Circular No. 09/2004/TT-BCA(V19) guiding the application of certain measures to protect informants, witnesses, victims in drug-related cases

CIRCULAR

Guidelines for applying certain measures to protect informants,
witnesses, and victims in drug-related cases

On November 27, 2002, the Government issued Decree No. 99/2002/NĐ-CP stipulating conditions, procedures, authority, and responsibilities of specialized agencies against drug-related crimes under the People's Public Security (hereinafter referred to as Decree No. 99). To uniformly implement the protection of informants, witnesses, and victims in drug-related cases as prescribed in this Decree within the People's Public Security force, the Ministry of Public Security guides the application of certain protective measures within the authority of the Minister of Public Security, as follows: 1. Objectives and Scope of Protection

- The persons protected under Clause 1, Article 17 of Decree No. 99 include:

- Informants, witnesses, and victims in drug-related cases;

- Spouses, biological children, adopted children, biological parents, adoptive parents, and parents-in-law (or parents from the husband's side)

of informants, witnesses, and victims in drug-related cases. These individuals are protected regarding their lives, health, reputation, dignity, and property when there is a risk of attack or harm from criminals; the application of protective measures shall be implemented throughout the period during which such risks are confirmed. It should be noted that the risk of attack or harm from criminals means that actual attacks or harms have occurred; or although only threats of attacks or harms exist, the level of danger is significant, necessitating timely protective measures to ensure the safety of the protected individuals. Specialized agencies against drug-related crimes within the People's Public Security force (hereinafter referred to as Specialized Agencies) base their decisions on the requests for protection from the protected individuals and other verified information indicating a risk of attack or harm from criminals to determine the objects and scope of protection. In cases where multiple protection requests are made simultaneously, the Specialized Agency must prioritize resources, measures, and means of protection based on their own and related agencies' practical conditions, particularly focusing on ensuring the safety of life and health of the protected individuals.

2. Certain Protective Measures

Certain protective measures prescribed in Clause 2, Article 17 of Decree No. 99, within the authority of the Minister of Public Security as outlined in this Circular, include:a. Deploying personnel and technical means to guard and protect the individuals requiring protection at their residences, workplaces, schools, on transportation, and other placesArmed or unarmed personnel, visible or covert methods may be used for protection; if necessary, technical means such as technical operations, secret bases, informants, undercover operations, or combined measures may be employed. To ensure the effectiveness of protection work, the Specialized Agency may communicate with the protected individuals to limit their activities in certain areas for a specific period, especially in places deemed highly dangerous. A "hotline" number or prearranged signals and communication methods may be provided for them to promptly report urgent information to the Specialized Agency.

b. Maintaining confidentiality regarding the provision of information and materials related to drug-related crimes if requested by the protected individual or if it is assessed that they may be endangered by providing such information and materials.

Certain protective measures provided for in Clause 2, Article 17 of Decree No. 99 under the guidance authority of the Minister of Public Security are listed in this Circular, including:

a. Arranging forces and technical means to guard and protect the person who needs protection at their residence, workplace, place of study, on transportation vehicles, and other places.

Armed or unarmed forces may be used, either openly or covertly, for protection; in cases of necessity, technical means and methods such as technical operations, secret facilities, informants, off-line operations, or a combination of methods may be employed for protection. To ensure the effectiveness of protective work, the specialized agency may communicate with the person being protected to limit their range of activities for a certain period, especially in places deemed to have high levels of danger. A hotline number may be provided or prearranged signals and communication methods may be established so that they can promptly report to the specialized agency in case of urgent information.

b. Keeping confidential the provision of information and documents related to drug-related crimes if requested by the person being protected or if it is assessed that they may be endangered by providing such information and documents.

The condition for applying this measure is that the information and documents provided by the protected person relating to drug-related crimes must still remain confidential from the criminals; they must not know who reported or disclosed their criminal activities. It should be noted that confidentiality is not only maintained from drug-related criminals but also from anyone who does not need to know such information to prevent the leakage of information to the criminals. The specialized agency may transform the source of information about crimes or combine operational measures to mislead the attention of criminals, making them believe that they were discovered through independent investigation by the police, through confessions by accomplices, or for other reasons...

c. Temporarily or permanently relocate and keep secret the place of residence of the protected person; in special cases, necessary financial support may be provided.

This measure aims to eliminate the possibility of criminals or accomplices being able to access the protected person at their place of residence or work. The protected person can be moved from an address where criminals are known or may become aware of it; their new place of residence can be kept secret; the relocation period varies depending on the circumstances and conditions, which may be temporary or permanent. The scope of relocation can be within the same locality or to another locality; in special cases, if conditions permit or if the protected person has relatives abroad providing sponsorship, they may be allowed to settle abroad.

