Joint Circular No. 04/2021/TTLT-TANDTC-VKSNDTC-BCA-BQP dated October 11, 2021 on coordination in carrying out procedures for remission of or exemption from serving non-custodial sentence and exemption from serving the remaining length of residence prohibition or probation order

JOINT CIRCULAR

ON COORDINATION IN CARRYING OUT PROCEDURES FOR REMISSION OF OR EXEMPTION FROM SERVING NON-CUSTODIAL SENTENCE AND EXEMPTION FROM SERVING THE REMAINING LENGTH OF RESIDENCE PROHIBITION OR PROBATION ORDER

Pursuant to the Law on Criminal Judgment Enforcement dated June 14, 2019;

Pursuant to the Law on Promulgation of Legislative Documents dated June 22, 2015; Law on amendments to the Law on Promulgation of Legislative Documents dated June 18, 2020;

The Chief Justice of the Supreme People’s Court, Chief Procurator of the Supreme People’s Procuracy, the Minister of Public Security, the Minister of National Defense shall jointly coordinate in carrying out procedures for remission of or exemption from serving non-custodial sentence and exemption from serving the remaining length of residence prohibition or probation order.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Joint Circular set forth the coordination in carrying out procedures for granting remission of or exemption from serving non-custodial sentence and exemption from serving the remaining length of residence prohibition or probation order to convicts who receive non-custodial sentences, residence prohibition, or probation orders.

Article 2. Regulated entities

This Joint Circular applies to the Court, the Procuracy, the criminal judgment enforcement management agency affiliated to the Ministry of Public Security, the criminal judgment enforcement management agency affiliated to the Ministry of National Defense, the criminal judgment enforcement agency affiliated to province-level police department, the military zone-level criminal judgment enforcement agency, the criminal judgment enforcement agency of district-level police office, convicts and agencies, organizations and individuals related to remission of or exemption from serving non-custodial sentence and exemption from serving the remaining length of residence prohibition or probation order.

Article 3. Some terms used in consideration of remission of or exemption from serving non-custodial sentence and exemption from serving the remaining length of residence prohibition or probation order

1. Actively studying, working, correcting mistakes or making achievements in working, protecting security, ensuring social order and safety and being commended and rewarded by competent state authorities is the case where a convict has made great efforts in serving his/her sentence and has strictly implemented the policies and laws of the State, local regulations, agencies and units where he/she resides or works (for example: take the initiative in participating in adequate community service, vocational training; participating in activities of building a civilized lifestyle at the place of residence, maintaining public order, eliminating debauchery, and protecting the environment, traffic safety); have achievements in community service, detecting organizations and individuals that conduct propaganda to entice others to participate in illegal activities; participate in the prevention of epidemics and natural disasters and have been commended and rewarded by competent state authorities.

2. Meritorious work means a case in which a convict has outstanding achievements in labor, study, work, combat or crime prevention and is rewarded or confirmed by competent state authorities.

3. Suffering from a fatal disease means a case where the convict is suffering from a life-threatening illness that is difficult to cure (for example: terminal cancer, HIV infection that has progressed to clinical stage 4, drug-resistant grade 4 TB, dropsy cirrhosis, stage 3 heart failure or higher, stage 4 kidney failure or higher) or other disease leading to the patient’s inability to take care of himself, poor prognosis, risk of death high mortality.

4. Decrepit old person means a person who is 70 years old or older or who is 60 years old or older but is often sick.

5. Partial compensation for civil liability is understood as having compensated for at least half of the civil liability incurred according to the court judgment or decision.

In case the convict compensates for less than half of his/her civil liability incurred under the court's judgment or decision, but there is a written exemption or reduction of part of the civil liability or other agreement of the indemnified party (certified by a competent authority) shows that the convict has compensated for half of his/her civil liability, then it is also considered to have partially compensated for his/her civil liability.

