2, Article 71 of the Ordinance on Handling Administrative Violations stipulates: "If during the suspension period, the person shows significant progress in complying with the law or has performed meritorious acts, they may be exempted from executing the decision." To implement these provisions correctly, the following points should be noted:

- "Showing significant progress in complying with the law" must be demonstrated through concrete actions such as: sincerely repenting, actively working and studying, actively participating in local community movements, strictly adhering to the Party's policies and state laws, and being confirmed and recommended by the People's Committee at commune level or higher.

- Only be considered as having "performed meritorious service" when there are specific actions such as: reporting criminal acts with particularly serious nature, courageously saving other people's lives, rescuing state, collective, or citizen's valuable assets; achieving outstanding results in mass movements for national security protection and being awarded a certificate of merit by the People's Committee at district level or higher or the Public Security Agency; proposing significant technological improvements recognized by competent authorities at provincial level or higher.

Only be eligible for suspension or exemption from execution of the decision to place in administrative detention when the suspended period must be at least half of the total time they would have served in administrative detention. In cases of "performing meritorious service," early consideration may be granted.

7. Procedures for suspending or exempting from execution of the decision to place in administrative detention.

When the person subject to administrative detention falls within the category eligible for suspension or exemption from execution of the decision, the Chairman of the Commune People's Committee or the Head of the Public Security Agency at the county level who has established the file for placing individuals under administrative detention as stipulated in Clause 1 and 2, Article 6 of the Administrative Detention Regulation must prepare a written request to report to the Chairman of the County People's Committee. According to Clause 4, Article 9 of the Administrative Detention Regulation, within five days, the Chairman of the County People's Committee must review the request and submit it to the Chairman of the Provincial People's Committee for decision. Within ten days from receiving the request from the County People's Committee, the Chairman of the Provincial People's Committee must review and decide on the suspension or exemption from execution of the decision. For cases where the individual is discovered and reported by the Provincial Public Security Agency, if eligible for suspension or exemption, the Provincial Public Security Agency will report to the Chairman of the Provincial People's Committee for decision.

8. On the application of coercive measures.

For persons subject to administrative detention, Article 11 of the Administrative Detention Regulation stipulates: "If a person subject to administrative detention does not voluntarily comply or evades, resists, the Public Security Agency shall apply necessary preventive measures and coercive measures as prescribed by law to compel them to execute." Therefore, for the aforementioned cases, if persuasion is ineffective, depending on the specific circumstances, the Provincial Public Security Agency will forcibly escort them into administrative detention or administrative custody location (if necessary, they can be handcuffed during escort to compel compliance with the decision). If a person subject to administrative detention escapes before the decision is executed, the Provincial Public Security Director will issue an order to arrest them according to Article 12 of the Administrative Detention Regulation.

If a person with an administrative warrant commits a crime during their escape period and is sentenced to imprisonment by the court, the agency that issued the administrative warrant will issue a decision to suspend the warrant and report to the Chairman of the Provincial People's Committee or the Minister of Public Security (if the fugitive is a detainee) to suspend the execution of the administrative detention decision so that they can serve their prison sentence.

9. Allocation of responsibilities in reviewing, establishing files for consideration, and organizing placement in administrative detention.

The Deputy Director of Public Security in charge of police serves as the permanent member of the Advisory Council. The Criminal Police force leads the coordination with investigative police and related units to assist public security leaders at all levels in reviewing, establishing files for placement in administrative detention, preparing the Advisory Council meeting, sending copies of the administrative detention recommendation from the County People's Committee and a summary of the violation behavior of the subject to Advisory Council members and the Prosecutor's Office at least seven days before the meeting, proposing suspension or exemption from execution of the decision, leading the organization of placement in administrative detention, and arresting subjects with administrative warrants.

10. Temporary suspension of execution of the decision to place in administrative detention.

+ Regarding conditions and time for temporary suspension of execution of the decision to place in administrative detention for detainees, follow the provisions of Article 27 of the Administrative Detention Regulation and the guidance provided in Section 5 of this Circular.

+ Regarding the procedure for reviewing the decision for temporary suspension: The Director of the Administrative Detention Facility reviews each case individually and establishes a file to send to the Prison Management Department, Educational Institution, and Training School. The file includes:

- Medical records or certified copies of medical records from hospitals at district level or higher;

- A family guarantee letter confirmed by the Commune People's Committee (for cases requesting treatment at home);

- A pregnancy certification from hospitals at district level or higher (for pregnant women);

- Birth certificate (accompanied by confirmation from the Commune People's Committee) or child's birth registration for women nursing children under twelve months old;

- A temporary suspension proposal from the Director of the Administrative Detention Facility (according to a unified model).

Within seven days from receiving the application file, the Director of the Prison Management Department, Educational Institution, and Training School must review and if they meet the criteria and conditions for temporary suspension from execution of the decision to place in administrative detention, they will prepare a report (with attached files from the Administrative Detention Facility) to report to the Minister of Public Security for review and decision.

