Protection of the right of damage sufferers in the law on state compensation liability of viet nam

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 hum

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

MASTER THESIS

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 human rights

Code No.: 8380101.07

MASTER THESIS

Scientists’ instructor: Dr LA KHANH TUNG

HA NOI - 2019

STUDENT DECLARATION

I, Tran Thi Thu Hang, declare that this Master thesis is my own work The figures, references and examples are accuracy, honesty I have completed all the subjects of the courses, has fulfilled all my financial obligations to the School of Law - Vietnam National University

Therefore I offer the School of Law - Vietnam National University to consider the proposal so that I can defend my Master thesis

Thanks faithfully!

Student

Tran Thi Thu Hang

ACKNOWLEDGEMENTS

With great joy have I written this thesis, but obviously I couldn‟t have done it all by myself Special thanks to my parents, who I can call whenever necessary to look after my children and encourage me to complete my thesis

Also to Doctor La Khanh Tung, I could not wish a better instructor, who was not only my teacher during the whole postgraduate program but also

my instructor to write my thesis His willing to help students, to have face to face meetings for discussions with every step of my research has helped me to complete my thesis on time

Special thanks also to the School of Law, where we are always welcome Thank you, the Government of Australia, who has sponsored to the postgraduate program of human rights supporting us the diversity of learning materials and seminars relating to human rights

And last, but certainly not least, my husband and two kids, the love of

my life, who always give me a push and smile

STUDENT

Tran Thi Thu Hang

TABLE OF CONTENTS

STUDENT DECLARATION

ACKNOWLEDGEMENTS

TABLE OF ABBREVIATIONS

PREFACE 1

CHAPTER 1: SOME THEORETICAL ISSUES ON RIGHTS OF THE DAMAGE SUFFERER AND STATE COMPENSATION LIABILITIES 8

1.1 Rights of the damage sufferer and state liability to compensate 8

1.1.1 Definition, characteristics and elements of the rights of the damage sufferer 8

1.1.2 Definition, characteristic, elements of State compensation 11

1.1.3 Protecting the rights of the damage sufferers in the State compensation mechanism 22

1.2 Protecting the rights of the damage sufferers and State compensation liability in international and regional law 24

1.2.1 Rights of the damage sufferer in international law 24

1.2.2 Rights of the sufferer in the region law 27

1.2.3 Rights of the damage sufferers in some countries of the world 30

Conclusion of Chapter 1 39

CHAPTER 2: RIGHTS OF THE DAMAGE SUFFERER IN THE LAW ON STATE COMPENSATION LIABILITY IN VIET NAM 40

2.1 Period before 2009 40

2.1.1 Regulations of the law 40

2.1.2 Protection of the rights of the damage sufferer in practical in the period before 2009 48

2.2 Period from 2009 to 2017 49

2.2.1 The necessary to promulgate the Law on State compensation

liability 2009 and the protection the rights of the damage

sufferers in the Law on State compensation liability 2009 50

2.2.2 The practical of protecting the rights of the damage suffered through the State compensation liability in this period 56

2.2.3 Limitations and reasons 59

2.2.4 General comments 64

2.3 State compensation liability in the period 2017 up to now 65

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 66

2.3.2 Protecting the rights of the sufferer through the implementation of the Law on State compensation liability in the period from 2017 until now 74

2.3.3 Limitations, problems and causes 77

Conclusion of Chapter 2 79

CHAPTER 3: RECOMMENDATIONS TO PROTECT THE RIGHTS OF THE DAMAGE SUFFERER IN STATE COMPENSATION LIABILITY IN VIETNAM 80

3.1 Requirement from the Communist Party and State to protect the rights of the damage sufferer in the regulations on State compensation liability 80

3.2 Improving the Law on State compensation liability 81

3.2.1 The scope of State compensation liability 81

3.2.2 The compensable damages 82

3.2.3 The procedure to settle compensation 83

3.2.4 Coordination in compensation settlement 83

3.3 Improving the capacity of the official duty performers and the qualification of the public service 83

3.4 Establishing an independent agency to protect human rights

and for the resolution of claims and payment of compensation 84

3.5 Continuing disseminate, educate and propagandize regulations on the rights of the damage sufferer and enhance the quality of the public service to assist the damage sufferers in carrying out the procedures for claiming compensation 86

Conclusion of Chapter 3 89

CONCLUSION 90

REFERENCES 92 APPENDIX

TABLE OF ABBREVIATIONS

Decree No 47/CP : Decree No 47/CP on the settlement of compensation for

damage caused by State officials, employees or competent persons of legal proceedings agencies ICCPR : International covenant on Civil and Political rights 1966 Resolution No

PREFACE

1 The urgency of the research topic

After becoming a member of the United Nations (UN), Vietnam has gradually participated in most international conventions on human rights, including the International covenant on Civil and Political rights 1966

(ICCPR), Socialist Republic of Vietnam ratified it on September 24, 1982 Most countries in the world have recognized the right to compensation as one

of the basic civil and political rights of people Accordingly, many countries have concretized in domestic laws with the recognition of the State's compensation responsibility for the damages caused by official duty performer during the performance of their duties

