DECREE
Providing the sanction of expulsion and the measures of temporary custody and escorted transfer of violators according to administrative procedures, and management of foreign violators of the Vietnamese law pending the completion of expulsion procedures
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Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the November 21, 2007 Law on Prevention and Combat of Domestic Violence;
Pursuant to the June 20, 2012 Law on Handling of Administrative Violations;
At the proposal of the Minister of Public Security,
The Government promulgates the Decree providing the sanction of expulsion, the measures of temporary custody and escorted transfer according to administrative procedures, and management of foreign violators of the Vietnamese law pending the completion of expulsion procedures.
Chapter I
GENERAL PROVISIONS
Article 1. Scope of regulation
This Decree provides:
1. Subjects, competence, procedures for holding in temporary custody and escorted transfer of persons according to administrative procedures, cases of application of the measures of temporary custody and escorted transfer according to administrative procedures, and other issues related to the application of the measures of temporary custody and escorted transfer of persons according to administrative procedures.
2. Persons subject to expulsion, procedures for applying the sanction of expulsion, the measure of management of violators pending the completion of expulsion procedures, rights and obligations of persons subject to expulsion and responsibilities of agencies and organizations in the execution of the sanction of expulsion.
Article 2. Subjects of application
This Decree applies to:
1. Persons who commit violations and are held in temporary custody according to administrative procedures in the cases specified in Article 11 of this Decree.
2. Foreigners subject to expulsion as prescribed in the decrees on sanctioning of administrative violations.
3. Persons competent to impose the sanction of expulsion, persons competent to apply measures to deter administrative violations and assure the handling thereof.
4. Other agencies and organizations related to the application of the sanction of expulsion and measures to deter administrative violations and ensure the handling thereof.
Article 3. Principles of application
1. The temporary custody and escorted transfer of persons according to administrative procedures and the application of the sanction of expulsion must ensure proper subjects, procedures, competence and time limits provided in the Law on Handling of Administrative Violations, this Decree and other relevant laws.
2. All acts of infringing upon the life, health, honor, dignity and property of persons who are held in temporary custody and transferred with escorts according to administrative procedures and persons subject to expulsion are strictly prohibited.
3. In all circumstances, the holding in temporary custody and escorted transfer of persons according to administrative procedures or the application of the sanction of expulsion must have written decisions of competent persons defined in Articles 12, 25 and 7 of this Decree. A copy of such decision must be handed over to the held, transferred or expelled person. The decision issuer shall take responsibility for his/her decision.
Article 4. Fund
1. The fund for the application of the measures of temporary custody and escorted transfer of persons according to administrative procedures and application of the sanction of expulsion covers:
a/ Expenses for the construction, repair and upgrade of physical facilities for temporary custody; purchase of articles, vehicles, weapons, supporting tools and other conditions to serve the temporary custody and escorted transfer of persons according to administrative procedures; food, drinks and medical examination and treatment for persons held in temporary custody; and burial of persons who die during temporary custody or escorted transfer when these persons or their families cannot afford these expenses, and other expenses for the temporary custody of persons according to administrative procedures;
b/ Expenses for compiling dossiers of request for the application of the sanction of expulsion and management of foreigners pending the completion of expulsion procedures, searching expelled persons who abscond and executing expulsion decisions.
2. The fund for assuring the application of the measures of temporary custody and escorted transfer according to administrative procedures and imposition of the sanction of expulsion comes from the state budget. The estimation, use and settlement of this fund comply with the Law on the State Budget and guiding documents.
3. Expenses for food, lodging and medical examination and treatment at accommodation facilities stated in Clause 3, Article 30 of this Decree, and vehicles for exit must be paid by expelled foreigners. If an expelled foreigner is unable to pay such expenses, the Immigration Department or provincial-level Public Security Department (which has compiled a dossier for managing this person) shall request the diplomatic mission or consulate of the country of which such person is a citizen or the agency, organization or person that invited such person to Vietnam to pay such expenses. If the person, agency or organization mentioned above has no condition or ability to pay, the Immigration Department or provincial-level Public Security Department (which has compiled a dossier for managing this person) shall pay such expenses from the state budget source.
Chapter II
APPLICATION OF THE SANCTION OF EXPULSION
Article 5. Competence to apply the sanction of expulsion
Persons competent to decide on the application of the sanction of expulsion according to administrative procedures are defined at Point dd, Clause 5, and Clause 7, Article 39 of the Law on Handling of Administrative Violations.
Article 6. Order and procedures for compiling dossiers of request for application of the sanction of expulsion
1. The agency that detects a foreigner committing a violation subject to expulsion shall immediately send seized documents, material evidence and means (if any) related to the violation to the immigration agency of the provincial-level Public Security Department of the locality where the foreigner registers for permanent or temporary residence or where the violation occurs, for compiling a dossier of request for application of the sanction of expulsion. For violations detected by central agencies or professional units of the Ministry of Public Security, their dossiers must be sent to the Immigration Department for compiling dossiers of application of the sanction of expulsion.
2. Within seven days after receiving a violation dossier, the immigration agency of the provincial-level Public Security Department or the professional unit of the Immigration Department shall complete a dossier of request for application of the sanction of expulsion, comprising:
a/ Summaries of the personal history and act of violation of the person requested to be expelled;
b/ Documents and evidences on the act of administrative violation;
c/ Sanctions already applied (for repeated violations or recidivism);
d/ A written request for expulsion.