If the detainee is temporarily suspended for hospital treatment, the detainee's family is responsible for coordinating with the Administrative Detention Facility for management and care. The cost of examination and treatment in this case is funded by the State and directly settled by the Administrative Detention Facility with the hospital. If the family guarantees the detainee's return home for treatment, the family is responsible for management and bears all travel, examination, and treatment costs themselves.

If the person temporarily suspended dies, the family must immediately inform the local People's Committee and the Administrative Detention Facility; the Director of the Administrative Detention Facility will report to the superior management authority and notify the Provincial People's Committee that previously decided to place the person in administrative detention about this matter.

Upon expiration of the temporary suspension period, the person temporarily suspended must return to the Administrative Detention Facility to continue executing the decision; if they do not comply voluntarily, the Director of the Administrative Detention Facility will apply coercive measures to compel them to execute.

If the detainee escapes, the Director of the Administrative Detention Facility will issue an administrative warrant and organize forces to capture and return them to the Administrative Detention Facility.

11. Reduction of the term of execution of the administrative detention measure.

a) A detainee who has served half of the term specified in the decision, if showing clear progress or meritorious conduct, may be considered for a reduction in the term of execution from one to six months. Each person can only be reduced once. If a detainee has already had their term reduced but later shows further meritorious conduct, they may be considered for a second reduction. However, in all cases, the total time reduced cannot exceed one-third of the term stated in the decision to place them in the Correctional Facility.

b) The Correctional Facilities shall establish a Council to consider reductions in the term of execution of decisions, consisting of:

- The Director of the Correctional Facility as the Chairman of the Council;

- The Deputy Director responsible for educational work as the Vice-Chairman of the Council;

- The Team Leader of the Management and Education Team as the Secretary of the Council;

- Staff members responsible for records and management and education of detainees as members.

Based on standards, conditions, and results of study and training of detainees, every three months (except in urgent cases), the Council of the Correctional Facility will convene to review each case and propose reductions in the term of execution of decisions for those meeting the criteria. When the Council convenes, the staff member managing education must present specific details and propose the level of reduction for each individual under their responsibility. Subsequently, the Council will deliberate, decide, and prepare a proposal for reducing the term of execution for the detainee to be sent to the Prison Management Department, Educational Institutions, and Training Schools.

The proposal for reducing the term includes:

- Minutes of the meeting to consider proposals for reducing the term of execution of measures placed in the Correctional Facility;

- Proposals for reducing the term of each detainee;

- List of detainees proposed for consideration of reduction.

These documents must be prepared in three copies (according to a unified model), one copy retained at the Correctional Facility, two copies sent to the Prison Management Department, Educational Institutions, and Training Schools.

c) The Prison Management Department, Educational Institutions, and Training Schools shall establish a Review Council consisting of:

- The Director or Deputy Director authorized to act as the Chairman of the Council;

- The Head of the Department overseeing work at Correctional Facilities and Training Schools as a permanent member;

- The Deputy Head of the Department responsible for work at Correctional Facilities as a member;

- Staff members overseeing the reduction process as members.

- Representatives of the leadership of the Correctional Facility directly report each case before the Council.

The Council bases its review on the proposal files from the Correctional Facility and compares them with the stipulated conditions and standards to approve the reduction levels for each case.

Within seven days of receiving the file from the Correctional Facility, the Prison Management Department, Educational Institutions, and Training Schools must examine and prepare a proposal (including the approved list and the proposal file from the Correctional Facility) to send to the Minister of Public Security for examination and decision.

Upon receipt of the decision to reduce the term, the Director of the Correctional Facility must make a copy or extract of the decision and send it to the People's Committee of the province where the decision was made to place them in the Correctional Facility and the People's Committee of the commune where the person resides, while simultaneously organizing the announcement to inform the detainee. The decision to reduce the term must be kept in the detainee's file for monitoring.

12. Regarding the extraction of detainees.

According to Article 20 of the Regulation on Correctional Facilities, the extraction of detainees for service in investigative, prosecution, and trial work must be based on an extraction order issued by the competent authority. Therefore, when such requests arise, the head of that agency must submit a letter requesting the Director of the Prison Management Department, Educational Institutions, and Training Schools to issue an extraction order for the detainee. In the request letter and the extraction order, the reasons and duration of the extraction must be clearly stated.

If a detainee extracted is ordered to be temporarily detained, the temporary detention period will be counted towards the term of execution at the Correctional Facility. If they are sentenced to imprisonment, the head of the agency that requested the extraction must notify in writing (with the court's decision on the execution of the prison sentence attached) the Director of the Correctional Facility to submit to the Minister of Public Security for a decision to suspend the execution of the decision to place them in the Correctional Facility so that they can serve the prison sentence.

If a detainee extracted is not sentenced to imprisonment by the court, the agency that requested the extraction must organize their return to the Correctional Facility to continue serving the decision to place them there.

