Circular No. 22/2004/TT-BCA guiding the implementation of certain provisions of the Government's Decree No. 163/2003/NĐ-CP dated December 19, 2003 detailing the implementation of educational measures at commune, ward, and town levels.

CIRCULAR

Guidelines for Implementing Certain Provisions of Decree No. 163/2003/NĐ-CP dated December 19, 2003 of the Government

detailing the implementation of educational measures at commune, ward, town level

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On December 19, 2003, the Government issued Decree No. 163/2003/NĐ-CP detailing the implementation of educational measures at commune, ward, town level (hereinafter referred to collectively as commune level). To implement uniformly the above-mentioned Decree of the Government, the Ministry of Public Security provides guidelines for implementing certain provisions of the Decree, specifically as follows:

I. REGARDING THE APPLICATION OF EDUCATIONAL MEASURES AT COMMUNE LEVEL

1. The application of educational measures at commune level must be in accordance with the subjects specified in Article 23 of the Administrative Violation Handling Ordinance, Clause 3 of Decree No. 163/2003/NĐ-CP dated December 19, 2003 of the Government (hereinafter referred to collectively as Decree No. 163) and the guidance provided herein.

2. The subjects to whom educational measures at commune level apply must be Vietnamese citizens with a fixed place of residence, aged 12 years or older, who have committed acts violating the law, including:

a. Persons aged from 12 to 16 years old committing acts indicative of a serious crime under the Criminal Code due to intent;

b. Persons aged 12 years or older repeatedly committing petty theft, small fraud, minor gambling, organizing gambling or setting up gambling venues, disrupting public order;

c. Persons addicted to drugs aged 18 years or older;

d. Persons engaging in prostitution on a regular basis aged 14 years or older;

đ. Persons committing one of the following violations of the law two or more times within a period of 12 months but not reaching the threshold for criminal prosecution:

- Infringing upon the health, reputation, dignity of citizens, foreigners;

- Infringing upon the property of organizations, individuals in Vietnam or abroad;

- Organizing, brokering prostitution;

- Obstructing public officials in the performance of their duties;

- Abusing democratic freedoms, religious freedom to incite others to infringe upon the interests of the State, rights and legitimate interests of organizations, individuals;

- Organizing coercion, incitement, enticement of others to flee abroad or remain illegally abroad;

- Other acts violating social order and safety;

e. Persons committing acts violating the law subject to being placed in an educational facility, but over 55 years old for women and over 60 years old for men.

3. To ensure the examination and establishment of files, decision-making on the application of educational measures at commune level for specific subjects in accordance with the provisions of the Administrative Violation Handling Ordinance and Decree No. 163, the following points should be noted during implementation:

a. Regarding age: The date to determine the age of the subject specified in point 2 above is the day the subject commits the last act of violation. For cases where the subject commits acts violating the law subject to being placed in an educational facility, but over 55 years old for women and over 60 years old for men, requiring the application of educational measures at commune level, the date to determine the age is the date of signing the decision for educational measures at commune level. Legal basis for determining age is the Birth Registration Certificate, if there is no Birth Registration Certificate, then it must be based on the Household Registration Book or Identity Card or documents verified and collected by the Police Station.

b. A person committing an act indicative of a serious crime under the Criminal Code due to intent must be understood as those crimes causing significant harm to society, for which the Criminal Code stipulates the highest penalty for that crime up to seven years' imprisonment.

c. A person repeatedly committing acts violating the law or committing acts violating the law regularly means committing two or more acts violating the law within a period of 12 months.

d. A person committing petty theft, small fraud, minor gambling, organizing gambling or setting up gambling venues, disrupting public order must be understood as they commit these acts, but not reaching the threshold for criminal prosecution.

đ. A person with a fixed place of residence must be a person with permanent household registration or temporary residence registration for a certain period at a specific location and regularly working and living there.

4. For cases directly discovered, handled, and investigated by provincial or district-level police agencies in cases of law violations, but not reaching the threshold for criminal prosecution and falling under the category of subjects to whom educational measures at commune level apply according to Clause 2, Article 9 of Decree No. 163, such subjects must also meet all conditions stipulated in the Administrative Violation Handling Ordinance, Decree No. 163, and the guidance provided in this Circular.

