Decree No. 56/2016/NĐ-CP Amending and supplementing some articles of Decree No. 111/2013/NĐ-CP dated September 30, 2013 of the Government on the regime of applying administrative educational measures at commune, ward, town level

DECREE

Amending and supplementing some articles of Decree No. 111/2013/NĐ-CP

dated September 30, 2013 of the Government stipulating the regime for applying

administrative measures for educational purposes at commune, ward, town level

_____________________

Pursuant to the Law on Government Organization dated June 19, 2015;

Based on the Administrative Violation Handling Law dated June 20, 2012;

At the proposal of the Minister of Justice,

The Government promulgates this Decree amending and supplementing some articles of Decree No. 111/2013/NĐ-CP dated September 30, 2013 of the Government stipulating the regime for applying administrative measures for educational purposes at commune, ward, town level.

Article 1. Amending and supplementing some articles of Decree No. 111/2013/NĐ-CP dated September 30, 2013 of the Government stipulating the regime for applying administrative measures for educational purposes at commune, ward, town level

1. Amending and supplementing Points c, d and đ Clause 2 Article 4 as follows:

“c) The subject is a person aged from 14 to under 18 years old, within six months has been twice administratively punished for one of the acts of theft, fraud, gambling, disrupting public order, and continues to commit one of the aforementioned violations for the third time but not yet reaching the level of criminal prosecution and has been recorded in the administrative violation report at this violation, then the statute of limitations is six months, counted from the date of committing the last act of the aforementioned administrative violation;

d) The subject is a drug addict aged 18 years or older with a stable place of residence, then the statute of limitations is three months, counted from the date the subject uses drugs and is discovered.

A drug addict participating voluntarily in a family or community detoxification program or a methadone maintenance treatment program according to the law and is found using illegal drugs will also be subject to educational measures at commune, ward, town level. The implementation of educational measures at commune, ward, town level for such subjects will be carried out concurrently with their voluntary detoxification at home or in the community or methadone maintenance treatment;

đ) The subject is a person aged 18 years or older, within six months has been twice administratively punished for one of the acts of infringing upon the property of agencies or organizations; the property, health, honor, dignity of citizens or foreigners; violating social order and safety, and continues to commit one of the aforementioned violations for the third time but not yet reaching the level of criminal prosecution and has been recorded in the administrative violation report at this violation, then the statute of limitations is six months, counted from the date of committing the last act of the aforementioned administrative violation.”

2. Amending Clause 4 Article 9 as follows:

“4. Within a maximum period of three working days from the date of receiving the request document, the Chief of Public Security Police Station shall have the responsibility to check information on the violation behavior and personal background of the violator; if the person proposed is a minor, then seek the opinion of the cultural and social officer responsible for children's work or social worker, child welfare volunteer (if any) regarding the characteristics and family circumstances of the minor.

The Chief of Public Security Police Station will not accept the proposal to establish a file if he finds that the request document does not comply with the subjects specified in Points c, d and đ Clause 2 Article 4 of this Decree or the matter is currently being mediated or successfully mediated according to the law on mediation at the grassroots level; if the proposer disagrees, then report to the Chairman of the People's Committee at the commune level.

After accepting the proposal to establish a file, the Chief of Public Security Police Station establishes the proposal file according to Articles 11, 12, 13, and 14 of this Decree.”

3. Amending and supplementing Clauses 2 and 3 Article 10 as follows:

“2. The Chief of Public Security Police Station where the subject specified in Points c, d and đ Clause 2 Article 4 of this Decree commits the violation behavior shall establish a proposal file for applying educational measures at commune, ward, town level, then transfer the file to the Chairman of the People's Committee at the commune level according to Point a Clause 2 and Clause 3 Article 13 of this Decree.

3. The Public Security Department at the district level or Public Security Service at the provincial level handling the case according to Clause 2 Article 97 of the Law on Administrative Violation Handling shall establish a proposal file for applying educational measures at commune, ward, town level for the subject specified in Clause 2 Article 4 of this Decree, then transfer the file to the Chairman of the People's Committee at the commune level according to Clause 1a, Point b Clause 2 and Clause 3 Article 13 of this Decree.”

4. Amending Clause 5 Article 11 as follows:

“5. The cultural and social officer, social worker, child welfare volunteer (if any), parents or guardians of minors, schools, agencies, organizations shall provide information, documents or submit written opinions according to the request of the public security agency within two working days from the date of receipt of the request.”

