Tran Duy Ky
Can Tho University
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| A hearing at the Hanoi People’s Court__Photo: VNA |
Every country holds the supreme sovereignty within its territory, and its exercise of criminal jurisdiction over crimes committed within its borders is a manifestation of that country’s independence in the global order[1]. However, when engaging in international relations, the countries, including Vietnam, must accept limitations on their criminal jurisdiction due to the “criminal jurisdiction immunity” institution. When a country grants criminal jurisdiction immunity, does it relinquish the penal liability of the offender, or does it merely waive the right to prosecute that person? In other words, is criminal jurisdiction immunity imbued with the nature of the penal law or procedural criminal law, and does approach of Vietnam’s law to the nature of this institution align with international law? This article analyzes the compatibility between international law and Vietnam’s law regarding eligible subjects and scope of criminal jurisdiction immunity, and criminal procedures for cases involving immune persons who are offenders.
Eligible subjects and scope of criminal jurisdiction immunity
As stated in the second paragraph of Article 3.2 of the 2015 Criminal Procedure Code (the Code), eligible for criminal jurisdiction immunity are foreigners who are entitled to diplomatic immunity or consular immunity in accordance with Vietnam’s law, treaties to which Vietnam is a contracting party, or international practices. The country has acceded to most multilateral treaties on criminal jurisdiction immunity and, on August 23, 1993, it enacted the Ordinance on Privileges and Immunities for Diplomatic Missions, Consulates, and Representative Offices of International Organizations in Vietnam (the 1993 Ordinance), which is considered consistent with relevant treaties[2]. The 1993 Ordinance specifies subjects entitled to functional immunity, while subjects entitled to personal immunity are regulated by international practices. However, for various reasons, these provisions still have limitations that are not fully consistent with international law and fail to achieve the purpose of internalizing international law.
Firstly, Article 3.2 of the Code only mentions foreigners as subjects entitled to criminal jurisdiction immunity. This is inconsistent with the 1961 Vienna Convention on Diplomatic Relations (the Vienna Convention) and the 1993 Ordinance, as diplomatic officers holding the Vietnamese citizenship are also entitled to criminal jurisdiction immunity when performing official functions[3]. Based on the hierarchy of legal norms, the 1993 Ordinance has lower legal validity than the Code, but treaties have higher legal authority than Vietnam’s law. Consequently, the Vienna Convention should ultimately be applied. This limitation means that the goal of internalizing international law is not achieved, as one has to rely on treaties rather than directly applying domestic law.
Secondly, it remains unclear that the Code only provides criminal jurisdiction immunity for those entitled to diplomatic immunity or consular immunity. Typically, diplomatic immunity is meant to apply to members of diplomatic missions and permanent representative missions of states to international organizations, while consular immunity applies to members of consular offices[4]. Obviously, immunity for representatives of international organizations or heads of states does not fall into the cases entitled to diplomatic immunity or consular immunity, manifesting an inconsistency in the use of terminology that leads to the omission of subjects who should be entitled to immunity.
Thirdly, Article 41.1 of the Vienna Convention provides that consular officers and consular employees are not entitled to criminal jurisdiction immunity for “grave crimes” but does not give a definition of this term, leaving the application of this provision dependent on each country’s classification of crimes. In Vietnam, the 1993 Ordinance uses the term “grave crimes” (Article 28). It should be noted that the 1993 Ordinance is enacted in the context of enforcement of the 1985 Penal Code, which classified crimes into two categories, with grave crimes being those punishable by over five years’ imprisonment, life imprisonment, or death penalty. However, under the 1999 Penal Code, crimes have been classified into four categories, with “grave crimes” referred to crimes with a great extent of social danger, but lighter than “very grave crimes” and “particularly grave crimes”. Thus, due to the change in legal terms, the terminology used in the 1993 Ordinance differs from the original legislative intent, leading to the fact that consular officers are entitled to criminal jurisdiction immunity for very grave crimes or particularly grave crimes committed while performing their functions.
