Decree No. 120/2017/ND-CP dated November 06, 2017 of the Government on detailing a number of articles of the Law on Enforcement of Custody and Temporary Detention

DECREE

Detailing a number of articles of the Law on Enforcement of Custody and Temporary Detention[1]

Pursuant to the June 19, 2015 Law on Organization of the Government;

Pursuant to the November 25, 2015 Law on Enforcement of Custody and Temporary Detention;

Pursuant to the National Assembly’s Resolution No. 41/2017/NQ-QH1 of June 20, 2017, on the implementation of Penal Code No. 100/2015/QH13, which was amended and supplemented under Law No. 12/2017/QH14, and on the effect of Criminal Procedure Code No. 101/2015/QH13, Law No. 99/2015/QH13 on Organization of Criminal Investigation Bodies, and Law No. 94/2015/QH13 on Enforcement of Custody and Temporary Detention;

At the proposal of the Minister of Public Security;

The Government promulgates the Decree detailing a number of articles of the Law on Enforcement of Custody and Temporary Detention.

Chapter I

GENERAL PROVISIONS

Article1.Scope of regulation

This Decree prescribes in detail the regimes of meal, clothing and medical care (below collectively referred to as regimes) for persons held in custody or temporary detention; funds for ensuring the implementation of regimes for persons held in custody or temporary detention; funds for ensuring care for and raising of under-36 month children staying with their mothers in detention facilities; visits and meetings with and consular access to foreigners held in custody or temporary detention.

Article2.Subjects of application

This Decree applies to detention facilities under the Ministry of Public Security and Ministry of National Defense, foreign diplomatic missions and consular offices in Vietnam, persons held in custody or temporary detention, and agencies, organizations and individuals involved in the management and enforcement of custody and temporary detention.

Article3.Funds for ensuring the management and enforcement of custody and temporary detention and implementation of regimes for persons held in custody or temporary detention

Funds for the management and enforcement of custody and temporary detention; implementation of regimes for persons held in custody or temporary detention and care for and raising of under-36 month children staying with their mother in detention facilities prescribed in this Decree shall be allocated from the state budget according to the current decentralization of management of the state budget.

The management and use of state budget funds must comply with the Law on the State Budget and its guiding documents.

Chapter II

MEAL, CLOTHING AND MEDICIAL CARE FOR PERSONS HELD IN CUSTODY OR TEMPORARY DETENTION; CARE FOR AND RAISING OF UNDER-36 MONTH CHILDREN STAYING WITH THEIR MOTHERS IN DETENTION FACILITIES

Article 4. Food rations of persons held in custody or temporary detention

1. The monthly food ration of a person held in temporary detention includes 17 kg of medium-quality ordinary rice, 0.5 kg of medium-quality sugar, 15 kg of vegetables, 0.7 kg of meat, 0.8 kg of fish, 1 kg of salt, 0.75 liter of fish sauce, 0.1 kg of food seasoning, and fuel equivalent to 17 kg of firewood or 15 kg of coal, 45 kwh of electricity and 3 m³of water to meet eating, drinking and living needs of such person.

The food ration of a person held in custody shall be calculated daily based on the food ration of a person held in temporary detention.

The above rations shall be granted by the State in money equivalent according to the market price of the locality where a detention facility is based.

2. The food ration of a person held in custody or temporary detention who suffers an illness, a disease or an injury shall be decided by the head of the detention facility as prescribed by the health establishment treating that person but must not exceed twice the ordinary food ration.

3. A person held in custody or temporary detention who is pregnant or is raising a under-36 month child is entitled to the food ration applicable to other persons held in custody or temporary detention plus a 30% addition of the fish or meat ration. A person held in custody or temporary detention who gives birth to a child is entitled to payment of hospital fees and an allowance in kind equivalent to 30 kg of medium-quality ordinary rice.

4. In addition to the food ration prescribed in Clause 1 of this Article, a person held in custody or temporary detention may use gifts and deposited money to exchange for or purchase more food, which must not exceed 3 times the ordinary food ration.

5. The food ration for a foreigner held in custody or temporary detention is equal to that of a Vietnamese held in custody or temporary detention; in case a treaty to which the Socialist Republic of Vietnam is a contracting party provides otherwise, such treaty shall prevail; for a foreign relation-related reason, the food ration shall be decided by the head of the detention facility.

