Circular No. 23/2018/TT-BQP on the management, storage, exploitation, and use of temporary detention and pre-trial custody records in the Military

CIRCULAR

Regulations on management, storage, exploitation, and use of temporary detention and pretrial detention records in the military

Pursuant to the Law on Enforcement of Detention and Pretrial Detention dated November 25, 2015;

Pursuant to Decree No. 121/2017/NĐ-CP dated November 6, 2017 of the Government on construction, management, and use of databases on enforcement of temporary detention and pretrial detention;

Based on Decree No. 164/2017/NĐ-CP dated December 30, 2017, of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of National Defense;

At the proposal of the Director of the Criminal Investigation Department under the Ministry of National Defense;

The Minister of National Defense promulgates this Circular stipulating the regime for management, storage, exploitation, and use of temporary detention and pretrial detention records in the Military.This Circular stipulates the establishment, management, storage, exploitation, and use of temporary detention and pretrial detention records in the Military. This Circular applies to investigative agencies, persons conducting investigations; temporary detention centers, holding facilities, detention rooms (hereinafter referred to as temporary detention and pretrial detention facilities) in the Military; persons under temporary detention, persons under pretrial detention; agencies, organizations, and individuals related thereto.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

Article 3. Principles of management, storage, exploitation, and use of temporary detention and pretrial detention records

Article 2. Applicability

1. Compliance with state regulations and the Ministry of National Defense's regulations on the establishment, management, storage, exploitation, and use of temporary detention and pretrial detention records.

2. Management, storage, exploitation, and use of temporary detention and pretrial detention records must ensure the objectives of serving investigation, prosecution, trial, enforcement of sentences, meeting operational requirements, and managing persons under temporary detention and pretrial detention.

3. Ensuring the interests of the state, rights, and legitimate interests of agencies, organizations, and individuals related thereto.

4. Ensuring that information about persons under temporary detention and pretrial detention is collected fully, promptly, accurately, and managed and used in accordance with the law.

5. Ensuring the confidentiality of personal information of persons under temporary detention and pretrial detention in accordance with the law.

1. Appropriating, damaging, or losing records and documents;

2. Forging, altering, or distorting the contents of documents within temporary detention and pretrial detention records;

Article 4. Prohibited Acts

3. Buying, selling, transferring, destroying, copying, or photographing records and documents illegally;

4. Using records and documents for purposes that infringe upon the interests of the state, rights, and legitimate interests of agencies, organizations, and individuals;

5. Removing records and documents from their place of management without authorization from competent authorities;

6. Illegally accessing, copying, collecting, disclosing, or sending electronic data on temporary detention and pretrial detention;

7. Creating or disseminating software programs aimed at disrupting the management of electronic records and documents on temporary detention and pretrial detention.

Article 5. Temporary detention and pretrial detention records

1. Paper records, including types of documents specified in Clause 1 and Clause 2 of Article 17 of the Law on Enforcement of Temporary Detention and Pretrial Detention.

Chapter II

SPECIFIC PROVISIONS

2. Electronic records are a collection of information containing basic information related to persons under temporary detention and pretrial detention as specified in Clause 1 and Clause 2 of Article 17 of the Law on Enforcement of Temporary Detention and Pretrial Detention.

Article 6. Organizations and individuals establishing, managing, and storing temporary detention and pretrial detention records

1. Agencies establishing, managing, and storing temporary detention and pretrial detention records

a) The agency managing criminal enforcement of the Ministry of National Defense;

b) Criminal enforcement agencies at military regions;

c) Provincial Border Guard Command having border guard posts organized with detention rooms;

d) Detention centers under the Ministry of National Defense, military regions, and military corps;

đ) Investigative agencies in areas with holding facilities;

e) Border guard posts with detention rooms.

2. Individuals establishing, managing, and storing temporary detention and pretrial detention records

a) Record keepers;

b) Detention assistants responsible for records;

c) Heads of detention rooms in border guard posts with organized detention rooms.

3. Responsibilities of the agency managing criminal enforcement of the Ministry of National Defense

a) Establishing and managing an electronic database system for temporary detention and pretrial detention records in the Military;

b) Specifying procedures for establishing, connecting, and providing information on the enforcement of temporary detention and pretrial detention in the Military;

c) Cooperating with competent agencies of the Ministry of Public Security in building, guiding, connecting, and providing information on the enforcement of temporary detention and pretrial detention between the database systems of the People's Public Security and the Military.

