VIETNAM NATIONAL UNIVERSITY SCHOOL OF LAW TRAN THI THU HANG PROTECTION OF THE RIGHT OF DAMAGE SUFFERERS IN THE LAW ON STATE COMPENSATION LIABILITY OF VIET NAM Specialized in Law on hu
SOME THEORETICAL ISSUES ON RIGHTS OF
Rights of the damage sufferer and state liability to compensate
1.1.1 Definition, characteristics and elements of the rights of the damage sufferer
1.1.1.1 Definition of the damage sufferer
The terminology used to describe individuals or organizations harmed by the misconduct of official duty performers varies across countries, depending on the scope of state compensation While “victim” generally refers to a person harmed by criminal acts or attack targets, “injured party” describes someone harmed by the actions of another, and “damage sufferer” or “sufferer” pertains to individuals or organizations that have incurred damage In Vietnam, the term “damage sufferer” is specifically used in legal documents published by the government to refer to those affected by the misconduct of public officials.
The law not only recognizes human rights but also protects the rights of victims in cases of human rights violations Damage occurs when the original state is altered due to external influences, and compensation serves as reparation for these losses Linguistically, compensation is understood as "reparation for losses caused," emphasizing its role in addressing harm When human rights are violated by individuals or organizations, the state faces the responsibility of providing compensation to victims Therefore, the rights of the victim are closely related to the right to receive compensation for the damage suffered.
The right to compensation is a derivative right which only arises when human rights are violated
The article clarifies that there are distinct differences between the rights to compensation and reparation in international law In the English translation of the ICCPR, "compensation" refers to the victim’s right to remedy when their rights are violated, whereas in French and Spanish translations, "reparation" is used instead Compensation is a form of remedy, including restitution, rehabilitation, satisfaction, and safeguards against future violations, with the obligation primarily on the state to provide adequate redress Reparations, on the other hand, should be proportionate to the severity of the violations suffered and involve broader measures to repair the harm caused to victims These legal distinctions highlight the state's responsibility to ensure both compensation and reparation are appropriately provided to victims of human rights violations.
Compensation is a form of reparation provided to victims when replacement or recovery isn’t possible, such as in cases of rape or terrorism where psychological and emotional damages cannot be erased It involves monetary awards for both pecuniary (financial) and non-pecuniary losses, serving as a financial substitute for the pre-victimization state However, monetary compensation alone is often insufficient, highlighting the importance of including support services within the broader scope of victim reparation.
Compensation, in legal terms, is a civil obligation that arises from harmful acts, serving as reparation for losses and remedies resulting from violations It plays a crucial role in civil law by ensuring that damages caused by misconduct are appropriately addressed and compensated.
"a form of civil liability where the party who causes damage must compensate for physical losses and mental losses for the damaged party” [6, pp 31]
Damage, from a non-intact perspective, refers to the initial state of things after being affected by external influences Compensation for damage involves restoring the original state of things and phenomena, ensuring that the affected entity is returned to its pre-damage condition.
Thus, the rights of the damage sufferer can be understood as the right to claim compensation and compensation for damages caused by violations from individuals or organizations
1.1.1.2 The characteristic of rights of the damage sufferer
The right of the damage sufferers have the following characteristics:
The right to claim compensation for victims can be understood in two ways: firstly, as the right of individuals and organizations injured by the State to seek redress, which is applicable in countries such as the United States, Japan, Korea, China, Israel, and France Secondly, it refers to the reciprocal right of individuals and organizations to claim compensation from the State and vice versa, as seen in countries like Canada, Malaysia, Singapore, England, Botswana, and Australia The approach taken on this issue significantly influences the scope of available compensation.
Karel Vasak’s (1977) classification of human rights into three generations highlights the evolving nature of rights: the first generation encompasses civil and political rights such as the right to life, freedom of expression, and fair trial, ensuring individual liberty and participation in political life; the second generation includes socio-economic rights like the right to work, health, and housing, which promote equal treatment and conditions; the third generation focuses on collective and developmental rights of nations and groups, including self-determination and the right to development, reflecting the principle of fraternity and often facing violations from states.