Article 5. Organization of kitchens to serve persons held in custody or temporary detention

1. A detention facility may organize a kitchen with sufficient utensils and tools for preserving food and foodstuff for cooking, provision of food rations and drinking water for persons held in custody or temporary detention suitable to the location, size and actual demand of the detention facility. The organization of kitchens in detention facilities must comply with the regulations on food rations and food safety and hygiene.

2. In case a detention facility cannot organize a kitchen due to its small size and the number of persons held in custody or temporary detention, it shall cook food for persons held in custody or temporary detention at the collective kitchen of the unit managing that detention facility.

Article6.Clothing and personal articles for persons held in custody or temporary detention

1. A person held in custody or temporary detention may use clothes, blankets, mats, mosquito nets and necessary personal articles. If he/she lacks these items, the detention facility shall lend him/her 1 mat, 1 personal mosquito net, 1 pair of slippers, 2 sets of long-sleeve shirts and long trousers, 1 jacket and 1 blanket (detention facilities from Da Nang city southward shall use knitted blankets, detention facilities from Thua Thien Hue province northward shall use cotton blankets with a weight of 2 kg at most).

A person held in custody may receive 1 toothbrush, ordinary toothpaste of 20g at most and 1 face towel.

A person held in temporary detention may receive 1 toothbrush, ordinary toothpaste of 100g at most for use in 2 months, 1 face towel for use in 4 months, and 0.3 kg of detergent/month.

A woman held in custody or temporary detention may additionally receive articles necessary for personal hygiene with a value equivalent to 2 kg of medium-quality ordinary rice per month.

3. Detention facilities shall lend persons held in custody or temporary detention non-numbered navy-blue uniforms of long-sleeve jacket and long drawstring trousers.

Article 7.Funds for medical examination and treatment, medical care and prevention of diseases and epidemics for persons held in custody or temporary detention

1. The funds for drugs for treatment of ordinary diseases for persons held in custody or temporary detention shall be equivalent to 2 kg of medium-quality ordinary rice/person/month.

2. The funds for medical examination and treatment for persons held in custody or temporary detention shall be based on the severity of their diseases and paid according to the health insurance regime. For a person held in custody or temporary detention suffering a dangerous disease, expenses for treatment of which exceed the payment norms under health insurance regulations, excessive amounts shall be covered by the state budget, unless relatives or lawful representatives of such person voluntarily pay treatment expenses.

3. Detention facilities shall pay actual expenses for medical examination and treatment for persons held in custody or temporary detention at clinics or hospitals in detention facilities, and state health establishments.

4. State medical examination and treatment establishments shall coordinate with local detention facilities in organizing medical examination and treatment for persons held in custody or temporary detention; build or arrange separate wards or rooms for medical examination and treatment for persons held in custody or temporary detention and on-duty rooms of managerial staff suitable to the conditions of medical examination and treatment establishments.

Article8.Care for and raising of under-36 month children staying with their mothers in detention facilities

1. Under-36-month children staying with their mothers in detention facilities are entitled to the food ration prescribed in Clause 3, Article 4 of this Decree and may have their food rations changed suitable to their needs; and shall be granted health insurance cards in accordance with the 2008 Health Insurance Law (as revised in 2014); and have the basic rights of children guaranteed in accordance with the 2016 Law on Children. On the International Children Day and the Mid-Autumn Festival, they are entitled to the food ration double the ordinary one. They shall be provided with milk and necessary articles for daily activities which are equivalent to 20 kg of medium-quality ordinary rice/child.

2. Under-36-month children staying with their mothers in detention facilities are entitled to medical care and vaccination under the Ministry of Health’s regulations. For a child suffering a dangerous disease, the treatment of which exceeds the capacity of the detention facility’s clinic, the detention facility shall carry out procedures for transferring that child to a state health establishment for treatment. The head of the detention facility shall decide on the transfer and escort of the child’s mother held in custody or detention to the health establishment to care for her child.3. The funds for the funeral of a under-36-month child staying with his/her mother in a detention facility who dies shall be provided as for persons held in custody or temporary detention who die.

