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THE
NATIONAL ASSEMBLY
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SOCIALIST
REPUBLIC OF VIET NAM
Independence Freedom Happiness
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No.
08/2007/QH12
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Hanoi,
November 21, 2007
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LAW
ON LEGAL ASSISTANCE
(Law No. 08/2007/QH12)
Pursuant to the 1992
Constitution of the Socialist Republic of
Vietnam, which was amended and supplemented in a number of articles under
Resolution No. 51/2001/QH10;
The National Assembly promulgates the Law on Legal Assistance.
Chapter I
GENERAL PROVISIONS
Article 1.
Governing scope
This Law prescribes the principles,
competence, order and procedures for the provision of legal assistance in civil
and criminal matters, extradition and transfer of persons who are serving
imprisonment sentences between Vietnam and foreign countries; and
responsibilities of Vietnamese state agencies in legal assistance.
Article 2.
Subjects of application
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Article 3.
Application of law
1. Legal assistance complies with
the provisions of this Law; in case this Law does not prescribe it, the
provisions of civil procedure law, criminal procedure law and other relevant
provisions of Vietnamese law prevail.
2. The application of foreign laws
shall be effected only under the provisions of treaties to which Vietnam is a
contracting party.
Article 4.
Legal assistance principles
1. Legal assistance is provided on
the principles of respect for independence, sovereignty and territorial
integrity, non-interference into internal affairs of each other, equality and
mutual benefit, compliance with Vietnams Constitution and law and with treaties
to which Vietnam is a contracting party.
2. Where there exist no treaties on
legal assistance between Vietnam and foreign countries, legal assistance
activities follow the principle of reciprocity which, however, do not
contravene Vietnamese law and conform to international law and practice.
Article 5.
Language in legal assistance
1. In case there has existed a
treaty on legal assistance between Vietnam and a foreign country, the language
in legal assistance is the language prescribed in that treaty.
2. In case there has been no treaty
on legal assistance between Vietnam and a foreign country, dossiers must be
enclosed with a translation in the language of the country requested to provide
legal assistance or a translation in another language accepted by the requested
country.
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Article 6.
Legal mandate and form of provision of legal assistance
1. Legal mandate means a written
request of a competent body of Vietnam or a foreign country for the performance
of one or a number of legal assistance activities under the provisions of the
law of the concerned country or the treaty to which Vietnam is a contracting
party.
2. Legal assistance is provided on
the basis of the request of a competent body of Vietnam or a foreign country
through legal mandate.
Article 7.
Consular legalization and recognition of legal mandate papers or documents
1. Consular legalization means the
certification by the Vietnamese Ministry of Foreign Affairs, diplomatic
missions, consulates or other overseas-based offices authorized to perform the
consular function of the signatures and seals on papers or documents made,
issued or certified by foreign competent bodies for use in Vietnam.
2. Legal mandate papers or
documents made, issued or certified by foreign competent bodies under foreign
law are recognized by competent bodies of Vietnam, if those papers or documents
have been consularly
legalized.
Article 8.
Summon and protection of witnesses and experts
1. While conducting proceedings,
competent proceedings-conducting bodies may summon witnesses and experts under
the provisions of this Law and treaties to which Vietnam is a contracting
party.
2. A summons must clearly state the
conditions for the witness or expert and the commitment to guarantee the life
and health safety, accommodation, meal and travel conditions for the witness or
expert.
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4. Witnesses and experts summoned
to Vietnam may not be arrested, detained, held in custody or investigated,
prosecuted or tried for the following acts before their arrival in Vietnam:
a/ Supplying testimonies or written
expert conclusions on the cases for which they are summoned;
b/ Committing crime in Vietnam;
c/ Having relations with persons
being subject to criminal investigation, prosecution or trial in Vietnam,
d/ Involving in civil or
administrative matter in Vietnam.
5. Witnesses and experts rights not
to be arrested detained, held in custody or investigated, prosecuted and tried,
which are defined in Clause 4 of this Article, will terminate if those persons
do not leave Vietnam within fifteen days after receiving written notices of
competent Vietnamese bodies on their unnecessary presence in Vietnam. This
duration is not counted into the time during which the witnesses or experts
cannot leave Vietnam for force majeure reasons.
Article 9.
Hand-over and receipt of documents, articles and money
The hand-over and receipt of
documents, articles and money related to legal assistance activities comply
with Vietnamese law.
Chapter II
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Article 10.
Scope of civil legal assistance
The scope of civil legal assistance
between Vietnam and foreign countries covers:
1. Service of papers, dossiers and
documents related to civil legal assistance;
2. Summon of witnesses and experts;
3. Collection and supply of
evidence;
4. Other requests for civil legal
assistance.
Article 11.
Civil legal mandate dossiers
1. A civil legal mandate dossier
comprises the following documents:
a/ A competent bodys written request
for civil legal assistance;
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c/ Other papers as requested by a
competent body of the mandating country.
2. A civil legal assistance dossier
is made in three sets in accordance with this Law and the law of the mandating
country. Language used in the dossiers complies with Article 5 of this Law.
Article 12.
Civil legal assistance documents
A civil legal assistance document
must contain the following details:
1. Date, month, year and place of
making the document;
2. The name and address of the
legal mandator;
3. The name and address of the
legal mandatory;
4. Full names and places of
resident or working of individuals; full names and addresses or head offices of
agencies or organizations directly involved in legal mandate;
5. Jobs subject to civil legal
mandate, indicating the mandate purpose, jobs and related circumstances,
quotation of applicable legal provisions, measures to effect the mandate and
the mandate performance duration.
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1. Vietnams competent bodies, while
settling civil matters, may request foreign competent bodies to provide legal
assistance in the following circumstances:
a/ Service of papers, dossiers,
documents on persons who are staying in the requested countries;
b/ Summon of witnesses and experts
who are staying in the requested countries;
c/ Collection and supply of
evidence in the requested countries for settlement of civil matters in Vietnam;
d/ Other circumstances prescribed
by Vietnamese law.
2. Requests for civil legal
assistance by foreign countries must be made in the form of civil legal mandate
under the provisions of this Law.
Article 14.
