Nghị định 52/2019/NĐ-CP hướng dẫn Luật Đặc xá

DECREE

PROVISIONS ON THE ELABORATION OF A NUMBER OF ARTICLES OF THE LAW ON PARDON

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

Pursuant to Law on Pardon dated November 19, 2018;

At the request of the Minister of Public Security;

The Government promulgates the Decree on the elaboration of a number of Articles of the Law on Pardon.

Chapter I

GENERAL PROVISIONS

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This Decree elaborates Article 11, Article 19, Clause 1 Article 21 of the Law on Pardon on the implementation of the Decision on pardon, conditions, pardon petition, implementation of the pardon decision to foreigners, procedures for listing the eligible pardon petitioners and the pardon petition assessment.

Article 2. Regulated entities

1. Persons sentenced to termed imprisonment, or life imprisonment reduced to termed imprisonment, or suspended from imprisonment (hereinafter referred to as “convicts”).

2. Agencies, organizations, citizens of the Socialist Republic of Vietnam; foreigners stay in Vietnam, foreign organizations, international organizations operating in the Socialist Republic of Vietnam related to the pardon.

Chapter II

SPECIFIC PROVISIONS

Article3. Implementation of the Decision on pardon

When the President issues a Decision on pardon and a Decision on the establishment of the Pardon Advisory Council, the Ministry of Public Security takes charge and cooperates with the Ministry of National Defense, the Supreme People’s Court, the People’s Supreme Procuracy and other related agencies to assist the Government, the Pardon Advisory Council in the implementation of the Decision on pardon, the Decision on establishing the Pardon Advisory Council.

Article 4. Requirements of the pardon petitioners

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2.  The convicts who are considered to have fulfilled the obligations to return the property or the  restitution for the damage caused or other civil obligations specified in Point đ Clause 1 Article 11 of the Law on Pardon are those who have satisfied one of the following:

a) The fulfillment of the obligations to return the property, the restitution for the damage caused or other civil obligations as prescribed by the sentence and/or by the judicial decisions;

b) The decision to suspend the sentence by the competent Chairman of the civil judgement enforcement authority;

c) A request submitted by the judgement creditors or the legitimate representatives of the judgement creditors on not having to fulfill the obligations to return the property, the restitution for the damage caused or other civil obligations as prescribed by the sentence and/or judicial decisions. This applies to the property that does not belong to the State.

3. The convicts who are considered to have fulfilled a part of the obligations to return the property, restitution for the damage caused or other civil obligations and the remaining part of the obligations remain unfulfilled because of their financial hardship are those whose selves and families lack the assets for judgement execution or possess assets that are only adequate for the payment for the expenses for coercive judgement enforcement or possess assets that by law cannot be distrained or processed for judgement execution and lack the income or incomes that only guarantee living wage for the judgement debtors and/or those who they are obliged to take care of.

4. The convicts who are considered to have recorded exploits during their time serving the imprisonment sentences as specified in Point a Clause 3 Article 11 of the Law on Pardon are those who have satisfied one of the following:

a) Assisting the prisons, the detention centers, the criminal judgement enforcement authorities affiliated to the District divisions of the Public Security, the competent authorities in the crimial procedure, the discovery, the investigation, the taking of actions against the criminals;

b) Saving other people’s lives or recovering considerable assets (50 million Dongs or higher in value) of the State, the body, the citizens during catastrophes, fires;

c) Coming up with brilliant inventions, innovations or significant accomplishments approved by the prisons, the detention centers, the criminal judgement enforcement authorities affiliated to the District divions of the Public Security.

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5. The convicts who are suffering from fatal diseases specified in Point c Clause 3 Article 11 of the Law on Pardon are those suffering from diseases such as: Terminal cancer; paralysis; drug-resistant tuberculosis; ascites due to liver cirrhosis; heart failure class III or higher; chronic kidney disease stage IV or higher; clinical stage IV HIV with opportunistic infections, inability to live on their own and poor prognoses, high mortality rates or suffering from other diseases concluded on paper by the Medical Examination Council or the hospitals of provinces level, military regions level or higher that they cannot live on their own, have high moratlity rates.

6. The convicts who are considered to be suffering from chronic ailments, unable to live on their own as specified in Point c Clause 3 Article 11 of the Law on Pardon are those who are receiving treatment at the infirmaries, hospitals for either at least 03 consecutive months or at least 3 times with each time lasts 01 month or more, unable to live on their own, concluded on paper by the Medical Examination Council or the hospitals of provinces level, military regions level.

7. The convicts who are considered to be living in severely disadvantaged families and the only breadwinner in the families as specified in Point e Clause 3 Article 11 of the Law on Pardon are those whose families are suffering from severe financial hardships due to accidents, illnesses, catastrophes, fires or other force majeure events leading to the loss of significant property, no incomes or income lower than poverty limit or biological father, mother, wife, husband, children who are the only breadwinner of the families as certified by the local Commune-level People’s Committee are suffering from serious prolonged illnesses without caretakers.

Article 5. Pardon petition dossier

Pardon petition dossier consists of documents, files prescribed in Article 14 of the Law on Pardon. To be specific:

1. Pardon petition dossier of the convicts should follow the sample issued by the Pardon Advisory Council in every pardon session.

