Joint circular 13/2012/TTLT-BCA-BTP-VKSNDTC-TANDTC: Guiding a number of the provisions of the Criminal Procedure Code and the Law on Execution of Criminal Judgments on pursuit

Link to law: http://vbpl.vn/tw/Pages/vbpqen-toanvan.aspx?ItemID=10886&Keyword=
Published: 2012

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In order to properly and uniformly implement the provisions of the 2003 Criminal Procedure Code and the 2010 Law on Execution of Criminal Judgments on pursuit in the stages of investigation, prosecution, trial and execution of criminal judgments, the Ministry of Public Security, the Ministry of Justice, the Supreme People’s Procuracy and the Supreme People’s Court jointly issue this Joint Circular to guide a number of provisions of the Criminal Procedure Code and the Law on Execution of Criminal Judgments on pursuit.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation 

This Circular guides the application of a number of provisions of the Criminal Procedure Code and the Law on Execution of Criminal Judgments on pursuit in the stages of investigation, prosecution, trial and execution of criminal judgments.

Article 2. Wanted persons

1. The accused or defendants who abscond or whose whereabouts are unknown.

2. Persons who abscond when being sentenced to expulsion or while serving expulsion sentence.

3. Persons who abscond when being sentenced to imprisonment.

4. Persons who abscond when being sentenced to death.

5. Persons who abscond while serving imprisonment sentence or being permitted to suspend the serving of imprisonment sentence or postpone the serving of his/her sentence.

Article 3. Principles of pursuit

1. Pursuit must be swift and timely, and conducted against proper offenders and crimes, and assure respect for civic rights to freedom and democracy as provided by law.

2. It is prohibited to issue pursuit warrants in contravention of law and this Circular’s guidance.

Article 4. Issuance of pursuit warrants 

1. A competent agency may issue a pursuit warrant when fully satisfying the following conditions:

a/ Having sufficient grounds to believe that a person defined in Article 2 of this Circular has absconded or that his/her whereabouts are unknown, and having taken all necessary measures to get his/her whereabouts or arrest him/her but in vain;

b/ Having accurately identified the background and identification features of the absconding person.

2. When having sufficient grounds to believe that an accused or a defendant absconds or his/her whereabouts are unknown, given an investigative agency, a procuracy or a court has earlier issued a warrant for his/her arrest but the arrest fails, an investigative agency may issue a pursuit warrant, at its own will or the request of the procuracy or court. In case no warrant for the arrest of an accused or a defendant for detention has been issued, the investigative agency, procuracy or court will not issue an arrest warrant but the investigative agency may promptly issue a pursuit warrant at its own will or the request of the procuracy or court.

Article 5. Contents of pursuit warrants

1. A pursuit warrant must have the following principal details:

a/ Date and place of issuance;

b/ Name of the agency, full name and position of the issuer;

c/ Full name as indicated in the birth certificate, alias (if any), date of birth, registered place of permanent residence, place of temporary residence or another place of residence (if any) of the wanted person;   

d/ Personal identification features and photos (if any) of the wanted person;

e/ Crime for which the wanted person has been accused, prosecuted or convicted, and penalty (if any) sentenced by the court against him/her;

f/ Address and contact telephone number of the issuing agency.

2. For an accused or a defendant who has committed more than one crime, a pursuit warrant must specify all crimes he/she has committed.

Article 6. Sending and notification of pursuit warrants

1. A pursuit warrant must be sent to:

a/ The police office of the commune, ward or district township and the police offices of the districts where the wanted person has registered his/her permanent or temporary residence and resides and of his/her native place;

b/ The police department of the province or centrally run city to which the wanted person probably absconds, or the police departments of all provinces and centrally run cities;

c/ The Police Department for Criminal Pursuit of the Ministry of Public Security; and the Police Section for Criminal Pursuit of the provincial-level Police Department that has issued the warrant;

d/ The professional agency in charge of case files at which the case file is registered;

e/ The people’s procuracy that has requested the issuance of a pursuit warrant; the people’s procuracy at the same level with the investigative agency issuing the warrant; or the provincial-level people’s procuracy of the locality in which the detention camp or facility and the criminal judgment enforcement agency issuing the warrant are located;

f/ The people’s court that has requested the investigative agency to issue a pursuit warrant.