5. Persons committing acts violating the law subject to being placed in an educational facility, but over 55 years old for women and over 60 years old for men, as stipulated in point e, Clause 1, Article 3 of Decree No. 163, include:

a. Persons committing acts violating the law subject to being placed in an educational facility, when committing the last act of violation or during the time establishing the file for placement in an educational facility, they are over 55 years old for women and over 60 years old for men, in these cases, no file shall be established to propose the application of measures for placement in an educational facility, but instead, the Chairman of the People's Committee at the commune level (Chairman of the People's Committee) shall be proposed to apply educational measures at commune level for them.

b. Persons who have been established in a file and the Standing Council continuously transferring the file to propose the Chairman of the Provincial People's Committee to consider and decide on the application of measures for placement in an educational facility, but on the date of signing the decision, they are over 55 years old for women or over 60 years old for men, then the Director of the Provincial Police must issue a document proposing the Chairman of the Provincial People's Committee not to issue a decision for placement in an educational facility. Subsequently, transfer the entire file to the Chairman of the People's Committee at the commune level where they reside to consider and decide on the application of educational measures at commune level.

c. In the case where a person has been issued a decision to be placed in an educational facility but the execution of such decision has not yet been organized, or where a person has been issued a decision to be placed in an educational facility but has not complied with the decision and has fled, and when they are apprehended again, they are over 55 years old for females or over 60 years old for males, the Director of the Provincial Public Security must prepare a document requesting the Chairman of the Provincial People's Committee to revoke the decision to place them in the educational facility. In this situation, the provincial public security agency must transfer the file to the Chairman of the Commune People's Committee to issue a decision to apply community-level educational measures against them in accordance with the provisions of the law.

II. ON THE DURATION OF COMMUNITY EDUCATION

1. According to Article 2 of Decree No. 163, the duration of community education is from three months to six months; this period must be specifically recorded in the decision on community education.

2. Depending on the nature, level of violation, and personal circumstances of the individual subject to community education measures (hereinafter referred to as the individual subject to education), the Chairman of the Commune People's Committee shall consider and decide on the duration of community education suitable for each specific individual. The duration of community education is calculated from the date the agency or organization responsible for managing and educating the individual subject to education organizes a meeting in accordance with Article 13 of Decree No. 163 to implement the decision on community education.

III. REGARDING THE CONSIDERATION AND ISSUANCE OF DECISIONS TO APPLY COMMUNITY EDUCATION MEASURES

The application of community education measures must be carried out strictly in accordance with the provisions of Articles 8, 9, and 10 of Decree No. 163, while implementing, attention should be paid to the following points:

1. Proposing the application of community education measures

a. The proposal to apply community education measures by the Head of the Commune Police Station, the Chairman of the Commune People's Committee for Mass Organizations, or representatives of one of the agencies, organizations, or grassroots units must be in writing. Grassroots units include: Legal Affairs Board; People's Inspectorate; Education Board; Population, Family, and Children Board; school; Youth Union; Women's Union; Veterans' Association; Ward Chief or Resident Group Leader; Village Chief, Hamlet Chief, Village Chief, or Clan Chief. This proposal must be sent to the Chairman of the Commune People's Committee for consideration and decision.

The content of the proposal must clearly state the date, month, year, and location of the proposal; the name, address, signature of the proposer or the name, signature of the representative of the proposing agency or organization; the name, date of birth, place of residence, and personal circumstances of the individual proposed to be subject to community education measures; the reasons for the proposal, which must clearly state the illegal acts of the individual proposed to be subject to community education measures.

b. For cases transferred by the police agency to the Chairman of the Commune People's Committee for consideration and decision to apply community education measures in accordance with Clause 2, Article 9 of Decree No. 163, within two days, the Chairman of the Commune People's Committee must transfer the file to the Head of the Commune Police Station. The Head of the Commune Police Station is responsible for reviewing the file and reporting before the meeting, summarizing the file and the illegal acts of the individual proposed to be educated, the assistance and education measures applied to that individual according to Article 10 of Decree No. 163. The report of the Head of the Commune Police Station must be in writing, and the content of the report must clearly state the name, date of birth, place of residence, personal circumstances, and illegal acts of the individual proposed to be subject to community education measures.

