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THE
MINISTRY OF NATIONAL DEFENCE
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
145/2010/TT-BQP
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Hanoi,
October 29, 2010
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CIRCULAR
GUIDING IMPLEMENTATION MEASURES ON PERSON CUSTODY ACCORDING
TO ADMINISTRATIVE PROCEDURE OF BORDER GUARDS, MARINE POLICE
Pursuant to the July 02, 2002
Ordinance on handling of administrative violations; the April 02, 2008
Ordinance on amending and supplementing a number of articles of The Ordinance
on handling of administrative violations;
Pursuant to the Governmental Decree No.162/2004/ND-CP, of September 07, 2004,
promulgating regulation of person custody according to administrative
procedure;
Pursuant to the Governmental Decree No.19/2009/ND-CP, of February 19,
2009, supplementing and amending some of articles of the regulation of person
custody according to administrative procedure, attached together with the
September 07, 2004 Decree No.162/2004/ND-CP;
Pursuant to the Governmental Decree No.104/2008/ND-CP, of September 16, 2008
providing function, tasks, powers and organizational structure of The Ministry
of National Defense
At the proposal of the Border Guard Commander,
Chapter I
GENERAL PROVISION
Article 1. Governing scope
This Circular
guides implementation measures on person custody according to administrative
procedure of Border Guard, Marine Police and regime of ensuring for person in
custody.
Article 2. Subject of application
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2. Persons
who have authority of person custody according to administrative procedure of
Border Guard, Marine Police.
Article 3. Applying measures of person custody according to
administrative procedure
1. Applying
measures of person custody according to administrative procedure shall
be only conducted in case for purpose which the authorities of Border Guard,
Marine Police have time to conduct verifying, making clear on record, nature,
seriousness of violations and importance circumstances relation to violations
which are bases to make decision of sanctioning of administrative violations or
ensure for handling of administrative violations.
2. Violation
cases may apply measure of person custody according to administrative
procedure.
a) Violation
of treaty on border regulation, regulation of land border area, regulation of
marine border area, regulation of land border gate; violation in territorial
waters and continental shelf of Vietnam;
b) It is
necessary to prevent, suspend rightly acts disturb public order or cause wounds
for other person which happen in the area of border, island, territorial waters
and continental shelf of Vietnam;
c) Person in
custody according to hunted decision of competent person (district public
security, headmasters of reform school, directors of education establishments,
treatment establishments).
3. Persons
who have authorities for person custody according to administrative procedure
of Border Guard, Marine Police, when apply measure of temporary custody
must obey provisions in Article 44 of the Ordinance on handling of
administrative violations, the Governmental Decree No.162/2004/ND-CP, of
September 07, 2004, on promulgating regulation of person custody according to
administrative procedure, the Governmental Decree No.19/2009/ND-CP, of February
19, 2009, on supplementing and amending some of articles of the regulation of
person custody according to administrative procedure, attached together with
the September 07, 2004 Decree No.162/2004/ND-CP (the regulation of person
custody according to administrative procedure) and this Circular.
Article 4. Form of document using in person custody according
to administrative procedure
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1. Form
No.01: Authorization paper.
2. Form
No.02: Minutes of delivering, receiving administrative violator.
3. Form
No.03: Decision on person custody according to administrative procedure.
5. Form
No.04: Decision on forwarding dossier of administrative violation with criminal
sign to examine for penal liability.
4. Form
No.05: Decision on extending limit-time of person custody according to
administrative procedure.
6. Form
No.06: Announcement on temporary custody of administrative violator.
7. Form
No.07: Book of monitor person in custody according to decision of hunting of
authorities because of administrative offences.
Article 5. Dossier of person custody according to
administrative procedure
1. Units of
Board Guard, Marine Police have authority of person custody according to
administrative procedure must make temporary custody dossier for monitoring, in
that must update, note, record fully and specific problems relating to
temporary person custody.