2. Pursuit warrants must be notified in the mass media so that all agencies, organizations and individuals can know, detect and arrest wanted persons.

Chapter II

PURSUIT IN THE STAGES OF INVESTIGATION, PROSECUTION, TRIAL AND JUDGMENT EXECUTION

Article 7. Pursuit in the stage of investigation        

1. If in the stage of investigation an investigative agency currently settling a case detects that an accused has absconded or does not know the whereabouts of an accused, it shall issue a pursuit warrant and coordinate with the criminal pursuit police force in arresting him/her.

2. In case a person held in temporary custody escapes from the custody house, the head of the custody house shall promptly report such to the head of the investigative police section of the district-level police office of the locality in which the custody house is located for the latter to organize and direct the pursuit, and shall concurrently issue a decision to institute a criminal case against such person for the crime of escaping from the place of detention or custody prescribed in Article 311 of the Penal Code, and a pursuit warrant clearly specifying other crimes for which the case has been instituted against such person.

3. In case a detainee escapes from the detention camp, the warden of the detention camp shall promptly organize a pursuing force and concurrently notify such to the investigative agency currently settling the case for the latter to issue a decision to institute a criminal case against such person for the crime of escaping from the place of detention or custody prescribed in Article 311 of the Penal Code and a pursuit warrant clearly specifying other crimes for which the case has been instituted against such person.

Article 8. Pursuit in the stage of prosecution

1. If in the stage of prosecution a procuracy currently settling a case file detects that an accused has absconded, it shall request in writing the investigative agency that has accepted the case for investigation to issue a pursuit warrant.

2. Upon the expiration of the time limit specified in Clause 1, Article 166 of the Criminal Procedure Code, if the pursuit of the accused still sees no result, the agency having issued the pursuit warrant shall notify such to the procuracy currently settling the case for the latter to have grounds for settlement according to its competence. If the absconder is not yet arrested, the case must be settled as follows:

a/ In case the absconding of the accused does not affect the objective and comprehensive verification of facts of the case, the procuracy may split up the case and issue a decision to suspend the case with regard to the absconder and shall still prosecute other accused under law.

b/ In case the absconding of the accused affects the objective and comprehensive verification of facts of the case, the procuracy shall suspend the whole case.

Article 9. Pursuit in the stage of trial

1. In case a procuracy has issued a decision on prosecution of an accused and handed over the indictment to the accused but has not yet forwarded the case file to a court when it is informed of the absconding of the accused, it shall still forward the case file to the court for settlement and trial and notify the absconding to the court, which shall later request the investigative agency to pursue the absconder.

2. In case the court receives the procuracy’s notice of the absconding of the accused after being handled over the indictment (regardless of whether the case file has been forwarded to the court) or the accused absconds in the stage of trial preparation, the court shall request the investigative agency to pursue the accused and still carry out activities according to general procedures.

Upon the expiration of the time limit for trial preparation specified in Article 176 of the Criminal Procedure Code, if the pursuit of an accused still sees no result, the court shall issue a decision to suspend the case under Article 180 of the Criminal Procedure Code.

In case an accused absconds when a court hearing has been opened, the trial panel shall issue a decision to suspend the case under Clause 1, Article 187 of the Criminal Procedure Code and request the investigative agency to pursue the accused.

3. For the cases guided in Clause 2 of this Article, the court shall still issue a decision to suspend the case with regard to all accused and defendants involved in the case though only some of them abscond. For an accused or a defendant who is still kept in detention, if seeing that his/her detention is still necessary upon the expiration of the detention duration in order to facilitate the trial, the court may issue a detention order under Article 177 of the Criminal Procedure Code.

Upon the expiration of the time limit for trial preparation, if the pursuit still sees no result, the court shall promptly issue a decision to bring the case for trial and try the absconder in absentia under Point a, Clause 2, Article 187 of the Criminal Procedure Code.

4. Upon receiving a written request of the court for pursuit of an accused or a defendant, the investigative agency shall promptly issue a pursuit warrant and notify it under Article 161 of the Criminal Procedure Code and the guidance in Article 6 of this Joint Circular.

