COUNTRY PRESENTATION OF VIET NAM
Thi Quynh Anh Ngo*

Mr. Chairman,
Your Excellencies and distinguished guests,
First of all, I would like to thank the hosts, Japan and UNAFEI, for organizing thisimportant event so that the participating countries can share experiences in mutual legal
assistance and extradition. Then, we can strengthen the rule of law and our judicial systems
and legal infrastructure in order to successfully cooperate and effectively combat crimes.
In my presentation, I would like to introduce Vietnamese regulations on basic
mechanisms and procedures concerning MLA and extradition; agencies responsible for thesematters; conditions and requirements to request MLA and extradition; some difficulties copedwith during the process of execution and some typical cases; experiences and instances ofMLA and extradition; and some recommendations for enhancing the effectiveness of theassistance.
A.

Basic Principles Relating to Mutual Legal Assistance and Extradition
The Law on Mutual Legal Assistance of Viet Nam was passed by the National
Assembly and entered into force on July 2008. This law provides for principles, competences,and procedures of executing legal assistance in civil and criminal matters, extradition andtransfer of sentenced persons between Viet Nam and foreign countries; and responsibilities ofstate agencies of Viet Nam in mutual legal assistance.
1.

Mutual Legal Assistance in Criminal Matters(i) Competent Agencies
According to Article 64 of the Law on Mutual Legal Assistance, the Supreme People's
Procuracy (SPP) is the Central Authority of MLA activities of Viet Nam. The SPP has
responsibility to receive, send, monitor and urge the execution of requests for mutual legal
assistance in criminal matters; consider and decide on execution and request the appropriate
People’s Procuracy or investigation agency to execute requests for mutual legal assistance incriminal matters; and to refuse or postpone the execution of a request for mutual legal
assistance within its competence.
The SPP delegates those functions to its Department of International Cooperation andMLA in criminal matters. The contact details are as follows: The Department of International
Cooperation and MLA in criminal matters, the SPP of Viet Nam.
Address: 44 Ly Thuong Kiet Street, Ha Noi, Viet Nam
Phone: +84 38255058 – ext 428.
*Head of Division for Mutual Legal Assistance in Criminal 㧹atters, International Cooperation Department,
Supreme People's Procuracy of Vietnam.

- 172 -Email: tttp_mla@vks.gov.vn
Other state agencies involved: Investigation bodies and courts at all levels.
(ii) Scope of Assistance
Under the provisions of this Law (Article 17), forms of mutual legal assistance incriminal matters between Viet Nam and foreign states include: service of documents andother records and documents concerning mutual legal assistance in criminal matters;summoning of witnesses, experts, and persons who have rights and obligations in the case;collection and provision of evidence; criminal prosecution; exchange of information; andother forms of mutual legal assistance in criminal matters.
Within its authority and responsibilities provided by law, the SPP, as the Central
Authority, has to directly manage, receive and organize the implementation of those MLAcases.
(iii) Procedures for an In-coming Request
Requests from the competent authorities of foreign countries will be sent to the SPP ofViet Nam directly under regulations of treaties or through diplomatic channels. After
receiving an MLA request sent by a foreign competent authority, the SPP records it in theRegister of requests for legal assistance in criminal matters, checks its validity and transmits
it to the agency conducting the Vietnamese criminal proceedings for execution. If the request
is not valid, the SPP returns it to the competent authority of the requesting State and specifies
the reasons therefore. The SPP also offers translation services for those documents that havenot been translated into Vietnamese.
If a request is under executing authority of the Investigation Police Office or theSecurity Investigation Agency of the Ministry of Public Security, the SPP will transfer it tothe appropriate agency of the Ministry of Public Security to execute. If a request is under theauthority of the People's Procuracy at the provincial level, the SPP will transfer it to theprovincial People's Procuracy to implement.
A document containing the results of a request's execution is sent back by the agency
conducting the Vietnamese criminal proceedings; then, the SPP sends it to the competentauthority of the requesting State according to the international treaty to which Vietnam andthat foreign state are parties, or through diplomatic channels.
If the request cannot be executed, exceeds the time limit required by the foreigncompetent authority, or needs additional conditions to execute, the agency conducting theVietnamese criminal proceedings shall inform in writing the Supreme People's Procuracy of
the reasons therefore so that the SPP can notify the competent authority of the requesting
State.
(iv) Conditions for Refusal or Postponement of the Execution of a Foreign Request(a) A foreign request will be refused in one of the following circumstances:- It is not in conformity with Vietnamese laws or the obligations of Viet Nam under theinternational treaties to which Viet Nam is a party;- 173 -