In the proceeding of building the Socialist Rule of Law State as well as

to implement international commitments that Vietnam has accepted, Vietnam has promulgated a system of laws, among them are regulations on the responsibility of the State to compensate for damages caused by an official duty performer while they are on duty The Constitution 1992 is the first document that clearly recognizes the right to claim compensation for illegal acts of official duty performers during the performance of public duties This provision is further affirmed and concretized in paragraph 5 of Article 31 of Constitution 2013 The Civil Code 1995 has reserved two Articles 623 and 624

to stipulate the liability of state agencies and regulations This continues to be noted in the Civil Code 2005 (Article 619 and Article 620), Civil Code 2015 (Article 598) An important step is on June 18, 2009, the official Law on State compensation liability (SCL) was approved at the 5th session of the 12th National Assembly, which came into force on January 1, 2010 This is the first specific law regulates on the responsibility of the State to compensation for

damage caused by illegal acts of official duty performers

In addition to the achievements, SCL 2009 has also some limitations and shortcomings Therefore, on June 20, 2017, at the 3rd session of the National Assembly XIV has passed the SCL, which comes into force since July 1, 2018 These are the two leading laws that specifically regulate the rights of the damage sufferer due to illegal acts The content of compensated objects, scope of compensation liability, criteria for determining damages and compensation levels, funding, responsible agencies for compensation and especially principles and procedure to claim for compensation are stated clearer In the process of implementing the SCL from 2010 up to now, it shows that, although the rights of the damage sufferer have been assured, there are still many rights and interests of the damage sufferer that have not been guaranteed

In the process of building the socialist rule of law state as well as to implement international commitments that Vietnam has ratified, the rights to compensation should be continued researching One of the ways to improve the effectiveness of ensuring the right to compensation is to study the effectiveness of the regulations in SCL 2009 and SCL 2017 Therefore, I

choose to do research on the topic of “Protection of the right of damage

sufferer in the Law on State compensation liability of Viet Nam” for my

Master thesis of law in human rights

2 Research situation

Until now, in Viet Nam there has only one books on Law on State

compensation liability 2017, which is “Main contents of the Law on State compensation liability 2017” (State Compensation Department, 2017,

People‟s Police Publishing House) But it has not been any research on the right of the damage sufferers in the SCL 2017 in particular There have been many projects and research only on Law on State compensation liability 2009

which have been carried out by experts under different angles and in different

areas, such as: Development of State compensation liability (Le Thai Phuong,

2018, Human rights institution, No 3, Hanoi); Compensation liability in the feudal of Viet Nam (Tran Hong Nhung, 2015, State and Law Journal No 3)

These two articles is a reference to summarize the development of State compensation liability in Viet Nam Other researches on Law on State

compensation liability 2009 are: State compensation liability in civil proceedings (Hoang Thi Hoai, 2015, Thesis at School of Law, Hanoi National University), Implementation the State compensation liability caused by administrative agencies in Vietnam (Nguyen Do Kien, 2014, Doctor Dissertation, Ho Chi Minh National Academy of Politics), Research on Law

on State compensation liability (State compensation Department, 2012, Judicial Publishing House, Hanoi), The main contents of Law on State compensation liability (Duong Dang Hue, 2008, Democracy and Law

Journal), etc Besides those researches which are named above, there are some textbooks, conferences records, articles, thesis related to State compensation

In the world, there is some research which is relating to the issues of

State compensation, such as: (i) Compensation liability for damages incurred while exercising public authority – a basic pillar of democratic State ruled by Law (Agata Cebera & Aleksander Wrobel, 2016, Polish Political Science yearbook, vol 45); (ii) State liability – Ten years after Francovich (Alska Scherer, 2002, Master thesis at Lund University); (iii) Fair Trial manual

(Amnesty International, 2014, Amnesty International Publications, United

Kingdom); (iv) An introduction to political philosophy (A.R.M Murray,2010, Routledge Revivals, London); (v) Watching the watchdog: China’s State Compensation law as a remedy for procuratorial misconduct Pacific Rim law

and policy Journal (Keith Hand, 2000); (vi) Basic elements of German Law

on State liability in Bell and Bradley (eds), Governmental liability: A comparative study (Wolfgang Ruefner, 1991, 249 ff); (vii) State liability for

compensation in the development of Vietnam: Proposals for further reform (Nguyen Minh Oanh, Doctor Dissertation, College of Law and Justice, Victoria University, Australia), etc

All the mentioned studies have provided great knowledge and information about the view, role and the way how to protect the right of the damage sufferer/ the victim/ the injured party in case human rights are violated by the official duty performers But until now there is no research on the right of the damage sufferer in Law on State compensation liability in Viet Nam Therefore, this is a new work in which analizes the development of the protection of the right of the damage sufferers through stages in Viet Nam, especially, it compares the protection of right of the damage sufferer between SCL 2009 and SCL 2017, thereafter gives some recommendations to protect the right of the damage sufferers in SCL 2017 in Viet Nam

3 Target of this research

3.1 General target

Based on the theories, regulations and the practical enforcement of State compensation, this thesis analyzes and gives commendation on three main questions, include: (i) why the right of the damage sufferer is human rights and the role of the State in protecting and fulfilling this rights; (ii) what‟s regulations and institutions to protect the right of the damage sufferer in Vietnam, especially since SCL came into force in 2010, its achievements and challenges; (iii) how to improve the effectiveness of implementation of Viet Nam‟s State compensation liability Law and how to solve the limitations arise

3.2 Detail target

In order to achieve the above-mentioned general target, this thesis will focus on three specific objectives: firstly, to study, evaluate and analyze some theoretical issues about the right of the victims, State compensation and international regulations on that issues; secondly, analyze and evaluate the results achieved and identify the limitations and the causes of the provisions

of Vietnam State compensation liability in two specific periods (since SCL

2009 comes into force and after SCL 2017 comes into force); thirdly, offering solutions to improve the effectiveness of human rights protection in general

and the right of the victims in particular

4 Scope and object of this research

The object of this thesis is the provisions of the law on the rights of the damage sufferers caused by the official duty performers in Vietnam, with reference to the regulations on the rights of the damage sufferer in some countries in the world On the other hand, the object of this thesis is also real damage sufferers and the citizen The scope of this thesis is carried out throughout Viet Nam from January, 1, 2010 until present

