VietnameseJoint Circular No. 09/TTLN guiding the application of article 96a and article 203 of the Criminal Code
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Joint Circular No. 09/TTLN guiding the application of article 96a and article 203 of the Criminal Code
| Issuing body: | Ministry of Home Affairs; People's Supereme Court; People's Supereme Procuracy | Effective date: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Official number: | 09/TTLN | Signer: | Le The Tiem; Pham Si Chien; Trinh Hong Duong |
| Type: | Joint Circular | Expiry date: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Issuing date: | 10/10/1996 | Effect status: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Fields: | Public order |
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THE MINISTRY OF THE INTERIOR THE SUPREME PEOPLE'S PROCURACY THE SUPREME PEOPLE'S COURT ------- | SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness ---------- |
No. 09-TTLN | Hanoi , October 10, 1996 |
THE INTER-BRANCH CIRCULAR
GUIDING THE APPLICATION OF ARTICLE 96A AND ARTICLE 203 OF THE CRIMINAL CODE
The Supreme People's Court, the Supreme People's Procuracy and the Ministry of the Interior have issued documents guiding the application of Article 96a and Article 203 of the Criminal Code. Those documents have actively contributed to the prevention and fight against drugs-related crimes. However, with the situation of drugs-related crimes becoming more and more complicated, concrete guidance has not yet been given to some issues while some other issues which have already received guidance are no longer suitable to the prevention to prevent and fight against drugs-related crimes and have thus caused difficulties and problems in the inspection, prosecution and trial of these crimes.
To respond to the requirements of the actual prevention and fight against drugs-related crimes in the present situation, the Supreme People's Court, the Supreme People's Procuracy and the Ministry of the Interior after consulting the Ministry of Public Health have reached agreement in giving the following guidance on the application of Article 96a and Article 203 of the Criminal Code:
A. ON NARCOTICS
1. Article 96a and Article 203 of the Criminal Code define the criminal liability for drugs-related crimes. The most common narcotics are:
The fruit of the opium poppy, the leaves, flowers and the fruit of marijuana, the leaves of coca and the products of these leaves, flowers and seeds such as opium, the resin and essence of marijuana (canabis), heroin, cocaine... as raw materials or processed products; habit-forming medicines such as morphin, codein, pethidin, dolargan, dolosan, amphetamin, methamphetamin, diazepam, seduxen, valium...; base substances such as ephedrin, pseudoephedrin, acetic anhydride... which are compounded into drugs.
In addition to the above-mentioned drugs, there are other drugs, other habit-forming medicines and other base substances which can be compounded into drugs as stipulated by the State.
2. If it is necessary, examination should be made to determine whether or not a substance is a narcotic or what kind of narcotic it is. If the substance examined is not a narcotic, but the person involved thought it was a narcotic, then he/she shall still be examined for his/her criminal liability according to Article 96a or Article 203 of the Criminal Code, depending on his/her specific violation.
B. ON ARTICLE 96A OF THE CRIMINAL CODE
I. THE CRIMINAL ACTS AND THE WAY OF HANDLING THEM:
1. The illegal production of narcotics as defined in this Circular is the processing of drugs from the fruit of the opium poppy, the leaves, flowers and fruit of marijuana, and the leaves of coca as well as the processing of one drug into another drug, which are contrary to the State’s stipulations.
2. The illegal storage of drugs is the illegal keeping of drugs at whatever place not for sale, and the person involved in this criminal act shall be examined for his/her criminal liability on the charge of "illegal storage of drugs". The time of storing drugs, whether it is long or short, has nothing to do with the definition of the crime. A person who stores drugs for another person and who knows the aim of that person is to illegally trade in drugs shall be examined for his/her criminal liability on the charge of being an accomplice (an assistant) in "illegal drug trafficking".
3. Illegal drug trafficking is the selling or buying, or storing of drugs to re-sell them illegally (it could be buying drugs for re-selling, or buying drugs to produce other drugs for re-selling); the illegal exchange of, or payment with, drugs shall also be regarded as illegal drug trafficking.
4. The illegal transportation of drugs is the illegal transfer of drugs from one place to another undertaken in whatever form not for trade, and the person involved in this crime shall be examined for his/her criminal liability on the charge of "illegal transportation of drugs". If a person who carries a drug for another person knows the aim of that person is to illegally trade in this drug, he/she shall be examined for his/her criminal liability on the charge of being an accomplice (an assistant) in "illegal drug trafficking".