Upon the expiration of a one-month time limit after the receipt of a written request for pursuit, if the pursuit still sees no result, the investigative agency that has issued the pursuit warrant shall notify such to the court for the latter to issue a decision to bring the case for trial in absence of the wanted person under Point a, Clause 2, Article 187 of the Criminal Procedure Code.

5. When a judgment of a court that has requested the investigative agency to pursue an accused or a defendant takes legal effect, the court is not required to request the investigative agency to issue a new pursuit warrant.

Article 10. Pursuit in the stage of judgment execution           

1. When a person who is out on bail is sentenced to imprisonment and absconds when a judgment execution decision is issued, the court that has issued such decision shall request in writing the criminal judgment enforcement agency of the provincial-level Police Department of the locality in which such person resides to issue a pursuit warrant.

2. When a person who is permitted to postpone the serving of his/her imprisonment sentence absconds after the court issues a judgment execution decision upon the expiration of the postponement duration, the court shall request in writing the criminal judgment enforcement agency of the provincial-level Police Department of the locality in which such person resides to issue a pursuit warrant.

3. When a person who is permitted to suspend the serving of his/her imprisonment sentence absconds after the court issues a judgment execution decision upon the expiration of suspension duration, the court shall request in writing the criminal judgment enforcement agency of the provincial-level Police Department of the locality in which such person resides to issue a pursuit warrant.

4. When a person who is serving an imprisonment sentence at a prison or detention camp absconds, the warden of the prison or detention camp shall promptly organize a force to pursue him/her. Past 24 hours after the absconding of such person is detected, if his/her pursuit sees no result, the warden of the prison or detention camp under the Ministry of Public Security, or the head of the criminal judgment enforcement agency of the provincial-level Police Department (for a person absconding from a detention camp under the provincial-level Police Department) shall issue a pursuit warrant and coordinate the pursuit.

5. When a person sentenced to death absconds from a detention camp pending an execution decision, the warden of the detention camp shall promptly organize a force to pursue him/her. Past 24 hours after the absconding of such person is detected, if his/her pursuit sees no result, the warden of the detention camp under the Ministry of Public Security, or the head of the criminal judgment enforcement agency of the provincial-level Police Department (for a person absconding from a detention camp under the provincial-level Police Department) shall issue a pursuit warrant and coordinate the pursuit.

6. When a person who is serving an imprisonment sentence at a temporary custody house absconds, the criminal judgment enforcement agency of the district-level police office shall promptly organize a force to pursue him/her. Past 24 hours after the absconding of such person is detected, if his/her pursuit sees no result, the head of the criminal judgment enforcement agency of the district-level Police Department shall request in writing the head of the criminal judgment enforcement agency of the provincial-level Police Department to issue a pursuit warrant.

7. When a person sentenced to expulsion or serving an expulsion sentence absconds, after receiving a notice from the accommodation establishment or designated place of accommodation, the criminal judgment enforcement agency of the provincial-level Police Department shall promptly organize a pursuit. If the pursuit sees no result, it shall issue a pursuit warrant within 7 days.

Article 11. Commission by absconders of new crimes or detection of other crimes of absconders through investigation

1. In case an absconder commits a new crime and is arrested, the investigative agency that settles the new case shall notify in writing the new crime to the investigative agency that has issued the pursuit warrant for issuing a decision to stop the pursuit and coordinate with the former in investigation under law.

2. In case an absconder commits a new crime, the investigative agency that settles the new case shall issue a decision to institute a criminal case against him/her and a warrant for his/her pursuit for the new crime, and notify such in writing to the investigative agency that has issued the previous pursuit warrant for coordinated pursuit.

3. For an absconder who is pursued under a pursuit warrant but later determined by a competent procedure-conducting agency that he/she has committed a crime other than the crime for which he/she is pursued, an investigative agency shall issue a new pursuit warrant with regard to the newly detected crime.