Article 4. Forms of documents issued together with the Joint Circular

1. Decision on remission of non-custodial sentence (Form No. 01).

2. Decision on non-acceptance of remission of non-custodial sentence (Form No. 02).

3. Decision on exemption from non-custodial sentence (Form No. 03).

4. Decision on non-acceptance of exemption from non-custodial sentence (Form No. 04).

5. Decision on exemption from serving the remaining length of residence prohibition (Form No. 05).

6. Decision on non-acceptance of exemption from serving the remaining length of residence prohibition (Form No. 06).

7. Decision on exemption from serving the remaining length of probation order (Form No. 07).

8. Decision on non-acceptance of exemption from serving the remaining length of probation order (Form No. 08).

Chapter II

PROCEDURES FOR GRANTING REMISSION OF NON-CUSTODIAL SENTENCE

Article 5. Application for remission of non-custodial sentence

1. An application form for remission of non-custodial sentence made by the convict. If the convict is unable to make such an application form, his/her relative or representative of his/her workplace may do so on his/her behalf.

2. The documents specified at Points b and c, Clause 3, Article 103 of the Law on Criminal Judgment Enforcement.

3. In case the convict person is commended or has done meritorious work, the application must contain a commendation decision or a competent agency's certification that the convict has done meritorious work (for example: Certificate of Merit, Patent or Proprietary Patent issued by a competent authority or person.

4. In case the convict suffers from a fatal disease, the application must contain the conclusion of the Medical Examination Council or a copy of the medical record, the conclusion of the hospital at the province or military zone level or higher, or the conclusion of a public forensic organization on the medical condition of the convict.

For a convict who is infected with HIV and has progressed to clinical stage 4, he/she must obtain the determined HIV test results according to the regulations of the Ministry of Health and a copy of the medical record or conclusions of the competent health agency which confirms that he has progressed to clinical stage 4, has an opportunistic infection, and has a poor prognosis and high mortality.

5. In case the convict is enable to partially compensates for his/her civil liability, there must be receipts, invoices and documents showing that half of the civil liability has been fulfilled or a document on exemption or remission of partial civil liability or other agreement of the indemnified person (certified by a competent authority).

6. Other relevant documents.

Article 6. Procedure for application for remission of non-custodial sentence

1. Procedure for application for remission of non-custodial sentence shall comply with the provisions of Clauses 1 and 2, Article 103 of the Law on Criminal Judgment Enforcement.

2. The commune-level police office where the convict resides shall advise and assist the commune-level People's Committee that is assigned to supervise and educate the convict in reviewing if the convict is eligible for remission of non-custodial sentence, and then report it to the criminal judgment enforcement agency of the district-level police division.

Article 7. Procedure for consideration for remission of non-custodial sentence

1. The court holds a meeting to consider remitting the non-custodial sentence as prescribed in Clause 4, Article 103 of the Law on Criminal Judgment Enforcement. At least 03 days before opening the meeting, the Court shall notify the Procuracy of the same level in writing to send procurators to attend the meeting. In case the appointed procurator cannot attend the meeting, the Procuracy must appoint another person to attend.

In case it is necessary to supplement documents or the documents are unclear, the Judge shall request the criminal judgment enforcement agency of the district-level police division or the criminal judgment enforcement agency of the military-zone level to supplement or clarify the unclear documents. This written request shall be concurrently sent to the same-level Procuracy. Within 03 working days from the date of receipt of the court's request, the agency requesting the remission of the non-custodial sentence must send additional documents or clarify additional documents to the Court and the Procuracy of the same level.

2. Procedure for granting remission of non-custodial sentence

a) The chairperson opens the meeting, introduces the composition of the Council, the procurator participating in the meeting, and the meeting secretary.

b) A member of the Council presents the application for consideration for remission of the non-custodial sentence.

c) The procurator presents the Procuracy's opinion on the remission of the non-custodial sentence by the requesting agency and the convict’s law observance in considering the remission of the non-custodial sentence.

d) The Council discusses and makes a decision.

3. Based on the application and opinions of the representative of the Procuracy, the Council for consideration for remission of the non-custodial sentence shall make one of the following decision:

a) Accept all or part of the application for remission of non-custodial sentence;

b) Refuse the application for remission of non-custodial sentence.

