Resolution No. 388/2003/NQ-UBTVQH11 On Compensation for Damage Caused to Persons Wrongfully Convicted by Judicial Authorities in Criminal Proceedings

RESOLUTION

OF THE STANDING NATIONAL ASSEMBLY COMMITTEE

On compensation for damage caused to persons who were wrongfully accused by those with authority  in criminal proceedings activities

THE STANDING COMMITTEE OF THE NATIONAL ASSEMBLY
SOCIALIST REPUBLIC OF VIET NAM YEAR

To restore the legitimate rights and interests of persons who were wrongfully accused in criminal proceedings, to enhance the responsibility of those with authority in criminal prosecution, investigation, indictment, trial, and enforcement of criminal penalties;

Pursuant to the Constitution of the Socialist Republic of Vietnam in 1992, amended and supplemented by Resolution No. 51/2001/QH10 dated December 25, 2001 of the National Assembly, tenth session;

Based on the Criminal Procedure Code;

Based on the Civil Code;

Based on Resolution No. 12/2002/QH11 dated December 16, 2002 of the National Assembly, session two, term XI (2002-2007) and 2003, regarding the legislative program of the National Assembly during the term XI;

RESOLUTION:

PART 1
GENERAL PROVISIONS

Article 1. Cases eligible for compensation for damage

1. The following persons are eligible for compensation for damage:

a) A person who was temporarily detained and whose detention decision by an authorized agency in criminal proceedings was revoked because that person did not commit a violation of the law;

b) A person who was temporarily imprisoned and whose imprisonment decision by an authorized agency in criminal proceedings was revoked because that person did not commit a crime;

c) A person who has completed or is serving a fixed-term imprisonment sentence, life imprisonment, or death penalty and whose conviction has been determined by an authorized court to be incorrect;

d) A person who was prosecuted, indicted, tried, or had a sentence enforced outside the cases specified in points a, b, and c of Clause 1 of this Article and whose case has been determined by an authorized agency in criminal proceedings to be incorrect.

2. Persons falling under the cases stipulated in Clause 1 of this Article, if their property was seized, detained, attached, or confiscated and suffered damage, shall be compensated.

Article 2. Cases ineligible for compensation for damage

1. The following persons are not eligible for compensation for damage:

a) A person exempted from criminal liability according to the law;

b) A person processed criminally according to the Criminal Code adopted by the National Assembly on June 27, 1985, amended and supplemented by laws amending and supplementing certain articles of the Criminal Code adopted by the National Assembly on December 28, 1989, August 12, 1991, December 22, 1992, and May 10, 1997, but now according to the Criminal Code of 1999, does not bear criminal responsibility;

c) Persons falling under the cases stipulated in Article 1 of this Resolution who intentionally provided false statements or materials to take the blame for another person or to conceal a crime.

2. Persons falling under the cases stipulated in Article 1 of this Resolution who suffered harm to health, life, or property due to their own fault or force majeure shall not be compensated for such damage.

Article 3. Principles for resolving compensation for damage

The resolution of compensation for damage in wrongful cases must comply with the following principles:

1. Timely, public, and in accordance with the law;

2. Creating favorable conditions for the wrongfully accused person, relatives of the wrongfully accused person, or their lawful representatives to exercise their right to request the responsible agency to compensate for damage or to request the Court to protect the legitimate rights and interests of the wrongfully accused person and their relatives; the wrongfully accused person is provided with conditions to stabilize their life;

3. Damage to be compensated includes both non-material and material damage as prescribed in this Resolution and related legal documents;

4. The responsible agency for compensating damage must proactively resolve compensation for the wrongfully accused person and their relatives in accordance with the law;

5. Compensation for damage is carried out based on negotiations between the responsible agency for compensating damage and the wrongfully accused person, their relatives, or their lawful representatives; if negotiations fail, the wrongfully accused person, their relatives, or their lawful representatives have the right to request the Court to resolve the matter.

PART 2
RESTORATION OF REPUTATION,  DETERMINATION OF DAMAGE
AND AMOUNT OF COMPENSATION

Article 4. Restoration of reputation

1. The wrongfully accused person's reputation shall be restored.

The responsible agency for compensating damage must publicly apologize and correct for the wrongfully accused person.

2. Public apology and correction shall be carried out through the following methods:

a) Directly apologizing and correcting publicly at the place of residence or workplace of the wrongfully accused person, with the participation of local government representatives where the wrongfully accused person resides, representatives of the agency where the wrongfully accused person works, and representatives of a political-social organization to which the wrongfully accused person belongs;

b) Publishing in a central newspaper and a local newspaper for three consecutive issues, except when the wrongfully accused person or their lawful representative requests not to publish in newspapers.