The specialized agency needs to request relevant state authorities and local governments where the protected person relocates to take measures to assist the protected person in finding new employment, securing new accommodation, facilitating education, household registration, and other administrative procedures for them and their family. In urgent situations, the protected person may temporarily be taken to the police station or another location under the management and protection of the police.

d. Deterrence, warning, invalidation or application of preventive measures against individuals whose actions pose a danger to the protected person.

When there is sufficient evidence according to the law, the specialized agency may directly implement or request the competent police authority to arrest and process those who have threatened, controlled, or violated the protected person; or summon the individual to warn and caution them about their dangerous behavior towards others; or apply operational and administrative measures to neutralize the danger posed by the individual.

e. Other protective measures

The specialized agency may apply all other protective measures within the framework of the law to ensure the safety of the life, health, honor, and dignity of the protected person.

3. Authority to decide on the application of protective measures

a. Heads and Deputy Heads of specialized agencies at all levels may decide on the application of protective measures in accordance with the guidelines of this Circular.

b. Chiefs and Deputy Chiefs of Provincial Criminal Police Departments responsible for combating drug-related crimes and Chiefs and Deputy Chiefs of County Public Security Departments responsible for Criminal Police may decide on the application of protective measures in accordance with the guidelines of this Circular.

c. In emergency situations, staff of specialized agencies may apply the protective measures specified in Section 2 of this Circular; however, they must immediately report to the Head of the specialized agency after implementation.

d. Before deciding on the application of protective measures specified in point a and point c of Section 2 of this Circular, if it is deemed necessary to mobilize many forces, means, and measures to resolve complex requirements, the Heads and Deputy Heads of specialized agencies must report to seek opinions from the Provincial Public Security Director (if at the provincial level) or the Director of the National Police Agency (if at the Ministry level). In special cases, opinions from the Ministry leadership must be sought.

4. Procedures and formalities for deciding and implementing protective measures

Information about the threat of attack or harm by criminals and the need to protect informants, witnesses, victims in drug-related cases, and their relatives is determined from any source and in any form (which may be requested by the protected person, provided by the public, or discovered by the police). Upon receiving or discovering information about the threat of attack or harm by criminals and the need for protection, the police at all levels must immediately notify the specialized agency; simultaneously, they must apply necessary measures within their capacity and authority to protect informants, witnesses, victims, and their relatives, mitigate and prevent damage, apprehend the perpetrators...

Upon receiving information about the need for protection, the specialized agency has the responsibility to promptly collect necessary documents to verify the authenticity of the information, the actual level of danger threatening the protected person, the scope and targets requiring protection, and to plan protective measures, considering the conditions and capabilities of the police... to determine the scope of protection and decide on the appropriate protective measures. In urgent situations where immediate action is needed to prevent the danger posed by criminals to the life and health of the protected person, the specialized agency must immediately apply necessary interim protective measures (such as immediately dispatching security personnel to the home or workplace of the protected person or temporarily moving them to a safe location).

For protective measures requiring coordination to mobilize forces, methods, means... of other agencies and units within the People's Public Security force, the specialized agency may request directly or by letter. In complex cases, the specialized agency reports to the superior authority for decision in accordance with point d, item 3 of this Circular. Requests from the specialized agency regarding the protection of informants, witnesses, victims, and their relatives must be strictly implemented by public security units and localities involved; if there are difficulties in meeting the requirements or only part of them can be met, they must immediately notify the specialized agency and bear responsibility for their opinions. In urgent situations where danger to the life and health of the protected person is perceived, immediate implementation of the specialized agency's requests shall be carried out.

The coordination relationship between the specialized agency and investigative units in applying investigative measures to protect informants, witnesses, and victims in drug-related cases shall be carried out according to the regulations issued by the Minister of Public Security.

When deploying forces and professional means for guarding and protecting individuals who need protection at workplaces, schools, on transportation means..., if deemed necessary, officers of the specialized agency may discuss with responsible persons of the aforementioned facilities to facilitate protection; however, it is important to note the confidentiality of professional operations and work.

In cases where a request for protection from an informant, witness, or victim is received, but after reviewing relevant documents and assessing the ability and conditions of the public security agency to meet such protection, it is determined that protective measures are not necessary, the threat is insignificant, or the protection request falls outside the scope of Decree No. 99... (the subject does not fall under the prescribed category; the danger is caused by other reasons...) then the Head or Deputy Head of the specialized agency should clearly explain to the requesting party and guide them to address the issue through alternative measures.

