Circular No. 09/2017/TT-BTP amending and supplementing certain provisions of Circular No. 19/2015/TT-BTP dated December 28, 2015, issued by the Minister of Justice, concerning the verification of the legality by the Head of the Department of Justice at the district level of the administrative sanction application dossier for placement in educational centers, compulsory education facilities, and compulsory drug rehabilitation centers.

CIRCULAR

Amending and supplementing some articles of Circular No. 19/2015/TT-BTP dated December 28, 2015 issued by the Minister of Justice on the inspection of the legality of the file for applying administrative measures to be sent to educational facilities and compulsory rehabilitation centers by the Heads of the Judicial Departments at district level

dated December 28, 2015 of the Minister of Justice stipulating the inspection of the legality of the file for applying administrative measures to be sent to educational facilities and compulsory rehabilitation centers by the Heads of the Judicial Departments at district level

the examination of the legality by the Head of the Judicial Office at the district level

of the dossier requesting the application of administrative handling measures

for placement in a reformatory school, compulsory educational facility

and compulsory drug rehabilitation facility

Based on the Administrative Violation Handling Law dated June 20, 2012;

Pursuant to Decree No. 96/2017/NĐ-CP dated August 16, 2017, issued by the Government on the functions, tasks, powers, and organizational structure of the Ministry of Justice;

Pursuant to Decree No. 81/2013/NĐ-CP dated July 19, 2013 of the Government detailing certain provisions and measures for implementing the Law on Handling Administrative Offenses;

Pursuant to Decree No. 111/2013/NĐ-CP dated September 30, 2013 of the Government detailing the regime of applying administrative measures for education at commune, ward, and town levels;

Pursuant to Decree No. 221/2013/NĐ-CP dated December 30, 2013 of the Government detailing the regime of applying administrative measures for compulsory rehabilitation centers;

Pursuant to Decree No. 02/2014/NĐ-CP dated January 10, 2014 of the Government detailing the regime of applying and implementing administrative measures for educational facilities and compulsory rehabilitation centers;

Pursuant to Decree No. 56/2016/NĐ-CP dated June 29, 2016 of the Government amending and supplementing some articles of Decree No. 111/2013/NĐ-CP dated September 30, 2013 of the Government detailing the regime of applying administrative measures for education at commune, ward, and town levels;

Pursuant to Decree No. 136/2016/NĐ-CP dated September 9, 2016 of the Government amending and supplementing some articles of Decree No. 221/2013/NĐ-CP dated December 30, 2013 of the Government detailing the regime of applying administrative measures for compulsory rehabilitation centers;

Pursuant to Decree No. 97/2017/NĐ-CP dated August 18, 2017 of the Government amending and supplementing some articles of Decree No. 81/2013/NĐ-CP dated July 19, 2013 of the Government detailing some provisions and implementation measures of the Law on Handling Administrative Violations;

At the proposal of the Director of the Department of Administrative Violation Management and Legal Supervision;

The Minister of Justice issues this Circular amending and supplementing some articles of Circular No. 19/2015/TT-BTP dated December 28, 2015 of the Minister of Justice stipulating the inspection of the legality of the file for applying administrative measures to be sent to educational facilities and compulsory rehabilitation centers by the Heads of the Judicial Departments at district level.

Article 1. Amending and supplementing some articles of Circular No. 19/2015/TT-BTP dated December 28, 2015 of the Minister of Justice stipulating the inspection of the legality of the file for applying administrative measures to be sent to educational facilities and compulsory rehabilitation centers by the Heads of the Judicial Departments at district level.