2. Considering the application of community education measures

a. Within ten days from the date of receipt of the written proposal from the Head of the Commune Police Station, the Chairman of the Commune People's Committee for Mass Organizations, or representatives of one of the agencies, organizations, or grassroots units, or from the date of receipt of the file transferred by the police agency, the Chairman of the Commune People's Committee must convene and chair a meeting to review the application of community education measures. The meeting participants include the Chairman of the Commune People's Committee, the Head of the Commune Police Station, representatives of the Legal Affairs Board, the People's Committee for Mass Organizations, the proposing agency or organization, representatives of the grassroots unit, and representatives of the family of the individual proposed to be subject to community education measures.

Additionally, depending on the specific individual proposed to be subject to community education measures, the Chairman of the Commune People's Committee may invite representatives of schools, Youth Union, Women's Union, Farmers' Union, Veterans' Association, Education Board, Population, Family, and Children Board, People's Inspectorate, and grassroots mediation organizations to attend the meeting.

b. At the meeting, representatives of the proposing agency or organization present the reasons, clearly stating the illegal acts of the individual proposed to be subject to community education measures, the assistance and education measures applied to that individual. The individual proposed to be educated (if present) may express their opinions regarding matters related to themselves, such as illegal acts, form of punishment, family circumstances, age, etc. Based on this, the meeting participants express their opinions, discuss, and compare with the legal provisions applicable to the individual proposed.

c. The meeting must be recorded in minutes, fully documenting the contents and opinions expressed by the meeting participants and the individual proposed to be educated (if present).

d. For cases where there is insufficient evidence to conclude illegal acts or accurately determine the age of the individual proposed to be subject to community education measures, the Chairman of the Commune People's Committee assigns the Head of the same-level police station to verify and collect evidence, clarify the illegal acts or age of the individual proposed to be educated. After clarifying the illegal acts or age of the individual proposed to be educated, the Chairman of the Commune People's Committee must reconvene the meeting, but not later than fifteen days from the previous meeting.

d. In cases where it is impossible to convene a meeting due to special reasons such as focusing on disaster prevention and control, epidemic prevention, implementing local political requirements, or other reasons, the Chairman of the People's Committee at the commune level must seek written opinions from the Head of the Police Station at the commune level, representatives of the Legal Department, the People's Council United Front Committee at the commune level, the agency or organization making the request, and representatives of the grassroots community unit regarding the application of educational measures at the commune level for the person concerned. The Head of the Police Station at the commune level is responsible for collecting the opinions of the aforementioned agencies and organizations and reporting to the Chairman of the People's Committee at the commune level for consideration and decision.

3. Decision on the Application of Educational Measures at the Commune Level

a. Within three days from the date of the end of the meeting or from the date of receipt of the report of the Head of the Police Station at the commune level as stipulated above, based on the minutes of the meeting or the report of the Head of the Police Station at the commune level, the Chairman of the People's Committee at the commune level must consider and issue a decision on educational measures at the commune level for the person concerned.

b. The decision on educational measures at the commune level takes effect from the date of signature.

c. The content of the decision on educational measures at the commune level must clearly state the date, month, and year of issuance; the name, position of the issuer; the name, date of birth, place of residence of the person subject to education; the violation committed by the person subject to education; the provisions of the legal document applied, the duration of education, the date of promulgation of the decision; the responsibilities of the agencies, organizations, and families assigned to manage and educate; the right to appeal or initiate litigation against the decision on educational measures at the commune level in accordance with the law.