5. Amend and supplement Article 13 as follows:

“Article 13. Verification of Place of Residence and Transfer of Proposal File for Application of Community Education Measures

1. Within a maximum period of seven working days from the date of accepting the file, the person authorized to establish the file as stipulated in Article 10 of this Decree shall be responsible for verifying the stable place of residence of the subject to whom community education measures will be applied. For areas that are mountainous regions, islands, remote, and isolated areas where travel is difficult, the verification period may be extended but not exceeding ten working days from the date of accepting the file.

A stable place of residence is the place where the subject is registered as a permanent resident or temporary resident, but it must be the place where the person currently resides regularly or spends most of their time living.

Lack of a stable place of residence is the case where the place of permanent registration or temporary registration of the violator cannot be determined and the person frequently wanders around without staying at a fixed location, or the case where the place of permanent registration or temporary registration of the violator can be determined but the person frequently wanders around without staying at a fixed location.

2. Within three working days from the date of verifying the place of residence and completing the establishment of the proposal file, for subjects who do not have a stable place of residence in the locality where they commit the violation, the person authorized to establish the handling file shall proceed as follows:

a) The Head of the Police Station at the commune level who has established a file for the subject as specified in points c, d, and đ of Clause 2, Article 4 of this Decree shall transfer the file to the Chairman of the People's Committee at the commune level where the violator has a stable place of residence for consideration and decision on the application of community education measures.

b) The Public Security Agency at the district level or the Public Security Agency at the provincial level which has established a file for the subject as specified in Clause 2, Article 4 of this Decree shall transfer the file to the Chairman of the People's Committee at the commune level where the violator has a stable place of residence for consideration and decision on the application of community education measures.

3. Within three working days from the completion of the verification of the place of residence and the establishment of the proposal file, for minors who do not have a stable place of residence and whose place of residence cannot be verified, the Head of the Police Station at the commune level where the subject commits the violation, the Public Security Agency at the district level, or the Public Security Agency at the provincial level handling the case shall transfer the subject and a copy of the file to a social welfare institution or a child assistance facility as listed by the Provincial People's Committee; simultaneously, transfer the file to the Chairman of the People's Committee at the commune level where the social welfare institution or child assistance facility is located for consideration and decision on the application of community education measures.

6. Supplement Clause 1a following Clause 1 of Article 13 as follows:

"1a. Within three working days from the date of verifying the place of residence and completing the establishment of the proposal file, for subjects who have a stable place of residence in the locality where they commit the violation, the person authorized to establish the file as stipulated in Article 10 of this Decree shall transfer the file to the Chairman of the People's Committee at the commune level where the violator has a stable place of residence for consideration and decision on the application of community education measures."

7. Amend and supplement Article 15 as follows:

“Article 15. Processing of Requests for Application of Community Education Measures from Other Locations

After receiving the request file for applying community education measures transferred according to Clause 2 and Clause 3 of Article 13 of this Decree, within a maximum period of two working days, the Chairman of the People's Committee of the commune, ward, or town where the subject resides stably or where the social welfare facility or children assistance facility is located shall transfer the file to the Head of the Police Station at the same level for verification and supplementation of information and documents, and soliciting opinions from relevant agencies and organizations as stipulated in Article 11 of this Decree. The maximum time limit for verification, supplementation of information and documents, and soliciting opinions from relevant agencies and organizations is three working days, starting from the date of receipt of the file.

8. Amend and supplement Clause 1 of Article 16 as follows:

“1. After completing the preparation of the request file or after verifying and supplementing the file as prescribed in Article 15 of this Decree, within one working day, the Head of the Police Station of the commune, ward, or town must send the file to the Chairman of the People's Committee at the same level, and simultaneously notify in writing about the preparation of the file to the person proposed to apply the measure or their parents or guardians if they are minors.”

9. Amend Clause 3 of Article 18 as follows:

“3. The person proposed to apply the community education measure must be invited to participate in the meeting and express their opinion on the application of the measure. Parents or the lawful representatives of minors; victims (if any) must be invited to attend and express their opinions at the meeting. In case parents or the lawful representatives of minors cannot attend due to legitimate reasons, the consultation meeting must be postponed. The number of postponements shall not exceed two times, each postponement shall not exceed three working days, and the postponement time shall not be counted towards the time for considering and deciding on the application of the measure. If parents or the lawful representatives of minors still cannot arrange to attend the meeting during the specified time due to absence from the locality, health conditions, or other legitimate reasons, they must have the responsibility to appoint a family representative or another close relative to attend and express opinions at the meeting.

