Consolidated Document number 1934/VBHN-BTP guiding the method for calculating time spent and procedures for settling costs of legal aid cases

CIRCULAR

GUIDELINES ON THE CALCULATION OF TIME FOR IMPLEMENTATION AND PROCEDURES FOR PAYMENT OF COSTS FOR IMPLEMENTING LEGAL AID CASES

Circular No. 18/2013/TT-BTP dated November 20, 2013, issued by the Minister of Justice, guiding the calculation of time for implementation and procedures for payment of costs for implementing legal aid cases, which took effect from January 10, 2014, has been amended and supplemented by:

Circular No. 05/2017/TT-BTP dated April 20, 2017, issued by the Minister of Justice, amending and supplementing certain provisions of Circular No. 18/2013/TT-BTP dated November 20, 2013, issued by the Minister of Justice, guiding the calculation of time for implementation and procedures for payment of costs for implementing legal aid cases, which took effect from July 1, 2017.

Pursuant to the Legal Aid Law on June 29, 2006;

Pursuant to Decree No. 22/2013/NĐ-CP dated March 13, 2013, of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Justice;

Pursuant to Decree No. 07/2007/NĐ-CP dated January 12, 2007, issued by the Government, detailing and guiding the implementation of certain provisions of the Legal Aid Law;

Pursuant to Decree No. 14/2013/NĐ-CP dated February 5, 2013, issued by the Government, amending and supplementing certain provisions of Decree No. 07/2007/NĐ-CP dated January 12, 2007, issued by the Government, detailing and guiding the implementation of certain provisions of the Legal Aid Law;

To implement the consensus opinion of the Ministry of Finance and the Ministry of Justice in Joint Circular No. 209/2012/TTLT-BTC-BTP dated November 30, 2012, issued by the Ministry of Finance and the Ministry of Justice, guiding the preparation, management, use, and settlement of funds ensuring the operation of state legal aid agencies, the Minister of Justice issues this Circular guiding the calculation of time for implementation and procedures for payment of costs for implementing legal aid cases as follows:

Article 1. Scope of Regulation and Applicability

Article 1. This Circular guides the calculation of time for implementation and procedures for payment of costs for implementing legal aid cases.

Article 2. This Circular applies to State Legal Aid Centers (hereinafter referred to as Centers), Branches of Centers (hereinafter referred to as Branches), and legal aid volunteers; in the case where a Legal Aid Officer implements legal aid in the form of participating in litigation, representing outside litigation, or mediation, the calculation of time for implementation and procedures for payment of costs for implementing legal aid cases shall be carried out in accordance with the provisions of this Circular, and the Legal Aid Officer shall enjoy a case allowance equal to 20% of the rate applicable to legal aid volunteers.

Article 2. Implementation Principles

Clause 1. In accordance with the complexity of each case as prescribed in Circular No. 05/2008/TT-BTP dated September 23, 2008, issued by the Ministry of Justice, guiding legal aid operations and state management of legal aid; creating conditions for Centers, Branches, Legal Aid Officers, and legal aid volunteers in the payment of costs for implementing legal aid cases.

Clause 2. When approving the payment of costs for implementing legal aid cases, the Director of the Center is responsible for the legality and rationality of the approval.

Clause 3. When declaring the time spent on implementing legal aid cases, the person implementing legal aid is responsible for the authenticity of the declaration.

Clause 4. When confirming the working hours of the person implementing legal aid, the person confirming is responsible for the authenticity of the confirmation.

Article 3. Time for Legal Consultation

1. Oral legal consultation time (measured in hours) and the basis for determining legal consultation time include:

a) Direct meeting and contact time with the person receiving legal aid or their relatives confirmed by the person receiving legal aid or their relatives;

b) Verification and working time at agencies, organizations, and individuals related to the legal aid case confirmed by the agency, organization, or individual where the work is performed;

c) Research time on the case file of the legal aid case; preparation time for materials for legal consultation confirmed by the Center or Branch based on the proposal of the person implementing legal aid;

2. For written legal consultation cases, the payment of expenses shall be carried out according to the provisions in Section 1.4 of the Appendix issued together with Circular Joint No. 209/2012/TTLT-BTC-BTP dated November 30, 2012, of the Ministry of Finance and the Ministry of Justice guiding the establishment, management, use, and settlement of funds to ensure the operation of state legal aid agencies and organizations.

