Bản dịch văn bản 09/2005/TT-BCA
thong-tu-09-2005-tt-bca
Cơ quan ban hành: Bộ Công an
Ngày ban hành: 2005-09-05

CIRCULAR Guiding the implementation of a number of articles of the Government's Decree no. 38/2005/ND-CP of march 18, 2005, stipulating a number of measures to ensure public order Pursuant to the Government's Decree No. 38/2005/ND-CP of March 18, 2005, stipulating a number of measures to ensure public order; Pursuant to the Government's Decree No. 136/2003/ND-CP of November 14, 2003, defining the functions, tasks, powers and organizational structure of the Public Security Ministry; In order to contribute to maintaining public order and guaranteeing democratic freedoms of citizens provided for by law, the Public Security Ministry hereby guides in detail a number of articles of the Government's Decree No. 38/2005/ND-CP of March 18, 2005, stipulating a number of measures to ensure public order as follows: 1. Responsibilities to ensure public order Domestic agencies, organizations and individuals; and foreign organizations and individuals residing, studying, working and/or living in the Vietnamese territory shall have to strictly comply with the provisions of the Government's Decree No. 38/2005/ND-CP of March 18, 2005, stipulating a number of measures to ensure public order (hereinafter referred to as Decree No. 38 for short), the guidance in this Circular and other relevant provisions of law on assurance of public order; respect the common rules of social life; detect and denounce all acts of violating the law on public order or infringing upon democratic freedoms of citizens and foreigners; join and help functional agencies in promptly detecting, preventing and handling violations of the law on public order. 2. Prohibited acts according to the provisions of Article 5 of Decree No. 38: 2.1. Abusing citizens' democratic freedoms to carry out or organize, or induce, incite, buy off, deceive, force or encourage others to carry out illegal mass rallies, causing public disorder or for purpose of committing other law-breaking acts. 2.2. Hiring, willing to be hired by or lending a hand to others in committing acts of violating the law on public order. 2.3. Gathering in big rallies against provisions of law at public places, in front of head offices of agencies or organizations or at places where international conferences, sessions of the National Assembly or People's Councils or other important political activities of the Party, the State and socio-political organizations are taking place. 2.4. Conducting activities of mass rallies at public places according to the provisions of Decree No. 38 and the guidance of this Circular without permission of competent People's Committees. 2.5. Impeding or affecting normal activities of agencies, organizations or leading officials of the agencies of the Party, the State, the Vietnam Fatherland Front and socio-political organizations at the central and local levels; obstructing or affecting traffic order and safety. 2.6. Disturbing public order or committing other acts of affecting security, order and the people's normal life, running counter to the fine traditions and customs and civilized manners at public places, or causing environmental pollution. 2.7. Carrying along banners, flags or slogans in any form to mass rallies at public places in order to oppose the Party's lines and policies and the State's laws, or carrying weapons, explosive materials, toxic substances, inflammables, stimulants or other things which may affect others' life and health, assets of the State, other organizations and individuals. 2.8. Failing to comply with regulations on restricted areas or protected areas and instructions of persons responsible for settling related cases or matters; obstructing or resisting officials on public duty; committing acts of infringing upon others' life, health, honor or dignity, assets of the State, organizations or individuals, or other extreme acts such as: shouting, cursing, smashing and destroying things; verbally abusing or threatening to assault others. 2.9. Abusing one's positions, powers or assigned tasks to tolerate, cover up, impede the handling of or failing to strictly handle acts of violating the law on assurance of public order. 3. Principles for handling acts of violating the law on assurance of public order 3.1. All acts of violating provisions of law on assurance of public order must be promptly detected and strictly handled in accordance with the provisions of law. 3.2. People's Committees at all levels in localities, where illegal mass rallies take place or where other acts of violating the law on assurance of public order are committed, shall have to assume the prime responsibility for, and coordinate with People's Committees of localities where violators reside and functional agencies in, organizing the application of measures to ensure public security and order, dispersing illegal mass rallies, and handling violators according to the provisions of law. 3.3. Measures of temporarily holding persons in custody or temporarily seizing means, searching bodies or means or other coercive measures provided for by law shall be applied only after guiding, educative and persuasive measures have been applied but violators still fail to abide by or intentionally break law, resist enforcement, disturb public order or commit other serious law-breaking acts. 3.4. For cases where citizens' democratic freedoms are abused to conduct illegal mass rallies for purpose of opposing people's administrations or cases where illegal mass rallies involve the use of force, weapons, explosive materials, toxic substances, inflammables or other tools or means, which may affect others' life and health, damage assets of the State, organizations or individuals, apart from implementing the provisions of Decree No. 38 and the guidance in this Circular, functional agencies shall also have to apply other measures provided for by law to promptly prevent and strictly handle such acts of violation. 4. Provisions on mass rallies at public places 4.1. Mass rallies at public places under the provisions of Decree No. 38 and the guidance in this Circular mean the assembly of five persons or more at public-service areas or places such as pavements, roadbeds, squares, economic or cultural establishments, places of communal activities; within premises of offices of state agencies, socio-economic organizations or at other public places in order to put forward proposals or petitions on matters related to legitimate rights and interests of individuals, households or organizations, or on common issues related to socio-political life and/or legitimate rights and interests of organizations or other individuals. 