The purpose of state compensation is to protect the rights of individuals whose rights have been violated, typically including damages such as physical and mental harm To exercise these rights, especially the right to compensation, certain conditions must be met: there must be legal recognition of the right in the Constitution or relevant laws, and there must be designated institutions responsible for overseeing compensation and assisting victims The state compensation body can be viewed in different ways; from one perspective, it is responsible for providing compensation, while from another, it is the competent authority tasked with settling claims and ensuring victims receive appropriate reparations.
1.1.2 Definition, characteristic, elements of State compensation
According to Thomas Hobbes in Leviathan, without a state, human life in its natural condition would be "lonely, poor, filthy, brutal, and short-lived," highlighting the necessity of a structured society However, he also warns that "as a product of humanity, the state has limitations" and can be driven by greed and self-interest, which underscores the importance of effective legal frameworks To sustain and enhance democracy within society, the rule of law must serve as a crucial mechanism for controlling state power By enforcing legal measures that limit governmental authority, the rule of law prevents the abuse of power by the executive branch, ensuring accountability and protecting citizens' rights.
Ensuring the rights of injured individuals and implementing sanctions on state compensation when public service officials commit illegal acts are essential measures to clearly illustrate the mechanism of "people authorized to the State but do not lose their rights." This approach upholds accountability while protecting citizens' rights, reinforcing the principle that government authorities must operate within legal boundaries By enforcing such measures, the legal system emphasizes that public officials are responsible for their actions, and injured parties are entitled to appropriate remedies Ultimately, these provisions ensure that public service execution remains transparent, just, and in alignment with citizens' rights.
John Locke emphasized that, beyond their legislative duties, government officials themselves are subject to the laws they create, serving as both enforcers and recipients of legal obligations He argued that rulers have a role in ensuring that laws are applied fairly and effectively for the public benefit, thereby maintaining accountability and legitimacy in governance.
Locke emphasizes that individuals have a duty to preserve peaceful society and should not disturb or endanger their government Despite growing skepticism about the government's misuse of power, he asserts that as long as a person's conscience remains free from political interference, they are morally obligated to obey their country's laws.
In other words, the regulation of SCL is to show the State's responsibilities to violations committed by the official duty performer caused to the people
This regime is a tool to balance the interests of the two parties “in the social contract”, which are the government - the State and the people
Ensuring the realization of human rights is a collective responsibility shared by individuals, organizations, and the State According to human rights law, it is the State’s obligation to uphold and protect these rights in three specific forms: respecting, protecting, and fulfilling human rights Implementing these duties is essential for creating a society where everyone’s fundamental freedoms are safeguarded.
States have a fundamental obligation to recognize and respect human rights by refraining from interfering, directly or indirectly, in the rights of rights holders This duty is considered passive, as it requires nations only to avoid actions that hinder the enjoyment of these rights, without the need for active measures or initiatives to support citizens.
Protecting the rights of the damage sufferers and State
1.2.1 Rights of the damage sufferer in international law
The victim’s right to access compensation was first acknowledged internationally in 1985, when the United Nations General Assembly adopted the Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power This landmark resolution established a global framework emphasizing the importance of ensuring justice and financial restitution for crime victims.
Currently, there is no comprehensive international treaty specifically governing state compensation liability; existing regulations primarily address damage compensation principles within various international treaties As of 2001, international law continues to lack a dedicated framework for state responsibility in compensation claims, relying instead on general principles related to damage reimbursement.
Commission presented to the United Nations General Assembly the draft of Convention on National legal responsibility for acts against international law
This draft includes provisions on liability, outlining the responsibility to compensate individuals and legal entities for damages caused by infringements on their legitimate rights and interests Such damages may result from actions by the State, state representative agencies, or other entities representing the government.
Although this document has not been officially approved, it primarily governs responsibilities between States rather than between States and citizens Nonetheless, it serves as a valuable reference for countries developing their domestic laws on State responsibility International treaties such as the ICCPR recognize the right to claim compensation for victims of illegal detention or wrongful actions, with specific provisions in Articles 9 and 14 Additionally, other human rights conventions, including the Convention Against Torture (1984), the Convention on the Rights of the Child (1989), and the International Convention on the Elimination of All Forms of Racial Discrimination (1965), explicitly address victims' rights to compensation.