Article 4. Time for Participation in Litigation Proceedings

1. The time for participation in criminal litigation proceedings includes:

a) Meeting time with the accused at the Detention Center or Temporary Holding Facility confirmed by the Detention Center or Temporary Holding Facility staff; in cases where the defendant is outside custody, the meeting time is confirmed by the defendant or their legal representative;

b) Time participating in interrogating the suspect or taking statements from the victim, witness, or interested parties together with the Investigator or Prosecutor confirmed by the Investigator or Prosecutor conducting the interrogation or taking statements;

c) Meeting and working time with the relatives of the accused; meeting and working time with the victim or the relatives of the victim, civil plaintiff, civil defendant, interested parties, witnesses, and other participants in the litigation confirmed by these individuals;

d) Meeting and working time with the litigation process personnel and agencies according to the stages of the litigation confirmed by the person directly performing the work;

đ) Time participating in other litigation activities (confrontation, identification, voice recognition, reenactment of the scene, etc.) together with the Investigator or Prosecutor confirmed by the Investigator or Prosecutor;

e) Research time on the case file, copying, and preparing materials at the litigation agency according to the stages of the litigation confirmed by the litigation personnel assigned to resolve the case;

g) Time verifying, collecting, and evaluating necessary documents, objects, and evidence related to defense and protection confirmed by the agency, organization, or individual where the legal aid implementer conducts verification and evidence collection; preparation time for defense arguments confirmed by the Center or Branch based on the proposal of the legal aid implementer and consistent with the nature and content of the case;

h) Time participating in court sessions confirmed by the Presiding Judge or Court Clerk;

i) Time performing necessary tasks related to the appeal procedure against the first-instance judgment, second-instance judgment, cassation review, or retrial procedure confirmed by the person receiving legal aid or by the Center or Branch based on the proposal of the legal aid implementer and consistent with the nature and content of the case;

k) Time performing other necessary tasks during the implementation of the case to serve defense and protection confirmed by the Center or Branch based on the proposal of the legal aid implementer and consistent with the nature and content of the case;

2. The time for participation in civil litigation proceedings includes:

a) Meeting and working time with the parties, witnesses, and other litigation participants confirmed by these individuals;

b) Meeting and working time with the litigation process personnel and agencies according to the stages of the litigation confirmed by the person directly performing the work;

c) Research time on the case file, copying, and preparing materials at the litigation agency confirmed by the person assigned to resolve the case;

d) Time verifying, collecting, and evaluating necessary documents, objects, and evidence related to protection confirmed by the agency, organization, or individual where the legal aid implementer conducts verification and evidence collection; preparation time for protection arguments confirmed by the Center or Branch based on the proposal of the legal aid implementer and consistent with the nature and content of the case;

đ) Time participating in other litigation activities (expert appraisal, valuation, etc.) confirmed by the agency or organization conducting such activities;

e) Time participating in the hearing to check the submission, access, and public disclosure of evidence confirmed by the person assigned to resolve the case;

g) Time participating in mediation for mandatory pre-trial mediation in civil cases as required by law confirmed by the Presiding Judge or Mediation Hearing Clerk;

h) Time participating in court sessions confirmed by the Presiding Judge or Court Clerk;

i) Time performing necessary tasks related to the appeal procedure against the first-instance judgment, second-instance judgment, cassation review, or retrial procedure confirmed by the person receiving legal aid or by the Center or Branch based on the proposal of the legal aid implementer and consistent with the nature and content of the case;

k) Time performing other necessary tasks during the implementation of the case to serve protection confirmed by the Center or Branch based on the proposal of the legal aid implementer and consistent with the nature and content of the case;

3. The time for participation in administrative litigation proceedings includes:

a) Meeting and working time with individuals and organizations related to the case as provided in points a, b, c, d, đ, e, h, i, and k of Clause 2 of this Article;

b) Time participating in dialogue confirmed by the Judge or Dialogue Hearing Clerk;

4. In cases where the Center Director or Branch Head decides to assign two or more legal aid implementers to provide legal aid for one recipient in the same case as prescribed by law, the time serving as the basis for settling the allowance for implementing the legal aid case for each person must ensure that only one person is credited for each task performed.

5. In case the judicial proceeding agency suspends or temporarily suspends the case, the time serving as the basis for paying the support system compensation for the person providing legal aid shall be the actual time that the person providing legal aid participated in providing legal aid until the suspension or temporary suspension of the case.

6. In case there is a change in the person providing legal aid, the time serving as the basis for paying the support system compensation for the person providing legal aid shall be the actual time that the person providing legal aid participated in providing legal aid until the replacement. The time serving as the basis for paying the support system compensation for the person assigned to replace by the Center or Branch shall be the actual time that the person assigned to replace continues to perform subsequent tasks.

7. In case the person providing legal aid continues to be assigned by the Center or Branch to provide legal aid in subsequent litigation stages or in cases where the case continues to be resolved after being temporarily suspended, the time serving as the basis for paying the support system compensation for the person providing legal aid shall be the actual time that the person providing legal aid participated in providing legal aid in the subsequent stage.

