In implementation of guidance on the Law on criminal records, the National Center for criminal record has collected some difficulties in executing regulations of the issuance of criminal record certificates in locals, therefore gives guidance to Departments of Justice to solve some special cases in issuing criminal record certificates and make it easier for individuals, agencies, organizers and restrain late solutions to the issuance of criminal record certificates.
1. Confirm previous criminal conviction on criminal record certificates after ascertaining but no clear information on previous crimes
In case Departments get answers for checking, ascertaining criminal records from police agencies which were compiled before July, 01
st 2010, showing that people concerned used to be arrested, investigated, prosecuted or sued but there is no information about the judgment, Departments have already executed the investigation at People’s Procuracies, People’s Courts, Civil Judgment enforcement agencies, Criminal Judgment enforcement agencies and other related agencies, yet there is no information about people concerned’s judgments, based on the regulation of Clause 1, Article 31 of the Vietnamese Constitution in 2013 “A person charged with a criminal offense shall be presumed innocent until proven guilty according to a legally established procedure and the sentence of the court takes legal effect”, Departments confirm “no previous crimes” on criminal record certificates number 1 and number 2 for that person in this case.
In case Departments get answers for checking, ascertaining criminal records from police agencies which were compiled before July, 01
st 2010, showing that people concerned used to be sentenced by a judgment with number, date, name of the court, crime… but there is not enough information about the judgment, Departments continue ascertaining at People’s Procuracies, People’s Courts, Civil Judgment enforcement agencies, Criminal Judgment enforcement agencies and other related agencies, yet there is no information about people concerned’s execution status. In this case, if people concerned have both conditions of time to have their criminal records automatically remitted and to not commit a new crime, Departments confirm “no previous crimes” on criminal record certificates number 1 and write the information about the content of the judgment ascertained before on criminal record certificates number 2.
2. Issuing criminal record certificates to persons who are being prosecuted, investigated, hunted…
In case Departments are informed that the person applying for criminal record certificates is being prosecuted, investigated or hunted…, has not been sentenced by a judgment taking legal effect, under the regulation of Article 49 of Law on Criminal records, this falls outside the case of refusal to issue criminal record certificates, Departments issue criminal record certificates and confirm “no previous crime” on the certificates. At the same time, inform other related investigation agencies, executing procedure agencies by papers about the person being prosecuted, investigated or hunted applying for criminal record certificates so that those agencies carry out professional steps if necessary.
3. Issuing criminal record certificates to labors who work in Taiwan
On March 14
th, 2013, Ministry of Justice promulgated Report number 50/BC-BTP to report the President about issuing Certificates of no previous crimes for labors who work in Taiwan. On April, 15
th 2013, Office of the Government promulgated Document number 2925/VPCP-KGVX, informing the Vice President’s opinion, Nguyen Xuan Phuc
“The solution to procedures for people who work abroad with time limit must approach the demand of the overseas’ request and ensure the simplicity, convenience for labors. Ministry of Public Security continues executing the guidance of the President in the Document number 68/CP-VX on February, 17th 2000 about issuing Certificate of no criminal conviction for labors who work in Taiwan”. According to that, Division of Police continues issuing Certificate of no criminal conviction for labors who work in Taiwan. In order to avoid wasting time and money of Vietnamese citizens while carrying out the procedures to work in Taiwan with time limit, Departments need to cooperate, communicate with police agencies to clarify, guide citizens to apply for Certificate of no criminal conviction at police agencies in provinces, cities. In case Vietnamese labors work in Taiwan apply for criminal record certificates, Departments issue certificates under the regulations of the Law.
4. Issuing criminal record certificates to persons who have no nationality
Under the regulations of Law on Criminal records, persons applying for criminal record certificates have to submit copy of their identity cards or passports, therefore, in case persons without nationalities apply for criminal record certificates, Departments demand those persons submit valid documents for international travel issued by a competent authority of the country where that person is residing and accepted by a competent authority in Vietnam (according to Clause 3 Article 3 of Law on entry, exit, transit, residence of foreigners in Vietnam) instead of their identity cards and passports.
5. Required documents of soldiers, workers and military officers
Under the regulations of Law on Criminal records, identity cards, household registration books, temporary residence certificates or permanent residence certificates are two necessary documents in dossiers to apply for criminal record certificates. According to the provision of Clause 2, Article 3 of Decree number 59/2016/ND-CP dated on July, 1
st 2016 of the Government “Provisions of identity cards of soldiers, workers and military officers”, identity cards of soldiers, workers and military officers are used to prove that the beneficiary persons are those who are working for the Vietnamese army and using their identity cards to perform civil transactions. According to the provision of Clause 2 Article 16 of Immigration Law, residence places of officers, non – commissioned officers, professional soldiers, military officers are where their divisions are located, except for the cases specified in Clause 1 Article 12 of Immigration Law. According to that, identity cards of soldiers, workers and military officers and population registration books are used to prove individual information and residence places of officers, non – commissioned officers, professional soldiers, military officers; people who are in military service, serve the army with time limit. Therefore, in order to make it easy for soldiers, workers and military officers to apply for criminal record certificates, Departments accept certificates of professional soldiers, workers and military officers instead of identity cards and population confirmation letters instead of household registration books.
