Circular No. 26/2007/TT-BCA guiding the implementation of certain provisions of the Regulation on Administrative Detention (issued together with Decree No. 162/2004/NĐ-CP dated September 7, 2004)

CIRCULAR

Guidelines for Implementing Certain Provisions of the Administrative Procedure Regulation on Temporary Detention of Persons

(Issued together with Decree No. 162/2004/NĐ-CP

September 7, 2004)

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To uniformly implement the temporary detention measure under administrative procedures, the Ministry of Public Security issues guidelines for implementing certain provisions of the Administrative Procedure Regulation on Temporary Detention of Persons (issued together with Decree No. 162/2004/NĐ-CP dated September 7, 2004) as follows:

I. CASES WHERE THE TEMPORARY DETENTION MEASURE UNDER ADMINISTRATIVE PROCEDURES CAN BE APPLIED

1. The determination of cases where the temporary detention measure under administrative procedures can be applied must be carried out strictly in accordance with the provisions of Article 2 of the Administrative Procedure Regulation on Temporary Detention of Persons issued together with Decree No. 162/2004/NĐ-CP dated September 7, 2004 (hereinafter referred to as the Administrative Procedure Regulation on Temporary Detention of Persons) and the guidance provided in this Circular.

2. In the case of persons violating administrative regulations who do not have identification papers or do not have a fixed place of residence as stipulated in point b, Clause 2, Article 2 of the Administrative Procedure Regulation on Temporary Detention of Persons, attention should be paid to the following:

a) A person without identification papers is a person who does not carry a valid Identity Card or passport or other documents that can substitute for a passport. If they do not carry these documents but have other documents with photographs attached such as a driver's license, student card, membership card, etc., then these may also be considered as identification papers;

b) A person without a fixed place of residence is a person who cannot determine their permanent registration address or temporary registration address, and does not have a fixed place of residence; a person who has a permanent registration address or temporary registration address but does not live there and does not have a fixed place of residence.

II. REGARDING THE PERIOD OF TEMPORARY DETENTION UNDER ADMINISTRATIVE PROCEDURES

1. According to Clause 3, Article 2 of the Administrative Procedure Regulation on Temporary Detention of Persons, the period of temporary detention shall not exceed twelve hours from the time of commencement of detaining the violator; in cases of necessity, the period of temporary detention may be extended but shall not exceed twenty-four hours.

For persons violating border regulations or committing administrative violations in remote mountainous areas, islands, the period of temporary detention may be extended but shall not exceed forty-eight hours from the time of commencement of detaining the violator.

The period of temporary detention must be clearly recorded in the decision on temporary detention under administrative procedures specifying how many hours, starting at what hour of the day, month, year, and ending at what hour of the day, month, year.

In all cases, temporary detention under administrative procedures must be based on a written decision by a competent authority. Arbitrary detention without a written decision is strictly prohibited.

2. The extension of the period of temporary detention can only be applied in truly necessary circumstances, which include situations where additional time is required to verify the identity, background of the violator, and important, complex details related to the violation committed by the detained person to serve as the basis for deciding on administrative penalties or to ensure the handling of the person who committed the violation.

3. When the period of temporary detention expires, the person issuing the temporary detention decision must immediately terminate the detention of the detained person and record it in the administrative detention tracking log, with the signature confirmation of the detained person. In cases where the detained person refuses to sign the administrative detention tracking log upon expiration of the detention period, the person issuing the temporary detention decision must prepare a record or assign someone currently performing the duty to prepare a record and note the reason in the record for the detention file. The record must have the signatures of the witness (if any), the preparer of the record, and the person issuing the temporary detention decision.

III. HANDOVER AND RECEIPT OF PERSONS WHO HAVE COMMITTED ADMINISTRATIVE VIOLATIONS

1. The competent authority for temporary detention must promptly prepare a record of handover and receipt of persons who have committed administrative violations with organizations or individuals responsible for escorting them to the location or assign someone currently performing the duty to prepare the record of handover and receipt.

The record of handover and receipt of persons who have committed administrative violations must clearly state the time, date, and location of preparation of the record; the name, position, and address of the individual or organization handing over and receiving; the name, address, ID number or other identification papers of the person who has committed the violation; the time and place of the violation, the nature of the violation; the health condition, attitude of the violator, property, assets (if any) and other relevant details concerning the handover and receipt of the violator; if there are witnesses or victims, the content of the incident they witnessed and the losses caused by the violator must be clearly stated; the name and address of the witness or victim. The record must have the signatures of the party handing over, the party receiving, and the violator, the victim, and the witness (if any); the competent authority for temporary detention under administrative procedures must sign and stamp the record of handover and receipt of the violator. In cases where the violator, the victim, or the witness refuse to sign, the preparer of the record must clearly state the reason in the record.

