Cablegate: Correcting Judicial Wrongs: Welcome Steps

This record is a partial extract of the original cable. The full text of the original cable is not available.

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

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