Thông tư liên tịch 13/2012/TTLT-BCA-BTP-VKSNDTC-TANDTC

JOINT CIRCULAR

GUIDING IMPLEMENTATION OF A NUMBER OF PROVISIONS OF THE CRIMINAL PROCEDURE CODE AND THE CRIMINAL JUDGMENTS EXECUTION LAW ON PURSUIT

In order to properly and uniformly implement provisions of the 2003 Criminal Procedure Code and the 2010 Criminal Judgments Execution Law on pursuit in the stages of investigation, prosecution, trial and execution of criminal judgments, the Ministry of Public Security, the Ministry of Justice, the Supreme People's Procuracy and the Supreme People's Court issue this Joint Circular to guide implementation of a number of provisions of the Criminal Procedure Code and the Criminal Judgments Execution Law on pursuit.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular guides the application of a number of provisions of the Criminal Procedure Code and the Criminal Judgments Execution Law on pursuit in the stages of investigation, prosecution, trial and execution of criminal judgments.

Article 2. Subjects who are wanted

1. The accused or defendants who absconded or whose whereabouts are unknown.

2. Persons who being sentenced to expulsion or serving expulsion sentence absconded.

3. Persons who being sentenced to imprisonment absconded.

4. Persons who being sentenced to death absconded.

5. Persons who serving imprisonment sentence or being permitted to suspend the serving of imprisonment sentence or postpone the serving of criminal sentence absconded.

Article 3. Principles of pursuit

1. Pursuit must be rapid and timely, and conducted against the right persons and right offenses, and assure respect for civil rights to freedom and democracy as provided by law.

2. It is prohibited to issue pursuit warrants in contrary to law and guide of this Circular.

Article 4. Issuance of pursuit warrants

1. A competent agency may issue a pursuit warrant when fully meeting the following conditions:

a/ Having sufficient grounds to believe that a person specified in Article 2 of this Circular has absconded or that his/her whereabouts is unknown, and all necessary measures to verify his/her whereabouts or arrest him/her have been conducted but in vain;

b/ Having identified accurately the background and identification features of the absconding person.

2. When having sufficient grounds to believe that an accused or a defendant absconded or his/ her whereabouts is unknown, and if the investigative agency, procuracy or court has earlier issued a warrant for his/her temporary arrest but failed, the investigative agency may issue a pursuit warrant, at its own will or the request of the procuracy or court. In case a warrant for the arrest of an accused or a defendant for detention has not been yet issued, the investigative agency, procuracy or court will not issue an arrest warrant in order to temporarily take accused or defendant into custody but the investigative agency may promptly issue a pursuit warrant at its own will or the request of the procuracy or court.

Article 5. Contents of pursuit warrants

1. A pursuit warrant must have the following principal details:

a/ Date and place of issuance;

b/ Name of the agency, full name and position of the person issuing pursuit warrant;

c/ Full name as indicated in the birth certificate, alias (if any), date of birth, place of permanent residence registration, place of temporary residence or another place of residence (if any) of the subject who is wanted;

d/ Personal identification characteristics and enclosed photos (if any);

e/ Crime for which he or she has been accused, prosecuted or convicted, and penalty level (if any) sentenced by the court against him/her;

f/ Address and contact telephone number of the agency issuing the pursuit warrant.

2. For an accused or a defendant who has committed more than one crime, a pursuit warrant must specify all crimes he/she has committed.

Article 6. Sending and notification of pursuit warrants

1. A pursuit warrant must be sent to:

a/ The police office of the commune, ward or district township and the police offices of the districts where the wanted person has registered his/her permanent or temporary residence and places of residence and of his/her native place;

b/ The police department of the province or centrally-affiliated city where the wanted person probably absconds, or the police departments of all provinces and centrally-affiliated cities;

c/ The Police Department for Criminal Pursuit of the Ministry of Public Security; and the Police Section for Criminal Pursuit of the provincial-level Police Department (that has issued the pursuit warrant);

d/ The professional agency in charge of case dossiers (in place which the dossiers are registered);

e/ The people's procuracy that has requested the issuance of a pursuit warrant; the people's procuracy at the same level with the investigative agency issuing the pursuit warrant; or the provincial-level people's procuracy of the locality where there are prison or detention camp and the criminal judgment enforcement agency issuing the pursuit warrant;

f/ The people's court that has requested the investigative agency for issuing a pursuit warrant.

