Punishing Minor Crimes "Administratively"

UNCLAS SECTION 01 OF 04 HANOI 000247

SIPDIS

E.O. 12958: N/A
TAGS: PGOV PHUM PINS ECON SOCI CASC VM
SUBJECT: Punishing Minor Crimes "Administratively"



1. (U) Summary: The National Assembly Standing Committee
(NASC) issued a new ordinance on "Administrative Violations"
effective October 1, 2002. In the Vietnamese legal
environment, administrative violations are not "serious"
enough for court trial, but are handled by government
officials. The ordinance retains its predecessor's forms of
punishment: fines, damage reparations, property
confiscation, administrative probation, and confinement in
institutions and reformatories run by both the Ministry of
Public Security (MPS) and Ministry of Labor, Invalids, and
Social Affairs (MOLISA). The new ordinance requires more
careful consultations by local government chiefs with police
and mass organization leaders over the application of some
penalties, higher fines, potential for revocation of permits
and professional certificates, property confiscation, and
the expulsion of foreigners guilty of administrative
violations. Vietnamese legal experts have defended the
ordinance as a whole, despite concerns about "unavoidable"
arbitrariness and abuse of power in implementing some of its
measures. End summary.

Inflation and Tighter Procedures
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2. (U) The GVN decided to update a 1995 Ordinance on
Administrative Violations for two main reasons, according to
MOJ officials. First, inflation had rendered the fines
stipulated in the 1995 law insufficient to deter wrongdoers.
Second, there have been many complaints about gaps in the
procedures for penalizing administrative violations. The
new measure, officials claimed, provides for more controls
in imposing penalties by mandating more thorough
consultations between police and/or mass organizations that
are supposed to recommend the punishments and People's
Committee chairpersons, who are empowered to impose many of
the penalties. The ordinance also adds some new --
primarily regulatory -- classes of violations and penalties.

Administrative Violations and Penalties
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3. (U) The ordinance stipulates that authorities will
impose administrative measures (warnings, fines, damage
reparations, revocation of permits and certificates,
expulsion, and confiscation) and "other administrative
measures" (see para 4) upon "individuals, offices, and
organizations that intentionally or unintentionally commit
acts of violating law provisions on State management, which
... must be administratively sanctioned." These are defined
as violations that do not constitute "serious crimes." The
ordinance provides fines for offenses ranging from traffic
violations to intellectual property infringements, forest
protection, labor, defense and security. (Note: The US has
been pushing Vietnam to increase the administrative fines
for IPR infringement to make them more of a deterrent.) The
highest rate of fine prescribed in the ordinance is 500
million VND (roughly $33,000),applicable to "acts of
infringing upon Vietnam's territorial waters, the
territorial waters adjacent areas, the exclusive economic
zones, and the continental shelf with a view to studying,
exploring and/or exploiting marine resources, petroleum,
and/or other natural resources." This ordinance's new
administrative measures include: expulsion (of foreigners),
revocation of permits and professional certificates,
confiscation of material evidence, and/or the means used to
commit administrative violations.

"Other Administrative Measures" generally means detention
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4. (U) Article 22 of the Ordinance lists five "other
administrative measures," which include terms ranging from
six months to two years in either juvenile reformatories or
adult detention centers for rehabilitation or "re-education"
into more socially acceptable behavior. "Other
administrative measures" are imposed by People's Committee
chairpersons at grassroots, district, and provincial levels,
at the proposal of police and/or mass organizations to
punish "individuals who commit acts of violating legislation
on security, social and safety, but not to the extent of
being examined for penal liability."