5. Files on the protection of informants, witnesses, and victims

a. Files on the implementation of protective measures for informants, witnesses, victims, and their relatives in drug-related cases established and managed by the specialized agency; including the following documents:

- Documents reflecting information about the risk of attack or harm by criminals and the results of verifying such attacks or harms; consequences, losses incurred, and the handling by competent authorities.

- Decision on the application of protective measures, specifying the name of the person to be protected or the target to be protected; the agency and officer deciding on the application of protective measures; the protective measures to be applied; the agency and person implementing these measures. In cases where multiple protective measures are applied or when multiple people or targets need protection, separate decisions shall be made for each measure and individual.

- Documents reflecting the process of implementing protective measures; reports seeking guidance from superiors; contents of instructions from responsible persons; summaries of investigations, searches, and arrests of perpetrators who have attacked or harmed informants, witnesses, victims, and their relatives.

- Documents from the specialized agency requesting support and cooperation from agencies, units, and individuals to implement protection; documents reflecting the results of cooperation.

- Reports on the results of implementing protective measures.

- Other related documents.

b. Files on the protection of informants, witnesses, victims, and their relatives in drug-related cases are managed, stored, and utilized according to the file system of the public security sector. The General Police Department is responsible for directing the police operational file management agency to guide the specialized agency in implementing this regulation.

6. Responsibilities of public security units and localities

a. The specialized agency is responsible for deciding on the application of protective measures; directly organizing the implementation of protective measures within its functional and duty scope, and taking the lead in coordinating with other public security units and localities to organize the implementation of protective measures for informants, witnesses, victims, and their relatives.

Heads of subordinate units of the Minister, Provincial Public Security Directors, County Public Security Chiefs are responsible for directing related units to coordinate with the specialized agency to implement protective measures for informants, witnesses, victims in drug-related cases, and their relatives upon request from the Head or Deputy Head of the specialized agency.

b. The Protective and Judicial Support Force is responsible for assigning officers equipped with weapons, auxiliary tools, and other professional means to cooperate with the specialized agency to implement protective measures upon request.

c. Investigative agencies, through the acceptance and investigation of drug-related cases, are responsible for providing the specialized agency with necessary information related to the protection request, concerning the threat to the protected person to decide on appropriate protective measures; maintaining the confidentiality of information and documents related to drug crimes provided by informants, witnesses, and victims... (when necessary, exchanging with the Prosecutor's Office and Court for coordination); applying preventive measures against individuals whose actions pose a danger to the protected person upon request from the specialized agency, if sufficient evidence is available as stipulated by law.

d. Investigative forces are responsible for cooperating with the specialized agency to implement investigative measures according to their functions to protect informants, witnesses, victims, and their relatives upon request from the specialized agency.

d. Local police at all levels shall be responsible for coordinating and creating conditions for the specialized agency to implement protective measures related to their respective jurisdictions; supporting the provision of food, accommodation, work, study, daily life, etc., for the protected individuals; and directing and guiding the police stations and communal police forces to carry out necessary collaborative activities according to the requirements of the specialized agency.

e. Administrative management forces for social order shall be responsible for coordinating with the specialized agency when requested to implement administrative management measures within their functions; handling registration of household and resident identification, issuing personal identity documents, etc., for the protected individuals in accordance with the law and the guidelines set forth in this Circular.

g. Immigration management forces shall be responsible for promptly and confidentially processing the entry and exit procedures for the protected individuals according to the requirements of the specialized agency and the regulations on entry and exit.

h. The Planning-Finance Departments under the People's Public Security at all levels, based on the annual operational budget provided by the Ministry, shall be responsible for resolving funds to serve protective measures for informants, witnesses, victims in drug-related cases, and their relatives according to the requests of the specialized agency.

i. In cases where the subject and scope of necessary protective measures have been clearly identified, but the specialized agency fails to implement them or does so untimely, or when there are sufficient means and capabilities for protection but the staff of the specialized agency are negligent, resulting in consequences, they shall be dealt with according to the provisions of the law and the regulations of the Public Security sector depending on the nature and severity of the violation.

7. Applying other protective measures

The application of other protective measures for informants, witnesses, victims, and their relatives in drug-related cases that fall under the jurisdiction of multiple sectors; and the protection of individuals collaborating with the specialized agency in combating drug-related crimes will be regulated by separate normative legal documents.

8. Implementation organization

The Criminal Police General Department shall be responsible for leading and coordinating with the Security General Department to inspect and urge relevant agencies and units to implement this Circular.

This Circular shall take effect thirty days from the date of signature. During implementation, if any issues arise, local public security units shall report to the Ministry. (through the Criminal Police General Department) for timely guidance./.