Chương 4 Luật tương trợ tư pháp 2007: Dẫn độ

Chapter IV

EXTRADITION

Article 32. Extradition for penal liability examination or judgment enforcement

1. Extradition means the hand-over by one country to another country of a person who has committed a criminal act or been criminally sentenced and is being present in its territory so that the extradition-requesting country conducts the penal liability examination or judgment enforcement against such person.

2. Vietnams competent proceedings-conducting bodies may:

a/ Request competent bodies of foreign countries to extradite to Vietnam persons who have committed criminal acts or been criminally sentenced and their sentences have already taken legal effect for penal liability examination or judgment enforcement;

b/ Extradite foreigners staying in the Vietnamese territory who have committed criminal acts or been criminally sentenced and their sentences have already taken legal effect to requesting countries for penal liability examination or judgment enforcement.

Article 33. Cases of extradition

1. Persons who may be extradited under the provisions of this Law are those who commit criminal acts for which the Penal Code of Vietnam or the criminal law of the requesting country prescribes penalties of one or more years in prison, life imprisonment or death penalty or who have been sentenced to imprisonment by a court of the requesting country and the remaining imprisonment duration is at least six months.

2. Criminal acts of the persons defined in Clause 1 of this Article must not necessarily be in the same category of crimes or the same crime, and the factors that constitute their offenses must not necessarily be the same under the laws of Vietnam and the requesting countries.

3. If criminal acts of the persons defined in Clause 1 of this Article took place outside the territory of the requesting countries, the extradition of offenders may be effected if those acts are criminal acts prescribed in Vietnams Penal Code.

Article 34. Non-examination of penal liability, non-extradition to a third country

Persons extradited to Vietnam will not be examined for penal liability or extradited to a third country for the acts they have committed in foreign countries before their extradition to Vietnam which, however, do not constitute crimes under Vietnams Penal Code and are not stated in the extradition requests of Vietnam or a third country.

In case Vietnam is requested to make extradition, the extradition is effected only when the extradition-requesting countries commit not to examine the penal liability of the extradited persons for criminal acts other than those stated in the extradition requests and not to extradite such persons to a third country, unless it is so agreed in writing by Vietnam.

Article 35. Refusal of extradition to foreign countries

1. Competent proceedings-conducting bodies of Vietnam may refuse extradition if the extradition requests fall into one of the following cases:

a/ The persons requested for extradition are Vietnamese citizens;

b/ Under Vietnamese law, the persons requested for extradition cannot be examined for penal liability or serve their penalties due to expired statute of limitations or other lawful reasons;

c/ The persons requested for extradition for penal liability examination have already been condemned by Vietnamese courts with legally effective judgments for the criminal acts stated in the extradition requests or the cases have been suspended under Vietnams criminal procedure law;

d/ The persons requested for extradition are those who are residing in Vietnam for reasons of possible coercion in the extradition-requesting country due to discrimination of race, religion, gender, nationality, ethnicity, social class or political viewpoint;

dd/ The extradition requests are related to different crimes and each crime can be examined for penal liability under the law of the extradition-requesting country, but fail to comply with Clause 1, Article 33 of this Law.

2. Apart from the cases of extradition refusal specified in Clause 1 of this Article, competent proceedings-conducting bodies of Vietnam may refuse extradition if the extradition requests fall into one of the following cases:

a/ Acts committed by persons requested for extradition are not crimes under Vietnams Penal Code;

b/ Persons requested for extradition are being examined for penal liability in Vietnam for the criminal acts stated in the extradition requests.

3. Competent proceedings-conducting bodies of Vietnam that refuse extradition under the provisions of Clauses 1 and 2 of this Article shall notify their counterparts in the extradition-requesting countries thereof.

Article 36. Extradition request dossiers

1. An extradition request dossier must comprise the following documents:

a/ The competent bodys written request for extradition;

b/ The enclosed documents defined in Article 37 of this Law.

2. An extradition request dossier shall be made in three sets under the provisions of this Law and the law of the requesting country. Language used in the dossier complies with Article 5 of this Law.

Article 37. Written extradition requests and enclosed documents

1. A written extradition request must contain the following details:

a/ Date, month, year and place of making the request;

b/ The reason for the extradition request;

c/ Name and address of the competent body requesting the extradition;

d/ Name and address of the body requested to effect the extradition;

dd/ Full name, gender, birth date, nationality, residence place of, and other necessary information on, the person requested for extradition.

2. A written extradition request must be enclosed with the following documents:

a/ The summarized content of the case;

b/ Legal provisions applicable for the determination of factors constituting the crime and name of the crime, the provisions on penalties, the statute of limitations for penal liability examination or the statute of limitations for enforcement of penalties against that crime;

c/ Papers on the nationality and place of residence of the person requested for extradition, if any;

d/ Other documents describing the identity and photos of the person requested for extradition as required by international law and practice.

3. In case of requesting extradition for penal liability examination, in addition to the documents specified in Clauses 1 and 2 of this Article, the following documents are also required:

a/ A copy of the arrest or detention warrant of a competent body of the extradition-requesting country;

b/ The written certification that the person requested for extradition is the one mentioned in the arrest or detention warrant.

