Thông tư liên tịch 13/2013/TTLT-BCA-BQP-VKSNDTC-TANDTC

JOINT CIRCULAR

ON GUIDELINES FOR THE IMPLEMENTATION OF CERTAIN REGULATIONS IN THE CRIMINAL PROCEDURE CODE 2003 ON PROTECTION OF THE LIFE, HEALTH AND PROPERTY OF DENOUNCERS, TESTIFIERS, VICTIMS AND THEIR KINDRED DURING CRIMINAL PROCEDURE

In order to synchronize the implementation of Article 7, Section 3 of Article 55, Section 3 of Article 103 and Article 211 of the 2013’s Criminal procedure code, the Minister of Public Security, Minister of National Defense, Head of the Supreme People's Procuracy and President of the Supreme People's Court promulgate the joint Circular on guidelines for the implementation of certain regulations in the 2003’s Criminal procedure code on protection of the life, health and property of denouncers, testifiers, victims and their kindred during criminal procedure.

Article 1. Scope and regulated entities

1. This Circular provides guidelines for the implementation of certain regulations in the 2003’s Criminal procedure code on protection of the life, health and property of denouncers, testifiers, victims and their kindred during criminal procedure

2. This Circular applies to presiding authorities, agencies and entities in relation to the protection of the life, health and property of denouncers, testifiers, victims and their kindred during criminal procedure.

Article 2. Persons under protection

1. Denouncers, testifiers and victims as per the legislation of criminal procedure.

2. Kindred of denouncers, testifiers and victims, including spouse, biological and adopted children, biological and adoptive parents, (biological and adoptive) parents in law of denouncers, testifiers and victims as per the legislation of criminal procedure.

Individuals defined in Section 1 and Section 2 of this Article are referred to as the protected persons.

Article 3. Scope of protection

1. The life, health and property of protected persons shall be safeguarded by competent authorities on the grounds that the life, health or property of such individuals have been or will be violated due to denouncers', testifiers' or victims' providing evidences, exhibits, information or documents directly related to a crime or its perpetrator in a criminal case. The grounds on past or probable detriments shall be based on detriments having occurred, significantly precarious menaces or specifically dangerous nature of a crime and vital role of a testifier, denouncer or victim during criminal procedure. Such grounds urge measures on safeguarding the protected persons and fulfilling requirements of investigations, prosecution and adjudication.

2. Protective measures shall remain in force amid the existence of the grounds on past or probable detriments. Such measures shall not be bound by any time limit (i.e. amid the processing of notifications and denunciations, investigations, prosecution, adjudication of a criminal case or upon the effect of a verdict).

3. This Circular does not govern the grounds on past or probable detriments whose reasons do not derive from the provision of evidences, exhibits, information and documents directly related to a crime or its perpetrator during criminal procedure.

Article 4. Rights of protected persons

1. Be informed by presiding agencies, which are processing relevant notifications, denunciations and criminal cases, of the right to be protected and to request protective measures for their life, health and property according to the grounds on past or probable detriments.

Such requests must be delivered in writing. Emergency requests may be initially delivered verbally or via means of communication; however, such requests must be subsequently presented in writing.

2. Be informed of protective measures prior to adoption, and have the right to recommend changes to such measures if the existing measures are factually shown ineffective to protect their life, health and property.

3. Claim compensation for damage to their property and receive aids for damage to life or health as per the law.

4. During presiding agencies’ and presiding officers’ employment of protective measures, transfer, demotion, reduction of salary or incentive, etc. for absence from work are not applicable to protected persons who are public officials, public employees; workers in business, political, cultural or social organizations; commissioned officers, non-commissioned officers and workers in the sector of public security; commissioned and non-commissioned officers, professional soldiers, workers and soldiers in the sector of national defense or the People's Army.

Article 5. Duties of protected persons

1. Comply with requirements of protection agencies with regard to transport, accommodation, daily life, education, communication, visit and other activities.

2. Disclose no information on their whereabouts, workplaces, education facilities, identity changes or other protective methods to any other individuals or even to family members without permission of protection agencies.

3. Notify abnormal incidents in doubt or in relation to protection activities of protection agencies.

4. If protected persons are harmed upon their failure to abide by the duties defined in section 1, 2 and 3 of this Article, they shall be held liable for their own life, health and property.