4.2. All mass rallies at public places under the provisions of Decree No. 38 and the guidance in this Circular must be registered in advance with district-level or provincial-level People's Committees under the guidance at Point 6 of this Circular. Such activities shall only be permitted to take place from 8 hrs. to 17 hrs. everyday, unless otherwise provided for by law. 4.3. Provisions on registration of mass rallies at public places under the provisions of Decree No. 38 and the guidance in this Circular shall not apply to activities organized by the Party or State bodies, the Vietnam Fatherland Front and socio-political organizations. 5. Registrants or representatives of organizations registering mass rallies at public places 5.1. Registrants or representatives of organizations registering mass rallies at public places must be aged full 18 years or older, have full civil act capacity and do not fall into one of the following cases: a/ Persons who are being examined for penal liability, subject to the ban from traveling from their places of residence or serving non-custodial reform penalty, residence ban or probation; persons who are entitled to suspended sentences and in the test period. b/ Persons who are being booked for request to apply other administrative handling measures provided for by the law on handling of administrative violations or who are subject to such administrative handling measures as probation, education in communes, wards or district townships. c/ Persons who are enjoying reprieve or temporary suspension of execution of their imprisonment sentences or reprieve of execution of decisions on application of such administrative measures as consignment into education camps, medical treatment establishments or reformatories. d/ Convicted persons whose criminal records have not yet been remitted; persons who have been subject to application of such administrative handling measures as administrative probation or consignment into medical treatment establishments, education camps or reformatories, but the time limit for being regarded as having not been administratively handled has not expired. 5.2. Registrants or representatives of organizations registering mass rallies at public places shall be held responsible before law for registration contents and the process of conducting mass rallies at public places. Any violation shall be strictly handled according to the provisions of law. 6. Procedures for registering mass rallies at public places 6.1. Before conducting mass rallies at public places, registrants or representatives of organizations registering such activities must submit registration dossiers to district-level or provincial-level People's Committees of localities where such rallies are expected to take place, more concretely as follows: a/ In cases where a mass rally at public places takes place within a rural or urban district or a provincial capital or town (hereinafter referred collectively to as district), the registration thereof must be made with the People's Committee of the district where such rally is expected to take place. b/ In cases where a mass rally at public places takes place within many districts or within a district with the participation of people from many districts or provinces, or where a mass rally taking place in a province is attended by people from another province, the registration thereof must be made with the People's Committee of the province or centrally-run city (hereinafter referred to as provincial-level People's Committee) where such mass rally is expected to take place. 6.2. Dossiers of registration of mass rallies at public places shall each comprise: a/ A written registration of a mass rally at public places, made according to a set form; b/ The resume of the registrant or the representative of the organization registering the mass rally at public places, made according to a set form. When submitting registration dossiers, registrants must produce their identity cards or other papers of equivalent value for comparison. 6.3. Dossier-receiving officials shall have to examine dossiers and, if such dossiers are complete and valid, accept them and issue written appointments for reply within the prescribed time limit to the dossier submitters. Within seven days (excluding weekends and public holidays according to regulations) after receiving valid registration dossiers, district-level or provincial-level People's Committees shall have to direct functional agencies in comprehensively studying and considering matters related to the assurance of public security and order before deciding to allow or disallow such rallies, and issue written notices thereon (made according to set forms, not printed herein) to registration dossier submitters. 6.4. In case of changes of the rallying time or places or other registered contents of written registrations of mass rallies at public places, registrants or representatives of organizations registering such activities must send written requests for such changes to the People's Committees where they have previously submitted registration dossiers for consideration and settlement; the time limit, procedures and competence for effecting such changes shall comply with regulations applicable to cases of first-time registration. 6.5. The sending, delivery and receipt of documents mentioned at Points 6.1, 6.2, 6.3 and 6.4 above shall be conducted at district-level or provincial-level People's Committees and must be recorded in monitoring books, with signatures of deliverers and receivers of such documents. 7. Cases where mass rallies at public places are not allowed District-level or provincial-level People's Committees shall not allow mass rallies at public places to be conducted in one of the following cases: 7.1. One of the prohibited acts specified in Article 5 of Decree No. 38 and guided at Point 2 of this Circular is taken. 7.2. Registrants or representatives of organizations registering mass rallies at public places fall into one of the cases specified at Point 5.1 of this Circular. 