6. Issuing criminal record certificates when information of criminal records ascertained at related agencies shows that requesters have different names
In case information of criminal records ascertained at police agencies, Courts, Procuracies and other related agencies shows that requesters have different names, (For instance, Tran Van A, Tran Quang A) which are different from names in the application forms to apply for criminal record certificates (For instance: Tran Ngoc A), but have the same information about their birthdays, parents’ names; temporary or permanent residence places, Departments need to send papers to request Police agencies to check whether these people are the same person or not.
If results of police agencies show that people with names above are just one person, Departments issue criminal record certificates to that person with the name in the application form.
If there is no answer from police agencies (the ascertainment takes more time than the time limit stipulated in the Law on criminal records) or there is no conclusion in the answer, Departments send those dossiers to the National Center so that the Center assists them in the ascertainment.
7. Issuing criminal record certificates to foreigners who are living in Vietnam but have no temporary residence certificates
If foreigners living in Vietnam do not submit their temporary residence certificates issued by police authorities because of difficulties in time limit, fee, in order to make it easy for these people to apply for criminal record certificates, Departments do as follow: Under the regulations of Law on entry, exit, transit, residence of foreigners in Vietnam and Official dispatch No.10407/A72-P2 on September 14
th 2015 issued by Department of Immigration about issuing temporary residence certificates to foreigners residing in Vietnam, in case foreigners cannot submit temporary residence certificates to prove their residence in Vietnam while applying for criminal record certificates, Departments can use one of the following papers: permanent residence cards, temporary residence cards, passports with entry and exit, temporary residence stamped at border gates or extended by immigration management agencies. Therefore, the National Center for criminal record recommends:
- Uniform the residence regulations according to Clause 1 Article 31 of Law on entry, exit, transit, residence of foreigners in Vietnam. When foreigners who are residing in Vietnam and having temporary residence papers issued by local police authorities submit dossiers to apply for criminal record certificates, Departments accept those dossiers and issue certificates to them under the Law.
- In case there is no proof of residence of foreigners residing in Vietnam, Departments guide them to submit dossiers at the National Center for criminal record (direct submission or courier, online). The National Center for criminal record will check those dossiers and issue criminal record certificates under the regulations of the Law.
8. Dossiers and fee for criminal record certificates when one person applies for both of the certificates No.1 and No.2 at the same time
In case one person applies for both of the certificates No.1 and No.2 at the same time, only one dossier is requested, which includes the Application form for individual No.03/2013/TT-LLTP (promulgated with Circular No.16/2013/TT-BTP on November, 11
th 2013 of Ministry of Justice about amending, supplementing some articles of Circular No.13/2011/TT-BTP on June, 27
th 2011 of the Prime Minister of Ministry of Justice about promulgating and guiding on using the forms and templates of criminal record). Departments guide individuals to choose both certificates No.1 and No.2 at “Apply for criminal record certificates …” part and write the quantity of the certificates No.1 and No.2 at “Quantity of criminal record certificates requested…” part.
Under the regulation of Article 3 of Circular No.174/2011/TT-BTC on December 02
nd 2011 of Ministry of Finance about guiding payment, management and using fee for criminal record certificates, the amount of money on issuing criminal record certificates is VND 200,000/time/person, for pupils, students, people who contributed to the Revolution, relatives of martyrs: VND 100,000/time/person. Should one person request more than 02 certificates at the same time, he shall pay VND 3,000 more for each additional certificate. In accordance with that, if a person requests both of the certificates No.1 and No.2, he shall pay the fee as guided above.
9. Guidance on withdrawal, revocation of criminal record certificates
Up to now, Law on Criminal records and other guidance documents have not had regulations of procedures to execute withdrawal, revocation of criminal record certificates when certificates have inaccurate content. Therefore, in order to solve these problems, after studying many different documents about withdrawing, revoking registration papers, confirmation papers issued by competent agencies, the National Center for criminal records suggest Departments send documents to persons who are granted criminal record certificates to inform the withdrawal, revocation of issued criminal record certificates, which clarify the reason for the withdrawal, revocation. This shall be informed on websites of Departments at the same time (if necessary).
10. Guidance on issuing criminal record certificates when crimes are abolished
According to Article 35 of Law on criminal records:
“In case a person has been convicted of a crime which is abolished under the Penal Code, information on such crime shall be deleted from this person’s criminal record”.
According to that, in case a person applying for criminal record certificates has been convicted of a crime, but this crime is abolished under the Penal Code, the words “No previous crimes” shall be written on criminal record certificates No.1 or No.2. If that person’s criminal record has been stored, delete the information of it.
These are the professional guidance of the National Center for criminal record on solutions to some difficulties in issuing criminal record certificates field. Departments carry out as guided./.