SECURING PROTECTION AND COOPERATION OF WITNESSES AND
WHISTLE-BLOWERS
Nguyen Nhu Nien＊

I. INTRODUCTION
Ensuring the safety and cooperation of witnesses and other persons disclosing the offence, named
whistleblowers, has always been considered as one of the most decisive factors for the success of theinvestigation, prosecution, and adjudication of criminal cases. Therefore, many countries in the world,
including Vietnam, have issued many legal documents and practical measures to create favorable conditions
for the participation of witnesses and whistleblowers. In respect of international laws, the protection for andthe cooperation with the witnesses and whistle-blowers has been increasingly of importance. Someinternational legal documents, such as United Nations Convention on Transnational Organized Crimes orUnited Nations Convention against Corruption, have already had some binding provisions toward its member
to effectively protect witnesses and persons disclosing crimes.
This presentation will brieﬂy introduce policies and speciﬁc legal provisions of Vietnam to protect
witnesses and whistleblowers. Also, the effectiveness of the implementation of these policies and legalprovisions in the context of Vietnam shall be thoroughly discussed. Finally, some recommendations onpractical measures to enhance the effectiveness of the protection for the witnesses and whistleblowers in thetimes coming shall be presented.

II. DOMESTIC AND INTERNATIONAL LAWS ON PROTECTION OF
WITNESSES AND WHISTLE-BLOWERS
According to the deﬁning provision of the Criminal Procedure Code 2003 of Vietnam (CPC 2003), thewitnesses is the persons knowing some details, which are meaningful for the investigation and adjudication ofa criminal case, and he/ she has been summoned by bodies conducting criminal proceedings to participate in
the case to present his/her statements (Article 55 CPC2003). The witnesses’ participation in the case, which istheir legal responsibility, is under the decision to summon of the body conducting legal proceedings (Article133 CPC 2003). So far, Vietnam has acceded, and being the state member of United Nations Convention on
Transnational Organized Crimes or United Nations Convention against Corruption, it has full obligations andresponsibilities to ensure the safety and cooperation of the witnesses and whistleblowers.
In conjunction with the process of expanding the guarantee of human rights in legal proceedings, theprovisions on witnesses has been changed in the direction of humanizing the relationship between the state
and witnesses, expanding rights of witnesses and legal undertakings for such rights. The demand on
combating corruption and organized crimes effectively is the main momentum for such a process. The legal
provisions on protecting witnesses is one of the main factors to enhance the truth and values in terms of
prooﬁng for the witnesses’ statements because that can exclude the main reasons for the false statements,
disclaim the initial statements of the witnesses – the fear for being revenged. At the same time, it mightactively affect the enforcing authorities’ activities in legal proceedings. In the context of combating organizedcrimes in Vietnam, this struggle can only gain success if legal bases on protecting the witnesses areestablished and fully implemented.

＊

Public Prosecutor, Department on Exercising the Right to Public Prosecution and Supervising the Investigation of Criminal Cases
involving National Security, The Supreme People’s Prosecution Ofﬁce, Vietnam.

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The legal provisions relating to witnesses are legalized and provided in the ﬁrst Criminal Procedure
Code of Vietnam 1988. However, these provisions only concern on responsibilities of the witnesses without
ensuring their legitimate rights and interests. If the witness does not come under summon, he/she can belegally subjected for the production, or even be prosecuted if he/ she refuses or hides from taking thetestimonies. In order to address the demands from the struggle against crimes, some extra rights of thewitnesses have been supplemented to the current CPC 2003 as compared to the CPC 1988. Accordingly, CPC
2003 provides some new rights of the witnesses such as the right to request the body which has summoned
them to protect their life, health, honor, dignity, property and other legitimate rights, the right to makecomplaints on the decision or actions of bodies, or persons conducting legal proceedings, and the right to get
the refund for transportation expenses and other costs as provided by legal provisions (Article 55 CPC 2003).
To adapt more effectively to the context of the struggle against drug offence, Article 14 in the Law on
Preventing and Combating drug 2000 of Vietnam has provided that the persons who disclose crimes, thewitnesses, the victim, and their family members are all protected. In fact, not only the people who disclose
crimes, witnesses, the victims, but also their parents, husband/wife, children are also subject to the threat ofbeing attacked by drug criminals. The reality shows the activeness and the necessity of these provisions, tocreate an effective and obvious change in the struggle against drug offence over the past years.
However, the reality of the activities in criminal proceedings in Vietnam shows that the ensuring forthe safety and cooperation of the witnesses and whistleblowers still has some shortcomings: some social
surveys in Vietnam show that the witnesses, the victim, and the relatives are still afraid of being face to face
toward the accused, their friends and relatives in the adjudication process at trial. These face to face occasions
might be out of control of the body conducting legal proceedings, such as outside the Court, in the corridor of
the Court room when waiting for the trial commencing. Some kinds of forcing the witnesses not to cooperatewith the body conducting legal proceedings via giving false statement or disclaiming previous statement havebeen found in some localities and become more popular and sophisticated. These factors are rooted in somegrounds, both subjective and objective ones.
A. In Terms of Legal Provisions
In spite of playing a very important role, the obligations of witnesses and whistleblowers are heavier
and many more than the legitimate rights and interests offered. The witnesses can be produced in case ofabsence without legitimate grounds or causing difﬁculties for the investigation and adjudication. In case ofrefusing to give statement without legitimate reasons, they might be subjected to criminal prosecution underArticle 308 of the Penal Code 1999; in case of giving false statement, they might be subjected to criminal
prosecution under Article 307 of the Penal Code 1999. The CPC 2003 has not created legal grounds toencourage the witness to actively implement their citizenship – to cooperate with the State in the struggle toprevent and combat crimes and clarify the truth of the case.
As compared to legislation on criminal procedure of many countries in the world, the CPC 2003 ofVietnam has no provisions on the relation based on the spirit of cooperation between witnesses and body
conducting criminal proceedings. For example, the CPC 2003 provides many obligations and responsibilities,
but not a single provision on bonus for the witnesses in case of good cooperation with body conducting legal
proceedings. This legislation has no organic relationship between them and bodies conducting legal
proceedings.
Consequently, the trials in Vietnam can still take place without the participation of the witnesses. In
practice, there are some cases that the witness cannot attend the trial for some causes: when the trial takes
place, the witness has died, or suffered from such serious sickness that he/ she cannot move, but these arevery rare, just simply because the witness does not want to attend the trial because of several reasons.
Although the law provides that the collegiate bench might decide to defer or continue the trial in case ofabsence of the witness (Article 192 CPC 2003), this provision does not give an explanation in whichcircumstance that the trial can be deferred or continued. This general provision has led to unsystematic
behavior that the trial can still be taken place without the participation of the witness, even in some case there
is a unique witness.
The CPC 2003 of Vietnam has just realized the right of the witness to request the authority to protect
their life, health, honor, dignity, property and other legitimate rights and interests in criminal proceedings.

