Chương 5 Luật tương trợ tư pháp 2007: Chuyển giao người đang chấp hành hình phạt tù

Chapter V

TRANSFER OF CURRENT IMPRISONMENT SERVERS

Article 49. Grounds for transfer of current imprisonment servers

1. Current imprisonment servers may be transferred to the countries of which they bear the nationality or other countries, which agree with the transfer for continued service of their imprisonment sentences already declared against them by the transferring countries.

2. The transfer shall be based on treaties to which Vietnam is a contracting party upon request of current imprisonment servers or request of competent bodies of the transferring countries or receiving countries; in case of non-availability of treaties related to transfer, the transfer of current imprisonment servers is carried out under the direct agreement between competent bodies of Vietnam and the concerned countries in accordance with this Law, other relevant Vietnamese laws, and international law and practice.

Article 50. Conditions for receipt and transfer of current imprisonment servers

1. Persons who are serving their imprisonment penalties in foreign countries may be received back to Vietnam for enforcement of imprisonment penalties when the following conditions are fully met:

a/ They are Vietnamese citizens;

b/ They have their last place of residence in Vietnam;

c/ The criminal acts for which those persons are sentenced in foreign countries also constitute crimes under Vietnamese law;

d/ By the time of receiving the transfer requests, the remaining duration of serving the imprisonment penalties is at least one year; in special cases, this duration may be six months;

dd/ The judgment against the transferees have already taken legal effect and there are no more procedures against such persons in the transferring countries;

e/ It is so consented by the transferring countries;

g/ It is so consented by the transferees.

2. Persons serving their imprisonment penalties in Vietnam may be transferred to foreign countries for enforcement of imprisonment sentences when the following conditions are fully met:

a/ They are citizens of the receiving countries or are persons permitted for indefinite residence or having their relatives in the receiving countries;

b/ They fully satisfy the conditions defined at Points c, d, e, f and g, Clause 1 of this Article and have fulfilled their civil liabilities, additional sanctions being fines, property confiscation and other legal responsibilities in the judgments;

c/ It is so consented by the receiving countries.

Article 51. Refusal to transfer persons serving their imprisonment penalties

Competent bodies of Vietnam shall refuse to transfer persons serving their imprisonment penalties in Vietnam to foreign countries in one of the following circumstances:

1. When they have grounds to believe that the transferees may be tortured, retaliated or oppressed in the receiving countries;

2. The transfer may harm the national sovereignty or security of Vietnam.

Article 52. Dossiers of request for transfer of current imprisonment servers

1. A dossier of request for transfer of a current imprisonment server comprises the following documents:

a/ The written request of a competent body of the country where the subject person is serving his/her imprisonment penalty for the transfer of that person;

b/ The enclosed documents defined in Article 53 of this Law.

2. A dossier of request for transfer of a current imprisonment server shall be made in three sets in accordance with this Law and the law of the requested countries. Language used in the dossiers complies with Article 5 of this Law.

Article 53. Written requests for transfer of current imprisonment servers and enclosed documents

1. A dossier of request for transfer of a current imprisonment server covers the following contents:

a/ The date and place of making the dossier;

b/ The reasons for requesting the transfer of the current imprisonment server;

c/ The name and address of the competent body requesting the transfer of the current imprisonment server;

d/ The name and address of the body requested to transfer the current imprisonment server;

dd/ Full names, gender, date of birth, nationality and last residence place and the legal grounds on the full legal capacity of the transferee for the transfer and other necessary information on the person requested for the transfer.

2. Enclosed with a written request for transfer of a current imprisonment server are the following information and documents:

a/ Documents to prove that the person requested for transfer has fully satisfied the conditions defined in Article 50 of this Law;

b/ The written summary of the contents of the case, copies of the court judgment or ruling against the current imprisonment server requested for transfer;

c/ The provisions of law applicable to the determination of factors constituting the crime and the name of the crime, the provisions on penalties, the statute of limitations for enforcement of the judgment against such offender;

d/ The written description of the identity characters and photos of the person requested for transfer as provided for by international law and practice;

dd/ Documents and materials certifying the duration for which the person requested for transfer has served his/her imprisonment penalty in the country requested to make the transfer and the remaining duration for which he/she shall serve his/her imprisonment penalty in the receiving country;

e/ Documents related to the health conditions, mental status, medical records of the person requested for transfer, if any;

g/ The treaty between the requested country and the receiving country.

Article 54. Receipt of requests for transfer of current imprisonment servers

Within twenty days after the receipt of a written request for transfer of a current imprisonment server and enclosed documents, the Ministry of Public Security shall record in the transfer dossier book and check the dossier as provided for in Articles 52 and 53 of this Law. It may request competent bodies of the transfer-requesting country to supply information supplementing the dossier. If within sixty days after the sending of a written request for additional information the Ministry of Public Security does not receive any additional information, it shall return the dossier to the country requesting the transfer of the current imprisonment server and clearly state the reasons therefor. If the dossier is valid, the Ministry of Public Security shall transfer two dossier sets to the competent provincial-level Peoples Court for consideration and decision.

