Nong Duc Tai, LL.M.[1]
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| Deputy Head of the Party Central Committee’s Internal Affairs Commission Vo Van Dung (right) and Vice Chairman and Secretary-General of the Anti-Corruption and Civil Rights Commission of Korea (ACRC) Jeong Seung-youn exchange texts of the cooperation agreement signed between the two sides in Hanoi on May 23, 2024 __Photo: Phuong Hoa/VNA |
Introduction
Since the 2007 Law on Mutual Legal Assistance (the Law) entered into force, Vietnam’s practice of mutual legal assistance (MLA) in criminal matters has recorded notable advances. According to the Supreme People’s Procuracy, domestic authorities have transmitted to their foreign counterparts more than 800 requests for MLA in criminal matters, while receiving and executing around 700 requests coming from abroad.
These outcomes have facilitated the effective settlement of criminal cases with transnational elements, boosted international cooperation in the fight against crime, particularly organized, cross-border crime, thereby contributing to safeguarding national security and public order and enhancing the consular protection of Vietnamese citizens who have been arrested, investigated, prosecuted or tried overseas.
Since 2012, the country has concluded 19 bilateral treaties on MLA in criminal matters, acceded to one ASEAN regional treaty, and become a party to the United Nations Convention against Corruption (UNCAC). Nonetheless, the growing number of domestic criminal cases and matters involving foreign elements has generated an increasing demand for international cooperation. MLA procedures are inherently time-consuming, whereas domestic criminal proceedings are subject to strict statutory time limits. Delayed or inadequate responses to requests for assistance have, in practice, undermined both the quality and timeliness of criminal investigations and adjudications.
Moreover, the Law regulates four distinct domains, namely civil matters, criminal matters, extradition, and the transfer of sentenced persons. These domains are highly specialized with each of them having its own scope of regulation, target subjects, guiding principles, procedural steps, and competent authorities. Housing them all in a single legal instrument is therefore conceptually and practically untenable.
At the same time, as Vietnam’s international integration deepens, overall crime, particularly transnational organized crime and crime involving foreign elements, has increased markedly and become more complex. As a result, the number of criminal cases requiring MLA in criminal matters continues to rise, the modalities of cooperation become more various, and the underlying legal and procedural issues are correspondingly more intricate.
In addition, the Party and the State have adopted numerous policies designed to accelerate judicial reform strategies and strengthen international integration in general and within the field of criminal justice in particular. For instance, Politburo Resolution 66-NQ/TW of April 30, 2025, on renewing the formulation and implementation of legislation to meet national development requirements in the new era, underscores the urgent need for legal reform as a driver of national renewal and of the aspiration to build a prosperous country. These orientations provide an overarching political and conceptual framework for drafting a stand-alone Law on Mutual Legal Assistance in Criminal Matters that is both deeper in substance and more responsive to practical needs.
New provisions of the Draft Law on MLA in Criminal Matters
The draft Law on Mutual Legal Assistance in Criminal Matters (the draft) aims to establish a robust framework for international cooperation in criminal justice. This legislation outlines the principles, procedures and responsibilities for MLA between Vietnam and foreign jurisdictions. The draft is structured into four chapters, with the first three laying the foundation for its scope, definitions and operational mechanisms. Below, the author mainly focuses on analyzing Chapters I, II and III to understand their intent, provisions and implications
General provisions
Chapter I, consisting of Articles 1 thru 18, serves as the cornerstone of the draft, defining its scope, applicability and key terms while establishing the legal basis for MLA in criminal matters. Article 1 outlines the Law’s purpose of specifying principles, authority, procedures and responsibilities of Vietnamese state agencies in facilitating MLA with foreign countries. This covers such activities as evidence collection, investigation and procedural support to settle criminal cases. Article 2 provides that the Law applies to Vietnamese and foreign agencies, organizations and individuals involved in MLA, ensuring comprehensive coverage across jurisdictions.