3. Within thirty days from the date of the decision by an authorized agency in criminal proceedings determining the wrongfully accused person, the responsible agency for compensating damage must implement the public apology and correction as stipulated in Clause 2 of this Article.

Article 5. Damage due to mental distress

1. Compensation for damage due to mental distress during temporary detention, temporary imprisonment, or serving a prison sentence is calculated as three days' minimum wage, as set by the State at the time of compensation, for each day of detention, imprisonment, or serving a prison sentence.

2. In cases where a wrongfully accused person dies as stipulated in Clause 1 of this Article, the spouse, father, mother, adoptive father, adoptive mother, biological child, adopted child, or person directly raising the wrongfully accused person shall be compensated a lump sum amount for mental distress equal to three hundred sixty months' minimum wage, as set by the State at the time of compensation.

3. Compensation for damage due to mental distress for wrongfully accused persons not falling under the cases stipulated in Clauses 1 and 2 of this Article  shall be determined as one day's salary based on the national minimum wage at the time of compensation being resolved for each day of wrongful detention. The period for calculating damages is from the date of the decision to initiate criminal proceedings against the person until the date when the competent authority in criminal proceedings determines that the person did not commit the criminal act.

Article 6. Material damage in the case where the wrongfully detained person dies

Material damage in the case where the wrongfully detained person dies shall include:

1. Reasonable expenses for medical treatment, maintenance, and care of the wrongfully detained person before death;

2. Reasonable expenses for burial;

3. Maintenance payments for those whom the wrongfully detained person was obligated to support.

Article 7. Material damage in the case where the wrongfully detained person suffers harm to their health

Material damage in the case where the wrongfully detained person suffers harm to their health shall include:

1. Reasonable expenses for medical treatment, maintenance, recovery of health, and restoration of lost or diminished functions of the wrongfully detained person;

2. Reasonable expenses and actual income losses of the caregiver during the treatment period;

3. In cases where the wrongfully detained person loses the ability to work and requires constant care, the damage shall include reasonable expenses for caring for the wrongfully detained person and maintenance payments for those whom the wrongfully detained person was obligated to support.

Article 8. Returning property and compensating for damage in cases where property has been infringed upon

1. Property of the wrongfully detained person that has been seized, temporarily detained, attached, or confiscated must be returned immediately.

2. Compensation for damage in cases where the property of the wrongfully detained person has been seized, temporarily detained, attached, or confiscated and subsequently infringed upon shall be as follows:

a) In cases where the property has been sold, lost, damaged, or destroyed, the damage shall be equivalent to the value of the damaged property at the time of compensation resolution;

b) In cases where there is damage arising from the inability to use or exploit the property, the damage shall be the actual loss; if the attached property is managed by the wrongfully detained person or their relatives, reasonable expenses to prevent, limit, and mitigate property damage shall be considered actual losses.

3. Amounts of money confiscated, executed, or deposited as security with the competent authority in criminal proceedings shall be refunded to the wrongfully detained person or their relatives; if the amount of money is a loan with interest, both the principal and legal interest must be refunded; if the amount of money is not a loan with interest, the principal and interest according to the non-fixed-term deposit rate of the State Bank at the time of compensation resolution must be refunded to the wrongfully detained person or their relatives.

Article 9. Damage due to actual income loss of the wrongfully detained person

A person who was temporarily detained, imprisoned, or serving a sentence and had stable income but lost it due to temporary detention, imprisonment, or serving a sentence shall be compensated for that income.

PART 3
LIABILITY FOR COMPENSATION OF DAMAGE, COMPETENCE, AND PROCEDURES FOR RESOLVING COMPENSATION OF DAMAGE

Article 10. Authority responsible for compensation of damage

1. The competent authority in criminal proceedings that issued the decision to initiate criminal proceedings shall be responsible for compensating for damage in cases where the investigation is terminated or the case is discontinued because the accused did not commit the criminal act.

2. The authority that ordered temporary detention or imprisonment shall be responsible for compensating for damage in cases where the temporary detention is revoked because the detainee did not violate the law or the imprisonment is revoked because the prisoner did not commit the criminal act; if the temporary detention or imprisonment was approved by the Prosecution Office, then the Prosecution Office that approved it shall be responsible for compensation.

3. The Prosecution Office that issued the indictment decision shall be responsible for compensating for damage in the following cases:

a) The first-instance court declares the defendant not guilty because they did not commit the criminal act and the first-instance judgment has become legally binding;

b) The second-instance court upholds the first-instance judgment declaring the defendant not guilty because they did not commit the criminal act;

c) The second-instance court upholds the first-instance judgment declaring the defendant not guilty because they did not commit the criminal act, and subsequently, the trial court under extraordinary review or retrial still upholds the second-instance judgment declaring the defendant not guilty because they did not commit the criminal act.

