JOINT CIRCULAR No. 31/2005/TTLT/BLDTBXH-BCA GUIDING THE IMPLEMENTATION OF CERTAIN PROVISIONS OF DECREE No. 43/2005/NĐ-CP dated April 5, 2005 OF THE GOVERNMENT ON TEMPORARY HOUSING AT MEDICAL FACILITIES FOR DRUG ADDICTS AND PROSTITUTES WITHOUT A FIXED RESIDENCE

JOINT CIRCULAR

GUIDELINES FOR IMPLEMENTING CERTAIN PROVISIONS OF DECREE NO. 43/2005/NĐ-CP OF APRIL 5, 2005

ISSUED BY THE GOVERNMENT ON THE HANDLING OF DRUG ADDICTS AND PROSTITUTES WITHOUT A FIXED RESIDENCE BY TEMPORARILY HOUSING THEM IN MEDICAL FACILITIES

IMPLEMENTATION OF DECREE NO. 43/2005/NĐ-CP OF APRIL 5, 2005 ISSUED BY THE GOVERNMENT ON THE HANDLING OF DRUG ADDICTS AND PROSTITUTES WITHOUT A FIXED RESIDENCE BY TEMPORARILY HOUSING THEM IN MEDICAL FACILITIES (HEREINAFTER REFERRED TO AS DECREE NO. 43/2005/NĐ-CP), AFTER CONSULTATION WITH THE MINISTRY OF FINANCE, THE MINISTRY OF HEALTH, THE MINISTRY OF LABOR, INVALIDS AND SOCIAL AFFAIRS, AND THE MINISTRY OF PUBLIC SECURITY, THE FOLLOWING GUIDELINES FOR IMPLEMENTING CERTAIN PROVISIONS OF DECREE NO. 43/2005/NĐ-CP ARE ISSUED:

PART I. SUBJECTS TO BE TEMPORARILY HOUSED IN MEDICAL FACILITIES

1. THE IDENTIFICATION OF DRUG ADDICTS AND PROSTITUTES TO BE TEMPORARILY HOUSED IN MEDICAL FACILITIES MUST BE CONDUCTED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 2 OF DECREE NO. 43/2005/NĐ-CP AND THE GUIDELINES SET OUT IN THIS CIRCULAR.

2. DRUG ADDICTS AND PROSTITUTES WITHOUT A FIXED RESIDENCE WHO ARE TO BE TEMPORARILY HOUSED IN MEDICAL FACILITIES INCLUDE:

2.1. DRUG ADDICTS AGED 12 YEARS OR OLDER WHO ARE CAUGHT IN THE ACT OF ILLEGALLY USING DRUGS:

"CAUGHT IN THE ACT OF ILLEGALLY USING DRUGS" IS UNDERSTOOD TO MEAN ONE OF THE FOLLOWING SITUATIONS:

a) ENGAGING IN THE ACT OF SMOKING, SNORTING, DRINKING, OR INJECTING DRUGS;

b) HAVING COMPLETED THE ACT OF USING DRUGS BUT STILL IN A STATE OF BEING HIGH OR DRUNK AND TESTING POSITIVE FOR DRUGS.

2.2. PROSTITUTES AGED BETWEEN 16 AND 55 YEARS OLD FALLING INTO ONE OF THE FOLLOWING SITUATIONS:

a) CAUGHT IN THE ACT OF PROSTITUTION;

b) ENGAGING IN PROSTITUTION REGULARLY.

"REGULAR PROSTITUTION" IS UNDERSTOOD TO MEAN ENGAGING IN PROSTITUTION THAT HAS BEEN DISCOVERED TWO TIMES OR MORE WITHIN A PERIOD OF TWELVE MONTHS.

PART II. PROCEDURES, REQUIREMENTS, AND AUTHORITY FOR TEMPORARY HOUSING IN MEDICAL FACILITIES

1. PREPARATION OF APPLICATIONS FOR TEMPORARY HOUSING IN MEDICAL FACILITIES IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 8 OF DECREE NO. 43/2005/NĐ-CP

1.1. POLICE FORCES SHALL ESTABLISH RECORDS AND FILES IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 8 OF DECREE NO. 43/2005/NĐ-CP AND THE GUIDELINES SET OUT IN THIS CIRCULAR WHEN THEY DISCOVER SUBJECTS AS DEFINED IN ARTICLE 2 OF DECREE NO. 43/2005/NĐ-CP.