2. The convicts’ commitment not to violate the law, to fulfill the obligations of returning the property, restitution for the damage caused, other civil obligations if they are unfinished and serve additional penalties (if any) should follow the sample issued by the Pardon Advisory Council such as: Prohibition from holding certain positions or doing certain works; prohibition from residence; mandatory supervision; deprivation of certain citizenship rights; confiscation of property; expulsion.

3. If the convicts are considered to have recorded exploits during their time serving the imprisonment sentences; to be people with meritorious services to the revolution and/or their close relatives; to suffer from fatal diseases, chronic ailments that they are unable to live on their own; to be under 18 years of age when committing the offenses or when serving the imprisonment sentences; to be 70 years of age or older; to be pregnant or to have children less than 36 months of age living together in the prisons, the detention centers, the detention houses; to live in severely disadvantaged families and to be the only breadwinner of the families; to be marked severely disabled or very severely disabled; to have limited recognition or behavior control, they must have the following certifying documents for each case:

a) Reports on the exploits of the convicts; proposal on paper for reward for the convicts' deeds by the wardens of the prisons, the detention centers, the criminal judgement enforcement authorities affiliated to the District divisions of the Public Security or investigating authorities who employed the convicts to assist the investigations; confirmations or copies of the decision on rewarding the convicts for having recorded exploits during their time serving the imprisonment sentences granted by the Supervisors of the prisons, the detention centers, the Chairman of the criminal judgement enforcement authorities affiliated to the District divisions of the Public Security or the investigating authorities who employed the convicts to assist the investigations;

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If the convicts are parents, spouse, children of the revolutionary martyrs, of the people with meritorious services to the revolution who were awarded with the Medal of “For Merit to the Fatherland” or “For Merit to the Nation” or have raised the martyrs at an early age, they must have confirmations or copies of the documentary evidences certified by the Commune-level People’s Committee of the place where the convicts lived or worked, studied before committing the offenses. If the convicts are legal adopted parents, children of the martyrs, of the people with meritorious services to the revolution who were awarded with the Medal of “For Merit to the Fatherland” or “For Merit to the Nation” or are legal adopted children of the “Vietnamese Heroic Mother”, they must have the copies of the Adoption Cerificate issued by the Commune-level People’s Committee of where the convicts lived, where the martyrs lived before passing away or where the Vietnamese Heroic Mother lives.

c) Conclusion of the Medical Examination Council or copies of the medical records, conclusion of the hospitals of the provinces, military regions or higher that the convicts are suffering from fatal diseases, chronic ailments or pregnant;

Papers certifying the convicts are suffering from fatal diseases or chronic ailments are only valid within 06 months until the day in which the Pardon Advisory Council of the prisons, detention centers, criminal judgement enforcement authorities affiliated to the District divisions of the Public Security hold meetings to consider, file the pardon petition dossier;

d) Copies of the birth certificate or of the judgements for the convicts committing the offenses, serving the imprisonment sentences are under 18 years of age, for the convicts with 70 years of age or older;

dd) Copies of the birth certificates to determine whether the convicts are women with children under 36 months of age staying together in the prisons, the detention centers, the detention houses;

e) Copies of the Severe Impairment, Very Severe Impairment Certificates issued by the Commune-level People’s Committee of where the convicts lived before the judgement enforcement or before serving the imprisonment sentences; copies of the Decision of the competent Court on the convicts having limited recognition or behavior control according to regulations and law of the Civil Code;

g) Documents of the competent civil judgement enforcement authorities confirming the convicts have fulfilled a part of the obligations to return the property, to make restitution for the damage caused and other civil obligations according to the judgement, judicial decisions but financial hardships prevent them from fulfilling the remain obligations in compliance with regulations and law on civil judgement enforcement and decision on the inability to to satisfy the judgement debt.

4. The original or copies of the documents, papers confirming the convicts have satisfied additional penalties such as fines, court fees, returing the property, restitution for the damage caused, other civil obligations such as: Receipts, bills, documents confirming these activities or the Decision to exempt the convicts from fines, court fees of the Court, the Decision to suspend judgement enforcement of the Chairmen of the competent civil judgement enforcement authorities or written agreement of the judgement creditors or their legitimate representatives on not having to fulfill the obligations to return the property, make restitution for the damage caused, other civil obligations as specified in the judgements, judicial decisions must be certified by the Commune-level People’s Committee of the residence or the civil judgement enforcement authorities currently on the case or other documents, papers regarding this matter.

5. The original or copies of the agreement of the judgement creditors on allowing the convicts to suspend or be exempt from satisfying the obligations to return the property, make restitution for the damage caused, other civil obligations for property that does not belong to the State.

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7. Written pardon petition of the Pardon Advisory Council of the prisons, the detention centers, the criminal judgement enforcement authorities affiliated to the District divisions of the Public Security, the Provincial People’s Court or Military Courts of Vietnam of military region level shall follow the sample issued by the Pardon Advisory Council in every pardon session.