Chapter III

FUNDS FOR ESCORT OF AND MEALS FOR TEMPORARILY TRANSFERRED PERSONS; FUNDS AND CONDITIONS FOR BURIAL OF PERSONS HELD IN CUSTODY OR TEMPORARY DETENTION WHO DIE

Article 9.Funds for escort of and meals for temporarily transferred persons

1. In case a person held in custody or temporary detention is escorted under a temporary transfer order for medical examination and treatment, forensic examination or forensic psychiatry; carrying out investigation, prosecution, trial and judgment execution activities; or implementation of a competent agency’s decision on transfer of the person held in custody or temporary detention to another detention facility, such person shall be entitled to a meal doubling that of a routine day.

2. In case of implementing an order on temporary transfer and escort of a person held in custody or temporary detention on means of transport, the escorting unit shall be entitled to payment of fare under the escort plan.

Article 10.Funds and conditions for burial of persons held in custody or temporary detention who die

1. When a person held in custody or temporary detention dies, funds for shrouding include a money amount for buying 1 coffin made of ordinary wood, 1 set of a long-sleeve shirt and a pair of trousers, 1 set of underwear, 4 m²of shrouding cloth, incense, candles, and alcohol for cleaning, and other expenses of a value equivalent to 100 kg of medium-quality rice.

2. A detention facility shall organize burial service for a person held in custody or temporary detention who dies in the form of burial or incineration.

3. In case a person held in custody or temporary detention dies and his/her relatives receive his/her corpse for burial, a money amount equivalent to 200 kg of medium-quality rice shall be provided as support for transportation of the corpse and burial cost.

4. People’s Committees at all levels shall reserve appropriate land areas for, and coordinate with detention facilities in organizing burial services and carrying out death declaration procedures prescribed by law for persons held in custody or temporary detention who die.

Chapter IV

ORGANIZATION OF VISITS AND MEETINGS AND CONSULAR ACCESS FOR FOREIGNERS HELD IN CUSTODY OR TEMPORARY DETENTION

Article 11.Identification of nationality of persons held in custody or temporary detention

1. In case a person held in custody or temporary detention declares that he/she is a foreigner, the agency settling the case shall send a written request to the Ministry of Foreign Affairs (the Consular Department) or the Department of Foreign Affairs of Ho Chi Minh City, for provinces and cities from Quang Nam province and Da Nang city southward) for certification of the nationality of such person and notify such to the agency currently settling the case and detention facility for coordinated management.

2. After receiving the written request from the agency settling the case, the Ministry of Foreign Affairs shall immediately notify such to the diplomatic mission or consular office of the country of which the person held in custody or temporary detention is a national for certification of his/her nationality and notify the result to the agency settling the case and detention facility.

Article 12.Visits and meetings with foreigners held in custody or temporary detention

1. Visits and meetings with foreigners held in custody or temporary detention must comply with Clauses 1 thru 4, Article 22 of the Law on Enforcement of Custody and Temporary Detention.

2. If a case involves complicated circumstances affecting security and order, the detention facility shall coordinate with the agency settling the case in considering and deciding on visits and meetings.

Article 13.Organization of consular access for foreigners held in custody or temporary detention

1. Consular access means that diplomats and consulates of diplomatic missions or consular offices of countries of which persons held in custody or temporary detention are nationals come to have consular access with such persons.

2. The Ministry of Foreign Affairs shall act as the focal point in receiving requests for consular access. Foreign diplomatic missions or consular offices that wish to have consular access to persons held in custody or temporary detention who are citizens of their countries shall send written requests to the Ministry of Foreign Affairs. Such a request must comprise:

a/ Name of the requesting diplomatic mission or consular office;

b/ Full name and nationality of the person held in custody or temporary detention to whom the diplomatic mission or consular office wishes to have consular access;

c/ The detention facility;

d/ Full names, positions, and serial numbers of passports or diplomatic cards of persons who come for consular access;

dd/ Full name of the interpreter (if any);

e/ Contents of consular access and other proposals (if any).

3. When there is a request for consular access, the Ministry of Foreign Affairs shall notify contents of consular access to the agency settling the case.

Within 2 working days after receiving the Ministry of Foreign Affairs’ notice of a request for consular access to the person held in custody or temporary detention, the agency settling the case shall assume the prime responsibility for, and coordinate with the detention facility in, giving a written reply on the approval of consular access  and send it to the Ministry of Foreign Affairs for notification to the requesting foreign diplomatic mission or consular office for the latter to work with the agency settling the case and detention facility in organizing the consular access.