4. Responsibilities of agencies establishing, managing, and storing records and electronic data of persons under temporary detention and pretrial detention

a) Timely addressing requests and proposals from organizations and individuals regarding the exploitation of temporary detention and pretrial detention records in accordance with regulations;

b) Refusing to address or not allowing continued exploitation of records when there is evidence that organizations or individuals are engaging in prohibited acts as stipulated in Article 4 of this Circular;

c) Implementing state and Ministry of National Defense regulations on the establishment, management, storage, exploitation, and use of temporary detention and pretrial detention records and document security.

b) Refuse to process or prevent further exploitation of the file when there is grounds to believe that organizations or individuals are engaging in prohibited acts as stipulated in Article 4 of this Circular;

c) Implement the provisions of the State and the Ministry of National Defense regarding the establishment, management, storage, exploitation, use of files for temporary detention, and the confidentiality of documents.

Article 7. Organizations and individuals exploiting and using management files for temporary detention and pre-trial detention

1. Organizations and individuals specified in Clause 1 and Clause 2, Article 6 of this Circular have the right to exploit management files for temporary detention and pre-trial detention at their own units to serve management work and enforcement of temporary detention and pre-trial detention.

2. Criminal proceedings agencies and enforcement agencies exploit management files for temporary detention and pre-trial detention to serve investigation, prosecution, trial, and enforcement of sentences.

3. Persons under temporary detention and persons under pre-trial detention have the right to request copies of documents in their management files for temporary detention and pre-trial detention which are being stored.

4. Organizations and individuals assigned the task of exploiting management files for temporary detention and pre-trial detention to serve directive, inspection, guidance work on management of temporary detention and pre-trial detention; scientific research, summary, compilation of history and organizational and personnel work.

5. Other organizations and individuals when having approval from the head of the agency managing management files for temporary detention and pre-trial detention.

Article 8. Responsibilities of organizations and individuals in exploiting management files for temporary detention and pre-trial detention

1. Organizations and individuals requesting to exploit documents in management files for temporary detention and pre-trial detention must present:

a) An introduction letter or a request letter from the agency, organization, or individual making the request with confirmation from the People's Committee of the commune where they reside (if it is an individual). The content of the introduction letter or request letter includes: Name, rank, position (if applicable), workplace of the person being introduced, residence of the person making the request; Purpose of the request to exploit documents in the temporary detention and pre-trial detention file; if there is a need to copy or photograph documents, then clearly state the documents requested to be copied or photographed;

b) Identity card, passport, or citizen identification card, military identification, or certificate of the investigation, prosecution, or judicial branch when performing tasks;

c) A document agreeing to the exploitation of management files for temporary detention and pre-trial detention from the agency handling the case during the investigation, prosecution, and trial stages.

2. Responsibilities of organizations and individuals in exploiting documents and management files for temporary detention and pre-trial detention

a) Follow the procedures and instructions of the staff of the agency or unit managing the files to read, copy, and photograph documents according to the provisions of this Circular;

b) Maintain confidentiality of the files and documents;

c) Adhere to the regulations of the agency or unit managing the management files for temporary detention and pre-trial detention during the exploitation process;

d) The person exploiting the management files for temporary detention and pre-trial detention can only read, record, and copy documents after registering and obtaining approval from the head of the agency managing the management files for temporary detention and pre-trial detention. Reading, copying, and photographing of files and documents must be reflected and signed off in the tracking logbook.

3. Responsibilities of supervisory staff in the exploitation of files

a) Must directly supervise the exploitation process of files and documents by the person exploiting the management files for temporary detention and pre-trial detention;

b) Hand over and return all files and documents fully and intact;

c) Directly make copies and hand over copied documents to organizations and individuals making requests;

d) Prevent the exploiter from carrying out prohibited acts stipulated in Article 4 of this Circular; upon discovering violations, immediately stop the exploitation of files, simultaneously prepare a report and immediately report to the head of the institution managing the management files for temporary detention and pre-trial detention.

Article 9. Establishment, management, and storage of temporary detention and pretrial custody records

1. Establish, manage, and store temporary detention and pretrial custody records in the following cases:

a) The person under temporary detention or pretrial custody is released;

b) The person under temporary detention or pretrial custody has their temporary detention or pretrial custody measures changed to other preventive measures;

c) The person under temporary detention dies or escapes while being held;

2. Establish and transfer temporary detention and pretrial custody records in the following cases:

a) The person under temporary detention or pretrial custody is transferred to another detention facility to serve temporary detention, pretrial custody, or imprisonment;

b) A person sentenced to death has a decision on the execution of the death penalty made by the Execution Council.