Article 55. Decision on transfer of persons serving their imprisonment penalties in Vietnam to foreign countries

1. Within ten working days after the receipt of complete dossiers of request for transfer of persons currently serving their imprisonment penalties in Vietnam to foreign countries, which are forwarded by the Ministry of Public Security, provincial-level Peoples Courts of the localities where the condemned persons are serving their imprisonment penalties shall handle the cases and notify in writing the Peoples Procuracies of the same level thereof. While preparing to take into consideration the requests for transfer of current imprisonment servers, the Peoples Courts may request competent bodies of the foreign countries to clarify unclear points in the dossiers of request for transfer. Written requests and written replies are sent via the Ministry of Public Security.

2. Within thirty days from the date of handling the cases, provincial-level Peoples Courts shall, on a case-by-case basis, issue one of the following decisions:

a/ Decision to consider the transfer request when the conditions defined in Article 50 of this Law are fully met;

b/ Decision to suspend the consideration of the transfer requests and return the dossiers to the Ministry of Public Security if the cases do not fall under their jurisdiction or the competent bodies of the foreign countries or persons requesting the transfer withdraw their transfer requests or the persons requested for transfer have left Vietnam, or for other reasons which make the consideration impossible.

3. Provincial-level Peoples Courts shall consider a transfer request within thirty days from the date of 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. Transfer requests shall be considered at sessions of a council comprising three judges, including a presiding judge, with the participation of procurators of the Peoples Procuracies of the same level.

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

a/ A council member presents the contents of the dossiers of the transfer-requesting country and states the opinions on legal grounds of the transfer;

b/ The procurator states the viewpoints of the Peoples Procuracies on the transfer;

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

d/ The transfer-requesting person states his/ her opinions;

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

5. Within ten working days after the issue of decisions on transfer or refusal of transfer, the provincial-level Peoples Courts shall send those decisions to the transferees, the Peoples Procuracies of the same level and the Ministry of Public Security for the performance of rights and obligations as prescribed by law.

The transfer requesters may appeal, the Peoples Procuracies of the same level may protest within fifteen days and the Supreme Peoples Procuracy may protest within thirty days after the provincial-level Peoples Courts issue decisions. Provincial-level Peoples Courts must send the dossiers and appeals as well as protests to the Supreme Peoples Court within seven days after the appeal or protest time limit expires.

Within twenty days after the receipt of transfer dossiers and appeals or protests, the Supreme Peoples Court shall meet to consider the appealed or protested decisions of provincial-level Peoples Courts; the appellate consideration council shall decide on the transfer or refusal of transfer. The order of considering appeals or protests against transfer decisions of provincial-level Peoples Courts complies with Clause 4 of this Article.

6. Legally effective transfer decisions include:

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

b/ Decisions of the courts of appeal.

Article 56. Competence to decide on receipt of persons currently serving their imprisonment penalties in foreign countries back to Vietnam

Provincial-level Peoples Courts of the localities where the transferees last reside in Vietnam shall decide on the receipt. The order and procedures for consideration of the receipt comply with Article 55 of this Law.

Article 57. Enforcement of decisions on transfer of current imprisonment servers

1. Within five working days after the date the Peoples Courts decisions on transfer of current imprisonment servers take effect, the presidents of the courts which have issued the first-instance decisions shall issue decisions on enforcement of the transfer decisions. The decisions on enforcement of transfer decisions must be addressed to the Peoples Procuracy of the same level, the Ministry of Public Security, the competent bodies of the transfer-requesting countries and the transferees.

2. The Ministry of Public Security shall organize the transfer provided in Clause 1 of this Article and notify the transfer-requesting countries thereof in writing.

Article 58. Continued service of penalties in Vietnam

1. The transferees continued service of imprisonment in Vietnam complies with the provisions of Vietnamese law.

2. Where the prison terms declared by the transferring countries conform to Vietnamese law, competent Peoples Courts shall issue decisions on transfer receipt. The transfer-receiving decisions must clearly state the duration for which the transferees must continue serving their imprisonment penalties in Vietnam.

If the nature or terms of the penalties declared by the transferring countries do not conform to Vietnamese law, competent Peoples Courts shall issue decisions to receive the transfer and, based on the case circumstances, issue decisions to convert the penalties to suit the provisions of Vietnams Penal Code. The duration for serving the imprisonment penalties in Vietnam according to the convened penalties must not be longer than the penalties declared in the transferring countries.

3. Upon receipt of notices on special amnesty, general amnesty, penalty exemption or reduction decisions of the transferring countries for current imprisonment servers, the Ministry of Public Security shall immediately send such notices to competent state bodies for consideration and decisions

Article 59. Escort of transferees

1. The Ministry of Public Security enforcing the decisions on transfer of current imprisonment servers shall organize the escort of transferees to the places and at the time agreed upon in writing by competent bodies of Vietnam and the transfer-requesting countries.

2. If the agreed time limit provided for in Clause 1 of this Article has expired while the transfer-requesting countries decline to receive the transferees, the Ministry of Public Security shall propose competent Peoples Courts which have issued transfer decisions to cancel the decisions on enforcement of such transfer decisions and notify the transfer-requesting countries thereof.

Article 60. Expenses for transfer of current imprisonment servers

Countries requesting the transfer of current imprisonment servers shall bear all expenses for the transfer, unless otherwise agreed upon. In case Vietnam bears the expenses for transfer of current imprisonment servers, those expenses shall be covered by the state budget.

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