Paragraph 9 of Article 16, Clause 6 of Article 18, Clause 5 of Article 22 and Clause 2 of Article 71 of the International Convention on the protection of the rights of all migrant workers and their family members 1990; Clause 2 of Article 8, Clause 1 of Article 19, Clause 2 of Article 20, Clause 3 of Article
23 and Article 24 of the Convention on the Protection of Everyone from the
Forced disappearance 2006 stipulates the right to compensation of each subject belonging to the scope of each convention
The United Nations Human Rights Committee, along with other conventions' committees, was established to oversee the enforcement of human rights agreements These committees have various methods to perform their duties, including receiving individual complaints and issuing recommendations to ensure compliance with human rights standards.
Receiving complaints and issuing committee recommendations are essential measures to support victims in exercising their right to compensation Specifically, for violations of privacy, Guideline No 5 of the ICCPR emphasizes the obligation for member states to establish independent bodies dedicated to providing reparations for such violations.
International treaties recognize the right to compensation for victims, and these rights are protected through the establishment of specific agencies with designated jurisdictions Globally, two main types of agencies uphold human rights: first, those established under the United Nations Charter, including the General Assembly, Security Council, Economic and Social Council, International Court of Justice, and the Secretariat These agencies are responsible for promoting and safeguarding human rights worldwide Second, agencies founded based on human rights conventions operate under the supervision of the Board of Supervision of International Human Rights Conventions, with some established through the United Nations Economic and Social Council's resolutions, ensuring targeted protection and enforcement of human rights standards.
1.2.2 Rights of the sufferer in the region law
In various regions worldwide, mechanisms are in place to protect and promote human rights, with a particular focus on the rights of victims and sufferers Currently, institutions dedicated to safeguarding and fulfilling human rights have been established in three key regions: Europe, North America, and South America, ensuring specialized support and legal protections for those in need.
In Europe, the Convention for the Protection of Human Rights and Fundamental Freedoms (1950), along with 16 Additional Protocols, serves as a crucial legal framework for safeguarding human rights, particularly in cases involving illegal acts by public officials Membership in the European Council requires accession to this Convention, which is a key condition for all 47 Member States, including the United Kingdom Currently, every member state has signed the Convention, underscoring its importance in European human rights protection.
Article 5 (5) of the European Convention provides that “everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation” To explain this,
Article 3 Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms extends the list of rights to protect under the Convention, include the right to compensation in the event of a miscarriage of justice Besides, precedent, one of the sources of law has also regulated in case of compensation In the case of Francovich, the Europe Justice court has stated that the principle “individuals have the right to ask member states to compensate for violations of Europe Council” [89] The duty of a Member State to compensate is subject to three conditions Firstly, the result prescribed by EC law must entail the grant of rights to individuals
Legal rights must be clearly identifiable based on the applicable legal instrument, ensuring clarity and enforceability Additionally, a causal link is essential between the Member State’s breach of obligation and the harm suffered by the injured party, establishing the basis for legal remedy.
The Brasserie and Factortame III case established that member states must compensate for damages caused when national laws breach international treaty obligations The Court emphasized that, under Article 215(2) (now Article 288(2)) of the Treaty, countries are responsible for adhering to international law, reinforcing the principle of state responsibility Although this obligation may seem unusual, the Court clarified that member states have a fundamental duty to comply with public international law.
The European Court of Human Rights was established to ensure the protection of individuals' civil and political rights by adjudicating complaints about violations of the European Convention on Human Rights As a supra-national court, it serves as the last legal resort for individuals and states seeking justice when their rights are violated by a member state The Court reviews cases submitted by individuals or states, classifies and assigns them to corresponding Member Courts, and evaluates them through a panel of three judges This process involves approval by the European Commission and review by the Council, emphasizing the Court’s pivotal role in upholding human rights within Europe.