Procedures
for requesting foreign countries to provide civil legal assistance
1. Vietnams competent bodies
requesting foreign competent bodies to provide civil legal assistance shall
make mandate dossiers under the provisions of Article 11 of this Law and send
them to the Ministry of Justice.
2. Within ten working days after
the receipt of civil legal mandate dossiers, the Ministry of Justice shall
record in the legal mandate book, examine the validity of the dossiers and send
them to foreign competent bodies under the provisions of treaties to which
Vietnam and those foreign countries are contracting parties or through the
diplomatic channel. If the dossiers are invalid, the Ministry of Justice shall
return them to the dossier-making agencies and clearly state the reasons therefor.
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Article 15.
Procedures
to receive and handle civil legal mandates of foreign countries
1. Within ten working days after
the receipt of legal mandate dossiers of competent bodies of the requesting
countries, the Ministry of Justice shall record in the legal mandate book,
examine the validity of the dossiers and transfer them to competent Vietnamese
bodies for implementation. If the dossiers are invalid, the Ministry of Justice
shall return them to competent bodies of the requesting countries and clearly
state the reasons therefor.
2. Within five working days after
the receipt of competent Vietnamese bodies written notices on the performance
of legal mandates, the Ministry of Justice shall transfer the notices to
competent bodies of the requesting countries in accordance with the treaties to
which Vietnam and the requesting countries are contracting parties or through
the diplomatic channel.
3. If the legal mandate cannot be
performed or the time limit has expired but the foreign countries request or
need to supplement relevant information or documents, the competent Vietnamese
bodies performing the legal mandates shall notify in writing the Ministry of
Justice thereof and clearly state the reasons therefor so that the
Ministry of Justice shall notify such to the competent bodies of the requesting
countries.
Article 16.
Expenses
for provision of civil legal assistance
1. Expenses for the provision of
civil legal assistance between Vietnam and foreign countries shall be paid by
requesting countries, unless otherwise agreed upon.
2. Vietnamese individuals or
organizations requesting competent state bodies of Vietnam to settle civil
matters which give rise to requests for legal mandates overseas shall pay
expenses according to regulations of Vietnam and the requested countries.
Within ten working days prior to the date of deciding to make legal mandate
dossiers, the dossier-making agencies shall notify those individuals or
organizations of the expenses for performance of legal mandates. Legal mandate
dossiers shall be made and sent overseas only after those individuals or
organizations pay the expenses for performance of legal mandates according to
regulations.
Vietnamese citizens entitled to
legal assistance may be considered for support in expenses for performance of
legal mandates according to the Governments regulations.
Chapter III
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Article 17.
Scope of criminal legal assistance
The scope of criminal legal
assistance between Vietnam and foreign countries covers:
1. Service of papers, dossiers and
documents related to criminal legal assistance;
2. Summon of witnesses and experts;
3. Collection and supply of
evidence;
4. Penal liability examination;
5. Information sharing;
6. Other requests for criminal
legal assistance.
Article 18.
Criminal legal mandate dossiers
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a/ A competent
proceedings-conducting bodys
written request for criminal legal assistance;
b/ The written criminal legal
mandate prescribed in Article 19 of this Law.
2. A criminal legal mandate dossier
is made in three sets in accordance with this Law and the law of the requested
country. Language used in the dossiers complies with Article 5 of this Law.
Article 19.
Criminal legal mandate documents.
1. A criminal legal mandate
document must contain the following details:
a/ Date, month, year and place of
making the document;
b/ Name and address of the legal mandator;
c/ Name and address or head office
of the legal mandatory;
d/ Full names and places of
permanent residence or working of individuals, full names, addresses or head
offices of agencies or organizations directly involved in the criminal legal
mandate;
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2. In addition to the contents
defined in Clause 1 of this Article, depending on each specific case and at the
request of competent bodies of Vietnam or foreign countries, a criminal legal
mandate document may cover the following contents:
a/ Signs of identity, nationality
and places of residence of subjects in the criminal case or persons having
information relating to that case;
b/ Matters to be questioned,
questions to be asked, documents, dossiers or material evidences shown and, if
possible, a description of characters and appearance of persons requested to
produce documents, dossiers and material evidences with regard to evidence
collection mandates;
c/ Contents of jobs, questions and
requests for summoned witnesses and experts;
d/ Description of assets and places
where assets need to be searched for; grounds for determining that the assets
acquired from commission of crimes are located in the requesting country and
may fall under the jurisdiction of the requesting country; the execution of
court judgments or rulings on mandate for search, seizure of, or look for,
confiscation of assets acquired from commission of crimes;
dd/ Measures applicable
to the criminal legal mandate, which may lead to detection or recovery of
assets acquired from commission of crimes;
e/ Requests or procedures of the
requesting country to ensure the effective performance of legal mandate, mode
or form of supplying information, evidence, documents and articles;
g/ Request for confidentiality of
legal mandate;
h/ The purpose, expected time and
itinerary of the trip in case competent persons of the requesting country need
to arrive in the territory of the requested country for the purpose related to
the legal mandate;
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3. In case the information stated
in the criminal legal mandate document defined in Clauses 1 and 2 of this
Article is not sufficient for the performance of legal mandate, competent
bodies of the requested country may also send documents to the requesting
country, requesting the supply of additional information and fixing a specific
deadline for reply on the additional results.
Article 20.
Requesting foreign countries to provide criminal legal assistance
1. Vietnams competent
proceedings-conducting bodies, in the course of handling criminal cases, may
request competent foreign bodies to provide legal assistance in the following
circumstances:
a/ Service of papers, dossiers and
documents on persons who are residing in the requested countries;
b/ Summon of witness and experts
who are living in the requested countries;
c/ Collection or supply of evidence
in the requested countries for settlement of criminal cases in Vietnam;
d/ Examination of penal liability
of persons who are staying in the countries of which they bear the nationality;
dd/ Other circumstances
prescribed by Vietnamese law.
2. Requests for criminal legal
assistance from foreign countries must be made in the form of criminal legal
mandate under the provisions of this Law.
