Circular No. 145/2010/TT-BQP guiding the implementation of administrative temporary detention measures for Border Guard Forces and Coast Guard.

CIRCULAR

Guidelines for Implementing Administrative Detention Measures of Border Guard Forces and Coast Guard

Pursuant to the Ordinance on Handling Administrative Violations dated July 2, 2002; the Ordinance Amending and Supplementing Certain Articles of the Ordinance on Handling Administrative Violations dated April 2, 2008;

Pursuant to Decree No. 162/2004/NĐ-CP dated September 7, 2004 of the Government promulgating the Regulations on Administrative Detention;

Pursuant to Decree No. 19/2009/NĐ-CP dated February 19, 2009 of the Government amending and supplementing certain articles of the Regulations on Administrative Detention issued together with Decree No. 162/2004/NĐ-CP dated September 7, 2004;

Pursuant to Decree No. 104/2008/NĐ-CP dated September 16, 2008 of the Government on the Functions, Tasks, Authorities, and Organizational Structure of the Ministry of National Defense;

Considering the proposal of the Commander of the Border Guard Force,

PART I
GENERAL PROVISIONS

Article 1. Scope of Regulation

These Circulars guide the implementation of administrative detention measures of Border Guard Forces and Coast Guard and the guarantee system for persons under temporary detention.

Article 2. Applicability

1. Vietnamese citizens, foreigners committing administrative violations within the management domain of Border Guard Forces and Coast Guard; in cases where international treaties to which the Socialist Republic of Vietnam is a party provide different provisions, such provisions shall be followed.

2. Persons authorized to implement administrative detention measures of Border Guard Forces and Coast Guard.

Article 3. Application of Administrative Detention Measures

1. The application of administrative detention measures may only be implemented in cases where it allows the competent authority of Border Guard Forces and Coast Guard sufficient time to verify and clarify the identity, nature, and severity of the violation, and other important circumstances related to the violation, serving as the basis for issuing decisions on administrative penalties or ensuring the handling of administrative violations.

2. Cases of violations subject to administrative detention measures.

a) Violation of the Agreement on Border Regulations, Border Area Regulations, Maritime Border Area Regulations, and Land Border Gate Regulations; violation in the waters and continental shelf of Vietnam;

b) Immediate prevention and cessation of acts disrupting public order or causing injury to others occurring in border areas, islands, and waters and the continental shelf of Vietnam;

c) Persons arrested pursuant to a search warrant issued by a competent authority (county-level police, principal of a reformatory school, director of an educational institution or medical facility).

3. Persons authorized to implement administrative detention measures of Border Guard Forces and Coast Guard must comply with the provisions set forth in Article 44 of the Ordinance on Handling Administrative Violations; Decree No. 162/2004/NĐ-CP dated September 7, 2004 of the Government promulgating the Regulations on Administrative Detention, Decree No. 19/2009/NĐ-CP dated February 19, 2009 of the Government amending and supplementing certain articles of the Regulations on Administrative Detention issued together with Decree No. 162/2004/NĐ-CP dated September 7, 2004 (Regulations on Administrative Detention), and these Circulars when applying administrative detention measures.

Article 4. Sample Documents Used in Administrative Detention

Attached to these Circulars are the following sample documents used in administrative detention:

1. Sample No. 01: Power of Attorney.

2. Sample No. 02: Record of Handover and Receipt of Administrative Violators.

3. Sample No. 03: Decision on Administrative Detention.

5. Sample No. 04: Decision to Transfer Case Files of Administrative Violations with Criminal Indicators for Criminal Prosecution.

4. Sample No. 05: Decision to Extend the Duration of Administrative Detention.

6. Sample No. 06: Notice of Administrative Detention.

7. Sample No. 07: Register of Administrative Violators Under Temporary Detention.

Article 5. Files for Administrative Procedure Detention of Persons

1. Border Guard Units and Maritime Police Units with the authority to detain persons under administrative procedures must establish files for detention to monitor, updating, recording, and preserving all relevant issues related to the detention of persons fully and specifically.

