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THE MINISTRY
OF PUBLIC SECURITY -THE MINISTRY OF JUSTICE – THE SUPREME PEOPLE'S PROCURACY
-THE SUPREME PEOPLE'S COURT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No. 13/2012/TTLT-BCA-BTP-VKSNDTC-TANDTC
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Hanoi, October
09, 2012
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JOINT CIRCULAR
GUIDING IMPLEMENTATION OF A NUMBER OF PROVISIONS OF THE
CRIMINAL PROCEDURE CODE AND THE CRIMINAL JUDGMENTS EXECUTION LAW ON PURSUIT
In order to properly and uniformly implement provisions
of the 2003 Criminal Procedure Code and the 2010 Criminal Judgments Execution
Law on pursuit in the stages of investigation, prosecution, trial and execution
of criminal judgments, the Ministry of Public Security, the Ministry of
Justice, the Supreme People's Procuracy and the Supreme People's Court issue
this Joint Circular to guide implementation of a number of provisions of the
Criminal Procedure Code and the Criminal Judgments Execution Law on pursuit.
Chapter I
GENERAL PROVISIONS
Article 1. Scope of
regulation
This Circular guides the application of a number
of provisions of the Criminal Procedure Code and the Criminal Judgments
Execution Law on pursuit in the stages of investigation, prosecution,
trial and execution of criminal judgments.
Article 2. Subjects who are
wanted
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2. Persons who being sentenced to expulsion or
serving expulsion sentence absconded.
3. Persons who being sentenced to imprisonment
absconded.
4. Persons who being sentenced to death
absconded.
5. Persons who serving imprisonment sentence or
being permitted to suspend the serving of imprisonment sentence or postpone the
serving of criminal sentence absconded.
Article 3. Principles of
pursuit
1. Pursuit must be rapid and timely, and
conducted against the right persons and right
offenses, and assure respect for civil rights to freedom and democracy
as provided by law.
2. It is prohibited to issue pursuit warrants in
contrary to law and guide of this Circular.
Article 4. Issuance of
pursuit warrants
1. A competent agency may issue a pursuit
warrant when fully meeting the following conditions:
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b/ Having identified accurately the background
and identification features of the absconding person.
2. When having sufficient grounds to believe
that an accused or a defendant absconded or his/ her whereabouts is unknown,
and if the investigative agency, procuracy or court has earlier issued a
warrant for his/her temporary arrest but failed, the investigative agency may
issue a pursuit warrant, at its own will or the request of the procuracy or
court. In case a warrant for the arrest of an accused or a defendant for
detention has not been yet issued, the investigative agency, procuracy or court
will not issue an arrest warrant in order to temporarily take accused or
defendant into custody but the investigative agency may promptly issue a
pursuit warrant at its own will or the request of the procuracy or court.
Article 5. Contents of
pursuit warrants
1. A pursuit warrant must have the following
principal details:
a/ Date and place of issuance;
b/ Name of the agency, full name and position of
the person issuing pursuit warrant;
c/ Full name as indicated in the birth
certificate, alias (if any), date of birth, place of permanent residence
registration, place of temporary residence or another place of residence (if
any) of the subject who is wanted;
d/ Personal identification characteristics and
enclosed photos (if any);
e/ Crime for which he or she has been accused,
prosecuted or convicted, and penalty level (if any) sentenced by the court
against him/her;
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2. For an accused or a defendant who has
committed more than one crime, a pursuit warrant must specify all crimes he/she
has committed.
Article 6. Sending and
notification of pursuit warrants
1. A pursuit warrant must be sent to:
a/ The police office of the commune, ward or district
township and the police offices of the districts where the wanted person has
registered his/her permanent or temporary residence and places of residence and
of his/her native place;
b/ The police department of the province or
centrally-affiliated city where the wanted person probably absconds, or the
police departments of all provinces and centrally-affiliated cities;
c/ The Police Department for Criminal Pursuit of
the Ministry of Public Security; and the Police Section for Criminal Pursuit of
the provincial-level Police Department (that has issued the pursuit warrant);
d/ The professional agency in charge of case
dossiers (in place which the dossiers are registered);
e/ The people's procuracy that has requested the
issuance of a pursuit warrant; the people's procuracy at the same level with
the investigative agency issuing the pursuit warrant; or the provincial-level
people's procuracy of the locality where there are prison or detention camp and
the criminal judgment enforcement agency issuing the pursuit warrant;
f/ The people's court that has requested the
investigative agency for issuing a pursuit warrant.