Article 12. Splitting of, suspension or resumption of investigation into cases involving an absconder

1. For a criminal case involving many accused, including an accused who absconds, an investigative agency shall, before completing the investigation, issue a decision to separate from the case the part related to acts of the absconder (provided the separation does not affect the objective and comprehensive verification of facts of the case), and, upon the expiration of the investigation time limit, issue a decision to suspend the investigation into such part of the case and a decision to suspend the investigation with regard to the absconder. Investigation conclusions on and requests for prosecution of other accused in the case must still be issued under regulations.

2. When the absconder is arrested under the pursuit warrant, the investigative agency that has issued the pursuit warrant shall issue a decision to stop the pursuit and a decision to resume the investigation into the case and accused under Article 165 of the Criminal Procedure Code.

Chapter III

ACTIVITIES TO BE CARRIED OUT UPON ARREST OR RECEIPT OF WANTED PERSONS

Article 13. Handling upon arrest or receipt of persons arrested under pursuit warrants

1. After arresting or receiving a person arrested under a pursuit warrant (including the case in which the wanted person surrenders himself/herself), an investigative agency shall take statements of the arrestee (making a personal identification statement and a fingerprint sheet and taking photos of the arrestee) and promptly send a notice (enclosed with personal identification statement, fingerprint sheet and photos of the arrestee) to the agency that has issued the pursuit warrant for receiving the arrestee.

2. If knowing that the agency that has issued the pursuit warrant cannot immediately receive the arrestee, the investigative agency that has arrested or received the arrestee shall issue a decision to keep him/her in temporary custody and send it to the procuracy at the same level. If the agency that has issued the pursuit warrant still fails to receive the arrestee, the investigative agency that has arrested or received the arrestee shall forward the case file enclosed with a written request for extension of the custody duration to the procuracy at the same level at least 12 hours before the expiration of the custody duration. The extension of the custody duration and approval thereof comply with Clause 2, Article 87 of the Criminal Procedure Code.

3. After receiving a notice enclosed with the personal identification statement, fingerprint sheet and photos of the arrestee, the agency that has issued the pursuit warrant shall immediately examine them for determining whether the arrestee is the wanted person. If the arrestee is the wanted person, it shall immediately receive him/her. If the arrestee is not the wanted person, it shall immediately notify such to the investigative agency currently holding the arrestee in custody for handling under law. In case it cannot immediately receive the arrestee, the agency that has issued the pursuit warrant and is competent to arrest people for detention shall promptly issue a detention order and send it together with the pursuit warrant to the procuracy at the same level for approval.

Within 24 hours after receiving a request for approval, the procuracy shall consider and approve the detention order for a person arrested under a pursuit warrant for the agency that has issued such warrant to promptly send the detention order together with the approval decision to the investigative agency that has arrested or received the arrestee. Upon receiving the detention order approved by the procuracy, the investigative agency that has arrested or received the person arrested under the pursuit warrant shall promptly send the detention order together with the procuracy’s approval decision to the detention camp or custody house where the arrestee is held.

4. For a person arrested under a pursuit warrant of a criminal enforcement agency or a prison or detention camp, if the agency that has issued the pursuit warrant fails to receive him/her 12 hours before the expiration of the temporary custody duration, the legally effective judgment and the decision on execution of imprisonment sentence or expulsion sentence must be promptly sent to the investigative agency that has arrested or received the arrestee (for remote localities, these documents may be sent via facsimile with their originals to be sent later) to serve as grounds for detention, holding in custody or consignment to an accommodation establishment (for the case of execution of expulsion sentence).

5. In case a competent agency has issued a pursuit warrant at the request of a procuracy or court, within 24 hours after receiving a written notice of the arrest of the wanted person, the pursuit-requesting procuracy or court shall promptly issue a detention order and send it to the investigative agency that has arrested or received the arrestee (for remote localities, these documents may be sent via facsimile with their originals to be sent later) and concurrently notify the agency that has issued the pursuit warrant of the sending of the detention order.

6. If the detention camp or custody house receives no detention order from the investigative agency that has issued the pursuit warrant or from the pursuit-requesting procuracy or court 24 hours before the expiration of the temporary custody duration (including extended duration), it shall promptly notify such to the investigative agency that has arrested or received the wanted person. Upon receiving the notice of the detention camp or custody house, the investigative agency that has arrested or received the wanted person shall request in writing the agency that has issued the pursuit warrant to immediately receive the arrestee.