Anyone who transports drugs across the border shall be examined for his/her criminal liability according to Article 96a of the Criminal Code; if he/she commits another crime, he/she shall be examined for his/her criminal liability according to the corresponding article of the Criminal Code on that crime.
5. Anyone who is responsible for managing habit-forming medicines, but who deliberately violates the regulations on the management of habit-forming medicines to illegally produce, trade in, store or transport habit-forming medicines, shall be examined for his/her criminal liability according to Article 96a of the Criminal Code; in addition, depending on each specific case, he/she can be examined for his/her criminal liability according to Article 221 of the Criminal Code on the charge of taking advantage of his/her title or power, or abusing his/her power while on duty. If the person who is responsible for managing habit-forming medicines lets, out of irresponsibility, these medicines be used contrarily to their purpose and causes serious consequences, he/she shall be examined for his/her criminal liability according to Article 220 of the Criminal Code on the charge of causing serious consequences out of irresponsibility.
6. Article 96a of the Criminal Code does not mention the appropriation (by such criminal acts as misusing, robbing, seizing, stealing, cheating...) of narcotics; therefore, anyone who appropriates drugs managed by a State agency or owned by an individual shall be examined for his/her criminal liability as follows:
a) Anyone who appropriates another person's property and who knows that it is a narcotic shall, in addition to being examined for his/her criminal liability on the charge of appropriation according to the corresponding crimes of the Criminal Code, be also examined for his/her criminal liability according to Article 96a of the Criminal Code on the charge relating to the narcotic already appropriated.
b) Anyone who appropriates another person’s property without knowing that it contains narcotics, who later knows it but shelters, transports and sells it, or uses it to produce other narcotics shall, in addition to being examined for his/her criminal liability on the charge of appropriation (such as robbing, snatching, seizing, stealing, cheating, etc.), be also examined for his/her criminal liability according to Article 96a of the Criminal Code on the charge relating to the narcotic already appropriated.
c) Anyone who appropriates another person’s property without knowing that it contains narcotics and who is arrested immediately, shall be examined only for his/her criminal liability on the charge of appropriation without being examined for his/her criminal liability according to Article 96a of the Criminal Code.
The person who illegally owns the appropriated narcotic shall also be examined for his/her criminal liability according to Article 96a of the Criminal Code.
7. Article 96a of the Criminal Code defines four criminal acts, namely producing, storing, trafficking in and transporting narcotics. If a person commits one or several criminal acts, he/she shall, depending on each specific case, be examined for his/her criminal liability as follows:
a) Anyone who commits one of the criminal acts stipulated in Article 96a of the Criminal Code shall be examined for his/her criminal liability on the charge of the criminal act committed. For example: A person who illegally transports opium shall be examined for his/her criminal liability on the charge of "illegal narcotic transportation".
b) Anyone who commits several criminal acts stipulated in Article 96a of the Criminal Code which are closely connected to one another (one criminal act is a condition for carrying out, or is an inevitable result of, another criminal act) shall be examined for his/her criminal liability on full charges of the criminal acts committed. For example: A person who illegally buys opium, illegally transports it to another place, and illegally produces habit-forming substances, shall be examined for his/her criminal liability on the charge of "illegal narcotic trafficking, transportation and production" and shall only be subjected to one penalty for that charge.
c) Anyone who commits several criminal acts stipulated in Article 96a of the Criminal Code which are independent of one another shall be examined for his/her criminal liability on the charges of such independent criminal acts committed. In trying it, the Court shall apply Article 41 of the Criminal Code to decide a common penalty. For example: A person who buys opium and at the same time helps another person hide opium or another narcotic shall be examined for his/her criminal liability on two charges of "illegal narcotic trafficking" and "illegal narcotic storage".
8. With regard to a person found guilty of illegally producing, storing, trafficking in or transporting narcotics, a compulsory supplementary penalty shall be applied by putting him/her under surveillance or forbidding him/her to inhabit the place for one to five years (Clause 2, Article 100, of the Criminal Code) and another compulsory supplementary penalty shall also be applied by fining him/her a sum which is 10 times the value of the narcotic involved (Clause 4, Article 100, of the Criminal Code). The objects and money used by the guilty person in committing his/her criminal act shall be confiscated for remittance to the State funds or for destruction (Article 33 of the Criminal Code and Article 58 of the Code on Criminal Proceedings).