For example, in 1999, about 60,000 cases were filed in the Court, the number of cases increased to about 100,000 in 2007 and over 120,000 in early 2010
RIGHTS OF THE DAMAGE SUFFERER IN THE LAW
Period before 2009
From the 11th to the 19th century, Vietnam's feudal government was characterized by a tyrannical monarchy where all political power resided with the king Notable laws such as Quoc trieu hinh luat and Hoang Viet luat le dictated legal and administrative responsibilities, with Quoc trieu hinh luat emphasizing strict penalties for officials, including fines and various forms of corporal punishment for misconduct These laws also mandated officials to compensate victims twice the amount of damages caused by their violations Historically, even the king could acknowledge mistakes and apologize when his actions harmed the people, exemplified by King Quang Trung’s response in 1789 when the villagers accused soldiers of damaging the Temple of Literature Quang Trung, renowned for his military victories and wisdom, demonstrated accountability by verifying claims and addressing grievances, highlighting the Chinese-influenced legal framework and the ruler’s moral responsibility to his citizens.
Historically, kings were seen as responsible and trustworthy figures, as evidenced by a precedent where a king openly accepted responsibility and promised to repair the Temple of Literature, demonstrating that the belief "King cannot do anything wrong" was not absolute in the ancient Persian Empire Quang Trung King exemplifies a ruler who listened to his people's opinions and took action to compensate those affected by his army's violations, highlighting the importance of responsive leadership However, in feudal societies, the king held supreme authority, with punishments and rituals often not extending to common people, reinforcing hierarchy and societal distance between rulers and ordinary citizens.
During this period, the rule of law and state compensation emerged as unfamiliar concepts In democratic societies, increasing socio-economic development is closely linked to heightened concerns for human rights The rule of law serves as a fundamental governance principle to prevent the abuse of power and safeguard citizens' rights.
Hoang Viet luat le outlines the responsibilities of officials, including accountability for compensation in cases of violations Historically, during the Nguyen dynasty, officials were mandated to compensate for damages caused by their actions Among 53 recorded cases across four dynastic periods, construction sector violations were the most common, accounting for 27 cases, with other cases involving treasure management, wages, military, judicial, and tax issues, totaling 31 cases and representing 58.5% of all incidents At the central government level, 22 cases were identified, making up 41.5% of the total, highlighting the significant role of official responsibility in maintaining governance accountability.
Historically, various regulations alongside Hoang Viet luat le were established to ensure the proper implementation of officials' compensation responsibilities, including rules from 1858 on remuneration amounts and 1870 on compensation for evidence, as well as provisions from 1874 requiring evidence collection to be compensated and 1975 outlining procedures for compensating losses in public works Additionally, these regulations addressed the recovery and reimbursement of official compensation in cases such as death or retirement, highlighting a comprehensive legal framework for managing official compensation.
Historically, legal texts such as the Quoc trieu hinh loi, Hoang Viet luat le, and practical enforcement during King Quang Trung’s era outline that officials are personally responsible for compensating the people for any duty violations While the state may punish officials through fines or disciplinary measures, the obligation to compensate victims rests directly with the offending officials, emphasizing their personal accountability Compensation levels are determined based on the actual damages incurred, with special provisions for loss of life, which are calculated at a fixed rate After the August Revolution, on September 2, 1945, President Ho Chi Minh declared the independence of the Democratic Republic of Vietnam, marking a new chapter in Vietnamese governance and legal accountability.
Vietnam's fundamental principles emphasize that governance is "by the People and for the People," ensuring that citizens' basic rights are established and protected by law In civil interactions, the State acts as an equal partner with citizens, sharing rights and responsibilities, which strengthens trust and social harmony Upholding citizens' rights through legal guarantees is essential to the Vietnamese socio-political framework, promoting equity and justice for all.
However, State compensation is still not regulated directly in the law
In Constitution 1959, the right to compensation of the people for the first time is specified in Article 29:
Citizens of the Democratic Republic of Vietnam have the right to file complaints and denunciations against state officials for legal transgressions These claims must be promptly investigated and resolved to ensure justice Those who suffer losses due to violations of their rights by government servants are entitled to receive appropriate compensation, safeguarding citizens’ legal rights and ensuring accountability within the state.
On March 23, 1972, the Judge Council of the People’s Supreme Court issued Circular No 173/TANDTC to guide the trial of tort damages, establishing the liability of legal entities to compensate employees, workers, or their legal representatives for damages incurred during their official responsibilities Enterprises are required to initially compensate for damages based on civil liability, and subsequently seek reimbursement through labor relations However, if workers, officials, or legal representatives act outside their assigned tasks or prioritize personal interests, causing harm to others, they are individually responsible for compensation.