2. The files for detention of persons include the following documents:

a) Administrative Violation Record;

b) Record of Handover and Acceptance of Administrative Violators;

c) Decision on Administrative Procedure Detention of Persons; decision on extending the duration of administrative procedure detention of persons, and other documents related to persons detained under administrative procedures;

3. Documents in the files for administrative procedure detention of persons must be numbered in sequence, bound into the file cover, and managed according to the legal regulations on file management, confidentiality, and preservation. It is strictly prohibited to erase, alter, change the content, or arbitrarily destroy documents in the detention files. Those responsible for establishing and managing the files for detained violators shall be subject to disciplinary action or legal proceedings depending on the nature and severity of the violation.

Chapter II
AUTHORITY AND PROCEDURES FOR ADMINISTRATIVE PROCEDURE DETENTION OF PERSONS

ADMINISTRATIVE PROCEDURES

Article 6. Authority for Administrative Procedure Detention of Persons

1. The authority for administrative procedure detention of persons is implemented according to the provisions at points h and i, Clause 1, Article 7 of the Administrative Procedure Detention Regulation, including:

a) Chief of Border Guard Subdistricts; Chief of Border Guard Flotillas; Chief of Border Guard Squadrons; Chief of Border Guard Posts and Heads of Border Guard Units stationed at borders and islands;

b) Chiefs of Maritime Police Squadrons; Chiefs of Maritime Police Flotillas.

2. In cases where those persons specified in Clause 1 of this Article are absent, they may authorize their Deputy to exercise the authority for detention. Such authorization must be carried out in writing (Form No. 01), clearly defining the scope, content, and duration of the authorization.

The authorized person may not re-authorize another person and must bear responsibility for their own decisions on administrative procedure detention before their superior and the law.

Article 7. Handover and Acceptance of Persons Engaged in Administrative Violations

The handover and acceptance of persons engaged in administrative violations as stipulated in Article 8 of this Administrative Procedure Detention Regulation shall be conducted as follows:

1. The person with authority as specified in Clauses 1 and 2 of Article 6 of this Circular, upon accepting persons engaged in administrative violations brought by other organizations or individuals, must promptly proceed to establish an administrative violation record (if such organizations or individuals have not already established it) and a handover and acceptance record.

The handover and acceptance record of persons engaged in administrative violations must contain all relevant contents as prescribed (Form No. 02); it must be signed by the party handing over, the party accepting, the person engaging in the violation, and witnesses or victims (if any). If the violator, witness, or victim refuses to sign, the person preparing the record must clearly note the reason for the refusal in the record.

2. For administrative violations discovered, prevented, and recorded in an administrative violation record, or after the handover and acceptance record of persons engaged in administrative violations has been established, if it is deemed necessary to apply the measure of administrative procedure detention, a decision on administrative procedure detention of persons must be issued immediately.

Article 8. Decision on Administrative Detention

1. When there are sufficient grounds and it is deemed necessary to apply the measure of administrative detention against a person who has committed an administrative violation, the authorized person of the Border Guard Force or Coast Guard must immediately issue a decision on administrative detention.

The decision on administrative detention must be fully and clearly recorded according to the prescribed contents (Form No. 03) and stamped with the seal of the issuing authority.

2. When there is evidence suggesting that the administrative violation committed by the person subject to administrative detention may constitute a criminal offense, the person issuing the administrative detention decision shall transfer all case files, the detained person, and related items/equipment (if any) to the competent investigative agency for investigation in accordance with the law.

The decision to transfer the administrative violation case file suspected of being a criminal offense for criminal prosecution must be fully and clearly recorded according to the prescribed contents (Form No. 04).

Article 9. Duration of Administrative Detention

1. According to Clause 3, Article 2 of the Administrative Detention Regulation, the duration of administrative detention shall not exceed 12 hours from the time of commencement of detention of the violator; in cases of necessity, the duration may be extended but shall not exceed 24 hours.

For violations of border regulations or administrative violations in remote mountainous areas or islands, the duration of detention may be extended further but shall not exceed 48 hours.

2. The extension of the detention period can only be applied in truly necessary circumstances, which are those requiring additional time to verify the identity of the violator and important, complex details related to the administrative violation committed by the detained person to serve as the basis for deciding on administrative sanctions or to ensure the handling of the violator.