5 The contribution of this research

The topic is a monograph study with scientific contributions in a relatively comprehensive analysis on regulations in SCL in terms of protecting the rights of the damage sufferer and the practical implementation of such regulations in stages, thereby contributing to completing the SCL 2017 The

contribution of the thesis grant some new scientific points as follows: Firstly,

analyze and clarify the concepts and characteristics of human rights, the rights

of the damage sufferers, the state compensation liability, the meaning of completing the SCL and the requirements of the law in the completion process

of this area Secondly, the development of Vietnamese law on the rights of the

damage sufferers in State compensation through several periods and point out

the problems and necessary to improve the law Thirdly, review the regulations

of the law and the institution to protect the rights of the damage sufferers in the

world, regional and in some states in the world Fourly, analyzing the objective

requirements and proposing specific solutions applied in the process of improving the law in this field based on the overview of the Vietnamese legal

system, in accordance with the requirement of innovation

6 Methodology and research method

The thesis is based on the theoretical basis of Marxism-Leninism, Ho Chi Minh's thought and the views of the Communist Party of Vietnam on the State and the law, especially the views and guidelines of the Party on juridical reform, formulation and promulgation the law In addition, this thesis is based on the theoretical basis of the law on human rights, constitution, civil law and popular arguments in some countries in this field

It uses the method of dialectical materialism and historical materialism of Marxism-Leninism, combined with specific methods such as methods of analysis, investigation, synthesis, system, survey (in some places in Vietnam

in 2019) etc for interpretation, generalization and practical analysis according to the purpose of the topic

7 Scientific and practical significance of this thesis

The result of this thesis will provide theoretical and practical solutions

in improving the SCL, raise people‟s awareness in protecting rights to the damage sufferers It also has a significant role in the integration of the regional and global integration This thesis can be used as a reference for state agencies in developing, modifying and enforcing legal documents related to the protection of the rights of the damage sufferers At the same time, it can serve as academic source on education and learning material

8 Thesis structure

In addition to the Introduction, Conclusion and List of References, the main content of this thesis consisted of 3 chapters:

Chapter 1: Some theoretical issues on rights of the damage sufferers

and state compensation liabilities

Chapter 2: Rights of the damage sufferers in the Law on State compensation

liability in Viet Nam

Chapter 3: Recommendations to protect the rights of the damage sufferers

in State compensation liability in Viet Nam

Chapter 1 SOME THEORETICAL ISSUES ON RIGHTS OF THE DAMAGE SUFFERER AND STATE COMPENSATION LIABILITIES

1.1 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

Up to now, to define individual or organization that is suffered by the

wrongdoing of official duty performers, terms of “damage sufferer”, “victim”

or “injured party” is used differently between countries according to the scope of State compensation While “victim” is person harmed by criminal acts

or attack target [94], “injured party” is the term given to the person who has been hurt by the actions of another [94], “damage sufferer” or “sufferer” is

people or organization who have been damaged To mention the individual or organization that are suffered by the action of the official duty performer, in

Vietnam the term “damage sufferer” is used in the legal document published

by the Government

In addition to recognizing human rights, to ensure that those rights are executed, the law also recognizes the rights of victim in case of violation human rights Damage can be interpreted as not being as intact as the initial state of things after being subjected to external influences Compensation,

from a linguistic perspective, can be understood as "reparation for losses caused" [43, pp 191] Indeed, in case when human rights are no longer

guaranteed by violations from individuals or organizations, the state poses a problem of compensation for violations of that right To a certain extent, it can be seen that the rights of the victim is similar to the right to compensation

The right to compensation is a derivative right which only arises when human rights are violated

There are differences between the rights to compensation and the rights

to reparation In the English translation of ICCPR, the term "compensation" is

used to indicate the rights of the victim when their rights are violated;

however, the term “repairation” is used instead in the French and Spanish

translation In other words, the term compensation in the English version is a factor of remedy (See detail at Article 9(5) of the ICCPR, Article 24(4) of the Convention on Enforced Disappearance, Article 16(9) of the Migrant Workers Convention, Article 14(7) of the Arab Charter, Article 5(5) of the European Convention, Section M(1)(h) of the Principles on Fair Trial in Africa; See Article 8 of the Universal Declaration, Article 7) Forms of reparation include but are not limited to: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition [61, pp 68] The difference between compensation and reparation is the responsibility of the State to its damage sufferer/ victim, while compensation from the state must afford adequate redress to the victim; reparations should be proportionate to the violations suffered [61, pp 68]

Compensation is a special form of reparation provided to victims when replacement or recovery is not possible This applies for instance for victims

of rape or terrorism where the experience, psychological consequence or other cannot be erased The financial compensation can pertain to pecuniary (monetary) or non-pecuniary losses Money will be used not to replace but form a monetary substitute for the pre-victimization status But money is insufficient to provide reparation for victims That is why support services must also be included in a broader definition of compensation [79, pp 3]

Legally, compensation is a form of civil obligation arising from damaging acts In civil law, compensation is known as reparation for losses

and remedies caused by violations Therefore, compensation for damages is

"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 the view of non-intact as initial state of things after being subjected to external influences, compensation for damage can be understood

as the responsibility to restore the original state of things and phenomena

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:

On the subject, the right to claim compensation of the victim, can

understood in two way, first, it is the right to claim compensation of individuals and organizations damaged by the State (applied in some states like America, Japan, Korea, China, Israel, France, etc.); second, it is the right

to claim compensation of individuals and organizations damaged by the State and vice versa (applied in some states like Canada, Malaysia, Singapore, England, Botswana, Australia, etc.) The approach the subject will affect the scope of compensation

On the object, Czech jurist Karel Vasak (1977) divided human rights into “three generations” [33, pp 58] The first generation, “civil-political”

rights deal with the liberty and participation in political life, which include the rights and freedom such as the right to life, freedom of association, expression,

the right to vote, the right to a fair trial The second generation, economic” human rights guarantee equal conditions and treatment include the

