US embassy cable - 03HANOI247

UNCLAS SECTION 01 OF 04 HANOI 000247 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PGOV, PHUM, PINS, ECON, SOCI, CASC, VM 
SUBJECT:  Punishing Minor Crimes "Administratively" 
 
 
1.  (U) Summary:  The National Assembly Standing Committee 
(NASC) issued a new ordinance on "Administrative Violations" 
effective October 1, 2002.   In the Vietnamese legal 
environment, administrative violations are not "serious" 
enough for court trial, but are handled by government 
officials.  The ordinance retains its predecessor's forms of 
punishment:  fines, damage reparations, property 
confiscation, administrative probation, and confinement in 
institutions and reformatories run by both the Ministry of 
Public Security (MPS) and Ministry of Labor, Invalids, and 
Social Affairs (MOLISA).  The new ordinance requires more 
careful consultations by local government chiefs with police 
and mass organization leaders over the application of some 
penalties, higher fines, potential for revocation of permits 
and professional certificates, property confiscation, and 
the expulsion of foreigners guilty of administrative 
violations.  Vietnamese legal experts have defended the 
ordinance as a whole, despite concerns about "unavoidable" 
arbitrariness and abuse of power in implementing some of its 
measures.  End summary. 
 
Inflation and Tighter Procedures 
-------------------------------- 
 
2.  (U)  The GVN decided to update a 1995 Ordinance on 
Administrative Violations for two main reasons, according to 
MOJ officials.  First, inflation had rendered the fines 
stipulated in the 1995 law insufficient to deter wrongdoers. 
Second, there have been many complaints about gaps in the 
procedures for penalizing administrative violations.  The 
new measure, officials claimed, provides for more controls 
in imposing penalties by mandating more thorough 
consultations between police and/or mass organizations that 
are supposed to recommend the punishments and People's 
Committee chairpersons, who are empowered to impose many of 
the penalties.  The ordinance also adds some new -- 
primarily regulatory -- classes of violations and penalties. 
 
Administrative Violations and Penalties 
--------------------------------------- 
 
3.  (U) The ordinance stipulates that authorities will 
impose administrative measures (warnings, fines, damage 
reparations, revocation of permits and certificates, 
expulsion, and confiscation) and "other administrative 
measures" (see para 4) upon "individuals, offices, and 
organizations that intentionally or unintentionally commit 
acts of violating law provisions on State management, which 
... must be administratively sanctioned."  These are defined 
as violations that do not constitute "serious crimes."  The 
ordinance provides fines for offenses ranging from traffic 
violations to intellectual property infringements, forest 
protection, labor, defense and security.  (Note:  The US has 
been pushing Vietnam to increase the administrative fines 
for IPR infringement to make them more of a deterrent.)  The 
highest rate of fine prescribed in the ordinance is 500 
million VND (roughly $33,000), applicable to "acts of 
infringing upon Vietnam's territorial waters, the 
territorial waters adjacent areas, the exclusive economic 
zones, and the continental shelf with a view to studying, 
exploring and/or exploiting marine resources, petroleum, 
and/or other natural resources."   This ordinance's new 
administrative measures include:  expulsion (of foreigners), 
revocation of permits and professional certificates, 
confiscation of material evidence, and/or the means used to 
commit administrative violations. 
 
"Other Administrative Measures" generally means detention 
--------------------------------------------- ------------ 
 
4.  (U)  Article 22 of the Ordinance lists five "other 
administrative measures," which include terms ranging from 
six months to two years in either juvenile reformatories or 
adult detention centers for rehabilitation or "re-education" 
into more socially acceptable behavior.  "Other 
administrative measures" are imposed by People's Committee 
chairpersons at grassroots, district, and provincial levels, 
at the proposal of police and/or mass organizations to 
punish "individuals who commit acts of violating legislation 
on security, social and safety, but not to the extent of 
being examined for penal liability." 
 