Article 6. Protective measures

1. Arrange personnel and facilities; carry out professional approaches; use weapons, support equipment, means of transport and communications equipment on patrol and guard (at courts and at the place of residence, workplace and education facility of the protected persons, aboard means of transport and at other places necessary).

2. Restrict travel, social interaction, visit, work and educational activities of the protected persons in a defined period if the person is considered to be at high risk of assault or detriment.

3. Maintain the confidentiality of the protected persons’ providing evidences, exhibits and written materials directly related to a crime or perpetrator upon the person's request or on the ground that such person may be imperiled due to his provision of such evidences, exhibits or documents. Before a case proceeds to trial, the presiding judge of the relevant court shall discuss with the protection agency the measures, on case basis, to maintain the confidentiality of protected persons, such as prohibition of filming, recording or photographing in the courtroom, non-disclosure of the protected persons’ full name and identity, separation of protected persons and concealed testimony sessions, etc. Defense counsels, when interacting with protected persons or studying denunciations, testimonies or case files thereof, shall engage in confidentiality agreements and be held liable to the law for their undertaking.

4. Relocate protected persons and classify their residence, workplace and education facility:

a) Relocate protected persons, when necessary, away from their residence, workplace and education facility and maintain the absolute confidentiality of their new residence, workplace and education facility. Relocation may be temporary or permanent. A person may be relocated, on case basis and when feasible, to a different site in a locality, to another locality or abroad.

b) In time of emergency, the protected persons may be moved into a police or military station or a site under the management and protection of the police or army.

5. Deter, warn or attenuate detriments against the protected persons; hinder and resolve intrusive actions in timely manner as per the law.

6. Change the identity and personal record of the protected persons.

7. Other protective measures.

Measures defined in Section 1, 2, 3, 4, 5, 7 of this Article shall apply when deemed necessary by protection agencies. However, the measure stated in Section 6 of this Article must be approved by the protected persons or their legal representatives.

Article 7. Authorities and individuals authorized to decide the employment of protective measures

1. The following authorities shall be given authority to implement protective measures:

a) Investigation units of the People’s Public Security;

b) Investigation units of the People’s Army.

2. The following individuals shall be given authority to make decisions on protective measures:

a) Heads and vice heads of investigation units of the People’s police force shall be given authority to decide to implement protective measures for criminal issues and cases that they have admitted, handled or investigated or at the requests of the equivalent People's Procuracy or People's Court or Supreme People's Procuracy.

b) Heads and vice heads of investigation units of the People’s army shall be given authority to decide to implement protective measures for criminal issues and cases that they have admitted, handled or investigated or at the requests of the equivalent military Procuracy or military Court or central military Procuracy.

3. People’s procuracies and People’s courts shall request investigation authorities that directly handle the criminal case to implement protective measures, if deemed necessary. Such requests shall be made in writing.

Investigation units of the Supreme People's Procuracy or Central military procuracy, if finding the necessity of protective measures regarding criminal issues and cases that they have admitted, handled or investigated, shall report to the head of the Supreme People’s Procuracy or Central military procuracy, who shall propose investigation police units, security investigation department of the Ministry of Public Security, criminal investigation department and security investigation department of the Ministry of Defense to issue a decision to implement protective measures.

Article 8. Decisions to implement protective measures

A decision to implement protective measure(s) must specify the name of its issuer and the protection agency. Also included are the full name, date of birth and place of residence of the person under protection, protective measures being employed or their starting time.

Such decision shall be sent to the person under protection, to the People’s procuracy or People’s court that requests protective measures, and to relevant agencies.

Article 9. Protection agencies

Protection agencies shall be investigation units of the People’s Public Security. Investigation units of the People’s Army, which decide to implement protective measures.

Minister of Public Security or Minister of National Defense shall regulate the arrangement of personnel, facilities and essential conditions to safeguard the life, health and property of protected persons, as well as the cooperation between protection agencies and relevant units of the People’s Public Security or the People’s Army.

Article 10. Procedure for determination and employment of protective measures

1. A protection agency, when receiving a request for protection, shall promptly obtain essential documents, authenticate information and grounds on past or probable detriments by criminals against protected persons, define the intensity of menaces against protected persons, identify the scope and subjects of protection, plan protective measures and invoke activities of investigation, prosecution and adjudication. If protective measures are deemed necessary, the agency and individual making the request shall be informed and advised on other solutions.