1. Clause 4 shall be amended and supplemented as follows:

"Article 4. Content of the inspection of the legality of the file for application

The content of the inspection of the legality includes reviewing, evaluating, and concluding on the appropriateness and completeness of the file for applying administrative measures according to the provisions of the Law on Handling Administrative Violations and Article 2 Clause 2 of Article 17 of Decree No. 81/2013/NĐ-CP dated July 19, 2013 of the Government detailing some provisions and implementation measures of the Law on Handling Administrative Violations (hereinafter referred to as Decree No. 81/2013/NĐ-CP)as follows:

1. Documents and papers in the file for applying administrative measures must ensure completeness in quantity, components, and compliance with the format as prescribed in Clause 1 and 2 of Article 99; Clause 1 and 2 of Article 101; Clause 1 and 2 of Article 103 of the Law on Handling Administrative Violations; Clause 1 of Article 11 of Decree No. 02/2014/NĐ-CP dated January 10, 2014 of the Government detailing the regime of applying and implementing administrative measures for educational facilities and compulsory rehabilitation centers (hereinafter referred to as Decree No. 02/2014/NĐ-CP); Article 9 of Decree No. 221/2013/NĐ-CP dated December 30, 2013 of the Government detailing the regime of applying administrative measures for compulsory rehabilitation centers (amended and supplemented according to Clause 2 of Article 1 of Decree No. 136/2016/NĐ-CP dated September 9, 2016 of the Government amending and supplementing some articles of Decree No. 221/2013/NĐ-CP dated December 30, 2013 of the Government detailing the regime of applying administrative measures for compulsory rehabilitation centers (hereinafter referred to as Decree No. 136/2016/NĐ-CP)) and the provisions of this Circular.

2. The time limit for applying administrative measures must comply with the provisions at points b, c, and d of Clause 2 of Article 6 of the Law on Handling Administrative Violations.

3. The subject proposed to apply administrative measures must comply with the provisions of Clause 2 of Article 5, Articles 92, 94, and 96 of the Law on Handling Administrative Violations; Article 13, Clause 2 of Article 16 of Decree No. 81/2013/NĐ-CP, Clause 3 of Article 16 of Decree No. 81/2013/NĐ-CP (amended and supplemented according to Clause 24 of Article 1 of Decree No. 97/2017/NĐ-CP dated August 18, 2017 of the Government amending and supplementing some articles of Decree No. 81/2013/NĐ-CP dated July 19, 2013 of the Government detailing some provisions and implementation measures of the Law on Handling Administrative Violations (hereinafter referred to as Decree No. 97/2017/NĐ-CP)) and Article 3 of Decree No. 221/2013/NĐ-CP dated December 30, 2013 of the Government detailing the regime of applying administrative measures for compulsory rehabilitation centers (amended and supplemented according to Clause 1 of Article 1 of Decree No. 136/2016/NĐ-CP).

4. The authority to establish the file for applying administrative measures must comply with the provisions of Articles 99, 101, and 103 of the Law on Handling Administrative Violations.

5. The procedures for establishing the file for applying administrative measures must comply with the provisions of Articles 99, 101, and 103 of the Law on Handling Administrative Violations; Decree No. 81/2013/NĐ-CP; Decree No. 221/2013/NĐ-CP dated December 30, 2013 of the Government detailing the regime of applying administrative measures for compulsory rehabilitation centers (hereinafter referred to as Decree No. 221/2013/NĐ-CP); Decree No. 02/2014/NĐ-CP; Decree No. 136/2016/NĐ-CP and the provisions of this Circular."

2. Clause 1 and Clause 5 of Article 5 are amended and supplemented as follows:

"Article 5. Procedures and steps for inspecting the legality of the file for application

1. Upon expiration of the reading period specified in Clause 3 of Article 99, Clause 3 of Article 101, and Clause 3 of Article 103 of the Law on Handling Administrative Violations, the agency that established the file send a letter requesting the Head of the Department of Justice at the district level to examine the legality along with the original application file, specifically as follows:

a) The application file for applying administrative handling measures against violators who have a stable place of residence shall be transferred to the Head of the Department of Justice at the district level where the person proposed to be subject to administrative handling measures resides;

b) The application file for applying administrative handling measures against violators who do not have a stable place of residence shall be transferred to the Head of the Department of Justice at the district level where the agency that established the file is located;

The handover and receipt of files must be recorded in a protocol.