Article 4a. Support System Compensation Based on Working Hours

1. The support system compensation based on working hours (half a working day) shall apply to legal aid representation cases outside litigation and litigation participation cases selected by the person providing legal aid as the basis for payment of the support system compensation for implementing the case.

2. The working hours serving as the basis for paying the support system compensation for implementing the case to the person providing legal aid shall be determined as follows:

a) The working hours of the person providing legal aid shall be calculated based on four working hours;

b) In cases where the person providing legal aid works in multiple sessions but each session does not reach four hours, the number of working sessions shall be calculated based on the total actual working hours (cumulative) of the person providing legal aid. Any remaining working hours (if any) shall be calculated as follows:

If the remaining working hours are less than three hours, it shall be counted as half a working session. If the remaining working hours are three hours or more, it shall be counted as one working session.

Article 4b. Case-Based Allocation Expenses

1. Case-based allocation expenses shall apply to litigation participation cases selected by the person providing legal aid through a written form after being assigned as the basis for payment of the support system compensation for implementing the case.

2. When implementing case-based allocation expenses, the Director of the Center shall base the decision on the nature and content of the litigation participation case to determine the allocation expense amount, specifically as follows:

a) For criminal litigation participation cases, the nature of the case serving as the basis for implementing case-based allocation expenses shall be determined based on the provisions regarding the classification of crimes in the Criminal Procedure Code;

b) For civil litigation participation cases, the nature of the case serving as the basis for implementing case-based allocation expenses shall be determined according to the provisions of Clause 3, Article 337 of the Civil Procedure Code;

c) For administrative litigation participation cases, the nature of the case serving as the basis for implementing case-based allocation expenses shall be determined according to the provisions of Clause 12, Article 3 of the Administrative Procedure Law.

3. When choosing the case-based allocation expense method, depending on the nature and content of the case, the person providing legal aid must perform the following tasks:

a) Criminal litigation participation case: meeting and working with the accused, the victim, persons with rights and interests related to the case, other participants in the proceedings; participating in procedural activities; working with judicial agencies, procedural actors, and performing other necessary tasks related to defense and protection.

Details of the tasks that need to be performed, corresponding time for each task, and the maximum allocated time for each case are shown in Appendix No. 01 attached to this Circular.

b) Civil litigation participation case; administrative litigation participation case: meeting and working with parties, participants in the proceedings, procedural actors; participating in procedural activities; working with judicial agencies, procedural actors, relevant organizations, institutions, and individuals, and performing other necessary tasks related to protection.

Details of the tasks that need to be performed, corresponding time for each task, and the maximum allocated time for each case are shown in Appendices No. 02 and No. 03 attached to this Circular.

4. Payment of support system compensation to the person providing legal aid under the case-based allocation expense method must be based on the work that the person providing legal aid has performed. In case the person providing legal aid does not perform one or several tasks as prescribed in this Circular, those tasks will not be considered as the basis for payment of support system compensation.

Example: Lawyer A was assigned by the Legal Aid Center to provide legal aid for a serious crime. Under the allocation method, Lawyer A must perform the tasks listed in Part A of Appendix No. 01 (participating from the investigation stage to the first-instance trial for serious crimes). During the provision of legal aid, Lawyer A meets with the person receiving legal aid to agree on the level of compensation... at least once, then the time serving as the basis for calculating one session's compensation equivalent to 500,000 VND without depending on the number of meetings or the working time of each meeting. If Lawyer A does not perform this task, one session will be deducted accordingly.

5. The person providing legal aid shall declare the completed tasks and confirm the completed tasks in Form No. 02 issued together with Circular No. 18/2013/TT-BTP dated November 20, 2013, guiding the calculation of working time and procedures for settling costs for implementing legal aid cases issued by the Minister of Justice.

Article 4c. Allocation of expenses on a case-by-case basis in certain special cases

1. In cases where the Director of the Center or the Branch Head decides to assign two (2) Legal Aid Assistants to provide legal aid for one (1) beneficiary in the same case, the basis for payment of allowances shall be the actual work performed by each person but shall not exceed the number of sessions corresponding to the case-based expense allocation form prescribed in the Appendix attached hereto.

Example 1: A is indicted for a crime with a penalty range classified as serious, the Center Director assigns two (2) people to provide legal aid for A from the investigation stage. After completion, the Center Director will base the allowance payment on the actual work done by the two (2) persons but the number of sessions paid shall not exceed: fourteen (14) sessions.

2. In cases where one (1) legal aid assistant is assigned to provide legal aid for two (2) beneficiaries or more in the same case, the basis for payment of allowances for implementing the case shall be as follows:

a) If the nature of the case is the same, the basis for payment of allowances shall be the actual work performed by the person providing legal aid but shall not exceed one hundred thirty percent (130%) of the number of sessions corresponding to the case-based expense allocation form prescribed in the Appendix attached hereto.