IV. IMPLEMENTATION OF THE DECISION ON EDUCATIONAL MEASURES AT THE COMMUNE LEVEL

The implementation of the decision on educational measures at the commune level must be carried out strictly in accordance with Article 13 of Decree No. 163 and the following specific guidelines:

1. Within seven days from the date the decision becomes effective, the organization entrusted with the responsibility of managing and educating the person subject to education must take the lead and coordinate with the Police Station at the commune level if the meeting is held at the grassroots community unit where the person subject to education resides to implement the decision. The meeting can only proceed when the person subject to education is present, following the procedures and including the main contents as follows:

a. A representative of the agency or organization entrusted with the management and education of the person subject to education opens the meeting, reads the decision on educational measures at the commune level issued by the Chairman of the People's Committee at the commune level; clearly states the legal violations of the person subject to education;

b. The person subject to education reads their self-criticism and commitment to correct the mistakes themselves. If the person subject to education cannot read or write, they must orally present their mistakes, the direction for correcting the mistakes, and their commitment before the meeting;

c. Participants in the meeting express their opinions, analyze the mistakes made by the person subject to education, the causes leading to these mistakes, and provide suggestions to help them correct their mistakes and make progress;

d. The person directly responsible for helping the educator expresses their opinion and outlines the management and educational measures, as well as assistance provided to the person subject to education during the implementation period of the decision on educational measures at the commune level issued by the Chairman of the People's Committee;

đ. A representative of the organization entrusted with the management and education of the person subject to education clearly states the responsibilities and rights of the person subject to education during the execution period of the decision and concludes the meeting.

2. The content of the meeting must be recorded in the minutes and kept in the file managed by the Police Station at the commune level, in accordance with Article 19 of Decree No. 163.

3. In cases where the person subject to education deliberately avoids the implementation of the decision, the organization implementing the decision must carry out the implementation when the person subject to education is present at their place of residence. The time the person subject to education avoids the implementation of the decision shall not be counted towards the execution period of the decision.

V. REGARDING THE MOVEMENT OF THE PERSON SUBJECT TO EDUCATION

1. During the execution period of the decision on educational measures at the commune level, the person subject to education may leave the commune, ward, or town where they reside but may not stay overnight outside.

2. The person subject to education may be absent from their place of residence for legitimate reasons such as personal or family matters, visiting sick relatives; funeral or wedding ceremonies; flood, fire; studying, working... Each absence may not exceed twenty days, and the total absence time may not exceed one-third of the duration of the educational measure at the commune level (except in cases where the person subject to education is seriously ill and requires treatment at healthcare facilities) and must comply with the following regulations:

a. If the person subject to education is absent from their place of residence for up to ten days, they must report to the person directly assisting them or the People's Committee at the commune level and must comply with the legal regulations on household registration and management.

b. If the person subject to education is absent from their place of residence for more than ten days up to thirty days, they must submit a written request stating the reason, duration of absence, and destination. The request must include the opinion of the person directly assisting them. Based on the request and the opinion of the person directly assisting them, the Chairman of the People's Committee at the commune level or the Head of the Police Station at the commune level will consider and grant permission for the person subject to education to be absent from their place of residence. If the Chairman of the People's Committee at the commune level or the Head of the Police Station at the commune level agrees to grant permission, the Head of the Police Station at the commune level will issue a temporary absence certificate for them, clearly stating the reason, duration of absence (from day, month, year to day, month, year), and destination.

3. The person subject to education has the responsibility to report to the Police Station at the commune level where they temporarily reside. Upon completion of the temporary residence period, they must have confirmation from the People's Committee or the Police Station at the temporary residence location regarding the temporary residence period and compliance with the law at the temporary residence location.

4. The period during which the person subject to education is absent from their place of residence shall be counted towards the term for implementing the decision. If the person subject to education is absent from their place of residence without reporting, without obtaining the consent of the Chairman of the People's Committee at the commune level or the Head of the Police Station at the commune level; during the temporary stay and violation of the law, failing to present the temporary absence certificate to the police station at the place of temporary stay; upon expiration of the temporary stay period without confirmation from the People's Committee at the commune level or the Police Station at the commune level where they temporarily reside, such absence period shall not be counted towards the term for implementing the decision.

VI. REGARDING THE WAIVER OF THE REMAINING TIME PERIOD FOR IMPLEMENTING THE DECISION ON EDUCATION AT THE COMMUNE LEVEL

1. The examination and decision on waiving the remaining time period for implementing the decision on education at the commune level must be carried out in accordance with the provisions of Article 17 of Decree No. 163 and this Circular.

