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Official Gazette

Saturday, January 23, 2021

Intersection of some crimes against national security

Updated: 10:54’ - 03/09/2013

Phung Van Tai, LL.M
Law Faculty
People’s Security Intermediate School I

After nearly 15 years of implementation, provisions of the Penal Code (the Code) on crimes infringing upon national security have revealed some limitations, including overlapping between the elements of these crimes and lack of detailed guidance, leading to inconsistent and inadequate views and perceptions and causing great difficulties to the investigation into and combat of these crimes. Below is our look into the intersection between components of these crimes together with some proposals to eliminate this overlapping in the criminal law.

High treason

High treason is defined in Article 78 of the Code as a crime committed by a Vietnamese citizen who acts in collusion with a foreign country with the intent to cause harm to the independence, sovereignty, unity and territorial integrity of the Fatherland. Collusion is construed as a tight and long-term connection between the offender and the foreign country. A person who intends to contact or is sent to a foreign country to establish contact is not regarded as having acted in collusion with such foreign country. Resolution No. 04/HDTP of November 29, 1986, of the Judges’ Council of the Supreme People’s Court, guiding a number of provisions in the Part on Crimes of the 1985 Penal Code (Resolution No. 04), defined acts in collusion with foreign countries as “conspiring with foreigners in a political plot or other aspects (plan, organization and forms of activities); receiving aid from a foreign country (money, weapons or any other material benefit); acting under the auspices of a foreign country or giving aid to a foreign country.”

In collusion with foreign countries, treasonous offenders carry out different activities to the detriment of the independence, sovereignty, unity and territorial integrity of the Fatherland, for the ultimate goal of subverting the people’s administration; flee or defect to foreign countries to oppose the Fatherland; or act as spies for foreign countries. In the practice of criminal investigation, prosecution and trial in Vietnam, all of these acts have been regarded as specific elements of high treason. Resolution No. 04 further explains: “Vietnamese citizens who act in collusion with foreign countries to subvert the people’s administration will be charged with high treason. High treason covers activities aimed at subverting the people’s administration carried out by persons who, in some cases, also act as spies or flee abroad to oppose the people’s administration. Thus, treasonous offenders will not be additionally charged with these crimes.”

According to this explanation, socially dangerous acts constituting high treason are identical to those constituting the crimes of carrying out activities to subvert the people’s administration (Article 79), spying (Article 80) and fleeing abroad or defecting to stay overseas with the intent to oppose the people’s administration (Article 91). This overlap has caused difficulties to law enforcement bodies in choosing right crimes to charge offenders with.

Carrying out activities to subvert the people’s administration

This crime, prescribed in Article 79 of the Code, directly infringes upon the existence of the people’s administration and socialist regime through acts of establishing or joining organizations with the intent to subvert the people’s administration.

To achieve the goal of subverting the people’s administration, after establishing or joining organizations aimed at such goal, offenders often engage in different criminal activities, such as collecting intelligence, terrorizing people, sabotaging and conducting propaganda against the Vietnamese State. However, in the practice of criminal law application in Vietnam, for all of these acts, offenders are charged only with the crime of carrying out activities to subvert the people’s administration.

Regarding this crime, Resolution No. 04 elaborates: “A person that commits the crime of carrying out activities to subvert the people’s administration, spying or rebellion, which involves sabotaging physical and technical foundations, will only be charged with such crime but not additionally charged with the crime of sabotaging physical and technical foundations. Sabotage is only regarded as a manifestation of the crime to help determine the severity of the criminal act and impose penalties prescribed in the relevant article.” Under this guidance, the crime of carrying out activities to subvert the people’s administration is not only constituted by the two acts described in Article 79 of the Code but also covers other acts committed by offenders in order to subvert the people’s administration.

As analyzed above, socially dangerous acts constituting the crime of carrying out activities to subvert the people’s administration are similar to those of other crimes against national security, such as spying (Article 80), terrorism against the people’s administration (Article 84), sabotaging physical and technical foundations of the Socialist Republic of Vietnam (Article 85), and conducting propaganda against the State of the Socialist Republic of Vietnam (Article 88).