“socio-rights to work, the “socio-rights to public health, the “socio-rights to house, etc The third

generation, “collective-developmental” rights of peoples and groups held

against their respective states aligns with the final tenet of “fraternity”, which

includes the rights to development, the rights to the self determination of the nations, etc Corresponding to those rights can arise violations

Therefore, the objective of state compensation means the rights of the damage sufferer which is violated Some typical damages are such as physical damage, mental damage, etc Regarding the conditions to ensure the exercise

of the rights of the sufferer, the sufferer who want to exercise their rights in general and the right to compensation in particular, besides the specific conditions, must satisfy two more conditions it that are indispensable Firstly, there must be an institutional that recognizes the right to be compensated in the Constitution, the separate Law or integrated in other laws Secondly, there

is an institution, which specifies the responsibility of compensation body and agency which has the function to assist the sufferers to implement their right

to compensation The state compensation body can be understood in many different ways under different views From the point of view that the subject

is responsible for compensation, the state compensation body is understood to

be the body responsible for compensation From the point of view that the subject is responsible to settle the compensation, the state compensation body

is understood to be the competent authority to settle the compensation

1.1.2 Definition, characteristic, elements of State compensation

Thomas Hobbes in Leviathan has stated that, if there is no state, human

life (in the natural state) will "be lonely, poor, filthy, brutal, short-lived” [62,

pp 63]; however, "as a product of humanity, the state also has limitations, trying to be as greedy, seeking for its own interests " [3, pp 18] Therefore,

in order to maintain and promote democracy in the state and in society, the law must be an effective task in controlling state power Through the law, the rule of law stipulates various measures to limit the power of the state itself,

thereby preventing the abuse of power by the executive power of the state The rights of the injured people and sanctions on State compensation when the public service executors commit illegal acts is one of the measures to

clearly express the mechanism of “people authorized to the State but do not lose their rights”

John Locke, said that the State besides the role of the legislature, "they themselves will be the object of the law that they make, as a new binding and have contact with them to take care of things are done for public benefit” [32, pp 149]

In Obligation of Penal Laws, for example, Locke skepticism of the government‟s misuse of power is growing, but he still insists that the subject‟s duty is to preserve a peaceful society and not to disturb or endanger his government and that, so long as a man‟s conscience is free from political interference, he ought to obey the rules of his country [87]

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 the responsibility of all individuals and organizations and does not exclude the State According to the human rights law, The State has obligations in ensuring human rights expressed

in three specific forms:

Firstly, the obligation to respect This obligation requires States to

recognize, respect, and refrain from intervening, directly or indirectly, on the enjoyment of human rights of rights holders This is considered a passive obligation, because it does not require States to actively take initiatives, measures or programs to support citizens in enjoying their rights

Secondly, the obligation to protect This obligation requires States to

prevent violations of human rights by third parties This is considered an active duty, because in order to prevent the violation of human rights of third parties, the State must proactively take measures and develop mechanisms to prevent and handle acts violate

Thirdly, the obligation to fulfill This obligation requires the State to

take measures to ensure, fulfill that every citizen can enjoy the highest possible human rights [33, pp 71]

1.1.2.1 The perspective of State compensation

From the perspective of damages, State compensation is divided into

02 groups: (i) States regulates damages caused by illegal actions (occupy the majority) and (ii) regulates damages caused by both illegal and legal actions (occupy the minority) such as in Japan and Korea

From the perspective of distinguishing between "reparation" and

"compensation" In the process of execution of its functions, the State may

cause damage and the cause of the damage is resulted from both illegal acts and legal acts Under this perspective, regulations on State compensation is divided into 02 main groups: the group of countries where the law on civil servants working on state capital only regulates the State compensation for the damages caused by illegal acts (this group accounts for the majority) or a group of a few countries where State compensation regulates both illegal and legal acts

From the perspective of an element of justice, the existence of

administration is in everybody‟s interest While every administration employs civil servants, it is clearly that civil servants are human beings and it means that that may fail and illegal acts of administration are inevitable Because administration is in everybody‟s interest everybody should take on the risk of illegal administrative measures Therefore, this is assured when the victims of illegal administrative measures are compensated by the treasury that has been

“filled” with the taxes of the population [67, pp 7]

From the perspective of access to justice, the right to compensation is

that individuals and organizations suffered from injustice and some damage can happen in all areas of social life and not limited to criminal proceedings, seeking compensation / remedy through access to the formal justice system (commonly known as the judicial system of State agencies such as investigators, prosecutors, courts, etc.) and informal justice system - which is commonly understood as a system of customary laws, community-based mediation mechanisms, etc.) This is a new approach, widely used by many international organizations, especially the United Nations Development Program [10]

From the perspective of being a factor of "rule of law" The civil law

recognizes the principle that when the legitimate rights and interests of individuals and organizations are violated by other individuals or organizations, those who commit acts of infringement shall be responsible for compensation

in accordance with the provisions of law Therefore, although the state agency

is the subject of public rights, when causing damage, it is also the responsibility of compensation The state is like an organization or a citizen and is a legal entity

The state is a public legal entity The state also carries out legal acts and is likely to cause damage to other entities when acting illegally

or beyond its authority And when those acts cause damage to other subjects, the State also has an obligation to compensate equally as other subjects in society [56]