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1. Foreign criminal legal mandates
are rejected for performance in one of the following cases:
a/ They do not conform to treaties
to which Vietnam is a contracting party or to Vietnamese law;
b/ They cause harm to national
sovereignty or security;
c/ They are related to the
examination of penal liability of a person for his/her criminal act for which
he/she was sentenced, declared unguilty or granted general or special
amnesty in Vietnam;
d/ They are related to criminal
acts for which the penal liability examination statute of limitations has
expired under the provisions of Vietnams Penal Code.
dd/ They are related to
law-breaking acts which, however, do not constitute a crime under the
provisions of Vietnams Penal Code.
2. The performance of criminal
legal mandates in Vietnam may be postponed if it obstructs the process of
investigation, prosecution, trial or judgment enforcement in Vietnam.
3. When deciding to refuse or
postpone the performance of criminal legal mandates as provided for in Clauses
1 and 2 of this Article, the Supreme Peoples Procuracy shall notify
the requesting countries of the reasons therefor and measures to
be applied.
Article 22.
Procedures for criminal legal mandates to foreign countries
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2. Within ten working days after
receiving the criminal legal mandate dossiers, the Supreme Peoples Procuracy
shall record in the legal mandate book, examine the validity of the dossiers
and transfer them to competent bodies of foreign countries under the provisions
of treaties to which Vietnam and those foreign countries are contracting parties
or through the diplomatic channel. If the dossiers are invalid, the Supreme
Peoples Procuracy
shall return them to the dossier-making agencies and clearly state the reasons therefor.
3. Within five working days after
receiving the documents of competent bodies of foreign countries notifying the
performance of criminal legal mandates, the Supreme Peoples Procuracy shall transfer
those documents to Vietnams competent bodies which have sent the criminal legal
mandate dossiers.
Article 23.
Procedures for receiving and handling criminal legal mandates of foreign
countries
1. Within fifteen days after
receiving the criminal legal mandate dossiers of competent foreign bodies, the
Supreme Peoples Procuracy
shall record in the legal mandate book, examine the validity of the dossiers
and transfer them to competent proceedings-conducting bodies of Vietnam for
implementation. If the dossiers are invalid, the Supreme Peoples Procuracy
shall return them to the competent bodies of the requesting countries and
clearly state the reasons therefor.
2. Within five working days after
receiving the written notices of Vietnams competent proceedings-conducting
bodies on the performance of the legal mandates, the Supreme Peoples Procuracy
shall transfer the notices to competent bodies of the requesting countries
under the provisions of treaties to which Vietnam and the requesting countries
are contracting parties or through the diplomatic channel.
3. In case the criminal legal
mandates cannot be performed or expire while foreign countries request or need
to supplement relevant information or documents, the competent
proceedings-conducting bodies of Vietnam shall notify in writing the Supreme
Peoples Procuracy
thereof and clearly state the reasons therefor so that the
latter notifies such to competent bodies of the requesting countries.
Article 24.
Service of summons on witnesses, experts
1. The requesting countries wishing
to summon witnesses or experts who are residing in Vietnam shall send the
summons to the Supreme Peoples Procuracy at least ninety days before the
expected date of those persons presence in the requesting countries. The
procedures to receive summons of witnesses or experts comply with Article 23 of
this Law.
2. Agencies serving the summons
shall immediately send to the Supreme Peoples Procuracy written
certifications of such service so that the latter transfers them to the
requesting countries; in case of non-service, they shall notify such in writing
and clearly state the reasons therefor.
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1. Persons who are serving their
imprisonment sentence in Vietnam may be transferred to competent bodies of
requesting countries for supply of evidence in criminal cases in the requesting
countries.
2. Competent bodies of Vietnam may
transfer persons who are serving their imprisonment sentence as provided for in
Clause 1 of this Article only under the following conditions:
a/ Such persons agree with the
transfer and to supply evidence in requesting countries;
b/ Competent bodies of the
requesting countries commit in writing to ensure their life safety, health,
accommodation and meal, travel conditions, duration and mode of receipt and
return as well as other specific conditions related to the transfer as proposed
by competent proceedings-conducting bodies of Vietnam. Such written commitment
is made in accordance with the Vietnamese law and international law related to
the transfer of persons who are serving their imprisonment sentence for supply
of evidence. The return of transferred persons to competent
proceedings-conducting bodies of Vietnam must be made on time as committed.
3. The duration for which the
persons who are serving their imprisonment sentence are transferred to and stay
in the requesting countries is counted into their sentence-serving duration.
Article 26.
Supply of information
Upon request of competent bodies of
Vietnam or foreign countries, the Supreme Peoples Procuracy shall request
competent bodies of foreign countries or competent proceedings-conducting
bodies of Vietnam to supply information relating to criminal legal assistance
requests or copies of the criminal judgments or rulings of courts which have
taken legal effect on citizens of the requesting countries.
Article 27.
Use of information and evidence in criminal legal assistance
1. Information or evidence supplied
by competent proceedings-conducting bodies of Vietnam may be used only for the
purposes stated in the criminal legal mandates, must not be disclosed or
transferred, unless prior written consent of competent bodies of Vietnam is
obtained.
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3. When making criminal legal
mandates to foreign countries, the Supreme Peoples Procuracy shall request
competent bodies of such foreign countries to apply measures to:
a/ Keep secret the information and
evidence supplied by Vietnam and use the information and evidence within a
scope necessary for the purpose stated in the criminal legal assistance
request;
b/ Ensure that information and
evidence are not distorted, modified, illegally disclosed or otherwise abused.
Article 28.
Request for penal liability examination; hand-over of files and material
evidence of cases to foreign countries
1. For cases involving foreigners
who committed crimes in the Vietnamese territory but have fled abroad and
Vietnam has made an extradition request which was, however, rejected by foreign
competent bodies, the agencies which are handling the cases shall transfer the
case files to the Supreme Peoples Procuracy for requesting the countries
where the offenders are present to continue with the penal liability
examination. When deciding to transfer the case files, the Supreme Peoples Procuracy
may also transfer material evidence of the cases.
2. The Supreme Peoples Procuracy
shall prescribe specific conditions for receipt and transfer of case files and
material evidence.
Article 29.