Inviting the above persons to participate in the meeting must be reflected in writing and sent at least three working days before conducting the meeting. In case the person proposed to apply the community education measure cannot attend, they may submit their opinions in writing.”

10. Supplement Clause 3a following Clause 3 of Article 18 as follows:

“3a. In case the person proposed to apply the community education measure, parents or the lawful representatives of minors proposed to apply the community education measure deliberately avoid attending the consultation meeting; the person proposed to apply the community education measure cannot attend the consultation meeting and also does not submit written opinions or parents or the lawful representatives of minors proposed to apply the community education measure cannot attend the consultation meeting due to legitimate reasons and have been postponed according to Clause 3 of this Article, the consultation meeting shall still continue to be organized.”

11. Amend Point g of Clause 5 of Article 18 as follows:

“g) Depending on the actual situation of the locality, drug addicts must choose voluntary detoxification at home or in the community or participate in the drug substitution treatment program for opioid addiction as prescribed by law. Drug addicts must commit to voluntarily detoxify and undergo treatment.”

12. Amend Clause 2 of Article 22 as follows:

“2. The decision on community education becomes effective from the date of signing. Within a maximum period of two working days from the date it becomes effective, the decision must be sent to the person being educated, the family of the person being educated, the agency or organization entrusted with managing and educating, the Standing Body of the People's Council of the commune, and related agencies and organizations.”

13. Amend and supplement Clause 4 of Article 29 as follows:

“4. Except for the cases provided for in Clause 4a of this Article, during the implementation of the community education measure, if the person being educated does not make progress, violates commitments and has been reminded many times by the assigned helper but still refuses to correct, the agency entrusted with managing and educating must report to the Chairman of the People's Committee of the commune to organize a meeting at the facility to provide feedback to the person being educated. Members and contents of the meeting include:

a) Members of the meeting include representatives of the leadership of the People's Committee of the commune; the Head of the Police Station of the commune; judicial civil servant - registrar; the assigned helper and representatives of the agency or organization entrusted with managing and educating; representatives of the Vietnam Fatherland Front at the commune level and representatives of the grassroots unit at the facility. The person being educated and their family must be invited to attend the meeting. In case the person being educated cannot attend due to legitimate reasons, the meeting must be postponed. The number of postponements shall not exceed two times, each postponement shall not exceed three working days.

In case the person being educated cannot attend the feedback meeting due to legitimate reasons, having been postponed twice or deliberately avoiding attendance, the meeting shall still continue to be organized.

In case the person being educated is a drug addict, in addition to the aforementioned members, there must be a cultural-social civil servant, a representative of the drug rehabilitation team or the treatment facility.

b) Contents of the meeting:

The assigned helper reports on the process of management, education, and violations of the person being educated during the management period and proposes supplementary or changed management and educational measures suitable for helping. The person being educated presents the reasons for violating commitments and plans to overcome them, and proposes help if necessary. Based on the report of the assigned helper and the presentation of the person being educated, the participants analyze and provide feedback on the person being educated's mistakes, assist them to improve; discuss and propose educational measures for the individual.

The meeting must be recorded in minutes and sent to the person being educated and their family.

14. Add Clause 4a following Clause 4 of Article 29 as follows:

"4a. In cases where the person being educated has not shown progress after serving at least half of the education period at commune, ward, town level and continues to commit violations, they shall be handled and processed according to the provisions of Article 35a of this Decree."

15. Amend and supplement Article 35 as follows:

“Article 35. Handling cases of persons who are within the period of implementing educational measures at commune, ward, town level but are discovered committing criminal acts before or during the implementation of such measures.

1. In cases where it is discovered that a person subject to educational measures at commune, ward, town level has committed a criminal act before or during the implementation of the decision, upon request of the competent criminal proceedings agency, the Chairman of the People's Committee of the commune where the educational measure is being implemented must issue a decision to temporarily suspend the execution of the decision for that person and transfer the file to the criminal proceedings agency.

