Decree No. 92/2008/ND-CP detailing and guiding the implementation of certain provisions of the Law on Mutual Legal Assistance

DECREE

Detailed regulations and guidance on implementation of certain provisions of the Law on Mutual Legal Assistanceof the Law on Mutual Legal Assistance

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Pursuant to the Law on Judicial Assistance dated November 21, 2007;

Pursuant to the Decree on Fees and Charges dated August 28, 2001;

Considering the proposal of the Minister of Justice.

DECREE:

Article 1. Scope of Regulation

This Decree stipulates detailed regulations and guidance on implementation of certain provisions of the Law on Mutual Legal Assistance regarding costs for implementing judicial commissions provided for in Articles 16, 31, 48, and 60; reporting and notification systems for mutual legal assistance activities from Article 61 to Article 70, and the tasks and powers of the Ministry of Justice in managing state activities on mutual legal assistance as provided for in Article 62 of the Law on Mutual Legal Assistance.

Article 2. Principles for Payment of Costs for Implementing Mutual Legal Assistance

1. Costs for implementing mutual legal assistance in civil, criminal, extradition, and transfer of persons serving custodial sentences between Vietnam and foreign countries shall be borne by the requesting country, except where otherwise agreed.

The term "otherwise agreed" as prescribed in Clause 1 of Article 16, Article 31, Article 48, and Article 60 of the Law on Mutual Legal Assistance refers to international treaties as defined by the Law on Ratification, Accession, and Implementation of International Treaties and international agreements as defined by the Ordinance on Conclusion and Implementation of International Agreements.

2. In cases where Vietnam and a foreign country have not concluded an agreement as provided for in Clause 1 of this Article, the payment of costs for implementing mutual legal assistance shall be based on the principle of reciprocity.

3. Vietnamese individuals or organizations requesting competent Vietnamese authorities to resolve civil matters that result in requests for judicial commissions abroad (hereinafter referred to as the requesting party) must pay the costs for implementing judicial commissions in civil matters, except for individuals who are entitled to fee support under Article 4 of this Decree.

Article 3. Management and Utilization of Costs for Implementing Mutual Legal Assistance in Civil Matters

1. Individuals or organizations with requests to resolve civil matters that result in requests for judicial commissions in civil matters abroad must pay the costs for implementing judicial commissions in civil matters according to Vietnamese regulations and the costs for implementing judicial commissions in civil matters as requested by foreign countries.

The costs for implementing mutual legal assistance mentioned in this Decree include fees and actual expenses as prescribed by law.

2. The agency receiving applications for mutual legal assistance in civil matters abroad has the responsibility to collect domestic costs for implementing mutual legal assistance and notify the individuals or organizations making such requests as provided for in Clause 1 of this Article of the costs for implementing judicial commissions as requested by foreign countries before sending the application abroad. In cases where there are actual domestic expenses incurred, the agency receiving the application will temporarily collect a portion of the costs to settle according to actual invoices and receipts in accordance with Vietnamese law and relevant foreign laws.

3. Foreign individuals or organizations requesting judicial commissions in civil matters for Vietnam must pay the costs for implementing judicial commissions according to Vietnamese law. The agency receiving applications for implementing judicial commissions in civil matters has the responsibility to collect these costs.

4. The Ministry of Finance shall specify in detail the fee levels; collection, submission, management, and utilization of costs for implementing judicial commissions in civil matters.

Article 4. Support for Costs of Judicial Commissions on Civil Matters

1. Vietnamese citizens belonging to the following categories shall be exempted from costs for judicial commissions on civil matters:

a. Persons who are eligible for free legal aid in civil matters are those meeting the poverty standard as prescribed by law;

b. Individuals who were engaged in revolutionary activities prior to the August Revolution of 1945;

c. Mothers of Vietnam's Heroes;

d. National Heroic Military Forces, National Labor Hero;

đ. War invalids, persons receiving benefits equivalent to war invalids;

e. Invalids of war;

g. Individuals who participated in the resistance against the enemy and were exposed to toxic chemicals;

h. Individuals who were engaged in revolutionary or resistance activities and were captured and imprisoned by the enemy;

i. Individuals who participated in national liberation and patriotic defense activities and international duties;

k. Individuals who have contributed to revolutionary causes;

l. Parents, spouses, children under 18 years old of martyrs, and individuals who have taken care of martyrs;

m. Elderly persons who are eligible for free legal aid in civil matters are those aged 60 or older living alone or without support;

n. Disabled persons who are eligible for free legal aid in civil matters are those with physical or functional impairments that reduce their ability to work, making labor, daily life, and study difficult, or those affected by toxic chemicals, HIV, or other diseases that render them incapable of civil acts and without support;

o. Children who are eligible for free legal aid in civil matters are those under 16 years old without support;

p. Ethnic minority persons who are eligible for free legal aid in civil matters are those permanently residing in areas with particularly difficult economic and social conditions as prescribed by law.

2. Vietnamese citizens requesting exemption from costs for judicial commissions on civil matters must submit certified copies and present original documents proving they belong to one of the categories eligible for free legal aid as stipulated in Clause 1 of this Article to the agency receiving the application for judicial commission on civil matters.

Article 5. Ensuring State Funding for Judicial Assistance

1. The state funding for judicial assistance in civil, criminal, extradition, and transfer of prisoners serving sentences shall be covered by the state budget.

2. Agencies authorized to implement judicial assistance in civil, criminal, extradition, and transfer of prisoners serving sentences shall be responsible for preparing the budget estimate for state funding for judicial assistance within their jurisdiction according to the laws on state budget and related documents.