1.2. DURING THE PROCESS OF PREPARING THE FILES, IF IT IS DISCOVERED THAT THE SUBJECT IS PREGNANT, INCLUDING CASES WHERE THE SUBJECT DECLARES HERSELF TO BE PREGNANT WITH A CERTIFICATE FROM A HOSPITAL OR HEALTH CENTER AT THE DISTRICT LEVEL OR HIGHER, THE POLICE MUST RELEASE THE PERSON WHO WAS TEMPORARILY HELD.

1.3. FOR SUBJECTS DISCOVERED DIRECTLY BY POLICE STATIONS AT THE COMMUNE, WARD, OR TOWN LEVEL (HEREINAFTER COLLECTIVELY REFERRED TO AS THE COMMUNE LEVEL), THEY SHALL ESTABLISH RECORDS AND REPORT TO THE CHAIRMAN OF THE PEOPLE'S COMMITTEE AT THE SAME LEVEL BEFORE TRANSFERRING THE FILES TO THE HEAD OF THE POLICE STATION AT THE DISTRICT LEVEL.

2. FILES FOR TEMPORARY HOUSING IN MEDICAL FACILITIES IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 10 OF DECREE NO. 43/2005/NĐ-CP

FILES FOR TEMPORARY HOUSING IN MEDICAL FACILITIES SHALL INCLUDE:

2.1. RECORDS OF VIOLATIONS OF THE LAW BY THE INDIVIDUAL (FORM NUMBER 1) AND TEST RESULTS SHOWING A POSITIVE REACTION TO DRUGS (FOR DRUG ADDICTS) (FORM NUMBER 2);

2.2. SELF-DISCLOSED BIOGRAPHIES OF THE PERSON TO BE TEMPORARILY HOUSED IN MEDICAL FACILITIES (FORM NUMBER 3);

2.3. VERIFICATIONS THAT THE INDIVIDUAL DOES NOT HAVE A FIXED RESIDENCE IN THE AREA WHERE THE VIOLATION OCCURRED, ISSUED BY THE POLICE STATION AT THE COMMUNE LEVEL (FORM NUMBER 4);

2.4. DOCUMENTS REGARDING VIOLATIONS OF THE LAW (EVIDENCES OF DRUG ADDICTION AND PROSTITUTION) AND ANY TREATMENT OR EDUCATIONAL MEASURES ALREADY APPLIED (IF ANY);

2.5. DECISION TO TEMPORARILY HOUSE IN MEDICAL FACILITIES ISSUED BY THE HEAD OF THE POLICE STATION AT THE DISTRICT LEVEL (FORM NUMBER 5).

3. IMPLEMENTATION OF THE DECISION TO TEMPORARILY HOUSE IN MEDICAL FACILITIES IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 14 OF DECREE NO. 43/2005/NĐ-CP

3.1. WITHIN 24 HOURS FROM THE TIME THE DECISION TO TEMPORARILY HOUSE IN MEDICAL FACILITIES IS ISSUED, THE POLICE STATION AT THE DISTRICT LEVEL WHERE THE VIOLATION OCCURRED SHALL BE RESPONSIBLE FOR TRANSPORTING THE PERSON TO BE HOUSED TO THE MEDICAL FACILITY; FOR REMOTE AND ISOLATED AREAS, THIS PERIOD MAY BE EXTENDED UP TO 48 HOURS. DURING THIS PERIOD, THE PERSON IS TEMPORARILY HELD AT THE POLICE STATION AT THE DISTRICT LEVEL.

3.2. THE IMPLEMENTATION OF THE DECISION TO TEMPORARILY HOUSE IN MEDICAL FACILITIES MUST BE DOCUMENTED IN A RECORD (FORM NUMBER 6); THE RECORD MUST BE PREPARED IN DUPLICATE (ONE COPY KEPT AT THE POLICE STATION AT THE DISTRICT LEVEL, AND THE OTHER SENT WITH THE FILE OF THE PERSON TO BE HOUSED).

