JOINT CIRCULAR No. 09/2006/TTLT/BLDTBXH-BCA-VKSNDTC-TANDTC GUIDING THE PROSECUTION OF CRIMINAL LIABILITY FOR PERSONS WHO VIOLATE LAWS IN THE FIELD OF LABOR EXPORT ABROAD

JOINT CIRCULAR

I. Prosecution of criminal responsibility for individuals organizing or compelling workers to remain illegally abroad

1.1. "Worker working abroad" refers to Vietnamese citizens dispatched to work abroad under the form of overseas labour export (hereinafter referred to as "worker").

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1.2. "Organizing for workers to remain illegally abroad" means carrying out one of the following acts to assist workers to remain abroad (remaining in the receiving country according to the contract for working abroad or remaining in a third country) contrary to the provisions of Vietnamese law:

a) Planning or advising workers to remain illegally abroad;

1. Definitions

b) Providing material conditions such as finding accommodation, introducing job opportunities, providing money, supplying means of transportation... or creating other conditions such as producing false identity papers, supplying identity papers... for workers to remain illegally abroad.

1.3. "Compelling workers to remain illegally abroad" means using violence, threatening to use violence, intimidating mentally, controlling or taking advantage of material dependence, or other acts to force workers to remain illegally abroad.

2. Subject of the crime

The individual subject to prosecution for the crime of organizing or compelling others to remain illegally abroad as stipulated in Article 275 of the Penal Code (hereinafter abbreviated as PC) and guided in this Circular is a Vietnamese citizen or a stateless person permanently residing in Vietnam who commits the crime outside the territory of Vietnam. Individuals committing the crime within the territory of Vietnam may also be prosecuted for the crime according to the guidance in this Circular if there are other individuals involved in the same case who commit the crime outside the territory of Vietnam.

3. On the approach to handling

3.1. Determination of the charge

a) Any individual who carries out one of the acts guided in Subpoint 1.2, Section 1, Part I of this Circular shall be prosecuted for the crime of "organizing others to remain illegally abroad" as stipulated in Article 275 of the PC.

b) Any individual who carries out one of the acts guided in Subpoint 1.3, Section 1, Part I of this Circular shall be prosecuted for the crime of "compelling others to remain illegally abroad" as stipulated in Article 275 of the PC.

c) Any individual who carries out multiple acts guided in Subpoints 1.2 and 1.3, Section 1, Part I of this Circular, where these acts are closely related to each other (one act is a condition for the commission of another act or is the inevitable consequence of that act), shall be prosecuted for the full charge corresponding to all committed acts regarding the crime of "organizing and compelling others to remain illegally abroad" as stipulated in Article 275 of the PC and shall only bear a single combined punishment.

Example: Nguyen Van A planned for Nguyen Van B, a Vietnamese worker, to remain illegally abroad. When Nguyen Van B did not want to stay abroad, Nguyen Van A threatened to kill B or B's wife and children. In this case, Nguyen Van A must be prosecuted for the full charge corresponding to all committed acts regarding the crime of "organizing and compelling others to remain illegally abroad."

d) Any individual who carries out multiple acts guided in Subpoints 1.2 and 1.3, Section 1, Part I of this Circular, where these acts are independent from each other, shall be prosecuted for separate crimes corresponding to each committed act, namely the crime of "organizing others to remain illegally abroad" and the crime of "compelling others to remain illegally abroad" as stipulated in Article 275 of the PC. When sentencing, the court will determine the punishment for each crime and apply Article 50 of the PC to determine the combined punishment.

Example: Tran N made fake passports and found accommodation for Le Van C so that Le Van C could remain illegally abroad, while Tran N took advantage of Le Thi M's material dependence and controlled her to compel her to remain illegally abroad. In this case, Tran N will be prosecuted for two crimes: the crime of "organizing others to remain illegally abroad" for the act of making fake passports and finding accommodation for Le Van C, and the crime of "compelling others to remain illegally abroad" for the act of taking advantage of Le Thi M's material dependence and controlling her to compel her to remain illegally abroad.

3.2. Determination of aggravating circumstances

a) "Committing the crime repeatedly" as stipulated in Clause 2, Article 275 of the PC means having committed the crime two or more times (two or more times organizing workers to remain illegally abroad; two or more times compelling workers to remain illegally abroad without distinguishing whether these acts were carried out at the same location in the same workplace or at different locations...) and in those instances of committing the crime, the perpetrator has not been prosecuted for criminal responsibility and the statute of limitations for prosecution has not expired.

b) "Causing serious consequences" as stipulated in Clause 2, Article 275 of the PC when it falls under one of the following cases:

- Organizing or compelling five to ten workers to remain illegally abroad;

- Illegally profiting from organizing or compelling workers to remain illegally abroad from thirty million to one hundred million Vietnamese dong.

c) "Causing very serious consequences" as stipulated in Clause 2, Article 275 of the PC when it falls under one of the following cases:

- Organizing or compelling eleven to fifteen workers to remain illegally abroad;

- Illegally profiting from organizing or forcing workers to remain abroad illegally from thirty million dong to one hundred million dong.

c) "Causing very serious consequences" as stipulated in Clause 2, Article 275 of the Penal Code when any of the following circumstances apply:

- Organizing or forcing between eleven and fifteen workers to remain abroad illegally.

