US embassy cable - 03HANOI2074

UNCLAS SECTION 01 OF 03 HANOI 002074 
 
SIPDIS 
 
STATE FOR EAP/BCLTV AND DROL 
 
E.O. 12958:  N/A 
TAGS: PGOV, KJUS, VM 
SUBJECT:  Correcting judicial wrongs: welcome steps 
 
 
1.  (U) Summary.  A new Vietnamese National Assembly 
resolution enables victims of judicial and police injustice 
to seek financial compensation from the responsible 
government agencies and even individual official(s).  The 
resolution holds officials personally responsible for 
misadministration of justice in order to redress past 
injustices, as well as to deter future abuses.  Experts 
nonetheless have criticized the resolution for not moving to 
an "adversarial process" with built-in checks on abuse. 
Implementing regulations apparently do not yet exist, 
meaning it will likely be a long time before put in use, but 
the resolution marks a welcome recognition of systemic 
flaws.  The monthly Cabinet meeting in July paid special 
attention to this issue, urging all levels to do a better 
job at resolving such issues.  End Summary. 
 
Crime and (Wrongful) Punishment 
------------------------------- 
 
2.  (U) The National Assembly Standing Committee (NASC) 
issued resolution #388/2003 on March 17, 2003, designed to 
ensure redress and in many cases compensation for people 
wrongly imprisoned, fined, or punished by the State.  Legal 
experts are still debating whether the resolution elaborates 
on existing laws or supersedes them.  Moreover, as the 
resolution has yet to be published in the Official Gazette, 
it is unclear whether this resolution has full legal 
validity yet, although its contents have been published in 
the Communist Party-run "Nhan Dan" newspaper. The resolution 
cites rights and procedures embodied in the Vietnamese 
Constitution, the Criminal Code, and Article 624 (introduced 
in 1994) of the Civil Code that already authorize the 
recovery of the legitimate interests of those wronged during 
criminal proceedings, as well as underlining the 
responsibility of the actors in those proceedings.  The 
resolution's twenty-one articles include definitions, levels 
of and responsibility for compensation, as well as funding 
and enforcement provisions. 
 
Who and what is covered 
----------------------- 
 
3.  (U) Four types of cases are eligible for compensation: 
(a) people held in temporary custody, when decisions are 
later annulled on the basis that those persons did not 
indeed violate the law, (b) people held in temporary 
detention, when decisions are later annulled on the basis 
that those persons did not conduct crimes, (c) people who 
have served or are serving terms of imprisonment, life 
imprisonment, or subject to capital punishment, who are 
later "certified innocent" by decisions or rulings of 
competent courts, and (d) people against whom formal 
investigations, prosecutions, and trials are conducted, who 
are later "certified innocent" by decisions/court rulings of 
competent proceeding offices.  As an example, a type (d) 
case might involve a person against whom charges are 
brought, then dismissed, who has suffered personal indignity 
and later receives a declaration of innocence. 
 
4.  (U) Relatives of deceased victims of injustice, 
including wives, husbands, parents, foster-parents, 
children, adopted children, and persons who directly took 
care of the victims financially shall be entitled to 
compensation equal to 360 months' salary, using the minimum 
salary standards set by the State at the time the payment is 
considered.  It is unclear whether all derivatives have 
separate or collective claims to compensation; if the 
former, the order of priority among derivative claimants is 
not addressed. 
 
5.  (U) The resolution authorizes compensation for expenses 
related to health problems sustained as a result of 
imprisonment, including lost income for individuals taking 
care of people wrongly accused.  It also calls for all real 
property of wrongly accused individuals that was seized, 
disappeared, damaged, or destroyed be fairly compensated, 
along with the return of all financial assets expropriated. 
Lost "stable" income due to wrongful imprisonment is also to 
be repaid. 
 
How to qualify 
-------------- 
 
6.  (U) Petitioners seeking redress for injustice must file 
applications with the People's Court at the District level 
in the district of their current residence.  Applications 
must be made within 30 days of a higher court's 
determination of injustice or of an announcement of 
innocence by a competent body.  Application fees do not 
exist and any recovery from responsible officials is non- 
taxable. 
 
