Hanoi-Vietnam: Guidelines for criminal prosecution for fishing activities against regulations on aquatic resource protection

Hanoi-Vietnam: Guidelines for criminal prosecution for fishing activities against regulations on aquatic resource protection (Image from the Internet)

On June 12, 2024, the Council of Judges of the Supreme People's Court of Vietnam issued Resolution 04/2024/NQ-HDTP to provide guidelines on the application of regulations in the Criminal Code concerning criminal prosecution for illegal activities related to fishing, trade, and transport of fisheries.

Guidelines for criminal prosecution for fishing activities against regulations on aquatic resource protection

Specifically, the guidance for criminal prosecution related to the exploitation of fisheries that violate regulations on aquatic resource protection is outlined in Resolution 04/2024/NQ-HDTP as follows:

(1) Any person engaged in fishing against regulations on protecting aquatic resources shall be subject to criminal prosecution for the crime of destroying aquatic resources stipulated in Article 242 of the 2015 Criminal Code (as amended and supplemented in 2017) if sufficient elements for the crime are established.

(2) Prohibited fishing equipment and gear referred to in point a, clause 1, Article 242 of the 2015 Criminal Code (as amended and supplemented in 2017) include those listed in Appendix II attached to Circular 01/2022/TT-BNNPTNT, which amends and supplements some circulars in the fisheries sector.

(3) Fishing in a banned area or a banned area under point b, clause 1, Article 242 of the 2015 Criminal Code (as amended and supplemented in 2017) involves engaged in fishing in national parks, nature reserves, species-habitat conservation zones, landscape protection areas, aquatic resource protection areas, or other areas designated as prohibited by competent state authorities.

(4) Fishing in a banned area or a temporarily banned area under point b, clause 1, Article 242 of the 2015 Criminal Code (as amended and supplemented in 2017) refers to engaged in fishing in areas specified in Appendix III attached to Circular 01/2022/TT-BNNPTNT, which amends and supplements some circulars in the fisheries sector.

(5) Extracting species banned from fishing under point c, clause 1, Article 242 of the 2015 Criminal Code (as amended and supplemented in 2017) involves exploiting fish species listed in Group I of Appendix II attached to Decree 37/2024/NĐ-CP, which amends and supplements certain provisions of Decree 26/2019/NĐ-CP detailing and implementing measures for the Law on Fisheries.

Fisheries listed in Group II of Appendix II attached to Decree 37/2024/NĐ-CP, which amends and supplements certain provisions of Decree 26/2019/NĐ-CP detailing and implementing measures for the Law on Fisheries, are also considered prohibited species if their exploitation does not meet the regulatory conditions.

(6) Destroying the habitat of aquatic species as stipulated in point d, clause 1, Article 242 of the 2015 Criminal Code (as amended and supplemented in 2017) involves actions that degrade, damage, or eliminate living environments, aquatic ecosystems, areas where young aquatic species gather, or migration routes of protected species listed as endangered, rare, or prioritized for protection.

It is noted that Resolution 04/2024/NQ-HDTP also provides guidance on applying specific regulations in Articles 347, 348, and 349 regarding illegal entry and exit for fishery exploitation; Articles 242 and 244 regarding activities related to the protection of aquatic resources; Article 287 regarding obstruction or disruption of computer networks, telecommunications networks for illegal fishery exploitation; and Articles 188, 189, 198, and 341 concerning violations in the fishery trade sector in the 2015 Criminal Code (as amended and supplemented in 2017).

View more details in Resolution 04/2024/NQ-HDTP, effective from August 1, 2024.

In cases where offenders have been tried before the effective date of Resolution 04/2024/NQ-HDTP under previous regulations and guidelines, and the verdict has taken legal effect, it will not be reconsidered for cassation or retrial in light of Resolution 04/2024/NQ-HDTP.

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