II. ABOUT THE QUANTITY OF NARCOTICS INVOLVED AS THE BASIS FOR CRIMINAL EXAMINATION UNDER THE CLAUSES OF ARTICLE 96A OF THE CRIMINAL CODE:
The quantity of drugs involved as the basis for criminal examination under the clauses of Article 96a of the Criminal Code is specified as follows:
1. Anyone who illegally stores and transports the following quantities of each of the narcotics without the purpose of trading shall not be examined for his/her criminal liability, but shall be subjected to administrative sanctions:
a) Under 100 g of opium resin, marijuana resin or coca powder;
b) Under 1 kg of leaves, flowers and fruit of marijuana, or leaves of coca;
c) Under 10kg of dried fruit of poppy;
d) Under 2 kg of fresh fruit of poppy;
e) Under 2 g of heroin or cocaine;
f) Under 5 g of solid narcotics (in tablet, jelly or powder, except heroin and cocaine)
g) Under 10 phials of habit-forming medicine (each containing 1 ml to 2 ml)
h) Under 200 g of base substances for compounding narcotics;
i) Under 20 ml of liquid narcotics.
2. Anyone who illegally stores or transports one of the narcotics with the quantities specified in Clause 1 of Part II shall be examined for his/her criminal liability according to Clause 1 of Article 96a of the Criminal Code if he/she belongs to one of the following cases:
a) He/she has been subjected to administrative sanctions for one of the illegal storing, transportation or use of a narcotic, or organizing the use of narcotics, but he/she has not yet served the time beyond which he/she will be considered as not yet being subjected to administrative sanctions according to Article 10 of the Ordinance on the handling of administrative violations;
b) He/she has been convicted under Article 96a or Article 203 of the Criminal Code, but the conviction has not yet been written off.
A person who stores or transports several narcotics and each of these drugs has a quantity specified in Clause 1 of Part II shall also be examined for his/her criminal liability according to Clause 1, Article 96a, of the Criminal Code.
3. Anyone who illegally stores or transports one of the narcotics with the following quantities shall be examined for his/her criminal liability according to Clause 1, Article 96a, of the Criminal Code:
a) From 100 g to under 1 kg of opium resin, marijuana resin or coca powder;
b) From 1 kg to under 20 kg of marijuana leaves, flowers and fruit, or coca leaves;
c) From 10 kg to under 100 kg of dried fruit of poppy;
d) From 2 kg to under 20 kg of fresh fruit of poppy;
e) From 2 g to under 20 g of heroin or cocaine;
f) From 5 g to under 50 g of solid narcotics (in tablets, jelly or powder, except heroin and cocaine);
g) From 10 phials to under 100 phials of habit-forming medicine (each phial containing from 1 ml to 2 ml);
h) From 200 g to under 500 g of base substances to compound narcotics;
i) From 20 ml to under 200 ml of liquid narcotics.
4. Anyone who illegally produces or traffics in one of the narcotics with any quantity below the maximum quantity specified in Clause 3 of Part II shall be examined for his/her criminal liability according to Clause 1, Article 96a, of the Criminal Code.
5. Anyone who illegally stores, transports, produces or traffics narcotics according to the cases mentioned in Clause 2, 3 and 4 of Part II involving one of the aggravating factors within the framework mentioned in Clause 2, Article 96a, of the Criminal Code shall be examined for his/her criminal liability according to Clause 2, Article 96a, of the Criminal Code.
Also examined for his/her criminal liability according to Clause 2, Article 96a, of the Criminal Code shall be anyone who illegally produces, stores, traffics in, or transports several narcotics each of which has a quantity specified in Clauses 3 and 4 of Part II.
6. Anyone who illegally produces, stores, traffics in, or transports one of the narcotics with the following quantities shall be regarded as committing a criminal act with a large quantity of narcotic and shall be examined for his/her criminal liability according to Clause 2, Article 96a, of the Criminal Code:
a) From 1 kg to under 3 kg of opium resin, marijuana resin, or coca powder;
b) From 20 kg to under 50 kg of leaves, flowers and fruit of marijuana, or leaves of coca;
c) From 100 kg to under 400 kg of dried fruit of poppy;
d) From 20 kg to under 100 kg of fresh fruit of poppy;
e) From 20 g to under 100 g of heroin or cocaine;
f) From 50 g to under 200 g of solid drugs (in tablets, jelly or powder, except heroin or cocaine)
g) From 100 phials to under 250 phials of habit-forming medicine (each phial containing 1 ml to 2 ml);
h) From 500 g to under 1 kg of base substances to compound narcotics;
i) From 200 ml to under 500 ml of liquid narcotics.
7. Anyone who illegally produces, stores, traffics in or transports one of the narcotics with a quantity exceeding the maximum level specified in Clause 6 of Part II shall be regarded as committing a criminal act of particular seriousness and shall be examined for his/her criminal liability according to Clause 3, Article 96a of the Criminal Code.