3.3. IF THE PERSON REFUSES TO COMPLY WITH THE DECISION TO BE HOUSED OR ENGAGES IN RESISTANCE, MEASURES SUCH AS HANDCUFFING, FORCIBLE TRANSPORTATION, OR OTHER COMPULSORY MEASURES AS PROVIDED BY LAW MAY BE APPLIED TO ENFORCE THE DECISION.

4. RECEIVING PERSONS TO BE TEMPORARILY HOUSED IN MEDICAL FACILITIES IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 15 OF DECREE NO. 43/2005/NĐ-CP

WHEN RECEIVING DRUG ADDICTS AND PROSTITUTES TO BE TEMPORARILY HOUSED IN MEDICAL FACILITIES, THE MEDICAL FACILITY MUST PERFORM THE FOLLOWING PROCEDURES:

4.1. VERIFY THE FILES OF THE PERSONS TO BE HOUSED IN ACCORDANCE WITH CLAUSE 2 OF SECTION II OF THIS CIRCULAR;

4.2. THE HEALTH DEPARTMENT OF THE MEDICAL FACILITY SHALL CONDUCT A HEALTH CHECK AND PREPARE A FILE TO DETERMINE THE HEALTH STATUS OF THE PERSON TO BE HOUSED;

4.3. REPRESENTATIVES OF THE POLICE STATION AT THE DISTRICT LEVEL AND THE MEDICAL FACILITY SHALL ESTABLISH A RECORD OF HANDOVER OF THE FILES AND THE PERSON TO BE HOUSED. THE RECORD SHALL BE PREPARED IN DUPLICATE, WITH EACH PARTY KEEPING ONE COPY (FORM NUMBER 7);

4.4. ENTER THE NAME OF THE PERSON INTO THE LIST OF THOSE TO BE TEMPORARILY HOUSED IN MEDICAL FACILITIES;

4.5. DISSEMINATE THE INTERNAL RULES AND REGULATIONS OF THE MEDICAL FACILITY TO THE PERSON TO BE HOUSED; INSPECT ITEMS CARRIED BY THEM PRIOR TO HOUSING.

4.5. Publish the internal regulations and rules of the medical facility to persons temporarily housed at the facility; inspect their belongings before they are temporarily housed.

4.6. Persons temporarily housed at medical facilities may bring personal items such as blankets, mosquito nets, clothing, toothpaste, toothbrushes, soap, feminine hygiene products, common medications, and other essential personal items. If persons temporarily housed at medical facilities carry money, personal belongings, or other valuable assets, they must deposit them at the designated location within the medical facility. The transfer and receipt of money, personal belongings, and assets of persons temporarily housed at medical facilities must be recorded in their tracking file and documented in a protocol with signatures from both the transferring and receiving parties. The protocol shall be made in two copies, one given to the depositor and one retained by the medical facility. In the event that the medical facility damages or loses deposited assets of persons temporarily housed there, it must compensate them.

4.7. Register temporary residence for persons temporarily housed at medical facilities with the police station of the commune where the medical facility is located.

5. Searching for and apprehending persons who have been decided to be temporarily housed at medical facilities but have fled.

5.1. In cases where persons who have been decided to be temporarily housed at medical facilities flee before being admitted to the medical facility, the public security agency currently holding the individual must prepare a record (Form No. 8) and report to the head of the public security agency of the district where the file was established to review the file and issue a decision to search (Form No. 9).

5.2. In cases where persons currently executing the decision to be temporarily housed at a medical facility flee, the director of the medical facility must prepare a record (Form No. 10), issue a decision to search (Form No. 11), and notify the public security agency of the district that issued the decision to house the individual at the medical facility and the People's Committee of the district where the medical facility is located about the escape to facilitate the search and arrest of the fugitive. The People's Committee of the district where the medical facility is located has the responsibility to direct the public security agency at the same level to cooperate with the medical facility in searching for and returning the fugitive to the medical facility. The time the individual spends fleeing from the medical facility will not be counted towards the period of execution of the decision to be temporarily housed at the medical facility.

5.3. Individuals, families, agencies, organizations discovering persons who are fleeing from a medical facility have the responsibility to immediately report to the nearest public security agency or People's Committee. When capturing a fugitive or receiving a fugitive handed over, the public security agency or People's Committee where the fugitive is captured must prepare a record of the arrest of the fugitive with the search warrant (Form No. 12) and notify the agency that issued the search warrant to receive the fugitive.

