Circular No. 09/2018/TT-BTP dated June 21, 2018 of the Ministry of Justice on criteria for determination of complex and typical legal aid cases

THE MINISTRY OF JUSTICE

Circular No. 09/2018/TT-BTP dated  June 21, 2018 of the Ministry of Justice on criteria for determination of complex and typical legal aid cases

Pursuant to the Law on Legal Aid dated June 20, 2017;

Pursuant to Government s Decree No. 144/2017/ND-CP dated December 15, 2017 on guidelines for the Law on Legal Aid;

Pursuant to Government s Decree No. 96/2017/ND-CP dated August 16, 2017 defining the functions, tasks, entitlements and organizational structure of the Ministry of Justice;

Pursuant to Decision No. 32/2016/QD-TTg dated August 8, 2016 of the Prime Minister on legal aid policies for poor people, ethnic minorities in poor districts, communes, severely disadvantaged villages for the period 2016-2020 and aids provided in complex and typical legal proceedings;

At the request of Director of Department of Legal Aid;

The Minister of Justice promulgates a Circular on criteria for determination of complex and typical legal aid cases.

Article 1. Scope of adjustment

This Circular sets forth criteria for determining legal proceedings, extrajudicial representation, legal counseling in legal aid, which is considered complex and typical.

Article 2. Subject of application

This Circular applies to the following entities:

1. State legal aid centers of provinces or central-affiliated cities (hereinafter referred to as provinces).

2. Departments of Justice and relevant entities.

Article 3. General criteria for legal proceedings

1. Legal aid is provided in legal cases, which have aroused public concern and have been reported by central and local news agencies.

2. A case where the point of view given by the legal aid-providing person differs from one of presiding agencies and is accepted toward in favor of the legally-aided person at judgments and decisions.

3. Legal aid is provided in a case where there are many materials and items of evidence in conflict or evaluation of items of evidence and application of laws by presiding agencies triggers off different opinions, or a case in conjunction with multiple areas of law.

4. Legal aid is provided in a case where an appeal is filed for further actions under appellate trial or re-trial.

5. Legal aid is provided in a case which relates to multiple provinces.

6. Legal aid is provided in a case where one of involved parties resides, studies or works abroad.

Article 4. General criteria for criminal proceedings

A criminal case in which legal aid is provided shall be considered complex and typical when it meets one of the following criteria:

1. Meet one of criteria prescribed in Article 3 of this Circular.

2. Legal aid is provided for suspects or defendants prosecuted with multiple counts in a case.

3. Legal aid is provided in a case which is under jurisdiction of the inferior presiding agency but the superior presiding agency takes over for handling or legal aid is provided in a case in which the period for trial preparation must be extended.

4. Legal aid is provided in a case in which dossiers are returned for re-investigation or further investigation.

5. Legal aid is provided in a case that the People’s Procuracy requests penalty of imprisonment for at least 2 years, except for cases tried under reduced procedures.

6. Legal aid is provided in a case where an advocate is appointed.

Article 5. Criteria for civil proceedings

A civil case in which legal aid is provided, except for civil matters and cases tried under reduced procedures, shall be considered complex and typical when it meet one of the following criteria:

1. Meet one of criteria prescribed in Article 3 of this Circular.

2. Legal aid is provided in a case where regulations and laws on matters to be settled in the case are unclear, without guidance on consistent application or without legislative documents that directly govern them.

3. Legal aid is provided in a case which is under jurisdiction of the inferior People’s Court but the superior People’s Court take over for handling or legal aid is provided in a case in which the period for trial preparation must be extended.

Article 6. Criteria for administrative proceedings

A civil case in which legal aid is provided, except for administrative matters and cases tried under reduced procedures, shall be considered complex and typical when it meet one of the following criteria:

1. Meet one of criteria prescribed in Article 3 of this Circular.

2. Legal aid is provided in a case arising in new area that there is no legislative document that directly governs it.

3. Legal aid is provided in a case that related to rights and interests of multiple people.

4. Legal aid is provided in prolonged claims/denunciations in terms of land management, land clearing and compensation or other areas of law at local

Article 7. Criteria for extrajudicial representation or legal counseling

A extrajudicial representation or legal counseling in which legal aid is provided shall be considered complex and typical when it meet one of the following criteria:

1. Legal aid is provided in a case with prolonged claim that has aroused wide public concern and has been reported by many central and local news agencies or in a case that the legal aid-providing organization requests agencies matters related to the case.

2. Legal aid is provided in a case that has been settled many times or settled by many competent authorities.

Article 8. Effect

1. This Circular takes effect on August 21, 2018.

2. Legal cases in which legal aid is provided shall be determined if they are complex or typical  before effective date of this Circular shall apply criteria prescribed in Decision No. 2662/QD-BTP dated December 29, 2016 of the Minister of Justice on criteria for complex and typical legal proceedings with legal aid in 2016 and 2017.

Article 9. Implementation organization

1. Director of Department of Legal Aid, Heads of units affiliated to the Ministry of Justice, Director of Department of Justice, Director of state legal aid center of provinces and relevant entities shall implement this Circular.

2. Department of Justice and state legal aid centers shall take responsibility for accuracy of application of criteria prescribed in this Circular.

3. Any difficulties arising in the course of implementation of this Circular should be reported to the Ministry of Justice for consideration./.

For the Minister

The Deputy Minister

Nguyen Khanh Ngoc