Criminal proceedings for cases involving persons entitled to criminal jurisdiction immunity who are offenders
The Code does not have specific provisions on criminal procedures for cases involving persons entitled to criminal jurisdiction immunity who commit crimes, leading to the understanding that such cases may be settled through diplomatic channel rather than criminal proceedings. However, Article 3.2 of the Code states that criminal proceedings involving persons entitled to diplomatic immunity are conducted in accordance with treaties or international practices, or through diplomatic channel. This indicates that criminal proceedings are not conducted against immune persons, while not excluding criminal proceedings in cases in which they are involved. This understanding is not subjective speculation, as it is reflected in Joint Circular 01/TTLN-KS-NV-TP-NG of 1988 of the Supreme People’s Procuracy, the Ministry of Home Affairs, the Ministry of Justice, and the Ministry of Foreign Affairs, guiding the investigation and handling of road traffic violations caused by foreigners and foreign vehicles[5] (the Joint Circular). Accordingly, upon the occurrence of a traffic accident that shows signs of a crime, the public security agency will conduct initial investigation to verify the criminal act and determine the legal status of the offender. If the offender is identified as entitled to criminal jurisdiction immunity, the criminal case may still be initiated for investigation if the signs of a crime are obvious. The competent body will conduct the investigation until making conclusions without initiating a criminal case against the accused during the investigation process. When the investigation is completed, if there is sufficient evidence that the immune person has committed a crime, the case file will be transferred to the Ministry of Foreign Affairs for settlement through diplomatic channel.
The Joint Circular specifies that the time to consider criminal jurisdiction immunity is before the issuance of a decision to initiate a criminal case against the accused, which conforms to the international law’s concept of “initiating criminal proceedings” when applied in Vietnam’s context:
First, under Article 179.1 of the Code, the initiation of a criminal case against the accused is carried out when there is sufficient evidence to determine that a person has committed a crime and to determine his penal liability. Thus, considering immunity before the initiation of a criminal case against the accused aligns with requirements of international law.
Second, the initiation of a criminal case against the accused is conducted during the stage of investigation or prosecution, enabling proceeding-conducting bodies to identify the facts of the case. It would not ensure objectivity and comprehensiveness if relying solely on initial verification results in the stage of criminal case initiation to determine whether a person has committed a crime for considering of immunity and to settle the case through diplomatic channel, as this could lead to overlooking other offenders.
Third, one of the purposes of the initiation of a criminal case against the accused is to enable competent authorities to apply investigative measures, preventive measures, or coercive measures against the accused. Since these measures cannot be applied to immune persons, the initiation of a criminal case against the accused is not quite necessary.
Although the consideration for grant of criminal jurisdiction immunity before the initiation of a criminal case against the accused is provided in the Joint Circular, the scope of application of this document is limited to criminal cases involving road traffic violations. Even if broadly applied, the Joint Circular would create difficulties due to the lack of provisions on procedural consequences of the case if the immune person is not examined for penal liability. This would be straightforward if the case involves multiple offenders, some of whom are not immune, and the proceeding-conducting bodies continue to settle the case against non-immune persons according to normal procedures. In contrast, if there is sufficient evidence to prove that the immune person has committed the crime and the case is transferred for settlement through diplomatic channel, there is no ground for investigation termination as specified in Article 230.1 of the Code that can be applied to conclude the case.
Recommendations
To reduce incompatibilities between Vietnam’s law and international law regarding criminal jurisdiction immunity, the author proposes some solutions.
It is necessary to correct regulatory errors, such as those in the 1993 Ordinance, to avoid affecting its application. The phrase “committing a grave crime” in Articles 27.1.a and 28 of the 1993 Ordinance should be revised to “committing a grave crime or very grave crime or particularly grave crime” to be consistent with the provisions on crime classification of Article 9 of the 2015 Penal Code.
Though there have been no cases of crimes committed by immune persons in Vietnam’s legal practice[6], this should not be a reason to neglect the statutory improvement. In the context of building a socialist law-ruled state, legal provisions must be capable of addressing future social relations and ensuring that all necessary legal institutions are in place[7]. Therefore, the law should explicitly stipulate that criminal jurisdiction immunity must be considered before the institution of a criminal case against the accused, as similarly required in the Joint Circular. Moreover, it is a need to add grounds for case termination for immune persons who commit crimes to the Code’s Article 157 on grounds for termination of investigation, termination of cases or annulment of decisions to initiate a criminal case against the accused, which are independent from grounds for non-initiation of a criminal case against the accused.-
References:
[1] Dapo Akande & Sangeeta Shah, “Immunities of State Officials, International Crimes, and Foreign Domestic Courts”, European Journal of International Law, Vol. 21(4), 2010.
[2] Rosane Van Alebeek, The Immunity of States and their Officials in International Criminal Law and International Human Rights Law, Oxford University Press, 2008.