A critical component of this Chapter is Article 3. For example, “MLA in criminal matters” is defined as cooperation between Vietnam and foreign states through competent authorities to facilitate verification, investigation, evidence collection and other procedural actions for settling criminal cases. The terms like “requesting state” (the state seeking assistance), “requested state” (the state providing assistance), and “requesting agency” (e.g., central authorities, proceedings-conducting bodies or enforcement bodies) are clearly delineated. These definitions promote clarity and consistency, essential for international legal cooperation where misinterpretations can hinder collaboration.
The scope of MLA is specified in Article 8, covering a wide range of activities: serving documents, taking statements (in-person or online), collecting and providing evidence, conducting searches and seizures, implementing procedural measures for asset recovery, and temporarily transferring detained persons for investigative purposes. It also covers information exchange and other forms of assistance, reflecting diverse needs of modern criminal justice. Article 5 on the principles of MLA aims to ensure that MLA aligns with Vietnam’s Constitution, domestic laws and treaties/international agreements. Article 10 emphasizes safety guarantees for individuals who provide evidence abroad, such as protection from prosecution for prior acts unless they consent.
Indeed, this Chapter excels in establishing a comprehensive and clear framework, addressing both traditional and emerging forms of MLA. By prioritizing sovereignty and safety guarantees (e.g., Article 10’s provisions on protection of individuals providing evidence abroad), it balances cooperation with national interests. Additionally, the inclusion of modern MLA activities, like online making/taking of statements, indicates an awareness about current global challenges in combating transnational crime.
Vietnam’s requests for MLA
Chapter II, consisting of Articles 19 thru 25, specifies the procedures for Vietnam to request MLA from foreign states, detailing the preparation, submission and follow-up of such requests. Article 19 specifies required components of an MLA request, including a formal request document, supporting materials and details like the requesting agency’s identity, legal basis, case description and desired timeline. This structured approach ensures that requests are comprehensive and meet international standards, facilitating smoother cooperation.
Article 20 regulates the process, designating the Supreme People’s Procuracy (SPP) as the focal point for handling MLA requests. Requests must be prepared in triplicate and in the language specified in Article 7 (typically the language of the requested state or as per international agreements). The SPP reviews requests within 10 working days for their validity, then forward valid ones to concerned foreign authorities or the Ministry of Foreign Affairs in case no treaty exists. Invalid requests will be returned for correction, ensuring efficiency and accountability.
This Chapter also addresses practical considerations, such as confidentiality (Article 19) and the termination of requests (Article 24). For example, a request may conclude upon receipt of results, notification of impossibility by the foreign state, or when deemed no longer necessary by the requesting agency. Under Article 25, the country may request foreign states to pursue criminal liability for Vietnamese citizens who commit crimes abroad, ensuring accountability for transnational offenders.
The Chapter provides a structured roadmap for Vietnam’s outbound MLA requests, emphasizing coordination through a focal body and adherence to international standards. The clear timelines and documentation requirements facilitate smooth communication with foreign counterparts, while provisions on case transfers highlight Vietnam’s commitment to addressing cross-border criminality.
Foreign requests for MLA
Chapter III, consisting of Articles 26 thru 37, governs the handling of MLA requests from foreign states to Vietnam, ensuring a reciprocal framework for international cooperation. Article 26 mirrors Article 19 by specifying the required documents of a foreign request, including a formal request, supporting materials and details like the case’s legal basis, objectives and procedural requirements. This symmetry ensures consistency in documentation standards.
Article 27 specifies the processing time limit: the SPP is required to review requests within 15 working days, forwarding valid ones to competent proceedings-conducting bodies or returning invalid ones with reasons. If Vietnamese translation is needed, an additional 15 days will be given. Article 28 specifies grounds for rejecting or deferring requests, such as threats to national sovereignty, security or public order, or if the offense is time-barred under Vietnam’s law. This provision safeguards Vietnam’s interests while adhering to international norms.
