Litigation Guide for Cases Involving Foreign Nationals Committing Crimes in Vietnam

When a foreign national commits a crime in Vietnam, the litigation process, rights, and responsibilities contain several unique aspects: it must comply with domestic law while also respecting international treaties and diplomatic principles. Below is the latest guide, compiled from current legal provisions and expert analyses, to help you understand litigation procedures in criminal cases involving foreigners.

1. Legal Basis & Applicable Principles

1.1. Legal Effect and Immunity Exceptions

According to Article 5 of the 2015 Penal Code (amended in 2017), all criminal acts committed within the territory of the Socialist Republic of Vietnam are subject to Vietnamese criminal law, including acts committed by foreign nationals.

If the foreign national enjoys diplomatic or consular immunity (under Vietnamese law, international treaties, or international customs), criminal liability may be governed by international treaties or resolved through diplomatic channels.

1.2. Extradition, International Assistance & Deportation

Extradition, as governed by the 2007 Law on Mutual Legal Assistance, may be applied if Vietnam has a treaty with the foreign national’s country. Conditions include minimum sentencing thresholds, pending punishment, or unfinished imprisonment terms.

Deportation, under Article 37 of the 2015 Penal Code, can be imposed on foreign nationals as a principal or additional penalty, requiring them to leave Vietnamese territory.

2. Procedural Steps & Litigation When Foreign Nationals Are Prosecuted in Vietnam

Below are the general litigation steps that a foreigner may face if prosecuted in Vietnam, along with their basic rights during the litigation process.

Detection and Prosecution

Identifying Criminal Acts

Acts may be uncovered via police investigation, media reports, or denunciations by individuals or organizations. The process is similar to cases involving Vietnamese defendants.

Immunity Rights

If the individual enjoys diplomatic or consular immunity, this must be clearly defined by law or international treaty. If immunity applies, handling follows special procedures or diplomatic channels.

Prosecution of Case and Defendant

If sufficient grounds exist (per the 2015 Criminal Procedure Code), investigative agencies may prosecute the case and the foreign suspect. This requires solid evidence and clear signs of criminal activity.

Indictment, Trial, and Litigation Process

Investigation and Evidence Collection

• Take statements from the suspect, witnesses, and related parties.

• Ensure translation/interpretation if the person does not speak or understand Vietnamese well.

Indictment

• The Procuracy (Prosecutor’s Office) reviews the investigation files and evidence.

• If evidence is insufficient or procedural errors exist, files may be returned for further investigation.

Trial

• Competent courts will conduct the trial. For cases involving international elements (foreign victims, assets abroad), provincial or central-level courts may have jurisdiction based on severity.

• The foreign defendant has the right to self-defend or hire a lawyer. Vietnamese law guarantees the right to interpretation and consular access.

Appeals / Cassation

• If unsatisfied with the first-instance judgment, the foreign defendant may appeal to a higher court.

• In serious cases or where serious procedural errors occurred, the case may be reviewed under cassation.

3. Unique Aspects and Rights in Litigation for Foreign Offenders in Vietnam

3.1. Guaranteed Rights

• Right to interpretation if the foreigner does not speak or understand Vietnamese.

• Right to defense, either by self-representation or legal counsel.

• Right to consular access to contact their embassy or consulate for consular protection.

3.2. Common Challenges & Solutions

• Language and legal comprehension barriers: foreigners may not fully understand their rights and obligations under Vietnamese law.

• Lack of extradition treaties or mutual legal assistance agreements between Vietnam and their country may hinder cooperation in transferring convicted individuals.

• Diplomatic factors: Immunity or international treaties may affect how litigation is handled.

3.3. Special Measures

• Deportation: Convicted foreigners may be expelled from Vietnam, either as a primary or supplementary penalty.

• Extradition & International Arrest: If the foreigner flees abroad, Vietnam may coordinate with Interpol or utilize mutual legal assistance treaties to extradite or prosecute them internationally.

Conclusion

Handling litigation in cases involving foreign nationals committing crimes in Vietnam requires a balance between compliance with domestic laws and sensitivity to international treaties, diplomatic rights, and human rights. If you are involved in or advising on such a case, consider the following:

• Always verify if the foreigner has diplomatic or consular immunity, as this significantly impacts criminal responsibility and handling procedures.

• In serious or high-risk cases (such as flight risk), secure evidence quickly, follow correct procedure, and involve interpreters and legal counsel from the start.

• Understand Vietnam’s extradition laws and its relevant international treaties to determine whether the person can be extradited or transferred to serve sentences abroad.

• Engage lawyers with experience in international and cross-border litigation to ensure fairness, clarity, and optimal protection of the accused’s rights.

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