2. When the person subject to education has completed half of the education period at the commune level and shows clear progress, the organization entrusted with the responsibility of managing and educating them must take responsibility for preparing a written request to the Chairman of the People's Committee at the commune level to examine and decide on waiving the remaining time period for implementing the decision on education at the commune level.

3. Within two days from the date of receipt of the request from the organization entrusted with the responsibility of managing and educating, the Chairman of the People's Committee at the commune level must immediately transfer that request to the Head of the Police Station at the commune level. The Head of the Police Station at the commune level is responsible for soliciting opinions in writing from relevant agencies and organizations, proposing their own opinion in writing, and transferring all the aforementioned documents to the Chairman of the People's Committee at the commune level for examination and decision on waiving the remaining time period for implementing the decision on education at the commune level for the person subject to education.

VII. ISSUANCE OF CERTIFICATE OF COMPLETION OF EDUCATION DECISION IMPLEMENTATION AT THE COMMUNE LEVEL

The issuance of the certificate of completion of the education period at the commune level must be carried out in accordance with the provisions of Article 18 of Decree No. 163. Within two days from the date the person subject to education completes the implementation of the decision, the Chairman of the People's Committee at the commune level must issue the "Certificate of Completion of Education Decision Implementation at the Commune Level" to them.

VIII. RESPONSIBILITIES OF THE ORGANIZATION ENTRUSTED WITH THE RESPONSIBILITY OF MANAGING AND EDUCATING THE PERSON SUBJECT TO EDUCATION AT THE COMMUNE LEVEL

1. To assist, encourage, and support the person subject to education in their life, cultural studies; help them find employment or propose to the People's Committee at the commune level to create conditions and find employment for the person subject to education.

2. Assign a person directly to assist the person subject to education and report to the Chairman of the People's Committee at the commune level. The person directly assisting must be someone capable of helping the person subject to education correct their mistakes, have credibility with the person subject to education, set a good example by complying with the Party's policies and State laws; have the conditions to frequently interact with the person subject to education and understand their thoughts, wishes, reasons, and circumstances that led to their violation of the law.

In cases where the person directly assisting no longer has the conditions to assist the person subject to education, such as: family facing difficulties, moving to another place; being seriously ill, elderly, unable to interact and assist the person subject to education, lacking credibility to help the person subject to education make progress..., then it is necessary to promptly assign another person who meets the conditions to directly assist the person subject to education.

3. The head of the organization entrusted with the responsibility of managing and educating must regularly exchange and discuss with the person assigned to directly assist the person subject to education to understand the situation regarding the implementation of the decision, the progress of the person subject to education; promptly assist the person subject to education in resolving difficulties and obstacles encountered while implementing this measure.

4. Coordinate with other relevant agencies and organizations and the family of the person subject to education in managing, educating, and helping them become useful members of society.

For persons subject to education who are minors, the agency or organization entrusted with the responsibility of managing and educating must closely coordinate with the family, school, Ho Chi Minh Communist Youth Union, or Ho Chi Minh Pioneer Team to provide appropriate forms of education.

5. Propose to the Chairman of the People's Committee at the commune level about suitable forms of assistance for the person subject to education such as: vocational training, job placement, loaning capital, providing labor tools and means; creating conditions for earning a living; encouraging visits and condolences when the person subject to education is sick or when their family has funeral or wedding events.

6. Regularly report monthly to the Chairman of the People's Committee at the commune level on the situation and results of the work of assisting, managing, and educating the person subject to education and their self-improvement.

7. Prepare a written request to the Chairman of the People's Committee at the commune level to examine and decide on waiving the remaining time period for implementing the decision on education at the commune level for cases where the person subject to education shows clear progress.

8. Coordinate with the police station at the commune level to propose to the Chairman of the People's Committee at the commune level to take appropriate measures to continue assisting and encouraging the person subject to education after they have completed the implementation of the decision on education at the commune level.

IX. RESPONSIBILITIES OF THE HEAD OF THE POLICE STATION AT THE COMMUNE LEVEL

1. Assign responsibilities to police officers or Deputy Chiefs of the Police Station at the commune level, or village police officers to cooperate with the head of the organization entrusted with the responsibility of managing and educating the person subject to education to understand the situation, manage, educate, and assist the person subject to education in implementing the decision and fulfilling commitments to correct mistakes.