Article 7. Expulsion decision
1. Within three days after receiving a report proposing expulsion sent from the immigration agency of the provincial-level Public Security Department or the professional division of the Immigration Department, the director of the provincial-level Public Security Department or the general director of the Immigration Department shall consider and issue a decision to expel the foreign violator. If the conditions for applying the sanction of expulsion are insufficient, a notice thereof must be promptly sent to the agency that has detected the violation.
2. An expulsion decision must contain the following details:
a/ Date of issuance;
b/ Full name and position of the decision issuer;
c/ Full name, date of birth, nationality, profession, number of passport/passport substitute of the expelled foreigner;
d/ The act of administrative violation committed by the expelled foreigner;
dd/ Applicable articles of legal documents; principal sanction; additional sanction and remedial measures (if any);
e/ Time of execution of the expulsion decision;
g/ Place which the foreigner is expelled to;
h/ Border gate of expulsion;
i/ Agency responsible for executing the expulsion decision;
k/ Place where the foreigner is compelled to stay pending the completion of expulsion procedures;
l/ Signature of the decision issuer.
3. Before being executed, the expulsion decision must be sent to the expelled foreigner, the Vietnamese Ministry of Foreign Affairs; the consulate and diplomatic mission of the country of which the foreigner is a citizen or the country where such foreigner resides last before entering Vietnam. The expulsion decision must be expressed in both Vietnamese and English.
Article 8. Rights and obligations of expelled foreigners
1. Rights of an expelled foreigner:
a/ To be notified of the reason for expulsion, and receive the expulsion decision at least 48 hours before it is executed;
b/ To contact the diplomatic mission or consulate of the country of which he/she is a citizen for protection and assistance;
c/ To be eligible for the regimes specified in Article 31 of this Decree pending the completion of the expulsion procedures;
d/ To bring along his/her lawful property when leaving Vietnam;
dd/ To lodge complaints and denunciations in accordance with the law on settlement of complaints and denunciations.
2. Obligations of an expelled foreigner:
a/ To fully comply with the expulsion decision;
b/ To produce the personal identification paper at the request of the immigration agency;
c/ To comply with the Vietnamese law and submit to the management by the public security agency pending the completion of the expulsion procedures;
d/ To quickly fulfill all civil, administrative and financial obligations (if any) as prescribed by law. If failing to voluntarily perform them, to be applied the measures to deter administrative violations and ensure the handling thereof as prescribed in Chapter I, Part Four of the Law on Handling of Administrative Violations;
dd/ To complete all necessary procedures for leaving Vietnam.
Article 9. Postponement of execution of expulsion decisions
1. The execution of an expulsion decision may be postponed in the following cases:
a/ The expelled foreigner is unable to comply with the expulsion decision because of serious illness in need of emergency aid or for another health reason certified by a hospital or health center of district or higher level, or in other force majeure circumstances;
b/ The expelled person has to perform civil, administrative or financial obligations as prescribed by law.
2. On the basis of the proposal of the immigration agency of the provincial-level Public Security Department, the director of the provincial-level Public Security Department shall consider and issue a decision to postpone the execution of the expulsion decision.
3. On the basis of the proposal of the head of the professional division of the Immigration Department, the general director of the Immigration Department shall consider and issue a decision to postpone the execution of the expulsion decision.
4. As soon as the conditions for postponement no longer exist, the expulsion decision will be executed.
Article 10. Dossier of execution of an expulsion decision
1. A dossier of execution of an expulsion decision comprises:
a/ The decision on expulsion according to administrative procedures;
b/ A copy of the expelled foreigner’s passport or another personal identification paper in substitution of the passport;
c/ Papers certifying the fulfillment of other obligations (if any);
d/ Other relevant documents.
2. The immigration agency of the provincial-level Public Security Department or the professional division of the Immigration Department of the Ministry of Public Security shall compile dossiers as prescribed in Clause 1 of this Article.
Chapter III
TEMPORARY CUSTODY AND ESCORTED TRANSFER OF PERSONS ACCORDING TO ADMINISTRATIVE PROCEDURES AND MANAGEMENT OF FOREIGNERS PENDING THE COMPLETION OF EXPULSION PROCEDURES
Section 1
COMPETENCE AND PROCEDURES FOR TEMPORARY CUSTODY OF PERSONS ACCORDING TO ADMINISTRATIVE PROCEDURES AND MANAGEMENT OF PERSONS HELD IN TEMPORARY CUSTODY ACCORDING TO ADMINISTRATIVE PROCEDURES
Article 11. Temporary custody of persons according to administrative procedures
Temporary custody of a person according to administrative procedures may only be applied when it is necessary to prevent and stop the following acts:
1. Disturbing public order.
2. Inflicting injury on other persons.
3. Committing violations specified in Clause 5, Article 20 of the Law on Prevention and Combat of Domestic Violence, and Clause 1, Article 12 of Decree No. 08/2009/ND-CP of February 4, 2009, detailing and guiding the implementation of a number of articles of the Law on Prevention and Combat of Domestic Violence.