Handling of foreign requests for penal liability examination of Vietnamese
citizens in Vietnam
The Supreme Peoples Procuracy
shall consider requests of competent bodies of foreign countries for further
penal liability examination of Vietnamese citizens who committed crimes
overseas and are present in Vietnam in the following order:
1. If the case is being under
investigation and falls under the jurisdiction of the proceedings-conducting
body of a province or centrally run city (below referred to as provincial-level
proceedings-conducting body), such request will be transferred to the
provincial-level Peoples Procuracy
of the locality where those Vietnamese citizens resided last before fleeing
abroad in order to request the investigating body of the same level to conduct
the investigation; if the case falls under the jurisdiction of the
investigating body of the Ministry of Public Security, it will be transferred
to the investigating body of the Ministry of Public Security for investigation;
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3. The investigation, prosecution
and trial applicable to the cases specified in this Article comply with
Vietnams criminal procedure law.
Article 30.
Performance of foreign legal mandates for investigation of foreign nationals in
Vietnam
Within five working days after the
receipt of legal mandate dossiers for investigation of foreign nationals, who
have committed crimes in their countries and are residing in Vietnam, the
Supreme Peoples Procuracy
shall transfer the dossiers to competent investigating bodies of Vietnam for
investigation. Investigation results will be sent to the Supreme Peoples Procuracy
for transfer to the requesting countries.
Article 31.
Expenses for provision of criminal legal assistance
Expenses for provision of criminal
legal assistance between Vietnam and foreign countries will be paid by the
requesting countries, unless otherwise agreed upon. In case Vietnam bears the
cost of criminal legal mandate performance, such cost will be covered by the
state budget.
Chapter IV
EXTRADITION
Article 32.
Extradition for penal liability examination or judgment enforcement
1. Extradition means the hand-over
by one country to another country of a person who has committed a criminal act
or been criminally sentenced and is being present in its territory so that the
extradition-requesting country conducts the penal liability examination or
judgment enforcement against such person.
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a/ Request competent bodies of
foreign countries to extradite to Vietnam persons who have committed criminal
acts or been criminally sentenced and their sentences have already taken legal
effect for penal liability examination or judgment enforcement;
b/ Extradite foreigners staying in
the Vietnamese territory who have committed criminal acts or been criminally
sentenced and their sentences have already taken legal effect to requesting
countries for penal liability examination or judgment enforcement.
Article 33.
Cases of extradition
1. Persons who may be extradited
under the provisions of this Law are those who commit criminal acts for which
the Penal Code of Vietnam or the criminal law of the requesting country
prescribes penalties of one or more years in prison, life imprisonment or death
penalty or who have been sentenced to imprisonment by a court of the requesting
country and the remaining imprisonment duration is at least six months.
2. Criminal acts of the persons
defined in Clause 1 of this Article must not necessarily be in the same
category of crimes or the same crime, and the factors that constitute their
offenses must not necessarily be the same under the laws of Vietnam and the
requesting countries.
3. If criminal acts of the persons
defined in Clause 1 of this Article took place outside the territory of the
requesting countries, the extradition of offenders may be effected if those
acts are criminal acts prescribed in Vietnams Penal Code.
Article 34.
Non-examination of penal liability, non-extradition to a third country
Persons extradited to Vietnam will
not be examined for penal liability or extradited to a third country for the
acts they have committed in foreign countries before their extradition to
Vietnam which, however, do not constitute crimes under Vietnams Penal Code and
are not stated in the extradition requests of Vietnam or a third country.
In case Vietnam is requested to
make extradition, the extradition is effected only when the
extradition-requesting countries commit not to examine the penal liability of
the extradited persons for criminal acts other than those stated in the
extradition requests and not to extradite such persons to a third country,
unless it is so agreed in writing by Vietnam.
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1. Competent proceedings-conducting
bodies of Vietnam may refuse extradition if the extradition requests fall into
one of the following cases:
a/ The persons requested for
extradition are Vietnamese citizens;
b/ Under Vietnamese law, the
persons requested for extradition cannot be examined for penal liability or
serve their penalties due to expired statute of limitations or other lawful
reasons;
c/ The persons requested for
extradition for penal liability examination have already been condemned by
Vietnamese courts with legally effective judgments for the criminal acts stated
in the extradition requests or the cases have been suspended under Vietnams
criminal procedure law;
d/ The persons requested for
extradition are those who are residing in Vietnam for reasons of possible
coercion in the extradition-requesting country due to discrimination of race,
religion, gender, nationality, ethnicity, social class or political viewpoint;
dd/ The extradition
requests are related to different crimes and each crime can be examined for
penal liability under the law of the extradition-requesting country, but fail
to comply with Clause 1, Article 33 of this Law.
2. Apart from the cases of
extradition refusal specified in Clause 1 of this Article, competent
proceedings-conducting bodies of Vietnam may refuse extradition if the
extradition requests fall into one of the following cases:
a/ Acts committed by persons
requested for extradition are not crimes under Vietnams Penal Code;
b/ Persons requested for
extradition are being examined for penal liability in Vietnam for the criminal
acts stated in the extradition requests.
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Article 36.
Extradition request dossiers
1. An extradition request dossier
must comprise the following documents:
a/ The competent bodys
written request for extradition;
b/ The enclosed documents defined
in Article 37 of this Law.
2. An extradition request dossier
shall be made in three sets under the provisions of this Law and the law of the
requesting country. Language used in the dossier complies with Article 5 of
this Law.
Article 37.
Written extradition requests and enclosed documents
1. A written extradition request
must contain the following details:
a/ Date, month, year and place of
making the request;
b/ The reason for the extradition
request;
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d/ Name and address of the body
requested to effect the extradition;
dd/ Full name, gender,
birth date, nationality, residence place of, and other necessary information
on, the person requested for extradition.
2. A written extradition request
must be enclosed with the following documents:
a/ The summarized content of the
case;
b/ Legal provisions applicable for
the determination of factors constituting the crime and name of the crime, the
provisions on penalties, the statute of limitations for penal liability
examination or the statute of limitations for enforcement of penalties against
that crime;
c/ Papers on the nationality and
place of residence of the person requested for extradition, if any;
d/ Other documents describing the
identity and photos of the person requested for extradition as required by international
law and practice.
