Thông tư liên tịch 02/2013/TTLT-VKSNDTC-TANDTC-BCA-BTP-BNG của Viện Kiểm sát nhân dân tối cao, Tòa án nhân dân tối cao, Bộ Công an, Bộ Tư pháp, Bộ Ngoại giao hướng dẫn việc tiếp nhận, chuyển giao hồ sơ, vật chứng của vụ án để yêu cầu nước ngoài tiếp tục truy cứu trách nhiệm hình sự

THE SUPREME PEOPLE’S PROCURACY - THE SUPREME PEOPLE’S COURT - THE MINISTRY OF PUBLIC SECURITY - THE MINISTRY OF JUSTICE - THE MINISTRY OF FOREIGN AFFAIRS

Joint Circular No. 02/2013/TTLT- VKSNDTC-TANDTC-BCA-BTP- BNG of August 16, 2013, guiding the receipt and transfer of files and material evidences of criminal cases for requesting foreign countries to continue to examine penal liability

Pursuant to the Law on Legal Assistance, which was passed on November 21, 2007, by the XIIth National Assembly of the Socialist Republic of Vietnam, at its 2nd session;

Pursuant to Articles 345 and 346 of the Penal Code, which was passed on November26, 2003, by the XIth National Assembly of the Socialist Republic of Vietnam, at its 4th session;

The Supreme People’s Procuracy, Supreme People’s Court, Ministry of Public Security, Ministry of Justice and Ministry of Foreign Affairs jointly guide the receipt and transfer of files and material evidences of criminal cases for requesting foreign countries to continue to examine penal liability of offenders as follows:

Chapter I GENERAL PROVISIONS

Article 1.Scope of regulation

This Joint Circular guides the conditions, principles, order and procedures for receipt and transfer of files and material evidences of criminal cases by competent Vietnamese procedure-conducting agencies to request foreign countries to continue to examine penal liability under Clause 1, Article 28 of the Law on Legal Assistance.

Article 2.Conditions for receipt and transfer of files and material evidences

The receipt and transfer of files and material evidences for requesting foreign countries to continue to examine penal liability must fully satisfy the following conditions:

1.   Persons requested to be further examined for penal liability are foreigners who had committed crimes in the Vietnamese territory and been investigated, prosecuted or adjudicated by competent Vietnamese procedure-conducting agencies but have absconded from Vietnam to countries of which they are nationals or other countries (countries where offenders are present, which are below referred to as foreign countries).

2.   Competent Vietnamese agencies have requested foreign countries to extradite absconding offenders to Vietnam but competent agencies of such countries refuse to do so.

Article 3. Principles of transfer of files and material evidences

The transfer of files and material evidences to request foreign countries to continue to examine penal liability of offenders must be carried out on the following principles:

1.   Respecting the independence, sovereignty and territorial integrity and assuring the political security of Vietnam;

2.   Complying with the Vietnamese Constitution and law and treaties to which Vietnam is a contracting party; and conforming with international practices.

3.   Keeping state secrets; observing the regime of confidentiality of information, documents and material evidences of cases.

4.   Causing no impacts on the examination of penal liability of other offenders in the same case or the settlement of other cases in Vietnam.

5.   Transferred documents and material evidences must be those indispensable for continued examination by competent foreign agencies of penal liability of offenders.

Article 4.Application of the principle of reciprocity

1.   In case Vietnam and a requested foreign country are not contracting parties to a treaty on legal assistance fn criminal justice, the Supreme People’s Procuracy shall send a written request enclosed with a file requesting the foreign country to continue to examine penal liability of an offender (below referred to as file) to the Ministry of Foreign Affairs for consideration and decision to request the foreign country to apply the principle of reciprocity.

2.   Within 10 working days after receiving a file, the Ministry of Foreign Affairs shall consider and make one of the decisions specified in Clause 3 or 4 of this Article. In case of necessity to consult the Supreme People’s Court, the Ministry of Public Security and the Ministry of Justice on the application of the principle of reciprocity, that time limit must not exceed 20 working days.

3.   In case of deciding to request the foreign country to apply the principle of reciprocity, the Ministry of Foreign Affairs shall send a diplomatic note, enclosed with the file, requesting the requested country to apply the principle of reciprocity through the Vietnamese representation in the requested country or the Vietnam-based representation of the requested country; and concurrently notify such to the Supreme People’s Procuracy.

