Decree No. 53/2001/ND-CP dated August 23, 2001 of the Government guiding the enforcement of the residence ban and probation penalties

DECREE

GUIDING THE ENFORCEMENT OF THE RESIDENCE BAN AND PROBATION PENALTIES

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of September 30, 1992;

In order to ensure the enforcement of the residence ban and probation penalties specified in Articles 37, 38, 57 and 69 of the 1999 Penal Code and Articles 227, 235, 237 and 238 of the June 9, 2000 Criminal Procedure Code;

At the proposals of the Minister of Public Security and the Minister of Justice,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.-Residence ban is an additional penalty applicable to persons who are sentenced to imprisonment, prohibiting them from temporarily or permanently residing for between one year and five years in certain localities as from the date they have completely served their imprisonment sentences.

Probation is an additional penalty applicable to persons who are sentenced to imprisonment for infringing upon the national security, to dangerous recidivists or other cases provided for by the Penal Code, forcing them to reside, earn their living and reform themselves in a certain locality for between one year and five years after the date they have completely served their imprisonment sentences, under the supervision and education by the local administrations and people.

Article 2.-The People’s Committees of communes, wards and townships (hereinafter referred to as commune-level People’s Committees for short) that enforce the residence ban and probation penalties shall have to coordinate with Vietnam Fatherland Front and its members at the same level in closely managing, supervising, educating, helping and creating conditions for the convicted persons to earn their living, thereby preventing them from continuing to commit law violations, and to strictly implement the court judgments.

Article 3.-The residence ban and probation penalties must be enforced to the right subjects and in accordance with the provisions of the Penal Code, the Criminal Procedure Code and this Decree.

All acts of infringing upon the life, health, honor, dignity and property of the persons subject to residence ban or probation penalty (hereinafter referred to as persons subject to residence ban and probationers for short) are strictly forbidden.

Chapter II

ENFORCEMENT OF THE RESIDENCE BAN PENALTY

Section A. OBLIGATIONS AND RIGHTS OF PERSONS SUBJECT TO RESIDENCE BAN

Article 4.-

1. Persons subject to residence ban shall have the obligation:

a/ Not to reside in places banned under court decisions but to reside in other places;

b/ To present themselves to the commune-level People’s Committees of the places where they are allowed to reside, produce the certificates of their complete serving of imprisonment penalty and the prison’s written remarks on the results of their serving of imprisonment sentences;

c/ To strictly observe the policies and laws of the State and regulations of the administrations of the localities where they reside.

2. Persons subject to residence ban, who deliberately disobey the regulations on residence ban after necessary coercive measures have been applied, shall be examined for penal liability for non-execution of judgments under Article 304 of the Penal Code.

Article 5.-Persons subject to residence ban shall have the rights:

1. When having plausible reasons, to possibly get permission to travel to localities banned to them to visit their relatives or families who are living there or to their native places if they get the consent of the commune-level People’s Committees of such places; the duration of their stay shall be decided by the commune-level People’s Committees of the destination places but must not exceed five days each time.

2. To choose on their own will their residence places other than the places banned to them according to the provisions of law; not to be subject to any restrictions on their travel, occupation practicing or job doing provided that there are no other court judgments or decisions banning them from practicing such occupations or doing such jobs, and such occupations or jobs do not fall under conditional business lines and trades prescribed in the Government’s Decree No. 08/2001/ND-CP of February 22, 2001.

3. When deeming that they meet all the conditions prescribed in Article 6 of this Decree, to propose the commune-level People’s Committees of the places where they are residing to carry out the procedures to request the competent authorities to consider and exempt them from serving the residence ban for the remaining period according to law provisions.

Article 6.-

1. Persons subject to residence ban who meet all the following conditions may be considered for commutation of or exemption from serving the residence ban for the remaining period:

a/ Having served at least half of the residence ban duration;

b/ Having actively labored, studied, strictly observed the policies and laws of the State and regulations of the local administrations;

c/ It is so proposed by the presidents of the commune-level People’s Committees of the places where they are residing.

2. The exemption from the remaining residence ban duration shall be effected only after there are decisions of the People’s Courts of the districts where they reside.

3. Upon returning to the localities where they were previously banned from residing, the persons who enjoy exemption from the remaining residence ban duration must produce to the commune-level People’s Committees the court decisions exempting them from serving the residence ban for the remaining period.

Article 7.-Those who have completely served the residence ban penalty, including cases where they enjoy exemption from the remaining residence ban duration shall have the right to choose on their own will their residence places according to the provisions of law.

Section B. RESPONSIBILITIES OF THE AGENCIES ENFORCING THE RESIDENCE BAN PENALTY

Article 8.-

1. The agencies that enforce the residence ban penalty are the commune-level administrations of the places where the convicted persons come to reside.