Anyone who illegally produces, stores, traffics in or transports one of the narcotics with the following quantities without several attenuating factors shall be imprisoned for 12 years to 17 years:
a) From 3 kg to under 13 kg of opium resin, marijuana resin or coca powder;
b) From 50 kg to under 250 kg of leaves, flowers and fruit of marijuana, or leaves of coca;
c) From 400 kg to under 2,000 kg of dried fruit of poppy;
d) From 100 kg to under 600 kg of fresh fruit of poppy;
e) From 100 g to under 300 g of heroin or cocaine;
f) From 200 g to under 650 g of solid drugs (in tablets, jelly or powder, except heroin and cocaine);
g) From 250 phials to under 1,200 phials of habit-forming medicine (each phial containing 1 ml to 2 ml);
h) From 1 kg to under 2.5 kg of base substances to compound narcotics;
i) From 500 ml to under 2,500 ml of liquid drugs.
Also liable to sentences of 12 years to 17 years of imprisonment is anyone who illegally produces, stores, traffics in or transports several narcotics each of which has a quantity specified in Clause 6 of Part II, or who illegally produces, stores, traffics in or transports one of the narcotics with a quantity specified in Clause 6 of Part II, and who has been convicted according to Article 96a or according to Article 203 of the Criminal Code, but the conviction has not yet been written off, or the crime committed serious recidivism.
8. Anyone who illegally produces, stores, traffics in or transports one of the narcotics with the following quantities without several attenuating factors shall be imprisoned for 17 years to 20 years:
a) From 13 kg to under 20 kg of opium, marijuana resin or coca powder;
b) From 250 kg to under 400 kg of leaves, flowers and fruit of marijuana, or leaves of coca;
c) From 2,000 kg to under 3,000 kg of dried fruit of poppy;
d) From 600 kg to under 1,000 kg of fresh fruit of poppy;
e) From 300 g to under 500 g of heroin or cocaine;
f) From 650 g to under 1 kg of solid narcotics (in tablets, jelly or powder, except heroin and cocaine);
g) From 1,200 phials to under 2,000 phials of habit-forming medicine (each phial contains 1 ml to 2 ml);
h) From 2.5 kg to under 3.5 kg of base substances to compound narcotics;
i) From 2,500 ml to under 4,000 ml of liquid drugs.
Also liable to 17 years to 20 years of imprisonment is anyone who illegally produces, stores, traffics in or transports several narcotics each of which has a quantity specified in Clause 7 of Part II, or who illegally produces, stores, traffics in or transports one of the narcotics with a quantity specified in Clause 7 of Part II, and who has been convicted according to Article 96a or Article 203 of the Criminal Code, but the conviction has not yet been written off, who has committed dangerous recidivism.
9. A person who illegally produces, stores, traffics in or transport illegally one of the narcotics with the following quantities shall be sentenced to life imprisonment unless there are several extenuating factors:
a/ From 20kg to under 25 kg of opium resin, marijuana resin, coca powder;
b/ From 400kg to under 500kg of leaves, flowers and fruit of marijuana, or leaves of coca;
c/ From 3,000 kg to under 4,000 kg;dry fruit of poppy plant;
d/ From 500g to under one kg of fresh fruit of poppy plant
e/ From 500 g to lunder one kg of heroin, cocain;
f/ From 1 kg to under 1.5 kg of other narcotics in solid form (tablet, jelly or powder exept heroin and cocain)
g/ From 2,000 to under 2,500 phials (each phial containing from 1ml to 2ml) of habit - forming substances :
h/ From 3.5kg to under 5kg of base materials for compounding into narcotics:
i/ From 4,000 ml to under 5,000 ml of liquid narcotics;
Also liable to life sentence those persons who illegally produce, store, traffic in or transport several kinds of narcotics, the quantity of each of which is stipulated in Clause 8 of this Part II or in case of illegal production, stockpiling, trading or transportation of one of the narcotics with a quantity stipulated in Clause 8 of this Part II but who have been earlier sentenced under Article 96a or Article 203 of the Criminal Code and who have not been written off or have committed serious recidivism.