4.   In case of deciding not to request the foreign country to apply the principle of reciprocity, within 10 working days after making the decision, the Ministry of foreign Affairs shall return the file to the Supreme People’s Procuracy, clearly stating the reason.

5.   Within 5 working days after receiving the foreign country’s official reply on agreement to apply the principle of reciprocity, the Ministry of Foreign Affairs shall notify such in writing to the Supreme People’s Procuracy for the latter’s coordination.

6.   In case the foreign countries agrees to apply the principle of reciprocity certain conditions, the Ministry of Foreign Affairs shall send a document to consult the Supreme People’s Procuracy, the Supreme People’s Court, the Ministry of Public Security and the Ministry of Justice.

The Supreme People’s Procuracy. the Supreme People’s Court, the Ministry of Public Security and the Ministry of Justice shall give written opinions within 10 working days after receiving the document of the Ministry of Foreign Affairs.

The Ministry of Foreign Affairs shall consider and decide to apply the principle of reciprocity on certain conditions of foreign countries within 5 working days after receiving written replies from the Supreme People’s Procuracy, Supreme People’s Court, Ministry of Public Security and Ministry of Justice, and send a diplomatic note to the competent foreign agency and a copy of such note to the Supreme People’s Procuracy for coordination.

Chapter II

ORDER AND PROCEDURES FOR RECEIPT AND TRANSFER OF FILES AND MATERIAL EVIDENCES

Section 1

ORDER AND PROCEDURES FOR RECEIPT AND TRANSFER OF FILES AND MATERIAL EVIDENCES AMONG COMPETENT VIETNAMESE AGENCIES

Article 5.Making of files to request foreign country to continue to examine penal liability of offenders

1.   When requesting a foreign country to continue to examine penal liability of an offender, a procedure-conducting agency (below referred to as requesting agency) shall make a file.

2.   A file comprises:

a/ An official letter of the requesting agency to request the Supreme People’s Procuracy to consider transferring the file to the foreign country;

b/ A written request for examination by the foreign country of penal liability of the offender, made by the requesting agency according to a form enclosed with this Joint Circular;

c/ A true copy of the original file of the case, if the case involves no accomplice, or the file of the person requested to be examined for penal liability which is separated from the common file or separately made, if the case involves accomplices, under Article 6 of this Circular.

d/ Documents proving that the offender is present in the requested country;

dd/ The competent foreign agency’s written refusal of extradition. In case Vietnam and the requested country have concluded an agreement on extradition and the person requested to be examined for penal liability is eligible for refusal of extradition under the agreement, the requesting agency shall invoke such provision in the enclosed official letter instead of a written refusal of extradition.

e/ Other necessary relevant documents and material evidences.

3.   A file must have an entry number and a list of enclosed documents and material evidences (if any) and be made in 3 sets. The requesting agency shall translate the file into an appropriate language in accordance with the Law on Legal Assistance. In case the requesting agency cannot identify the language of the requested country or another language which is acceptable to the requested country, it shall request in writing the Ministry of Foreign Affairs to do so.

4.   Expenses arising in the course of making, translating and sending files to the Supreme People’s Procuracy shall be paid by requesting agencies from the state budget.

Article 6.Settlement of cases involving accomplices who are investigated, prosecuted or tried in Vietnam

For a case involving accomplices who are investigated, prosecuted or tried in Vietnam, based on its decision to request a foreign country to examine the penal liability of an offender, an agency shall request the separation of the file or making of a separate file for such offender before making and sending a file to the Supreme People’s Procuracy. The separation or making of a separate file of a person whose penal liability is requested to be further examined by a foreign country must adhere to the principles prescribed in Article 3 of this Joint Circular.

Article 7.Methods of sending files to the Supreme People’s Procuracy

1.      Requesting agencies shall send files to the Supreme People’s Procuracy directly or by post.

2.   In case a file is sent directly, the handover and receipt must be recorded in writing, clearly stating the following:

a/ Time, date and place of handover and receipt;

b/Name of the requesting agency; full name and position of the sender;

c/ Name of the receiving agency; full name and position of the recipient;

d/ Documents included in the file according to the list of documents; the number of pages of documents included in the file which are given entry numbers;

dd/ Types and state of material evidences (material evidences accompanying the file or currently preserved by a certain agency) indicated in the list of material evidences.

