Decree 142/2021/ND-CP expulsion and temporary custody and escorted transfer of violators, management of foreign violators

DECREE

Providing the expulsion sanction, measure of holding persons in custody, escort of violators according to administrative procedures and management of foreigners who violate Vietnam’s law pending the completion of expulsion procedures^[1]

Pursuant to the June 19, 2015 Law on Organization of the Government; and the November 22, 2019 Law Amending and Supplementing a Number of Articles of the Law on Organization of the Government and the Law on Organization of Local Administration;

Pursuant to the November 21, 2007 Law on Domestic Violence Prevention and Control;

Pursuant to the June 16, 2014 Law on Entry, Exit and Residence of Foreigners in Vietnam and the November 25, 2019 Law Amending and Supplementing a Number of Articles of the Law on Entry, Exit and Residence of Foreigners in Vietnam;

Pursuant to the June 20, 2012 Law on Handling of Administrative Violations; and the November 13, 2020 Law Amending and Supplementing a Number of Articles of the Law on Handling of Administrative Violations;

At the proposal of the Minister of Public Security;

The Government promulgates the Decree providing the expulsion sanction, measure of holding persons in custody, escort of violators according to administrative procedures, and management of foreigners who violate Vietnam’s law pending the completion of expulsion procedures.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree provides:

1. Subjects of application, procedures for applying the expulsion sanction; rights and obligations of persons subject to the expulsion sanction; measures to manage foreigners who violate Vietnam’s law pending the completion of expulsion procedures and responsibilities of agencies and organizations in executing the expulsion sanction.

2. Subjects of application, procedures for holding persons in custody and escorting violators according to administrative procedures; cases of applying the measure of holding of persons in custody or escort of violators according to administrative procedures; rights and obligations of persons subject to the measure of holding in custody or escort according to administrative procedures.

3. Other issues related to the application of the expulsion sanction and the measure of holding persons in custody or escort of violators according to administrative procedures.

Article 2. Subjects of application

This Decree applies to:

1. Persons who commit administrative violations and are held in custody according to administrative procedures as specified in Article 16 of this Decree.

2. Persons who commit violations and are escorted under Article 124 of the Law on Handling of Administrative Violations.

3. Foreigners who commit violations of Vietnam’s law and, according to the law on handling of administrative violations, are subject to expulsion under Article 27 of the Law on Handling of Administrative Violations.

4. Persons competent to apply the expulsion sanction defined in Article 39 of the Law on Handling of Administrative Violations; persons competent to hold persons in custody according to administrative procedures defined in Article 123 of the Law on Handling of Administrative Violations; and competent persons on official duty performing the escort of violators defined Clause 2, Article 124 of the Law on Handling of Administrative Violations.

5. Other agencies, units and organizations involved in the application of the expulsion sanction, measure of holding persons in custody, escort of violators according to administrative procedures and management of foreigners who violate Vietnam’s law pending the completion of expulsion procedures.

Article 3. Principles of application

1. The holding of persons in custody according to administrative procedures and the application of the expulsion sanction must ensure the right principles, right subjects, and right procedures, competence and time limits specified 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 held in custody or escorted according to administrative procedures and persons subject to the expulsion sanction are prohibited.

3. The holding of persons in custody, escort of violators according to administrative procedures, and application of the expulsion sanction must comply with Article 122 and Article 124 of the Law on Handling of Administrative Violations.

Article 4. Funding

1. Funds to ensure the application of the measure of holding persons in custody or escort of violators according to administrative procedures and application of the expulsion sanction include:

a/ Expenses for the investment in, construction, repair and upgrading of facilities for holding persons in custody;

b/ Expenses for the purchase of utensils, vehicles, weapons, supporting tools and other conditions for the holding of persons in custody and escort of violators according to administrative procedures;

c/ Expenses for food, drinks, and medical examination and treatment for persons held in custody, expenses for burial of persons who die while being held in custody or being escorted, in case they themselves or their families cannot afford these expenses;

d/ Other expenses for the holding of persons in custody according to administrative procedures;

dd/ Expenses for preparation of dossiers of request for the application of the expulsion sanction, management of foreigners pending the completion of expulsion procedures, search for and pursuit of absconding expellees and execution of expulsion decisions.

2. Funds to ensure the application of the measure of holding persons in custody, escort of violators according to administrative procedures and application of the expulsion sanction shall be allocated from the state budget. The estimation, implementation and settlement of state budget funds must comply with the Law on the State Budget and guiding documents.

Chapter II

THE EXPULSION SANCTION AND MANAGEMENT OF FOREIGNERS WHO VIOLATE VIETNAM’S LAW PENDING THE COMPLETION OF EXPULSION PROCEDURES

Article 5. Subjects of application of the expulsion sanction

Foreigners who commit administrative violations within the territory, contiguous zone, exclusive economic zone or continental shelf of the Socialist Republic of Vietnam; or on board aircraft bearing Vietnamese nationality or seagoing vessels flying the Vietnamese flag shall, depending on the severity of their violations, be subject to the expulsion sanction prescribed in Article 27 of the Law on Handling of Administrative Violations.

Article 6. Competence to apply the expulsion sanction

Agencies and persons competent to apply the expulsion sanction are defined at Point dd, Clause 5, and in Clause 7, Article 39 of the Law on Handling of Administrative Violations.

Article 7. Rights and obligations of persons subject to the expulsion sanction

1. Persons subject to the expulsion sanction have the rights:

a/ To be informed of the reason for the expulsion, and receive the expulsion decision at least 48 hours before its execution;

b/ To request an interpreter when working with a competent agency or person;

c/ To enjoy the regimes specified in the Government’s Decree No. 65/2020/ND-CP of June 10, 2020, providing for the organization of, and regimes for persons staying at, accommodation establishments pending exit (below referred to as Decree No. 65/2020/ND-CP);

d/ To bring their lawful property out of Vietnam’s territory;

dd/ To lodge complaints and denunciations in accordance with the law on settlement of complaints and denunciations.