2. Pursuit warrants must be notified on the mass media so that all agencies, organizations and individuals can know, detect and arrest subjects who are wanted.

Chapter II

PURSUIT IN THE STAGES OF INVESTIGATION, PROSECUTION, TRIAL AND JUDGMENT EXECUTION

Article 7. Pursuit in the stage of investigation

1. If in the stage of investigation an investigative agency currently settling a case detects that an accused has absconded or does not know his/her whereabouts, it shall issue a pursuit warrant and coordinate with the criminal pursuit police force in arresting him/her.

2. In case a person, who is in temporary custody, escapes from the custody house, the head of the custody house shall promptly report such to the head of the investigative police section of the district-level police office, where the custody house is located, aiming that the head of the investigative police section shall organize and direct the pursuit, and concurrently issue a decision to institute a criminal case against such person for the crime of escaping from the place of detention or custody prescribed in Article 311 of the Penal Code, and issue a pursuit warrant (in which clearly specifying other crimes for which criminal case has been instituted against such person).

3. In case a detainee escapes from the detention camp, the superintendent of the detention camp shall promptly organize a pursuing force and concurrently notify such to the investigative agency currently settling the case for the latter to issue a decision to institute a criminal case against such person for the crime of escaping from the place of detention or custody prescribed in Article 311 of the Penal Code and a pursuit warrant (in which clearly specifying other crimes for which the criminal case has been instituted against such person).

Article 8. Pursuit in the stage of prosecution

1. If in the stage of prosecution a procuracy currently settling a case file detects that an accused has absconded, it shall request in writing the investigative agency that has accepted such criminal case to issue a pursuit warrant for the accused.

2. Upon the expiration of the time limit specified in Clause 1, Article 166 of the Criminal Procedure Code, if the pursuit of the accused still has no result, the agency having issued the pursuit warrant shall notify such to the procuracy currently settling the case for having grounds in order to settlement according to its competence. If the absconder has not yet arrested, the case must be settled as follows:

a/ In case the absconding of the accused does not affect the objective and comprehensive verification of facts of the case, the procuracy may split up the case and issue a decision to suspend the case with regard to the absconder and still prosecute the other accused in such case under law.

b/ In case the absconding of the accused affects the objective and comprehensive verification of facts of the case, the procuracy shall suspend the whole case.

Article 9. Pursuit in the stage of trial

1. In case a procuracy has issued a decision on prosecution of an accused and handed over the indictment to the accused but has not yet forwarded the case file to a court when it is informed of the absconding of the accused, it shall still forward the case file to the court for settlement, trial and notify the absconding of the accused to the court, which shall later request the investigative agency to pursue the accused.

In case the court receives the procuracy's notice of the absconding of the accused after being handled over the indictment (regardless of whether the case file has been forwarded to the court) or if the accused absconds in the stage of trial preparation, the court shall request the investigative agency to pursue the accused and still carry out activities according to general procedures.

Upon the expiration of the time limit for trial preparation specified in Article 176 of the Criminal Procedure Code, if the pursuit of such accused still has no result, the court shall apply Article 180 of the Criminal Procedure Code in order to issue a decision to suspend the case.

In case an accused absconds when a court hearing has been opened, the trial panel shall apply Clause 1, Article 187 of the Criminal Procedure Code in order to issue a decision to suspend the case and request the investigative agency to pursue the accused.

3. For the cases guided in Clause 2 of this Article, for cases involving many accused or defendants, the court shall still issue a decision to suspend the case with regard to all accused and defendants involved in the case though only some of them abscond. For an accused or a defendant who is still kept in detention, upon the expiration of the detention duration, if considering that his/her detention is still necessary in order to finish the trial, the court may apply Article 177 of the Criminal Procedure Code in order to issue a detention order.

Upon the expiration of the time limit for trial preparation, if the pursuit still has no result, the court shall promptly issue a decision to bring the case for trial and try the absconder in absentia under Point a, Clause 2, Article 187 of the Criminal Procedure Code.

