What is Extradition?

Currently, there are many differing perspectives on the concept of extradition. Each country has its own approach to this concept, which varies over different periods. Article 32 of the 2007 Mutual Legal Assistance Law introduces the concept of extradition as follows:

Extradition is the act of one country transferring to another country a person who has committed a criminal act or has been convicted of a criminal offense present within its territory so that the receiving country can prosecute or enforce a sentence against that person.

Who is subject to extradition?

The subject of extradition is a person who has committed a criminal act but has not been prosecuted or has been tried by the requesting country's court with a legally effective judgment but is evading justice in the requested country.

The person requested for extradition can be a citizen of the requesting country, a foreign individual, or a stateless person.

In special cases, the extradited person may be a citizen of the requested country if the national law and the international treaty on extradition to which the requested country is a signatory allow for the extradition of its citizens to a foreign country.

What are the cases for extradition?

Article 33 of the Mutual Legal Assistance Law outlines cases of extradition as follows:

- Individuals who can be extradited are those who have committed acts punishable under the Vietnam Penal Code and the criminal laws of the requesting country by imprisonment for one year or more, life imprisonment, or the death penalty, or have been sentenced to imprisonment by the requesting country's court where the remaining sentence is at least six months.- The criminal act does not necessarily belong to the same group of crimes or the same charge; the constituent elements of the crime do not need to be identical under Vietnamese law and the laws of the requesting country.- If the criminal act occurred outside the territory of the requesting country, extradition can proceed if it is considered a crime under the Vietnam Penal Code.

What are the procedures for extradition?

The extradition procedure, conducted from the moment the requesting country calls for extradition and concluding when the person to be extradited is transferred to the requesting country, involves the following three steps:

Step 1: Receiving and processing the extradition request

The Ministry of Public Security is the competent authority to receive, check, and process the extradition request and related documents.

Within 20 days from receiving the extradition request and accompanying documents, the Ministry must log the extradition file and check the request.

- If the file is valid, the Ministry will immediately transfer two copies of the file to the competent provincial-level People's Court for review and decision.- If the file is incomplete, the Ministry may request additional information from the competent authority of the requesting country. If no supplementary information is received within 60 days from the date of the request, the Ministry will return the file to the requesting country, stating the reasons.

In cases where multiple countries request the extradition of the same individual, the Ministry of Public Security will coordinate with the Ministry of Foreign Affairs, the Ministry of Justice, the Supreme People's Procuracy, and the Supreme People's Court to consider, decide on satisfying one of the requests, and transfer the file to the competent provincial-level People’s Court for review and decision.

Step 2: Reviewing and deciding on extradition or refusal of extradition

The competent provincial-level People’s Court where the person requested for extradition resides, is detained, or is serving a prison sentence is the authority to decide on extradition or refusal of extradition.

Within four months from the filing of the request, if all required documents are met, the competent provincial-level People’s Court will decide to review the extradition request.

Suspension: If the extradition request is not within jurisdiction, withdrawn by the requesting country, the person to be extradited has left Vietnam, or for other reasons making review impossible, the provincial court will decide to suspend the review and return the file to the Ministry of Public Security to inform the requesting country.

The provincial court reviews the extradition request within 20 days from the date of the review decision and immediately sends a copy of the file to the same level People's Procuracy.

No later than 10 working days from issuing the extradition or refusal decision, the provincial court will send the decision to the person requested for extradition, the same level Procuracy, and the Ministry of Public Security to ensure the rights and obligations as provided by law.

Appeals and protests:

- The person requested for extradition has the right to appeal, and the same level Procuracy may file a protest within 15 days. The Supreme People’s Procuracy may file a protest within 30 days from the provincial court's decision. The provincial court must send the file and appeals/protests to the Supreme People’s Court within seven days from the expiry date.- Within 20 days from receiving the extradition file and appeals/protests, the Supreme People’s Court will hold a session to review the appealed/protested decision. The appellate review council will make a decision on extradition or refusal of extradition. The appellate review process for the provincial court's extradition decision follows the same procedure as the extradition review at the provincial level.

Step 3: Executing the extradition decision

Within five working days from the effective date of the court's extradition decision, the Chief Judge of the competent provincial-level People’s Court issues a decision to execute the extradition decision. The execution decision is sent to the same level Procuracy, Ministry of Public Security, the requesting country, and the person to be extradited.

After receiving the execution decision, the competent public security authority arrests the extradited person according to the procedures of Vietnam's criminal procedure law and international treaties of which Vietnam is a member.

Can extradition be refused?

Vietnamese competent judicial authorities may refuse extradition if any of the following conditions apply:

- The individual requested for extradition is a Vietnamese citizen;- Under Vietnamese law, the individual cannot be prosecuted or serve a sentence due to the statute of limitations or other lawful reasons;- The individual has been prosecuted with a legally effective court judgment in Vietnam for the crime mentioned in the extradition request, or the case has been dismissed according to Vietnam's criminal procedure laws;- The individual resides in Vietnam and might face persecution in the requesting country due to discrimination based on race, religion, gender, nationality, ethnicity, social class, or political opinion;- The extradition involves multiple charges, each prosecutable according to the requesting country's laws, but does not meet the conditions for extradition specified for crimes punishable by one year or more, life imprisonment, or the death penalty under both Vietnamese law and the requesting country's laws;- The act for which extradition is requested is not a crime under Vietnam's Penal Code;- The individual is being prosecuted in Vietnam for the crime mentioned in the extradition request.

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