2. Obligations of the expellees:

a/ To fully comply with the contents stated in the decision on sanctioning of administrative violations that applies the expulsion sanction;

b/ To present their personal identification papers at the request of the immigration agency;

c/ To comply with Vietnam’s law and submit to the management by the public security agency pending the completion of expulsion procedures;

d/ To quickly fulfill all civil, administrative and economic obligations (if any) as prescribed by law;

dd/ To complete the necessary procedures in order to leave Vietnam’s territory.

Article 8. Dossiers of request for application of the expulsion sanction

1. Within 2 working days, if the violation-detecting agency sees that the foreigner who commits the violation is eligible for the application of the expulsion sanction, it shall send documents, material evidences and means being seized (if any) related to the violation to the immigration agency of the provincial-level Public Security Department of the locality where the foreigner registers permanent residence or temporary residence or where the violation occurs for the latter to compile a dossier of request for application of the expulsion sanction. For violations detected by central agencies or professional units of the Ministry of Public Security, the violation files shall be sent to the Vietnam Immigration Department for preparation of dossiers of request for application of the expulsion sanction.

2. Within 3 working days after receiving the violation files, the immigration agency of the provincial-level Public Security Department or the professional division of the Vietnam Immigration Department shall complete the dossier of request for application of the expulsion sanction. The dossier must comprise:

a/ A summary of the personal details and the violation act of the person proposed for application of the expulsion sanction;

b/ The written record on the administrative violation of the person proposed for application of the expulsion sanction;

c/ Documents and evidences of the administrative violation;

d/ Documents on the administrative sanctions already applied (for repeated violations or recidivism);

dd/ A written request for application of the expulsion sanction.

3. The compilation of a dossier of request for application of the expulsion sanction to foreigners committing administrative violations as an additional sanction under Clause 2, Article 21 of the Law on Handling of Administrative Violations must comply with Clauses 1 and 2 of this Article.

Article 9. Decisions on application of the expulsion sanction

1. Within 2 working days after receiving the written request for application of the expulsion sanction from the immigration agency of the provincial-level Public Security Department or the professional section of the Vietnam Immigration Department, the director of the provincial-level Public Security Department or the Director of the Vietnam Immigration Department shall consider and issue a decision on application of the expulsion sanction to the foreigner who commits an administrative violation. If the conditions for application of the expulsion sanction are not fully met, such shall be immediately notified to the violation-detecting agency.

2. A decision on application of the expulsion sanction must have the following details:

a/ Place and date of issuance of the decision;

b/ Legal grounds for issuing the decision;

c/ The written record on the administrative violation, verification results, written explanations of the person proposed for application of the expulsion sanction;

d/ Full name and position of the decision issuer;

dd/ Full name, date of birth, citizenship, occupation, number of passport or passport substitution paper of the person subject to the expulsion sanction;

e/ The administrative violation of the person subject to the expulsion sanction; aggravating circumstances, extenuating circumstances;

g/ Applicable articles and clauses of legal documents;

h/ Principal sanction, additional sanction, remedial measures (if any);

i/ The right to lodge complaints and initiate a lawsuit against the decision;

k/ Effect of the decision; time limit for execution of the decision; the place where the violator will be expelled to; the place of execution of the decision; mandatory place of residence of the foreigner pending the completion of expulsion procedures;

l/ Full name and signature of the decision issuer;

m/ The agency responsible for organizing the execution of the decision.

3. Before being executed under Article 84 of the Law on Handling of Administrative Violations, the decision on application of the expulsion sanction shall be sent to the expellee and the Ministry of Foreign Affairs of Vietnam, the consular office or diplomatic mission of the country of which the expellee is a citizen or of the country where he/she last resided before coming to Vietnam. The expulsion decision shall be made in both Vietnamese and English.

4. A decision on application of the expulsion sanction to foreigners committing administrative violations as an additional sanction under Clause 2, Article 21 of the Law on Handling of Administrative Violations must comply with Clauses 1, 2 and 3 of this Article.

Article 10. Execution of decisions on application of the expulsion sanction

1. The public security agency and the person competent to apply the expulsion sanction shall organize the execution of the decision on application of the expulsion sanction and, at the same time, transfer all relevant files and papers, material evidences and means used in commission of the administrative violation (if any) to the agency receiving the decision on application of the expulsion sanction for execution of such decision in accordance with the Law on Handling of Administrative Violations.

2. For cases in which the person subject to the expulsion sanction deliberately refuses to receive the sanction decision, the competent person shall make a written record of such refusal and send it to the Ministry of Foreign Affairs of Vietnam and the consular office or diplomatic mission of the country of which the expellee is a citizen or of the country where he/she last resided before coming to Vietnam.

3. Foreigners subject to the expulsion sanction shall abide by the sanction decisions as prescribed in Clause 1, Article 73 of the 2012 Law on Handling of Administrative Violations.

4. The execution of decisions on application of the expulsion sanction to foreigners who commit administrative violations as an additional sanction under Clause 2, Article 21 of the Law on Handling of Administrative Violations must comply with the provisions of Clauses 1, 2 and 3 of this Article.

Article 11. Postponement of the execution of decisions on application of the expulsion sanction

1. The postponement of the execution of a decision on application of the expulsion sanction may be applied in the following cases:

a/ The violator has a serious illness, requiring emergency treatment, or for other health reasons, it is impossible to execute the decision on application of the expulsion sanction, certified by a hospital or district- or higher-level health establishment;

b/ The violator has to perform civil, administrative and economic obligations as prescribed by law.