Spying

As per Article 80 of the Code, one of the socially dangerous acts constituting the crime of spying is sabotage which probably includes sabotaging physical and technical foundations of the country, undermining the implementation of socio-economic policies, undermining the unity policy, etc. These are similar to the crimes prescribed in Articles 85, 86, 87 and 88 of the Code. The only element to help distinguish spying from these crimes is Vietnamese or foreign nationality of the offender. Foreigners that commit sabotaging acts against Vietnam will be charged with spying while Vietnamese citizens committing these acts will be charged with spying only when they act under the direction of foreign countries. Without the direction of foreign countries, they may only be charged with a crime other than spying, depending on the nature of their acts.

Spying and high treason share some common actus reus components, e.g. contact with a foreign country. In spying, contact with a foreign country involves such activities as setting up bases for intelligence or sabotage activities at the direction of a foreign country (Point b, Clause 1, Article 80) while in high treason, contact with a foreign country means conspiring with foreigners in a political plot, receiving support from, acting under the auspices of, or giving aid to, a foreign country. In both crimes, offenders act against the Fatherland.

Many legal experts hold that acting in collusion with a foreign country in high treason differs in many ways from acting at the direction of a foreign country in spying as it involves a closer and more permanent connection of a Vietnamese with a foreign country and poses greater threats to the Fatherland. However, in reality, many spies have gone through serious training, acted under deep cover and the direction of foreign countries, especially through the task assignment, operation direction and transmission of collected information to the center. Their connections with enemy countries can be maintained for decades and thus cause great dangers to the national security. This makes Articles 78 and 80 similar and every effort to put a clear line between these two crimes impractical. While high treason and spying are different crimes but in reality it is almost impossible to differentiate their elements of acting in collusion with a foreign country from acting at the direction of a foreign country.

Undermining the unity policy and carrying out propaganda against the State of the Socialist Republic of Vietnam

A closer look at socially dangerous acts constituting these crimes leads to the conclusion that the act of propagating against, distorting or defaming the people’s administration (Clause 1, Article 88 of the Code) with the intent to undermine people’s confidence in the administration or separate people from the administration is substantially similar to sowing division between people of different strata and the people’s administration (Clause 1, Article 87 of the Code). This is because lawmakers describe the crime of carrying out anti-State propaganda through socially dangerous acts committed by offenders while patterning the crime of undermining the unity policy based on the purpose of offenders’ acts. The problem here is that in order to undermine the unity policy, offenders employ methods and tricks identical to acts constituting the crime of carrying out anti-State propaganda, such as spreading fabricated news, making and storing documents with anti-State contents. This problem has led to the application of the criminal law that an offender who carries out anti-State propaganda for the purpose of determining the unity policy (all-people unity, unity between people and armed forces, national unity, religious unity and international solidarity policies) will be charged with the crime of undermining the unity policy. If this purpose cannot be proven, such offender will be charged with the crime of carrying out anti-State propaganda.

Terrorism against the people’s administration, rebellion, and conducting banditry activities

Despite being different from each other in their methods, tricks employed and locations of commission, these crimes share a common element being infringing upon the life, health or physical freedom of victims.

Defined as terrorism against the people’s administration (Article 84 of the Code) are acts of infringing upon the life of state officials, public servants or citizens, e.g., murdering by shooting, decapitating or poisoning these persons; acts of infringing upon physical freedom or health of state officials, public servants or citizens, e.g., illegally taking these persons as hostages or using physical force against these persons (beating, inflicting injuries, etc.); acts of threatening to infringe upon life, e.g., using words, making gestures or showing attitudes to make threatened persons understand that their or their relatives’ lives will be infringed upon if they continue performing their official duties or civic obligations; or acts of infringing upon the life, physical freedom or health or threatening to do so or otherwise to morally intimidate foreigners in order to cause difficulties to the international relations of Vietnam.

Charged with rebellion (Article 82 of the Code) are persons who commit acts of gathering in masses to conduct armed activities or other activities infringing upon the life, health or physical freedom of victims, e.g., arresting or murdering state officials, soldiers or public security officers, plundering property, etc.