3. In case of requesting
extradition for penal liability examination, in addition to the documents
specified in Clauses 1 and 2 of this Article, the following documents are also
required:
a/ A copy of the arrest or
detention warrant of a competent body of the extradition-requesting country;
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4. In case of requesting
extradition for judgment enforcement, in addition to the documents specified in
Clauses 1 and 2 of this Article, the following documents are also required:
a/ A copy of the criminal judgment
or ruling of the court of the extradition-requesting country;
b/ The written certification that
the person requested for extradition is the one already sentenced.
Article 38.
Receipt of extradition requests
Within twenty days after the
receipt of extradition requests and enclosed documents, the Ministry of Public
Security shall record in the extradition dossier book and check the dossiers
under the provisions of Article 36 of this Law. It may request competent bodies
of the extradition-requesting countries to supply information supplementing the
dossiers. If it does not receive any additional information within sixty days
after the sending of its written requests for additional information, the
Ministry of Public Security shall return the dossiers to the
extradition-requesting countries and clearly state the reasons therefor.
If the dossiers are valid, the Ministry of Public Security shall immediately
forward two dossier sets to competent provincial-level Peoples Courts for
consideration and decision.
Article 39.
Consideration of many countries requests for extradition of one person
1. In case the Ministry of Public
Security receives written requests of two or more countries for the extradition
of one person for the same crime or many different crimes, it shall assume the
prime responsibility for, and coordinate with the Ministry of Foreign Affairs,
the Ministry of Justice, the Supreme Peoples Procuracy and the
Supreme Peoples Court in, considering them and deciding to meet the extradition
request of one of the requesting countries and transfer the extradition request
dossiers to the concerned provincial-level Peoples Court for extradition
consideration and decision.
2. Upon consideration of
extradition requests prescribed in Clause 1 of this Article, apart from legal
provisions, the following relevant factors must also be taken into account:
a/ The effectual nationality and
last place of residence of the person requested for extradition;
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c/ The time and place of crime
commission;
d/ Specific interests of the
requesting countries;
dd/ The severity of the
crime;
e/ The nationality of the victim;
g/ The possibility of subsequent
extradition between the extradition-requesting countries;
h/ The date of making the
extradition request;
i/ Other relevant
factors.
Article 40.
Extradition decision
1. Within ten working days after
the receipt of extradition request dossiers transferred by the Ministry of
Public Security, the provincial-level Peoples Courts of the localities where
the persons requested for extradition are residing, being detained or held in
custody or serving their imprisonment sentences shall handle them and notify
the Peoples Procuracies
of the same level thereof in writing. While preparing to consider the
extradition requests, the concerned provincial-level Peoples Courts may request
competent bodies of foreign countries to clarify unclear points in the
extradition request dossiers. Written extradition requests and written replies
shall be sent via the Ministry of Public Security.
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a/ Decision to consider the
extradition request when the conditions prescribed by this Law are fully met;
b/ Decision to suspend the
consideration of the extradition request and return the dossier to the Ministry
of Public Security in case the request does not fall under their jurisdiction,
the foreign country withdraws the extradition request or the person requested
for extradition has left Vietnam or for other reasons the consideration cannot
proceed.
3. Provincial-level Peoples Courts
shall consider an extradition request within thirty days after issuing the
decision defined at Point a, Clause 2 of this Article and immediately transfer
a dossier set to the Peoples Procuracies
of the same level.
4. The extradition request shall be
considered at sessions of a council consisting of three judges, including a
presiding judge, with the participation of members of the Peoples Procuracy
of the same level.
The extradition request-considering
council works in the following order:
a/ A council member presents the
contents of the dossier of the extradition-requesting country and states
his/her opinions on the legal grounds of the extradition;
b/ The procurator states the
Peoples Procuracys
viewpoints on the extradition;
c/ The lawyer or lawful
representative of the person requested for extradition presents his/her
opinions, if any;
d/ The person requested for
extradition states his/her opinions;
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5. Within five working days after
the issue of decisions on extradition or extradition refusal, the
provincial-level Peoples Courts shall send the decisions to the persons
requested for extradition, the Peoples Procuracies of the same
level and the Ministry of Public Security for the exercise of rights and
performance of obligations according to law.
Persons requested for extradition
may appeal and the Peoples Procuracies
of the same level may protest within fifteen days, the Supreme Peoples Procuracy
may protest within thirty days as from the date the provincial-level Peoples
Courts issue decisions. The provincial-level Peoples Courts shall forward the
dossiers, appeals and protests to the Supreme Peoples Court within seven days
from the date the appeal or protest time limit expires.
Within twenty days after receiving
the extradition dossiers and appeals or protests, the Supreme Peoples Court
shall open court sessions to consider the appealed or protested decisions of
the provincial-level Peoples Courts; the appellate council shall decide on the
extradition or extradition refusal. The order for examination of appeals or
protests against extradition decisions of provincial-level Peoples Courts
complies with Clause 4 of this Article.
6. Legally effective extradition
decisions include:
a/ Decisions of first-instance
courts, which are not appealed or protested against;
b/ Decisions of the courts of
appeal.
Article 41.
Precautionary measures for extradition
Upon receipt of official
extradition requests of foreign countries, competent bodies of Vietnam may
apply precautionary measures under Vietnamese law and treaties to which Vietnam
is a contracting party in order to ensure consideration of extradition
requests.
Article 42.
Enforcement of extradition decisions
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2. After the receipt of decisions
on enforcement of extradition decisions, competent police offices shall proceed
with the arrest of the extradited persons. The arrest of extradited persons
complies with Vietnams criminal procedure law and treaties to which Vietnam is
a contracting party.
The Ministry of Public Security
shall organize the enforcement of extradition and notify in writing the
extradition-requesting countries thereof.
Article 43.
Escorting extradited persons
1. The police offices enforcing the
extradition decisions shall organize the escort of extradited persons according
to the receipt time and place agreed upon in advance in writing by Vietnam and
the requesting country. The time for receipt of an extradited person must not
exceed fifteen days from the date the decision on enforcement of the
extradition decision takes effect.
2. If the time limit agreed upon in
advance by the concerned countries expires while the extradition-requesting
country declines to receive the extradited person, the Ministry of Public
Security shall propose the provincial-level Peoples Court that has issued the
extradition decision to cancel the decision on enforcement of that extradition
decision and notify the extradition-requesting country thereof.
Article 44.