3. The Ministry of Finance shall be responsible for guiding the preparation, management, utilization, and settlement of the state budget allocated for judicial assistance.

Article 6. Tasks and Authorities of the Ministry of Justice in Judicial Assistance Activities

The Ministry of Justice assists the Government in uniformly managing state activities on judicial assistance and has the following tasks and authorities:

1. To take the lead and coordinate with the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, the Ministry of Foreign Affairs, and relevant agencies in drafting and submitting to competent state agencies for promulgation legal regulations on judicial assistance; issuing legal regulations and guidance documents within its authority in the field of judicial assistance; coordinating with the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, and the Ministry of Foreign Affairs to issue joint legal regulations guiding judicial assistance activities.

2. To coordinate with agencies proposing the signing of international treaties on judicial assistance in formulating long-term and annual plans for signing, joining, and implementing international treaties on judicial assistance as stipulated in Articles 63, 64, 65, and 66 of the Law on Judicial Assistance; to lead negotiations on bilateral agreements on civil judicial assistance; to coordinate with the Ministry of Public Security, the Supreme People's Procuracy, and relevant agencies in negotiating bilateral agreements on criminal judicial assistance, extradition, and transfer of prisoners serving sentences as prescribed by law; to monitor and urge the implementation of plans for signing and joining international treaties on judicial assistance approved by competent authorities; to lead or coordinate with the Ministry of Public Security, the Supreme People's Procuracy, and relevant agencies in formulating plans for implementing international treaties on judicial assistance for submission to the Government for decision; to organize the implementation of plans for implementing international treaties on judicial assistance in the civil sector; to coordinate with relevant agencies in organizing the implementation of plans for implementing international treaties on judicial assistance in the criminal, extradition, and transfer of prisoners serving sentences sectors.

3. To take the lead and coordinate with the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, and the Ministry of Foreign Affairs in organizing training courses on domestic laws, international treaties on judicial assistance, and guidance on judicial assistance operations for staff involved in judicial assistance activities.

4. To take the lead and coordinate with relevant agencies in building a database of laws on judicial assistance.

5. To take the lead and coordinate with the Ministry of Foreign Affairs and the Supreme People's Court in organizing inter-ministerial inspection teams to check the implementation of civil judicial commissions at people's courts and Vietnamese representative offices abroad; to coordinate with the Supreme People's Procuracy, the Ministry of Public Security, and the Supreme People's Court in inspecting the implementation of requests for criminal judicial assistance, extradition, and transfer of prisoners serving sentences to promptly identify difficulties and obstacles in the implementation of related legal provisions.

6. To take the lead and coordinate with the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, and the Ministry of Foreign Affairs in organizing regular meetings to exchange information, discuss, and decide on measures to cooperate in resolving difficulties and obstacles in the implementation of judicial assistance.

7. To take the lead and coordinate with relevant agencies in summarizing and reporting annually to the Government on judicial assistance activities as prescribed by the Law on Judicial Assistance.

Article 7. Notification on the Implementation of Judicial Assistance Activities

1. By the latest on June 30 and December 31 each year, the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, and the Ministry of Foreign Affairs shall send Notifications to the Ministry of Justice regarding the implementation of judicial assistance activities within their respective jurisdictions as stipulated in Articles 63, 64, 65, 66, and 67 of the Law on Judicial Assistance.

2. The Notifications from the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, and the Ministry of Foreign Affairs sent to the Ministry of Justice shall include the following main contents:

a. A general assessment of the situation of judicial assistance activities within the assigned field;

b. An assessment of the effectiveness of cooperation among relevant agencies in implementing judicial assistance;

c. An assessment of the implementation of the principle of reciprocity;

d. Recommendations for cooperation among relevant agencies in implementing judicial assistance activities;

e. Recommendations for amending, supplementing, or promulgating new regulatory legal documents on judicial assistance and the need to sign and accede to international treaties related to judicial assistance.

Attached to the notification shall be a summary table of judicial assistance activities of the Ministries and sectors according to the Appendices issued together with this Decree.

Article 8. Reporting to the Government and National Assembly on Judicial Assistance Activities

1. After receiving the Notifications from the relevant Ministries and sectors as prescribed in Article 7 of this Decree, the Ministry of Justice shall have the responsibility to compile these notifications and prepare a Report to the Government on judicial assistance activities as stipulated in Clause 5, Article 62 of the Law on Judicial Assistance.

2. The annual report on the situation of judicial assistance activities of the Ministry of Justice as prescribed in Clause 1 of this Article shall be submitted to the Government before January 31 of the following year. The comprehensive report of the Ministry of Justice submitted to the Government must be accompanied by the Notifications of the relevant Ministries and sectors as prescribed in Article 7 of this Decree.

3. In cases where the National Assembly requests a report on the implementation of laws in the field of judicial assistance, the Ministry of Justice shall have the responsibility to take the lead and coordinate with the Office of the Government, the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, and the Ministry of Foreign Affairs to develop a Government report to submit to the National Assembly.

Article 9. Regular Inter-Ministerial Meetings

The Ministry of Justice shall be responsible for organizing regular meetings every six months and annually to inform on the situation and exchange issues related to coordination among Ministries and sectors.

Article 10. Provisions on implementation

1. This Decree shall take effect fifteen days after its publication in the Official Gazette.

2. Ministers, Heads of ministerial-level agencies, Heads of agencies under the Government, Chairpersons of provincial and centrally-administered city People's Committees shall implement this Decree.