5. In cases where the application file does not ensure legality as stipulated in Article 4 of this Circular, the Head of the Department of Justice at the district level must clearly state in the legality examination document the contents that do not ensure legality, the documents needed to be amended and supplemented to the file, then transfer the entire file along with the legality examination document to the Head of the Police Department at the district level for the measure of sending to a reformatory school and the measure of sending to a compulsory educational facility, or to the Head of the Department of Labor, Invalids and Social Affairs at the district level for the measure of sending to a compulsory drug rehabilitation facility for consideration and decision on the proposal to the People's Court at the district level to apply administrative handling measures. The handover and receipt of files must be recorded in a protocol.”.

3. Points c, d, đ, e, and g Clause 2 Article 6 are amended and supplemented as follows:

“c) Documents regarding the applied educational measures include: Certificate of completion of community-based education decision issued by the Chairman of the People's Committee at the commune, ward, town level according to Model certificate number 01 (form MGCN01) promulgated together with Decree No. 56/2016/ND-CP dated June 29, 2016 of the Government amending and supplementing some articles of Decree No. 111/2013/ND-CP dated September 30, 2013 of the Government on the system of applying administrative handling measures of community-based education (hereinafter referred to as Decree No. 56/2016/ND-CP);

d) Statement of the person proposed to be subject to the measure of sending to a reformatory school or their lawful representative (according to the form issued by the Ministry of Public Security, if any). In case there is no form, the statement must ensure the following main contents: Name and date of birth of the violator, place of residence, place of study or place of work of the violator (if any); statement about the violation (specify clearly what laws the violator and related persons have violated, the time, location, tools, means, method of committing the act, reasons leading to the violations, consequences occurred and actions taken to mitigate the consequences, how the violations were handled);

đ) Document expressing the opinion of parents or the lawful representative of the person proposed to be subject to the measure of sending to a reformatory school;

e) Document expressing the opinion of the school, agency, organization where the person proposed to be subject to the measure of sending to a reformatory school is studying or working (if any);

g) Other relevant documents (if any) such as: Identity Card; Passport; Citizen Identification Card; Birth Certificate; Household Registration Booklet of the person proposed to be subject to the measure of sending to a reformatory school; notification document about the establishment of the application file for applying administrative handling measures”.

4. Clause 4 Article 9 is amended and supplemented as follows:

“4. The Public Security Agency at the commune level has the responsibility to assist the Chairman of the People's Committee at the same level to verify, collect evidence and establish the application file for applying the measure of sending to a reformatory school prescribed in point a and b Clause 1 Article 99 of the Law on Handling Administrative Violations”.

5. Point b Clause 2 Article 10 is amended and supplemented as follows:

“b) Determination of the place of residence of juvenile violators without a stable place of residence must comply with the provisions of Article 13 of Decree No. 111/2013/ND-CP (amended and supplemented according to Clause 5 Article 1 of Decree No. 56/2016/ND-CP), specifically as follows:

A stable place of residence is the place where the object usually resides or temporarily resides, but it must be the place where the person currently lives regularly or spends most of their time living;

No stable place of residence is the case where the permanent residence or temporary residence registration of the violator cannot be determined and the person frequently wanders around, does not stay in one fixed place or the case where the permanent residence or temporary residence registration of the violator can be determined but the person frequently wanders around, does not stay in one fixed place”.

6. Point a Clause 4 Article 11 is amended and supplemented as follows:

“a) The documents and papers specified in point d Clause 2 Article 6; point b Clause 3 Article 6; point a and b Clause 2 This provision”.

7. Clause 5 Article 14 shall be amended and supplemented as follows:

“5. The public security agency at the commune level shall be responsible for assisting the Chairman of the People's Committee at the same level to verify, collect evidence and prepare files to propose the application of measures to place in compulsory educational facilities as prescribed in point a and b Clause 1 Article 101 of the Law on Handling Administrative Violations.”