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a) Minutes of
administrative offence;
b) Minutes of
delivering, receiving administrative violator;
c) Decision
on person custody according to administrative procedure; Decision on extending
limit-time of person custody according to administrative procedure and other
documents relating to person in custody according to decision of hunting of
authorities according to administrative procedure;
3. Documents
in Dossier of person custody according to administrative procedure must put
ordinal number, bind in cover of dossier and manage according to the provisions
of laws on managing, security, storing dossier. To strictly prohibit of
erasing, deleting, amending, modifying content or destroying willingly
documents, dossiers of temporary person custody. Persons who have duty of
making, managing dossiers of temporary violator custody, depend on nature,
seriousness of violation, shall be discipline handled or be handled according
to provisions of laws.
Charter II
AUTHORITIES AND
PROCEDURES OF PERSON CUSTODY ACCORDING TO ADMINISTRATIVE PROCEDURES
Article 6. Authorities of person custody according to
administrative procedures
1.
Authorities of person custody according to administrative procedures shall
conduct according to provisions in point h, point I, clause 1, article 7 of the
Regulation on person custody according to administrative procedures, including:
a) The small
chiefs of border little area; commanders of Marine Border Guard Fleet,
commanders of marine border guard squadron, commanders of border guard station
and heads of border guard unit in borders, islands;
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2. Case
persons who provided in clause 1, this Article absent, may authorize for deputy
level to conduct the competent on temporary person custody. The authorization
must conduct in written (as Form No.01), in that determine clearly authorized
scope, content and period.
Authorized
person is not entitled to re-authorize for other person and must take responsibility
on making decision on person custody according to administrative procedures
before heads and the laws.
Article 7. Delivering, receiving administrative violator
Delivering,
receiving administrative violator provided in Article 8 of the Regulation on
person custody according to administrative procedures shall implement as
following:
1. The
competent person provided in clause 1, clause 2, Article 6 of this Circular,
when receiving administrative violator alleged by other organizations,
individuals, must promptly implement making violating minutes (if those
organizations, individuals have not yet made) and minutes on delivering,
receiving person.
Minutes on
delivering, receiving administrative violator must write fully, clearly content
as regulations (Form No.02); with signature of deliver, receiver, violator,
witness, damaged person (if any). If violator, witness, damaged person refuse
for signing, person making minutes must write clearly in minutes the reason of
that refusing.
2. Regarding
to administrative offence discovered, prevented and made minutes of
administrative offence or after made minutes of delivering, receiving
administrative violator, if consider necessary to apply measure of temporary
custody, must promptly make decision on person custody according to
administrative procedures.
Article 8. Decision on person custody according to
administrative procedures
1. When have
enough bases and consider necessary to apply measure of temporary custody with
administrative offender, competent persons of Border Guard, Marine Police must
immediately issue decision on person custody according to administrative
procedures.
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2. When have
base to reckon that violation of person in custody according to administrative
procedures has sign of criminal, person issuing decision on temporary custody
must forward all dossier, person in custody according to decision of hunting of
authorities together with exhibits, means (if any) to competent investigation
agency for implementation of investigation according to provisions of laws.
Decision on
forwarding dossiers which have sign of criminal for examine for penal liability
must write fully, clearly provided content (Form No.04).
Article 9. Time Limit of person custody according to
administrative procedures
1. According
to provisions in clause 3, Article 2 of the Regulation on person custody
according to administrative procedures, time limit of person custody according
to administrative procedures shall not exceed 12 hours, since the time point of
beginning of custody violator; time limit of temporary custody may extend, but
not exceed 24 hours.
Regarding to
offences on Border Regulation of administrative violations in far-flung
mountainous regions, islands, the custody duration can be longer but must not
exceed 48 hours.
2. The
extending of custody duration only apply in very necessary cases, those are
cases need more time to verify record of violator and importance and complex
details relating to violations of person in custody for use as basis to decide
handling administrative violation or to ensure handling violator.