- The execution of the request may jeopardize the sovereignty or national security ofViet Nam;
- The request is for prosecution of a person for criminal conduct of which that person
has been convicted, acquitted or granted a general or special reprieve in Viet Nam;
- The request relates to criminal conduct for which the statute of limitations has elapsed
according to the Penal Code of Viet Nam;
- The request relates to a violation of law which does not constitute a criminal offence
under the Penal Code of Viet Nam.
(b) The execution of a foreign request for legal assistance in criminal matters may be
postponed if the execution of that request would create an obstacle to the investigation,prosecution, trial, or the enforcement of a judgment in Viet Nam. After deciding to refuse orpostpone the execution of a request, the SPP will inform the requesting State of the reasons
therefore and measures to be taken.
2.

Extradition(i) Competent Agencies
The Law on Mutual Legal Assistance of Viet Nam stipulates the responsibility of theMinistry of Public Security as the Central Authority for extradition (Article 65). The Ministryof Public Security must receive, send, consider, and execute foreign requests for extradition.
Other state agencies involved are the SPP and the Supreme People’s Courts, the provincial
People’s Procuracies and Courts.
(ii) Extraditable Offences
Extraditable offences are offences punishable, under the criminal laws of both VietNam and the requesting state in force at the time of extradition, by imprisonment for a periodof at least one year, life imprisonment, or death, or in cases where the offender has beensentenced by the court of the requesting State to imprisonment and the remaining term ofimprisonment to be served is at least six months.
However, it will not matter whether the laws of both Viet Nam and the requesting state
place the referred conduct within the same category of offence or denominate the offence by
the same terminology.
Where the referred offence has been committed outside the territory of the requestingstate, extradition may be granted if it is a criminal offence under the Penal Code of Viet Nam.
(iii) Conditions for Refusal of Extradition(a) Compulsory refusal: Viet Nam will not grant extradition in any of the following
circumstances:- The person whose extradition is requested is a Vietnamese citizen;- Under the laws of Viet Nam, the person whose extradition is requested cannot beprosecuted or does not have to serve the sentence imposed due to lapse of the statute oflimitations, or for other legitimate grounds;- 174 -

- The person whose extradition is requested for prosecution has been convicted under a
final judgment by a Vietnamese court for the conduct to which the request relates or the casehas been suspended according to the criminal procedure laws of Viet Nam;
- Where the competent authorities of Viet Nam have reasonable grounds to believe thatthe request for extradition has been presented with a view to prosecuting or punishing theperson sought by reason of race, religion, sex, nationality, social status, or political opinions;- Where the request for extradition relates to more than one offence and each offence ispunishable under the laws of the requesting State but does not meet the demands ofextraditable offences under Vietnamese laws.
(b) Optional refusal: The agencies conducting criminal proceedings of Viet Nam may
refuse to grant extradition in any of the following circumstances:- The conduct committed by the person whose extradition is requested does notconstitute an offence under the Penal Code of Viet Nam;
- The person whose extradition is requested is being prosecuted in Viet Nam for theoffence for which extradition is requested.
(iv) Procedures
After receiving the request for extradition and the accompanying documents sent by aforeign competent authority, the Ministry of Public Security will enter this fact in theextradition register and examine the validity and feasibility of the request. The Ministry ofPublic Security may request the foreign competent authority to furnish additional information.
If that additional information is not received by the Ministry of Public Security within 60
days from the date of sending the request for that information, it will return the dossier ofrequest for extradition to the requesting state and inform that state of the reasons for thereturn. If the dossier is valid, the Ministry of Public Security will transmit the dossier to thecompetent People's Court at the provincial level for consideration and decision.
The Provincial People's Court where the person whose extradition is requested isresiding, detained or serving the sentence of imprisonment must entertain the request
transmitted by the Ministry of Public Security and inform in writing the People's Procuracy at
the same level. Within the time limit for considering the request for extradition, the People'sCourt at the provincial level may request the foreign competent authority for clarification ofuncertain points in the request for extradition. The request for extradition and the reply willbe transmitted through the Ministry of Public Security of Viet Nam.
Within four months of consideration, the People's Court at the provincial level will
issue one of the following decisions: (1) consider the request for extradition if it satisfies all
the requirements prescribed; (2) suspend the consideration of the request and return thedossier of request to the Ministry of Public Security if any reason renders the consideration of
the request impossible. Then, the People's Court at the provincial level must consider therequest for extradition within 30 days of the issuance of the decision to consider the request
and transmit a set of the dossier of request to the People's Procuracy at the same level. The
request for extradition will be considered at a hearing of a chamber consisting of three judges,
one of whom shall chair the hearing, and a representative of the People's Procuracy at thesame level. The People's Court at the provincial level will send the decision to the person- 175 -whose extradition is requested, to the People's Procuracy at the same level, and to theMinistry of Public Security for exercising their legal rights and duties.
The person whose extradition is requested has the right to appeal; the People's
Procuracy at the same level and the Supreme People's Procuracy have the right to protest thedecision issued by the People's Court at the provincial level. The Supreme People's Court
reviews any decision of the People’s Court at the provincial level which is appealed orprotested. The appellate court will decide whether to extradite or refuse to extradite theperson sought. The Ministry of Public Security will arrange the execution of the decision onextradition and inform in writing the requesting State thereof.
B.