Before the end of the detention period, the authorized person of the Border Guard Force or Coast Guard must issue a decision to extend the duration of administrative detention (Form No. 05), but shall not exceed the maximum detention period.

3. In cases where the detention period recorded in the detention decision has not yet expired, but the violation has been verified or resolved, or the administrative detention period has ended, the decision maker must immediately terminate the detention and record this in the administrative detention tracking log, with the signature confirmation of the detained person.

If the detained person does not sign, the decision maker must prepare a record or assign the person directly executing the task to prepare and clearly record the reason why the detained person did not sign in the record. The record must have the signatures of the preparer, the decision maker, and the witness (if any).

Article 10. Notification of Administrative Detention Decision

The notification of the administrative detention decision to the family, organization, workplace, school, or parents, guardians of the detained person as stipulated in Article 10 of the Administrative Detention Regulation shall be carried out as follows:

1. For Vietnamese citizens who violate and are detained

a) At the request of the detained person and based on specific circumstances, the decision maker may notify the decision on administrative detention to the family, agency, workplace, or school of the detained person through written documents, telephone, fax, or other communication means;

b) In cases where a minor is detained at night (from 10 PM to 5 AM the next day) or detained for more than six hours, the decision maker must immediately notify their parents or guardians. In cases where the parents or guardians cannot be identified, the detained person must be informed and the reason must be clearly recorded in the administrative detention tracking log.

2. For foreign nationals who violate and are detained.

a) Foreign nationals holding passports or travel documents, seaman's books, or without passports who commit administrative violations and are detained, the decision maker must complete all procedures as required by law (preparing administrative violation records, issuing detention decisions...), while reporting to the superior authority to immediately inform the Ministry of Foreign Affairs (Consular Department or Ho Chi Minh City Department of Foreign Affairs) for coordination in handling.

In cases where the diplomatic mission or consular post requests to meet with their detained nationals, the responsible agency/unit must coordinate with the Ministry of Foreign Affairs to arrange for representatives of the diplomatic mission or consular post of that country to visit and handle other related foreign affairs issues.

b) For foreign nationals residing in border areas of neighboring countries (China, Laos, Cambodia) crossing the border with border passes, travel permits, certificates issued under the Agreement on Border Regulations, or exit-entry permits (for sightseeing or tourism purposes) still valid under agreements between Vietnam and neighboring countries, who commit administrative violations and are administratively detained, the Border Guard Post Commander or authorized person must complete all procedures as required by law (preparing administrative violation records, issuing detention decisions...) and report immediately to the Provincial Border Guard Command Chief for notification to the Ministry of Foreign Affairs (Consular Department or Ho Chi Minh City Department of Foreign Affairs), while informing the border protection force of the neighboring country about the violator to coordinate in handling.

3. The notification of administrative detention must clearly state the grounds, the unit conducting the detention, information about the detained person, and the detention period and location (Form No. 06).

Chapter III
PLACE OF DETENTION, GUARANTEE REGIME FOR PERSONS SUBJECT TO ADMINISTRATIVE DETENTION PURSUANT TO ADMINISTRATIVE PROCEDURES

Article 11. Place of Administrative Detention

1. The place of administrative detention is an administrative detention house (referred to as "administrative detention house") constructed at the unit's camp (Border Guard Sub-district, Border Guard Post, Border Guard Sea Squadron, Border Guard Sea Battalion under the Provincial Border Guard Command, directly under the Central Government, Coast Guard Sea Squadron, Coast Guard Sea Battalion) and must be marked with the sign: "ADMINISTRATIVE DETENTION HOUSE".

2. The form and scale of the administrative detention house at units mentioned in Clause 1 of this Article when being built must comply with the provisions of Article 11 of the Administrative Detention Regulation and ensure the following requirements:

a) Based on the area, nature, characteristics, conditions, and volume of people subject to administrative detention, the actual needs of detention to arrange, design, and construct appropriately; the location chosen for building the administrative detention house should avoid proximity to dining halls, weapon storage areas, places that do not ensure hygiene and safety for those detained, and should not affect the unit's military readiness and combat preparedness.

b) The administrative detention house must provide separate detention areas for minors, women, and foreigners; have locks, ensure lighting, ventilation, hygiene, and fire prevention and firefighting safety, facilitate management and protection, and have staff responsible for management. People subject to administrative detention overnight must be provided with beds or floors to lie on and blankets, quilts, mosquito nets; the minimum lying space for each person is 2 square meters.

c) In cases where the unit does not yet have an administrative detention house, people violating the law may be temporarily detained in the duty room, conference hall, reception room, other rooms in the camp, administrative detention cells on Coast Guard vessels, or on the seized vessels of the violators, but must ensure the regulations on administrative detention as stipulated by law.