7. For a person subject to many pursuit warrants, the investigative agency that has arrested or received him/her shall notify the agency that has issued the pursuit warrant under which he/she is arrested to receive him/her. The agency receiving the arrestee shall notify the receipt to other agencies that have issued pursuit warrants against such person for issuance of decisions to stop pursuit and for coordinated investigation under law.

8. Upon handing over a person arrested under a pursuit warrant to the agency that has issued the pursuit warrant, the investigative agency that has arrested or received such arrestee shall also hand over a dossier comprising a written record of arrest under the pursuit warrant, a written record of statements of the arrestee, a decision on temporary custody, a decision on extension of the temporary custody duration, a detention order, a decision approving the detention order, a personal identification statement, a fingerprint sheet and other relevant documents (if any). A written record of such handover must be made.

9. If an overnight stopover is necessary during the extradition of a wanted person, the escort(s) shall produce necessary documents and ask for consigning this person to the nearest custody house or detention camp. The head of the custody house or the warden of the detention camp shall examine the documents related to the wanted person and carry out procedures for admitting him/her.

Article 14. Application of deterrent measures and procedures for handling wanted persons arrested for less serious crimes

Upon arresting or receiving an accused or a defendant wanted for a less serious crime subject to a penalty of imprisonment of up to 2 years, an investigative agency shall issue a temporary custody decision. Upon the expiration of the temporary custody duration or extended duration, the investigative agency settling the case shall apply another deterrent measure under the Criminal Procedure Code.

Article 15. Application of deterrent measures to wanted juvenile delinquents when being arrested

1. A wanted person who is between full 14 years and under 16 years old or between full 16 years and under 18 years old may be held in temporary custody or detained if all the grounds specified in Articles 82, 86, 88, 120 and 303 of the Criminal Procedure Code exist.

2. An adult arrestee (aged full 18 years or older) who was still a minor when a pursuit warrant against him/her was issued may be held in temporary custody or detained under the provisions of the Criminal Procedure Code applicable to adults.

Article 16. Handling of wanted persons who surrender themselves

1. When a wanted person surrenders himself/herself to a state agency or social organization, the latter shall promptly notify such to the nearest police office for sending officers to receive him/her and making a written record of the surrender. For a wanted person who surrenders himself/herself to a police office, procuracy or People’s Committee, the latter shall make a written record of the surrender and promptly hand him/her over to a competent investigative agency.

2. Upon receiving a surrendering person, an investigative agency shall make a written record of the surrender (if the handing agency has not yet made one) and take his/her statements on his/her crime, absconding time, reason(s) for surrendering and other related matters.

3. The surrendering of wanted offenders is regarded as an extenuating circumstance as provided in Clause 2, Article 46 of the Penal Code.

4. A person subject to an imprisonment sentence execution decision who has absconded and been pursued and now surrenders himself/herself and suffers from a serious illness (as concluded by the medical council of a provincial or higher-level hospital) or is pregnant (as certified by a district or higher-level general hospital) or is nursing an under-36-month infant or the only breadwinner in his/her family (as certified by the local administration) and whose family will  encounter great difficulties if he/she has to serve the imprisonment sentence may be permitted by the court to suspend the serving of the imprisonment sentence under Article 61 of the Penal Code.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 17. Effect 

This Circular takes effect on December 1, 2012.

All previous documents of the Ministry of Public Security, the Ministry of Justice, the Supreme People’s Procuracy and the Supreme People’s Court guiding the implementation of a number of provisions of the Criminal Procedure Code and the Law on Execution of Criminal Judgments on pursuit which are contrary to this Circular are hereby annulled.

Article 18. Organization of implementation

The Ministry of Public Security, the Ministry of Justice, the Supreme People’s Procuracy and the Supreme People’s Court shall disseminate, guide, monitor and examine the implementation of this Circular.

Any problems arising in the course of implementation should be reported to the Ministry of Public Security, the Ministry of Justice, the Supreme People’s Procuracy and the Supreme People’s Court for timely guidance.