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However, the CPC 2003 has not provided in details the specific methods, procedures applicable, and thecorresponding guarantees, so that it turns to be general and has not taken into its full play in adjudication. For
instance, Article 211 CPC 2003 provides that “in case of necessity to protect the witnesses and their relatives,the collegiate bench must decide on measures to protect them according to legal provisions”. This is very
formal and general, since it is not clear about which measures and legal provisions are. In other words, there
have not been speciﬁc legal provisions and policies to protect witnesses and whistleblowers.
The researching provisions of CPC 2003 show that the status of the witness is much lower than that ofthe defendant or the accused. In spite of implementing legal obligations for public interests, the witnesses andtheir relatives might face disadvantages in the future; even being subjected to criminal prosecution based on
their statements that they must not refuse. In some criminal cases, the witness has become the defendant.
This can be explained that a Vietnamese legal proceeding is a process. At first, since there is not enoughinformation, the witness can be summoned, but when there is enough information about his/her connection tothe offence, he/she can be subjected to the prosecution. As compared to many countries in the world, this isquite different. These foreign laws provide that the exemption can be applicable for the victim, civil plaintiff,
civil defendant, the suspect, the defendant and the witness. Even, it is not allowed to take testimony from: thejudges, priests, the defense counsel, the accused, Members of Parliament.
Apart from these issues, there has not been synchronization with other legislations (such as Labor Law, Law
on Public servants, Law on anti corruption, Civil Code, Law on protecting and fostering for children, Law ondenunciation) in ensuring the safety and cooperation with the witnesses and whistleblowers.
B. From the Body, Person conducting Criminal Proceedings
The criminal procedure law provides the task, power of body conducting criminal proceedings incollecting, analyzing evidence to construct grounds for convicting of a person. The person conducting legal
proceedings can summon person knowing about the offence and listen to their presentation about the relating
issues. However, it is not always that the role and status of witnesses in the inquisitorial model of Vietnam isproperly appreciated because the laws provide that the truth on crime can be determined from different
sources. In the CPC 2003, there are no provisions on responsibility of authorized persons in criminal
proceedings in ensuring the witness’ rights; thus, in practice, the violation of their rights still takes placesometimes.
C. From the Witnesses
The witnesses cannot often be aware of their role in the struggle on preventing and combating crimes.
Many Vietnamese witnesses think it is a waste of time, income and only leads to troubles. In reality, it is veryrare that the witnesses make complaints about the behavior of the investigator, prosecutor, or the judge, whohave forgotten to explain their legitimate rights and interests, or just about inadequate and incorrect
explanations. If any, these complaints also fall into the situation of being very long proccessed or of noresponse.

III. SOME RECOMMENDATIONS TO ENHANCE PROTECTION FORWITNESSES AND WHISTLE-BLOWERS IN VIETNAM– Amending, supplementing the CPC 2003 in the direction that:+ Providing speciﬁc measures to ensure the witnesses’ rights;+ Synchronizing with other legislation (such as Labor Law, Law on Public servant, Law on anti
corruption, Civil Code, Law on protecting and fostering for children, Law on denunciation);+ Providing the bonus for the witnesses since many current provisions are formal only;+ Providing the sanction on giving unsuitable statements in the direction on limiting criminal
prosecution, and providing more on administrative sanctions;― 100 ―

+ Providing the mechanism to effectively protect the witnesses since the application of current
measures to protect the witnesses has not been regulated consistently, thus leading to unsystematicalapplication. At the same time, it is necessary to provide protections for witnesses’ relatives.
+ Providing the classiﬁcation of the witnesses and whistleblowers, so that they can beneﬁt from theirrights as legally provided (the juvenile, ethnic people or foreigners).
– Carrying out the propaganda within enforcing authorities and the public about the content of theprotection for witnesses and other persons disclosing offence in criminal proceedings.
REFERENCES
1. Criminal Procedure Code 2003 of Vietnam. 2004. Hanoi: Publisher of Justice.
2. Law on Preventing and Combating drug 2000 of Vietnam. From
http://www.luatgiapham.com. Retrieved November 28th 2010.
3. Penal Code 1999. 2009. Hanoi: Publisher of National Politics.

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