Article 12. Competence to hold persons in temporary custody
Persons competent to decide on holding persons in temporary custody according to administrative procedures are defined in Article 123 of the Law on Handling of Administrative Violations.
Article 13. Decision on temporary custody according to administrative procedures
Temporary custody of a person according to administrative procedures is decided as follows:
1. If there are sufficient grounds and finding it necessary to apply the measure of holding in temporary custody according to administrative procedures a person who has committed a violation of law, a competent person shall immediately issue a decision to hold in temporary custody such person according to administrative procedures.
A decision on holding a person in temporary custody according to administrative procedures must specify the serial number of the decision, hour and minute and date of issuance of the decision; full name, rank, position, agency or unit of the decision issuer; grounds for issuing the decision and applicable articles of legal documents; reason for temporary custody; full name, date of birth, place of birth, registered permanent (or temporary) residence, occupation, workplace or training institution and identity card number of the person held in temporary custody; full names of his/her parents or guardian (for minors); nationality and serial number or the passport or passport substitute of the person held in temporary custody (for foreigners); temporary custody duration and place; the right to lodge complaints and denunciations and file lawsuits in accordance with law about the issuance of the temporary custody decision and the implementation of this measure; and signature and stamp of the agency of the decision issuer. The temporary custody decision must be made into two copies, one to be handed to the person held in temporary custody and the other to be filed in the dossier.
2. If it is necessary to prolong the temporary custody duration, before the end of the temporary custody duration written in the decision, the person competent to decide on temporary custody shall issue a decision to prolong the temporary custody duration. The decision must specify the serial number of the decision, hour and minute and date of issuance of the decision; grounds for issuing the decision; applicable articles and clauses of legal documents; full name, rank, position, agency or unit of the decision issuer; full name, address and identity card number of the person held in temporary custody; place of temporary custody; reason for and prolonged duration of temporary custody; the person’s right to lodge complaints and denunciations and file lawsuits in accordance with law about the issuance of the temporary custody duration prolongation decision; and the signature and stamp of the agency of the decision issuer. The decision on temporary custody duration prolongation must be made into two copies, one to be handed to the person held in temporary custody and the other to be filed in the dossier.
3. If the grounds for temporary custody cease to exist before the expiration of the duration specified in the temporary custody decision, the decision issuer shall issue a decision to immediately stop the temporary custody according to administrative procedures. One copy of this decision must be handed to the person held in temporary custody and another kept for filing and recorded in the book of monitoring persons held in temporary custody according to administrative procedures.
The decision on termination of the temporary custody of a person according to administrative procedures must specify the serial number of the decision, hour and minute and date of issuance of the decision; grounds for issuing the decision; full name, rank, position, agency or unit of the decision issuer; full name, address and number of the identity card, passport or another passport substitute of the person held in temporary custody; reason for terminating temporary custody; applicable articles and clauses of legal documents; and the signature and stamp of the agency of the decision issuer.
4. When there is a ground for believing that the violation of a person held in temporary custody according to administrative procedures shows criminal signs, the issuer of the temporary custody decision shall immediately transfer the dossier and such person together with material evidences and means used in the violation (if any) to a competent criminal procedure-conducting agency for settlement in accordance with law.
Article 14. Temporary custody duration
1. The duration for temporary custody of persons according to administrative procedures is specified in Clause 3, Article 122 of the Law on Handling of Administrative Violations.
2. The temporary custody duration must be written in the decision on temporary custody according to administrative procedures, specifying the number of hours of temporary custody, and starting and ending hours on the date of issuance of the decision.
3. In all cases, the temporary custody of persons according to administrative procedures must be expressed in a written decision of a competent person. Arbitrary temporary custody of persons without a written decision is strictly prohibited.
4. At the expiration of the temporary custody duration according to administrative procedures or in the case specified in Clause 3, Article 13 of this Decree, the issuer of the temporary custody decision shall immediately terminate the temporary custody and record it in the book of monitoring administrative temporary custody with the signature of the person held in temporary custody. In case the person held in temporary custody refuses to sign, the issuer of the temporary custody decision shall make a written record or assign the officer on duty to make a written record specifying the reason. This written record must be signed by a witness (if any), the record maker and the temporary custody decision issuer.
Article 15. Notification of temporary custody decisions
1. Immediately after issuing a decision on temporary custody of a person according to administrative procedures, at the request of the person held in temporary custody, the decision issuer shall notify in writing, by telephone, fax or other means of communication of the temporary custody decision to such person’s family or agency or organization where he/she works or studies. If unable to make such notice, this must be informed to the person held in temporary custody and recorded in the book for monitoring persons held in administrative temporary custody.
2. In case of holding a minor in temporary custody at night for committing an administrative violation or holding a minor for more than 6 hours, the temporary custody decision issuer shall promptly notify it to his/her parents or guardian. If unable to identify his/her parents or guardian or to notify for an objective reason, this must be informed to the minor held in temporary custody and recorded in the book for monitoring persons held in administrative temporary custody.
