Circular No. 41/2010/TT-BCA detailing the implementation of certain provisions of Decree No. 70/2006/NĐ-CP dated July 24, 2006, and Decree No. 22/2009/NĐ-CP dated February 24, 2009, on the management of seized items and means of transport held under administrative procedures within the People's Public Security.

CIRCULAR

Detailed implementation of certain provisions of Decree No. 70/2006/NĐ-CP dated July 24, 2006

and Decree No. 22/2009/NĐ-CP dated February 24, 2009 on  managing seized items and means of transport

under administrative procedures  administrative within the People's Police

_____________________

To implement uniformly the management of seized items and means of transport under administrative procedures within the People's Public Security, the Ministry of Public Security hereby provides detailed implementation of certain provisions of Decree No. 70/2006/NĐ-CP dated July 24, 2006 on managing seized items and means of transport under administrative procedures, which has been amended and supplemented by Decree No. 22/2009/NĐ-CP dated February 24, 2009 (hereinafter referred to as Decree No. 70/2006/NĐ-CP), as follows:

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Circular stipulates details regarding the place for temporarily holding seized items and means of transport; the procedure for returning seized items and means of transport; handling seized items and means of transport that have exceeded the temporary holding period; collecting, depositing, managing, and using fees for storing and preserving seized items and means of transport under administrative procedures within the People's Public Security.

Article 2. Applicability

This Circular applies to public security units at all levels, localities, and organizations and individuals involved or related to the management of seized items and means of transport under administrative procedures within the People's Public Security.

Article 3. Principles of managing seized items and means of transport under administrative procedures within the People's Public Security

The management of seized items and means of transport under administrative procedures within the People's Public Security must comply with the principles of managing seized items and means of transport under administrative procedures as stipulated in Article 3 of Decree No. 70/2006/NĐ-CP.

Chapter II

SPECIFIC PROVISIONS

Article 4. Requirements for the place of temporary holding of seized items and means of transport

The place for temporarily holding seized items and means of transport must meet the following requirements:

1. For places of temporary holding that are warehouses or yards

a) Must ensure safety; be strictly managed, reasonably arranged to avoid confusion, loss, damage, environmental pollution, or harm to human life and health. In cases where seized items and means of transport are temporarily held outdoors, a roof or other rain and sun protection facilities must be provided.

b) For seized items and means of transport that are machinery or vehicles using gasoline, diesel, or other flammable fuels, before being placed in the temporary holding area, the organization responsible for managing seized items and means of transport must remove all fuel from the tanks.

c) It is strictly prohibited to bring into the temporary holding area explosive, flammable, toxic, or radioactive materials if the temporary holding area does not have the technical equipment necessary to store such materials.

d) Must ensure dryness and ventilation; have lighting and safety protection systems;

e) Must have protective fences;

f) Must be equipped with complete fire alarm, fire prevention, and firefighting equipment; appropriate technical equipment and facilities for managing each type of seized item and means of transport. The head of the temporary holding area for seized items and means of transport must develop fire and explosion prevention plans and organize officers, soldiers, and staff to practice these plans thoroughly, ensuring the safety of the temporary holding area.

2. For places of temporary holding that are water ports or berths, they must meet the conditions specified in points a, b, and c of Clause 1 of this Article. Specifically, for water ports, they must also meet the standards of inland waterway ports.

3. For places of temporary holding that are office premises, workplaces, or other locations designated by authorized persons, they must meet the conditions specified in points a, b, c, and d of Clause 1 of this Article.

Article 5. Arrangement of Temporary Storage Locations for Evidence and Means

1. The temporary storage locations for evidence and means within the People's Public Security may be dedicated storage locations of a single public security unit, shared storage locations among multiple different public security units, or shared storage locations between public security agencies and other local agencies.

For units that frequently need to temporarily store large quantities of evidence and means, the head of such unit shall report to the Provincial Public Security Director to request the provincial People's Committee to consider allocating land and construction funds for the establishment of a temporary storage location.

Upon receiving allocated land and construction funds for the temporary storage location, the agency responsible for storing evidence and means shall coordinate with relevant agencies and functional units to organize the design and construction of the temporary storage location to ensure compliance with the requirements stipulated in Article 4 of this Circular, construction standards, fire prevention and explosion control standards, and environmental standards as prescribed by law.