4. The first-instance court shall be responsible for compensating for damage in the following cases:

a) The first-instance court declares the defendant guilty, but the second-instance court revokes the first-instance judgment, declares the defendant not guilty, and discontinues the case because the person did not commit the criminal act or revokes the first-instance judgment for re-investigation, and subsequently, the suspect is discontinued from investigation or the case is discontinued because they did not commit the criminal act, or revokes the first-instance judgment for retrial, and subsequently, the defendant is declared not guilty because they did not commit the criminal act;

 b) The first-instance court declares the defendant guilty, the judgment has become legally binding, but the trial court under extraordinary review or retrial revokes the judgment and discontinues the case because the person did not commit the criminal act;

c) The first-instance court declares the defendant guilty, the judgment has become legally binding, but the trial court under extraordinary review or retrial revokes the judgment for re-investigation, and subsequently, the suspect is discontinued from investigation or the case is discontinued because they did not commit the criminal act;

d) The first-instance court declares the defendant guilty, the judgment has become legally binding, but the trial court under extraordinary review or retrial revokes the judgment for retrial, and subsequently, the defendant is declared not guilty because they did not commit the criminal act.

5. The second-instance court shall be responsible for compensating for damage in the following  cases:

a) The second-instance court declares the defendant guilty, but the trial court under extraordinary review or retrial revokes the judgment and discontinues the case because the person did not commit the criminal act;

b) The appellate court declares the defendant guilty, but the court reviewing the case under cassation or revision procedure annuls the judgment to reinvestigate, and subsequently the suspect is discontinued from investigation or the case is terminated because they did not commit the criminal act;

c) The appellate court declares the defendant guilty, but the court reviewing the case under cassation or revision procedure annuls the judgment to re-examine, and subsequently the defendant is declared innocent because they did not commit the criminal act.

6. The provincial People's Court shall be responsible for compensating losses when the Provincial People's Court's Board of Judges reviews the case under cassation or revision procedure and upholds the judgment of the lower court declaring the defendant guilty in the following cases:

a) The Criminal Division of the Supreme People's Court reviews the case under cassation or revision procedure and annuls the cassation or revision decision of the Provincial People's Court's Board of Judges and terminates the case because that person did not commit the criminal act;

b) The Criminal Division of the Supreme People's Court reviews the case under cassation or revision procedure and annuls the cassation or revision decision of the Provincial People's Court's Board of Judges to reinvestigate, and subsequently the suspect is discontinued from investigation or the case is terminated because they did not commit the criminal act;

c) The Criminal Division of the Supreme People's Court reviews the case under cassation or revision procedure and annuls the cassation or revision decision of the Provincial People's Court's Board of Judges to re-examine, and subsequently the defendant is declared innocent because they did not commit the criminal act.

7. The Supreme People's Court shall be responsible for compensating losses when the courts with jurisdiction within the organizational structure of the Supreme People's Court (referred to collectively as the court with jurisdiction) review the case under cassation or revision procedure and uphold the judgment of the lower court declaring the defendant guilty in the following cases:

a) The Supreme People's Court's Council of Judges annuls the cassation or revision decision of the court with jurisdiction within the Supreme People's Court and terminates the case because that person did not commit the criminal act;

b) The Supreme People's Court's Council of Judges annuls the cassation or revision decision of the court  with jurisdiction within the Supreme People's Court to reinvestigate, and subsequently the suspect is discontinued from investigation or the case is terminated because they did not commit the criminal act;

c) The Supreme People's Court's Council of Judges annuls the cassation or revision decision of the court with jurisdiction within the Supreme People's Court to re-examine, and subsequently the defendant is declared innocent because they did not commit the criminal act.

8. The agency that issued the decision to seize, detain, attach, or confiscate property shall be responsible for compensating those who fall under the circumstances specified in Clause 1, Article 1 of this Resolution and have suffered losses due to their property being seized, detained, attached, or confiscated. 

9. The enforcement agency shall be responsible for compensating losses in the event that there is a decision by an authorized agency determining that the execution of the judgment was incorrect and caused damage to the person who complied with the judgment.

Article 11. Settlement of compensation for damages through negotiation

The settlement of compensation for damages through negotiation shall be carried out as follows:

1. Within thirty days from the date of receipt of the application for compensation for damages from the wrongfully convicted person or their relatives, the agency responsible for compensation must negotiate with the wrongfully convicted person or their relatives regarding compensation; during the negotiation, a record must be made;

2. In the event that the negotiation is successful, the head of the agency responsible for compensation for damages must issue a compensation decision at the latest seven days from the date of the successful negotiation record;

3. If the agency responsible for compensation for damages does not conduct negotiations within the time limit stipulated in Clause 1 of this Article or if the negotiation fails, within thirty days from the end of the time limit stipulated in Clause 1 of this Article or from the date of the unsuccessful negotiation record, except in cases of force majeure, the wrongfully convicted person or their relatives may request the court with jurisdiction as stipulated in Article 12 of this Resolution to resolve the matter.