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Chapter II
PURSUIT IN THE STAGES OF
INVESTIGATION, PROSECUTION, TRIAL AND JUDGMENT EXECUTION
Article 7. Pursuit in the
stage of investigation
1. If in the stage of investigation an
investigative agency currently settling a case detects that an accused has
absconded or does not know his/her whereabouts, it shall issue a pursuit
warrant and coordinate with the criminal pursuit police force in arresting
him/her.
2. In case a person, who is in temporary
custody, escapes from the custody house, the head of the custody house shall
promptly report such to the head of the investigative police section of the
district-level police office, where the custody house is located, aiming that
the head of the investigative police section shall organize and direct the
pursuit, and concurrently issue a decision to institute a criminal case against
such person for the crime of escaping from the place of detention or custody
prescribed in Article 311 of the Penal Code, and issue a pursuit warrant (in
which clearly specifying other crimes for which criminal case has been
instituted against such person).
3. In case a detainee escapes from the detention
camp, the superintendent of the detention camp shall promptly organize a
pursuing force and concurrently notify such to the investigative agency
currently settling the case for the latter to issue a decision to institute a
criminal case against such person for the crime of escaping from the place of
detention or custody prescribed in Article 311 of the Penal Code and a pursuit
warrant (in which clearly specifying other crimes for which the criminal
case has been instituted against such person).
Article 8. Pursuit in the
stage of prosecution
1. If in the stage of prosecution a procuracy
currently settling a case file detects that an accused has absconded, it shall
request in writing the investigative agency that has accepted such criminal
case to issue a pursuit warrant for the accused.
2. Upon the expiration of the time limit
specified in Clause 1, Article 166 of the Criminal Procedure Code, if the
pursuit of the accused still has no result, the agency having issued the
pursuit warrant shall notify such to the procuracy currently settling the case
for having grounds in order to settlement according to its competence. If the
absconder has not yet arrested, the case must be settled as follows:
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b/ In case the absconding of the accused affects
the objective and comprehensive verification of facts of the case, the
procuracy shall suspend the whole case.
Article 9. Pursuit in the
stage of trial
1. In case a procuracy has issued a decision on
prosecution of an accused and handed over the indictment to the accused but has
not yet forwarded the case file to a court when it is informed of the absconding
of the accused, it shall still forward the case file to the court for
settlement, trial and notify the absconding of the accused to the court, which
shall later request the investigative agency to pursue the accused.
In case the court receives the procuracy's
notice of the absconding of the accused after being handled over the indictment
(regardless of whether the case file has been forwarded to the court) or
if the accused absconds in the stage of trial preparation, the court shall
request the investigative agency to pursue the accused and still carry out
activities according to general procedures.
Upon the expiration of the time limit for trial
preparation specified in Article 176 of the Criminal Procedure Code, if the
pursuit of such accused still has no result, the court shall apply Article 180
of the Criminal Procedure Code in order to issue a decision to suspend the
case.
In case an accused absconds when a court hearing
has been opened, the trial panel shall apply Clause 1, Article 187 of the Criminal
Procedure Code in order to issue a decision to suspend the case and request the
investigative agency to pursue the accused.
3. For the cases guided in Clause 2 of this
Article, for cases involving many accused or
defendants, the court shall still issue a decision to suspend the case
with regard to all accused and defendants involved in the case though only some
of them abscond. For an accused or a defendant who is still kept in detention,
upon the expiration of the detention duration, if considering that his/her
detention is still necessary in order to finish the trial, the court may apply
Article 177 of the Criminal Procedure Code in order to issue a detention order.
Upon the expiration of the time limit for trial
preparation, if the pursuit still has no result, the court shall promptly issue
a decision to bring the case for trial and try the absconder in absentia under
Point a, Clause 2, Article 187 of the Criminal Procedure Code.