2. Competence to issue decisions to postpone the execution of decisions on application of the expulsion sanction:

a/ At the proposal of the director of the provincial-level Public Security Department or the head of the foreigner management unit of the Vietnam Immigration Department or the head of the professional section of the Vietnam Immigration Department of the Ministry of Public Security, the Director of the Vietnam Immigration Department of the Ministry of Public Security shall consider and issue a decision on postponement of the execution of the decision on application of the expulsion sanction for cases in which the Director of the Immigration Department of the Ministry of Public Security is competent to issue expulsion decisions;

b/ At the proposal of the head of the immigration unit, the director of the provincial-level Public Security Department shall consider and issue a decision on postponement of the execution of the decision on application of the expulsion sanction in cases in which directors of provincial-level Public Security Departments are competent to issue expulsion decisions.

3. The postponement of the execution of the decisions on application of the expulsion sanction to foreigners committing administrative violations as an additional sanction under Clause 2, Article 21 of the Law on Handling of Administrative Violations must comply with Clauses 1, 2 and 3 of this Article.

4. When the postponement conditions end, the decision on application of the expulsion sanction shall continue to be executed.

Article 12. Dossiers for application of the expulsion sanction

1. A dossier for application of the expulsion sanction must comprise:

a/ The decision on application of the expulsion sanction;

b/ The written record on the administrative violation;

c/ The dossier of request for application of the expulsion measure as specified in Article 8 of this Decree;

d/ A copy of the passport or another personal identification paper in substitution of the passport of the expellee;

dd/ Papers certifying that other obligations have been fulfilled (if any);

e/ Other relevant documents.

2. The immigration agency of the provincial-level Public Security Department or the professional division of the Vietnam Immigration Department of the Ministry of Public Security shall compile a dossier for application of the expulsion sanction under Clause 1 of this Article.

3. Dossiers for application of the expulsion sanction to foreigners committing administrative violations as an additional sanction under Clause 2, Article 21 of the Law on Handling of Administrative Violations must comply with Clauses 1, 2 and 4 of this Article.

4. Dossiers for application of the expulsion measure shall be numbered and archived at a competent agency.

Article 13. Management of foreigners who violate Vietnam’s law pending the completion of expulsion procedures

1. The head of the professional division of the Vietnam Immigration Department, the head of the immigration division of the provincial-level Public Security Department (which compiles the dossier of request for expulsion) shall propose the director of the Vietnam Immigration Department or the director of the provincial-level Public Security Department to decide to apply management measures to foreigners pending the completion of expulsion procedures.

2. Foreigners who violate Vietnam’s law pending the completion of expulsion procedures shall be subject to management measures in the following cases:

a/ When there are grounds to believe that, unless necessary management measures are taken, they may evade or hinder the execution of the expulsion decision;

b/ To prevent them from committing other illegal acts.

3. Measures to manage foreigners who violate Vietnam’s law pending the completion of expulsion procedures

a/ To restrict their movement;

b/ To designate places of residence for them;

c/ To temporarily seize their passports or other personal identification papers in substitution of their passports.

4. The application of measures to manage foreigners who violate Vietnam’s law shall be clearly stated in the decision on application of management measures to foreigners who violate Vietnam’s law pending the completion of expulsion procedures, which must have the following details:

a/ Place and date of issuance of the decision;

b/ Full name and position of the decision issuer;

c/ Full name, date of birth, citizenship, occupation, number of passport or passport substitution paper of the person subject to management measures;

d/ Management measure (specify the measure);

dd/ Effect of the decision; time limit for application of the decision; scope and location of the movement restriction (for the measure specified at Point a, Clause 3 of this Article); mandatory place of residence of the person subject to the management measure (for the measure specified at Point b, Clause 3 of this Article); reasons for temporary seizure of the passport or another personal identification paper in substitution for passport (for the measure specified at Point c, Clause 3 of this Article);

e/ Full name and signature of the decision issuer;

g/ The agency responsible for organizing the execution of the decision.

5. The designation of a place of residence for foreigners who violate Vietnam’s law pending the completion of expulsion procedures is provided as follows:

a/ Staying at an accommodation establishment managed by the Ministry of Public Security;

b/ Staying at another accommodation establishment designated by the Ministry of Public Security.

6. The application of the measure to compel foreigners who violate Vietnam’s law pending the completion of expulsion procedures to stay at accommodation establishments managed or designated by the Ministry of Public Security shall be carried out in the following cases:

a/ Foreigners who violate Vietnam’s law pending the completion of expulsion procedures do not have passports or passport substitution papers, or when the necessary conditions for carrying out the expulsion are not fully met (air fares, visas, passports or passport substitution papers, etc.);

b/ Foreigners have no place of residence or their permitted residence period has expired;

c/ Foreigners fall into one of the cases specified in Clause 2 of this Article or fail to comply with management and supervision measures of competent agencies;

d/ Foreigners commit illegal acts or there are grounds to believe that foreigners may commit illegal acts pending exit;

dd/ Foreigners commit an act of absconding or preparing to abscond or other acts that obstruct the execution of the expulsion decision;

e/ Foreigners suffer an infectious disease prescribed in the law on prevention and control of infectious diseases, requiring medical isolation;

g/ Foreigners suffer a mental illness or another disease that causes loss of cognitive ability or ability to control behaviors;

h/ Foreigners voluntarily request for stay at an accommodation establishment.

7. It is prohibited to use facilities for holding persons in custody according to administrative procedures, criminal custody houses, detention camps or prisons to manage foreigners who violate Vietnam’s law pending the completion of expulsion procedures.

Article 14. Regimes applicable to foreigners who violate Vietnam’s law pending the completion of expulsion procedures

1. The stay regimes applicable to foreigners subject to the expulsion sanction pending the completion of expulsion procedures must comply with Chapter II of Decree No. 65/2020/ND-CP.

2. Payments for foreigners staying at accommodation establishments must comply with Decree No. 65/2020/ND-CP.

a/ In case an expellee is unable to pay, the Vietnam Immigration Department of the Ministry of Public Security or the provincial-level Public Security Department (which compiles dossiers for his/her management) shall request payment by the diplomatic mission or consular office of the country of which he/she is a citizen or the agency, organization or individual that invites him/her to visit Vietnam or applies for a visa extension for him/her.

b/ In case the above individuals, agencies or organizations do not have conditions and ability to pay, the Vietnam Immigration Department of the Ministry of Public Security or the provincial-level Public Security Department which compiles the dossier for management of the expellee shall make payments from the state budget.