2. Two months before the persons subject to residence ban completely serve their imprisonment penalty, the prison superintendents shall notify in writing the commune-level People’s Committees of the places where such persons shall come to reside and the district-level police offices of:

- The full names, ages and native places of the persons subject to residence ban;

- The date, when they shall have completely served their imprisonment penalty;

- Remarks on results of their serving of the imprisonment sentence;

- Duration of the residence ban and places banned from residence;

- Other necessary information for managing, educating and creating conditions for the persons subject to residence ban to earn their living and reform themselves.

Where the persons subject to residence ban have not yet decided on their residence places, the prison superintendents shall hand over the written remarks on the results of their serving of the imprisonment sentence to such persons and ask them to produce such remarks to the commune-level People’s Committees of the places where they will reside.

3. Dossiers of enforcement of the residence ban penalty compiled by the commune-level People’s Committees consist of:

- An extract or copy of the court judgment;

- A certificate of complete serving of the imprisonment penalty;

- Documents on the residence ban penalty-serving process;

- Other related materials.

Article 9.-The commune-level People’s Committees of the places where the persons subject to residence ban are not allowed to reside shall have the to:

1. Monitor and ban the persons subject to residence ban from permanently or temporarily residing in their localities during the time they are banned from residence therein.

2. When detecting persons subject to residence ban appear in their localities, check, make records thereof and force them to go out of the localities (except for cases specified in Clause 1, Article 5 of this Decree) and notify such to the commune-level People’s Committees which are managing them.

3. Receive and create conditions for the persons who have completely served the residence ban duration to earn their living.

Article 10.-The commune-level People’s Committees of the places where the persons subject to residence ban reside shall have to:

1. Receive, manage, educate and create conditions for such persons to earn their living, labor and study normally, help them become useful citizens of the society and notify such to the chief judges of the courts that have issued the judgment execution decisions.

2. When all conditions specified in Article 6 of this Decree are met, make written proposals or remarks attached with any relevant materials and send them to the district-level police offices for carrying out the procedures to transfer them to the district-level People’s Courts of the places where the persons subject to residence ban are serving their sentences for consideration and decision to commute or exempt these persons from serving the penalty in the remaining period.

3. The commune-level People’s Committees of the last places where the persons subject to residence ban reside shall have to issue certificates of their complete serving of the residence ban penalty to them and send copies thereof to the courts which have issued the judgment execution decisions, the district-level courts and polices office of the places where these persons will reside.

Chapter III

ENFORCEMENT OF THE PROBATION PENALTY

Section A. OBLIGATIONS AND RIGHTS OF PROBATIONERS

Article 11.-

1. Probationers shall have the obligation:

a/ To return to the localities which are mandated in the judgments to be their probation places immediately after they have completely served their imprisonment penalty, present themselves to the commune-level People’s Committees and produce the certificates of their complete serving of the imprisonment penalty;

b/ To submit to the management, supervision and education by the local administrations and people; not to leave their probation places without permission;

c/ Once in the first week of every month, to present themselves and report to the commune-level People’s Committees of their probation places on their observance of the probation regulations;

d/ When the People’s Committees of different levels request, to be present at the designated places and answer all related questions; in case of absence, there must be plausible reasons;

e/ To strictly observe the policies and laws of the State and regulations of the local administrations; to actively labor, study and reform themselves to become useful to the society.

2. Probationers who violate the probation regulations may be handled as follows:

a/ If, after having served their imprisonment penalty, they fail to present themselves to the commune-level People’s Committees on time without plausible reasons, the commune-level People’s Committees shall summon them up, make records thereof and force them to comply with the probation regulations;

b/ If they still deliberately disobey the probation regulations after necessary coercive measures have been applied, they shall be examined for penal liability for non-execution of judgements according to Article 304 of the Penal Code.

Article 12.-Probationers shall have the right:

1. To live together with their families in the localities where they are put on probation.

2. To select appropriate occupations or jobs, except for certain occupations and jobs banned under the court decisions and the conditional business lines and trades specified in the Government’s Decree No. 08/2001/ND-CP of February 22, 2001 and enjoy all labor yields they have generated according to the provisions of law.

3. To freely travel within the communes, wards or townships where they are put on probation.

4. To be considered for exemption from serving the remaining probation duration according to the provisions of Article 14 of this Decree.

Article 13.-

1. If they have plausible reasons, get the consent of the commune-level People’s Committees of the places where they serve their probation penalty and the written permission of the competent authorities specified in Clause 3 of this Article, the probationers may travel out of the communes, wards or townships where they are put on probation for a given period to settle personal matters.

2. The period during which the probationers are permitted to travel outside the localities where they are put on probation shall be decided by competent authorities but must not exceed five days each time.