4. In case of requesting extradition for judgment enforcement, in addition to the documents specified in Clauses 1 and 2 of this Article, the following documents are also required:

a/ A copy of the criminal judgment or ruling of the court of the extradition-requesting country;

b/ The written certification that the person requested for extradition is the one already sentenced.

Article 38. Receipt of extradition requests

Within twenty days after the receipt of extradition requests and enclosed documents, the Ministry of Public Security shall record in the extradition dossier book and check the dossiers under the provisions of Article 36 of this Law. It may request competent bodies of the extradition-requesting countries to supply information supplementing the dossiers. If it does not receive any additional information within sixty days after the sending of its written requests for additional information, the Ministry of Public Security shall return the dossiers to the extradition-requesting countries and clearly state the reasons therefor. If the dossiers are valid, the Ministry of Public Security shall immediately forward two dossier sets to competent provincial-level Peoples Courts for consideration and decision.

Article 39. Consideration of many countries requests for extradition of one person

1. In case the Ministry of Public Security receives written requests of two or more countries for the extradition of one person for the same crime or many different crimes, it shall assume the prime responsibility for, and coordinate with the Ministry of Foreign Affairs, the Ministry of Justice, the Supreme Peoples Procuracy and the Supreme Peoples Court in, considering them and deciding to meet the extradition request of one of the requesting countries and transfer the extradition request dossiers to the concerned provincial-level Peoples Court for extradition consideration and decision.

2. Upon consideration of extradition requests prescribed in Clause 1 of this Article, apart from legal provisions, the following relevant factors must also be taken into account:

a/ The effectual nationality and last place of residence of the person requested for extradition;

b/ The legality and compatibility of the extradition request;

c/ The time and place of crime commission;

d/ Specific interests of the requesting countries;

dd/ The severity of the crime;

e/ The nationality of the victim;

g/ The possibility of subsequent extradition between the extradition-requesting countries;

h/ The date of making the extradition request;

i/ Other relevant factors.

Article 40. Extradition decision

1. Within ten working days after the receipt of extradition request dossiers transferred by the Ministry of Public Security, the provincial-level Peoples Courts of the localities where the persons requested for extradition are residing, being detained or held in custody or serving their imprisonment sentences shall handle them and notify the Peoples Procuracies of the same level thereof in writing. While preparing to consider the extradition requests, the concerned provincial-level Peoples Courts may request competent bodies of foreign countries to clarify unclear points in the extradition request dossiers. Written extradition requests and written replies shall be sent via the Ministry of Public Security.

2. Within four months after handling the requests, provincial-level Peoples Courts shall, on a case-by-case basis, issue one of the following decisions:

a/ Decision to consider the extradition request when the conditions prescribed by this Law are fully met;

b/ Decision to suspend the consideration of the extradition request and return the dossier to the Ministry of Public Security in case the request does not fall under their jurisdiction, the foreign country withdraws the extradition request or the person requested for extradition has left Vietnam or for other reasons the consideration cannot proceed.

3. Provincial-level Peoples Courts shall consider an extradition request within thirty days after issuing the decision defined at Point a, Clause 2 of this Article and immediately transfer a dossier set to the Peoples Procuracies of the same level.

4. The extradition request shall be considered at sessions of a council consisting of three judges, including a presiding judge, with the participation of members of the Peoples Procuracy of the same level.

The extradition request-considering council works in the following order:

a/ A council member presents the contents of the dossier of the extradition-requesting country and states his/her opinions on the legal grounds of the extradition;

b/ The procurator states the Peoples Procuracys viewpoints on the extradition;

c/ The lawyer or lawful representative of the person requested for extradition presents his/her opinions, if any;

d/ The person requested for extradition states his/her opinions;

dd/ Based on the provisions of this Law, relevant provisions of other Vietnamese laws and treaties to which Vietnam is a contracting party, the council discusses and decide by majority on the extradition or extradition refusal.

5. Within five working days after the issue of decisions on extradition or extradition refusal, the provincial-level Peoples Courts shall send the decisions to the persons requested for extradition, the Peoples Procuracies of the same level and the Ministry of Public Security for the exercise of rights and performance of obligations according to law.

Persons requested for extradition may appeal and the Peoples Procuracies of the same level may protest within fifteen days, the Supreme Peoples Procuracy may protest within thirty days as from the date the provincial-level Peoples Courts issue decisions. The provincial-level Peoples Courts shall forward the dossiers, appeals and protests to the Supreme Peoples Court within seven days from the date the appeal or protest time limit expires.

Within twenty days after receiving the extradition dossiers and appeals or protests, the Supreme Peoples Court shall open court sessions to consider the appealed or protested decisions of the provincial-level Peoples Courts; the appellate council shall decide on the extradition or extradition refusal. The order for examination of appeals or protests against extradition decisions of provincial-level Peoples Courts complies with Clause 4 of this Article.