The principles of the rule of law are also the basis for determining the activities of the State to the state compensation law Often, state activities can

be divided into legislative, executive and judicial activities Each of this area can make mistakes Therefore, any field may be the subject to the regulation

of state compensation In fact, some countries stipulate that all three areas,

include legislative, executive and judicial branches are subject of state compensation, Japan is an example However, with the rule of law on the organization of state power, the regime and counterbalance, the problem is not as simple as the conventional way of thinking Most countries agree that the two areas of law enforcement and judicial are governed by the law on state compensation Particularly in the legislative field, the regulation is quite different Some countries like China have completely excluded the legislative domain from the scope of regulation For most other countries, there is limited regulation of the application of state compensation regulations on legislative That stems from the nature of this democratic institution The legislature is the representative for voters After being elected, the electors represent the will, aspirations and interests of the voters in the process of reviewing and approving legislative policies submitted by the executive In addition, in a proxy system, the electors after being elected have full power to express their will without depending on the will of the voters The damage caused by the legislature is to issue policies and laws that are inconsistent with the interests

of the people they represent "The issue of compensation for this institution also means that the voters are not trustworthy and cannot continue to vote in the following elections” [56]

1.1.2.2 Definition of State compensation liability

According to the Encyclopedia of Vietnam, responsibility is:

The concept of moral consciousness and the rule of law represent a characteristic of personality in the fulfillment of a social obligation If the obligation poses to people the question of realizing and fulfilling the requirements of society, then the issue of responsibility is where human beings accomplish and complete or fail to fulfill those requirements The responsibility is the correspondence between the

operation and the obligation, which is the consequence of human free will, which characterizes the conscious activity of man People are increasingly aware of the objective laws of nature and society When the capacity of natural and social dominance of people grows, the responsibility of people for their behavior also raises Legally, the consideration of personal responsibility must come from the agreement between rights and obligations: the broader the right, the greater the responsibility [10, pp 1020]

In general, responsibility is a constraint in human connections, in which individuals or organizations must perform obligations for others or for the community Liability is the type of responsibility that arises on a legal basis, guaranteed by law In a broad sense, liability is an obligation to fulfill all the requirements of the law to maintain society's challenge and development and suffer adverse consequences when it comes to acts of abuse Social system is protected by law In a narrow sense, legal responsibility is the consequence of adverse consequences when unlawful acts are committed

According to the principle of determining responsibilities, people who commit unlawful acts infringing upon the legitimate rights and interests of others causing damage shall be liable to pay compensation In the relationship between the person causing the damage and the sufferer, there are cases where the person causing the damage is in a very special position - they are officials, civil servants of the State and they causes damages while performing

the tasks on behalf of the State The state shall be a "special entity of political power" that performs management functions to maintain social order through

officials, civil servants in state agencies In the process of performing public duties, public functions may cause damage to any individual or organization

Liability for compensation is a kind of legal responsibility that has been

existed when the State and the law were established Through the development

of stages, the nature of the liability for compensation has been changed markedly [6, pp 8]

In the history, states of common law and civil law have acknowledged the view of national immunity and the idea of the king cannot do anything wrong (Le Roi ne peut mal faire) and therefore the State is not responsible for

all of their activities Specifically, before the 19th century, it was considered “a period which deny wholly the State compensation liability” [63] Therefore,

sufferer/ victim do not have any rights to claim compensation caused by the official duty performer as the theory of State immunity is applied In other

words, "the king and the ruling apparatus never make a mistake and cannot

be sued" [27, pp 12] Since the end of the 19th century and especially in the

early 20th century, the State's immunity has begun to be limited and some laws recognized the right to compensation by the State In the world, some countries, namely, the Americans and the Philippines applied the principle of

State's immunity "The United States cannot be sued without the approval of this country" [26, pp 262] However, that does not mean that these States have

no obligation to compensate for damages One of the important principles of the rule of law is that the State can only do what the law allows The supremacy of the law in this case is a tool to limit the possible abuse of power

by powerful subjects It is because of this principle that the doctrine of the

right of immunity from the State is not absolute "Immunity from hearing can only be used when the state acts with the powers of national sovereignty The state or officials of the state must prove that the alleged action is fully in compliance with the Constitution or legal documents When these limits are exceeded, state exemptions cannot be applied” [2] From the end of the 20th

century and the beginning of the 21st century, there has been an official recognition of the State's compensation liability in both international and laws

of some countries in the world

Compensation for damages incurred to citizens by civil servants is

considered as “a basic pillar of contemporary democratic state, because it guarantees acting by public authorities in compliances with law and deepens trustfulness It is also said that the state of the abovementioned institution indicates the level of development of democracy” [58, pp 179] Violations will

be punished by the compensation liability of the public entities or even by the individual liability of the civil servant Such pecuniary and disciplinary is to reduce abuses power and in fact constitutes a guarantee of democratic state ruled by law [58, pp 183]

Thus, the State's liability for compensation is a type of legal responsibility

in which the State is responsible for compensating for damages caused by illegal acts of public service executors

1.1.2.3 Characteristics of State compensation liability

Therefore, in addition to the characteristics of general liability such as: being applied by competent state agencies; being apply to those who commits violence; always causing consequences to the people being applied; being guaranteed to be executed by state enforcement, the responsibility to compensate for damages also has its own characteristics like the arising conditions; consequences and the responsible subject In addition, State compensation has different characteristics compared to the usual liability for compensation in common civil damages, as follows:

The State's liability to compensate for damage is a civil liability for non-contractual damage compensation according to the principle of “people who cause damage must compensate for damage to the victims” [55] The

state participating in legal relations it has one of two qualifications, one is, and as a common subject and the other is the subject of public power

Accordingly, the legal relations that the State participates as the subject of public power are not contractual relations The legal relations that the State participates in and on behalf of public power must be legal relations which related to the implementation of activities belonging to the main functions of the State In the course of implementing these activities, the State causes damage to individuals and organizations, the State shall have to compensate Compensation is not due to breach of contractual obligations, therefore, State compensation for damages caused by public activities is the responsibility to compensate for damages out of the contract

State compensation is not only the liability to compensate the damage

of the property but is also the responsibility to restore mental losses to people suffering from wrongdoer of the official duty performer Thus, this responsibility includes property liability (in case of damage to property) and responsibility for restoring mental losses (in case of infringement of honor, dignity and reputation)