8. Point b Clause 2 Article 15 shall be amended and supplemented as follows:

“b) Determining the place of residence of the person proposed to apply measures to place in compulsory educational facilities who does not have a stable place of residence must ensure compliance with the provisions of point b Clause 2 Article 10 of this Circular.”

9. Article 16 shall be amended and supplemented as follows:

“Article 16. Inspection of documents and papers in the file proposing the application of administrative handling measures to place in compulsory drug rehabilitation facilities

1. The inspection of the suitability, legality, and completeness of the documents and papers in the file proposing the application of administrative handling measures to place in compulsory drug rehabilitation facilities shall be based on the provisions of Clause 1 and 2 Article 103 of the Law on Handling Administrative Violations and Article 9 of Decree No. 221/2013/ND-CP (amended and supplemented according to the provisions of Clause 2 Article 1 of Decree No. 136/2016/ND-CP).

2. The file proposing the application of administrative handling measures to place in compulsory drug rehabilitation facilities for drug addicts with a stable place of residence shall include:

a) A summary record of the person proposed to apply measures to place in compulsory drug rehabilitation facilities according to Model No. 01 issued together with Circular No. 14/2014/TT-BLDTBXH dated June 12, 2014 by the Minister of Labor, Invalids and Social Affairs promulgating forms for establishing files proposing, implementing decisions applying administrative handling measures to place in compulsory drug rehabilitation facilities and guidelines for building internal regulations for students of compulsory drug rehabilitation facilities;

b) The statement of the person proposed to apply measures to place in compulsory drug rehabilitation facilities or of their lawful representative (according to the model issued by the Ministry of Public Security or the Ministry of Labor, Invalids and Social Affairs, if applicable). In cases where there is no model, the statement must ensure the main contents as stipulated in point d Clause 2 of this Circular;

c) The administrative violation record regarding the act of using drugs illegally according to Model Record No. 01 (form MBB01) issued together with Decree No. 81/2013/ND-CP (amended and supplemented according to the provisions of Decree No. 97/2017/ND-CP) or a positive test result for drugs (according to the form issued by the Ministry of Health, if applicable);

d) Documents proving the educational measures implemented at commune, ward, town level regarding the act of drug addiction already applied including: Certificate of completion of community education decision issued by the Chairman of the People's Committee at the commune level according to Certificate No. 01 (form MGCN01) issued together with Decree No. 56/2016/ND-CP or Decision terminating the application of community education measures according to Decision No. 04 (form MQĐ04) issued together with Decree No. 56/2016/ND-CP;

d) Documents and papers as prescribed in point g Clause 2 of this Circular.

3. The file proposing the application of administrative handling measures to place in compulsory drug rehabilitation facilities for drug addicts who do not reside in the location where they committed the violation and whose place of residence can be determined shall include the documents and papers prescribed in Clause 2 of this Article.

4. The file proposing the application of administrative handling measures to place in compulsory drug rehabilitation facilities for drug addicts who do not reside in the location where they committed the violation and whose place of residence cannot be determined shall include:

a) Documents determining that the drug addict does not have a stable place of residence;

b) The documents and papers prescribed in points a, b, and c Clause 2 of this Article;

c) The document prescribed in point d Clause 2 of this Article (if applicable).

5. The file proposing the application of administrative handling measures to place in compulsory drug rehabilitation facilities for cases of drug addicts who violate the law and have a stable place of residence, directly discovered, investigated, and handled by the public security agency at the district level or provincial level in cases of violations of the law but not reaching the level of criminal prosecution and falling under the category of persons to be placed in compulsory drug rehabilitation facilities as prescribed in Article 96 of the Law on Handling Administrative Violations, shall include the documents and papers prescribed in points a, b, c, and d Clause 2 of this Article”.