4. Upon receiving a written request of the court
for pursuit of an accused or a defendant, the investigative agency shall
promptly issue a pursuit warrant and send notices on pursuit warrant under
Article 161 of the Criminal Procedure Code and the guidance in Article 6 of
this Joint Circular.
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5. If a court has requested the investigative
agency to pursue an accused or a defendant, when its judgment takes legal effect,
the court will not have to request the investigative agency to issue a new
pursuit warrant.
Article 10. Pursuit in the
stage of judgment execution
1. When a person who is out on bail is sentenced
to imprisonment but absconds when a judgment execution decision is issued, the
court that has issued such decision shall request in writing the criminal
judgment enforcement agency of the provincial-level Police Department of the
locality in which such person resides to issue a pursuit warrant.
2. When a person, whose time limit to be
permitted to postpone the serving of his/her imprisonment sentence is expired,
absconds after the court issues a judgment execution decision, the court shall
request in writing the criminal judgment enforcement agency of the provincial-level
Police Department of the locality in which such person resides to issue a
pursuit warrant.
3. When a person, whose time limit to be
permitted to suspend the serving of his/her imprisonment sentence is expired,
absconds after the court issues a judgment execution decision, the court shall
request in writing the criminal judgment enforcement agency of the
provincial-level Police Department of the locality in which such person resides
to issue a pursuit warrant.
4. When a person who is serving an imprisonment
sentence at a prison or detention camp absconds, the superintendent of the
prison or detention camp shall promptly organize a force to pursue him/her.
Past 24 hours after detecting the absconding of such person, if the pursuit has
no result, the superintendent of the prison or detention camp under the
Ministry of Public Security, or the head of the criminal judgment enforcement
agency of the provincial-level Police Department (for a person absconding
from a detention camp under the provincial-level Police Department) shall
issue a pursuit warrant and coordinate in the pursuit.
5. When a person sentenced to death absconds
from a detention camp pending an execution decision, the superintendent of the
detention camp shall promptly organize a force to pursue him/her. Past 24 hours
after detecting the absconding of such person, if the pursuit has no result,
the superintendent of the detention camp under the Ministry of Public Security,
or the head of the criminal judgment enforcement agency of the provincial-level
Police Department (for a person absconding from a detention camp under the
provincial-level Police Department) shall issue a pursuit warrant and
coordinate in the pursuit.
6. When a person who is serving an imprisonment
sentence at a temporary custody house absconds, the criminal judgment
enforcement agency of the district-level police office shall promptly organize
a force to pursue him/her. Past 24 hours after detecting the absconding of such
person, if the pursuit has no result, the head of the criminal judgment
enforcement agency of the district-level Police Department shall request in
writing the head of the criminal judgment enforcement agency of the
provincial-level Police Department to issue a pursuit warrant.
7. When a person sentenced to expulsion or
serving an expulsion sentence absconds, after receiving a notice from the
accommodation establishment or designated place of accommodation, the criminal
judgment enforcement agency of the provincial-level Police Department shall
promptly organize a pursuit. If the pursuit has no result, it shall issue a
pursuit warrant within 07 days.
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1. In case an absconder commits a new crime and
is arrested, the investigative agency that settles the new case shall notify in
writing the new crime to the investigative agency that has issued the pursuit
warrant for issuing a decision to stop the pursuit and coordinate in investigation
as prescribed by law.
2. In case an absconder commits a new crime and
continue escaping, the investigative agency that settles the new case shall
issue a decision to institute a criminal case against him/her and a pursuit
warrant for him/her for the new crime, and notify such in writing to the
investigative agency that has issued the previous pursuit warrant for
coordinated to pursuit.
3. For an absconder and a pursuit warrant for
him/her has been issued but later determined by a competent procedure-conducting
agency that he/ she has committed other crime, an investigative agency shall
perform procedures to issue a new pursuit warrant regarding the newly-detected
crime.
Article 12. Splitting of,
suspension or resumption of investigation into cases involving the accused
being pursued
1. For a criminal case involving many accused,
including an accused who is pursued, an investigative agency shall, before
completing the investigation, issue a decision to separate from the case the
part related to acts of the absconder (provided the separation does not
affect the objective and comprehensive verification of facts of the case),
and, upon the expiration of the investigation time limit, issue a decision to
suspend the investigation involving such part of the case and a decision to
suspend the investigation with regard to the absconder. For other accused in
the case, investigation conclusions and requests for prosecution must still be
issued under regulations.