The record of handover and receipt of persons who have committed administrative violations must be prepared in two identical copies and read aloud to all participants signing the record; each party handing over and receiving retains one copy.

2. Immediately after the administrative violation is discovered, stopped, and a record of the violation is made, or after the record of handover and receipt of persons who have committed administrative violations escorted by organizations or individuals is made, if it is deemed necessary to temporarily detain the person under administrative procedures, the competent authority must immediately issue a decision on temporary detention.

In cases where there is insufficient evidence or it is not necessary to apply the temporary detention measure under administrative procedures, the person must be released immediately and all means of transportation, property, and documents (if any) returned to them if these items are not subject to measures for temporarily detaining objects or means of transport involved in administrative violations.

IV. DECISION ON TEMPORARY DETENTION OF PERSONS UNDER ADMINISTRATIVE PROCEDURES

1. In cases where there are sufficient grounds and it is deemed necessary to apply administrative measures for temporary detention against individuals who have committed violations of the law, the person authorized to decide on temporary detention pursuant to Article 7 of the Administrative Temporary Detention Regulation shall immediately issue a decision document on temporary detention.

The decision on administrative temporary detention must clearly state: the decision number; hour, minute, day, month, year of issuance; full name, rank, position, agency, unit of the issuer; grounds for issuing the temporary detention decision, article and clause of applicable legal documents; reasons for temporary detention; full name, date of birth, place of birth, permanent residence registration, temporary residence registration, occupation, workplace, place of study, citizen identification number (if available) of the detainee; full name, father's or mother's name or guardian's name of the detainee (if the detainee is a minor); nationality, passport number or substitute travel document (if the detainee is a foreigner); detention period; detention location; rights to appeal, report complaints, and initiate litigation regarding the issuance of the temporary detention decision and the implementation of this measure according to the provisions of the law; signature and stamp of the agency of the issuer of the temporary detention decision. The temporary detention decision must be made in two identical copies, one copy handed over to the detainee, and one copy retained in the temporary detention file.

2. In cases where it is necessary to extend the duration of temporary detention as guided in Clause 2, Section II of this Circular, before the expiration of the detention period stated in the decision, the person authorized to detain shall issue a decision to extend the temporary detention, but not exceeding the maximum limit prescribed in Clause 3, Article 2 of the Administrative Temporary Detention Regulation. The content of this decision must clearly state the decision, hour, minute, day, month, year of issuance, grounds for issuing the decision, article and clause of applicable legal documents, full name, position, rank, agency, unit of the issuer; full name, address, citizen identification number (if available) of the person whose detention is being extended; detention location; reasons and extension period of detention; the rights to appeal, report complaints, and initiate litigation against the decision to extend detention of the detainee according to the provisions of the law; signature and stamp of the agency of the issuer. The decision to extend temporary detention must be made in two copies, one copy retained in the temporary detention file, and one copy handed over to the detainee before the expiration of the detention period they are currently serving.

3. In cases where the detention period stated in the temporary detention decision has not yet expired, but the investigation and verification have been completed, sufficient grounds for conclusion and handling of the violation have been established, then the issuer of the temporary detention decision must immediately issue a decision to terminate the administrative temporary detention, hand over one copy to the person previously detained, retain one copy in the temporary detention file, and record it in the logbook for administratively detained persons. The content of the decision to terminate the administrative temporary detention must clearly state the decision number, hour, minute, day, month, year of issuance, grounds for issuing the decision; full name, position, rank, agency, unit of the issuer; full name, address, citizen identification number or passport or other substitute travel documents (if available) of the person whose detention is terminated; reasons for terminating the detention, article and clause of applicable legal documents, and signature and stamp of the agency according to the provisions of the law.

4. When there is evidence that the act of violating the law by the administratively detained person may constitute a criminal offense, the issuer of the temporary detention decision must immediately transfer the case file and the detainee along with the evidence and means of violation (if any) to the competent investigative authority to handle according to the provisions of the law.

V. ANNOUNCEMENT OF TEMPORARY DETENTION DECISION

1. At the request of the detainee and depending on each specific case, the issuer of the temporary detention decision may notify in writing, by telephone, FAX, or other communication methods about the administrative temporary detention decision to the family, workplace, or educational institution of the detainee within the period they are executing the temporary detention decision. If notification cannot be made due to objective reasons, the detainee must be informed and recorded in the logbook for administratively detained persons.