5. (U) There are two types of MOLISA-managed
detention/rehabilitation centers, one intended for
prostitutes (the so-called 0-5 centers) and the other for
drug addicts (0-6 centers). They are often co-located,
especially in smaller provinces, although always segregated
by gender. These "re-education institutions," often
referred to as "rehabilitation camps," are for adults found
guilty of prostitution or drug use, both considered "social
evils." Some drug addicts enter drug treatment centers
voluntarily or are "voluntarily" referred by family members,
although this practice appears to be declining. All provide
mandatory rehabilitation/educational training on avoiding
drug use and/or prostitution, and most provide additional
vocational training. The ordinance refers to these centers
as "medical treatment institutions," but medical care is not
the centerpiece of their operations. Many conduct mandatory
HIV testing, and in some 0-6 facilities HIV prevalence rates
exceed 40% of detainees. All 0-6 facilities provide drug
users mandatory, rapid detoxification per Ministry of Health
guidelines, but are otherwise usually do not provide drug
treatment. (Note: Neither antiretroviral therapy for
treatment of HIV nor preventive medication for opportunistic
infections is widely available in Vietnam, and are not
provided at the re-education facilities. End note.)
However, many 0-5 rehabilitation centers have some capacity
for management of vaginal infections including some sexually
transmitted diseases (STDs). A few 0-5 centers provide
actual STD testing and treatment, usually through support
from an international organization.


6. (U) MPS implements the remaining three "other
administrative measures." Juvenile reformatories, managed
by the MPS, are for 12 to 17 year-old repeat petty
offenders. MPS-managed "education institutions" are for
adults who have repeatedly committed minor offenses ranging
from petty theft to "humiliating other persons." These
institutions are the descendants of the "re-education
camps." The final "other administrative measure" is
administrative probation, defined by 1997's Decree 31/CP.
It has generally taken some form of house arrest.
Authorities have in the recent past applied administrative
probation to several well-known activists, including Ha Sy
Phu and Tran Van Khue.

Why Impose Administrative Penalties?
--------------


7. (U) According to MOJ officials, administrative measures
have a long history in Vietnam. In some areas where the law
and implementing regulations are clear and public, like IPR
enforcement, they can provide a useful tool for taking swift
action against violators and allow for the confiscation of
illegal goods. MOJ officials also asserted that most
people, including GVN officials, strongly believe that minor
offenses are better and more quickly settled by
administrative measures. First, administrative measures do
not burden the court system. Second, administrative
measures in many cases are viewed as "lenient" punishments.
MOJ Department of Criminal and Administrative Laws senior
expert Dang Thanh Son explained that, for psychological
reasons, criminal records carry such a stigma for most
Vietnamese that they often try to avoid court proceedings,
despite the fact that a court sentence is not always more
serious than an administrative measure. Son, however,
stressed that the use of administrative measures,
particularly "other administrative measures," could easily
be subject to abuse and arbitrariness, since they depend on
judgments of non-court officials. The lack of transparency,
the lack of precedent (i.e. each handled on a case by case
basis),and the lack of any requirement to publish or in any
other way make public administrative measures add to that
problem.

"Other Administrative Measures unavoidably arbitrary"
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8. (U) "Other administrative measures", particularly
administrative probation, are still "essential" in helping
to guarantee society's security and could not have been
removed from the ordinance, according to Ngo Ba Thanh,
former chairwoman of the Law Committee of the National
Assembly (NA) and deputy president of the Vietnam Lawyers
Association, a point echoed separately by Dr. Hoang Ngoc
Giao, a senior lecturer of the Law Faculty of the Hanoi
National University. Thanh said individual citizens
punished with "other administrative measures" should feel
"happy" because they had not been sentenced by an actual
court and hence they would not become "former convicts."
She claimed further that punishment of individuals by "other
administrative measures" is "lenient" in the sense that such
individuals do not suffer the "spiritual and administrative
pressure" of a court sentence.


9. (U) Both Thanh and Giao, however, expressed concern
about what they called the "unavoidable arbitrariness and
abuse of power" by local authorities while applying such
administrative measures against citizens. Admitting that
such arbitrariness was "hard to avoid sometimes," Thanh said
that the recently revised law on public complaints and
denunciations has at least made it possible for individuals
against whom administrative measures are imposed to request
the administrative court to review decisions of GVN offices
and officials. However, Giao noted there were still
numerous gaps in the ordinance that could easily be
exploited by local offices and personnel. He admitted that,
although the use of administrative measures requires
considerable consultation and "examination," individuals
might be easily put into an education institution because of
unfair or biased documentation.