3. In case of holding a foreigner in temporary custody, the temporary custody decision issuer shall immediately notify it to the head of the superior competent agency for notification to the Ministry of Foreign Affairs (the Consular Department for provinces and centrally run cities from Thua Thien Hue northward, and the Ho Chi Minh City Foreign Affairs Department for remaining provinces and centrally run cities) for further notification to the diplomatic mission or consulate of the country of which such foreigner is a citizen; and at the same time coordinate with the representative of the diplomatic mission or consulate of that country in arranging consular visits, if so requested, and handling other related foreign affairs.
Article 16. Receipt of persons held in temporary custody
1. When receiving a person held in temporary custody, the person responsible for managing persons held in temporary custody shall examine and compare the temporary custody decision with the person held in temporary custody; check his/her belongings which he/she is permitted to bring; record in the temporary custody monitoring book according to regulations; inform such person of his/her rights and obligations, rules of the temporary custody place and relevant regulations that he/she shall observe.
2. If a person held in temporary custody fails to voluntarily observe temporary custody regulations, necessary coercive measures must be taken in accordance with the law on prevention, stoppage and handling of acts of resisting officers on duty in order to force such person to observe.
Article 17. Temporary custody dossiers
1. Agencies and units competent to hold administrative violators in temporary custody shall keep dossiers and books to monitor the management of administrative violators in accordance with law.
2. All matters related to the temporary custody of persons according to administrative procedures must be fully recorded in the dossiers of temporary custody of administrative violators in accordance with law.
Article 18. Rights and obligations of persons held in temporary custody
1. A person held in temporary custody has the following rights:
a/ To be informed of the application of the measure of temporary custody according to administrative procedures;
b/ To request the temporary custody decision issuer to notify his/her family or organization where he/she works or studies of his/her temporary custody under Article 15 of this Decree;
c/ To be informed of the reason for temporary custody, the temporary custody duration and place; to lodge complaints about the temporary custody;
d/ To be provided with food and drinks as prescribed in Article 22 of this Decree;
dd/ To receive medical treatment and care when getting sick as prescribed in Article 23 of this Decree.
2. A person held in temporary custody has the obligations:
a/ To strictly comply with the temporary custody decision and rules and regulations of the temporary custody place;
b/ To comply with all requests and commands of the temporary custody decision issuer and persons assigned to manage and protect the temporary custody place;
c/ To truthfully report on his/her violations and those of other related persons;
d/ To refrain from bringing into the temporary custody place weapons, explosives, supporting tools, mobile phones, harmful cultural products, alcoholic drinks and other habit-forming substances or articles which may affect the order and safety of the temporary custody place.
Article 19. Temporary custody places
1. The place for temporary custody of persons according to administrative procedures are administrative temporary custody houses or rooms arranged at the offices of agencies or units of persons competent to issue decisions to hold administrative violators in temporary custody. If there is no administrative temporary custody house or room, persons may be held in the watch room or another room at the working office, provided general regulations are complied with. Keeping administrative violators in criminal temporary custody or detention rooms or unhygienic and unsafe places is strictly prohibited.
Administrative temporary custody houses or rooms must have locks, and ensure sufficient light, airiness, hygiene and safety in fire prevention and fighting and convenience for watch and protection work. Persons held in temporary custody overnight must be provided with a bed or lying floor, mat, blanket and mosquito net, with at least 2 m2 of lying area per person.
2. Law enforcement agencies that have to regularly hold administrative violators in temporary custody should arrange, design and build separate administrative temporary custody houses or rooms with separate temporary custody areas for minors, women and foreigners, and arrange full-time managers and guards.
The design and area of temporary custody places for administrative violators must be based on the characteristics, conditions and number of persons held in temporary custody and practical requirements of temporary custody of administrative violations in each sector or locality to ensure appropriate locations and construction.
3. For aircraft, seagoing ships and trains that have left airports, ports or railway stations, depending on the specific conditions and violators, the aircraft commanders, shipmasters or train conductors shall decide on temporary custody places and assign officers to execute the temporary custody.
4. The Minister of Public Security shall, in pursuance to the Law on Handling of Administrative Violations and this Decree, take responsibility for organizing and arranging administrative temporary custody places and directing the design and construction of these places.
Article 20. Management of persons held in temporary custody
Persons assigned to manage persons held in temporary custody and protect temporary custody places shall:
1. Constantly supervise, protect and watch persons held in temporary custody. If finding persons held in temporary custody with abnormal psychological signs, health conditions or behaviors or detecting circumstances related to violation cases or others’ violations, immediately report such to the temporary custody decision issuer for taking timely handling measures.
If detecting persons held in temporary custody who hide weapons, explosives, supporting tools, material evidences or means used in violations, make written records of seizure of such weapons, explosives, supporting tools, material evidences or means. If finding persons held in temporary custody with injuries or abnormal health conditions, make written records of health conditions and at the same time promptly report such to the temporary custody decision issuer for taking timely handling measures.
2. Personal belongings and property of persons held in temporary custody must be deposited at their temporary custody places. The delivery and receipt of deposited personal belongings and property must be fully and specifically recorded in the temporary custody monitoring book with signatures of such persons. For personal belongings or property in great quantity or of great value, a separate delivery and receipt written record must be made, specifying the quantity, kinds, codes, forms and conditions of articles and other related matters. Such written record must be made in two copies signed by the person held in temporary custody and the property keeper, with one copy handed to the person held in temporary custody. Upon the expiration of the temporary custody duration or when being transferred to another place, persons held in temporary custody are entitled to receive back all deposited property. If causing any loss of or damage to the belongings and property of persons held in temporary custody, the keepers shall pay compensation in accordance with law.