2. In cases where there is a decision not to initiate a criminal case, a decision to revoke the decision to initiate a criminal case, a decision to terminate investigation, a decision to terminate the case, or a court ruling of non-criminality, that person must continue to implement the decision on applying educational measures at commune, ward, town level. The Chairman of the People's Committee who issued the decision to temporarily suspend the execution of the educational measure at commune, ward, town level must issue a decision to revoke the decision to temporarily suspend the execution of the educational measure at commune, ward, town level which he/she had issued.

3. In cases where that person is sentenced to imprisonment by the court, the Chairman of the People's Committee who issued the decision on educational measures at commune, ward, town level must issue a decision to terminate the application of educational measures at commune, ward, town level.

4. In cases where the punishment is not imprisonment, that person may still have to continue implementing the decision on educational measures at commune, ward, town level.”

16. Add Article 35a following Article 35 as follows:

“Article 35a. Handling cases of persons who are within the period of implementing educational measures at commune, ward, town level but continue to commit violations.

If the person being educated does not show progress after serving at least half of the educational period at commune, ward, town level and continues to commit violations that fall under the category of compulsory educational facilities or compulsory drug rehabilitation facilities, the Chairman of the People's Committee who issued the decision on applying educational measures at commune, ward, town level shall handle as follows:

1. If the violation falls under the provisions of Clause 1 of Article 94 of the Law on Handling Administrative Violations, then the Chairman of the People's Committee who issued the decision on applying educational measures at commune, ward, town level shall issue a decision to terminate the application of educational measures at commune, ward, town level and propose the application of compulsory educational facilities.

2. If the violation falls under the provisions of Clause 1 of Article 96 of the Law on Handling Administrative Violations, then the Chairman of the People's Committee who issued the decision on applying educational measures at commune, ward, town level shall issue a decision to terminate the application of educational measures at commune, ward, town level and propose the application of compulsory drug rehabilitation facilities.”

17. Amend Article 37 as follows:

"Within a maximum period of two working days from the date when the person being educated completes the execution of the decision, the Chairman of the People's Committee at the commune level must issue a Certificate of Completion of Educational Decision at Commune, Ward, Town Level to the person being educated, retain the file, and simultaneously send a certified copy to the organization responsible for managing and educating the person and their family."

18. Add Points k1, k2, and k3 following Point k of Clause 1 of Article 38 as follows:

"k1) The decision to temporarily suspend the execution of the decision on applying educational measures at commune, ward, town level as stipulated in Clause 1 of Article 35 of this Decree (if applicable);

k2) The decision to revoke the decision to temporarily suspend the execution of the decision on applying educational measures at commune, ward, town level as stipulated in Clause 2 of Article 35 of this Decree (if applicable);

k3) The decision to terminate the application of educational measures at commune, ward, town level as stipulated in Clause 3 of Article 35 and Article 35a of this Decree (if applicable);”

19. Amend and supplement Clause 3 of Article 43 as follows:

"3. The Ministry of Labor, Invalids and Social Affairs shall be responsible for developing the planning of social welfare facilities and children assistance facilities; guiding these facilities in managing subjects subject to educational measures at commune, ward, town level at social welfare facilities and children assistance facilities; training skills for social work staff at these facilities; and guiding the implementation of educational measures at commune, ward, town level for drug addicts."

Article 2. Implementation clause

1. This Decree promulgates the Appendix containing forms to be used during the implementation of administrative handling measures of education at commune, ward, town level; alternative administrative management measures at home for minors.

2. This Decree takes effect from August 15, 2016.

3. Repeal the following provisions:

a) Abolish the provision regarding the consideration and decision on compulsory drug rehabilitation in the community suitable to the practical conditions of the locality for cases of drug users violating voluntary treatment and rehabilitation commitments as stipulated in point b, Clause 4 of Article 29 of Decree No. 111/2013/NĐ-CP.

b) Abolish the provision regarding not establishing files to propose the application of compulsory drug rehabilitation facilities for cases of drug users who have completed the decision on educational measures at commune, ward, town level but are still participating in drug treatment and rehabilitation programs as stipulated in Article 37 of Decree No. 111/2013/NĐ-CP.

4. Ministers, Heads of ministerial-level agencies, Heads of agencies under the Government, Chairmen of Provincial People's Committees directly under the Central Government, and related agencies are responsible for implementing this Decree./.