7.  (U) Beginning with the entry into effect of this 
resolution, individuals will have a statute of limitations 
of two years to claim compensation from the time their cases 
have been declared wrongful.  Agencies are supposed to hold 
discussions with the individual within 30 days from receipt 
of the claim.  Within seven days from when an agreement on 
compensation is reached between the individual and the 
agency, the agency needs to issue the decision on 
compensation.  The individual is supposed to receive the 
actual repayment of expenses within 10 days from issuance of 
such decision, or from issuance of court rulings about the 
repayment.  (Note:  The individual is entitled to bring the 
case to court if the agency fails to do such within the 
mentioned time frames.  Courts will consider claims for 
repayment according to procedures provided for in the Civil 
Procedures Code.  End Note)  The State budget is supposed to 
have ultimate responsibility for coming up with adequate 
funds, under the management of the Ministry of Finance.  The 
resolution specifies, however, that it covers only wrongful 
cases stemming from July 1, 1996 until the present, although 
it appears to leave the window upon for compensation even in 
some earlier cases. 
 
8.  (SBU) The estimated impact on Vietnam's national budget 
has not been calculated, according to Vietnam Lawyers 
Association (VLA) Vice General Secretary Chu Hong Thanh. 
Thanh noted that in 2002 People's Courts reversed unjust 
decisions in 58 cases, although it is not clear whether 
compensation will be/is involved.  Thanh added that 
individuals who believe they or relatives have been wrongly 
punished may choose whether or not to hire lawyers, but 
predicted that, in "serious cases involving high sentences," 
the state may opt to assign a lawyer to represent the 
victim.  (Comment:  This seems both unlikely -- the State 
deliberately trying to overturn itself for serious cases -- 
and potentially unhelpful -- to have a State-run attorney on 
behalf of the victim.  End comment) 
 
Some Criticisms 
--------------- 
 
9.  (SBU) Vietnam National University Faculty of Law 
Professor Ngo Huy Cuong nonetheless called Resolution 
388/2003 "a step backward" for Vietnamese justice.  In a 
conversation with poloffs, Cuong argued that, despite the 
law's admirable intentions, it is "an incomplete, 
situational measure" that fails to move Vietnam's legal 
system toward an adversarial system, where sides vie with 
contending legal and factual arguments, which would best 
protect defendant's rights and put checks and balances into 
place.  Specifically, Cuong faulted the legislation for 
leaving in place prosecutorial-dominated system, wherein 
both the prosecution (or "procuracy") and court operate on 
behalf of the state, with little to no involvement or 
discussion from defense counsel.  (Note:  The legislation, 
however, does single out the Prosecutor's office for 
responsibility for compensation in cases where it approved 
or sought legal punishments.  End note.) 
 
10.  (U) Additionally, Cuong said that the legislation's new 
effort to assign liability will create a chilling effect on 
individual actors within the criminal justice system, 
creating less confident officials who will be less intent on 
obtaining justice and more intent on protecting their 
records and backsides.  Even where the system works as 
designed, difficulty remains in apportioning liability.  As 
an example, local courts often comprise a judge and two lay 
assessors who decide on majority basis.  Where a decision is 
split two to one, under this new resolution, all three 
members could be held accountable for compensation to a 
wrongly convicted defendant. 
 
11. (U) Vietnam National University's Faculty of Law 
Professor Bui Thi Thanh Hang contended separately, however, 
that the National Assembly's resolution has even lesser 
legal validity than Civil Code (specifically Article 624). 
Hang claimed that the resolution aims at spelling out 
redress for wrongs in the criminal system, but does not 
supersede Article 624, which also provides for 
misapplications in administrative and other legal systems. 
Ms. Hang also pointed out that redressing wrongs in the 
legal system should not be limited to criminal matters. 
Administrative and labor injustices can impose financial 
hardship on victims as severe as criminal cases and deserve 
similar compensation. 
 
High Level Attention 
-------------------- 
 
12.  (U)  The monthly Government Cabinet meeting July 30-31 
heard a report on petitions for redress of injustice and 
related issues covering the first six months of 2003.  The 
Cabinet resolution, which appeared in the 8/6 "Nhan Dan" and 
other major newspapers, admitted a "complicated evolution" 
of this problem.  The Cabinet requested all ministries, 
offices, and localities to do a better job in addressing 
these concerns, especially at the village and district 
level. 
 
13.  (U) Separately, the National Assembly Standing 
Committee in its most recent session also debated -- 
heatedly, according even to the Vietnamese media -- the 
possibility of individuals recovering family properties 
taken during various land reform campaign in the 1950s and 
1960s.  Apparently, delegates decided that this can of worm 
should remain closed. 
Comment 
------- 
 
14.  (U) That Vietnam is taking at least formal steps to 
assist victims of injustice -- to the extent of 
theoretically making the State literally pay for its 
mistakes -- is welcome.  At the same time, it is a tacit 
admission of the systemic failings of its past and existing 
judicial processes.  Embassy would be surprised to see a 
flood of cases successfully seeking restitution, but at 
least that option is more possible now. 
PORTER