Article 21. Delivery and receipt of administrative violators
1. Persons with temporary custody competence shall make or assign persons on duty to make written records of delivery and receipt of administrative violators with organizations or individuals that escort such violators.
2. A written record of delivery and receipt of an administrative violator must specify the hour and minute and date of its making; full name, position and address of the delivering and receiving organizations or persons; full name, address and number of the identity card or another personal identification paper of the violator; committed violation; time and place of commission; health and attitude of the violator, material evidence and his/her property (if any) and other circumstances related to the delivery and receipt of the violator. If there are witnesses and victims, the written record must clearly state the details of the events which they witnessed and the damage caused by the violator, and the full names and addresses of the witnesses and victims. The written record must be signed by the deliverer, recipient and violator, victims and witnesses (if any), and the person competent to hold persons in temporary custody according to administrative procedures. In case the violator, victim or witness refuses to sign, the record maker shall write the reason in the written record.
The written record of delivery and receipt of an administrative violator must be made in two copies and read aloud to the signers; the deliverer and recipient shall each keep one copy.
3. Immediately after an administrative violation is detected and stopped and a written record thereof is made or after a written record of delivery and receipt of the administrative violator is made, if finding it necessary to hold such violator in temporary custody according to administrative procedures, the person competent to hold persons in temporary custody according to administrative procedures shall issue a temporary custody decision.
If there are insufficient grounds or it is unnecessary to apply the measure of temporary custody according to administrative procedures, the violator must be immediately set free and given back all means, property and papers (if any) if these means, property and papers are not subject to the measure of seizure of material evidence and means in administrative violations.
Article 22. Food and drink regime of persons held in temporary custody
1. If a person held in temporary custody or his/her family cannot afford, the agency or unit of the person competent to issue temporary custody decisions shall ensure the food and drink regime for such person according to the standard daily ration of 0.6 kg of ordinary rice, 0.1 kg of ordinary pork, 0.5 kg of vegetables, 1 liter of boiled water, fish sauce, salt and fuel as appropriate. This regime is covered by the state budget and converted into monetary value at market prices in each locality and at each point of time.
2. In case of being held in temporary custody during traditional new year holidays or having poor health conditions with a doctor’s prescription, persons held in temporary custody are entitled to additional food but the total ration (including additional food) must not exceed five times that for ordinary days; if being held in temporary custody during a national holiday or the calendar new year day, persons held in temporary custody are entitled to additional food but the total ration must not exceed three times that for ordinary days.
Temporary custody agencies may decide on swapping the above ration to suit the practical conditions and the tastes of persons held in temporary custody to ensure that they use up all of their rations.
3. Agencies and units with the function to hold persons in temporary custody according to administrative procedures shall open books to monitor, pay and settle expenses for food and drinks for persons held in temporary custody in accordance with law.
Article 23. Cases in which persons held in temporary custody get ill or die during temporary custody
1. Persons held in temporary custody who get ill are entitled to on-site treatment; if a person suffers a serious disease in need of emergency aid, the temporary custody agency or unit shall take him/her to a health center and immediately notify such to his/her family and relatives for taking care of him/her; if the family or relatives of such person make a written request for bringing him/her home for care and finding it unnecessary to continue the temporary custody, the person with temporary custody competence may decide to terminate the temporary custody ahead of time and permit such person to return to his/her home for medical treatment; if such person has no fixed residence or his/her family or relatives live far away and cannot come to take care of such person in time, the temporary custody agency or unit shall take care of such person.
2. If a person dies during temporary custody, the temporary custody decision issuer shall immediately notify the death to the competent investigative agency and procuracy for settlement in accordance with law, and concurrently to his/her family or relatives. If the deceased is a foreigner, the temporary custody decision issuer shall immediately report the death to the competent superior agency for prompt notification to the Ministry of Foreign Affairs or a competent state agency for coordinating with the diplomatic mission or consulate of the country of which the deceased is a citizen in the settlement.
3. The family of the deceased shall organize the burial. If the deceased has no family, the temporary custody agency or unit shall coordinate with the local administration of the temporary custody place in organizing the burial with state budget funds in accordance with law.
Section 2
COMPETENCE AND PROCEDURES FOR ESCORTED TRANSFER OF PERSONS ACCORDING TO ADMINISTRATIVE PROCEDURES
Article 24. Escorted transfer of violators
1. A violator who fails to voluntarily comply with requests of a competent person shall be transferred with escorts in the following cases:
a/ Being held in temporary custody according to administrative procedures;
b/ Being returned to the reformatory, compulsory education institution or compulsory detoxification establishment under Clause 2, Article 132 of the Law on Handling of Administrative Violations;
c/ Being subject to expulsion and failing to voluntarily execute the expulsion decision or taking resisting or absconding acts.
2. Competent persons defined in Article 25 of this Decree who are on duty shall organize the escorted transfer of violators.
3. During escorted transfer, the management of escorted persons complies with Articles 18, 19, 20, 22 and 23 of this Decree.