5.4. Upon receiving the notification, the agency that issued the search warrant must send someone to the place where the fugitive is temporarily held to receive the fugitive. The handover of the fugitive according to the search warrant must be documented in a protocol, each party keeping one copy (Form No. 13).

6. Completing the file proposing the application of the measure of housing in a medical facility as stipulated in Article 16 of Decree No. 43/2005/NĐ-CP.

6.1. Within the latest six days from the date of housing the individual temporarily at the medical facility, the public security agency of the district must complete the file of the individual in accordance with Article 16 of Decree No. 43/2005/NĐ-CP and submit it to the Standing Advisory Council of the district where the individual violated the law. The Advisory Council is established and operates in accordance with Article 11 of Decree No. 135/2004/NĐ-CP.

6.2. Within the latest six days from the date of receiving the file, the Standing Advisory Council must cooperate with the public security agency at the same level to review the file, collect evidence, complete the file, and submit it to the Advisory Council for examination and approval, and prepare a document to request the Chairman of the People's Committee of the district to decide on applying the measure of housing in a medical facility for individuals who violated the law.

6.3. Within the latest two days from the date of receiving the advisory council's recommendation, the Chairman of the People's Committee of the district must consider and decide on housing the individual in a medical facility.

7. Implementing the decision to house in a medical facility as stipulated in Article 17 of Decree No. 43/2005/NĐ-CP.

7.1. Within twenty-four hours from the time the medical facility receives the decision of the Chairman of the People's Committee of the district regarding the application of the measure of housing in a medical facility for individuals who violated the law, the medical facility must move the person out of the temporary housing area to implement the decision to house in a medical facility.

7.2. The implementation of the decision to house a person in a medical facility must be documented in a protocol; the protocol must be made in two copies (one copy kept by the public security agency of the district, one copy kept in the file of the person subject to the measure of housing in a medical facility).

8. Measures to handle cases of resistance and disruption affecting security and order at medical facilities.

8.1. During the execution of the decision to be temporarily housed at a medical facility, if drug addicts or prostitutes engage in acts of resistance and disruption affecting security and order at the medical facility, measures of coercion will be applied depending on the nature and severity of the violation to ensure security and order at the medical facility.

8.2. The procedures and formalities for applying coercive measures are regulated in Section I and Section II Part C of Circular Joint No. 22/2004/TTLT-BLĐTBXH-BCA dated December 31, 2004 guiding the implementation of certain provisions of Decree No. 135/2004/NĐ-CP dated June 10, 2004 of the Government on the regime of applying the measure of housing in a medical facility, organizing the operation of medical facilities under the Administrative Violation Handling Law and the regime applicable to minors and voluntary entrants to medical facilities.

9. Resolving cases of individuals who are nursing infants or pregnant when they have been decided to be temporarily housed at a medical facility.

In the event that during the temporary residence period at the medical facility, it is discovered that the subject is a woman who is breastfeeding a child under thirty-six months old, and she has submitted a request for confirmation from the People's Committee of the commune where she resides or where her violation of the law was detected, or if the subject is pregnant, including self-declaration with certification from a hospital or health center at the district level or higher, then the medical facility must report to the Head of the Public Security Department at the district level to issue a decision allowing the subject to return to the community.

10. Resolving cases of wrongful detention after a decision has been made to temporarily reside at a medical facility

10.1. During the temporary residence period at the medical facility, if the subject submits a complaint about the decision to temporarily reside at the medical facility, the Head of the Public Security Department at the district level must immediately review and conduct an investigation. If the investigation results show that the subject was wrongfully detained, the Head of the Public Security Department at the district level where the decision to detain the subject at the medical facility was issued must issue a document confirming the wrongful detention, and simultaneously take responsibility for immediately returning the subject to the community. The person wrongfully detained shall be compensated for damages according to current laws.

10.2. The document confirming the wrongful detention must be sent to the person who was wrongfully detained, the medical facility where they are temporarily residing, the Department of Labor, Invalids, and Social Affairs, the People's Council, the People's Committee at the district level, the People's Committee at the commune level where the person was detained, and the family or guardian (if any) of the person.