In 1977, Vietnam official became the member of the United Nations
In 1982, Vietnam ratified the ICCPR and ICESCR, reaffirming its commitment to promoting and protecting human rights, with these treaties outlining the responsibilities of the State These conventions emphasize that individuals should have access to legal remedies, with the right to seek justice protected by competent authorities Vietnam’s 1980 Constitution enshrines these principles by affirming the protection of citizens’ rights to life, property, honor, and dignity, and mandates strict penalties and reparations for violations of these fundamental rights.
Based on the provisions of the Constitution 1980, Article 24 of the Criminal procedure code 1988 stipulates:
Citizens have the right to file complaints and reports against illegal actions by investigating agencies, prosecutors, courts, or their personnel The competent authorities are required to promptly consider and resolve these complaints, notify the complainants in writing of the results, and initiate remedial measures When an agency commits an injustice, it must restore the victims' honor, rights, and provide appropriate compensation Perpetrators of misconduct are subject to disciplinary action or criminal prosecution, depending on the severity of their actions.
The 1992 Constitution affirms that any infringement on the interests of the State, collectives, or citizens must be sanctioned according to the law It distinguishes between the responsibilities of litigation agencies and liability for compensation, stating that citizens unlawfully arrested, detained, prosecuted, or sentenced are entitled to damages and honor rehabilitation Additionally, those who unlawfully cause harm during legal proceedings must be legally sanctioned The Constitution emphasizes prompt and strict action in cases of violations against the State or citizens' rights, ensuring victims receive appropriate compensation and reparation to restore their honor.
The Constitution of 1992 establishes fundamental principles for protecting the rights of organizations and individuals, as well as holding officials accountable for civil liability when their actions cause damage To ensure clarity and enforceability, this responsibility must be explicitly defined and clearly articulated Historically, limitations within the Civil Code of 1995 restricted compensation liability, underscoring the need for a more precise legal framework to enforce responsibility effectively.
State agencies are legally required to compensate victims for damages caused by civil servants and employees while on duty Additionally, these agencies must request public employees and officials to reimburse the amounts paid to victims if errors occurred during the performance of their official duties, in accordance with legal provisions [Article 623].
Procedure-conducting agencies must compensate for damage caused by their competent persons while performing investigation, prosecution, trial and judgment execution tasks
The agency responsible for the proceedings must request the negligent party who caused the damage to reimburse the amount paid to the victim, as stipulated by law, if an error was made during the performance of their duties [Article 624].
State compensation liability in the period 2017 up to now
In 2013, Constitution 2013 was promulgated, one of its regulations is:
Everyone has the right to lodge complaints and denunciations about the illegal acts of State bodies, organisations, and individuals with the relevant State bodies, organisations and individuals [45, Clause 1 Article 30]
Relevant government authorities, organizations, and individuals are responsible for receiving and processing complaints and denunciations Victims of harm are entitled to seek material and psychological compensation, as well as restoration of their honor, in accordance with legal provisions [45, Clause 2, Article 30].
The rights of victims under SCL 2009 differ from those granted by the constitution, with the right to compensation being a fundamental constitutional right that is not restricted While SCL 2009 aims to establish more favorable legal mechanisms for compensation settlement, its provisions are narrower than those outlined in the 2013 Constitution Practical implementation reveals challenges such as complex compensation procedures that hinder victims' ability to assess claims and complicate the work of compensation agencies Additionally, the current settlement durations are unrealistic, failing to create a conducive environment for efficient compensation processes, as the time limits are no longer aligned with actual conditions.
The SCL 2009, despite its promulgation, fails to fully address the proliferation of various legal mechanisms for resolving state compensation cases The existence of multiple conflicting legal channels hampers the effective implementation of the law, highlighting the need for amendments to improve its clarity and efficiency.
2.3.1 Protecting the right of the damage sufferer in the Law on State compensation liability 2017 and comparion to the Law on State compensation liability 2009
The drafting of SCL 2017 is based on the following basic guiding points:
The Vietnamese Party's 12th National Congress Resolution emphasizes enhancing the socialist-oriented market economy, establishing a socialist rule of law, and implementing the Politburo’s Conclusion No 01-KL/TW on April 4, 2016, which advocates for ongoing efforts to develop Vietnam’s legal system This includes continuing the implementation of Resolution No 48-NQ/TW, focusing on the strategy to build and perfect the legal framework until 2010 with future orientations until 2020 A key priority is to further improve laws that protect human rights, as well as citizens’ rights to freedom and democracy, ensuring the legal system aligns with the country’s socio-economic development goals.