7.3. There exist false declarations in dossiers of registration of mass rallies at public places; 7.4. Such mass rallies at public places, once conducted, may seriously affect public security and order, the environment, fine customs and cultural traditions of the nation; adversely impact the unity of the entire population, nationalities and religions and the realization of other social policies of the Party and the State. 8. Suspension, termination of, or cancellation of allowance for, mass rallies at public places 8.1. Presidents of People's Committees which have allowed mass rallies at public places or presidents of immediate higher-level People's Committees may issue decisions on suspension, termination of, or cancellation of allowance for, mass rallies at public places in one of the following cases: a/ Such activities violate the provisions of Point 7 of this Circular; b/ Contents of written registrations of mass rallies at public places are not strictly complied with; c/ Such mass rallies at public places have or would have seriously affected public security and order, or the environment; adversely impacted the unity of the entire population, nationalities and religions; or run counter to the fine customs and cultural traditions of the nation. d/ Participants in mass rallies at public places commit acts of infringing upon life, health, honor or dignity of other persons; causing damage to assets of the State, organizations or individuals; resisting officials on duty or other serious law-breaking acts. 8.2. Decisions on suspension, termination of, or cancellation of allowance for, mass rallies at public places must be made in writing and sent to organizations or individuals that have submitted registration dossiers for implementation; in cases where such activities have been conducted or are being conducted, such decisions, apart from being sent to organizations or individuals that have submitted registration dossiers, must be promptly notified to participants in such activities for implementation, and concurrently sent to police departments at the same level for inspection and monitoring of implementation. In cases where, due to urgent requirements of assurance of public order, presidents of competent People's Committees may make verbal decisions on suspension, termination of, or cancellation of allowance for, mass rallies at public places, but must subsequently notify such decisions in writing to the registration dossier submitters and the police departments at the same level. Where decisions are issued by presidents of provincial-level People's Committees, they must also be notified to district-level People's Committees which have permitted such activities for directing and monitoring the implementation thereof. Concerned agencies, organizations and individuals shall have to strictly abide by decisions of competent People's Committee presidents. All acts of intentionally opposing or failing to abide by decisions of People's Committee presidents, resisting officials on duty or other violation acts must be promptly prevented and strictly handled according to the provisions of law. 9. Measures to ensure public order 9.1. Basing themselves on specific requirements of assurance of public order and requests of directors of police departments, provincial-level People's Committee presidents shall stipulate protected areas, areas where mass rallies, sound-recording, video-recording or photo-taking are prohibited; or no-passage routes or no-entry areas for persons and means of transport. In the absence of such stipulations of provincial-level People's Committee presidents, the district police chiefs must, due to urgent requirements of assurance of public order, promptly report such to the directors of provincial-level police departments for decision on setting up protected areas, areas where mass rallies, sound-recording, video-recording or photo-taking are prohibited; or provisional no-passage routes or no-entry areas for persons and means of transport. Subsequently, such areas must be promptly reported to People's Committee presidents of the same level for consideration and decision according to their competence. 9.2. When illegal mass rallies at public places take place, presidents of People's Committees at all levels shall have to direct functional agencies in applying timely handling measures to ensure public order and handle violators. In case of necessity, they must promptly report thereon to their immediate superiors for direction. 9.3. For cases where illegal mass rallies at public places for purpose of putting forward proposals or petitions on certain matters are organized in an orderly manner, representatives of local administrations or relevant functional agencies or forces tasked to protect public order shall have to give explanations and instructions to participants so that they voluntarily disperse and strictly abide by provisions of law on complaints, denunciations and assurance of public order. Where violators keep failing to abide by the provisions of law or commit acts of disturbing public order after being instructed, educated, persuaded or requested for dispersal, the above-said persons shall make written records thereon, requesting violators to immediately stop their violation acts. Where violators still fail to comply with law or commit acts of resisting officials on duty, they shall be subject to examination of identity cards, body and means search, temporary detention, seizure of material evidences and/or means of violation, or other necessary measures provided for by law, to ensure public order and handle violators. Upon detecting that violators carry weapons or other dangerous things, the said persons must immediately seize them. Where violators come from other provinces, People's Committees of provinces where illegal mass rallies at public places take place shall have to notify such to People's Committees of provinces where violators reside for coordinated handling. Upon receipt of notices, People's Committees of provinces where violators reside shall have to immediately send their officials to rallying places to force such violators to return to their places of residence. 9.4. For illegal mass rallies where weapons, explosive materials or other dangerous things are used for purpose of opposing people's authority, resisting or attacking officials on duty, disturbing public order or committing other particularly serious violations of regulations on assurance of public order, functional forces shall, on a case-by-case basis, take initiative in promptly applying measures and using necessary means and support tools as provided for by law, such as: putting up barricades, temporarily suspending or prohibiting persons or means of transport from traveling on some routes or entering or leaving certain areas, using support tools and other tools and means for legitimate self-defense or for promptly preventing or neutralizing resisting acts of violators. 