4. Upon receiving a written request of the court for pursuit of an accused or a defendant, the investigative agency shall promptly issue a pursuit warrant and send notices on pursuit warrant under Article 161 of the Criminal Procedure Code and the guidance in Article 6 of this Joint Circular.

Upon the expiration of a one-month time limit after the receipt of a written request for pursuit, if the pursuit still has no result, the investigative agency that has issued the pursuit warrant shall notify such to the court for the latter to issue a decision to bring the case for trial in absence of the wanted person under Point a, Clause 2, Article 187 of the Criminal Procedure Code.

5. If a court has requested the investigative agency to pursue an accused or a defendant, when its judgment takes legal effect, the court will not have to request the investigative agency to issue a new pursuit warrant.

Article 10. Pursuit in the stage of judgment execution

1. When a person who is out on bail is sentenced to imprisonment but absconds when a judgment execution decision is issued, the court that has issued such decision shall request in writing the criminal judgment enforcement agency of the provincial-level Police Department of the locality in which such person resides to issue a pursuit warrant.

2. When a person, whose time limit to be permitted to postpone the serving of his/her imprisonment sentence is expired, absconds after the court issues a judgment execution decision, the court shall request in writing the criminal judgment enforcement agency of the provincial-level Police Department of the locality in which such person resides to issue a pursuit warrant.

3. When a person, whose time limit to be permitted to suspend the serving of his/her imprisonment sentence is expired, absconds after the court issues a judgment execution decision, the court shall request in writing the criminal judgment enforcement agency of the provincial-level Police Department of the locality in which such person resides to issue a pursuit warrant.

4. When a person who is serving an imprisonment sentence at a prison or detention camp absconds, the superintendent of the prison or detention camp shall promptly organize a force to pursue him/her. Past 24 hours after detecting the absconding of such person, if the pursuit has no result, the superintendent of the prison or detention camp under the Ministry of Public Security, or the head of the criminal judgment enforcement agency of the provincial-level Police Department (for a person absconding from a detention camp under the provincial-level Police Department) shall issue a pursuit warrant and coordinate in the pursuit.

5. When a person sentenced to death absconds from a detention camp pending an execution decision, the superintendent of the detention camp shall promptly organize a force to pursue him/her. Past 24 hours after detecting the absconding of such person, if the pursuit has no result, the superintendent of the detention camp under the Ministry of Public Security, or the head of the criminal judgment enforcement agency of the provincial-level Police Department (for a person absconding from a detention camp under the provincial-level Police Department) shall issue a pursuit warrant and coordinate in the pursuit.

6. When a person who is serving an imprisonment sentence at a temporary custody house absconds, the criminal judgment enforcement agency of the district-level police office shall promptly organize a force to pursue him/her. Past 24 hours after detecting the absconding of such person, if the pursuit has no result, the head of the criminal judgment enforcement agency of the district-level Police Department shall request in writing the head of the criminal judgment enforcement agency of the provincial-level Police Department to issue a pursuit warrant.

7. When a person sentenced to expulsion or serving an expulsion sentence absconds, after receiving a notice from the accommodation establishment or designated place of accommodation, the criminal judgment enforcement agency of the provincial-level Police Department shall promptly organize a pursuit. If the pursuit has no result, it shall issue a pursuit warrant within 07 days.

Article 11. In case the absconders committing new crimes or through investigation being detected other crimes conducted by them

1. In case an absconder commits a new crime and is arrested, the investigative agency that settles the new case shall notify in writing the new crime to the investigative agency that has issued the pursuit warrant for issuing a decision to stop the pursuit and coordinate in investigation as prescribed by law.

2. In case an absconder commits a new crime and continue escaping, the investigative agency that settles the new case shall issue a decision to institute a criminal case against him/her and a pursuit warrant for him/her for the new crime, and notify such in writing to the investigative agency that has issued the previous pursuit warrant for coordinated to pursuit.

3. For an absconder and a pursuit warrant for him/her has been issued but later determined by a competent procedure-conducting agency that he/ she has committed other crime, an investigative agency shall perform procedures to issue a new pursuit warrant regarding the newly-detected crime.