Article 25. Competence to organize escorted transfer
The following competent persons who are on duty may organize the escorted transfer of violators according to administrative procedures:
1. People’s policemen.
2. Border guards.
3. Marine policemen.
4. Customs officers.
5. Forest rangers.
6. Tax officers.
7. Market controllers.
8. Inspectors, persons assigned to perform specialized inspection tasks.
9. Civil judgment enforcers.
Article 26. Procedures for escorted transfer
1. Before escorted transfer, a competent person on duty to perform the escorted transfer shall explain to the person subject to escorted transfer his/her rights and obligations during the escorted transfer in accordance with law, and answer his/her questions.
2. During the escorted transfer, absolute safety must be ensured for competent persons on duty who perform the escorted transfer and transferred persons. The use of weapons and supporting tools when applying the escorted transfer measure must comply with law.
If the person subject to escorted transfer attempts to abscond or takes resisting acts, the competent person on duty who is performing the escorted transfer shall immediately report it to a competent person for issuing a temporary custody decision according to administrative procedures against such person.
3. Escorts shall closely supervise and manage escorted persons, be vigilant, proactive and promptly deal with complicated circumstances that may happen; and may not arbitrarily respond to requests of escorted persons during the escorted transfer.
Article 27. Delivery and receipt of escorted persons
1. Competent persons on duty who are performing the escorted transfer shall make written records of delivery and receipt of escorted persons with agencies receiving escorted persons.
2. Competent persons on duty, upon arriving the place for escorted transfer, shall invite representatives of the local administration of the place where the person subject to escorted transfer resides or is managed and of the agency or organization where such person works or studies and witnesses.
3. Competent persons on duty who are performing the escorted transfer shall check and compare photos and personal identification papers to precisely identify the violator subject to escorted transfer according to administrative procedures and make a written record of the escorted transfer according to administrative procedures.
Article 28. Making of escorted transfer written records
A written record of escorted transfer of a violator who fails to voluntarily comply with requests of competent persons defined in Clause 1, Article 24 of this Decree, must contain the following details:
1. The hour and minute, date and place of making the written record.
2. Full names, positions and addresses of the delivering and receiving individuals and organizations; full name, address, number of identity card or another personal identification paper of the escorted violator; violation; time and place of commission; health and attitude of the violator; material evidences and his/her property (if any) and other circumstances related to the escorted transfer. If there are witnesses, the written record must state the full names and addresses of witnesses.
3. The written record must be signed by the deliverer, recipient and violator subject to escorted transfer, and witnesses (if any), and the person competent to hold persons in temporary custody according to administrative procedures. In case the escorted violator or witness refuses to sign, the record maker shall write the reason in the written record.
4. The written record of delivery and receipt of an administrative violator subject to escorted transfer must be made in two copies and read aloud to the signers; the deliverer and recipient of the escorted violator subject to escorted transfer shall each keep one copy.
Article 29. Handling of some circumstances during escorted transfer
1. If the person subject to escorted transfer resists, the escort shall explain applicable law to him/her and ask him/her to comply with the decision; in case of necessity, the escort may use force, tying, handcuff, weapons and supporting tools in accordance with law to suppress resisting acts of escorted violators.
2. If the violator absconds, the person executing the escorted transfer decision shall make a written record signed by a witness; if there is no witness, the reason must be written in the written record.
Section 3
MANAGEMENT OF FOREIGNERS PENDING THE COMPLETION OF EXPULSION PROCEDURES
Article 30. Management of foreigners pending the completion of expulsion procedures
1. The head of the professional section of the Immigration Department or the head of the immigration division of the provincial-level Public Security Department (that compiles the dossier of request for expulsion) shall propose the general director of the Immigration Department or the director of the provincial-level Public Security Department to decide on the application of management measures to foreigners pending the completion of expulsion procedures in the following cases:
a/ There is a ground that unless necessary management measures are applied, the foreigner may abscond or obstruct the execution of the expulsion decision;
b/ In order to prevent such foreigner from further committing violations.
2. Management measures:
a/ To restrict the travel of the managed foreigner;
b/ To designate an accommodation for the managed foreigner;
c/ To retain the passport or another passport substitution paper;
d/ To force stay at an accommodation facility managed by the Ministry of Public Security in the case specified in Clause 3 of this Article.
3. The expelled foreigner shall stay at an accommodation facility managed by the Ministry of Public Security if falling into one of the following cases:
a/ Having no passport or passport substitution paper or lacks necessary conditions for expulsion (air ticket, visa, etc.);
b/ Having no permanent or temporary residence;
c/ Violating Clause 2 of this Article or failing to comply with the management and supervision measure of competent authorities;
d/ Committing a violation of law or there is a ground for believing that he/she may commit a violation of law pending the completion of expulsion procedures;
dd/ Absconding, being prepared to abscond or committing another act causing difficulty to the execution of the expulsion decision;
e/ Suffering an extremely dangerous contagious disease as prescribed in the Law on Prevention and Combat of Contagious Diseases;
g/ Voluntarily making a request for stay at an accommodation facility.
4. Criminal temporary custody houses, temporary detention camps and prisons may not be used for managing foreigners pending the completion of expulsion procedures.