Administrative Violations Court a Long Way Off
-------------- --------------
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10. (U) Articles of the revised Ordinance stipulate that
administrative measures be imposed against those who have
violated the law, but not seriously enough to take to court.
According to Nguyen Duc Long, deputy director MOJ's
International Law and Cooperation Department, and Tran Khanh
Hoan, a senior expert from MOJ's Department of Criminal and
Administrative Legal Documents, the use of administrative
measures is quite controversial, not only with citizens at
large, but also within professional circles, because "in
many of the cases, local officials would definitely find it
quite difficult to tell how serious some violations are."
According to Hoan, there needs to be a code -- passed by the
full NA -- on administrative violations to replace the
current NASC approved ordinance. Moreover, it would be
"helpful" if all administrative violations were settled by a
court to avoid possible "arbitrariness and abuse of power"
by State offices and local authorities, he noted.


11. (U) Regarding the application of the "other
administrative measures," Long noted that there had been
much concern from the international community about the use
of these measures, especially the terms in education centers
and administrative probation. (Note: DRL DAS Carpenter
raised the issue of administrative probation during the
November 8, 2002 US-Vietnam Human Rights dialogue. Long was
a member of the GVN delegation. End note.) Long, however,
claimed that only three Vietnamese people had so far ever
been put under administrative probation, and none of them
had appealed to a court regarding their probation. (Note:
Post is aware of at least eight individuals currently under
administrative probation and one current prisoner, Father
Nguyen Van Ly, who was formerly under administrative
probation. End note.)


12. (U) Long and Hoan said that current NA leaders
including Vice Chairman Nguyen Van Yeu support replacement
of the ordinance with a code passed by the full NA. Hoan
predicted that it would take at least three years to compile
such a code. Separately, a senior staff member of the
Office of the National Assembly confirmed that an
Administrative Violations Code is on the NA's legislative
agenda for the 2005-6 timeframe.


13. (U) Long and Hoan cited difficulties, both practical
and psychological, with having a court settle all
administrative violations. Former Minister of Justice and
current NA member Nguyen Dinh Loc has publicly advocated the
idea. (Note: As Minister, Loc was instrumental in putting
Vietnam on its current course of legal reform and was a
vocal advocate of introducing transparency and international
legal standards into the Vietnamese legal system. end note)
However, Long said he himself had been criticized for being
too "pro-Western" after voicing support for the idea.
"Implementation of such a law would also require much bigger
efforts from the court system, something one shouldn't
expect to see in the near future," he commented. Hoan added
separately that having a court settle all administrative
violations would not be possible until roughly 2015-20.


14. (U) Comment: Certain aspects of Vietnam's
administrative violations system could be viewed as
pragmatic since they allow for relatively expeditious
handling of regulatory violations and petty crimes that
could overwhelm the still immature court system. The system
is a useful tool for enforcing intellectual property rights,
for instance. However, administrative measures include
extra-judicial means to impose punishments, such as house
arrest under the administrative probation decree. The
appeal mechanism instituted in 1996 and currently under
revision (septel) is opaque and subject to bias. Except for
some regulatory matters, it does not appear to work well.
That no one under administrative probation has attempted to
appeal his or her punishment more likely points to a lack of
confidence in the system than acceptance of the decision.
While Vietnamese sensibilities may appreciate that an
administrative violation does not tarnish one with a
criminal record, the lack of accountability, transparency,
and clear standards in imposing administrative measures can
and does lead to abuse. It is encouraging, however, that
Vietnamese legal professionals including government
officials, NA members, and scholars recognize and are
willing to speak about the potential for abuse.
BELLARD