Example 2: Lawyer-collaborator A provides legal aid for B and C from the investigation stage. Both B and C are indicted for crimes with a penalty range classified as less serious. After completion, the Center will base the allowance payment on the actual work done by Collaborator A but the number of sessions paid shall not exceed: one hundred thirty percent (130%) x eight point five (8.5) sessions = eleven point five (11.5) sessions.

b) If the nature of the case is different, the expense allocation level shall not exceed one hundred thirty percent (130%) of the number of sessions corresponding to the more complex case.

Example 3: Lawyer-collaborator B provides legal aid for A and C from the investigation stage. A is indicted for a crime with a penalty range classified as less serious, C is indicted for a crime with a penalty range classified as serious. The basis for payment of allowances shall be the actual work performed by the person providing legal aid but shall not exceed: one hundred thirty percent (130%) x fourteen (14) sessions = eighteen point two (18.2) sessions.

3. In cases where legal aid is provided for one (1) beneficiary who is indicted for two (2) charges or more in the same case, the basis for payment of allowances for implementing the case shall be as follows:

a) If the two (2) charges have different penalty ranges according to the nature of the case, the expense allocation level shall not exceed one hundred thirty percent (130%) of the number of sessions corresponding to the charge with the higher penalty range.

Example 4: A is indicted for two (2) charges: one (1) charge with a penalty range classified as serious, one (1) charge with a penalty range classified as very serious and the person providing legal aid participates from the investigation stage. The basis for payment of allowances shall be the actual work performed by the person providing legal aid but shall not exceed: one hundred thirty percent (130%) x nineteen (19) sessions = twenty-four point seven (24.7) sessions.

b) If the two (2) charges have the same penalty range under the same nature, the basis for payment of allowances shall be the actual work performed by the person providing legal aid but shall not exceed one hundred thirty percent (130%) of the number of sessions corresponding to the case-based expense allocation form prescribed in the Appendix attached hereto;

Example 5: B is indicted for two (2) charges both with the same penalty range classified as very serious and the person providing legal aid participates from the investigation stage, the basis for payment of allowances shall be the actual work performed by the person providing legal aid but shall not exceed: one hundred thirty percent (130%) x nineteen (19) sessions = twenty-four point seven (24.7) sessions.

Article 5. Time for representation outside litigation proceedings

The time and basis for determining the time for representation outside litigation proceedings include:

1. Time spent meeting and contacting the person receiving legal aid, their relatives, and witnesses confirmed by these individuals;

2. Time spent studying case files and preparing materials for representation confirmed by the Center or Branch based on the proposal of collaborating lawyers or legal aid officers;

3. Time spent verifying, collecting documents, objects, evidence, and circumstances related to representation confirmed by the Center or Branch based on the proposal of collaborating lawyers or legal aid officers;

4. Time spent by collaborating lawyers or legal aid officers meeting and working with relevant agencies, organizations, or individuals confirmed by those agencies, organizations, or individuals;

5. Time spent by collaborating lawyers or legal aid officers representing before agencies, organizations, or individuals authorized to resolve legal aid cases confirmed by those agencies, organizations, or individuals.

Article 6. Procedures for requesting payment of costs for implementing legal aid cases

1. After completing advisory work, participating in litigation, or representation outside litigation proceedings, the person implementing legal aid prepares one set of documents to request payment of costs for implementing the legal aid case and sends it to the Center or Branch. The documents include:

a) A list of expenses and time spent on legal advice, participation in litigation, and representation outside litigation proceedings (Form No. 01 issued together with this Circular);

b) A work time confirmation form (Form No. 02 issued together with this Circular);

c) Invoices, receipts, and other valid documents proving administrative expenses related to the implementation of the legal aid case (if any) in accordance with current financial regulations.

2. After completing mediation work, the person implementing legal aid prepares a list of expenses for implementing the mediation case (Form No. 03 issued together with this Circular) and sends it to the Center or Branch to request payment.

3. Payment deadline for the allowance for implementing legal aid cases.

Within three (03) working days from the date of receipt of the payment request documents as stipulated in Clause 1 and Clause 2 of this Article, the Branch that assigned the person to implement legal aid must transfer the documents to the Center for payment according to regulations.

Within five (05) working days from the date of receipt of valid documents as stipulated in this Circular, the Center is responsible for paying the costs for implementing the legal aid case to the requester according to regulations.

If the documents are not complete, within three (03) working days from the date of receipt of the documents, the Center requests the person implementing legal aid to complete them.

Article 7. Implementation Provisions

This Circular takes effect from January 10, 2014.

During the implementation process, if difficulties or obstacles arise, localities are requested to report to the Ministry of Justice for research, amendment, and supplementation in a timely and appropriate manner.