3. The competence to grant permits to the probationers for travel outside the probation places is prescribed as follows:

a/ The presidents of the commune-level People’s Committees of the probation places grant permits for travel within the urban district, rural district, provincial town or city where the persons are put on probation;

b/ The heads of the district-level police offices grant permits for travel within the province or centrally-run city where the probation penalty is enforced or travel out of such territory only to an urban district, a rural district, town or provincial city of another province adjacent to the urban district, rural district, provincial town or city of the province where the persons are put on probation;

c/ The directors of the provincial-level police offices grant permits for travel out of the province or centrally-run city where the persons are put on probation, which is other than the case specified at Point b, Clause 3 of this Article.

4. Permits granted under the provisions of Clause 3 of this Article shall be valid for single travel. Where the probationers have to travel daily to a certain place outside the commune, ward or township for study, labor, medical treatment or other plausible reasons, they may be considered and granted permits with month-long validity.

5. When travelling outside the probation places, the probationers shall have to:

a/ Comply with the stipulations inscribed in the permit;

b/ Present themselves to the commune-level People’s Committees of the places where they visit, produce their permits and carry out the procedures for temporary residence registration according to regulations;

c/ Return to the localities where they are put on probation within the time limit inscribed in their permits and present themselves to the commune-level People’s Committees.

6. The probationers who travel outside the communes, wards or townships where they are put on probation without permit or violate the stipulations inscribed in their permits without plausible reasons shall be handled according to law provisions and this period shall not be included in the probation penalty-serving duration.

Article 14.-

1. The probationers who meet all the following conditions may be considered for exemption from serving the remaining probation period:

a/ Having served at least half of the probation period;

b/ Having shown sincere repentance, actively labored, studied and strictly observed the policies and laws of the State, regulations of the local administrations as well as the probation regulations;

c/ They are proposed by the presidents of the commune-level People’s Committees of their probation places.

2. The exemption from the remaining probation duration shall be effected only after there are decisions thereon issued by the district-level People’s Courts of the places where the judgments are served.

3. The persons who are exempt from the remaining probation period must produce to the commune-level People’s Committees of the places where they reside the court decisions to exempt them from the remaining penalty duration.

Section B. RESPONSIBILITIES OF THE AGENCIES ENFORCING THE PROBATION PENALTY

Article 15.-

1. The probation penalty-enforcing agencies are the commune-level administrations of the probation places.

2. Two months before the persons sentenced to probation fully serve their imprisonment penalty, the prison superintendents shall notify in writing the commune-level People’s Committees of the probation places and the heads of the district-level police offices of:

- The full names, ages and native places of the probationers;

- The date, when such persons shall have completely served their imprisonment penalty;

- Remarks on results of their serving of the imprisonment penalty;

- The probation duration;

- Other information necessary for the management, education and creation of conditions for the probationers to earn their living and reform themselves.

Article 16.-The commune-level People’s Committees of the probation places shall have to:

1. Receive and record in the monitoring book the probationers’ presentation; compile dossiers for managing and monitoring them.

2. Manage, educate and create conditions for the probationers to earn their living, study and reform themselves to become useful citizens of the society and report such to the chief judges of the courts that have issued judgment execution decisions.

3. Once every three months, give remarks, assess and make general reports on the judgment-serving process of the probationers and send them to the district-level police offices.

4. When deeming that all conditions prescribed in Article 14 of this Decree are met, make written proposals for the probationers to enjoy exemption from serving the remaining probation period, enclosed with related materials, if any, and send them to the district-level police offices to carry out the procedures for their transfer to the district-level police offices for consideration and decision according to law provisions.

5. Grant certificates of complete serving of the probation period to the probationers, made according to the set form.

The certificates of complete serving of the probation period shall be sent to the courts that have issued judgment execution decisions, the district-level courts and police offices of the probation places.

Article 17.-Each dossier of probation penalty enforcement compiled by the commune-level People’s Committee consists of:

a/ An extract or copy of the court’s judgment;

b/ A certificate of complete serving of the imprisonment penalty;

c/ Materials on the probation penalty-serving process;

d/ Other relevant materials.

Article 18.-The commune or ward police offices of the probation places shall have to assist the commune-level People’s Committees in the following tasks:

1. Grasping the situation and process of observance of the policies and laws and probation regulations by the probationers; handling violations of probation according to their competence.

2. Receiving and processing according to their competence information and reports denouncing law-breaking acts, supplied by the probationers.

3. Compiling personal dossiers of the probationers.

4. Coordinating with the local mass organizations and people in gathering relevant information and materials so as to propose on exemption from the remaining probation period according to law provisions.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 19.-Those who violate the provisions of this Decree shall, depending on the nature and seriousness of their violations, be disciplined, administratively sanctioned or examined for penal liability according to law provisions.

Article 20.-

This Decree takes effect 15 days after its signing. The previous regulations contrary to this Decree are hereby annulled.

2. The Ministry of Public Security shall have to supervise and urge the implementation of this Decree.

Article 21.-The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government, the presidents of the People’s Committees of the provinces and centrally-run cities as well as the concerned agencies shall have to implement this Decree.