2. In cases where minors are temporarily detained for administrative violations at night (from 10 PM to 5 AM the next morning) or detained for more than six hours, the issuer of the temporary detention decision must immediately inform their parents or guardians. In cases where the parents or guardians cannot be identified or notification cannot be made due to objective reasons, the detainee must be immediately informed and the reason must be clearly recorded in the logbook for administratively detained persons.

3. In cases where the detainee is a foreigner, the issuer of the temporary detention decision must immediately report to the head of the superior authority with jurisdiction to inform the Ministry of Foreign Affairs (Consular Department or Ho Chi Minh City Department of Foreign Affairs) to inform the diplomatic or consular representative of the country of which the detainee is a citizen; coordinate with the Ministry of Foreign Affairs to arrange for representatives of the diplomatic or consular representative of that country to visit if requested and coordinate in handling related foreign affairs issues.

VI. LOCATION FOR ADMINISTRATIVE TEMPORARY DETENTION

1. The location for administrative temporary detention is an administrative detention house or administrative detention cell arranged at the office of the agency or unit where the person authorized to issue the administrative temporary detention decision works. In cases where there is no administrative detention house or administrative detention cell, temporary detention can take place in the duty room or another room at the workplace, but must comply with general regulations.

The administrative detention house or administrative detention cell must have locks, ensure lighting, ventilation, hygiene, and fire safety, and facilitate supervision and protection. Detainees staying overnight must be provided with beds or floors to lie on; the minimum lying area per person must not be less than 2m².².

2. Authorities with functions to prevent and combat violations of laws must regularly arrange and construct administrative detention facilities or separate administrative detention rooms and have dedicated staff to manage and protect them.

The form and scale of places for temporarily detaining violators of administrative regulations must be based on the nature, characteristics, conditions, volume of people being detained, and the actual requirements for temporarily detaining violators of administrative regulations in each specific sector, field, and area to appropriately arrange, design, and construct.

VII. REGISTERS AND FILES ON TEMPORARY DETENTION WORK

Registers and files tracking temporary detention according to administrative procedures are as follows:

1. Registers tracking temporary detention according to administrative procedures

All issues related to the person being detained must be promptly, fully, specifically, accurately, and clearly recorded in the "Register for Tracking Administrative Detention Cases", specifically as follows:

a) The first page of the register must clearly state the name of the authority or unit where the authorized person has the power to detain; the time when the register was opened; signed by the head of the detention facility and stamped for confirmation;

b) From the second page onwards, vertically across the register, depending on the specific content, eight columns should be drawn, with appropriate spacing between columns and numbered sequentially from 1 to 8 from left to right. The contents of each column are represented as follows: (1): Serial number; (2): Personal information of the person being detained (this column records their name, date of birth, occupation, place of origin, residence, previous criminal record if any); (3): Detention decision number, detention period, reason for detention; (4): Time point of the decision to terminate detention; (5): Items, documents, assets seized; assets deposited for safekeeping; (6): Notifications, visits (this column records issues related to the authorized person's inability to notify the detention decision to the family or relatives of the detainee and visits to the detainee such as visitor's name, sending gifts, etc.); (7): Other related issues (records issues related to the detainee such as illness, death, transfer for criminal proceedings, etc.); (8): Signature of the detainee (this column is for the detainee to sign or record their opinion when the detention is terminated).

To manage the "Register for Tracking Administrative Detention Cases" well, all pages in the register must be numbered sequentially from one to the end, and between pages, stamps must be affixed. The last page of the "Register for Tracking Administrative Detention Cases" must clearly state: "This register has been fully utilized on the day, month, year..." and signed and stamped for confirmation by the head of the authority or unit.

2. Files on temporary detention according to administrative procedures

When detaining a person, the authorized person must establish a detention file for tracking, which must update, record, and retain all relevant issues regarding the detention fully and specifically. The detention file includes the following documents: administrative violation record, handover receipt for persons committing administrative violations, administrative detention decision, extension decision, termination decision of administrative detention, and other related documents to the detainee. Documents in the file must be numbered sequentially and bound into the file cover.

3. Regarding the preservation of registers and files

Registers and files on temporary detention work must be carefully preserved and strictly managed in accordance with legal provisions on file management, confidentiality, and retention. Unauthorized erasing, modifying, or changing the content, tearing, or burning of registers and files is strictly prohibited. Violations will be subject to disciplinary action or legal penalties depending on the nature and severity.