3. Staff directly managing people subject to detention shall inform them of the internal rules of the administrative detention house so that they can voluntarily comply.

Article 12. Food and Drink for People Subject to Administrative Detention

In principle, all food and living expenses of people subject to detention during the detention period shall be borne by the detainee or their family; if the detainee or their family cannot bear these costs, then the agency or unit of the decision-maker shall ensure the food and living conditions during the detention period according to the provisions of Article 14 of the Administrative Detention Regulation.

Article 13. Handling of People Subject to Administrative Detention Who Fall Ill During Detention

1. If a person subject to administrative detention falls ill during detention, the agency or unit of the decision-maker must treat them on-site; in case of serious illness requiring emergency treatment, they must promptly organize transportation to the nearest state or private medical facility for emergency treatment, while immediately informing the family or close relatives about it. When transporting the detainee to a medical facility for examination and treatment, a detailed and clear record must be made regarding the time of examination and treatment, the health condition of the detainee, and related issues; the record must be signed (with full name or fingerprint) by the detainee, the authorized detention officer, and a representative from the medical facility.

The time spent on medical examination and treatment shall not be counted towards the detention period.

2. If the family or close relatives submit a request to take the detainee home for care and treatment, and it is deemed unnecessary to continue detention, the authorized detention officer shall issue a decision to terminate administrative detention and allow the detainee to return home.

Before releasing the detainee, the authorized detention officer must prepare a record. The record must clearly state the health condition of the detainee at the time of the decision to terminate administrative detention, along with related issues such as property, means of transportation, money, documents, etc., of the detainee, and signatures of the detainee or their family/close relatives and the authorized detention officer. In case the money or property entrusted for safekeeping by the detainee is lost, damaged, or misplaced, the agency or unit issuing the detention decision shall be responsible for compensation.

3. For people subject to administrative detention without a fixed residence, without family or close relatives, or whose family or close relatives are far away and unable to arrive in time for care or refuse to provide care, the unit of the decision-maker shall arrange for someone to directly manage and care for the detainee at the medical facility where they are receiving treatment.

Article 14. Handling of persons under administrative detention who die during the period of detention

The handling of persons under administrative detention who die during the period of detention shall be carried out in accordance with the provisions of Clause 2, Article 15 of the Administrative Detention Regulation; the person authorized to issue the detention decision must carry out the following activities:

1. Organize the protection of the scene, immediately report to the immediate superior commander, the Investigative Agency, the competent People's Procuracy to handle according to the provisions of the law, while informing the relatives and family of the deceased.

2. Closely cooperate with the Investigative Agency, the People's Procuracy, medical services, and related agencies to investigate and clarify the cause of death of the detained person; provide all relevant documents and information as required by the competent authority.

3. Complete the case file and report to the immediate superior according to the regulations.

4. In cases where the detained person who dies is a foreigner, the border guard unit, maritime police, in addition to implementing the guidance provided for in Clauses 1, 2, and 3 of this Article, based on each specific case, implement the following contents:

a) If the detained person has a passport or other travel document still valid, the person issuing the detention decision must report to the immediate superior commander to immediately notify the Ministry of Foreign Affairs (Consular Department or Foreign Affairs Office of Ho Chi Minh City) or the competent state agency to coordinate with the diplomatic or consular agency of the country of which the deceased is a citizen to handle the situation.

b) If the detained person is a resident of the border area of a neighboring country, the Border Guard Post Commander must report to the Border Guard Command of the province or centrally governed city to seek instructions, and at the same time immediately inform the border protection force of the neighboring country about the deceased resident to coordinate in handling the situation.