Ensuring the appropriateness and concretization of the 2013 Constitution is crucial, particularly regarding provisions on human rights and citizens' basic rights Additionally, it is essential to maintain the consistency of related laws to uphold the principles outlined in the Constitution and promote effective legal implementation.
Civil Code 2015, Criminal Code 2015, Criminal Procedure Code 2015, Civil Procedure Code 2015, etc On the basis of determining the legal framework for state compensation with its own characteristics
The amendment of SCL 2009 should align with the country's economic, social, and developmental goals, reflecting the current state of judicial and administrative reforms It aims to improve the qualification of official duty performers and ensure their actions support ongoing judicial reforms Additionally, the amendment prioritizes preventing violations of victims' rights caused by officials in duty, promoting a fair and just legal system.
Amending the regulations on procedures to settle compensation aims to streamline the process by reducing steps and processing time, ensuring a faster resolution for claimants This reform promotes fairness between the State and the victims by making the settlement process more efficient and transparent.
Fifthly, SCL 2017 shall be drafted based on: (i) the result of summarizing the practical implementation; (ii) inherit the effective regulations of SCL 2009;
(iii) receive the advance regulations of some countries in the world
Compare the regulations in SCL 2009 and 2017, it is shown that SCL
In 2017, important regulations were introduced, including the principles of state compensation, which play a crucial role in applying the entire framework of the SCL 2017 Specifically, state compensation must be paid in accordance with SCL 2017, establishing that only SCL regulations are applicable when cases involve wrongdoing by an official duty performer This represents a significant developmental step from the regulations prior to 2017 Furthermore, these new regulations align with Article 598 of the Civil Code 2015, which states that SCL should be applied to resolve compensation claims arising from misconduct by an official duty performer.
SCL 2017 has expansioned the mechanism to claim for compensation
Therefore, the victims has the right to choose the way to claim compensation according to the law The mechanism is defined as follows:
Once the necessary documents for claiming compensation are issued, the injured party has the right to directly file a claim with the agency responsible for managing the official duty performer who caused the damage This process ensures a straightforward approach to seeking justice and compensation for damages incurred Proper documentation is essential to facilitate a successful claim and expedite the compensation process.
Once the document serving as the basis for claiming compensation is issued, the injured party has the legal right to file a compensation claim in court according to civil procedure This applies whether the document is issued through administrative management, civil proceedings, administrative proceedings, criminal judgment execution, or civil judgments, ensuring the claimant can pursue compensation through the judicial system.
Integrating the settlement of a compensation claim within criminal, administrative, or civil proceedings ensures a streamlined legal process This approach applies to compensation claims addressed in courts handling administrative management, civil lawsuits, criminal judgments, or the execution of civil and criminal verdicts By consolidating these claims, the legal system can enhance efficiency and provide clear resolution pathways for claimants.
In criminal proceedings, compensation claims must be settled directly with the agency responsible for managing the damage-causing official duty performer First, the claimant should resolve the compensation claim with the relevant agency before pursuing legal action in court under civil procedure This process ensures that the damage is addressed through the appropriate administrative channels prior to court claims.
According to SCL 2017, once a compensation claimant's case is accepted for settlement by a designated compensation settling agency, they cannot request another competent agency to handle the same claim This regulation ensures a unique and effective mechanism for settling compensation claims, preventing multiple agencies from managing the same case and promoting clarity and efficiency in the process.
Compared to SCL 2009, SCL 2017 abolished the right to request competent authorities or courts to settle compensation claims during the complaint or administrative lawsuit process During the drafting phase, some opinions argued that this regulation should continue to be applied.
Since the enactment of SCL 2009, no cases have been reported where sufferers have effectively exercised their rights under this law Moreover, even when individuals attempt to use these rights, protecting their interests remains challenging due to the absence of specific regulations within the Law on Complaint This lack of clear legal guidance hampers the resolution of such cases, highlighting gaps in the legal framework.