2. Assist the Chairman of the People's Committee at the commune level in monitoring the absences and duration of absences of the person subject to education; examine the permission for the person subject to education to be absent from their place of residence; monitor the implementation of the decision on education at the commune level by the person subject to education.

3. Report and propose opinions to the Chairman of the People's Committee at the commune level to examine and decide on waiving the remaining time period for implementing the decision on education at the commune level for the person subject to education.

4. Manage and retain files and documents related to education activities at the commune level.

5. Collect materials, establish files to manage and monitor the progress of the person subject to education at the commune level. The file includes:

a. Curriculum vitae;

b. Written request for applying educational measures;

c. Minutes of meetings regarding the proposal to apply educational measures; verification reports of the Head of the Police Station at the commune level as stipulated in Article 10 of Decree No. 163 (if available);

d. Decision of the Chairman of the People's Committee at the commune level on applying educational measures at the commune level;

đ. Minutes of meetings for review, monthly reports of organizations entrusted with management and education responsibilities;

e. Statements of the person being educated (if available);

g. Self-criticism reports and commitments to correct violations made by the person being educated;

h. Certificate of completion of the educational decision at the commune level; decision exempting from execution of the remaining time of the educational decision at the commune level;

i. Other reports and documents related to the violation of laws or relevant to the person being educated during the period of execution of the educational decision at the commune level.

6. Implement file management systems as prescribed by the Ministry of Public Security and the State.

X. ON THE APPLICATION OF EDUCATIONAL MEASURES AT THE COMMUNE LEVEL FOR CERTAIN ADMINISTRATIVE UNITS AT THE DISTRICT LEVEL WITHOUT A COMMUNE LEVEL

In reality, due to administrative division characteristics, some district-level units do not have (or have not yet established) a commune level. Therefore, the district-level authorities in these areas, in addition to having the powers prescribed by law for district-level authorities, also exercise powers granted to commune-level authorities by law. Thus, to implement educational measures at the commune level in accordance with the provisions of the law, in district-level units without a commune level, the application of educational measures at the commune level for subjects specified in Point 2 of Part I of this Circular shall be decided by the Chairman of the People's Committee at the district level. The procedures and formalities for examining, deciding, and implementing educational measures at the commune level shall be carried out as prescribed for the commune level in the Administrative Violations Handling Law, Decree No. 163, and this Circular.

XI. IMPLEMENTATION

1. This Circular takes effect fifteen days after its publication in the Official Gazette. Previous regulations of the Ministry of Public Security concerning educational measures at the commune level that conflict with this Circular are hereby abolished.

2. The General Police Department shall take the lead and coordinate with relevant units to direct, inspect, urge, and guide the implementation of this Circular.

3. The Directors of the Departments, Heads of the Bureaus under the Minister, and Directors of the Public Security Departments of provinces and centrally-administered cities shall be responsible for organizing the implementation of this Circular according to their respective functions and tasks.

4. The Directors of the Public Security Departments of provinces and centrally-administered cities shall instruct the Public Order Management Police Bureau to take the lead and coordinate with relevant units to guide the Public Security units and localities in organizing the implementation of this Circular; they shall submit semi-annual and annual reports on the implementation of the legal provisions on educational measures at the commune level to the Ministry (through General Department II, V19).

5. Public Security departments at the county level shall be responsible for directing, guiding, inspecting, and urging Public Security departments at the commune level to strictly implement educational measures at the commune level; they shall submit quarterly and annual reports on the implementation of legal provisions on educational measures at the commune level to the Public Security department at the provincial level (through PV 11, PC 13).

6. Public Security departments at the commune level shall assist the Chairmen of the People's Committees at the same level in monitoring and managing the education of persons being educated in their locality; they shall submit quarterly and annual reports on the implementation of educational measures at the commune level to the Public Security department at the county level.

7. During the implementation process, if there are any difficulties, Public Security units and localities shall report to the Ministry (through General Department II) for timely guidance.