Article 15. Responsibilities of the immigration agencies of the Ministry of Public Security

1. Responsibilities of the Vietnam Immigration Department of the Ministry of Public Security:

a/ To compile dossiers for execution of the decision on application of the expulsion sanction, each comprising: the decision on application of the expulsion sanction; a copy of the passport or a copy of another identification paper in substitution for the passport of the expellee; papers certifying that other obligations have been fulfilled (if any); and other relevant documents;

b/ To send the decision on application of the expulsion sanction, the decision on postponement of the execution of the decision on application of the expulsion sanction and the decision on application of measures to manage foreigners who violate Vietnam’s law pending the completion of expulsion procedures to the Ministry of Foreign Affairs for notification to the diplomatic mission or consular office of the country of which the expellee is a citizen and, at the same time, send a copy of the decision to the expellee for compliance;

c/ To collect and receive necessary information and documents for organizing the execution of the decision on application of the expulsion sanction;

d/ To coordinate with related agencies to ensure the exercise of the rights and performance of the obligations of the expellee;

dd/ To organize the expulsion according to the decision.

2. Responsibilities of provincial-level Public Security Departments which compile dossiers of request for application of the expulsion sanction:

a/ To compile dossiers for execution of the expulsion decision;

b/ To manage the expellees pending the compilation of the dossiers of request for application of the expulsion sanction according to Article 13 of this Decree;

c/ To hand over the expellees to the immigration agency upon request;

d/ To coordinate with the immigration agency in executing the decision on application of the expulsion sanction;

dd/ To coordinate with related agencies to ensure the exercise of the rights and performance of the obligations of the expellees.

Chapter III

HOLDING OF PERSONS IN CUSTODY ACCORDING TO ADMINISTRATIVE PROCEDURES

Article 16. Holding of persons in custody according to administrative procedures

The holding of persons in custody according to administrative procedures may only be applied in the following cases:

1. It is necessary to immediately prevent or stop acts of disrupting public order and inflicting injury to other persons.

2. It is necessary to immediately prevent or stop the acts of smuggling and illegally transporting goods across the border.

3. To execute decisions on consignment to reformatory, compulsory education institution or compulsory drug addiction treatment establishment.

4. Persons committing acts of domestic violence violate the decision on contact ban according to the law on domestic violence prevention and control.

5. To determine the state of drug addiction for illegal drug users.

Article 17. Competence to hold persons in custody according to administrative procedures

In the cases specified in Article 16 of this Decree, the persons competent to decide on the holding of persons in custody according to administrative procedures are those defined in Article 123 of the Law on Handling of Administrative Violations.

Article 18. Time limit for holding persons in custody according to administrative procedures

1. The time limit for holding persons in custody according to administrative procedures must comply with Clause 3, Article 122 of the Law on Handling of Administrative Violations.

2. The time limit for holding persons in custody according to administrative procedures shall be specified in the decisions on holding of persons in custody according to administrative procedures issued by the persons competent to issue decisions on holding of persons in custody according to administrative procedures.

3. The time limit for holding persons in custody according to administrative procedures, for persons to be held in border areas or remote mountainous areas or islands, shall be counted from the time the violator is  escorted to the place of custody.

Article 19. Decision on holding of persons in custody according to administrative procedures

1. In case there are sufficient grounds for holding persons in custody according to administrative procedures as prescribed in Article 16 of this Decree and it is deemed necessary to apply the measure of holding persons in custody according to administrative procedures to the person who has committed an illegal act, the person competent to hold persons in custody according to administrative procedures shall immediately issue a decision on holding such person in custody.

2. A decision on holding of a person in custody according to administrative procedures shall be made in two copies, one to be handed over to the person held in custody and the other to be kept in the custody dossier. Such decision must have the following details:

a/ Number of the decision; hour, minute, date, month, year of issuance of the decision;

b/ Full name, rank (if any), position, and agency or unit of the decision issuer;

c/ Grounds for issuing the decision, applicable articles and clauses of legal documents; reasons for custody;

d/ Full name, date of birth, place of birth, registered place of permanent residence (or temporary residence), occupation, place of work or study, personal identification number, number of citizen identity card (or people’s identity card) of the person held in custody; full name of the father, mother or guardian (if the person held in custody is a minor);

dd/ Citizenship, number of passport or a valid passport substitution paper (if the person held in custody is a foreigner);

e/ Custody period (length of time; starting time); place of custody;

g/ The rights to lodge complaints and denunciations and to initiate lawsuits about the issuance of the decision and the implementation of the measure of holding persons in custody according to administrative procedures as prescribed by law;

h/ Signature and agency seal of the decision issuer.

3. When there are grounds to believe that the illegal act of the person held in custody according to administrative procedures has signs of crime, the person who issues the custody decision shall immediately transfer the dossier and the person held in custody along with the material evidences and means used in violation commission (if any) to a competent criminal procedure-conducting agency for handling in accordance with law.

4. In all cases, the holding of persons in custody according to administrative procedures shall be decided in writing by a competent person. It is prohibited to hold persons without a written decision.

Article 20. Prolongation of the custody period

1. In case it is necessary to prolong the custody period as prescribed in Clause 3, Article 122 of the Law on Handling of Administrative Violations, before the expiration of the period of custody according to administrative procedures stated in the decision, the person competent to hold persons in custody shall issue a decision on prolongation of the custody period.