- Illegally profiting from organizing or forcing workers to remain abroad illegally from over 100 million dong to 300 million dong;

- Causing the receiving country to temporarily suspend or stop accepting Vietnamese workers for employment in certain industries or occupations;

d) "Causing particularly serious consequences" as stipulated in Clause 3, Article 275 of the Penal Code when falling under one of the following circumstances:

- Organizing or forcing 16 or more workers to remain abroad illegally;

- Illegally profiting from organizing or forcing workers to remain abroad illegally from over 300 million dong;

- Causing the receiving country to temporarily suspend or stop accepting Vietnamese workers for employment;

II. Pursuit of criminal responsibility for workers remaining abroad illegally;

1. Explanation of Terms

"Workers remaining abroad illegally" refers to Vietnamese citizens who have been sent to work abroad through labor export and who, during their working period or after the expiration of their contracts, leave without permission from competent Vietnamese state authorities to remain abroad (in the receiving country or a third country) and is evidenced by one of the following actions:

1.1. Fleeing immediately upon entry into the receiving country to remain abroad illegally as provided for in Clause 5, Article 4 of Decree No. 141/2005/ND-CP dated November 11, 2005 of the Government on the management of labor working abroad (hereinafter referred to as Decree No. 141);

1.2. Leaving the workplace unilaterally according to the labor contract to remain abroad illegally as provided for in Clause 6, Article 4 of Decree No. 141;

1.3. Not returning home when the contract ends as required by the local regulations as provided for in Clause 7, Article 4 of Decree No. 141.

3.1. Determination of the charge

2.1. The person being pursued for criminal responsibility for the crime of "remaining abroad illegally" as stipulated in Article 274 of the Penal Code and guided in this Circular is a worker falling under one of the following situations:

a) A worker who has been administratively punished and subjected to remedial measures "forced to return home" in accordance with the procedures for punishment and enforcement of the decision as stipulated in Article 31 of Decree No. 141 but, within thirty days from the date of notification of non-compliance with the punishment decision, the punished person still does not comply with the decision.

b) A worker who has complied with the administrative punishment decision and remedial measures "forced to return home," but within one year from the date of return to the country, was again legally sent to work abroad through labor export and has committed one of the acts guided in Section 1, Part II of this Circular.

2.2. Other persons who are not subjects guided in Subsection 2.1 of this section may also be pursued for criminal responsibility for the crime of "remaining abroad illegally" as accomplices.

III. AUTHORITY AND PROCEDURES FOR PURSUING CRIMINAL RESPONSIBILITY FOR PERSONS VIOLATING THE LAW IN THE FIELD OF LABOR EXPORT ABROAD

1. Jurisdiction

1.1. The court with jurisdiction to hear cases involving the crimes of "remaining abroad illegally" and "organizing, forcing others to remain abroad illegally" in the field of labor export, as guided in this Circular, is the People's Court of the province or centrally administered city (hereinafter referred to as provincial level) where the defendant resided last in the country before departure.

1.2. Determination of the last place of residence in the country before departure is as follows:

a) The place where the defendant had permanent residence registration before departure;

b) In case the defendant did not have permanent residence registration before departure, the last place of residence shall be determined as the place where the defendant had long-term temporary residence registration or regularly lived before departure or the place where the defendant processed departure formalities.

2. Jurisdiction to initiate proceedings, investigate, and prosecute

2.1. Initiating proceedings, investigating, and prosecuting the crimes of "remaining abroad illegally" and "organizing, forcing others to remain abroad illegally" in the field of labor export, as guided in this Circular, falls under the jurisdiction of the Provincial-level Public Security Investigation Agency and the Provincial-level People's Procuracy.

2.2. The jurisdiction of the Provincial-level Public Security Investigation Agency and the Provincial-level People's Procuracy to initiate proceedings, investigate, and prosecute is determined according to the jurisdiction of the Provincial-level People's Court as guided in Section 1, Part III of this Circular.

2.3. When it is necessary to entrust investigation or when the superior investigative agency considers it necessary to conduct direct investigation, the entrusted investigation or direct investigation by the superior investigative agency shall be carried out in accordance with the provisions of the Criminal Procedure Code.

3. Procedures

The procedures for initiating proceedings, investigating, prosecuting, and trying the crimes of "remaining abroad illegally" and "organizing, forcing others to remain abroad illegally" in the field of labor export must be strictly followed in accordance with the provisions of the Criminal Procedure Code (hereinafter abbreviated as the BLTTHS).