Before out of
custody duration, authority of Border Guard, Marine Police must make decision
on prolonging custody duration according to administrative procedures (Form
No.05), but not exceed the maximum custody duration.
3. Case duration
of custody stated in decision on custody has not ended yet, but to verify or
finished handling violation or duration of custody has ended according to
administrative procedures, person issuing decision must stop holding person in
custody and must note in monitor book on administrative custody, with signature
of person in custody for confirmation.
If person in
custody don’t sign, person who make decision on custody must conduct making
minutes or assign for person who is direct conducting mission to make and write
clearly in the minutes of the reason of not signing by person in custody. The
minutes must have signature of person making, person making decision on custody
and witness (if any).
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Informing of
decision on holding person in custody according to administrative procedures to
family, organization, place of working, studying or father, mother, and
guardian of person in custody provided in Article 10 of the Regulation on
holding person in custody according to administrative procedures shall conduct
as the following:
1. Regarding
to Vietnamese citizen who violating in custody
a) At the
requirement of person in custody and base on each detail case, person making
decision on custody may inform in written, telephone, fax or through other
information means of decision on holding person in custody to family,
organization, place of working, studying of person in custody know;
b) Case
minors are held in custody in the night time (from 10PM to 05AM of morning the
next day), or custody them for over 6 hours, their parents or guardians must be
notified thereof immediately. If their parents or guardians are undefined, must
inform to person in custody know and write clearly in monitor book of person in
administrative custody.
2. Regarding
to foreigner who violating in custody
a) Foreigner
with passport or paper with value of replacing passport, book of crew members
or without passport have violation and held in custody, person making decision
on custody must conduct fully procedures according to provisions of laws (make
minutes of administrative violation, make decision on custody…), and report
head of direct higher level to inform immediately for the Ministry of Foreign
Affairs (Consular department or Hochiminh department for external relations) to
coordinate in handling.
Case
diplomatic missions or Consular missions require contact with
person in custody of their country, agencies, units send notice shall have responsibility
to coordinate with the Ministry of Foreign Affairs to arrange for
representative of diplomatic missions or Consular missions of these
country in visiting consular and coordinating to handle other related foreign
affairs;
b) For
foreigners resident in border area with neighbor countries (China, Lao,
Cambodia) pass by border with border identity card, passport, certification
according to the Regulation of the Treaty on Regulation on border or passport
to exit/enter a country (using for purpose of visit, tourist) according to
effect agreement between Vietnam and neighbor country, have administrative
offence and are held in custody according to administrative procedures,
commanders of border guard station or authorized person must conduct fully procedures
according to provisions of laws (make minutes of administrative violation, make
decision on custody…) and report promptly to commanders of border guard of
provinces, cities to inform to border safeguard force of neighbor
countries having violator thereof to coordinate handle
3. The notice
on custody person according to administrative procedures must write clearly
bases, unit implement custody, information on person in custody and time-limit,
place of temporary detention (Form No.06).
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PLACE OF TEMPORARY
DETENTION, REGIME OF ENSURING FOR PERSON IN CUSTODY ACCORDING TO ADMINISTRATIVE
PROCEDURES
Article 11. Places of temporary detention according to
administrative procedures
1. Places of
temporary detention according to administrative procedures are house or
room for administrative detention (herein called as administrative detention
house) which are build at barracks of units (border little area, border guard
station, Marine Border Guard Fleet, marine border guard squadron under Border
Guard Commands of centrally-affiliated provinces or cities, marine police
fleet, marine police squadron), and hang signboard: “ADMINISTRATIVE DETENTION
HOUSE”.
2. Form, size
of administrative detention houses in units stated in clause 1 this Article
when building must conduct according to Article 11 of the Regulation on custody
person according to administrative procedures and must ensure the following
requirements:
a) Base on
area, nature, characteristic, conditions, flow of person in custody according
to administrative procedures, real requirements of temporary detention to lay,
design, build logically; chosen position to build detention houses need avoid
nearing dining room, arsenal, places nor ensuring hygiene, safe for person in
custody, not influence to garrison, defend and ready for fighting of units;
b) The
administrative detention houses must arrange temporary detention place in
particular for juvenile person, woman or foreigner; have lock door, ensure
light, airy, hygiene and safe on preventing and fighting fire, convenient for
management and protection and have officer charge management concurrently.