5.  (U)  There are two types of MOLISA-managed 
detention/rehabilitation centers, one intended for 
prostitutes (the so-called 0-5 centers) and the other for 
drug addicts (0-6 centers).  They are often co-located, 
especially in smaller provinces, although always segregated 
by gender.  These "re-education institutions," often 
referred to as "rehabilitation camps," are for adults found 
guilty of prostitution or drug use, both considered "social 
evils."  Some drug addicts enter drug treatment centers 
voluntarily or are "voluntarily" referred by family members, 
although this practice appears to be declining.  All provide 
mandatory rehabilitation/educational training on avoiding 
drug use and/or prostitution, and most provide additional 
vocational training.  The ordinance refers to these centers 
as "medical treatment institutions," but medical care is not 
the centerpiece of their operations.  Many conduct mandatory 
HIV testing, and in some 0-6 facilities HIV prevalence rates 
exceed 40% of detainees.  All 0-6 facilities provide drug 
users mandatory, rapid detoxification per Ministry of Health 
guidelines, but are otherwise usually do not provide drug 
treatment.  (Note: Neither antiretroviral therapy for 
treatment of HIV nor preventive medication for opportunistic 
infections is widely available in Vietnam, and are not 
provided at the re-education facilities.  End note.) 
However, many 0-5 rehabilitation centers have some capacity 
for management of vaginal infections including some sexually 
transmitted diseases (STDs).  A few 0-5 centers provide 
actual STD testing and treatment, usually through support 
from an international organization. 
 
6.  (U)   MPS implements the remaining three "other 
administrative measures."  Juvenile reformatories, managed 
by the MPS, are for 12 to 17 year-old repeat petty 
offenders.  MPS-managed "education institutions" are for 
adults who have repeatedly committed minor offenses ranging 
from petty theft to "humiliating other persons."  These 
institutions are the descendants of the "re-education 
camps."  The final "other administrative measure" is 
administrative probation, defined by 1997's Decree 31/CP. 
It has generally taken some form of house arrest. 
Authorities have in the recent past applied administrative 
probation to several well-known activists, including Ha Sy 
Phu and Tran Van Khue. 
 
Why Impose Administrative Penalties? 
------------------------------------ 
 
7.  (U) According to MOJ officials, administrative measures 
have a long history in Vietnam.  In some areas where the law 
and implementing regulations are clear and public, like IPR 
enforcement, they can provide a useful tool for taking swift 
action against violators and allow for the confiscation of 
illegal goods.  MOJ officials also asserted that most 
people, including GVN officials, strongly believe that minor 
offenses are better and more quickly settled by 
administrative measures.  First, administrative measures do 
not burden the court system.  Second, administrative 
measures in many cases are viewed as "lenient" punishments. 
MOJ Department of Criminal and Administrative Laws senior 
expert Dang Thanh Son explained that, for psychological 
reasons, criminal records carry such a stigma for most 
Vietnamese that they often try to avoid court proceedings, 
despite the fact that a court sentence is not always more 
serious than an administrative measure.  Son, however, 
stressed that the use of administrative measures, 
particularly "other administrative measures," could easily 
be subject to abuse and arbitrariness, since they depend on 
judgments of non-court officials.  The lack of transparency, 
the lack of precedent (i.e. each handled on a case by case 
basis), and the lack of any requirement to publish or in any 
other way make public administrative measures add to that 
problem. 
 
"Other Administrative Measures unavoidably arbitrary" 
--------------------------------------------- -------- 
 
8.  (U) "Other administrative measures", particularly 
administrative probation, are still "essential" in helping 
to guarantee society's security and could not have been 
removed from the ordinance, according to Ngo Ba Thanh, 
former chairwoman of the Law Committee of the National 
Assembly (NA) and deputy president of the Vietnam Lawyers 
Association, a point echoed separately by Dr. Hoang Ngoc 
Giao, a senior lecturer of the Law Faculty of the Hanoi 
National University.  Thanh said individual citizens 
punished with "other administrative measures" should feel 
"happy" because they had not been sentenced by an actual 
court and hence they would not become "former convicts." 
She claimed further that punishment of individuals by "other 
administrative measures" is "lenient" in the sense that such 
individuals do not suffer the "spiritual and administrative 
pressure" of a court sentence. 
 
9.  (U) Both Thanh and Giao, however, expressed concern 
about what they called the "unavoidable arbitrariness and 
abuse of power" by local authorities while applying such 
administrative measures against citizens.  Admitting that 
such arbitrariness was "hard to avoid sometimes," Thanh said 
that the recently revised law on public complaints and 
denunciations has at least made it possible for individuals 
against whom administrative measures are imposed to request 
the administrative court to review decisions of GVN offices 
and officials.  However, Giao noted there were still 
numerous gaps in the ordinance that could easily be 
exploited by local offices and personnel.  He admitted that, 
although the use of administrative measures requires 
considerable consultation and "examination," individuals 
might be easily put into an education institution because of 
unfair or biased documentation. 
 