4. Contents of the decision on remission of non-custodial sentence include:

a) Date, month and year of the decision;

b) Name of the court issuing the decision;

c) Full name of the Judge, Procurator, Secretary of the meeting;

d) Full name, year of birth and place of residence of the convict whose non-custodial sentence is applied for remission;

dd) Number, date, month and year of the legally effective court’s judgment or decision; number, date, and year of the decision on enforcement of the non-custodial sentence;

e) Judgments of the Court and grounds for acceptance or refusal;

g) Decision of the Court;

h) Entry in force.

5. The decision on remission or non-acceptance of remission of the non-custodial sentence shall take legal effect from the date of expiration of the protest time limit. The procedures for handling protests comply with Chapters XXII, XXV and XXVI of the Criminal Procedure Code.

6. The decision on remission or non-acceptance of remission of the non-custodial sentence shall be sent according to Clause 5, Article 103 of the Law on Criminal Judgment Enforcement, and the People's Committees of communes and army units which are assigned to supervise and educate the convict.

Article 8. Enforcement of the decision on remission of non-custodial sentence

1. When the decision on remission of the non-custodial sentence takes legal effect, the criminal judgment enforcement agency of the district-level police division or the criminal judgment enforcement agency of military-zone level shall remit the length of the sentence for the convict to keep the judgment enforcement records and send a notice to the commune-level People's Committee or military unit assigned to supervise and educate the convict of non-custodial sentence.

2. If the remaining length of the non-custodial sentence is all remitted, the requesting agency shall issue a certificate of completion of the non-custodial sentence as prescribed in clause 4 Article 97 of the Law on Enforcement of Criminal Judgments. The time of issuance of the certificate is counted from the effective date of the decision on remission of the non-custodial sentence.

Chapter III

PROCEDURES FOR GRANTING EXEMPTION FROM NON-CUSTODIAL SENTENCE

Article 9. Application for exemption from non-custodial sentence

1. The application form for exemption from non-custodial sentence shall be made by the convict or his/her legal representative. If the convict is unable to make such an application form, his/her relative or representative of his/her workplace may do so on his/her behalf.

2. The documents specified at Points a, b and c, Clause 1, Article 104 of the Law on Criminal Judgment Enforcement.

3. In case the convict is commended or has done meritorious work, the application must contain a commendation decision or a competent agency's certification that the convict has done meritorious work (for example: Certificate of Merit, Patent or Proprietary Patent of a competent authority or person.

4. In case the convict suffers from a fatal disease, the application must contain the conclusion of the Medical Examination Council or a copy of the medical record, the conclusion of the hospital at the province or military zone level or higher, or the conclusion of a public forensic organization on the medical condition of the convict.

For a convict who is infected with HIV and has progressed to clinical stage 4, he/she must obtain the determined HIV test results according to the regulations of the Ministry of Health and a copy of the medical record or conclusions of the competent health agency which confirms that he has progressed to clinical stage 4, has an opportunistic infection, and has a poor prognosis and high mortality.

5. In case a convict has good observance of law, has suffered financial hardship and deems that convict is no longer a danger to society, such a certification or comment issued by the competent authority must be obtained.

6. Other relevant documents.

Article 10. Procedure for application for exemption from non-custodial sentence

1. Procedure for application for exemption from non-custodial sentence shall comply with the provisions of Clause 1, Article 104 of the Law on Criminal Judgment Enforcement.

2. The commune-level police office where the convict resides shall advise and assist the commune-level People's Committee that is assigned to supervise and educate the convict in reviewing if the convict is eligible for remission of non-custodial sentence, and then report it to the criminal judgment enforcement agency of the district-level police division.

Article 11. Procedure for consideration for exemption from non-custodial sentence

1. The court holds a meeting to consider granting exemption from the non-custodial sentence as prescribed in Clause 2, Article 104 of the Law on Criminal Judgment Enforcement. At least 03 days before opening the meeting, the Court shall notify the Procuracy of the same level in writing to send procurators to attend the meeting. In case the appointed procurator cannot attend the meeting, the Procuracy must appoint another person to attend.