VIII. FUNDS TO ENSURE THE IMPLEMENTATION OF TEMPORARY DETENTION MEASURES ACCORDING TO ADMINISTRATIVE PROCEDURES

1. Funds to ensure the implementation of temporary detention measures according to administrative procedures include:

a) Funds for establishing files and registers to serve the implementation of temporary detention measures according to administrative procedures;

b) Funds for investment in construction, repair, upgrading of detention facilities, purchase of equipment and supplies for detention;

c) Funds for food, medical examination, treatment for detainees or funeral expenses when they die and their families cannot self-fund;

d) Funds for other expenses serving the implementation of temporary detention measures according to administrative procedures.

2. Funds to ensure the implementation of temporary detention measures according to administrative procedures are provided from the state budget and allocated in the annual budget estimates of authorities and units authorized to detain administrative violators.

The preparation of regular budget estimates for implementing temporary detention measures according to administrative procedures is conducted as follows:

a) Annually, authorities and units authorized to implement temporary detention measures according to administrative procedures as stipulated in Article 7 of the Administrative Detention Regulation must base on the requirements and tasks of temporary detention work, take responsibility for preparing budget estimates to ensure the implementation of temporary detention measures according to administrative procedures together with the preparation of the state budget within their assigned functions, duties, and authority, and report the budget estimate to their direct superior management units;

b) Based on the budget estimates reported by authorities and units authorized to implement temporary detention measures according to administrative procedures, superior management units aggregate and prepare overall budget estimates to ensure the implementation of temporary detention measures according to administrative procedures, submit for review and decision by competent leaders at various levels;

c) The allocation, use, settlement, and finalization of funds to ensure the application of temporary detention measures according to administrative procedures from the state budget must be carried out in accordance with the State Budget Law and guiding documents.

IX. REGIME FOR PERSONS BEING TEMPORARILY DETAINED

1. As a general principle, all expenses for food, living expenses of the person under temporary detention, and care and treatment when they fall ill, or funeral expenses when the person under temporary detention dies during the period of detention shall be borne by the person under temporary detention or their family. In cases where the person under temporary detention or their family cannot bear these costs themselves, the agency or unit of the person who issued the decision on temporary detention shall be responsible for ensuring them. These costs shall be covered by the state budget and taken from the funds of the agency or unit with authority to detain.

The agency or unit of the person with authority to detain must maintain records to monitor and settle accounts for the food and living expenses, care and treatment of the sick person, or funeral expenses when they die during the period of detention according to the current financial regulations.

2. The following situations shall be considered as the person under temporary detention or their family being unable to bear the costs themselves:

a) The person under temporary detention or their family does not have money or assets.

b) The family or relatives of the person under temporary detention abandon them.

c) The person under temporary detention is an individual whose place of residence, family, or relatives cannot be identified, or who has no family or relatives, or whose family or relatives live far away from the place of detention without conditions to support, supply, or care for the person under temporary detention, or without conditions to handle the funeral arrangements for the person under temporary detention who dies during the period of detention.

3. Food and living conditions for the person under temporary detention

The standard quantity of food and living conditions for the person under temporary detention each day shall be implemented according to the provisions of Clause 2, Article 14 of the Regulations on Temporary Detention of Persons under Administrative Procedures and attention should be paid to the following points:

a) Food and drinking water provided for the person under temporary detention must meet standards for hygiene and food safety.

b) In cases where the health condition of the person under temporary detention is not guaranteed, and according to the doctor's prescription, a better diet is required, the person with authority to detain may decide to increase the food allowance for the person under temporary detention.

c) During the period of temporary detention (if overnight), the person under temporary detention can use personal quilts, mats, and mosquito nets; if they do not have them, the agency or unit of the person with authority to detain will lend each person one mat, one personal mosquito net, and one quilt. If the person under temporary detention is female, additional funds may be provided to purchase necessary items for women's hygiene.

Staff directly managing the person under temporary detention are responsible for guiding and requiring the person under temporary detention to properly keep the borrowed items; organizing the recovery and storage of lent property when the person under temporary detention's detention period ends. If the person under temporary detention damages or loses the borrowed items, they must compensate according to the law.

4. Treatment for the person under temporary detention who falls ill or dies during the period of detention shall be carried out strictly in accordance with the provisions of Article 15 of the Regulations on Temporary Detention of Persons under Administrative Procedures; in addition, attention should be paid to the following points:

a) In cases where the person under temporary detention falls ill, the agency or unit of the person with authority to detain must take measures to provide treatment at the location; in cases of serious illness requiring emergency care, the person with authority to detain must promptly organize their transfer to the nearest state or private medical facility for emergency care and treatment. When transferring the person under temporary detention to a medical examination and treatment facility, a detailed and clear record must be made regarding the time of examination and treatment, the health condition of the person under temporary detention, and other related issues; the record must be signed (with full name or fingerprint) by the person under temporary detention, the person with authority to detain, and the representative of the medical facility. At the same time, the family or relatives of the person under temporary detention must be immediately informed so that they can come to care for them. In cases where the family or relatives request to bring the person back home for care and it is deemed unnecessary to continue the detention, the person with authority to detain shall issue a decision to terminate the administrative detention and allow them to return home for treatment. Before allowing the person under temporary detention to return home, the person with authority to detain must make a record. The record must clearly reflect the health condition of the person under temporary detention at the time of the decision to terminate the administrative detention and other related issues such as property, means of transportation, money, documents, etc.; in cases where the money or property deposited by the person under temporary detention is lost, damaged, or broken, the detention facility shall be responsible for compensation; the record must be signed (with full name or fingerprint) by the person under temporary detention (or their family or relatives) and the person with authority to detain. In cases where the person under temporary detention has no fixed residence, no family or relatives nearby who can come to care for them or refuse to care for them, the person with authority to detain must arrange for someone to directly manage and care for the person under temporary detention at the medical facility.

b) In cases where the person under temporary detention dies during the period of detention, the person with authority to detain must carry out the following actions:

- Organize the protection of the scene, report immediately to the Investigation Agency, the Prosecution Office with authority, and the immediate superior leadership for handling according to the law; at the same time, inform the family and relatives of the deceased.

- Closely cooperate with the Investigation Agency, the Prosecution Office, and relevant agencies to investigate and clarify the cause of death of the person under temporary detention; provide all relevant materials and information as requested by the competent authority.

- In cases where the person under temporary detention who died is a foreigner, the person issuing the detention decision must immediately report to the head of the superior authority with jurisdiction to inform the Ministry of Foreign Affairs (Consular Department or Ho Chi Minh City Department of Foreign Affairs) or the competent state agency, to coordinate with the diplomatic or consular agency of the country of which the deceased is a citizen to coordinate the resolution.

5. Regarding funeral arrangements, attention should be paid to:

a) When the Investigative Agency and the Prosecution agree to permit burial, the family of the deceased shall be responsible for organizing the funeral and burial of the deceased. The authority temporarily holding the person may arrange for staff to assist the family or close relatives of the deceased during the funeral period if they request such assistance.

b) In cases where the deceased has no family or close relatives, or where the place of residence of the deceased cannot be determined to contact their family or close relatives, the funeral of the deceased shall be handled by the agency or unit temporarily holding them in coordination with the local government authority where the temporary holding takes place. The funeral of the deceased must be carried out carefully, seriously, and in accordance with the legal regulations on death registration procedures and environmental hygiene requirements;

c) In cases where a foreigner being temporarily held dies, the handling of the funeral and burial shall be resolved according to international treaties to which Vietnam is a party or through direct agreements between the Government of Vietnam and the country of the deceased concerning each specific case;

In cases where there is no corresponding international treaty or where the Government of Vietnam and the country of the deceased cannot reach an agreement on each specific case, or where the nationality of the deceased cannot be determined, the funeral and burial shall be handled as if the deceased were a Vietnamese national who was temporarily held;

d) The costs for organizing the funeral and burial of the deceased in the cases guided in Clause 2, Section IX of this Circular shall be borne by the state budget, including: one wooden coffin, one pair of trousers, one long-sleeved shirt, four meters of shroud fabric, alcohol or spirits for cleaning the body when wrapping it; incense, flowers, candles, and a reasonable amount of actual expenses for organizing the burial in accordance with the law;

e) The organization of the burial conducted by the agency or unit temporarily holding the person must be documented in a record, with video recording or photographs kept in the file.

X. IMPLEMENTATION

1. It is proposed that the Ministers of the Ministries of National Defense, Finance, Industry and Trade, Agriculture and Rural Development, Transport, and the Chairpersons of the People's Committees of provinces and centrally governed cities base their guidance on the requirements and actual situation of administrative violation prevention and control within their respective fields and areas to specifically guide the implementation and supervise and inspect the implementation of the Administrative Detention Regulation and the guidance provided in this Circular.

2. The Directors of the General Directorates of Security, Police, Logistics, and the Financial Department, and the Directors of Public Security Departments of provinces and centrally governed cities within their functions, tasks, and authorities shall be responsible for guiding, supervising, and inspecting the implementation of the Administrative Detention Regulation and this Circular.

3. This Circular shall take effect fifteen days from the date of publication in the Official Gazette. Previous regulations of the Ministry of Public Security regarding administrative detention that conflict with this Circular shall be abolished.

During the implementation process, any arising difficulties should be reported to the Ministry of Public Security (through the General Directorate of Police and the General Directorate of Security) for timely guidance./.