2. In cases where the agency responsible for storing evidence and means does not have the conditions to construct a temporary storage location or the scale of the constructed temporary storage location is insufficient to store all seized evidence and means, the agency responsible for storing evidence and means may report to the head of their agency to request renting a dedicated temporary storage location if there is a frequent need to temporarily store large quantities of evidence and means.

Renting a temporary storage location must be formalized through a contract. The content of the contract must meet the requirements of a property custody contract under the Civil Code and the requirements of administrative procedures for managing seized evidence and means, including the following main elements: the subject of the contract; price; payment method; duration and implementation method of the contract; rights and obligations of the parties; liability for breach of contract; penalty for breach of contract, and other contents.

3. In cases where the quantity of seized evidence and means is small or the evidence and means are compact items that do not require transfer to a warehouse, wharf, or yard, the authorized person for temporarily storing evidence and means may decide to temporarily store the evidence and means at the agency's office or workplace. In this case, the authorized person for temporarily storing evidence and means must hand over the seized evidence and means to staff who have the capability and conditions to manage them.

4. In cases where the seized evidence and means are items that the agency responsible for storing evidence and means lacks the necessary equipment and technical conditions to transport to a temporary storage location, or if transporting to a temporary storage location would result in the storage location lacking the necessary conditions to properly preserve the items, the authorized person issuing the decision to temporarily store may entrust the People's Committee of the commune, ward, or town where the seized evidence and means are located, or entrust individuals or organizations holding the seized evidence and means to manage and preserve them, provided it does not affect the proper handling of administrative violations.

The People's Committee of the commune, ward, or town, or the individual or organization entrusted with managing the evidence and means, must arrange a temporary storage location that meets the requirements stipulated in Article 4 of this Circular and must apply all necessary measures to properly preserve the entrusted assets, strictly comply with the decisions of the authorized person issuing the decision to temporarily store evidence and means. If the assets are lost or damaged due to their own fault, they must bear responsibility under the law.

5. In cases where it is impossible to arrange a temporary storage location for seized evidence and means according to the provisions of Clauses 1, 2, 3, and 4 of this Article, the temporary storage location for evidence and means shall be arranged by the authorized person for temporarily storing but must meet the requirements stipulated in points a, b, c, and d of Clause 1 of Article 4 of this Circular.

Article 6. Allocation of specialized staff for managing seized items and means

The agency with a temporary holding facility for seized items and means must allocate specialized staff for managing such items and means, specifically as follows:

1. In cases where the temporary holding facility for seized items and means is a separate facility of a single police unit, the head of that police unit shall allocate specialized staff for managing seized items and means.

2. In cases where the temporary holding facility for seized items and means is a shared facility among different police units, the allocation of specialized staff for managing seized items and means shall be decided by the heads of the respective police agencies.

3. In cases where the temporary holding facility for seized items and means is a shared facility between the police agency and other local agencies, the allocation of specialized staff for managing seized items and means shall be based on a decision of the same-level People's Committee or an agreement between the police agency and other local agencies.

Article 7. Procedures and formalities for returning seized items and means

1. Returning seized items and means must be based on a written decision to return issued by the person who made the decision to temporarily hold them.

2. When returning seized items and means, the staff responsible for managing such items and means shall carry out the following procedures:

a) Verify the decision to return; check the identity card and other relevant documents of the person receiving the items and means.

The person receiving the returned seized items and means must be the owner of those items and means, a representative of the administrative violator organization recorded in the decision to seize administrative violation items and means, or a person legally entitled to use those items and means. If these individuals authorize another person to receive the items and means, they must establish a power of attorney in accordance with the law.

b) Require the recipient to inspect the type, quantity, volume, weight, characteristics, and condition of the seized items and means under the supervision of the manager.

c) Prepare a record of returning the seized items and means of transport.

Article 8. Disposal of seized items and means upon expiration of the temporary holding period

The disposal of seized items and means upon expiration of the temporary holding period shall be carried out in accordance with Article 11 of Decree No. 70/2006/NĐ-CP and the following guidelines:

1. For seized items and means that have exceeded the temporary holding period and whose owners, managers, or lawful users are unknown, or if these individuals do not come forward to resolve the matter and claim the items and means, the authorized confiscating authority must immediately publish at least two consecutive notices in central or local mass media outlets and publicly post notices at their office premises. Within thirty days from the date of the last notice published in the mass media and publicly posted, if the owners, managers, or lawful users cannot be identified or if they do not come forward to claim the items and means, the authorized authority must issue a confiscation decision in accordance with the law.