III. PROCEDURES AND FORMALITIES FOR REMOVING PERSONS FROM MEDICAL FACILITIES

1. Upon expiration of the term for implementing the decision to temporarily reside at a medical facility as stipulated in Article 18 of Decree No. 43/2005/NĐ-CP

1.1. When the term specified in Point 6.3, Clause 6, Section II of this Circular expires and the Chairman of the People's Committee at the district level does not issue a decision to apply the measure of sending the subject to a medical facility, the Standing Advisory Council must prepare a document for the Chairman of the People's Committee at the district level to sign and notify the Head of the Public Security Department at the district level, the Director of the medical facility where the subject is temporarily residing, and the subject themselves (Form No. 14). The document must clearly state the reasons for not applying the measure of sending to a medical facility.

1.2. Within the latest twelve hours from receiving the notification document from the Chairman of the People's Committee at the district level, the Head of the Public Security Department at the district level must issue a decision to remove the subject from the temporary residence location at the medical facility (Form No. 15).

The decision to remove the subject from the temporary residence location at the medical facility must be sent to the person who has completed the decision to temporarily reside at the medical facility, the medical facility where the person is temporarily residing, the Department of Labor, Invalids, and Social Affairs, the People's Council, the People's Committee at the district level, the People's Committee at the commune level where the person violated the law, and the family or guardian of the person (if any).

1.3. In the event that within the term specified in Point 1.2, Clause 1 above, the Head of the Public Security Department at the district level does not decide to remove the subject from the temporary residence location at the medical facility, then within the next twelve hours, the Director of the medical facility must issue a decision to remove the subject from the temporary residence location at the medical facility (Form No. 16).

The decision to remove the subject from the temporary residence location at the medical facility by the Director of the medical facility must be sent to the person who has completed the decision to temporarily reside at the medical facility, the Director of the Department of Labor, Invalids, and Social Affairs; the Director of the Public Security Department at the provincial level, the Labor and Social Services Agency, the Public Security, the People's Council, the People's Committee at the district level, the People's Committee at the commune level where the person violated the law, and the family or guardian of the person (if any).

1.4. Procedures for removing the subject from the temporary residence location at the medical facility to return to the community.

Upon issuance of the decision to remove the subject from the temporary residence location at the medical facility as stipulated in Points 1.2 or 1.3, Clause 1 above, the Director of the medical facility must implement the following procedures to remove the subject from the temporary residence location at the medical facility:

a) Informing the subject that their term for implementing the decision to temporarily reside at the medical facility has expired;

b) The person who has completed the decision to temporarily reside at the medical facility may reclaim money, personal belongings, and property deposited at the medical facility (if any), and must return any items, equipment used for study, work, and daily life borrowed from the medical facility. If lost or damaged, compensation is required;

c) For subjects under fifteen years old, the medical facility is responsible for transferring the subject to the Public Security Department at the district level where the subject was temporarily residing at the medical facility. After receiving the transfer, the Public Security Department at the district level will allow the subject to return to the community. The handover must be documented in a record. The record is prepared in two copies, one retained by the Public Security Department at the district level, and one kept by the medical facility along with the subject's file on completion of the temporary residence decision at the medical facility.

2. Administrative bail for persons with a decision to temporarily reside at a medical facility as stipulated in Article 19 of Decree No. 43/2005/NĐ-CP

2.1. During the process of verifying the subject's background to complete their file, if verification shows that the subject has a fixed place of residence within the province (hereinafter referred to as the province), the Public Security Department at the district level where the subject violated the law will transfer the subject's file to the Public Security Department at the district level where the subject resides to submit to the Chairman of the People's Committee at the same level for a decision to assign administrative bail to the family or social organization where the subject resides.

2.2. In case of verification showing that the subject resides outside the province, but there is a request for bail from the family or social organization where the subject resides (the bail request must include the opinion of the Chairman of the People's Committee at the district level where the subject resides), then the Head of the Police Department at the district level where the subject committed the violation shall issue a decision allowing the subject to return to the community; simultaneously transferring the subject's file to the police department at the district level where the subject resides for submission to the Chairman of the People's Committee at the same level to decide on assigning administrative bail to the family or social organization where the subject resides.