Specific procedures for common MLA activities are detailed in Articles 29 thru 36, covering document service, online making/taking of statements, asset recovery, and temporary transfer of detained persons. For instance, Article 31 ensures that individuals who make online statements are informed of their rights and obligations, while Article 35 sets strict conditions for transferring detained persons, including their consent and guarantees of safety from the requesting state. These provisions reflect a balance between cooperation and human rights protection.
This Chapter ensures that Vietnam can effectively respond to foreign MLA requests while protecting national priorities and individual rights. The clear procedural timelines and grounds for MLA refusal provide a balanced approach, fostering trust with international partners. The inclusion of safeguards, such as consent for transfers and safety guarantees, reflects a commitment to fairness in cross-border cooperation.
Strengths and identified gaps and challenges in the draft
The draft, particularly its first three chapters, establishes a structured framework for international cooperation in criminal justice, specifying procedures for making Vietnam’s outbound requests and processes for handling inbound requests from foreign states. Below, the author analyzes the strengths and weaknesses of the provisions of these chapters to assess their effectiveness and potential challenges.
Strengths
Firstly, Chapter I establishes a comprehensive framework for MLA, ensuring clarity and adaptability in addressing transnational crimes. It clearly defines the scope of MLA, covering a broad range of activities. The inclusion of modern tools like online making/taking of statements and temporary prisoner transfers demonstrates adaptability to contemporary transnational crime challenges, such as cybercrime and money laundering. Clear definitions in Article 3 (e.g., “requesting state” and “requested state”) ensure consistency and reduce ambiguity for smooth international collaboration.
Secondly, Chapters II and III outline clear procedures for handling both outbound and inbound MLA requests, enhancing Vietnam’s operational credibility in international cooperation. Indeed, Chapter II provides a detailed roadmap for Vietnam’s outbound MLA requests, with Article 19 specifying required documentation and Article 20 outlining a 10-day review process by the SPP. Similarly, Chapter III’s 15-day time limit for reviewing inbound requests and clear documentation standards (Articles 26 and 27) promote efficiency.
Thirdly, the draft’s alignment with Vietnam’s constitutional principles and treaties ensures legal consistency and strengthens mutual trust with foreign partners. This is reflected in Chapter II, where the requirement for requests to include legal bases and case details (Article 19) conforms to international standards. Similarly, Chapter III provides grounds for refusal (Article 28), such as safeguarding national sovereignty, that are consistent with common MLA practices. This legal coherence fosters confidence in Vietnam’s commitment to international cooperation.
Fourthly, human rights safeguards are embedded in the draft, particularly in the provisions on protection of individuals involved in cross-border legal assistance. Article 10 guarantees safety for individuals providing evidence abroad, protecting them from prosecution for prior acts unless they consent. Article 35 requires consent and safety commitments for transferring detained persons, while Article 31 ensures individuals making online statements are informed of their rights. These provisions reflect a commitment to conforming to global human rights standards, balancing cooperation with fairness.
Lastly, Chapter III’s detailed procedures for various MLA activities, such as online making/taking statements (Article 31), asset recovery (Article 32), and facilitation of foreign investigations (Article 33), ensure flexibility to address diverse requests. The ability to refuse or defer requests on specific grounds (Article 28) safeguards Vietnam’s interests while maintaining cooperative intent.
Weaknesses
First, the ambitious processing deadlines risk rushed reviews or delays when cases are complex. The 10-day review time limit for outbound requests (Article 20) and the 15-day time limit for inbound requests (Article 27) may be unrealistic for complex cases or resource-constrained agencies. These tight time limits could lead to rushed reviews or delays. The additional 15-day translation period for inbound requests (Article 27) further complicates urgent cases.