2. When the absconder is arrested under the
pursuit warrant, the investigative agency that has issued the pursuit warrant
shall issue a decision to stop the pursuit and a decision to resume the
investigation of the case and the accused under Article 165 of the Criminal
Procedure Code.
Chapter III
ACTIVITIES TO BE
IMPLEMENTED UPON ARREST OR RECEIPT OF WANTED PERSONS
Article 13. Handling upon
arrest or receipt of persons arrested under pursuit warrants
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2. If knowing that the agency that has issued
the pursuit warrant cannot immediately receive the arrestee, the investigative
agency that has arrested or received the arrestee shall issue a decision to
keep him/her in temporary custody and send it to the procuracy at the same
level. If the agency that has issued the pursuit warrant still fails to receive
the arrestee, the investigative agency that has arrested or received the
arrestee shall forward the case file enclosed with a written request for
extension of the custody duration to the procuracy at the same level sooner
than 12 hours before the expiration of the custody duration. The extension of
the custody duration and approval thereof comply with Clause 2, Article 87 of
the Criminal Procedure Code.
3. After receiving a notice enclosed with the
personal identification statement, fingerprint sheet and photos of the
arrestee, the agency that has issued the pursuit warrant shall immediately
examine them for determining whether the arrestee is the wanted person. If the
arrestee is the wanted person, it shall immediately receive him/her. If the
arrestee is not the wanted person, it shall immediately notify such to the
investigative agency currently holding the arrestee in custody for settling
under law. In case it cannot immediately receive the arrestee, the agency that
has issued the pursuit warrant and is competent to arrest people for detention
shall promptly issue a detention order and send it together with the pursuit
warrant to the procuracy at the same level for approval.
Within 24 hours after receiving a request for
approval, the procuracy shall consider and approve the detention order for a
person arrested under a pursuit warrant for the agency that has issued such
warrant to promptly send the detention order together with the approval
decision to the investigative agency that has arrested or received the
arrestee. Upon receiving the detention order approved by the procuracy, the
investigative agency that has arrested or received the person arrested under
the pursuit warrant shall promptly send the detention order together with the
procuracy's approval decision to the detention camp or custody house where the
arrestee is held in custody.
4. For a person arrested under a pursuit warrant
of a criminal enforcement agency or a prison or detention camp, if the agency
that has issued the pursuit warrant fails to receive him/her 12 hours ago the
expiration of the temporary custody duration, the legally effective judgment
and the decision on execution of imprisonment sentence or expulsion sentence
must be promptly sent to the investigative agency that has arrested or received
the arrestee (for remote localities, these documents may be sent via facsimile
and their originals to be sent later) to serve as grounds for detention,
holding in custody or consignment to an accommodation establishment (for the
case of execution of expulsion sentence).
5. In case a competent agency has issued a
pursuit warrant at the request of a procuracy or court, within 24 hours after
receiving a written notice of having arrested the wanted person, the procuracy
or court requesting for pursuit shall promptly issue a detention order and send
it to the investigative agency that has arrested or received the arrestee (for
remote localities, the detention order may be sent via facsimile with its
original to be sent later) and concurrently notify the agency that has issued
the pursuit warrant of the sending of the detention order.
6. 24 hours ago the expiration of the temporary
custody duration (including extended custody duration), If the detention camp
or custody house fails to receive a detention order from the investigative
agency that has issued the pursuit warrant or from the pursuit-requesting
procuracy or court, it shall promptly notify such to the investigative agency
that has arrested or received the wanted person. Upon receiving the notice of
the detention camp or custody house, the investigative agency that has arrested
or received the wanted person shall request in writing the agency that has
issued the pursuit warrant to immediately receive the arrestee.
7. In case a person subject to many pursuit
warrants, the investigative agency that has arrested or received him/her shall
notify the agencies that have issued the pursuit warrants under which he/she is
arrested in order to receive him/her. Any agency receiving the arrestee shall
notify its receipt to other agencies that have issued pursuit warrants against
such person for issuance of decisions to stop pursuit and for coordinated
investigation under law.