In case it is necessary to supplement documents or the documents are unclear, the Judge shall request the Procuracy of the same level to supplement or clarify the unclear documents. Within 03 working days from the date of receipt of the Court's request, the Procuracy of the same level shall supplement or clarify the unclear documents.

2. Procedures for granting exemption from non-custodial sentence

a) The chairperson opens the meeting, introduces the composition of the Council, the procurator participating in the meeting, and the meeting secretary.

b) A member of the Council presents the application for consideration for exemption from the non-custodial sentence.

c) The procurator presents the Procuracy's opinion on the exemption from the non-custodial sentence and the convict’s law observance in considering the exemption from the non-custodial sentence.

d) The Council discusses and makes a decision.

3. Based on the application and opinions of the representative of the Procuracy, the Council for consideration for exemption from the non-custodial sentence shall make one of the following decision:

a) Accept the application for exemption from non-custodial sentence;

b) Refuse the application for exemption from non-custodial sentence.

4. Contents of the decision on exemption from non-custodial sentence include:

a) Date, month and year of the decision;

b) Name of the court issuing the decision;

c) Full name of the Judge, Procurator, Secretary of the meeting;

d) Full name, year of birth, place of residence of the convict whose non-custodial sentence is applied for exemption, and place where he/she serves the sentence<0}

dd) Number, date, month and year of the legally effective court’s judgment or decision; number, date, and year of the decision on enforcement of the non-custodial sentence;

e) Judgments of the Court and grounds for acceptance or refusal;

g) Decision of the Court;

h) Entry in force.

5. The decision on exemption or non-acceptance of exemption from the non-custodial sentence shall take legal effect from the date of expiration of the protest time limit. The procedures for handling protests comply with Chapters XXII, XXV and XXVI of the Criminal Procedure Code.

6. The decision on exemption or non-acceptance of exemption from the non-custodial sentence shall be sent according to Clause 3, Article 104 of the Law on Criminal Judgment Enforcement, and the People's Committees of communes and army units which are assigned to supervise and educate the convict.

Article 12. Enforcement of the decision on exemption from non-custodial sentence

Within 03 working days after the decision on exemption from the non-custodial sentence takes legal effect, the criminal judgment enforcement agency of the district-level police division or the criminal judgment enforcement agency of military-zone level shall conclude the judgment enforcement for the convict of non-custodial sentence.

Chapter IV

PROCEDURE FOR GRANTING EXEMPTION FROM SERVING THE REMAINING LENGTH OF RESIDENCE PROHIBITION OR PROBATION ORDER

Article 13. Application for exemption from serving the remaining length of residence prohibition or probation order

1. Application form for exemption from serving the remaining length of residence prohibition or probation order made by the convict. If the convict is unable to make such an application form, his/her relative or representative of his/her workplace may do so on his/her behalf.

2. The documents specified at Points a, b, c, and dd Clause 1, Article 110 and points a, b, c and dd clause 1 of Article 117 of the Law on Criminal Judgment Enforcement.

Article 14. Procedure for application for exemption from serving the remaining length of residence prohibition or probation order

1. Procedure for application for exemption from serving the remaining length of residence prohibition or probation order shall comply with Clause 1, Article 110 and Clause 1, Article 117 of the Law on Criminal Judgment Enforcement.

2. The commune-level police office where the convict resides shall assist the commune-level People's Committee that is assigned to supervise and educate the convict in reviewing if the convict is eligible for exemption from serving the remaining length of residence prohibition or probation order, and then report it to the criminal judgment enforcement agency of the district-level police division.

3. Within 05 working days after receiving the report from the commune-level People’s Committee, the criminal judgment enforcement agency of the district-level police division shall make a dossier to request the Court of the same level to consider granting exemption from serving the remaining length of residence prohibition or probation order, and also send a dossier to the Procuracy of the same level. If refusing the application for exemption from serving the remaining length of residence prohibition or probation order, the criminal judgment enforcement agency of the district-level police division shall provide an explanation in writing for the commune-level People’s Committee.