Article 12. Splitting of, suspension or resumption of investigation into cases involving the accused being pursued

1. For a criminal case involving many accused, including an accused who is pursued, an investigative agency shall, before completing the investigation, issue a decision to separate from the case the part related to acts of the absconder (provided the separation does not affect the objective and comprehensive verification of facts of the case), and, upon the expiration of the investigation time limit, issue a decision to suspend the investigation involving such part of the case and a decision to suspend the investigation with regard to the absconder. For other accused in the case, investigation conclusions and requests for prosecution must still be issued under regulations.

2. When the absconder is arrested under the pursuit warrant, the investigative agency that has issued the pursuit warrant shall issue a decision to stop the pursuit and a decision to resume the investigation of the case and the accused under Article 165 of the Criminal Procedure Code.

Chapter III

ACTIVITIES TO BE IMPLEMENTED UPON ARREST OR RECEIPT OF WANTED PERSONS

Article 13. Handling upon arrest or receipt of persons arrested under pursuit warrants

1. After arresting or receiving a person arrested under a pursuit warrant (including the case in which the wanted person self-surrenders), an investigative agency that has arrested or received the wanted person shall take statements of the arrestee (making a personal identification statement and a fingerprint sheet and taking photos of the arrestee) and promptly send a notice (enclosed with personal identification statement, fingerprint sheet and photos of the arrestee) to the agency that has issued the pursuit warrant for receiving the arrestee.

2. If knowing that the agency that has issued the pursuit warrant cannot immediately receive the arrestee, the investigative agency that has arrested or received the arrestee shall issue a decision to keep him/her in temporary custody and send it to the procuracy at the same level. If the agency that has issued the pursuit warrant still fails to receive the arrestee, the investigative agency that has arrested or received the arrestee shall forward the case file enclosed with a written request for extension of the custody duration to the procuracy at the same level sooner than 12 hours before the expiration of the custody duration. The extension of the custody duration and approval thereof comply with Clause 2, Article 87 of the Criminal Procedure Code.

3. After receiving a notice enclosed with the personal identification statement, fingerprint sheet and photos of the arrestee, the agency that has issued the pursuit warrant shall immediately examine them for determining whether the arrestee is the wanted person. If the arrestee is the wanted person, it shall immediately receive him/her. If the arrestee is not the wanted person, it shall immediately notify such to the investigative agency currently holding the arrestee in custody for settling under law. In case it cannot immediately receive the arrestee, the agency that has issued the pursuit warrant and is competent to arrest people for detention shall promptly issue a detention order and send it together with the pursuit warrant to the procuracy at the same level for approval.

Within 24 hours after receiving a request for approval, the procuracy shall consider and approve the detention order for a person arrested under a pursuit warrant for the agency that has issued such warrant to promptly send the detention order together with the approval decision to the investigative agency that has arrested or received the arrestee. Upon receiving the detention order approved by the procuracy, the investigative agency that has arrested or received the person arrested under the pursuit warrant shall promptly send the detention order together with the procuracy's approval decision to the detention camp or custody house where the arrestee is held in custody.

4. For a person arrested under a pursuit warrant of a criminal enforcement agency or a prison or detention camp, if the agency that has issued the pursuit warrant fails to receive him/her 12 hours ago the expiration of the temporary custody duration, the legally effective judgment and the decision on execution of imprisonment sentence or expulsion sentence must be promptly sent to the investigative agency that has arrested or received the arrestee (for remote localities, these documents may be sent via facsimile and their originals to be sent later) to serve as grounds for detention, holding in custody or consignment to an accommodation establishment (for the case of execution of expulsion sentence).

5. In case a competent agency has issued a pursuit warrant at the request of a procuracy or court, within 24 hours after receiving a written notice of having arrested the wanted person, the procuracy or court requesting for pursuit shall promptly issue a detention order and send it to the investigative agency that has arrested or received the arrestee (for remote localities, the detention order may be sent via facsimile with its original to be sent later) and concurrently notify the agency that has issued the pursuit warrant of the sending of the detention order.

6. 24 hours ago the expiration of the temporary custody duration (including extended custody duration), If the detention camp or custody house fails to receive a detention order from the investiga­tive agency that has issued the pursuit warrant or from the pursuit-requesting procuracy or court, it shall promptly notify such to the investigative agency that has arrested or received the wanted person. Upon receiving the notice of the detention camp or custody house, the investigative agency that has arrested or received the wanted person shall request in writing the agency that has issued the pursuit warrant to immediately receive the arrestee.