2. A decision on prolongation of the custody period must have the following details:

a/ Number of the decision; hour, minute, date, month and year of issuance of the decision;

b/ Full name, rank (if any), position, and agency or unit of the decision issuer;

c/ Grounds for issuing the decision, applicable clauses and articles of legal documents; reasons for prolonging the custody period;

d/ Full name, date of birth, place of birth, gender, registered place of permanent residence (or temporary residence), occupation, place of work or study, personal identification number, number of citizen identity card (or people’s identity card) of the person whose custody period is prolonged; full name of the father, mother or guardian (if the person held in custody is a minor);

dd/ Citizenship, number of passport or a valid passport substitution paper (if the person held in custody is a foreigner);

e/ Prolonged period of custody;

g/ The rights to lodge complaints and denunciations and initiate lawsuits about the decision and the implementation of this measure as prescribed by law;

h/ Signature and agency seal of the decision issuer.

3. The decision on prolongation of the custody period shall be made in two copies, one to be handed over to the person held in custody and the other to be kept in the custody dossier.

Article 21. Cancellation of application of the measure to hold persons in custody according to administrative procedures

1. The application of the measure of holding persons in custody according to administrative procedures may be cancelled when:

a/ The period of custody according to administrative procedures has expired;

b/ The person held in custody suffers a disease specified in Clause 1, Article 29 of this Decree;

c/ There are grounds to believe that the illegal act of the person held in custody according to administrative procedures has signs of crime;

d/ The grounds for custody according to administrative procedures have ended but the custody period stated in the custody decision has not yet expired.

2. Persons competent to issue custody decisions shall issue decisions to cancel the application of custody according to administrative procedures to persons held in custody. The decision on cancellation of the application of the measure of custody according to administrative procedures shall be made in two copies, one to be handed over to the person held in custody and the other to be kept in the custody dossier.

3. A decision on cancellation of the application of the measure of custody according to administrative procedures must have the following details:

a/ Number of the decision; place, hour, minute, date, month and year of issuance of the decision;

b/ Full name, rank (if any), position, and agency or unit of the decision issuer;

c/ Legal grounds for issuing the decision; applicable articles and clauses of legal documents;

d/ Reasons for cancellation;

dd/ Full name, date of birth, place of birth, registered place of permanent residence (or temporary residence), occupation, place of work or study, personal identification number, number of citizen identity card (or people’s identity card) of the person against whom the custody measure is canceled;

e/ Full name of the father, mother or guardian, if the person held in custody is a minor;

g/ Citizenship, number of the passport or a valid passport substitution paper (if the person held in custody is a foreigner);

h/ The rights to lodge complaints and denunciations and initiate lawsuits about the decision and the implementation of this measure as prescribed by law;

i/ Full name and signature of the decision issuer.

4. The decision on cancellation of the application of the measure of custody according to administrative procedures shall be recorded in the register for monitoring persons held in administrative custody with the signature of the person against whom the custody measure has been canceled. In case the person against whom the custody measure is cancelled refuses to sign for certification, the person who has issued the cancellation decision shall make a written record or assign the person who is directly performing the task of custody according to administrative procedures to make a written record clearly stating the reason therefor. The record must bear the signatures of the witness (if any), the person making the record and the person issuing the cancellation decision.

5. The person who issues the decision on cancellation of the application of the custody measure shall forward the dossier and hand over the person held in custody together the material evidences and means used in violation commission (if any) to a competent criminal procedure-conducting agency for settlement in accordance with law, for the case specified at Point c, Clause 1 of this Article.

Article 22. Places for custody

1. Places for custody of persons according to administrative procedures are specified in Clauses 5 and 6, Article 122 of the Law on Handling of Administrative Violations.

2. An administrative custody house or room must have a door lock, be lit, air-ventilated, clean and safe in terms of fire prevention and fighting, be convenient for supervision and guard. Persons held in custody overnight shall be provided with beds, mats, blankets and nets; the minimum sleeping space per person is 2 m².

3. The Minister of Public Security shall, pursuant to Article 122 of the Law on Handling of Administrative Violations and Article 22 of this Decree, take responsibility for the organization and arrangement of places for custody of persons according to administrative procedures and direct the designing and construction of places of administrative custody in accordance with law.

Article 23. Notification of custody decisions

1. The notification of decisions to hold persons in custody must comply with Clause 4, Article 122 of the Law on Handling of Administrative Violations. In case of failure to notify, it shall be informed to the person held in custody according to administrative procedures and the reason therefor shall be written in the register for monitoring persons held in administrative custody.

2. In case the person held in custody according to administrative procedures is a foreigner, the person who issues the custody decision shall immediately report it to the head of the superior competent agency for notification to the Ministry of Foreign Affairs for further notification to the consular office or diplomatic mission of the country of which the foreigner is a citizen and, at the same time, for coordination with the Ministry of Foreign Affairs in making arrangements for a representative of the consular office or diplomatic mission of that country to pay consular visits, if so requested, and coordination in handling other relevant external affairs.

Article 24. Receipt of persons held in custody according to administrative procedures

When receiving a person held in custody according to administrative procedures, the officer assigned to receive and manage such person shall:

1. Check and collate the custody decision against the person held in administrative custody.

2. Check and record the health status of the person held in custody according to administrative procedures.

3. Inspect the personal belongings which the person held in custody are allowed to carry; inform the rights and obligations of persons held in custody; regulations of the custody place and other relevant regulations.

4. Record the register for monitoring persons held in custody according to administrative procedures.

Article 25. Management of persons held in custody according to administrative procedures

Officers assigned with the task of managing persons held in custody according to administrative procedures shall constantly supervise, protect and look after them.

1. In case of discovering that a person held in custody has an injury, shows unusual psychological or health symptoms or behaviors, to make a written record on such person’s health status and immediately report thereon to the person competent to issue custody decisions for taking timely handling measures.

2. In case of detecting circumstances related to the violation case or detecting that a person held in custody is hiding weapons, explosives, supporting tools, material evidences and means used in violation commission, to make a written record on the detection of relevant circumstances and a written record on the seizure of such weapons, explosives, supporting tools, material evidences and means used in administrative violation.