9.5. While performing their tasks, functional forces may use weapons, support tools and other tools and means as provided for by law. In case of necessity, they may temporarily requisition means of agencies, organizations or citizens as well as operators or drivers of such means according to the provisions of law in service of assurance of public order. After using such means, they shall have to return them to their owners. If causing loss of, or damage to, such means, they shall have to pay compensations therefor according to the provisions of law. 10. Competence to apply measures to ensure public order 10.1. Competence to apply and issue decisions on application of measures to ensure public order must strictly comply with the provisions of Decree No. 38, the guidance of this Circular and other relevant provisions of law. 10.2. People's police officers and men who are personally performing the task of ensuring public order shall have to implement and be entitled to apply the following measures: a/ Explaining or guiding provisions of law on assurance of public order, procedures and places for receipt and settlement of complaints and denunciations so that involved people can know and strictly observe such provisions; persuade and request violators to immediately stop their acts; b/ Checking personal papers of violators; c/ Conducting body search according to administrative procedures in order to detect and seize articles, documents or means used for committing violations, when having grounds to believe that unless the search is promptly conducted, such articles, documents or means can be used to commit violations or dispersed, hidden or destroyed. When detecting material evidences or means used for committing violations, written records on temporary seizure thereof shall be made according to regulations; d/ Searching means of transport and articles used for committing administrative violations. In case of necessity, promptly reporting to their immediate superiors for issuance of decisions on temporary seizure of material evidences and tools used for committing administrative violations; e/ Arresting on flagrant delicto persons committing acts of disturbing public order, resisting officials on duty or other violation acts showing signs of crimes; f/ Using weapons, support tools and other tools, technical devices and equipment as provided for by law to perform their tasks and for legitimate self-defense. 10.3. Competence to decide on use of weapons, support tools, fire engines, police dogs, tear agents (gas, fume or water), small explosive charges and other special-type equipment, tools and means for purpose of ensuring public order shall be exerted as follows: Upon the occurrence of the cases specified at Point 9.4 of this Circular, commanders of company, battalion or higher level, leading officials of the level of district police chief or head of section of provincial-level police department or higher level may issue decisions on the use of tear agents, small explosive charges, police dogs and other special-type support tools, equipment and means. Directors of professional departments or directors of provincial-level police departments may issue decisions on the use of fire engines and other special-type support tools, equipment and means for the assurance of public order. The above-said decisions must be made in writing, except for cases where they, due to urgent requirements of assurance of public security and order, may be verbally issued and must be subsequently reported to immediate superior leaders for direction. 10.4. The general director of the General Department of Police, the general director of the Security General Department, the commander of the Guard Command, the director of the Judicial Protection and Assistance Police Department, the director of the Police Department for Administrative Management of Social Order, the director of the Road and Railway Traffic Police Department, the director of the Waterway Navigation Police Department, the director of the Fire Prevention and Fighting Police Department, the directors of the police departments of the provinces or centrally-run cities, the commander of the Mobile Police Regiment may, within the ambit of their respective tasks and powers, decide on and guide their subordinates in organizing the application of measures to ensure public order provided for in Decree No. 38 and the guidance of this Circular. 11. Organization of implementation 11.1. Presidents of People's Committees at all levels shall direct functional agencies and subordinate People's Committees in strictly implementing provisions of law on assurance of public order in compliance with the provisions of Decree No. 38, the guidance in this Circular and the provisions of other relevant legal documents. 11.2. The general director of the General Department of Police and the general director of the Security General Department shall, within the ambit of their functions, have to direct, guide and inspect the implementation of Decree No. 38 and this Circular. 11.3. Directors of police departments of provinces or centrally-run cities shall have to coordinate with functional agencies in advising presidents of People's Committees at the same level and directing subordinate police offices in advising and assisting People's Committees at the same level in organizing the implementation of Decree No. 38 and this Circular. 11.4. This Circular takes effect 15 days after its publication in "CONG BAO." All regulations on assurance of public order previously issued by the Public Security Ministry which are contrary to this Circular are hereby annulled. 11.5. General directors of general departments, heads of bodies under the Public Security Minister, directors of police departments of provinces or centrally-run cities shall, within the ambit of their functions and tasks, have to organize, guide, inspect and urge the implementation of this Circular. Any problems arising in the course of implementation should be reported to the Public Security Ministry (through the General Department of Police and the Security General Department) for timely guidance.