3.   In case of sending by post, the Supreme People’s Procuracy shall examine documents and material evidences included in a file before accepting it. If detecting that the file lacks a document or material evidence or has a document or material evidence not indicated in the list of documents and material evidences, the Supreme People’s Procuracy shall promptly notify such to the file-sending agency for coordinated handling.

4.   The date on which the Supreme People’s Procuracy receives a file is that stated in the handover and receipt record (in case of direct sending) or the date of delivery according to the postage stamp (in case of sending by post).

Article 8. Responsibilities of the Supreme People’s Procuracy in the receipt and handling of files

Within 10 working days after receiving a file, the Supreme People’s Procuracy shall:

1.   Record it in the book of file acceptance;

2.   Examine the completeness and validity of the file according to Article 5 of this Joint Circular. In case the file is invalid, the Supreme People’s Procuracy shall return it to the requesting agency, clearly stating the reason. In case the file lacks necessary documents, it shall request supplementation. The time limit for supplementation is 10 working days after the request is received;

3.   Consider and decide on documents and material evidences to be transferred to the foreign country according to Article 3 of this Joint Circular. If deeming it unnecessary to transfer to the foreign country documents and material evidences accompanying the file, it shall return them to the requesting agency;

4.   Notify the competent foreign agency of the transfer of the file and material evidences for requesting continued examination of penal liability of the offender under a treaty to which Vietnam and the requested country are contracting parties;

In case Vietnam and the requested country conclude no treaty in this regard, it shall request the Ministry of Foreign Affairs to consider and decide to request the foreign country to continue to examine penal liability of the offender on the basis of the principle of reciprocity as prescribed in Article 4 of this Joint Circular;

5.   Send to the requesting agency a notice of the transfer of the file and material evidences to the foreign country. Such a notice must specify the time and place of transfer, types of transferred documents and material evidences and those not transferred.

Article 9. Receipt and transfer of material evidences among competent Vietnamese agencies

1. In case material evidences accompany files:

a/ When transferring files, responsible agencies shall also transfer accompanying material evidences;

b/ Receiving agencies shall preserve accompanying material evidences during the management of files.

2. In case material evidences are preserved at evidence storages:

a/ Requesting agencies shall take photos or footages and make descriptions of material evidences for inclusion in the files and notify such to agencies preserving material evidences;

b/ Agencies preserving material evidences shall continue to preserve material evidences pending the issuance of competent agencies’ orders for delivery of material evidences or decisional disposal of material evidences in accordance with law.

Section 2

ORDER AND PROCEDURES FOR TRANSFER OF FILES AND MATERIAL EVIDENCES TO FOREIGN COUNTRIES

Article 10.Responsibility to contact and transfer files and material evidences to foreign countries

1.   In case Vietnam and a requested foreign country are contracting parties to a treaty on legal assistance in criminal justice, the Supreme People’s Procuracy shall directly contact and transfer files and material evidences to the foreign country under such treaty.

2.   In case Vietnam and a requested foreign country are not contracting parties to the same treaty on legal assistance in criminal justice, the Supreme People’s Procuracy shall send a written request together with the file to the Ministry of Foreign Affairs for contacting and transferring the file and material evidences to the requested under Article 4 of this Joint Circular.

Article 11.Procedures for transfer of material evidences o foreign countries

1.   If material evidences need to be transferred to foreign countries together with files, when transferring such files, the Supreme People’s Procuracy or the Ministry of Foreign Affairs shall also transfer such material evidences to foreign competent agencies.

2.   If material evidences which need to be transferred are preserved at an evidence storage, they shall be handled according to the following procedures:

a/ At least 5 working days before the date of transfer, the Supreme People’s Procuracy shall notify in writing the requesting agency of the time and place of transfer. The requesting agency shall assume the prime responsibility for, and coordinate with the agency preserving material evidences in, conducting the delivery and transport of material evidences at the time and place stated in the notice of the Supreme People’s Procuracy;

b/ In case of transfer through the diplomatic channel, when contacting the foreign competent agency to reach agreement on transfer, the Ministry of Foreign Affairs shall fix a time limit of at least 7 days before the date of transfer for the delivery and transport of material evidences. Within 2 working days after reaching agreement on transfer with the foreign country, the Ministry of Foreign Affairs shall notify such to the Supreme People’s Procuracy for coordination in the transfer.