Postponement of enforcement of extradition decisions and temporary extradition
1. When persons requested for
extradition are being examined for penal liability or serving their
imprisonment sentences in the Vietnamese territory for crimes other than the
crimes requested for extradition, provincial-level Peoples Courts that have
issued extradition decisions may themselves or at the proposal of the Peoples Procuracies
or police offices of the same level postpone the enforcement of the decisions
on extradition of those persons until the process of penal liability
examination ends or the declared judgments are fully or partly served. The
Ministry of Public Security shall notify the extradition-requesting countries
in writing of the extradition postponement at least ten working days before the
expiration of the time limit for postponement of enforcement of the extradition
decisions. The presidents of provincial-level Peoples Courts that have
postponed the enforcement of the extradition decisions shall issue decisions to
enforce the extradition decisions and send them together with relevant
documents and dossiers to the police offices enforcing the extradition
decisions for notification to the requesting countries and continued
extradition under the specific agreement with the requesting countries.
2. If the postponement of the
enforcement of extradition decisions under Clause 1 of this Article obstructs
the penal liability examination in foreign countries due to the expiration of
the statute of limitation therefor
or causes serious difficulties to the penal liability examination for the
crimes under extradition requests, at the proposal of the Peoples Procuracies
or police offices and the proposal of the requesting countries, competent
Peoples Courts, based on Vietnamese law and specific agreements with the
requesting countries, may issue decisions permitting the temporary extradition
of the persons requested for extradition to the extradition-requesting
countries under this Law.
3. Persons subject to temporary
extradition must be immediately returned to Vietnam after the criminal
proceedings of the requesting countries end or the temporary extradition
duration agreed upon by Vietnam and the concerned foreign countries has
expired. Upon new extradition requests of the requesting countries, Vietnamese
courts shall consider under the provisions of this Law to agree on the new
extradition if there are plausible reasons therefor.
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If extradited persons evade penal
liability examination or penalty service in foreign countries and return to
Vietnam, the extradition-requesting countries may send requests for re-extradition
of such persons together with the documents defined in Articles 36 and 37 of
this Law; in this case, provincial-level Peoples Courts do not renew the
procedures for extradition decisions under Article 40 of this Law; the
presidents of provincial-level Peoples Courts who have issued previous
extradition decisions shall decide to re-extradite such persons. The escort of
extradited persons must again comply with Article 43 of this Law.
Article 46.
Transfer of articles and material evidence related to criminal cases
Articles and material evidence
acquired from crime commission or serving as proofs at court sessions can be
considered for transfer to extradition-requesting countries in accordance with
treaties to which Vietnam and the extradition-requesting countries are
contracting parties on the basis of respecting the rights of a third party.
Article 47.
Transit
1. On the basis of treaties to
which Vietnam is a contracting party and the provisions of Vietnamese law, the escort
of extradited persons in transit through Vietnamese territory to the
extradition-requesting countries shall be carried out only after Vietnamese
competent bodies approve in writing the requests of foreign countries.
2. In case of transfer by air and
transit without landing on Vietnamese territory, the movement of extradited
persons needs not apply for transit in Vietnam; in case of landing, the
extraditing countries shall immediately send their requests for transit through
Vietnam under Clause 1 of this Article.
Article 48.
Extradition expenses
Extradition-requesting countries
shall bear all extradition expenses, unless otherwise agreed upon. In case
Vietnam bears extradition expenses, those expenses shall be covered by the
state budget.
Chapter V
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Article 49.
Grounds for transfer of current imprisonment servers
1. Current imprisonment servers may
be transferred to the countries of which they bear the nationality or other
countries, which agree with the transfer for continued service of their
imprisonment sentences already declared against them by the transferring
countries.
2. The transfer shall be based on
treaties to which Vietnam is a contracting party upon request of current
imprisonment servers or request of competent bodies of the transferring
countries or receiving countries; in case of non-availability of treaties
related to transfer, the transfer of current imprisonment servers is carried
out under the direct agreement between competent bodies of Vietnam and the
concerned countries in accordance with this Law, other relevant Vietnamese
laws, and international law and practice.
Article 50.
Conditions for receipt and transfer of current imprisonment servers
1. Persons who are serving their
imprisonment penalties in foreign countries may be received back to Vietnam for
enforcement of imprisonment penalties when the following conditions are fully
met:
a/ They are Vietnamese citizens;
b/ They have their last place of
residence in Vietnam;
c/ The criminal acts for which
those persons are sentenced in foreign countries also constitute crimes under
Vietnamese law;
d/ By the time of receiving the
transfer requests, the remaining duration of serving the imprisonment penalties
is at least one year; in special cases, this duration may be six months;
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e/ It is so consented by the
transferring countries;
g/ It is so consented by the
transferees.
2. Persons serving their
imprisonment penalties in Vietnam may be transferred to foreign countries for
enforcement of imprisonment sentences when the following conditions are fully
met:
a/ They are citizens of the
receiving countries or are persons permitted for indefinite residence or having
their relatives in the receiving countries;
b/ They fully satisfy the
conditions defined at Points c, d, e, f and g, Clause 1 of this Article and
have fulfilled their civil liabilities, additional sanctions being fines,
property confiscation and other legal responsibilities in the judgments;
c/ It is so consented by the
receiving countries.
Article 51.
Refusal to transfer persons serving their imprisonment penalties
Competent bodies of Vietnam shall
refuse to transfer persons serving their imprisonment penalties in Vietnam to
foreign countries in one of the following circumstances:
1. When they have grounds to
believe that the transferees may be tortured, retaliated or oppressed in the
receiving countries;
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Article 52.
Dossiers of request for transfer of current imprisonment servers
1. A dossier of request for
transfer of a current imprisonment server comprises the following documents:
a/ The written request of a
competent body of the country where the subject person is serving his/her
imprisonment penalty for the transfer of that person;
b/ The enclosed documents defined
in Article 53 of this Law.
2. A dossier of request for
transfer of a current imprisonment server shall be made in three sets in
accordance with this Law and the law of the requested countries. Language used
in the dossiers complies with Article 5 of this Law.
Article 53.