The element of “public service” in relation to the State compensation

State compensation shall only applied in cases where the State causes damage

to individuals and organizations when acts of illegal public acts are committed

in the name of the public – it means that the State shall compensate in case of damage when official duty performers perform official duties Civil rights always go hand in hand with the State's obligation to ensure citizens exercise

their rights It is important to understand the concept of “public service”,

because this is one of the factors that determine whether or not it is State compensation From the perspective of socialization of state management activities, according to which many organizations (not state agencies and organizations of the State) in the society are assigned a certain number of management tasks is public service or not Some scholars have affirmed that it

is necessary to consider acts of official duty performers that are not organic parts of the state apparatus, but State also has the responsibility to compensate

for damages “Public service” or to say it fully, is a public act, which is a direct

act or to perform the main function of the State as a function of managing all aspects of social life and at the same time performing Organizational functions serve the general needs of non-profit society Public service activities by those responsible on behalf of the State shall comply with the provisions of law and

be protected by law to serve the interests of the people and society Only acts directly or in order to perform the State's management functions are considered

as official duties Thus, for acts not aimed at implementing the state management function, they are not considered as public services

1.1.2.4 The basic elements in the relationship of State compensation liability About the subject of the relationship of State compensation liability

There are two parties in this relationship which are the party who causes damages – the State and the sufferer who is the victim, it can be individual or

organization or other object The compensation party is different in countries

there is only one agency who represent for the State compensate to the sufferer, while in other country, this responsibility belongs to a specific agency However, it must be affirmed that the party with responsibility is always the State and the agency responsible for compensation shall not act on its behalf, but in the name of the State, to carry out the responsibility to compensate for damage as well as on behalf of the State when performing its duties According to the Japanese Criminal Compensation Law, only individuals are entitled to compensation The right to compensation is provided for provisions to those who are damaged, whereby legal entities may

also suffer losses due to unlawful acts of persons on duty “In the literature

we can see that, this is a liability for so-called indirect damages, so damages

to directly damaged entity which is a result of an act or omission and by that

is direct to the interests of the third persons” [58, pp 184]

In the progress of accession to international integration, the state compensation liability for damages caused to enterprises shall be applied This will show the goodwill of the State in calling foreign investor to the country and give them a legal guarantee to claim for compensation in case the official duty performer causes damages to their enterprise On the other hand, this is also consistent with the theory that taxpayers are guaranteed by the State Among them, businesses are also the subject of the protection of the State They invest in business and pay taxes for the State When the state causes damage to enterprises, it is necessary for the state to be responsible for compensation

Objectives of State compensation liability In this legal relationship, the

object is the physical or mental benefits that the legal subjects desire to achieve when participate in legal relations In civil relations, objects are things that the subject as mentioned above interested in, want to achieve or have influence on when participating in civil relations Therefore, the object

of State compensation is the rights, legitimate interests of citizens and the interests and prestige of the State because when any unjust case is wrong, not only citizens are the only one who suffered from losses but also the State will have damages, which is the reputation of the State

On the one hand, the State must compensate materially and spiritually

to those who are suffered, on the other hand, the State's losses seem

to be invisible but the actual consequences can still be easily seen That is the prestigious decline of the State, the erosion of people's confidence in the State [36, pp 33]

Conditions for state compensation liability First of all, conditions for

arising liability to compensate for damage are understood as a combination of

the elements that constitute the liability for compensation Secondly, State compensation liability would be granted if three prerequisites are fulfilled: (i)

an illegal act of an official duty performer; (ii) actual damage arises to the damage sufferer and accordance with the scope of State compensation, and (iii) there has to be a causal link between the breach of the wrongdoing of the civil servant and the damage suffered in actual

1.1.3 Protecting the rights of the damage sufferers in the State compensation mechanism

Human rights include a lot of rights: the right to life, liberty and security; freedom from slavery and torture; freedom of opinion and expression; the right to work and education, and many more Everyone is entitled to these rights The damage sufferer is a group of people who is injured by the wrongdoing of the official duty performer The right to compensation is a special right which only applies when damages is caused to the damage sufferer Therefore, the right to compensation is human rights The UN Secretary General has declared for the first time that „human protection is a

defining principle‟ of the world body [93] In 2009 report on “Implementing the Responsibility to Protect”, UN Secretary-General Ban Ki-moon explained

that Responsible to protect rests on three „pillars‟, which are (i) the

responsibility of every state to protect its own population from “genocide, war crimes, ethnic cleansing and crimes against humanity, and from their incitement”; (ii) different forms of international assistance – technical,

financial and military – to help countries meet these obligations and (iii) coercive measures by outsiders, ranging from economic sanctions to direct military action [66] In domestic view, to protect the rights of the damage sufferer, it is necessary to have mechanism as well as institution, namely legal

instruments and offices/ bodies who are responsible for protecting the rights

of the damage sufferers Belonging to that requirement, in many countries, regulations on State compensation was promulgated

State compensation has an important role both in political and legal

meaning Politically, State compensation is an expression of rule of law The

purpose of this Law is twofold: to guarantee the rights of individuals and legal entities to obtain compensation; and, to encourage state officials to exercise their powers lawfully All acts of infringing upon the legitimate rights and interests of individuals and organizations shall be handled according to the provisions of law without discrimination of subjects caused by the illegal acts regardless it is organizations or individuals The recognition of State compensation and the establishment of a mechanism to ensure this legal responsibility is an effective tool to implement the rights and legitimate interests

of citizens Therefore, the development, promulgation and implementation of laws on State compensation are an essential task to achieve the goal of building a socialist rule of law Through the mechanism of State compensation, on one hand, the damage sufferer who is the victim of the wrongdoing of the official duty performers has the right to claim compensation for the material damage and mental losses they have suffered