10. Anyone who illegally produces, stores, traffics in or transport one of the narcotics with the following quantities shall be sentenced to death unless there are several extenuating factors:
a/ From 25 kg upward of opium and resine, marijuana or coca powder;
b/ From 500 kg upward of leaves, flowers or fruit of marijuana, leaves of coca;
c/ From 4,000kg upward of dried fruit of poppy;
d/ From 1,500kg upward of resh fruit of poppy;
e/ From 1kg upward of heroin, cocain;
f/ From 1.5 kg upward of narcotics in solid form (tablets, jelly or powder, except heroin and cocain);
g/ From 2,500 phials upward (each phial containing from 1ml to 2ml) of habit - forming substances;
h/ From 5kg upward of base substances to compound narcotics;
i/ From 5,000 ml upward of liquid narcotics.
Also liable to death sentence those who illegally produce, store, traffic in or transport several narcotics of which the quantity is stipulated in Clause 9 of this Part II or in case of illegal production, stockpiling, trading and transportation of one of the narcotics in a quantity stipulated in Clause 9 of this Part II but who have been sentenced under Article 96a of the Criminal Code and who have not been wirtten off or have committed serious recidivism.
C. ON ARTICLE 203 OF THE CRIMINAL CODE
I. CRIMINAL ACTS AND METHODS OF HANDLING
1. An act of organizing the use of narcotics is an act of involving, enticing, instigating or serving as intermediary, buying off, coercing, sheltering, procuring the place and means to introduce narcotics into the body of another person or to help another person use narcotics contrarily to the prescriptions of the State.
2. A person who organizes the use of narcotics and who also illegally produces, stockpiles, buys and sells or transport narcotics shall, aside from being examined for penal liability under Article 203 of the Criminal Code, be examined for penal liability for the corresponding act under Article 96a of the Criminal Code.
3. For a person convicted of organizing the use of narcotics, the compulsory supplementary sanction is a fine of fifty thousand (50,000) Dong to two million five hundred thousand (2,500,000) Dong. In addition, he/she shall be subject to the additional sanction of forcible residence or banned from residence for one year to five years as well as confiscation of part of his/her properties (Clauses 2 and 3 of Article 218 of the Criminal Code). The objects and money which the offender has used in the perpetration of the crime shall be confiscated and remitted to the State fund or destroyed (Article 33 of the Criminal Code, Article 58 of the Code on Criminal Proceedings).
II. ON THE APPLICATION OF THE CLAUSES OF ARTICLE 203 OF THE CRIMINAL CODE
1. A person who organizes the use of narcotics for one to 9 persons shall be examined for penal liability under Clause 1 of Article 203 of the Criminal Code.
2. A person who organizes the use of narcotics in one of the following cases shall be regarded as a criminal causing serious consequences and shall be examined for penal liability under Clause 2 of Article 203 of the Criminal Code:
a/ The use of the narcotics leads to the death or injury to the user;
b/ Organizing the use of narcotics for a woman who is known to be pregnant.
c/ Organizing the use of narcotics for a minor;
d/ Organizing the use of narcotics for an inmate of a detoxification center or a detention center;
e/ Organizing the use of narcotics for 10 or more persons.
D. Implementation effect
1.This Circular takes effects from the date of its issue and replaces Circular No.07-TTLN of December 5, 1992, Circular No.05-TTLN of February 14, 1995, Communique No.09-LN of March 4, 1995 and Inter- branch Communique No.05-TTLN of August 31, 1996 of the Supreme People’s Court, the People’s Supreme Procuracy and the Ministry of the Interior which have earlier provided guidance on the application of Article 96a and Article 203 of the Criminal Code.
2. For the acts of illegal producing, stockpiling, trading and transporting narcotics and organizing the use of narcotics which had been carried out before the promulgation of this Circular, for which the investigation, prosecution and trial have not concluded before the date of promulgation of this Circular or which are investigated, prosecuted and tried after the promulgation of this Circular, this Circular shall apply when conducting the investigation, prosecution and trial.
3. For the cases which have gone through first instance trial and appeal trial before the promulgation of this Circular and for which there has been protest demanding heavier sentences, the appeal trial or retrial shall be conducted according to the guidance in this Circular.
4. For those verdicts which have taken effect before the promulgation of this Circular and the cases which have been tried in strict conformity with the earlier guidance , the guidance at this Circular shall not apply for the protest according to the retrial procedures.
If any problem arises during the process of implementing this Circular, the investigation, prosecution and trial agencies should report it immediately to the Supreme People’s Court, the Supreme People’s Procuracy and the Ministry of the Interior with a view to timely guidance.
THE MINISTRY OF THE INTERIOR VICE MINISTER Le The Tiem | THE SUPREME PEOPLE'S PROCURACY VICE CHAIRMAN Pham Sy Chien | THE SUPREME PEOPLE'S COURT DEPUTY CHIEF JUDGE Trinh Hong Duong |
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