6. Legally effective extradition decisions include:

a/ Decisions of first-instance courts, which are not appealed or protested against;

b/ Decisions of the courts of appeal.

Article 41. Precautionary measures for extradition

Upon receipt of official extradition requests of foreign countries, competent bodies of Vietnam may apply precautionary measures under Vietnamese law and treaties to which Vietnam is a contracting party in order to ensure consideration of extradition requests.

Article 42. Enforcement of extradition decisions

1. Within five working days from the date the extradition decisions of Peoples Courts take legal effect, the presidents of competent provincial-level Peoples Courts shall issue decisions to enforce the extradition decisions. The decisions on enforcement of extradition decisions must be addressed to the Peoples Procuracies of the same level, the Ministry of Public Security, the extradition-requesting countries and the extradited persons.

2. After the receipt of decisions on enforcement of extradition decisions, competent police offices shall proceed with the arrest of the extradited persons. The arrest of extradited persons complies with Vietnams criminal procedure law and treaties to which Vietnam is a contracting party.

The Ministry of Public Security shall organize the enforcement of extradition and notify in writing the extradition-requesting countries thereof.

Article 43. Escorting extradited persons

1. The police offices enforcing the extradition decisions shall organize the escort of extradited persons according to the receipt time and place agreed upon in advance in writing by Vietnam and the requesting country. The time for receipt of an extradited person must not exceed fifteen days from the date the decision on enforcement of the extradition decision takes effect.

2. If the time limit agreed upon in advance by the concerned countries expires while the extradition-requesting country declines to receive the extradited person, the Ministry of Public Security shall propose the provincial-level Peoples Court that has issued the extradition decision to cancel the decision on enforcement of that extradition decision and notify the extradition-requesting country thereof.

Article 44. Postponement of enforcement of extradition decisions and temporary extradition

1. When persons requested for extradition are being examined for penal liability or serving their imprisonment sentences in the Vietnamese territory for crimes other than the crimes requested for extradition, provincial-level Peoples Courts that have issued extradition decisions may themselves or at the proposal of the Peoples Procuracies or police offices of the same level postpone the enforcement of the decisions on extradition of those persons until the process of penal liability examination ends or the declared judgments are fully or partly served. The Ministry of Public Security shall notify the extradition-requesting countries in writing of the extradition postponement at least ten working days before the expiration of the time limit for postponement of enforcement of the extradition decisions. The presidents of provincial-level Peoples Courts that have postponed the enforcement of the extradition decisions shall issue decisions to enforce the extradition decisions and send them together with relevant documents and dossiers to the police offices enforcing the extradition decisions for notification to the requesting countries and continued extradition under the specific agreement with the requesting countries.

2. If the postponement of the enforcement of extradition decisions under Clause 1 of this Article obstructs the penal liability examination in foreign countries due to the expiration of the statute of limitation therefor or causes serious difficulties to the penal liability examination for the crimes under extradition requests, at the proposal of the Peoples Procuracies or police offices and the proposal of the requesting countries, competent Peoples Courts, based on Vietnamese law and specific agreements with the requesting countries, may issue decisions permitting the temporary extradition of the persons requested for extradition to the extradition-requesting countries under this Law.

3. Persons subject to temporary extradition must be immediately returned to Vietnam after the criminal proceedings of the requesting countries end or the temporary extradition duration agreed upon by Vietnam and the concerned foreign countries has expired. Upon new extradition requests of the requesting countries, Vietnamese courts shall consider under the provisions of this Law to agree on the new extradition if there are plausible reasons therefor.

Article 45. Re-extradition

If extradited persons evade penal liability examination or penalty service in foreign countries and return to Vietnam, the extradition-requesting countries may send requests for re-extradition of such persons together with the documents defined in Articles 36 and 37 of this Law; in this case, provincial-level Peoples Courts do not renew the procedures for extradition decisions under Article 40 of this Law; the presidents of provincial-level Peoples Courts who have issued previous extradition decisions shall decide to re-extradite such persons. The escort of extradited persons must again comply with Article 43 of this Law.

Article 46. Transfer of articles and material evidence related to criminal cases

Articles and material evidence acquired from crime commission or serving as proofs at court sessions can be considered for transfer to extradition-requesting countries in accordance with treaties to which Vietnam and the extradition-requesting countries are contracting parties on the basis of respecting the rights of a third party.

Article 47. Transit

1. On the basis of treaties to which Vietnam is a contracting party and the provisions of Vietnamese law, the escort of extradited persons in transit through Vietnamese territory to the extradition-requesting countries shall be carried out only after Vietnamese competent bodies approve in writing the requests of foreign countries.

2. In case of transfer by air and transit without landing on Vietnamese territory, the movement of extradited persons needs not apply for transit in Vietnam; in case of landing, the extraditing countries shall immediately send their requests for transit through Vietnam under Clause 1 of this Article.

Article 48. Extradition expenses

Extradition-requesting countries shall bear all extradition expenses, unless otherwise agreed upon. In case Vietnam bears extradition expenses, those expenses shall be covered by the state budget.