Joint Circular No. 02/2013/TTLT- VKSNDTC-TANDTC-BCA-BTP- BNG of August 16, 2013, guiding the receipt and transfer of files and material evidences of criminal cases for requesting foreign countries to continue to examine penal liability

 THE SUPREME PEOPLE’S PROCURACY - THE SUPREME PEOPLE’S COURT - THE MINISTRY OF PUBLIC SECURITY - THE MINISTRY OF JUSTICE - THE MINISTRY OF FOREIGN AFFAIRS

Joint Circular No. 02/2013/TTLT- VKSNDTC-TANDTC-BCA-BTP- BNG of August 16, 2013, guiding the receipt and transfer of files and material evidences of criminal cases for requesting foreign countries to continue to examine penal liability

Pursuant to the Law on Legal Assistance, which was passed on November 21, 2007, by the XIIth National Assembly of the Socialist Republic of Vietnam, at its 2nd session;

Pursuant to Articles 345 and 346 of the Penal Code, which was passed on November26, 2003, by the XIth National Assembly of the Socialist Republic of Vietnam, at its 4th session;

The Supreme People’s Procuracy, Supreme People’s Court, Ministry of Public Security, Ministry of Justice and Ministry of Foreign Affairs jointly guide the receipt and transfer of files and material evidences of criminal cases for requesting foreign countries to continue to examine penal liability of offenders as follows:

Chapter I GENERAL PROVISIONS

Article 1. Scope of regulation

This Joint Circular guides the conditions, principles, order and procedures for receipt and transfer of files and material evidences of criminal cases by competent Vietnamese procedure-conducting agencies to request foreign countries to continue to examine penal liability under Clause 1, Article 28 of the Law on Legal Assistance.

Article 2. Conditions for receipt and transfer of files and material evidences

The receipt and transfer of files and material evidences for requesting foreign countries to continue to examine penal liability must fully satisfy the following conditions:

1.   Persons requested to be further examined for penal liability are foreigners who had committed crimes in the Vietnamese territory and been investigated, prosecuted or adjudicated by competent Vietnamese procedure-conducting agencies but have absconded from Vietnam to countries of which they are nationals or other countries (countries where offenders are present, which are below referred to as foreign countries).

2.   Competent Vietnamese agencies have requested foreign countries to extradite absconding offenders to Vietnam but competent agencies of such countries refuse to do so.

Article 3. Principles of transfer of files and material evidences

The transfer of files and material evidences to request foreign countries to continue to examine penal liability of offenders must be carried out on the following principles:

1.   Respecting the independence, sovereignty and territorial integrity and assuring the political security of Vietnam;

2.   Complying with the Vietnamese Constitution and law and treaties to which Vietnam is a contracting party; and conforming with international practices.

3.   Keeping state secrets; observing the regime of confidentiality of information, documents and material evidences of cases.

4.   Causing no impacts on the examination of penal liability of other offenders in the same case or the settlement of other cases in Vietnam.

5.   Transferred documents and material evidences must be those indispensable for continued examination by competent foreign agencies of penal liability of offenders.

Article 4. Application of the principle of reciprocity

1.   In case Vietnam and a requested foreign country are not contracting parties to a treaty on legal assistance fn criminal justice, the Supreme People’s Procuracy shall send a written request enclosed with a file requesting the foreign country to continue to examine penal liability of an offender (below referred to as file) to the Ministry of Foreign Affairs for consideration and decision to request the foreign country to apply the principle of reciprocity.

2.   Within 10 working days after receiving a file, the Ministry of Foreign Affairs shall consider and make one of the decisions specified in Clause 3 or 4 of this Article. In case of necessity to consult the Supreme People’s Court, the Ministry of Public Security and the Ministry of Justice on the application of the principle of reciprocity, that time limit must not exceed 20 working days.

3.   In case of deciding to request the foreign country to apply the principle of reciprocity, the Ministry of Foreign Affairs shall send a diplomatic note, enclosed with the file, requesting the requested country to apply the principle of reciprocity through the Vietnamese representation in the requested country or the Vietnam-based representation of the requested country; and concurrently notify such to the Supreme People’s Procuracy.

Click download to view full text