Experiences and Instances of MLA and Extradition
In 2011 and the first 6 months of 2012, Viet Nam received 74 MLA requests and 2
extradition requests from other countries, mostly from European countries. Viet Nam also
sent 54 MLA requests and 2 extradition requests to foreign countries. The MLA requests
sought mainly are for serving of documents, providing of evidence, and criminal prosecution.
Actually, the content of MLA requests are more and more complicated and diverse, involving
many areas and serious crimes such as murder, drug-related crimes, corruption, fraudulent
appropriation of property, money laundering, etc. There is a increasing trend of not only thenumber but also the character and nature of requests.
During the process of executing MLA and extradition requests, Viet Nam copes withsome difficulties such as the time-consuming nature of the process, differences of laws andregulations, taking testimony or statements via video link, attendance of foreign officers,
death penalty issues, languages, etc. Specifically, the law on criminal procedure of Viet Namprovides a time limit for each stage of the investigation, prosecution and trial while the MLA
requests have no time limits for execution. Some cases took up to a year or longer to resolve;
some cases from 2009 are still unresolved. That is the obstacle causing delay to the domestic
criminal procedure of the cases having outgoing MLA requests. The death penalty is still
applied in the Vietnamese system of punishment. Some MLA requests relating to crimes canbe punished with the death penalty, and it is one of the refusal conditions of foreign countries.
Besides, Vietnamese laws do not permit the measure of taking testimony or statements via
video link and the attendance of foreign officers in the process of resolving domestic criminalcases. However, Viet Nam recently has implemented projects of judicial reform including
supplementing and amending laws relating to criminal procedure and international
cooperation. Those matters mentioned above have been taken into consideration.
Typical successful case: one of the most successful instances is the assistance between
Viet Nam and Japan in 2010 - 2011. That was a case of tax evasion and unfair competition
crimes that happened in a Japanese company (short name is PCI) having its head office inTokyo. This company had some contracts with a Vietnamese company and undergroundagreements with the Vietnamese director to receive mutual personal benefits. That
Vietnamese director also was a defendant of a criminal case for receiving bribes in Viet Nam.
In order to get enough evidence to prove the crimes, both competent agencies of Japan andViet Nam sent requests to each other asking for assistance in providing information anddocuments in their respective jurisdictions. Because there is no MLA treaty between Japanand Viet Nam, the assistance based on assurance of reciprocity and the MLA requests weresent through diplomatic channels. As a result, the competent authorities of Japan had usedevidence from Viet Nam to prosecute and punish Japanese criminals. Respectively, with- 176 -thousands of papers as evidence from the Japanese, the Courts in Viet Nam successfully
adjudicated the corruption case and sentenced the accused to 20 years’ imprisonment.
C.

Some Recommendations
To speed up the process, a network of Central Authorities with full details of contact
persons should assist the close coordination, information exchange and activities onenhancing legal assistance of countries.
The contents of sending requests should have enough information related to the caseand its legal basis, including information on the time limit for domestic procedures to resolve
the case.
Organizing more seminars on special subjects and working groups will help
participating countries share information, updates on foreign laws in force and learning
experiences with others.
Southeast Asian countries must establish a cooperating mechanism to share informationand suitable modes of operation to deal with transnational cases where criminal acts takeplace in both countries or where the person to be extradited is a foreigner who engaged incriminal acts in the territory of other countries.
Thank you for your attention.

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