Written requests for transfer of current imprisonment servers and enclosed
documents
1. A dossier of request for
transfer of a current imprisonment server covers the following contents:
a/ The date and place of making the
dossier;
b/ The reasons for requesting the
transfer of the current imprisonment server;
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d/ The name and address of the body
requested to transfer the current imprisonment server;
dd/ Full names, gender,
date of birth, nationality and last residence place and the legal grounds on
the full legal capacity of the transferee for the transfer and other necessary
information on the person requested for the transfer.
2. Enclosed with a written request
for transfer of a current imprisonment server are the following information and
documents:
a/ Documents to prove that the
person requested for transfer has fully satisfied the conditions defined in
Article 50 of this Law;
b/ The written summary of the
contents of the case, copies of the court judgment or ruling against the
current imprisonment server requested for transfer;
c/ The provisions of law applicable
to the determination of factors constituting the crime and the name of the
crime, the provisions on penalties, the statute of limitations for enforcement
of the judgment against such offender;
d/ The written description of the
identity characters and photos of the person requested for transfer as provided
for by international law and practice;
dd/ Documents and
materials certifying the duration for which the person requested for transfer
has served his/her imprisonment penalty in the country requested to make the
transfer and the remaining duration for which he/she shall serve his/her
imprisonment penalty in the receiving country;
e/ Documents related to the health
conditions, mental status, medical records of the person requested for
transfer, if any;
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Article 54.
Receipt of requests for transfer of current imprisonment servers
Within twenty days after the
receipt of a written request for transfer of a current imprisonment server and
enclosed documents, the Ministry of Public Security shall record in the
transfer dossier book and check the dossier as provided for in Articles 52 and
53 of this Law. It may request competent bodies of the transfer-requesting
country to supply information supplementing the dossier. If within sixty days
after the sending of a written request for additional information the Ministry
of Public Security does not receive any additional information, it shall return
the dossier to the country requesting the transfer of the current imprisonment
server and clearly state the reasons therefor. If the dossier is valid, the Ministry
of Public Security shall transfer two dossier sets to the competent
provincial-level Peoples Court for consideration and decision.
Article 55.
Decision on transfer of persons serving their imprisonment penalties in Vietnam
to foreign countries
1. Within ten working days after
the receipt of complete dossiers of request for transfer of persons currently
serving their imprisonment penalties in Vietnam to foreign countries, which are
forwarded by the Ministry of Public Security, provincial-level Peoples Courts
of the localities where the condemned persons are serving their imprisonment
penalties shall handle the cases and notify in writing the Peoples Procuracies
of the same level thereof. While preparing to take into consideration the
requests for transfer of current imprisonment servers, the Peoples Courts may
request competent bodies of the foreign countries to clarify unclear points in
the dossiers of request for transfer. Written requests and written replies are
sent via the Ministry of Public Security.
2. Within thirty days from the date
of handling the cases, provincial-level Peoples Courts shall, on a case-by-case
basis, issue one of the following decisions:
a/ Decision to consider the
transfer request when the conditions defined in Article 50 of this Law are
fully met;
b/ Decision to suspend the
consideration of the transfer requests and return the dossiers to the Ministry
of Public Security if the cases do not fall under their jurisdiction or the
competent bodies of the foreign countries or persons requesting the transfer
withdraw their transfer requests or the persons requested for transfer have
left Vietnam, or for other reasons which make the consideration impossible.
3. Provincial-level Peoples Courts
shall consider a transfer request within thirty days from the date of issuing
the decision defined at Point a, Clause 2 of this Article and immediately
transfer a dossier set to the Peoples Procuracies of the same
level.
4. Transfer requests shall be
considered at sessions of a council comprising three judges, including a
presiding judge, with the participation of procurators of the Peoples Procuracies
of the same level.
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a/ A council member presents the
contents of the dossiers of the transfer-requesting country and states the
opinions on legal grounds of the transfer;
b/ The procurator states the
viewpoints of the Peoples Procuracies
on the transfer;
c/ The lawyer or lawful
representative of the person requested for transfer presents his/her opinions,
if any;
d/ The transfer-requesting person
states his/ her opinions;
dd/ Based on the
provisions of this Law, other relevant Vietnamese laws and treaties to which
Vietnam is a contracting party, the council discusses and decides by majority
on the transfer or refusal of the transfer.
5. Within ten working days after
the issue of decisions on transfer or refusal of transfer, the provincial-level
Peoples Courts shall send those decisions to the transferees, the Peoples Procuracies
of the same level and the Ministry of Public Security for the performance of
rights and obligations as prescribed by law.
The transfer requesters may appeal,
the Peoples Procuracies
of the same level may protest within fifteen days and the Supreme Peoples Procuracy
may protest within thirty days after the provincial-level Peoples Courts issue
decisions. Provincial-level Peoples Courts must send the dossiers and appeals
as well as protests to the Supreme Peoples Court within seven days after the
appeal or protest time limit expires.
Within twenty days after the
receipt of transfer dossiers and appeals or protests, the Supreme Peoples Court
shall meet to consider the appealed or protested decisions of provincial-level
Peoples Courts; the appellate consideration council shall decide on the
transfer or refusal of transfer. The order of considering appeals or protests
against transfer decisions of provincial-level Peoples Courts complies with
Clause 4 of this Article.
6. Legally effective transfer
decisions include:
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b/ Decisions of the courts of
appeal.
Article 56.
Competence to decide on receipt of persons currently serving their imprisonment
penalties in foreign countries back to Vietnam
Provincial-level Peoples Courts of
the localities where the transferees last reside in Vietnam shall decide on the
receipt. The order and procedures for consideration of the receipt comply with
Article 55 of this Law.
Article 57.
Enforcement of decisions on transfer of current imprisonment servers
1. Within five working days after
the date the Peoples Courts decisions on transfer of current imprisonment
servers take effect, the presidents of the courts which have issued the first-instance
decisions shall issue decisions on enforcement of the transfer decisions. The
decisions on enforcement of transfer decisions must be addressed to the Peoples
Procuracy
of the same level, the Ministry of Public Security, the competent bodies of the
transfer-requesting countries and the transferees.
2. The Ministry of Public Security
shall organize the transfer provided in Clause 1 of this Article and notify the
transfer-requesting countries thereof in writing.
Article 58.