Person in custody according to administrative procedures by night must arrange
bed or floor with sedge mat, blanket, mosquito-net; the minimum lying area for
each person is 2m2;
c) Case unit
has no detention house, may let violator in custody at guard room,
meeting-hall, room for reception of citizens, other room in barrack,
administrative detention compartment on the ship of marine police or ship, boat
of the violator arrested, but must ensure provisions of laws on administrative
detention.
3. Cadre
direct managing persons in custody take responsibility to inform regulations of
administrative detention house to persons in custody to them consciously abide.
Article 12. The regime of eating and drinking for persons in
custody according to administrative procedures
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Article 13. Handling person in custody according to
administrative procedures ill in duration of detention
1. Person in
custody according to administrative procedures ill in duration of detention,
agency or unit of person issuing decision on detention must treat on the
premises; case of serious ill need give first aid, in all capacity, possible
conditions, must prompt arrange to rush them to the nearest medicine
establishment of state or private to emergency aid, treat, and concurrent,
inform promptly to their family, relatives coming to care. When take person in
custody to medical examination and treatment establishments, must make minutes
closely, detail, clearly on time of medical examination and treatment,
situation of ill of the person in custody and other related problems, the
minutes must have signature (write clearly full name or pressing finger print)
of person in custody, competent person of detention and representative of treatment
place.
Time of
medical examination and treatment shall not calculate in duration of detention.
2. Case their
relatives, family have application of suggesting to bring back home for caring,
treatment and whereas it is not necessary to continue detaining, competent
person of custody shall issue decision on termination custody according to
administrative procedures and let them return home.
Before let
person in custody return home, competent person of detention must make minutes.
The minutes must write clearly healthy situation of person in custody at the
time of making decision on termination person detention according to
administrative procedures and other related problems such as property, means,
money, papers v.v… of person in custody, signature of persons in custody or
their family, relatives and competent person of detention according to
administrative procedures. Case their money or property in custody are lost,
damaged, agency, unit issuing decision on detention shall have responsibility
for compensation.
3. For
persons in custody according to administrative procedures have no certain
resident, no family, no relatives or family and relatives are so far to come
for caring timely or refuse caring, unit of person issuing decision on
detention shall arrange person direct come place where persons in custody are
medical examine and treat to manage and care.
Article 14. Handling person in custody according to
administrative procedures die in duration of detention
Handling
person in custody according to administrative procedures die in duration of
detention shall conduct according to provision in clause 2, Article 15 of the
Regulation on custody person according to administrative procedures; competent
person issuing decision on detention must conduct some of following activities:
1. Organize
to safe for the scene, inform promptly to commander of direct higher level,
investigation agency, competent procuracy to solve according to provisions of
laws, concurrency inform to relatives, family of dead person thereof.
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3. Complete
dossier of matter, report the direct higher level as regulations.
4. Case dead
person in custody is foreigner, agency or unit of Border Guard, Marine Police
beside of implementation as guideline in clause 1, clause 2 and clause 3 of
this Article, base on each detail case, shall conduct the following content:
a) Person in
custody have passport or paper with value of replacing passport, book of crew
members in valid time, person making decision on detention must report
commander of direct higher level to inform promptly to the Ministry of Foreign
Affairs (Consular department or Hochiminh department for external relations) or
competent state agency to coordinate with diplomatic missions or consular
missions of the country where death person have nationality to solve;
b) Person in
custody is resident of border area with neighbor countries, commander of border
guard station report to commanders of border guard of centrally-affiliated
provinces or cities to ask directing opinion, concurrent inform promptly to border
safeguard force of neighbor countries where have death resident to coordinate
to solve.
