THE SUPREME PEOPLE'S
COURT
THE SUPREME PEOPLE'S PROCURACY
THE MINISTRY OF PUBLIC SECURITY
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SOCIALIST REPUBLIC OF
VIET NAM
Independence - Freedom – Happiness
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No.
02/1998/TTLT/TANDTC-VKSNDTC-BCA
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Hanoi, August 05, 1998
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JOINT CIRCULAR
GUIDING THE
APPLICATION OF A NUMBER OF STIPULATIONS IN CHAPTER VIIA ON
"NARCOTICS-RELATED CRIMES" OF THE PENAL CODE
For uniform application of the provisions of the
Law on Amendments and Supplements to a Number of Articles of the Penal Code
endorsed by the National Assembly (IX Legislature) at its 11th session on May
10, 1997, the Supreme People’s Court, the Supreme People’s Procurary and the
Ministry of the Interior has promulgated Joint Circular No.
01/1998/TTLT-TANDTC-VKSNDTC-BNV of January 2, 1998 guiding the application of a
number of provisions of the Law on Amendments and Supplements to a Number of
Articles of the Penal Code (hereinafter called Joint Circular No. 01/1998).
Since this Joint Circular took effect, a number of local law enforcement bodies
have sent official letters, official telegrams and made phone calls to the
Supreme People’s Court, the Supreme People Procurary and the Ministry of the
Interior requesting more detailed guidance regarding acts of "trafficking
in narcotics" and "organizing the illegal use of narcotics" as
well as additional guidances for a number of the provisions of the Penal Code
on "narcotics-related crimes."
In order to make a correct and uniform
application of the provisions of Chapter VIIA on "narcotices-related
crimes" of the Penal Code, the Supreme People’s Court, the Supreme
People’s Procurary and the Ministry of Public Security have agreed to jointly
provide the following guidances:
1. Acts of trafficking in narcotics prescribed
in Article 185e of the Penal Code shall be one of the following acts:
a) Illegally selling narcotics to other persons;
b) Purchasing narcotics for the purpose of
illegal selling to other persons;
c) Asking for narcotics for the purpose of
illegal selling to other persons;
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e) Transporting narcotics for the purpose of
illegal selling to other persons;
f) Using narcotics for the purpose of illegal
exchange, payment, etc.;
g) Using property (other than money) in exchange
or payment, etc. for narcotics for the purpose of illegal reselling to other
persons.
While implementing the afore-said guidance,
attention shall be paid to:
- Those who commit one of the acts mentioned in
Points a and f shall be examined for penal liability for the offence of
"trafficking in narcotics" under Article 185e of the Penal Code
without depending on the source of the narcotics.
- In order to have grounds for examining the
penal liability of the persons committing one of the acts mentioned in Points
b, c, d, e and g on the offence of trafficking in narcotics under Article 185e
of the Penal Code, it is necessary to prove that the purpose of committing one
of these acts is the illegal selling of the narcotics. Where it is impossible to
prove their purpose of illegal selling of narcotics, depending on each specific
case, it may be based on the guidance in Item b, Point 4, Section II, Part B of
Joint Circular No. 01/1998 to handle administratively or examine for penal
liability on the offence of "illegal storing of narcotics" under
Article 185c of the Penal Code or the offence of "illegally transporting
narcotics" according to Article 185d of the Penal Code.
- Those who commit one of the criminal acts
referred to in Point 1 hereof and before or after that have committed one or
more than one narcotics-related offences, the examination of penal liability
shall comply with the guidance in Point 5, Section II, Part B of Joint Circular
No. 01/1998.
- Those who organise, abet or assist other persons
to perform one of the above-mentioned acts shall all be examined for penal
liability for the offence of "trafficking in narcotics" stipulated in
Article 185e of the Penal Code.
- Point 1 of this Circular shall replace Item d,
Point 2, Section II, Part B of Joint Circular No. 01/1998.
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a) Commanding, assigning and/or directing
activities of illegally putting narcotic substances into the bodies of other
persons;
b) Hiring, borrowing or using places under one’s
ownership or one’s management as well as seeking places serving as the site to
illegally put narcotic substance into the bodies of others.