3. Personal belongings and property of persons held in custody shall be deposited at the place of custody. The handover and receipt of the personal belongings and property for deposit shall be fully and specifically recorded in the register for monitoring persons held in custody according to administrative procedures and certified by the persons held in custody.

4. In case the deposited personal belongings and property of a person are in large quantities or of a great value, the officer assigned to manage them shall make a written record on the deposit of personal belongings and property, which must fully and specifically describe the quantity, type, code, form and conditions of the objects and other relevant matters. The record on property deposit shall be made in 2 copies, signed by the person held in custody and the person receiving the property for preservation, with 1 copy handed over to each party.

5. When the period of custody expires or the person held in custody according to administrative procedures moves to another place, the person held in custody may receive back all of the deposited personal belongings and property. In case of detecting any lost or damaged personal belongings or property deposited, the person held in custody has the right to request the agency holding him/her in custody to pay compensation in accordance with law.

Article 26. Handover and receipt of persons committing administrative violations

1. Persons competent to hold persons in custody according to administrative procedures shall make written records on handover and receipt of persons committing administrative violations with organizations or individuals escorting such persons or assigning officers on duty to make such records.

2. Immediately after making a written record on handover and receipt of a person committing an administrative violation, if deeming it necessary to hold the violator in custody according to administrative procedures, the person competent to issue decisions on custody according to administrative procedures shall immediately issue such a decision.

In case of having insufficient grounds or deeming it unnecessary to apply the measure of holding in custody according to administrative procedures, the person competent to hold persons in custody according to administrative procedures shall issue a decision to immediately release the concerned person and return his/her personal belongings and property, means and papers (if any) to him/her if these personal belongings, property and papers are not subject to the application of the measure of temporary seizure of material evidences and means of administrative violations.

3. A written record on handover and receipt of a person committing an administrative violation must have the following details:

a/ Full names, positions and addresses of the individuals or organizations that hand over and receive the person committing an administrative violation;

b/ Time of making the record (hour, minute, date, month and year);

c/ Place of making the record;

d/ Full name, address, personal identification number, number of citizen identity card (or valid people’s identity card) of the violator; time and place of violation commission;

dd/ Health status and attitude of the violator;

e/ Material evidences, personal belongings, property, means and papers (if any) and other circumstances related to the handover and receipt of the violator.

4. In case there is a witness and a person who suffers damage caused by the person committing the administrative violation, the written record must clearly state the following details:

a/ The facts that they have eye-witnessed and the damage caused by the person committing the administrative violation;

b/ Full names, addresses, personal identification numbers, numbers of citizen identity cards (or valid people’s identity cards) of the witness and the damage sufferer;

c/ If the witness or damage sufferer refuses to sign the record, the record maker shall write the reason therefor in the record.

5. The written record on handover and receipt of a person committing an administrative violation shall be made in 2 copies and read aloud to all persons expected to sign it, with each copy handed over to the receiving party and the handing party.

Article 27. Rights and obligations of persons held in custody

1. Persons held in custody have the following rights:

a/ To be informed of the application of the measure of custody according to administrative procedures;

b/ To be informed of the reason for being held in custody, the period of custody, and the place of custody; to lodge complaints about his/her custody;

c/ To request the person who has issued the decision on custody according to administrative procedures to notify the decision to his/her family or organization (where he/she works or studies) according to Clause 1, Article 23 of  this Decree;

d/ To be entitled to the food and drink regime specified in Article 28 of this Decree;

dd/ To receive medical treatment and care when suffering a disease specified in Article 29 of this Decree.

2. Persons held in custody have the following obligations:

a/ To strictly abide by their custody decisions, and the rules and regulations of the places of custody according to administrative procedures;

b/ To comply with requests and orders of the persons issuing the custody decisions and the persons assigned to manage and protect the custody places;

c/ Not to bring into the places of custody weapons, explosives, supporting tools, means, electronic devices with the transceiver function, harmful and toxic cultural products, alcohol, beer and other addictive substances or items that may affect order and safety of the places of custody.

Article 28. The food and drink regime for persons held in custody

1. In case a person held in custody or his/her family cannot afford, the agency or unit of the person competent to issue the decision on holding him/her in custody according to administrative procedures shall ensure the food and drink regime for him/her according to the standard amounts of 0.6 kg of ordinary rice; 0.1 kg of pork; 0.5 kg of vegetables and 1 liter of boiled drinking water per person per day; and fish sauce, salt and fuel in suitable amounts. This regime shall be funded by the state budget and converted into monetary value according to current market prices in each locality.

2. The regimes for persons held in custody on public holidays and New Year festivals are as follows:

a/ During the Lunar New Year festivals, persons held in custody shall be provided with additional food but the total of food amounts must not exceed 5 times the standard rates for ordinary days;

b/ On public holidays and solar New Year day, persons held in custody shall be provided with additional food but the total of food amounts must not exceed 3 times the standard rates for ordinary days;

c/ The agency in charge of custody may decide to change the amounts of food prescribed above to suit the reality and tastes of the persons held in temporary to ensure that they can consume all their food provided according to the prescribed standard amounts.

3. Agencies and units that have the function of holding persons in custody according to administrative procedures shall open records to monitor and pay for the food and drink regimes of persons held in custody in accordance with law.

Article 29. Persons held in custody according to administrative procedures falling sick or dying during the custody period

1. Handling of persons held in custody according to administrative procedures who fall sick:

a/ If falling sick during the custody period, persons held in custody according to administrative procedures shall be treated right at the places of custody;

b/ In case persons held in custody according to administrative procedures fall sick, requiring emergency medical treatment, the agency, unit and person directly managing them shall take them to a health establishment for treatment, and immediately notify it to their families or relatives for taking care of them;

c/ In case the family or relative of the person held in custody makes a written request for taking him/her home for care and the person competent to hold persons in custody considers it unnecessary to continue the custody as prescribed at Point a, Clause 1, Article 11, Points a, b and d, Clause 1, Article 21, of this Decree, such competent person may decide to cancel the custody and allow the person held in custody to go home for medical treatment. The cancellation of the custody measure in this case must comply with Clauses 2, 3, 4 and 5, Article 21 of this Decree;

d/ In case the person held in custody does not have a place of residence or his/her family or relative is far away and cannot come to take care of him/her in time, the agency or unit in charge of his/her custody shall be responsible for directly taking care of such person.