Article 31. Regimes applicable to expelled foreigners pending the completion of expulsion procedures
1. Accommodation:
a/ To be arranged to stay in a gender-based collective room, with a lying area of at least 3 m2 per person, a toilet, mats, blankets and mosquito nets;
b/ A person suffering an extremely dangerous contagious disease as prescribed in the Law on Prevention and Combat of Contagious Diseases, a mental disease or another disease which deprives him/her of the capacity to perceive or control his/her acts must be arranged in an isolation room.
2. Food and clothing:
a/ The monthly ration per capita includes 17 kg of ordinary rice; 0.7 kg of ordinary pork; 0.8 kg of fish; 0.1 kg of salt; 0.5 kg of sugar of medium grade; 0.75 liter of fish sauce; 0.1 kg of seasoning; 15 kg of vegetables and 15 kg of firewood or 17 kg of coal. This ration is converted into monetary value at market prices in localities where accommodation facilities are located. During national holidays and traditional new year holidays (as prescribed by the Vietnamese State), expelled foreigners are entitled to additional food but the total ration (including additional food) must not exceed five times that for ordinary days. The accommodation facilities may decide on swapping the above ration to suit the practical conditions and ensure that these foreigners consume all of their rations.
b/ Expelled foreigners pending the completion of expulsion procedures may bring into accommodation facilities essential personal articles for use according to regulations of the Ministry of Public Security. If lacking clothes, depending on the length of stay, they may be provided with one or two sets of clothes of ordinary fabric.
3. Physical exercise, sports, cultural and art performance activities, information and communication, and property management:
a/ While staying at accommodation facilities, expelled foreigners pending the completion of expulsion procedures may do physical exercise, play sports and take part in healthy cultural and art performance activities within the premises of these facilities. Each living room is furnished with a color television set and books and newspapers are available for loan from the accommodation facilities. The time for doing physical exercise, playing sports and taking part in cultural and art performance activities, watching television and listening to radio is regulated by accommodation facilities;
b/ While staying at accommodation facilities, expelled foreigners pending the completion of expulsion procedures may contact by telephone and send letters to their relatives and consulates according to regulations of their accommodation facilities. They shall pay telephone and postal charges;
c/ While staying at accommodation facilities, expelled foreigners pending the completion of expulsion procedures who have cash or valuable articles shall deposit them at their accommodation facilities and may receive them back upon exit. Accommodation facilities shall issue deposit books or cards to monitor deposited cash for expelled foreigners pending the completion of expulsion procedures for use for daily activities instead of cash.
4. Meetings:
a/ While staying at accommodation facilities, expelled persons pending the completion of expulsion procedures may meet their relatives or lawful representatives in meeting rooms within the accommodation facilities. They may have such meetings once a week, each meeting lasting for 4 (four) hours at most;
b/ While staying at accommodation facilities, expelled foreigners pending the completion of expulsion procedures who properly observe internal regulations of the accommodation facilities may meet their spouses in separate rooms within the accommodation facilities once a week, each lasting no more than 24 (twenty-four) hours;
c/ Managers of accommodation facilities may decide to permit relatives to meet expelled foreigners staying at their facilities pending the completion of expulsion procedures;
d/ When permitted to meet their relatives, expelled foreigners pending the completion of expulsion procedures may receive letters, cash and articles according to regulations. Accommodation facilities shall check letters, cash and articles before they are brought into the facilities.
Relatives shall strictly observe Vietnamese laws and internal rules and regulations of meeting rooms and the guidance of officers of accommodation facilities.
5. Medical examination and treatment:
a/ While staying at accommodation facilities, expelled foreigners pending the completion of expulsion procedures who get ill will be examined and treated at clinics within the accommodation facilities. If suffering a serious disease beyond the treatment capacity of the clinic of the facility, the Immigration Department or provincial-level Public Security Department that has made the dossier of request for expulsion shall take such person to a health center for treatment and at the same time notify it to the Ministry of Foreign Affairs (the Consular Department or Ho Chi Minh City Foreign Affairs Department) for notification to the diplomatic mission or consulate of the country of his/her citizenship;
b/ If an expelled foreigner pending the completion of expulsion procedures at an accommodation facility is going to have a delivery, the accommodation facility shall take her to a local health center for delivery;
c/ Accommodation facilities shall coordinate with hospitals and immigration divisions of provincial-level Public Security Departments of localities where the facilities are located in managing foreigners during medical treatment or delivery at hospital.
6. For children of expelled foreigners pending the completion of expulsion procedures staying together with their parents at accommodation facilities:
Under-16 children of expelled foreigners pending the completion of expulsion procedures staying together with their parents at accommodation facilities shall be arranged lying areas in the same rooms with their parents at the accommodation facilities suitable to practical conditions and their age and gender. Their regimes of food, clothing, medical examination and treatment and burial expenses are the same as those for adults. On June 1 and Mid-Autumn Festival, they are entitled to a ration double that for ordinary days; if getting sick, they are entitled to medical examination and treatment; if they die, their burial expenses are the same as those for adults.
Article 32. Settlement of cases in which expelled foreigners die pending the completion of expulsion procedures
1. In case a foreigner dies pending the completion of expulsion procedures, the general director of the Immigration Department or the director of the provincial-level Public Security Department which has compiled the dossier of request for expulsion shall immediately notify the competent investigative agency and procuracy and the agency or organization being the Vietnamese partner (if any), at the same time notify the Ministry of Foreign Affairs (the Consular Department or the Foreign Affairs Department of Ho Chi Minh City) for further notification to the diplomatic mission or consulate of the country of the foreigner’s citizenship for coordinated settlement.