Continued service of penalties in Vietnam
1. The transferees continued
service of imprisonment in Vietnam complies with the provisions of Vietnamese
law.
2. Where the prison terms declared
by the transferring countries conform to Vietnamese law, competent Peoples
Courts shall issue decisions on transfer receipt. The transfer-receiving
decisions must clearly state the duration for which the transferees must
continue serving their imprisonment penalties in Vietnam.
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3. Upon receipt of notices on
special amnesty, general amnesty, penalty exemption or reduction decisions of
the transferring countries for current imprisonment servers, the Ministry of
Public Security shall immediately send such notices to competent state bodies
for consideration and decisions
Article 59.
Escort of transferees
1. The Ministry of Public Security
enforcing the decisions on transfer of current imprisonment servers shall
organize the escort of transferees to the places and at the time agreed upon in
writing by competent bodies of Vietnam and the transfer-requesting countries.
2. If the agreed time limit
provided for in Clause 1 of this Article has expired while the
transfer-requesting countries decline to receive the transferees, the Ministry
of Public Security shall propose competent Peoples Courts which have issued
transfer decisions to cancel the decisions on enforcement of such transfer
decisions and notify the transfer-requesting countries thereof.
Article 60.
Expenses for transfer of current imprisonment servers
Countries requesting the transfer
of current imprisonment servers shall bear all expenses for the transfer,
unless otherwise agreed upon. In case Vietnam bears the expenses for transfer
of current imprisonment servers, those expenses shall be covered by the state
budget.
Chapter VI
STATE BODIES
RESPONSIBILITIES IN LEGAL ASSISTANCE ACTIVITIES
Article 61.
The Governments responsibilities in legal assistance activities
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2.
To direct Government agencies in legal assistance activities; to
coordinate with the Supreme Peoples Court and the Supreme Peoples Procuracy
in legal assistance activities.
3.
To annually report to the National Assembly on legal assistance
activities.
Article 62. The Ministry of Justices
responsibilities
1.
To assist the Government in performing the unified state management of
legal assistance activities.
2.
To receive, transfer, monitor and urge the implementation of civil legal
mandates.
3.
To exchange information on legal assistance law and reality with
competent bodies of foreign countries under the provisions of treaties to which
Vietnam is a contracting party.
4.
To propose the conclusion of, accession to, and enforcement of,
international treaties on legal assistance; to propose amendments and
supplements to, and improvement of, Vietnamese law on legal assistance.
5.
To annually report to the Government on legal assistance activities.
Article 63.
Responsibilities of the Supreme Peoples Court
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2.
To consider and decide on cases of extradition and transfer of current
imprisonment servers according to its competence.
3.
To biannually and annually notify the Ministry of Justice of the
provision of legal assistance under its jurisdiction.
Article 64.
Responsibilities of the Supreme Peoples Procuracy
1.
To receive, transfer, monitor and urge the performance of criminal legal
mandates; to consider and decide on the performance of, and request the
competent Peoples Procuracies
or investigating bodies to perform criminal legal mandates; to refuse or postpone the performance of criminal
legal mandates according to its competence.
2.
To perform the prosecution and control legal assistance activities
according to its competence.
3.
To guide the Peoples Procuracies
at all levels to provide criminal legal assistance.
4.
To propose the conclusion of, accession to, and implementation of,
treaties on legal assistance; to propose amendments and supplements to, and
improvement of, Vietnamese law on legal assistance.
5. To biannually and annually notify the Ministry of Justice of the performance of criminal legal mandates.
Article 65.
Responsibilities of the Ministry of Public Security
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2.
To propose the conclusion of, accession to, and implementation of,
treaties on extradition and transfer of current imprisonment servers; to propose amendments and supplements to,
and improvement of, Vietnamese law on legal assistance.
3.
To biannually and annually notify the Ministry of Justice of the
implementation of requests for extradition and transfer of current imprisonment servers.
Article 66.
Responsibilities of the Ministry of Foreign Affairs
1.
To assume the prime responsibility for,
and coordinate with concerned ministries and branches in, considering and deciding
on the application of the reciprocity principle in legal assistance relations
with concerned countries.
2.
To propose the conclusion of, accession to, and implementation of,
treaties on legal assistance; to propose amendments and supplements to, and
improvement of, Vietnamese law on legal assistance.
3.
To biannually and annually notify the Ministry of Justice of the
application of reciprocity in legal assistance relations with concerned
countries.
Article 67.
Responsibilities of Vietnamese representative offices in foreign countries
1.
To perform legal mandates related to Vietnamese nationals in host
countries at the request of competent state bodies at home under the provisions
of Vietnamese law, treaties to which
Vietnam is a contracting party which, however, are not contrary to the laws of
host countries.
2.
To receive legal mandate requests of foreign countries and transfer them
to competent bodies at home.
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Article 68.
Responsibilities of provincial-level
Peoples Courts
1.
To perform legal mandates of foreign countries under this Law.
2.
To consider and decide on the extradition and transfer of current imprisonment servers or to
refuse the extradition and transfer of current imprisonment servers under this
Law.
3.
To conduct other legal assistance activities according to their competence.
4.
To report on the provision of legal assistance to the Supreme Peoples
Court.
Article 69.
Responsibilities of provincial-level
Peoples Procuracies
1.
To perform legal mandates of foreign countries under this Law.
2.
To conduct other legal assistance activities according to their
competence.
3. To perform prosecution and control legal assistance activities
according to their competence.
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Article 70.
Responsibilities of investigating
bodies
1.
To receive dossiers on criminal legal assistance, extradition and
transfer of current imprisonment servers from competent bodies.
2. To conduct criminal legal
assistance activities, extradition and transfer of current imprisonment servers
under this Law and other relevant provisions of law.
3.
To report on results of the
provision of criminal legal assistance, extradition and transfer of current
imprisonment servers to competent bodies.
Chapter VII
IMPLEMENTATION PROVISIONS
Article 71.
Implementation effect
This Law takes effect on July 1, 2008.
Article 72.
Implementation guidance
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This Law was passed on November 21,
2007, by the XIIth
National Assembly of the Socialist Republic of Vietnam at its second session.
CHAIRMAN
OF THE NATIONAL ASSEMBLY
Nguyen Phu
Trong