[3] Harold J. Berman & James W. Spindler (trans), Soviet Criminal Law and Procedure: The RSFSR Codes, Harvard University Press, 1972.
[4] Le Van Cam, Postgraduate Specified Book: The Fundamental Issues on Criminal Science (The General Part), Vietnam National University, Hanoi, Publishing House, 2005.
[5] Anthony J. Colangelo, “Jurisdiction, Immunity, Legality, and Jus Cogens”, Chicago Journal of International Law, Vol. 14, 2013.
[6] Comments by Governments in the 75th session of the International Law Commission (2024), https://legal.un.org/ilc/guide/4_2.shtml, accessed on April 22, 2024.
[7] Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, Oxford University Press, 2016.
[8] Joanne Foakes, The Position of Heads of State and Senior Officials in International Law, Oxford University Press, 2014.
[9] Elizabeth Helen Franey, “Immunity from the Criminal Jurisdiction of National Courts”, in Alexander Orakhelashvili (ed.), Research Handbook on Jurisdiction and Immunities in International Law, Edward Elgar Publishing, 2015.
[10] Alexandre Skander Galand, United Nations Security Council Referrals to the International Criminal Court: Legal Nature, Effects and Limits, Brill, 2018.
[11] Rina Goldenberg, “Abuse of Diplomatic Immunity: Is The Government Doing Enough?”, ILSA Journal of International and Comparative Law, Vol. 1, 1995.
[12] Quang Hoa, “Conference reviewing the implementation of the 1993 Ordinance on Privileges and Immunities”, The World & Vietnam Report, 2022.
[13] International Court of Justice, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of February 14, 2002.
[14] International Court of Justice, Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion of April 29, 1999.
[15] International Law Commission, Report of the International Law Commission: Seventy-third session (April 18 - June 6, and July 4 - August 5, 2022), United Nations, 2022.
[16] International Law Commission, Yearbook of the International Law Commission 2001, Vol. II(2), United Nations, 2007.
[17] International Law Commission, Yearbook of The International Law Commission 2010, Vol. II(1), United Nations, 2017.
[18] Ramona Pedretti, Immunity of Heads of State and State Officials for International Crimes, Brill, 2014.
[20] Dinh Van Que, “Territorial validity, chronological validity of the 2015 Penal Code”, Prosecutorial Magazine, No. 04, 2018.
[21] Malcolm N. Shaw, International Law, Oxford University Press, 2017.
[22] Vu Thi Thuy, “Institutionalizing provisions of treaties on the immunity right into the criminal law of Vietnam”, Legal Sciences Journal, No. 5, 2015.
[24] Ho Chi Minh City University of Law, Course book on International Public Law (Vol. 1), Hong Duc Publishing House, 2021.
[25] Trinh Tien Viet, “From the beginning to the end of the criminal law”, VNU-Hanoi Journal of Science: Legal Studies, No. 1, 2018.
[26] Vo Khanh Vinh, “Completing the legal system to meet the requirements of continuing to build and complete the socialist law-ruled State of Vietnam in the new period (Part II)”, Prosecutorial Magazine, No. 17, 2023.
[1] Malcolm N. Shaw, International Law, Oxford University Press, 2017, pp. 488-489.
[2] Vu Thi Thuy, “Institutionalizing provisions of treaties on the immunity right into the criminal law of Vietnam, Vietnamese Journal of Legal Sciences, issue No. 5, 2015, pp. 69-70.
[3] See Vu Thi Thuy, ibid., p. 70. The author of this article has indicated limitations from a criminal affairs perspective.
[4] Ho Chi Minh City University of Law, Course book on Public International Law (Vol. 1), Hong Duc Publishing House, 2021, pp. 514, 536.
[5] This document remains in legal effect and may still be applied under Article 25.1 of the Minister of Public Security’s Circular 63/2020/TT-BCA dated June 19, 2020, specifying procedures for investigation and settlement of road traffic accidents by the traffic police force.
[6] Quang Hoa, “Conference reviewing the implementation of the 1993 Ordinance on Privileges and Immunities”, The World & Vietnam Report, 2022, https://baoquocte.vn/hoi-nghi-tong-ket-phap-lenh-1993-ve-quyen-uu-dai-mien-tru-177943.html, accessed on April 22, 2024.
[7] Vo Khanh Vinh, “Completing the legal system to meet the requirements of continuing to build and complete the socialist law-ruled State of Vietnam in the new period (Part II)”, Prosecutorial Magazine, issue No. 17, 2023, p. 4.