Second, placing nearly all review and coordination duties on the SPP may exceed its current staffing, technical capacity and budget. The SPP’s central role in reviewing and coordinating requests (Articles 16, 20 and 27) places significant demands on its capacity. Chapter I’s broad scope of MLA activities (Article 8) and the detailed documentation requirements in Chapters II and III (Articles 19 and 26) require substantial staffing, training and technological resources, which may strain Vietnam’s judicial system without clear funding provisions.
Third, heavy reliance on existing treaties hampers MLA when dealing with countries lacking prior agreements. Chapter I’s dependence on treaties for procedural guidance (Article 4) could create challenges when Vietnam cooperates with foreign countries lacking such agreements. The fallback to diplomatic channels via the Ministry of Foreign Affairs (Article 20) may slow processes, particularly for urgent requests, limiting the law’s effectiveness in non-treaty scenarios.
Last but not least, the grounds for refusal remain vaguely worded, inviting inconsistent or disputed interpretations. While Article 28 provides grounds for refusing requests (e.g., threats to sovereignty or political motivations), the terms like “prejudice to national sovereignty” or “political offenses” are relatively subjective due to lack of specific criteria. This ambiguity could lead to inconsistent application or disputes with requesting states.
Recommendations for improvements
The draft, particularly Chapters I, II, and III, establishes a robust framework for international cooperation in criminal justice. However, weaknesses such as ambitious timelines, resource intensity, dependence on existing treaties, translation barriers, and ambiguous refusal grounds could hinder its effective implementation. Below, the author proposes some solutions to address these challenges.
Firstly, the statutory time limits for MLA requests should be longer to prevent delays in complex investigations. The 10-day time limit for outbound requests (Article 20) and the 15-day time limit for inbound requests (Article 27) should be extended to 20 and 25 days, respectively, where multiple jurisdictions or substantial evidence are involved, especially in cases like implicating UNTOC or UNCAC obligations. A triage mechanism should further prioritize urgent matters, such as human trafficking or corruption cases, by offering a five-day expedited procedure and by mandating interim progress reports whenever extensions are invoked, thereby preserving transparency and international confidence.
Secondly, the SPP should establish a dedicated MLA unit in order to alleviate resource pressures arising from its central coordinating role under Articles 16, 20 and 27 and the broad mandate of Article 8. It also ought to set up a specialized department funded under Article 15. Regular training in international criminal law, digital tools and UNTOC/UNCAC compliance, coupled with a secure electronic platform for the submission and tracking of requests, would implement UNODC’s digitalization guidance and ensure that all proceedings-conducting bodies can meet the law’s demands efficiently.
Thirdly, the Government should standardize MLA practice in non-treaty situations. To limit dependence on existing treaties, the draft should append model request templates, like stipulating minimum documentary requirements in Article 4. Concurrently, the country needs to prioritize bilateral MLA agreements with key partners, particularly within ASEAN, to complement multilateral frameworks. Streamlining the Ministry of Foreign Affairs’ role with a five-day transmission time limit for non-treaty requests (Article 20) would further prevent diplomatic bottlenecks.
Fourthly, the draft should authorize bilingual submissions for urgent cases. To prevent translation delays, Article 27 should be revised to accept requests submitted simultaneously in English and Vietnamese for time-sensitive matters, with certified translations to follow. A central translation service within the SPP’s MLA unit, or contracted certified translators, should guarantee rapid and accurate linguistic support, while pre-translated templates promoted through bilateral or regional arrangements (Article 26) would further enhance efficiency.
Finally, the SPP should provide detailed guidance on grounds for refusal to avoid inconsistent application of Article 28, and define ambiguous terms such as “prejudice to national sovereignty” and “political offense,” providing illustrative examples (e.g., espionage as a political offense). Each refusal decision should include a reasoned written explanation of the factual and legal bases, and a consultative committee composed of representatives of the SPP, the Ministry of Foreign Affairs and the Ministry of Public Security should review borderline cases to ensure defensible and uniform outcomes.-
[1] Ph.D student, University of Canterbury, New Zealand.