3. The establishment of temporary detention and pretrial custody records shall be directly carried out by the individual specified in Clause 2, Article 6 of this Circular; they shall be responsible before the law and before the head of the temporary detention and pretrial custody facility.

4. Temporary detention and pretrial custody records shall be established from the time of receiving the person under temporary detention or pretrial custody until their death, escape, release, transfer to serve imprisonment, or execution of the death penalty according to the competent authority's decision.

5. Documents included in the record must be arranged in chronological order of issuance as follows:

a) Documents issued earlier are arranged first, those issued later are arranged last;

b) Only documents with authentic evidence (signatures, seals) shall be included in the record.

6. Documents related to temporary detention and pretrial custody sent by agencies, organizations, or individuals must comply with the regulations of the Ministry of National Defense on archival work before being included in the temporary detention and pretrial custody management record.

7. Documents included in the record must be bound into volumes, stamped, numbered sequentially, and recorded in the document inventory list within the record.

8. When the record is completed, a document inventory list must be established, signed by the record preparer, and stamped and signed by the temporary detention and pretrial custody facility.

9. Documents included in the temporary detention and pretrial custody management record shall be implemented in accordance with Clause 1 and Clause 2 of Article 17 of the Law on Enforcement of Temporary Detention and Pretrial Custody.

10. The sequence of arrangement, stamping, and numbering of documents within the record shall be carried out in accordance with the guidelines of the Criminal Enforcement Management Agency of the Ministry of National Defense.

Article 10. Management of temporary detention and pretrial custody records

1. Temporary detention and pretrial custody records must be registered in ledgers and managed under confidentiality procedures; the head of the agency establishing, managing, and storing the records shall entrust the individual specified in Clause 2, Article 6 of this Circular to directly manage them.

2. Temporary detention and pretrial custody records must be kept in boxes or folders and placed in designated locations.

3. The head of the agency establishing, managing, and storing temporary detention and pretrial custody records shall be responsible for arranging storage places, necessary equipment, and means such as filing cabinets, document boxes, folders, fire prevention, pest control, moisture protection, and other measures to ensure the safety of the records.

4. Record managers must regularly inspect and propose management measures to prevent loss or damage of records. Upon discovering lost, damaged, or altered records, they must immediately report to the head of the agency establishing, managing, and storing the temporary detention and pretrial custody records for investigation and remediation; simultaneously reporting to the superior business agency.

5. Transfer of temporary detention and pretrial custody records

a) Temporary detention and pretrial custody records can only be transferred to organizations or individuals upon a competent authority's decision.

b) When transferring, a transfer document must be established, signed by the transferring and receiving officers, and confirmed and stamped by the temporary detention and pretrial custody facility.

c) Transferred records must be registered and declared in the ledger of incoming and outgoing documents.

6. Temporary detention and pretrial custody records must complete the handover procedures and be transferred to the agency archive within seven working days from the end date of temporary detention or pretrial custody as stipulated in Clause 1 and Clause 2 of Article 9 of this Circular.

Article 11. Period of retention and destruction of management files for temporary detention and pretrial detention

1. For files of persons who have been temporarily detained or pretrial detained and released; whose temporary detention or pretrial detention measures have been changed to other preventive measures; or who have died during temporary detention or pretrial detention, the period of retention is fifty (50) years from the year the temporary detention or pretrial detention ends.

2. For files of persons who have been temporarily detained or pretrial detained and escaped, the period of retention is seventy (70) years from the year the person escaped.

3. The period of retention for files of persons who have been temporarily detained or pretrial detained, when such files become part of prisoner files or files of persons sentenced to death and executed, shall be implemented according to the regulations of the Ministry of National Defense on the period of preservation of files and documents commonly formed in the activities of military agencies and units.

4. Files of persons who have been temporarily detained or pretrial detained shall be destroyed after the retention period has ended.

5. The authority to decide on destruction, the procedure for deciding on destruction, and the destruction file shall be carried out in accordance with the laws on archiving.

Chapter III

IMPLEMENTING PROVISIONS

Article 12. Effectiveness and Responsibility for Implementation

1. This Circular shall take effect from April 27, 2018.

2. The Chief of General Staff, heads of agencies and units, and related individuals are responsible for implementing this Circular. The Director of the Criminal Investigation Bureau shall take the lead and coordinate with relevant agencies to urge, inspect, guide, and organize the implementation of this Circular./.