7. In case a person subject to many pursuit warrants, the investigative agency that has arrested or received him/her shall notify the agencies that have issued the pursuit warrants under which he/she is arrested in order to receive him/her. Any agency receiving the arrestee shall notify its receipt to other agencies that have issued pursuit warrants against such person for issuance of decisions to stop pursuit and for coordinated investigation under law.

8. Upon handing over a person arrested under a pursuit warrant to the agency that has issued the pursuit warrant, the investigative agency that has arrested or received such arrestee shall also hand over a dossier including: a written record of arrest under the pursuit warrant, a written record of statements of the arrestee, a decision on temporary custody, a decision on extension of the temporary custody duration, a detention order, a decision on approval of the detention order, a personal identification statement, a fingerprint sheet and other relevant documents (if any). A written record of such handover must be made as prescribed.

9. If it is necessary to have an overnight stopover during the extradition of a wanted person, the escort(s) shall present necessary documents and request for consigning this person to the nearest custody house or detention camp. The head of the custody house or the superintendent of the detention camp shall examine the dossiers related to the wanted person and carry out procedures for admitting his/her sending.

Article 14. Application of deterrent measures and procedures for settlement upon arresting a person being pursued for his/her less serious crime

Upon arresting or receiving an accused or a defendant being wanted for a less serious crime subject to a penalty of imprisonment of 2 years or less than, an investigative agency arresting or receiving the arrestee shall issue a temporary custody decision. When the temporary custody duration or extended duration is expired, the investigative agency settling the case shall apply another deterrent measure under the Criminal Procedure Code.

Article 15. Application of deterrent measures when arresting the wanted juvenile persons

1. A wanted person who is between full 14 years and under 16 years old or between full 16 years and under 18 years old may be held in temporary custody or detained if there are sufficient grounds specified in Articles 82, 86, 88, 120 and 303 of the Criminal Procedure Code.

2. If a person was a minor when a pursuit warrant against him/her was issued but he/she is arrested when he/she was adult (aged full 18 years or older), measures of  temporary custody or detainment under the provisions of the Criminal Procedure Code may be applied as applicable to adults.

Article 16. Settlement in case a wanted person self-surrenders

1. When a wanted person self-surrenders to a state agency or social organization, the latter shall promptly notify such to the nearest police office for sending officers to receive him/her and making a written record of the surrender. If a wanted person self-surrenders to a police office, procuracy or People's Committee, the latter shall make a written record of the surrender and promptly escort him/her to a competent investigative agency.

2. Upon receiving a wanted person self-surrendering, an investigative agency shall make a written record of the surrender (if the handing agency has not yet made one) and take his/her statements on his/her crime, absconding time, reason(s) for surrendering and other relevant matters.

3. The surrendering of wanted offenders is regarded as an extenuating circumstance as prescribed in Clause 2, Article 46 of the Penal Code.

4. A person subject to an imprisonment sentence execution decision who has absconded and been pursued and now self-surrenders but suffering a serious illness (with conclusion of the medical council of a provincial or higher-level hospital) or be pregnant (certified by a district or higher-level general hospital) or is nursing an under-36-month infant or the sole laborer in his/her family (certified by the local administration) and whose family will encounter great difficulties if he/she has to serve the imprisonment sentence may be permitted by the court to suspend the serving of the imprisonment sentence under Article 61 of the Penal Code.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 17. Effect

This Circular takes effect on December 01, 2012.

All previous documents of the Ministry of Public Security, the Ministry of Justice, the Supreme People's Procuracy and the Supreme People's Court guiding the implementation of a number of provisions of the Criminal Procedure Code and the Law on Execution of Criminal Judgments on pursuit which are contrary to this Circular are hereby annulled.

Article 18. Organization of implementation

The Ministry of Public Security, the Ministry of Justice, the Supreme People's Procuracy and the Supreme People's Court shall disseminate, guide, monitor and inspect the implementation of this Circular.

Any problems arising in the course of imple­mentation should be reported to the Ministry of Public Security, the Ministry of Justice, the Supreme People's Procuracy and the Supreme People's Court for timely guidance.-