6. The file proposing the application of administrative handling measures to place in compulsory drug rehabilitation facilities for cases of drug addicts who violate the law and do not have a stable place of residence, directly discovered, investigated, and handled by the public security agency at the district level or provincial level in cases of violations of the law but not reaching the level of criminal prosecution and falling under the category of persons to be placed in compulsory drug rehabilitation facilities as prescribed in Article 96 of the Law on Handling Administrative Violations, shall includethe documents and papers prescribed in Clause 4 of this Article.

10. Article 18 shall be amended and supplemented as follows:

“Article 18. Inspection of persons subject to administrative handling measures to place in compulsory drug rehabilitation facilities

1. Persons subject to administrative handling measures to place in compulsory drug rehabilitation facilities must comply with age, violation behavior, and conditions as prescribed in Clause 2 Article 5, Article 96 of the Law on Handling Administrative Violations; Article 3 of Decree No. 221/2013/ND-CP (amended and supplemented according to the provisions of Clause 1 Article 1 of Decree No. 136/2016/ND-CP) and Clause 3 Article 16 of Decree No. 81/2013/ND-CP (amended and supplemented according to the provisions of Clause 24 Article 1 of Decree No. 97/2017/ND-CP), including the following specific cases:

a) Drug addicts aged 18 years or older, with a stable place of residence, within two years from the date of completing the decision to apply educational measures at commune, ward, town level due to drug addiction or within one year from the expiration of the time limit for implementing the decision to apply educational measures at commune, ward, town level and still addicted as prescribed in Clause 1 Article 96 of the Law on Handling Administrative Violations and Article 3 of Decree No. 221/2013/ND-CP (amended and supplemented according to the provisions of Clause 1 Article 1 of Decree No. 136/2016/ND-CP);

b) A person addicted to narcotics who is at least eighteen years old, has a stable place of residence, and has had their educational decision at the commune, ward, town due to drug addiction terminated according to Article 3 of Decree No. 221/2013/NĐ-CP (amended and supplemented pursuant to Clause 1 of Article 1 of Decree No. 136/2016/NĐ-CP);

c) A person addicted to narcotics who is at least eighteen years old, has not been subject to community-based education due to drug addiction, but does not have a stable place of residence as stipulated in Clause 1 of Article 96 of the Law on Handling Administrative Violations and Article 3 of Decree No. 221/2013/NĐ-CP (amended and supplemented pursuant to Clause 1 of Article 1 of Decree No. 136/2016/NĐ-CP);

d) A person participating voluntarily in a family or community drug rehabilitation program, or a person undergoing methadone maintenance treatment for opioid addiction as provided for in Clause 3 of Article 16 of Decree No. 81/2013/NĐ-CP (amended and supplemented pursuant to Clause 24 of Article 1 of Decree No. 97/2017/NĐ-CP).

2. Cases that are not subjects to be subject to administrative handling measures for compulsory drug rehabilitation centers as prescribed in Clause 2 of Article 5 and Clause 2 of Article 96 of the Law on Handling Administrative Violations include foreigners; persons without administrative responsibility capacity; pregnant women with certification from a medical facility; women or the sole caregiver of a child under thirty-six months of age confirmed in writing by the People's Committee of the commune where they reside.

11. Clause 4 of Article 19 shall be amended and supplemented as follows:

“4. The Public Security Agency at the commune level has the responsibility to assist the Chairman of the People's Committee at the same level to verify, collect evidence and prepare files to propose the application of measures to place in compulsory drug rehabilitation center as prescribed in point a and b of Clause 1 of Article 103 of the Law on Handling Administrative Violations"

Article 2. Responsibility for Implementation

The Heads of the Justice Departments at the district level, relevant agencies, organizations, and individuals shall be responsible for implementing this Circular.

Article 3. Implementation Provisions

1. This Circular takes effect from February 1, 2018.

2. During the implementation process, if there are difficulties, obstacles, or new issues arising, it is requested that agencies, organizations, and individuals promptly report them to the Ministry of Justice for study, amendment, and supplementation.