Socially dangerous acts constituting the crime of conducting banditry activities (Article 83 of the Code) include those infringing upon human life (murdering), plundering, looting or destroying property of people in mountainous, marine and other difficult-to-access areas.

Revision proposals

Regarding high treason

We do not support the opinion that Vietnamese citizens contacting or acting at the direction of foreign countries or fleeing to foreign countries to oppose the State should all be charged with high treason instead of spying or other crimes against national security. However, given that high treason is prescribed in the 1992 Constitution as the most serious crime, we suggest that the Penal Code provides a wider and more detailed definition of acts of Vietnamese citizens in collusion with foreign countries against the Fatherland, which constitute the crime. This is common in the criminal laws of many countries and can help eliminate the overlap between high treason and spying in the act of contacting foreign countries.

Regarding spying

To us, the following acts constituting the crime of spying as currently specified in Article 80 of the Code are redundant for the following reasons:

 Conducting sabotage activities, as it is identical to key acts constituting other crimes of sabotaging physical and technical foundations of the country, undermining the implementation of socio-economic policies and undermining the unity policy;

 Setting up bases for intelligence or sabotage activities against the Vietnamese State or supplying or collecting for the purpose of supplying state secrets to foreign countries, as it is simply one of activities in conducting intelligence or sabotage;

 Scouting, as it can be construed as either gathering tactical intelligence (mainly for military purposes) which is in essence an intelligence activity specified at Point a, Clause 1, Article 80, or armed infiltration into the territory of Vietnam as specified in Article 81 of the Code;

 Informing, harboring, guiding or conducting other acts to help foreigners conduct intelligence or sabotage activities, as it is in essence acts of abettors and accomplices;

 Collecting or supplying information and other materials for use by foreign countries against Vietnam, as the purpose of for use by foreign countries against the Socialist Republic of Vietnam can hardly be proven, especially in case information and materials supplied to foreign countries are public or available in the mass media or suppliers have no intent to oppose the Socialist Republic of Vietnam.

From the above analysis, we propose Clause 1, Article 80 to be revised as follows: “1. Those who conduct intelligence activities against the Socialist Republic of Vietnam shall be sentenced to between twelve and twenty years of imprisonment, life imprisonment or capital punishment.”

Besides, only foreign nationals or stateless persons can be charged with the crime of spying. Vietnamese citizens may only be treated as accomplices of spies.

Regarding carrying out activities aimed at subverting the people’s administration

We propose this crime to be renamed carrying out activities to establish or join organizations with the intent to subvert the people’s administration to boil down the crime to two socially dangerous acts of establishing and joining organizations to subvert the people’s administration, thus avoid overlap with other crimes.

It is also necessary to add a provision on penal liability exemption for persons who are deceived or forced to join organizations to subvert the people’s administration but later confess and make statements with all sincerity to competent authority. This is similar to Clause 3, Article 80, and conformable with the current criminal policies.

Regarding official interpretation of the crimes infringing upon national security

Resolution No. 04 is the only legal instrument ever issued to officially interpret the crimes infringing upon national security. At present, only the section interpreting and guiding these crimes remains effective, which, however, has revealed many limitations and needs to be replaced with a new legal document to meet requirements of the prevention and combat of crimes infringing upon national security. Such new legal document should:

 Clearly explain how to address cases of overlapping between socially dangerous acts constituting crimes infringing upon national security and help law enforcement bodies charge offenders with right crimes;

 Interpret the concept of “the purpose of opposing the people’s administration”, which has such variations as “aimed at subverting the people’s administration” (Article 79), “in order to cause harm to the territorial security of the Socialist Republic of Vietnam” (Article 81), “with the intent to oppose the people’s administration” (Article 82), “against the State of the Socialist Republic of Vietnam” (Article 88). This official interpretation will help prove the purpose of offenders, when necessary, after their acts are proven, and differentiate crimes infringing upon national security from other crimes involving similar acts;

 Define “organizations with the intent to subvert the people’s administration”; and,

 Clearly define foreign elements (foreign countries, foreign entities, foreigners) involved in the crimes infringing upon national security as victims (terrorism against the people’s administration) or foreign factions opposing Vietnam (spying) or places where Vietnamese citizens flee or defect to with the intent to oppose the people’s administration.-

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