Administrative Violations Court a Long Way Off 
--------------------------------------------- --------------- 
--------------------------------------------- --------------- 
---- 
 
10.  (U) Articles of the revised Ordinance stipulate that 
administrative measures be imposed against those who have 
violated the law, but not seriously enough to take to court. 
According to Nguyen Duc Long, deputy director MOJ's 
International Law and Cooperation Department, and Tran Khanh 
Hoan, a senior expert from MOJ's Department of Criminal and 
Administrative Legal Documents, the use of administrative 
measures is quite controversial, not only with citizens at 
large, but also within professional circles, because "in 
many of the cases, local officials would definitely find it 
quite difficult to tell how serious some violations are." 
According to Hoan, there needs to be a code -- passed by the 
full NA -- on administrative violations to replace the 
current NASC approved ordinance.  Moreover, it would be 
"helpful" if all administrative violations were settled by a 
court to avoid possible "arbitrariness and abuse of power" 
by State offices and local authorities, he noted. 
 
11.  (U) Regarding the application of the "other 
administrative measures," Long noted that there had been 
much concern from the international community about the use 
of these measures, especially the terms in education centers 
and administrative probation.  (Note:  DRL DAS Carpenter 
raised the issue of administrative probation during the 
November 8, 2002 US-Vietnam Human Rights dialogue.  Long was 
a member of the GVN delegation.  End note.)  Long, however, 
claimed that only three Vietnamese people had so far ever 
been put under administrative probation, and none of them 
had appealed to a court regarding their probation.  (Note: 
Post is aware of at least eight individuals currently under 
administrative probation and one current prisoner, Father 
Nguyen Van Ly, who was formerly under administrative 
probation.  End note.) 
 
12.  (U) Long and Hoan said that current NA leaders 
including Vice Chairman Nguyen Van Yeu support replacement 
of the ordinance with a code passed by the full NA.  Hoan 
predicted that it would take at least three years to compile 
such a code.  Separately, a senior staff member of the 
Office of the National Assembly confirmed that an 
Administrative Violations Code is on the NA's legislative 
agenda for the 2005-6 timeframe. 
 
13.  (U) Long and Hoan cited difficulties, both practical 
and psychological, with having a court settle all 
administrative violations.  Former Minister of Justice and 
current NA member Nguyen Dinh Loc has publicly advocated the 
idea. (Note:  As Minister, Loc was instrumental in putting 
Vietnam on its current course of legal reform and was a 
vocal advocate of introducing transparency and international 
legal standards into the Vietnamese legal system. end note) 
However, Long said he himself had been criticized for being 
too "pro-Western" after voicing support for the idea. 
"Implementation of such a law would also require much bigger 
efforts from the court system, something one shouldn't 
expect to see in the near future," he commented.  Hoan added 
separately that having a court settle all administrative 
violations would not be possible until roughly 2015-20. 
 
14.  (U)  Comment:  Certain aspects of Vietnam's 
administrative violations system could be viewed as 
pragmatic since they allow for relatively expeditious 
handling of regulatory violations and petty crimes that 
could overwhelm the still immature court system.  The system 
is a useful tool for enforcing intellectual property rights, 
for instance.  However, administrative measures include 
extra-judicial means to impose punishments, such as house 
arrest under the administrative probation decree.  The 
appeal mechanism instituted in 1996 and currently under 
revision (septel) is opaque and subject to bias.  Except for 
some regulatory matters, it does not appear to work well. 
That no one under administrative probation has attempted to 
appeal his or her punishment more likely points to a lack of 
confidence in the system than acceptance of the decision. 
While Vietnamese sensibilities may appreciate that an 
administrative violation does not tarnish one with a 
criminal record, the lack of accountability, transparency, 
and clear standards in imposing administrative measures can 
and does lead to abuse.  It is encouraging, however, that 
Vietnamese legal professionals including government 
officials, NA members, and scholars recognize and are 
willing to speak about the potential for abuse. 
BELLARD