Article 12. Jurisdiction and procedures for resolving compensation for damages at the court

1. The court with jurisdiction to resolve compensation for damages is the People's Court of the district, city district, town, or provincial city where the wrongfully convicted person resides or works.

2. The procedures for resolving compensation for damages at the court shall be carried out in accordance with the provisions of civil procedural law.

PART 4
COMPENSATION FUNDS FOR DAMAGES

Article 13. Compensation funds for damages

The compensation fund for damages is a portion of the state budget.

Article 14. Management, allocation, and settlement of compensation funds for damages

The Ministry of Finance shall be responsible for managing, allocating, and settling the compensation funds for damages in accordance with the provisions of the state budget law.

Article 15. Payment of compensation for damages

1. Based on the judgment or decision of the authorized agency in criminal proceedings determining the wrongfully convicted person in the cases specified in Article 1 of this Resolution and the decision of the agency responsible for compensation for damages in the event of a successful negotiation or the judgment or decision of the court regarding compensation for damages, the agency responsible for payment must pay money to the wrongfully convicted person or their relatives.

2. Within ten days from the date of receipt of the judgment or decision as stipulated in Clause 1 of this Article, the agency responsible for payment shall implement the payment to the wrongfully convicted person or their relatives. The payment shall be made in one lump sum, except where otherwise provided by law or agreed upon by both parties.

PART 5
OBLIGATIONS TO REPAY

Article 16. Persons liable for repayment

Authorized persons in criminal proceedings who cause wrongful conviction due to their own fault during the prosecution, investigation, prosecution, trial, or enforcement of criminal judgments shall be liable for repayment according to the law.

Article 17. Authority to decide on repayment

1. The head of the agency that has implemented compensation for damages shall be responsible for deciding the amount and method of repayment that the person liable for repayment must carry out.

In the case where the head of the agency responsible for compensating for damages is the person obligated to repay, then the head of the directly superior agency of that person shall be responsible for deciding the amount and method of repayment.

2. In the case where the person obligated to repay disagrees with the decision on repayment, they have the right to appeal to the head of the directly superior agency that issued the decision on repayment. The decision resolving the appeal of the head of the directly superior agency is the final decision.

3. Determining the amount and method of repayment shall be carried out in accordance with the provisions of the law on material responsibility of officials and civil servants.

Section 6
IMPLEMENTING PROVISIONS

Article 18. Apply the Resolution to resolve compensation for damages in cases of wrongful conviction.

1. This Resolution shall be applied to resolve compensation for damages for those persons specified in Article 1 of this Resolution who have judgments or decisions with legal effect from July 1, 1996, issued by competent authorities in criminal proceedings determining that such persons were wrongfully convicted.

2. For those persons specified in Article 1 of this Resolution who have judgments or decisions with legal effect before July 1, 1996, issued by competent authorities in criminal proceedings determining that such persons were wrongfully convicted, and whose claims for compensation for damages or their relatives' claims for compensation for damages were received by competent authorities in criminal proceedings before the date this Resolution comes into effect but have not yet been resolved or are being resolved, this Resolution shall be applied to resolve them.

3. For those persons who have been compensated for damages before the date this Resolution comes into effect, this Resolution shall not be applied to resolve again.

Article 19. Statute of limitations for requesting compensation for damages

1. For those persons specified in Article 1 of this Resolution, during the period from July 1, 1996 to before the date this Resolution comes into effect, if they have judgments or decisions with legal effect issued by competent authorities in criminal proceedings determining wrongful conviction, the statute of limitations for requesting the agency responsible for compensating for damages to resolve the compensation claim is two years, counted from the date this Resolution comes into effect.

2. For those persons who have judgments or decisions with legal effect issued by competent authorities in criminal proceedings determining wrongful conviction from the date this Resolution comes into effect, the statute of limitations for requesting the agency responsible for compensating for damages to resolve the compensation claim is two years, counted from the date the judgment or decision becomes legally effective.

Article 20. Not to apply court fees, registration fees, other types of fees, and taxes

1. When a wrongfully convicted person or relative of a wrongfully convicted person requests a competent authority in criminal proceedings to compensate for damages or requests the Court to resolve the compensation claim, they are not required to pay court fees, registration fees, and other types of fees.

2. Taxes shall not be applied to the amount of compensation received by a wrongfully convicted person or their relatives.

Article 21. Implementation Provisions

1. All previous regulations contrary to this Resolution are abolished.

2. The Government, the Supreme People's Court, and the Supreme People's Procuracy shall guide the implementation of this Resolution within their respective functions and powers.