2. When it is urgent to preclude menaces against the life, health and property of protected persons, protection agencies must immediately adopt protective measures necessary, i.e. assigning protectors to the residence, workplace or education facility of protected persons or relocating them to a temporary safe place.

3. Before a decision on protective measures is made, heads and deputy heads of competent investigation units of the People’s Public Security shall inquire the Director of the relevant provincial Public Security (at local echelon) or the Head of the General Police Department for Crime Prevention and Suppression or the Head of the General Department of Security II (at the level of Ministry of Public Security) for instructions on the utilization of multiple forces, facilities and methods of protection, on complex requests or on cases of organized crime, drug-related crime, multinational crime or felony corruption. Special cases must be reported to the head of the Ministry of Public Security for instructions. Competent investigation units of the People’s Army shall inquire the Head of the relevant military zone (for cases within the authority of investigation of local investigation units or military zones’ criminal investigation units or investigative security units and the like) or the Minister of National Defense (for cases within the authority of investigation of criminal investigation units or investigative security units of the Ministry of National Defense).

4. During the employment of protective measures, the agency deciding such measures shall issue additional written decision(s) on other protective measures that meet new requests for additional facilities, personnel, etc. Such decision(s) shall be sent to protection agencies and to the protected persons.

5. When the grounds on past or probable detriments against protected persons no longer exist, the issuer of the decision to adopt protective measures shall issue a written decision to terminate such measures and notify relevant entities.

Article 11. Responsibilities of agencies

1. Responsibilities of presiding agencies:

Presiding agencies, when conducting missions and exercising powers, shall be responsible for implementing protective measures for protected persons upon the latter’s request or the former’s acquisition of grounds on past or probable detriments against the latter. Otherwise, presiding agencies shall request competent authorities to make decision(s) thereof.

2. Responsibilities of agencies deciding the employment of protective measures:

a) The agency deciding the employment of protective measures shall be held responsible for its decision. It shall lead and cooperate with relevant agencies, organizations and local authorities in implementing protective measures;

b) Formulate plans to safeguard protected persons; make, manage, retain and use protection files classified as confidential;

c) Monitor, summarize and handle difficulties that ensue; send annual reports to competent authorities.

3. Responsibilities of agencies implementing protective measures:

a) Related agencies must carry out protection requests of the decision-making agencies in strict manner. The agencies deciding the employment of protective measures shall be informed immediately in writing of any difficulties ensuing or inability to actualize a request of protection;

b) Consider their actual capacities to prioritize personnel and facilities on the grounds on past or probable detriments against life upon the receipt of multiple requests of protection. Persons related to cases of national security breach, narcotics, corruption, multinational organized crime, etc. shall be given priorities;

c) Propose reality-based methods and models of protection for the highest efficiency;

d) Report the result of protection activities to the agencies deciding protective measures on regular basis.

4. Request People’s Committees and local organizations to cooperate and support the implementation of protection assignments.

Article 12. Protection-related documents

1. This Circular is enclosed with the format of:

a) The decision to employ protective measures (Form BV01);

b) The decision to terminate protective measures (Form BV02);

c) The decision to add protective measures (Form BV03);

d) The decision to change protective measures (Form BV04);

2. The documents on witness protection shall include:

a) Written materials that specify sources of information and grounds on past or probable detriments by criminals against protected persons;

b) The request for employment or change of measures to safeguard the life, health and property of protected persons;

c) The result of verification of detriments; consequences ensuing and actions of competent authorities;

d) The decision to employ protective measures;

dd) The decision to add protective measures (if any);

e) Written materials that specify the process of protection; reports with a request for superior entities' instructions; instructions of individuals responsible for protection activities; reviews of the identification, search and arrest of perpetrators of past or probable detriments against protected persons;

g) Written requests for other entities’ support and cooperation in protection activities; written materials that specify the result of such cooperation;

h) Written materials that specify amends and aids for protected persons who suffer damage to property, life and health;

i) Reports on the implementation of protective measures;

k) The decision to terminate protective measures;

l) Other relevant documents.

Article 13. Budget reserved

Ministry of Public Security and Ministry of National Defense shall estimate, allocate and finalize the expenditure reserved for protective measures as per this Circular according to the Law on state budget and guiding documents.

Article 14. Implementation

1. This Circular comes into force as of February 14, 2014.

2. During the implementation of the Circular, agencies shall report difficulties to the Ministry of Public Security, Ministry of National Defense, Supreme People's Procuracy and Supreme People's Court for timely guidelines./..