3.3. The handover of persons according to the bail request between the medical facility and the family or social organization where the subject resides must be recorded in a record, each party retains one copy and one copy is sent along with the file to the police department at the district level where the subject resides.

3. Temporarily removing a person who is implementing a decision to be temporarily housed at a medical facility from the medical facility upon request of the criminal investigation agency pursuant to Article 21 of Decree No. 43/2005/NĐ-CP.

3.1. The temporary removal of a person who is implementing a decision to be temporarily housed at a medical facility from the temporary housing location at the medical facility for the purpose of serving investigative, prosecution, and trial work can only be carried out when there is a written request from the competent criminal investigation agency.

3.2. Upon receiving a written request from the competent criminal investigation agency, the Director of the medical facility issues a decision to remove the person who is implementing the decision from the temporary housing location at the medical facility to participate in proceedings related to them (Form No. 17) and hands over the person to the police officer coming to receive them. The police officer coming to receive the person must present a Certificate of People's Police Officer or a Certificate of National Security Officer and an Introduction Letter from the police agency at the district level or higher.

3.3. The handover of persons removed from the temporary housing location at the medical facility to participate in proceedings is recorded in a record, each party retains one copy and it must be kept in the tracking book of the medical facility (Form No. 18).

3.4. The agency requesting the temporary removal of a person who is implementing a decision to be temporarily housed at a medical facility from the temporary housing location at the medical facility shall be responsible for transporting the subject and returning them to the medical facility within the time specified in the request document. If exceeding the time limit specified in the request document, the agency requesting the removal of the person from the temporary housing location at the medical facility must notify the Director of the medical facility in writing no later than 12 hours after the expiration of the time limit. The notification document must clearly state the reason for exceeding the time limit and the expected time for returning the subject to the medical facility.

3.5. In case the term of temporary residence at the medical facility as prescribed in Article 18 of Decree No. 43/2005/NĐ-CP has expired, but the person temporarily removed from the temporary residence at the medical facility has not yet been returned to the medical facility by the criminal investigation agency, then the Head of the Police Department at the district level or the Director of the medical facility shall proceed with the procedures stipulated in point 1.2. or point 1.3. Clause 1 Section III of this Circular to issue a decision terminating the term of temporary residence at the medical facility of the person; when the competent authority returns the subject to the temporary residence at the medical facility, the Director of the medical facility shall proceed with the procedures stipulated in point 1.4. Clause 1 Section III of this Circular to allow the subject to return to the community.

4. Treatment for seriously ill or critically ill persons as prescribed in Article 28 of Decree No. 43/2005/NĐ-CP.

4.1. A seriously ill person is someone currently in a severe condition that renders them unable to work or live normally, or is in a life-threatening condition and requires treatment for a certain period of time to recover, as determined by a doctor.

4.2. A critically ill person is someone suffering from one of the life-threatening diseases such as cancer, polio, cirrhosis, leprosy, severe tuberculosis, HIV/AIDS, or other diseases designated by the Ministry of Health as critically ill.

4.3. In case the term of temporary residence at the medical facility expires, and the subject who is seriously ill or critically ill as prescribed in points 4.1. and 4.2. of this clause has a decision to leave the temporary residence at the medical facility, but still needs to continue treatment at the hospital, then the Director of the medical facility will contact the hospital to continue caring for and treating the subject.

IV. IMPLEMENTATION

1. The funds for establishing files, searching for subjects, convening advisory boards, bringing subjects into and out of temporary residence at the medical facility, and other expenses are taken from the annual anti-drug and prostitution prevention budget of the locality.

2. The treatment for persons placed in temporary residence at the medical facility is implemented according to Joint Circular No. 56/2005/TTLT-BTC-BLDTBXH dated July 5, 2005, issued by the Joint Circular of the Ministry of Finance and the Ministry of Labor, Invalids and Social Affairs guiding the allowance system for individuals without a fixed residence placed in temporary residence at the medical facility.

3. This Circular shall take effect 15 days from the date of publication in the Official Gazette. All previous regulations contrary to this Circular are hereby abolished.

4. During implementation, if there are any difficulties, localities are requested to report to the Ministry of Labor, Invalids and Social Affairs and the Ministry of Public Security for timely guidance./.