c) Illegally supplying narcotics (except for the
act of illegally selling narcotics) to other persons for their illegal use of
narcotics;
d) Preparing narcotics in whatsoever forms
(purchasing, asking for, storing, producing, etc.) with a view to illegally
putting narcotics into the bodies of other persons;
e) Looking for narcotic users for organisers of
illegal use of narcotics with a view to illegally putting narcotics into their
bodies;
f) Preparing means and instruments for illegal
use of narcotics in whatsoever forms (purchasing, asking for, storing,
producing, etc.) with a view to illegally putting narcotics into the bodies of
other persons;
g) With regard to other acts (apart from those
mentioned about in Points a, b, c, d, e and f) that help other persons to
illegally use narcotics (such as giving money or lending money to others to buy
narcotics for illegal use; giving property or lending property other than money
to others to exchange for narcotics for illegal use; to help others illegally
smoke or inhale narcotics or to help others illegally inject narcotics, etc.),
if the persons who perform one of these acts have already been:
- Condemned for one of the narcotics-related
crimes prescribed in the Penal Code but their sentences have not been written
off yet;
- Administratively dealt with for one of
narcotics-related violations prescribed in the Penal Code and detailed in Joint
Circular No. 01/1998 and this Circular, but the administrative sanction time
limit has not expired;
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- Educated by State bodies (such as People’s
Committees or Police of ward, commune or township level or higher and the
agencies where they work, etc.), organisations and mass organisations (such as
residents’ groups, youth or women’s organisations, etc.) as well as responsible
persons in the agencies where they work or in the localities of their residence
(such as heads of agencies, ward’s policemen, representatives of People’s
Committees at various levels, heads of residents’ groups) but the time period
has not exceeded one year from the date of such education. It should be noted
that sufficient evidences (such as minutes of meeting; self-criticisms or
written commitments made by violators; summons to competent State bodies for
education; visits to subject persons’ families for education by responsible
officials...) are required in order to confirm that the persons performing one
of the above-mentioned acts have been educated.
Those who carry out acts of organizing of
illegal use of narcotics, and also commit carry out one or more than one
narcotics-related offences stipulated in the corresponding articles of the
Penal Code shall, besides being examined for penal liability according to
Article 185 of the Penal Code, also be examined for penal liability for other
committed offences as stipulated in the corresponding articles of the Penal
Code.
- Point 2 of this Circular shall replace Item e,
Point 2, Section II, Part B of Joint Circular No. 01/1998.
3. Acts of illegally using narcotics as
prescribed in Article 185 l of the Penal Code are those of putting by oneself
or with the help of others narcotic substance into one’s body by whatsoever
ways (such as smoking, inhaling or injecting, etc.) for the purpose of
satisfying one’s need to use narcotics.
Penal liability for illegal use of narcotics as
prescribed in Article 185 l of the Penal Code shall be examined only when
illegal narcotics users have been educated time and again and have been
administratively dealt with by their placement into forced cure establishments
but still continue using narcotics.
- "Having been educated time and
again" shall be understood as having been mobilized, persuaded, reminded
or administratively sanctioned for more than twice by State bodies,
organizations and for responsible persons, but the users still continue using
narcotics.
- Being considered as having been
administratively dealt with by the measure of placing them in forced cure
establishments, if such measure is effected in strict conformity with the
stipulations in Articles 10 and 24 of the Ordinance on the Handling of
Administrative Violations (passed by the Standing Committee of the National
Assembly on July 6, 1995) and the Regulations on Cure Establishments under the
Ordinance on the Handling of Administrative Violations of July 6, 1995 (promulgated
together with Government Decree No. 20/CP of April 13, 1996).
Those who have been sentenced for the offence of
"illegal use of narcotics" and relapse into the offence shall be
examined for penal liability according to Clause 2, Article 185i of the Penal
Code.
4. Acts of harboring illegal use of narcotics as
stipulated in Article 185k of the Penal Code shall be the acts committed by
those who have places under their ownership or management and let such places
to be borrowed or rented by other persons, who, they know, are illegal users of
narcotics, for their direct use of narcotics to satisfy their need to use
narcotics.
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5. Acts of forcing other persons to illegally
use narcotics as stipulated in Article 185m of the Penal Code shall be the acts
of resorting to force or threatening the use of force or resorting to other
ploys to bully other persons’ spirit in order to force them to illegally use
narcotics against their will.
6. Acts of drawing other persons into the
illegal use of narcotics as stipulated in Article 185m of the Penal Code shall
be the acts of inducing, enticing and inciting or resorting to other ploys to
stir other persons’ desire to illegally use narcotics so that they use it
illegally.