Article 15. Procedure for consideration for exemption from serving the remaining length of residence prohibition or probation order

1. The Court shall hold a meeting to consider and decide the exemption from serving the remaining length of residence prohibition or probation order as prescribed in Clause 2, Article 110 and Clause 2, Article 117 of the Law on Criminal Judgment Enforcement. At least 03 days before opening the meeting, the Court shall notify the Procuracy of the same level in writing to send procurators to attend the meeting. In case the appointed procurator cannot attend the meeting, the Procuracy must appoint another person to attend.

In case it is necessary to supplement documents or the documents are unclear, the Judge shall request the criminal judgment enforcement agency of the district-level police division to supplement or clarify the unclear documents. This written request shall be concurrently sent to the same-level Procuracy. Within 03 working days from the date of receipt of the court's request, the agency requesting the exemption from serving the remaining length of residence prohibition or probation order must send additional documents or clarify additional documents to the Court and the Procuracy of the same level.

2. Procedure for consideration for exemption from serving the remaining length of residence prohibition or probation order

a) The chairperson opens the meeting, introduces the composition of the Council, the procurator participating in the meeting, and the meeting secretary.

b) A member of the Council presents the application for consideration for exemption from serving the remaining length of residence prohibition or probation order. <0}

c) The procurator presents the Procuracy's opinion on the exemption from serving the remaining length of residence prohibition or probation order and the convict’s law observance in considering the exemption from serving the remaining length of residence prohibition or probation order.

d) The Council discusses and makes a decision.

3. Based on the application and opinions of the representative of the Procuracy, the Council for consideration for exemption from serving the remaining length of residence prohibition or probation order shall make one of the following decision:

a) Accept the application for exemption from serving the remaining length of residence prohibition or probation order;

b) Refuse the application for exemption from serving the remaining length of residence prohibition or probation order.

4. Contents of the decision on exemption from serving the remaining length of residence prohibition or probation order shall conclude:

a) Date, month and year of the decision;

b) Name of the court issuing the decision;

c) Full name of the judge, procurator, secretary of the meeting;

d) Full name, year of birth, place of residence of the convict whose remaining length of residence prohibition or probation order is applied for exemption;

dd) Number, date, month and year of the legally effective court’s judgment or decision; number, date, and year of the decision on enforcement of the sentence;

e) Judgments of the Court and grounds for acceptance or refusal;

g) Decision of the Court;

h) Entry in force.

5. The decision on exemption or non-acceptance of exemption from serving the remaining length of the residence prohibition or probation order shall take legal effect from the date of expiration of the protest time limit. The procedures for handling protests comply with Chapters XXII, XXV and XXVI of the Criminal Procedure Code.

6. The decision on exemption or non-acceptance of exemption from serving the remaining length of the residence prohibition or probation order shall be sent according to Clause 3, Article 110, Clause 3 Article 117 of the Law on Criminal Judgment Enforcement, and the People's Committees of communes which are assigned to supervise and educate the convict.

Article 16. Enforcement of decision on exemption from serving the remaining length of residence prohibition or probation order

Within 03 working days after the decision on exemption from serving the remaining length of the residence prohibition or probation order takes legal effect, the criminal judgment enforcement agency of the district-level police division shall issue a certificate of completion of the residence prohibition or probation order as prescribed in Clause 5, Article 107 and Clause 5, Article 112 of the Law on Enforcement of Criminal Judgments.

Chapter V

IMPLEMENTATION

Article 17. Entry in force

This Joint Circular comes into force from November 26, 2021 and supersedes Joint Circular No. 09/2012/TTLT-BCA-BQP-TANDTC-VKSNDTC dated August 16, 2012 of the Ministry of Public Security. The Ministry of National Defense, the Supreme People's Court and the Supreme People's Procuracy on guidelines for the remission of or exemption from the non-custodial sentence and the exemption from serving the remaining length of residence prohibition and probation order.

Article 18. Implementation

1. The Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security and the Ministry of National Defense shall, within the ambit of their functions, tasks and powers, implement this Joint Circular.

2. Difficulties that arise during the implementation of this Circular should be reported to the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security and the Ministry of National Defense for consideration./.