2. Handling of persons held in custody according to administrative procedures who die during the custody period:

a/ In case a person held in custody according to administrative procedures dies during the custody period, the person who issues the custody decision shall immediately notify the competent investigation agency or procuracy for settlement in accordance with law and, at the same time, make a written record of the death and immediately notify it to the family or relative of the deceased; the deceased’s family shall be responsible for the burial of the deceased;

b/ In case the person held in custody according to administrative procedures dies without a family or relative, the agency or unit in charge of his/her custody and the local administration of the place of custody shall organize the burial; burial expenses in this case shall be covered by the state budget in accordance with law;

c/ In case the deceased is a foreigner, the person competent to issue decisions on holding persons in custody according to administrative procedures shall immediately report it to the superior competent agency for prompt notification to the Ministry of Foreign Affairs or a competent state agency, and coordinate with the consular office or diplomatic mission of the country of which the deceased is a citizen for settlement.

3. A written record on the death of a person held in custody according to administrative procedures during the custody period must have the following details:

a/ Full name and date of birth of the person held in custody;

b/ Personal identification number, number of citizen identity card or people’s identity card/passport/relevant personal papers; place of custody;

c/ The health status of the person held in custody upon receipt;

d/ The process of handling the person held in custody from the time of receipt to his/her death;

dd/ The reason for the death of the person held in custody.

Chapter IV

ESCORT OF PERSONS ACCORDING TO ADMINISTRATIVE PROCEDURES

Article 30. Escort of violators

1. Violators who do not voluntarily comply with requests of competent persons without objective obstacles or force majeure circumstances shall be escorted in the following cases:

a/ Being held in custody according to administrative procedures;

b/ Being consigned or returned to reformatory, compulsory education institution, compulsory drug addiction treatment establishment according to Article 124 of the Law on Handling of Administrative Violations.

2. Competent persons on official duty defined in Article 31 of this Decree shall escort violators.

3. During the time of escort, the management of escorted persons must comply with Articles 25, 28 and 29 of this Decree.

Article 31. Performance of escort

The following persons on official duty shall escort violators according to administrative procedures:

1. Competent persons on official duty of the People’s Public Security Forces, Border Guard, Coast Guard, Customs, Forest Rangers, tax offices, market surveillance agencies, inspection agencies, and civil judgment enforcement agencies.

2. Other competent persons on official duty as prescribed in the Law on Handling of Administrative Violations and other relevant legal documents.

Article 32. Procedures for escort

1. Before escorting a violator, the person on official duty performing the escort shall inform the person being escorted of his/her rights and obligations during the escort in accordance with law, and answer the latter’s inquiries.

2. During escort, absolute safety shall be ensured for the person on official duty performing the escorting task and for the person being escorted. The use of weapons and supporting tools when applying the escort measure must adhere to the principles specified in Clause 4, Article 20 of the Law on Handling of Administrative Violations and this Decree.

3. In case the escorted person shows signs of absconding or acts against a person on official duty, the person on official duty performing the escorting task shall immediately report it to a competent person for issuance of a decision on holding such escorted persons in custody according to administrative procedures.

4. Persons on official duty performing the escorting task shall closely supervise and manage the escorted persons, be vigilant, proactively and promptly handle complicated situations that may arise; and may not arbitrarily deal with requests of the escorted persons during the escort.

Article 33. Handover and receipt of escorted persons

1. Persons on official duty performing the escort of violators shall make written records on handover and receipt of the escorted persons with the agency receiving the escorted persons.

2. The person on official duty performing the escort of a violator, when arriving at the place of escort, shall invite representatives of the local administration of the locality where the to-be-escorted person resides or is managed and of the agency or organization where the to-be-escorted person works or studies and a witness.

3. To check and collate photos and identification papers to identify the right violator to be escorted according to administrative procedures and make a written record on escort of violators according to administrative procedures.

4. Written records on handover and receipt of escorted persons shall be made according to Article 34 of this Decree.

Article 34. Written records on handover and receipt of escorted persons

A written record on handover and receipt of an escorted person must have the following details:

1. Time and place of making the record.

2. Full names, positions and addresses of the individuals or organizations handing over and receiving the escorted person; full name, address, personal identification number, number of citizen identity card, people’s identity card (if any) or another personal identification paper of the violator being escorted; his/her act of violation; time and place of violation commission; health status and attitude of the violator, material evidences, his/her property (if any) and other circumstances related to the escort; full name and address of the witness, if any.

3. A written record must bear the signatures of the escorted person-handing and -receiving parties, the escorted violator and the witness (if any); the person competent to hold persons in custody according to administrative procedures shall sign the record. In case the escorted violator or the witness refuses to sign the record, the record maker shall write the reason for their refusal in the record.

4. A written record on handover and receipt of an escorted administrative violator shall be made in 2 copies and read aloud to all persons expected to sign it; the escorted violator-handing and receiving parties shall each keep 1 copy.

Article 35. Handling of some circumstances arising during escort

1. In case an escorted person commits opposing acts; or an escorted person who is a minor curses or insults but does not attack by force, the person on official duty performing the escort shall explain the applicable legal provisions and ask him/her to comply with the decision; in case the escorted person commits an attack by force, the person on official duty performing the escort has the right to use force, tie and lock his/her hands and feet, use weapons and supporting tools in a lawful way to control and neutralize the opposing acts of the escorted person.