8. Upon handing over a person arrested under a pursuit
warrant to the agency that has issued the pursuit warrant, the investigative
agency that has arrested or received such arrestee shall also hand over a
dossier including: a written record of arrest under the pursuit warrant, a
written record of statements of the arrestee, a decision on temporary custody,
a decision on extension of the temporary custody duration, a detention order, a
decision on approval of the detention order, a personal identification
statement, a fingerprint sheet and other relevant documents (if any). A written
record of such handover must be made as prescribed.
9. If it is necessary to have an overnight
stopover during the extradition of a wanted person, the escort(s) shall present
necessary documents and request for consigning this person to the nearest
custody house or detention camp. The head of the custody house or the
superintendent of the detention camp shall examine the dossiers related to the
wanted person and carry out procedures for admitting his/her sending.
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Upon arresting or receiving an accused or a
defendant being wanted for a less serious crime subject to a penalty of
imprisonment of 2 years or less than, an investigative agency arresting or
receiving the arrestee shall issue a temporary custody decision. When the
temporary custody duration or extended duration is expired, the investigative
agency settling the case shall apply another deterrent measure under the
Criminal Procedure Code.
Article 15. Application of
deterrent measures when arresting the wanted juvenile persons
1. A wanted person who is between full 14 years
and under 16 years old or between full 16 years and under 18 years old may be
held in temporary custody or detained if there are sufficient grounds specified
in Articles 82, 86, 88, 120 and 303 of the Criminal Procedure Code.
2. If a person was a minor when a pursuit
warrant against him/her was issued but he/she is arrested when he/she was adult
(aged full 18 years or older), measures of temporary custody or
detainment under the provisions of the Criminal Procedure Code may be applied
as applicable to adults.
Article 16. Settlement in
case a wanted person self-surrenders
1. When a wanted person self-surrenders to a
state agency or social organization, the latter shall promptly notify such to
the nearest police office for sending officers to receive him/her and making a
written record of the surrender. If a wanted person self-surrenders to a police
office, procuracy or People's Committee, the latter shall make a written record
of the surrender and promptly escort him/her to a competent investigative
agency.
2. Upon receiving a wanted person self-surrendering,
an investigative agency shall make a written record of the surrender (if the
handing agency has not yet made one) and take his/her statements on his/her
crime, absconding time, reason(s) for surrendering and other relevant matters.
3. The surrendering of wanted offenders is
regarded as an extenuating circumstance as prescribed in Clause 2, Article 46
of the Penal Code.
4. A person subject to an imprisonment sentence
execution decision who has absconded and been pursued and now self-surrenders
but suffering a serious illness (with conclusion of the medical council of a
provincial or higher-level hospital) or be pregnant (certified by a district or
higher-level general hospital) or is nursing an under-36-month infant or the
sole laborer in his/her family (certified by the local administration) and
whose family will encounter great difficulties if he/she has to serve the
imprisonment sentence may be permitted by the court to suspend the serving of
the imprisonment sentence under Article 61 of the Penal Code.
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IMPLEMENTATION
PROVISIONS
Article 17. Effect
This Circular takes effect on December 01, 2012.
All previous documents of the Ministry of Public
Security, the Ministry of Justice, the Supreme People's Procuracy and the
Supreme People's Court guiding the implementation of a number of provisions of
the Criminal Procedure Code and the Law on Execution of Criminal Judgments on
pursuit which are contrary to this Circular are hereby annulled.
Article 18. Organization of
implementation
The Ministry of Public Security, the Ministry of
Justice, the Supreme People's Procuracy and the Supreme People's Court shall
disseminate, guide, monitor and inspect the implementation of this Circular.
Any problems arising in the course of implementation
should be reported to the Ministry of Public Security, the Ministry of Justice,
the Supreme People's Procuracy and the Supreme People's Court for timely
guidance.-
FOR THE
MINISTER OF JUSTICE
DEPUTY MINISTER
Hoang The Lien
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FOR
THE CHAIRMAN OF THE SUPREME
PEOPLE'S PROCURACY
VICE CHAIRMAN
Tran Cong Phan
FOR THE
PRESIDENT OF THE SUPREME
PEOPLE'S COURT
STANDING VICE PRESIDENT
Dang Quang Phuong