On the other hand, official duty performers will raise their awareness and responsibility while performing their duties, contributing positively to improving the effectiveness of activities while they are on duty Finally, it

will contribute to the process of building a good governance state Legally,

State compensation is an effective legal mechanism to ensure the implementation of the right to compensation of the organizations and individuals regulated in the Constitution and at the same time contribute to

maintaining the stability of public activities In the State compensation mechanism, the State is the subject of compensation that represents the official duty performer who caused damage On the basis of recognition of State compensation, through legal instruments, the State specifies criteria for determining compensation responsibilities, determining compensated damages, responsibilities and procedures for settlement of compensation On the other hand, State compensation mechanism has a meaning to ensure the stability of public activities In cases where official duty performers make unintentional or intentional errors while performing official duties, which cause damage to individuals and organizations, the State shall take responsibility for compensation Furthermore, as the subject of national treasury management, the State fulfills the obligation to pay compensation shall be easier for the damage sufferer to receive the compensation amounts With these meanings, the legal mechanism of State compensation marked a very important step to the improvement of the Vietnamese legal system in the context of building a socialist rule of law state and suitable with the current international integration of Vietnam

1.2 Protecting the rights of the damage sufferers and State compensation liability in international and regional law

1.2.1 Rights of the damage sufferer in international law

The victim‟s right to access compensation was first recognized by the international community in 1985 when the United Nations General Assembly adopted the Declaration of Basic Principles of Justice for victims of Crimes and Abuse of Power [96]

Up to now, on a global scope, “there is not yet an international treaty that specifically regulates on State compensation liability There are only some regulations on these issues in international treaty, in the form of

damage compensation principle” [3, pp 168] In 2001, the International Law

Commission presented to the United Nations General Assembly the draft of Convention on National legal responsibility for acts against international law The content of this draft contains provisions on liability, which is responsible for compensating damages to individuals and legal entities when infringing upon legitimate rights and interests caused by the State, state representative agencies or other entities representing the state

However, since this document has not been approved until now, the responsibilities under it are made for individuals and legal entities but in fact

it regulates the responsibility between States and States Although it is not an international convention regulating on State Compensation in terms of the relationship between the State and citizens, it is still considered a valuable reference for countries to build their domestic law At the global level, paragraph 5 Article 9 ICCPR, stipulates the right to claim for compensation for victims of illegally arrested or detention In criminal proceedings, in the case of wrongful actions, clause 6 Article 14 ICCPR has specified the right to compensation of victims In addition to ICCPR, international conventions on human rights also address this issue, in particular: paragraph 15 Article 14 Convention on Torture and other forms of cruel, inhuman or degrading treatment or punishment character 1984; Point g, Clause 1, Article 8, Convention on the Rights of the Child 1989; Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination 1965; 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

In order to practice the right to compensation, the United Nations Human Rights Committee and the Committee of some Conventions was established with the main jurisdiction in the implementation of human rights conventions There are many ways for the Committee to perform its functions, including the function of receiving complaints and making recommendations Receiving complaints and making recommendations of the Committee is one of the measures to help the victim to practice his or her right to compensation In particular, for violations of private life, Guideline No 5 ICCPR also provides

specific provisions for member states to establish “independent bodies to compensate for these violations” [35]

In addition to recognize the right to compensation in international treaties, the rights of the victims are guaranteed through the establishment and jurisdiction of specific agencies In order to protect human rights in general and the rights of the victims in particular, there are two main types of agencies that

perform this function on a global scale: firstly, agencies are established based

on the United Nations Charter This mechanism consists of 05 main bodies of the United Nations: General Assembly, Security Council, Economic and Social Council, International Court of Justice and Secretariat (Trusteeship Council but

it suspended operation on 1 November 1994) All of these agencies have the

responsibility to protect and promote human rights Secondly, agencies established

based on human rights conventions This mechanism is based on Board of Supervision of International Human rights Conventions and it was established according to that Conventions (except for the Commission on Economic and Social Rights and culture which was established under a Resolution of the United Nations Economic and Social Council) [33, pp 494-502]

1.2.2 Rights of the sufferer in the region law

In some region of the world, there are mechanisms to protect and promote human rights in general and the rights of sufferer/ victims in particular (at present, institution to protect and fulfill human rights is established in 3 regions which are Europe, North America and South America)

1.2.2.1 In Europe

In Europe, many documents are issued as a basis to protect human rights, among them, to protect the rights of people suffered by illegal acts of official duty performers there is the Convention for the Protection of Human Rights and Fundamental Freedoms (1950) complemented by 16 Additional Protocols One of the conditions for being a member of the European Council

is to join the European Convention on Human Rights At present, all 47 Member States of the Council, including the United Kingdom, have signed the Convention

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 Secondly, the content of the rights must be identifiable on the basis of the legal

instrument Thirdly, there must be a causal link between the breach of the Member State‟s obligation and the harm suffered by the injured party [89] Another known case is the case of Brasserie and Factortame III [62] Indeed, the Court ruled that the member state shall compensate for the damage caused

to the victim because national law violates the terms of the international treaty, through the interpretation of Article 215 (2) (now it‟s Article 288 (2) of the Treaty) on the expression of the basic principle of state responsibilities related to the law of the member state Although this access to the issues seems strange, the Court explains that the member state has the obligation to obey the law of the public [62, section 36]

In order to practice this rights directly or indirectly, some institutes was established One of those is the European Court of Human Rights; its jurisdiction

is to decide complaints submitted by individuals and States concerning violations

of the Convention for the Protection of Human Rights and Fundamental Freedoms, which principally concerns civil and political rights It cannot take up a

case on its own initiative [83] It is considered as a “super national Court; because

it is the last court a person can seek when they feels his or her rights is violated by

a member state of the Convention” [34, pp 117] While European do have the

rights to sue and complain, the Court is responsible for classifying and assigning them to the Member Courts, which will then be reviewed by a Committee of three judges This Committee may decide to accept or not If it may be approved by the Commission, the complaint is reviewed by a Council 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