7. When examining for penal liability the
offence of production, storing, transport, purchase and sale of means and
instruments used for illegal production or use of narcotics, attention should
be paid to the following points:
a) Acts of illegal production, storing,
transport and illegal purchase and sale shall be understood as the
corresponding acts mentioned in Items a, b, c, Point 2, Section II, Part B of
Joint Circular No. 01/1998 and Point 1 hereof.
b) Those who are involved for the first time in
illegal production, storing, transport and purchasing as well as selling of
means and instruments used for the illegal use of narcotics by themselves shall
not be subject to the level of examination for penal liability but shall be
dealt with administratively; if continuing to commit such offences,
notwithstanding such handling, they shall be examined for penal liability
according to Article 185h of the Penal Code.
c) Being considered "law-breaking things in
great quantity" as stipulated in Point e, Clause 2, Article 185h of the
Penal Code, if these things comprise 5 instruments / means or more (may be of
the same or different kinds).
8. Attention shall be paid to a number of
circumstances which are factors for determination of offences or for setting
penalty frames as follows:
a) In the law provisions on narcotics-related
offences, there is a stipulation on the circumstance of "having been
administratively sanctioned but still relapsing into violation", in this
case, only administrative sanctions effected as from May 22, 1997 shall be
counted.
b) In the law provisions on narcotics-related
offences, it is stipulated that the circumstance of having committed offences
"against a number of persons" shall be the one for fixing penalty
frame, if at a time an offender has committed an offence against two persons or
more (such as organizing the illegal use of narcotics at a time for two persons
or more or at a time coercing or drawing from two persons or more into illegal
use of narcotics, etc.)
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- Illegal purchase of narcotics for two times or
more for the purpose of illegal selling to other persons irrespective of
selling for one or more than one time;
- Illegal purchase of narcotics once and
illegally reselling such narcotics quantity twice or more to other person(s),
irrespective of reselling twice or more to one or more than one person;
- Illegal purchase of narcotics once and
illegally reselling such narcotics quantity simultaneously to two persons or
more.
9. A number of guidances in Joint Circular No.
01/1998 shall be amended and supplemented as follows:
a) Paragraph 2, Item a, Point 1, Section II,
Part B of Joint Circular No. 01/1998 shall be supplemented as follows:
"It should be noted that opium resin
comprises opium resin taken from opium plants, opium resin boiled down into
glue, ball, etc. Opium liquid for injection shall not be considered narcotics
in liquid form and the content of opium in the liquid shall be determined to
calculate the weight of opium. Opium dregs shall not be considered opium resin
and the content of opium in the opium dregs shall be determined to calculate
the weight of opium."
b) The guidance in the second (+) mark of the
second (*) mark in Item b, Point 4, Section II, Part B of Joint Circular No.
01/1998 shall be amended and supplemented as follows:
"Those who have been sentenced for one of
the narcotics-related offences stipulated in the Penal Code but, while their
sentences have not yet been written off, illegally store or transport one of
the narcotics substances referred to above (referred to in the first (*) mark
in Item b, Point 4, Section II, Part B of Joint Circular No. 01/1998), if not
falling into case of dangerous recidivists, shall be examined for penal
liability under Clause 1, Article 185c or the corresponding Clause 1, Article
185d; if falling into the case of dangerous recidivists, they shall be examined
for penal liability under Clause 2, Article 185c or the corresponding Clause 2,
Article 185d.
Shall also be examined for penal liability
according to Clause 1, Article 185c or the corresponding Clause 1, Article 185d
those who illegally store or transport from two narcotic substances or more and
each substance has the weight referred to above (referred to in the first (*)
mark in Item b, Point 4, Section II, Part B of Joint Circular No.
01/1998)."
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- The guidances in this Circular, if extenuating
the penal liability compared with the previous guiding documents, shall be
applied when conducting investigation, prosecution, first instance trial,
appellate trial or judicial review against the persons who commit the criminal
acts before this Circular comes into force.
- Where offenders have already been sentenced in
strict conformity with the previous guiding documents and the sentences have
taken legal effect, the guidance hereof shall not be applied to appeal
according to the judicial review order.
- For cases where investigation, prosecution,
first-instance trials, appellate trials or judicial review are being underway
and the guidances hereof are applicable to declare exemption of penal liability
for the accused and defendants, the investigating bodies, procuracies and the
courts shall make clear explanations to them that this exemption of penal
liability shall not constitute the basis for claiming compensation caused by
competent persons of the procedural organs.
Investigating bodies, the procuracies and the
courts shall report immediately any difficulties that arise in the course of
implementation of this Circular to the Supreme People’s Court, the Supreme
People’s Procuracy and the Ministry of Public Security for timely guidance.
THE SUPREME PEOPLE'S
COURT
CHIEF JUDGE
Trinh Hong Duong
THE SUPREME PEOPLE'S
PROCURACY
VICE CHAIRMAN
Pham Sy Chien
THE MINISTRY OF PUBLIC
SECURITY
VICE MINISTER
Le The Tiem