2. For seized items and means that have been subject to a confiscation decision, within ten days from the date of issuance of the decision, the person issuing the confiscation decision shall be responsible for:

a) Transferring the confiscation decision to the Provincial Auction Service Center located in the province where the violation occurred for items and means confiscated by the authorized authorities of central agencies and for items and means confiscated by the authorized authorities of provincial agencies to organize auctions.

b) Drafting a letter requesting the Chairman of the District People's Committee to decide on establishing a District Auction Council to auction administrative violation items and means confiscated by the authorized authorities of district and commune agencies, specifying the necessity of establishing an Auction Council, the items and means to be auctioned, the auction deadline, etc. Attached to this letter is a draft Decision on Establishing the Auction Council.

3. The procedures and formalities for auctioning assets are implemented in accordance with Decree No. 17/2010/NĐ-CP dated March 4, 2010 on Auctioning Assets. The costs for the Auction Council are implemented in accordance with the regulations of the Ministry of Finance.

Article 9. Handling of Seized Items and Means Not Accepted by Auction Service Centers and Areas Without Auction Service Centers

1. In cases where Auction Service Centers do not accept seized items and means for auction as prescribed or areas without Auction Service Centers, the head of the authority issuing the confiscation decision shall submit a written request to the Chairman of the Provincial People's Committee to issue a decision establishing an Asset Auction Board in accordance with Clause 2 of this Article, detailing the necessity to establish the Asset Auction Board, the items and means to be auctioned, the deadline for the auction... The draft Decision on Establishing the Asset Auction Board shall be attached to the letter.

2. The Chairman of the Provincial People's Committee where the administrative violation occurred shall decide to establish an Asset Auction Board to organize the auction of seized items and means resulting from administrative violations for which the central competent authority has issued the confiscation decision.

The Chairman of the Provincial People's Committee where the office of the person authorized to issue the confiscation decision is located shall decide to establish an Asset Auction Board to organize the auction of seized items and means resulting from administrative violations for which the provincial competent authority has issued the confiscation decision.

3. The composition of the Asset Auction Board is stipulated in Clause 1, Article 12 of Decree No. 70/2006/NĐ-CP.

Article 10. Collection, Submission, Management, and Use of Fees for Temporary Storage and Preservation of Seized Items and Means

1. For seized items and means that are returned to their owners or managers due to administrative violations but not confiscated, the person receiving the items or means must pay the fee for temporary storage and preservation during the period of seizure.

If seized items and means are returned to their owners or managers because the authority issuing the seizure decision determines that the person holding the seized items or means did not commit an administrative violation, then the person receiving the items or means does not have to pay the fee for temporary storage and preservation during the period of seizure. In cases where seized items and means are subsequently confiscated, the costs for temporary storage and preservation during the seizure period shall be deducted from the proceeds of the sale of the administrative violation items and means.

2. The authority issuing the seizure decision (in cases where it organizes the temporary storage and preservation of seized items and means itself) or the specialized business entity entrusted by the authority issuing the seizure decision to store and preserve seized items and means shall collect fees for temporary storage and preservation of seized items and means.

3. The amount of fees for temporary storage and preservation of seized items and means; the procedures for collection, submission, management, and use of such fees shall be implemented in accordance with Clauses 2 and 3 of Section II of Circular No. 19/2007/TT-BTC dated March 13, 2007, guiding the management and handling of seized items and means beyond the seizure period and the collection, submission, management, and use of fees for temporary storage and preservation of seized items and means.

Chapter III

IMPLEMENTATION

Article 11. Effective Date  

This Circular shall take effect from December 25, 2010. All previous regulations of the Ministry of Public Security on the management of seized items and means of transport temporarily detained under administrative procedures in the People's Police that conflict with this Circular are hereby abolished.

Article 12. Responsibility for Implementation

1. The General Administration of Administrative Police for Order and Safety is responsible for assisting the leadership of the Ministry of Public Security in inspecting, urging, and guiding relevant local police units to implement this Circular.

2. The Directors of the General Administrations, Heads of subordinate units of the Ministry, Directors of provincial public security services, and Director of the Fire Prevention and Fighting Service of Ho Chi Minh City are responsible for implementing this Circular.

3. In the course of implementing this Circular, if any difficulties or obstacles arise, the relevant local police units shall report to the Ministry (through the General Administration of Administrative Police for Order and Safety, Legal Department) for timely guidance./.