IV. Coordination between the Overseas Labor Management Department - Ministry of Labor, Invalids, and Social Affairs and other functional agencies

1. Responsibilities of the Overseas Labor Management Department.

1.1. Upon discovering acts of organizing or forcing others to remain abroad illegally as guided in Part I of this Circular, the Overseas Labor Management Department collects all relevant documents and evidence to prove the violation and prepares a document recommending prosecution. In the recommendation for prosecution, specific details such as the name, date of birth, last place of residence in the country before departure, passport number, and a summary of the violation of the person to be prosecuted for criminal responsibility must be included. The recommendation for prosecution and collected documents and evidence must be submitted to the Public Security Investigation Agency of the Provincial-level Public Security Bureau where the competent court at the same level has jurisdiction over the case for consideration and decision on prosecution. Documents and evidence attached to the recommendation for prosecution include records of violations; other documents that can prove the act of organizing or forcing Vietnamese workers to remain abroad illegally. If the documents are in a foreign language, they must be translated into Vietnamese and certified legally.

The petition for prosecution must also be sent to the People's Procuracy at the same level as the court with jurisdiction over the case to supervise the handling of the petition for prosecution.

1.2. When discovering workers engaging in illegal stay abroad as guided in Part II of this Circular, the Department of Overseas Labor Management shall collect all relevant documents and evidence to prove the violation and administrative penalty handling according to Decree No. 141. In the petition for prosecution, the following details must be recorded: full name, date of birth, last place of residence in the country before going to work abroad; passport number; summary of the violation that requires criminal responsibility pursuit. The petition for prosecution and collected documents and evidence must be sent to the Investigation Agency of the Provincial Police where the Provincial Court has jurisdiction over the case for consideration and decision on prosecution initiation. Documents and evidence attached to the petition for prosecution include: original (or copy) of the administrative violation record and original (or copy) of the first administrative penalty decision (or other documents proving the first administrative penalty) regarding illegal stay abroad; notification from the authority responsible for imposing penalties about non-compliance with the administrative penalty decision for cases where workers do not comply with the administrative penalty decision according to Clause 3, Article 31 of Decree No. 141 or violation records or other documents proving the second violation (recidivism) for cases where workers have complied with the administrative penalty decision but then violated again; foreign documents from organizations regarding the violation of workers (if any); other related documents. If these documents are in a foreign language, they must be translated into Vietnamese and legally certified.

The petition for prosecution must also be sent to the People's Procuracy at the same level as the court with jurisdiction over the case to supervise the handling of the petition for prosecution.

1.3. Direct handover of the petition for prosecution and accompanying documents and evidence between the Department of Overseas Labor Management and the Investigation Agency must be documented in a record, including signatures and full names of the person handing over, the person receiving, and a list of handed-over documents and evidence.

2. Responsibilities of the Investigative Agency

After receiving the petition for prosecution and accompanying documents and evidence transferred by the Department of Overseas Labor Management, within its scope of responsibility, the Investigative Agency must verify the information sources, exchange and reach consensus in writing with the People's Procuracy at the same level, and handle as follows:

2.1. In cases where there is insufficient basis for initiating a case and additional evidence is needed, the Investigative Agency requests the Department of Overseas Labor Management to supplement the file.

2.2. In cases where there is sufficient basis, the Investigative Agency issues a decision to initiate a case and indict according to the Code of Criminal Procedure; simultaneously notifying the Department of Exit and Entry Administration - Ministry of Public Security to manage and monitor the entry of the subject for investigative purposes.

2.3. In cases where there is insufficient basis to initiate a case, the Investigative Agency issues a decision not to initiate a criminal case.

2.4. The decision to initiate a case, indictment, or not to initiate a case by the Investigative Agency and related documents must be sent to the People's Procuracy at the same level according to the law. The Investigative Agency must inform the Department of Overseas Labor Management of the resolution results.

2.5. In cases where the indicted person is prosecuted before returning to the country, the Investigative Agency considers and decides on the application of preventive measures according to the law, while implementing necessary measures to prevent the indicted person from fleeing or failing to comply with decisions and requirements of the Investigative Agency.

3. Responsibilities of the Department of Exit and Entry Administration - Ministry of Public Security

 In cases where workers illegally stay abroad and then return to Vietnam, based on the list of workers being prosecuted reported by the Investigative Agency, the Department of Exit and Entry Administration - Ministry of Public Security is responsible for directing border police stations to immediately notify the Investigative Agency upon discovery of their entry into Vietnam for handling according to their authority.

4. Responsibilities of related agencies and organizations

Vietnamese diplomatic and consular agencies abroad, labor management boards, and related agencies, organizations, and individuals are responsible for coordinating and fulfilling the requirements of the Investigative Agency, the People's Procuracy, and the Court in providing information and documents related to serving the initiation, investigation, prosecution, and trial of the case.

V. Effective Date

1. This Circular takes effect 15 days after its publication in the Official Gazette.

2. During implementation, if there are difficulties requiring explanation or supplementary guidance, they should be reported to the Ministry of Labor - Invalids and Social Affairs, the Ministry of Public Security, the Supreme People's Procuracy, and the Supreme People's Court for timely explanation or supplementary guidance.