2. The body of a foreigner who dies pending the completion of expulsion procedures to his/her native country must be sent and expenses for the funeral and sending must be borne by his/her relatives or family or the agency or organization where he/she works or studies or the diplomatic mission or consulate of the country of his/her citizenship.
3. In case the above activity cannot be carried out according to these methods, the Immigration Department or the provincial-level Public Security Department which has compiled the dossier of request for expulsion shall carry out this activity.
Article 33. Settlement of cases in which foreigners subject to expulsion resist, abscond or refuse to comply with expulsion decisions
1. To apply the measures specified in Article 29 of this Decree.
2. To escort them to designated places or accommodation facilities for management and supervision or force them to leave Vietnam.
Chapter IV
RESPONSIBILITIES OF STATE AGENCIES IN THE TEMPORARY CUSTODY AND ESCORTED TRANSFER OF PERSONS ACCORDING TO ADMINISTRATIVE PROCEDURES AND APPLICATION OF THE SANCTION OF EXPULSION
Article 34. Responsibilities of the Ministry of Public Security
1. To assist the Government in supervising, inspecting and urging the implementation of this Decree.
2. To direct the public security units and local public security agencies to manage expelled foreigners pending the completion of expulsion procedures; to organize expulsion according to decisions; to deliver expelled foreigners to the immigration agency upon request; at the same time coordinate with related agencies in ensuring that expelled foreigners can exercise their rights and perform their obligations.
3. To examine, inspect and settle complaints and denunciations about the application of the measure of temporary custody and escorted transfer of persons according to administrative procedures, and organize the execution of expulsion decisions.
Article 35. Responsibilities of the Ministry of Foreign Affairs
1. To settle all foreign-relation procedures related to the execution of expulsion decisions and other procedures related to foreigners who are held in temporary custody and subject to escorted transfer according to administrative procedures.
2. To share and provide relevant information to foreign authorities, diplomatic missions and consulates of countries of persons bearing their passports or passport substitute papers who are held in temporary custody and subject to escorted transfer according to administrative procedures or to expulsion.
3. To direct provincial-level Foreign Affairs Departments to coordinate with functional agencies, diplomatic missions and consulates of countries of persons bearing their passports or passport substitute papers who are held in temporary custody according to administrative procedures or subject to expulsion (in case they die) for settlement.
Article 36. Responsibilities of the Ministry of Finance
To assure funding for the application of the measures of temporary custody and escorted transfer of persons according to administrative procedures and the application of the sanction of expulsion according to assigned plans included in the annual budget estimates of the Ministry of Public Security.
Article 37. Responsibilities of the Ministry of Health
1. To direct and guide health agencies and attached hospitals to provide medical examination and treatment and health checks for persons held in temporary custody according to administrative procedures and foreigners subject to expulsion in case they are seriously ill and need treatment in accordance with Clause 1, Article 9 and Clause 5, Article 31 of this Decree.
2. To guide the grant of health certificates to foreigners subject to expulsion in case they are seriously ill and need treatment in accordance with Point a, Clause 5, Article 31 of this Decree.
Article 38. Responsibilities of provincial-level People’s Committees
Provincial-level People’s Committee shall, within the scope of their tasks and powers, coordinate with related ministries and sectors in directing local functional agencies in applying the measures of temporary custody and escorted transfer according to administrative procedures and the sanction of temporary custody.
Article 39. Responsibilities of agencies, organizations and individuals inviting foreigners to Vietnam or applying for visas for foreigners who are subject to expulsion
1. To coordinate with functional agencies in applying the sanction of expulsion.
2. To bear all expenses or provide financial guarantee in case expelled foreigners are unable to pay all expenses in Vietnam according to Vietnamese law.
Chapter V
IMPLEMENTATION PROVISIONS
Article 40. Effect
This Decree takes effect on November 17, 2013, and replaces the Government’s Decree No. 97/2006/ND-CP of September 15, 2006, providing the application of the sanction of expulsion according to administrative procedures; Decree No. 15/2009/ND-CP of February 13, 2009, amending and supplementing a number of articles of Decree No. 97/2006/ND-CP; Decree No. 162/2004/ND-CP of September 7, 2004, promulgating the Regulation on temporary custody of persons according to administrative procedures and Decree No. 19/2009/ND-CP of February 19, 2009, amending and supplementing a number of articles of Decree No. 162/2004/ND-CP.
Article 41. Implementation responsibilities
1. The Minister of Public Security shall base itself on his/her functions and tasks to detail this Decree.
2. The Ministers of Public Security; National Defense; Finance; Industry and Trade; Agriculture and Rural Development; Transport; Foreign Affairs; and Health shall regularly direct, guide and examine the temporary custody and escorted transfer of persons according to administrative procedures, and apply the sanction of expulsion under their respective management.
3. Ministers, heads of ministerial-level agencies, heads of government-attached agencies and chairpersons of provincial-level People’s Committees shall implement this Decree.-
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Prime Minister |
(Signed) |
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Nguyen Tan Dung |