The notification by the Supreme People’s Procuracy to the requesting agency for the latter to assume the prime responsibility for, and coordinate with the former in, the delivery and transport of material evidences complies with Point a of this Clause.

Article 12.Methods of transfer of files and material evidences to foreign countries

1.   On a case-by-case basis, files and material evidences may be transferred to foreign countries directly or by post.

2.   In case of direct transfer, the transfer must be recorded in writing, showing all documents included in the file, the list and state of transferred material evidences with the signature of the transferring side - representatives of related Vietnamese agencies at the place of handover, and the receiving side - the representative of the competent foreign agency at the place of handover.

3.   In case of transfer by post, the agency conducting the transfer shall seal up files and material evidences before sending them and keep the post office’s receipts.

Article 13.Expenses for transfer of files and material evidences

Expenses arising in the course of transfer of files and material evidences to foreign countries are paid by the agency conducting the transfer (the Supreme People’s Procuracy or the Ministry of Foreign Affairs) from the state budget.

Chapter III

ORGANIZATION OF IMPLEMENTATION AND EFFECT

Article 14.Responsibilities of the Supreme People’s Procuracy

1.   To guide and organize within the people’s procuracy system the making of files and procedures for requesting foreign countries to continue to examine penal liability of offenders under this Joint Circular.

2.   To monitor and notify results of implementation of requests for examination of penal liability of offenders by foreign co to requesting agencies within 5 working days after receiving such results from competent foreign agencies or the Ministry of Foreign Affairs; to request foreign countries to return files and material evidences to Vietnam in case foreign countries refuse to examine penal liability of offenders.

3.   Annually, to collect and send treaties and agreements on legal assistance in criminal justice which Vietnam has sign or acceded to the Supreme People’s Court, the Ministry of Public Security, the Ministry of Jus Ministry of Foreign Affairs.

Article 15.Responsibilities of the People’s Court

To guide and organize within court system the making of files and procedures for requesting foreign countries to continue to examine penal liability of offenders under 1 Joint Circular.

Article 16.Responsibilities of the of Public Security

1.   To guide and organize within the people’s public security force the making of files and procedures for requesting foreign countries to continue to examine penal liability offenders under this Joint Circular.

2.   To guide the agency managing the evidence storage in the people’s public security force in organizing the preservation, delivery and handover of material evidences of cases for transfer to foreign countries in accordance with this Joint Circular.

Article 17.Responsibilities of the Ministry of Justice

To guide civil judgment execution agencies at all level in organizing the preservation, delivery and handover of material evidences for transfer to foreign countries in accordance with this Joint Circular.

Article 18.Responsibilities of the Ministry of Foreign Affairs

1. To organize within the foreign affairs sector the performance of its tasks and exercise of its power for receipt and transfer of files and material evidences of criminal cases to foreign countries m accordance with this Joint Circular.

2 To identify languages of requested countries within 5 working days after receiving requests of file-making agencies.

3.   In case of application of the principle of reciprocity, to coordinate with the Supreme People’s Procuracy in contacting competent foreign agencies to get results of implementation of Vietnam’s requests for continued examination of penal liability; to request foreign countries to return files and material evidences to Vietnam in case such foreign countries refuse to examine penal liability of offenders; to receive results of examination of penal liability of offenders or files and material evidences returned by foreign countries and transfer them to the Supreme People’s Procuracy within 3 working days after receipt.

4.   Annually, to draw up a list of countries and territories that have concluded treaties or agreements with Vietnam on application of the principle of reciprocity related to requests for continued examination of penal liability of offenders, and notify it to the Supreme People’s Procuracy, the Supreme People’s Court, the Ministry of Public Security and the Ministry of Justice.

Article 19.Effect

1.   This Joint Circular takes effect on November 1, 2013.

2.   Any problems arising in the course of implementation should be promptly reported to the Supreme People’s Procuracy, the Supreme People’s Court, the Ministry of Public Security, the Ministry of Justice or the Ministry of Foreign Affairs for explanation or additional guidance.-

For the President of the Supreme People .V Court

Standing Vice President

DANG QUANG PHUONG

For the Chairman of the Supreme People’s Procuracy

Vice Chairman

TRAN CONG PHAN

For the Minister of Justice

Deputy Minister

HOANG THE LIEN

For the Minister of Public Security

Deputy Minister Senior Lieutenant General

LEQUYVUONG

For the Minister of Foreign Affairs

Deputy Minister

NGUYEN THANH SON