2. In case an escorted violator absconds, the person on official duty performing the escort may ask for help from surrounding persons in arresting him/her; in case it is impossible to immediately arrest the absconding violator, the person on official duty shall promptly report it to the head of his/her unit and contact the local administration of the place where the incident occurs in order to have a plan to track down the absconding violator; at the same time, make a written record on the absconding of the escorted person, to be signed by a witness; if there is no witness, the reason therefor shall be clearly stated in the record.

3. In case the escorted person develops an unexpected illness that requires prompt emergency treatment, the person on official duty performing the escort shall quickly take him/her to the nearest health establishment. The escort or transfer to a higher-level health establishment for further treatment shall be certified in writing by the health establishment about the health status of the escorted person and be reported immediately by the person on official duty performing the escort to his/her direct commander. During the emergency treatment period at the health establishment, the person on official duty performing the escort must have a plan to closely guard and supervise the violator, preventing him/her from absconding or free contact with other persons.

4. In case the escorted person dies unexpectedly, he/she shall be taken to the nearest health establishment and his/her death shall be immediately reported to the head of the unit of the persons on official duty performing the escort, the investigation agency and the procuracy of the locality where the incident occurs for carrying out the procedures prescribed by law.

5. In all cases of escorting violators, necessary logistical conditions shall be prepared and it is required to contact in advance the local administrations of the localities where the violators will be escorted to for management of the escorted violators.

Chapter V

RESPONSIBILITIES OF AGENCIES, ORGANIZATIONS AND INDIVIDUALS

Article 36. Responsibilities of the Ministry of Public Security

Within the ambit of its tasks and powers, the Ministry of Public Security has the following responsibilities:

1. To assist the Government in monitoring, inspecting and urging the implementation of this Decree.

2. To assume the prime responsibility for, and coordinate with related ministries, sectors and local People’s Committees in, organizing the application of the expulsion sanction, the measure of holding persons in custody and escort of violators according to administrative procedures and management of foreigners violating Vietnam’s law pending the completion of expulsion procedures.

3. To direct and guide the Public Security units and local Public Security agencies to apply the expulsion sanction, the holding of persons in custody and escort of violators according to administrative procedures; management of foreigners who violate Vietnam’s law and are expelled pending the completion of expulsion procedures; organize expulsion according to expulsion decisions; hand over the expellees to immigration agencies upon request; at the same time, coordinate with related agencies to guarantee the expellees’ rights and obligations.

4. To examine, inspect, settle complaints and denunciations about the application of the expulsion sanction, the measure of holding persons in custody, and escort of violators according to administrative procedures, and organizing the execution of expulsion decisions.

5. To collect statistics on the application and organization of the execution of expulsion decisions.

Article 37. Responsibilities of the Ministry of Foreign Affairs

1. To settle foreign-relation procedures related to the execution of the expulsion decisions and other relevant procedures applicable to foreigners being held in custody or escorted according to administrative procedures.

2. To exchange and provide relevant information to competent foreign authorities, consular offices and diplomatic missions of the countries where the holders of their passports or passport substitution papers are subject to custody, escort according to administrative procedures or the expulsion sanction.

3. To direct the foreign affairs agencies of provinces and centrally run cities to coordinate with related agencies, consular offices or diplomatic missions of the countries where the holders of their passports or passport substitution papers are held in administrative custody or expelled (in case of their death) for settlement.

Article 38. Responsibilities of the Ministry of Finance

To ensure regular funding for the application of the measures of holding persons in custody, escort of violators according to administrative procedures and application of the expulsion sanction in accordance with the law on the state budget.

Article 39. Responsibilities of the Ministry of National Defense

1. To direct and guide its attached agencies, units and forces in organizing the escort and custody of violators according to administrative procedures in accordance with this Decree and other relevant legal documents.

2. To coordinate with the Ministry of Public Security and other ministries and sectors in implementing and exchanging information relating to the expulsion, escort and custody of violators according to administrative procedures.

Article 40. Responsibilities of the Ministry of Health

To direct and guide its attached health agencies and hospitals in organizing medical examination, treatment, care and health assessment for persons subject to the expulsion sanction or custody according to administrative procedures and in case they fall seriously sick and require treatment.

Article 41. Responsibilities of the Ministry of Planning and Investment

To formulate and arrange plans on state budget funds for investment, construction and repair of places of custody according to administrative procedures and accommodation establishments under the management of the Ministry of Public Security for foreigners who violate Vietnam’s law pending the completion of expulsion procedures.

Article 42. Responsibilities of provincial-level People’s Committees

Provincial-level People’s Committees shall, within the ambit of their tasks and powers, coordinate with related ministries and sectors in directing related local agencies in applying the expulsion sanction and measures of holding persons in custody and escorting violators according to administrative procedures.

Article 43. Responsibilities of related agencies, organizations and individuals

1. To coordinate and cooperate with related agencies in applying the expulsion sanction.

2. To bear all costs or provide financial guarantee in case expellees have no financial capacity to pay expenses in accordance with Vietnam’s law.

Chapter VI

IMPLEMENTATION PROVISIONS

Article 44. Effect

This Decree takes effect on January 1, 2022.

This Decree replaces the Government’s Decree No. 112/2013/ND-CP of October 2, 2013, providing the expulsion sanction, the measure of holding in custody, escort of persons according to administrative procedures, and management of foreigners who violate Vietnam’s law pending the completion of expulsion procedures, and the Government’s Decree No. 17/2016/ND-CP of March 17, 2016, amending and supplementing a number of articles of the Government’s Decree No. 112/2013/ND-CP of October 2, 2013, providing the expulsion sanction, the measure of holding in custody, escort of persons according to administrative procedures, and management of foreigners who violate Vietnam’s law pending the completion of expulsion procedures.

Article 45. Implementation responsibility

1. 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 inspect the application of the expulsion sanction, the measure of holding persons in custody, escort of violators according to administrative procedures and management of foreigners who violate Vietnam’s law pending the completion of expulsion procedures falling within the scope of their respective management.

2. 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
PHAM MINH CHINH