In 2016, more than 38,000 cases were sent to the Court [81] To a certain

extent, the European human rights regime also appears to be “more rigorous and effective than the UN human rights mechanism” [33, pp 359] In some

member States administrative fees are charged for applications for State compensation from 9 € to 170 € [80, pp 16]

1.2.2.2 In Inter America

The Inter-American system of human rights began with the American Declaration of the rights and duties of man, adopted in 1948 together with the Charter of the Organization of American States (OAS) Some important documents in the protection of human rights include the aforesaid Declaration

1948, the American Convention on Human Rights (1969/1978), etc Institutions are established to protect human rights in general include the Inter-American Commission on Human rights, the Inter-American Court of Human Rights (Inter-American Court of Human rights) While Europe's human rights mechanism allows individuals do have the right to lodge complaint directly to the regional Human Rights Court, the human rights mechanism of the Inter-American system is carried out by the Human Rights Commission to the Court of OAS member country Although it was formed very early and is developed, however, the mechanism of Inter-American human rights

“is quite complicated, with overlap of functions and functions among agencies; therefore, the actual effect of this mechanism is somewhat limited” [33, pp 364]

1.2.2.3 In Africa

Africa's system of human rights documents has been established since

1981 with the adoption of the African Charter on Human rights and the rights

of peoples Up to now, all 53 member states of the African Union, replaced by the Organization of African Unity since 2001, both of them have ratified the African Charter Institutions were also established to protect human rights, such as the African Commission on Human Rights, the African Court on

Human and People's Rights The African Charter “has created a legal framework for the promotion and protection of human rights, the rights of

regional peoples” and its institutions to ensure its implementation and have

contributed to promoting in that area [57]

1.2.2.4 In Asia

In Asia, although efforts have been made, it has not been possible to pass a formal document on regional human rights or the establishment of an Asian Commission on Human Rights

1.2.3 Rights of the damage sufferers in some countries of the world

At the United Nations World Human Rights Conference in Vienna

(Austria) has insisted on “reaffirmed the important and constructive the role of national agencies in promoting and protecting human rights" and "encourage States to establish and consolidation of national agencies for the promotion and protection of human rights” [42, pp 17] Currently, in many countries of

the world have acknowledged the right to compensation of victim due to illegal

acts of official duty performers and established institutions to fulfill these right

1.2.3.1 In Australia

Individuals wrongfully convicted and imprisoned do not have a common law or statutory right to compensation in any Australian jurisdictions other than the Australian Capital Territory However, a state or territory government may choose to make an ex gratia payment either on its own accord

or as a result of a request by a party for such a payment [75] The Human Rights Act 2004 of Australia stipulated that an individual who is wrongfully convicted of a criminal offence may seek compensation The individual must have been convicted of a criminal offence by a final decision of a court; suffered punishment because of the conviction; had the conviction reversed (or been pardoned) on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice (Section 23) The right to compensation of the sufferer is recognized through specific provision

of compensation responsibilities of state agencies One of those agencies is the Department of Home Affairs In case the Department of Home Affairs causes financial loss or other damage to the person, then the sufferer has the right to claim for compensation The victim has the right to claim compensation for damages caused by legal liability, specially, cases arising from the Federal government or due to administrative defects However, to get compensation, Australian law also specifies procedures to claim for compensation Such as, in order to make a complaint or claim to the Department

of Home Affairs, the sufferer must complete the online application form, which

is publicly posted and is a unified form for all types of complaints To fulfill that form in detail and to ask for assistance and guidance in implementing this right in common, Australian law also allow that victims can freely choose independent consulting services to exercise their rights or to get help from some agencies One of those agencies is the Ombudsman Ombudman was established and one of its functions is to help resolve complaints It does not make a new decision; they rather consider the way a decision is made and make recommendations on how the decision or process could be enhanced It

is the oversight body when it comes to complaint They can assist to resolve people complaint by investigating the process if the agency does not change their decision or offer a better explanation of the decision Moreover, they will help people to make a complaint to the agency the complaint is about In every case, victims shall come back to the Ombudsman if they not satisfied with the result Especially, the Ombudsman also receives complaints that they

do not have the power to assist with For these cases they will refer people to the right complaint-handling body, for them to help resolve his or her complaint [88] The recognition of the right to appeal and the responsibility of assisting the people to exercise their right to complain is one of the measures to implement

the right to claim compensation The reason is that through complaints to identify illegal acts of official duty performer is the grounds for the victims to exercise their right to claim compensation

1.2.3.2 In the United States of America

The law system in the US, in its early forms, came from Great Britain It goes way back to the original 13 colonies when the first settlers brought with them a set of rules and principles that they were going to practice in a new society Therefore, at both federal and state levels, the law

of the United States was mainly derived from the common law system of English law The right to compensation is recognized directly and indirectly

in United States of America law The Constitution of the United States 1787 does not directly stipulate the right to compensation, however, it acknowledge the rights of possession of its citizen In many other important legal documents, the right to compensation is directly regulated, including the Declaration of Human Rights 1789 and especially the Federal Tort Claim Act This law stated that the US government is responsible to compensate for damages caused by federal government officials while they are on duty [71, Article 2672] The federal government, the District of Columbia, and 35 states have compensation statutes of some form The following 15 states do not: Alaska, Arizona, Arkansas, Delaware, Georgia, Idaho, Kentucky, New Mexico, North Dakota, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, and Wyoming [84] In 1946, the US Congress promulgated the Federal Tort claims Act, it has provided for compensation to individuals injured physically or otherwise by the actions of other private persons,

including artificial “persons” such as corporations whose employees cause the

harm Significant parts of this liability fall within what is known as the law of torts However, when the personal injuries are inflicted by the government