After
24 hours, since informing to border safeguard force of neighbor countries, but
they have not assigned representative, relatives come to receive or have other
requirements, commander of border guard station report to commanders of border
guard of centrally-affiliated provinces or cities to ask directing opinion,
concurrent coordinate with functional agencies, local authorities to ensure
procedures, dossier and bury death person according to provisions of Vietnam
laws.
5. Burying
death person in custody need pay attention:
a) When
investigation agency and procuracy unite to permit interring, family of the
death person take responsibility to hold burying;
b) Case death
person in custody is Vietnam citizen, have no family, no relatives or cannot
verifying place of their resident, working, studying… to inform, agency, unit
of detention shall coordinate with local authority to solve interring.
Burying death person conduct according to provisions of laws on procedures of
death registration and ensure requirements of environmental hygiene;
c) Case death
person in custody is foreigner, interring shall be solved according to
international treaties of which Vietnam is a member or according to provisions
of Vietnam laws include consideration of aspiration of the death person’s
relatives or suggestion of diplomatic missions or Consular missions of
country which death person have nationality.
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d) Holding
burying detention person die must describe in minutes, with taking photo to
save in dossier of case of unit.
6.
Expenditure to ensure for burying the detention death paid by family. Case
their family cannot ensure, agency, unit of Border Guard, Marine Police of
competent person making decision on detention shall take responsibility for
ensuring the burying expenditure as regulations.
Article 15. Case cannot self-ensure expenditure
1. The
following cases are considered that person in custody according to
administrative procedures or family of person in custody cannot self-ensure
expenditure:
a) Persons in
custody or their family have no money or property;
b) Family or
relatives or juvenile guardian of person in custody abandon them;
c) Persons in
custody is subject cannot verify place of resident, cannot verify family or
have no family or relatives;
d) Family or
relatives of person in custody live too far the detention place to have
conditions for rearing, caring, supplying or have no conditions to undertake
interring.
2.
Expenditure for ensuring on eating and drinking, medical examination and
treatment, interring for cases of person in custody according to administrative
procedures cannot self-ensure shall supplied by state budget and take from
expenditure of agency, unit of competent person making decision on detention.
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Charter IV
IMPLEMENTATION ARTICLE
Article 16. Expenditure for ensuring
1. Expenditure
for ensuring of applying measure of holding person in custody according to
administrative procedures includes the following expenses:
a) Expenses
for printing forms, books servicing applying measure of holding person in
custody according to administrative procedures;
b) Expenses
for investment to build, repair, and upgrade detention material facilities;
c) Expenses
for buying furniture, means servicing for holding in custody;
d) Expenses
for delivering, receiving administrative violator;
e) Expenses
for eating and drinking, medical examination and treatment for person in
custody, Expenses for burying when person in custody die in detention duration
for case they or their family cannot self-ensure;
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2.
Expenditure ensure for person custody according to administrative procedures
shall be supplied by state budget, be arranged in yearly estimate which
assigned for The Ministry of National Defense by competent level.
Article 17. Organization of implementation
1. This
Circular take effect since December 16, 2010.
2. Commanders
of Border Guard, Marine Police have responsibilities:
a)
Organization to grasp it thoroughly for units under Border Guard, Marine Police
and related agencies to deploy implementation of Regulation on custody person
according to administrative procedures;
b) Annually,
base on demand, duty and real situation of temporary detention, make estimates
ensuring as provisions of Law on state budget and documents guiding of
implementation;
c) To
coordinate with functional agencies under General department of logistics,
related agencies under The Ministry of National Defense in uniting the form of
design to build administrative detention house, report to the ministry for
approving;
d) To
monitor, supervise, speed up, and examine organization of implementation.
Annually, implementing preliminary summing-up, report the result of
organization of implementation for The Ministry of National Defense./.
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ON
BEHALF OF MINISTER
VICE MINISTER
Senior Lieutenant-General Phan Trung Kien