13. Handling the case of a deceased detainee.

Pursuant to Article 28 of the Regulation on Correctional Facilities: After completing the prescribed procedures, the Director of the Correctional Facility must issue a death certificate and notify the People's Committee of the province that decided to place the person in the Correctional Facility, the People's Committee of the commune where they previously resided, and the relatives of the deceased. The Director of the Correctional Facility may consider and decide to allow the relatives of the deceased to transport the body back to their place of residence for burial provided they have submitted a request confirmed by local authorities at the commune level, and ensure good compliance with security, order, and environmental hygiene requirements as stipulated by law.

14. Regarding the proposal to apply measures placing individuals in Correctional Facilities for those violating the law.

According to Article 35 of the Regulation on Correctional Facilities, detainees who violate regulations and internal rules without reaching the level requiring criminal prosecution but have been educated and disciplined multiple times, and still refuse to reform even after the completion of educational terms at the facility, and are deemed necessary to continue applying measures placing them in Correctional Facilities, the Director of the Correctional Facility shall prepare a report to the Chairman of the People's Committee of the province where the Correctional Facility is located for consideration and decision to place them in the Correctional Facility according to the general procedures stipulated in Articles 7 and 8 of the Regulation on Correctional Facilities.

To ensure compliance with the above provisions, prior to preparing the report to the Chairman of the People's Committee of the province, the Director of the Correctional Facility should pay attention to the following points:

First, the detainee must have violated the internal rules and regulations of the Correctional Facility and been subject to disciplinary measures three or more times, or if the violation is serious and they were isolated in a disciplinary cell, two or more times. But after these disciplinary actions, they still refuse to reform and continue to violate as stipulated in Article 2 of the Regulation on Correctional Facilities, then the process of preparing a proposal to place them in the Correctional Facility can begin. At least one month before the expiration of their term of execution, the Director of the Correctional Facility must convene a Council to review and prepare a file to report to the Prison Management Department, Educational Institutions, and Training Schools (the composition of the Council is similar to the Council for considering reductions in the term of execution).

The application documents include:

- Minutes of the meeting to consider the proposal for the decision to place in the Correctional Facility;

- Report and proposal for the decision to place in the Correctional Facility;

- Minutes regarding inmates' violations of the Regulations and Internal Rules, and disciplinary decisions against inmates and related documents concerning their violations;

- Lists of inmates proposed for placement in the Education Center (if there are two or more persons);

These documents must be prepared according to a uniform model.

Within five days from the date of receipt of the proposal file from the Education Center, the Director of the Prison Management Department, Educational Facilities, and Juvenile Correctional Schools shall examine and, if they find that the conditions are met to continue applying the measure of placing individuals in the Education Center, they must issue a written response for the Education Center to report to the Chairman of the Provincial People's Committee where the Education Center is located for consideration and decision.

When the Chairman of the Provincial People's Committee makes a decision to continue placing individuals in the Education Center, the Director of the Education Center must organize the notification to inform the inmate and simultaneously send a copy to the Provincial People's Committee that previously decided to place the individual in the Education Center, the Commune People's Committee where the individual resides, and the Prison Management Department, Educational Facilities, and Juvenile Correctional Schools for monitoring.

Inmates who have violated discipline and have a proposal file for continued placement in the Education Center but, upon expiration of the implementation period, still do not have a decision from the Chairman of the Provincial People's Committee to place them in the Education Center, the Director of the Education Center must issue a certificate confirming completion of the educational period and release them from the Education Center, while also providing a separate assessment recommending subsequent management and education measures to be sent to the People's Committees at various levels as stipulated in Article 22 of the Education Center Regulations.

15. Regarding rewards and punishments for inmates.

Rewards and punishments for inmates shall be implemented in accordance with Articles 34 and 35 of the Education Center Regulations. Decisions on rewards and punishments must be in writing and kept in the inmate's file for monitoring.

Inmates violating the Education Center Regulations and Internal Rules who are isolated in disciplinary cells may have additional restrictions imposed, such as prohibiting visits from relatives and receiving money or gifts for up to two months.

During the punishment period, if an inmate shows progress, the Director of the Education Center may decide to reduce the isolation time in the disciplinary cell. Male inmates isolated in disciplinary cells may be shackled if it is deemed necessary to prevent them from causing harm to themselves, others, or engaging in acts of resistance or escape.

16. Implementation organization.

- This Circular takes effect fifteen days from the date of signature. Previous regulations issued by the Ministry of Interior (now the Ministry of Public Security) that conflict with this Circular are hereby abolished.

- The Chairman of the Provincial People's Committee shall instruct relevant departments and lower-level People's Committees to implement legal provisions regarding the placement in educational facilities.

- Comrades General Directors, Heads of Departments, and Directors of Provinces and Cities under Central Administration, according to their functions and responsibilities, are responsible for implementing this Circular.

Any difficulties encountered during the implementation process should be promptly reported to the Ministry (through the Legal Affairs Department) for timely guidance.

The Legal Affairs Department shall take the lead in coordinating with the Criminal Police General Corps, the Prison Management Department, Educational Facilities, and Juvenile Correctional Schools to provide guidance, inspection, and supervision of the implementation of this Circular./.