8. For the convicts who are suspended from imprisonment sentences, apart from documents specified in Clause 1, 2, 3 ,4 ,5 ,6 ,7 of this Article, other necessary documents are the decision to suspend the imprisonment sentences; written comments of the Commune-level People’s Committee, military units in charge of overseeing the convicts’ compliance with regulations and law during the suspension period.

Article 6. Grant of pardon decisions to foreigners

1. Upon pardon decisions for foreigners are made, the criminal judgement enforcement managing authorities affiliated to the Ministry of Public Security, the Ministry of National Defense must take charge and cooperate with the Department for Consular Affairs, the Ministry of Foreign Affairs to promptly inform and request cooperation in the pardon decision with the diplomatic mission, consular mission of the country where the pardoned are citizens.

2. After the pardon decision is granted, the prisons, the detention centers, the criminal judgement enforcement authorities affiliated to the District divisions of the Public Security must free the foreigners according to the pardon decision and inform the Department for Consular Affairs, Ministry of Foreign Affairs or other agencies authorized by the Ministry of Foreign Affairs to inform diplomatic mission, embassy of the countries where the foreigners live.

3. The pardoned foreigners during their time waiting for the exit visa procedures according to regulations and law on entry, exit, transit of foreigners in Vietnam will be permitted to reside by the Chairmen of the civil judgement enforcement managing authorities under the supervision of the Ministry of Public Security, the Ministry of National Defense.

The decision on the pardoned foreigners reside will be sent to the Department of Consular Affairds, the Ministry of Foreign Affairs or other agencies authorized by the Ministry of Foreign Affairs to inform the diplomatic mission, consular mission of the country where the pardoned live and implement at once.

4. The prisons, the detention centers, the criminal judgement enforcement authorities affiliated to the Ministry of Public Security are responsible for transferring the pardoned foreigners to the accommodations according to regulations and law on execution of criminal judgement and the decision on the pardoned foreigners’ residence.

5. The management and handling of pardoned foreign residents shall follow regulations on the management and handling of foreign residents waiting for their exit as specified in the law on criminal judgement enforcement.

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Article 7. The procedures of filing, listing the individuals eligible for pardon

1. Within 05 days from the day in which the Decision to pardon is made and publicized, the Supervisors of the prisons, the detention houses, the Chairmen of the criminal judgement enforcement authorities affiliated to the District divisions of the Public Security must facilitate the convicts’ writing of the Pardon petition and the Commitment.

2. After receiving the Pardon Petition, the Supervisors of the prisons, the detention centers, the Chairmen of the criminal judgement enforcement authorities affiliated to the District divisions of the Public Security to allow groups of inmates (if any) to hold meetings to elect, cast ballots, introduce the convicts who request the pardon petition. The wardens overseeing the groups of inmates are responsible for reporting the meetings’ results and proposing ideas on pardoning the convicts under their supervision.

3. Based on the regulations and law on pardon, the Decision on pardon and the results of inmates’ meetings, the Supervisors of the prisons, detention centers, the Chairmen of the criminal judgement enforcement authorities affiliated to the District divisions of the Public Security shall file and list the individuals eligible for pardon.

Article 8. Assessing the pardon petition dossier

1. The Interdisciplinary Assessment Group shall directly contact the Supervisors of the prisons, the detention centers under the supervision of Ministry of Public Security, the Chairmen of the criminal judgement enforcement authorities affiliated to the District divisions of the Public Security, the Chairmen of the criminal judgement enforcement authorities affiliated to the Ministry of National Defense, the Chief Justice of the provincial People’s Court, Chief Justice of the People’s Court of the military region to receive the reports on the results of the pardon petition and the assessment of dossier, lists of individuals eligible for pardon.

2. When assessing the dossier, the lists of individuals eligible for pardon, the members of the interdisciplinary assessment group must compare the information in the pardon petition with that in the original dossier of the convicts sentenced to termed imprisonment, life imprisonment reduced to termed imprisonment and the dossier of the convicts suspended from imprisonment to ensure accuracy and precision.

3. After assessing the dossier, the members of the Interdisciplinary Assessment Group must specify in the Interdisciplinary Assessment Group’s comment section in the pardon petition. If the convicts are ineligible for pardon, the reasons must be specified.

Should the situation gets complicated or requires serious consideration, the members of the Interdisciplinary Assessment Group must report and present to the Interdisciplinary Assessment Group so as to unify the decisions. If the group fail to reach a consensus on the decision, the members must vote and specify the number of votes for and against the decision to pardon in the Interdisciplinary Assessment Group’s comment section in the pardon petition.

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IMPLEMENTATION PROVISIONS

Article 9. Entry into force

This Decree comes into force from August 01, 2019.

Decree No. 76/2008/ND-CP dated July 04, 2008 of the Government on the elaboration of a number of Articles of the Law on Pardon in 2007 will expire when this Decree takes effect.

Article 10. Responsibility for implementation

Related ministers, heads of ministerial agencies, heads of Governmental agencies, Chairman of the Provincial People’s Committee, authorities, organizations, individuals are responsible for the implementation of this Decree./.

PP. THE GOVERNMENT
THE PRIME MINISTER




Nguyen Xuan Phuc