After 24 hours from the time of notification to the border protection force of the neighboring country, if they have not sent representatives or relatives to receive the body or have not made other requests, the Border Guard Post Commander must report to the Border Guard Command of the province or centrally governed city to seek instructions, and at the same time coordinate with functional agencies and local authorities to ensure procedures, files, and burial of the deceased in accordance with Vietnamese law.

5. Burial of detained persons who died requires attention to the following:

a) When the Investigative Agency and the People's Procuracy agree to allow burial, the family of the deceased is responsible for organizing the burial.

b) In cases where the detained person who died is a Vietnamese citizen without family or relatives, or whose place of residence, work, employment, study, etc., cannot be determined to notify, the burial will be handled by the detention agency or unit in coordination with the local government. The burial of the deceased shall be carried out in accordance with the regulations on death registration procedures and ensuring environmental hygiene requirements.

c) In cases where the detained person who died is a foreigner, the burial and interment shall be resolved in accordance with international treaties to which Vietnam is a member or in accordance with Vietnamese law taking into account the wishes of the deceased's relatives or the request of the diplomatic or consular agency of the country of which the deceased is a citizen.

In cases where there is no international treaty or agreement between the Government of Vietnam and the country of the detained person who died regarding specific cases or the nationality of the deceased cannot be determined, the burial and interment shall be applied as for Vietnamese citizens who died in detention.

d) The organization of the burial of the deceased detained person must be documented in a record, with photographs retained in the case file of the unit.

6. The costs for the burial expenses of detained persons who died shall be borne by their families. In cases where the families cannot bear these costs, the border guard unit or maritime police that issued the detention decision shall be responsible for ensuring the burial expenses in accordance with the regulations.

Article 15. Cases where costs cannot be self-assured

1. The following cases shall be considered as persons temporarily detained under administrative procedures or their families unable to ensure the costs:

a) The person temporarily detained or their family has no money or assets;

b) The family, relatives, or guardians of the person temporarily detained abandon them;

c) The person temporarily detained is an individual whose place of residence, family, or relatives cannot be determined;

d) The family or relatives of the person temporarily detained are far from the place of detention, without conditions to support, supply, care for, or take on burial responsibilities.

2. The funds to ensure food, medical examination, treatment, and burial expenses for persons temporarily detained under administrative procedures who cannot self-assure these costs shall be provided from the state budget and taken from the funds of the agency or unit with authority to issue the temporary detention decision.

Border Guard units and Maritime Police units must maintain records when implementing temporary detention and settle accounts according to the provisions of the law.

Chapter IV
IMPLEMENTING PROVISIONS

Article 16. Financial Guarantees

1. The funds to ensure the application of temporary detention measures under administrative procedures include the following expenditures:

a) Expenditure on printing forms, cover sheets, and books serving the application of temporary detention measures under administrative procedures;

b) Expenditure on construction, repair, and upgrading detention facilities;

c) Expenditure on purchasing equipment and means serving temporary detention;

d) Expenditure on receiving and transferring individuals who have committed administrative violations;

đ) Expenditure on food, medical examination, and treatment for persons temporarily detained, and burial expenses when such persons die during detention if they or their families cannot self-assure these costs;

e) Other expenditures serving the temporary detention of persons under administrative procedures.

2. The funds to ensure temporary detention under administrative procedures shall be provided from the state budget and allocated annually by the competent authority to the Ministry of National Defense.

Article 17. Implementation Organization

1. This Circular takes effect from December 16, 2010.

2. The Border Guard Command and the Maritime Police Department shall be responsible for:

a) Organizing the dissemination to Border Guard units, Maritime Police units, and related agencies to implement the Administrative Temporary Detention Regulation and this Circular;

b) Annually, based on requirements, tasks, and the actual situation of temporary detention under administrative procedures, preparing the budget for ensuring funds according to the State Budget Law and guiding documents;

c) Coordinating with functional agencies under the Logistics General Department and related agencies under the Ministry of National Defense to unify the design model for administrative detention houses, reporting to the Ministry for approval;

d) Supervising, urging, and inspecting the implementation. Conducting annual reviews and reporting the results of implementation to the Ministry of National Defense./.