If disapproving the consular access, the agency settling the case shall issue a written reply stating the reason for the Ministry of Foreign Affairs to notify such to the foreign diplomatic mission or consular office that requests consular access.

4. When requested, the agency settling the case shall coordinate with the detention facility in supervising and monitoring the consular access.

Article 14.Cases in which consular access is rejected

1. A person held in custody or temporary detention refuses consular access.

2. For an emergency reason to ensure security, order and safety of the detention facility.

3. Epidemics occur in the detention facility.

4. A person held in custody or temporary detention receives emergency aid or suffers a group-A contagious disease.

5. A person who comes for consular access breaches the rules of the detention facility.

6. A person held in custody or temporary detention breaches the rules of the detention facility and is subject to disciplining.

Article 15.Responsibilities of agencies in organizing consular access

1. The head of a detention facility shall organize consular access between the diplomatic mission or consular office and the foreigner held in custody or temporary detention, ensuring external relations requirements and lawful rights and interests of such person.

2. Competent agencies of the Ministry of Foreign Affairs shall coordinate with detention facilities in organizing consular access in accordance with regulations; when necessary, heads of detention facilities shall invite representatives of the Ministry of Foreign Affairs or of Vietnam Red Cross Society to join consular access.

Article 16.Responsibilities of officers supervising consular access

1. To receive letters of introduction and check passports or diplomatic cards of persons who come for consular access.

2. To notify regulations on consular access and health status of persons held in custody or temporary detention who are eligible for consular access.

3. To apply appropriate forms of supervising consular access and make minutes of consular access.

4. During a consular access, if a person who comes for consular access or a person held in custody or temporary detention breaches the rules of the detention facility, the supervising officer shall give a reminder or report such to the head of the detention facility for deciding to terminate consular access.

5. To propose response to recommendations (if any) of diplomatic missions or consular offices.

Article 17.Responsibilities of persons who come for consular access

1. To produce letters of introduction for consular access and passports or diplomatic cards; interpreters must have personal identification papers and shall be introduced by diplomatic missions.

2. To strictly observe the rules of the detention facility and implement only the contents of consular access stated in the request, and submit to monitoring and supervision by the detention facility or the agency settling the case.

The transfer of mails, gifts, money, books, newspapers and belongings during a consular access must comply with Clause 2, Article 27, and Article 29, of the Law on Enforcement of Custody and Temporary Detention.

3. To refrain from sending to persons held in custody or temporary detention objects banned from being brought into detention facilities or from contacting other persons in the area of consular access.

4. To strictly observe Vietnamese law, and refrain from saying words or making gestures that show support for illegal acts of persons held in custody or temporary detention.

5. During a consular access, to refrain from using video recorders, audio recorders, cameras or other technical devices without the consent of detention facilities.

6. To refrain from carrying out activities other than the contents of consular access.

Article 18.Time of consular access

1. A person held in custody shall be entitled to consular access once during the custody period and once during an extended custody period for no more than 1 hour.

2. A person held in temporary detention shall be entitled to consular access once a month during working hours for no more than 1 hour.

3. The increase of the number of consular access or increase of the number of persons eligible for consular access must be agreed by the agency settling the case.

Chapter V

IMPLEMENTATION PROVISIONS

Article 19.Effect

This Decree takes effect on January 1, 2018.

To annul the Government’s Decree No. 89/1998/ND-CP of November 7, 1998, promulgating the Regulation on custody and temporary detention; the Government’s Decree No. 98/2002/ND-CP of November 27, 2002, amending and supplementing a number of articles of the Regulation on custody and temporary detention; and the Government’s Decree No. 09/2011/ND-CP of January 25, 2011, amending and supplementing the regime of meal and medical examination and treatment for persons held in custody or temporary detention prescribed in Articles 26 and 28 of the Regulation on custody and temporary detention promulgated together with the Government’s Decree No. 89/1998/ND-CP of November 17, 1998.

Article 20.Implementation responsibility

The Minister of Public Security, Minister of National Defense, other ministers, heads of ministerial-level agencies, heads of government-attached agencies, and chairpersons of provincial-level People’s Committees shall implement this Decree.-

On behalf of the Government
Prime Minister
NGUYEN XUAN PHUC