Application of the Criminal Code in case the offender has two nationalities

Application of the Criminal Code to persons holding two nationalities

Pursuant to Article 5 of the 2015 Criminal Code prescribing the validity of the Criminal Code with respect to offences in the territory of Vietnam as follows:

- The Penal Code shall apply to all criminal acts committed in the territory of the Socialist Republic of Vietnam.

This provision also applies to criminal acts or consequences of criminal acts committed on aircraft or seagoing vessels bearing Vietnamese nationality or in exclusive economic zones or continental shelf of Vietnam.

- For foreigners who commit crimes in the territory of the Socialist Republic of Vietnam and are eligible for diplomatic or consular immunities under Vietnamese law, treaties to which the Socialist Republic of Vietnam is a contracting party or international practice, their criminal liabilities shall be settled in accordance with the treaties or international practice; in case such treaties do not provide for or do not have international practices, their criminal liabilities shall be settled in accordance with the provisions of such treaties or international practices."

Accordingly, the offenders on the Vietnamese territory shall be handled according to Vietnams Penal Code. Therefore, if there are 02 nationals of which one nationality is Vietnamese, the Penal Code of Vietnam will be automatically applied.

Offenders who are entitled to diplomatic or consular immunities under Vietnamese law, treaties to which Vietnam is a contracting party or international practice shall be handled according to such treaties or international practice. If an international agreement contains no provision or international practices, the case shall be settled by diplomatic means.

Application of the Criminal Code in case the offender has two nationalities

Recognition of two nationalities for committing crimes in the Vietnamese territory

Under Article 32 of the 2007 Law on Legal Assistance on extradition for penal liability examination or judgment enforcement:

- Extradition means the transfer by a country of a person who has committed a criminal act or been criminally convicted and is present in its territory in order that the transferring country examines for penal liability or executes a judgment against such person.

- Vietnams competent proceedings-conducting bodies may:

+ Requesting competent bodies of foreign countries to extradite persons who have committed criminal acts or been criminally convicted and their sentences have already taken legal effect for penal liability examination or judgment execution;

+ Extradite foreigners who are staying in the Vietnamese territory and commit criminal acts or have been criminally convicted and their sentences have taken legal effect to requesting countries for penal liability examination or judgment enforcement."

Accordingly, extradition means the transfer to another country of a person who has committed a crime or been criminally sentenced in the Vietnamese territory for the extradited country to examine for penal liability or judgment enforcement against the offender. Vietnams legal proceedings-conducting bodies shall extradite foreigners who are staying in the Vietnamese territory and commit criminal acts or have been criminally convicted and the sentences have taken effect to the extradition-requesting countries.

However, not in any case, the procedure-conducting agencies of Vietnam must extradite at the request of the extradition-requesting countries. According to Point a, Clause 1, Article 35 of the 2007 Law on Legal Assistance, stipulates:

"Article 35. Refusal of extradition to foreign countries

1. Competent proceedings-conducting bodies of Vietnam may refuse extradition if the extradition requests fall into one of the following cases:

a/ The persons requested for extradition are Vietnamese citizens;

…"

Accordingly, a person who has two nationalities of crime in the territory of Vietnam and one of these two nationalities is Vietnamese citizenship. Vietnamese legal proceeding-conducting agencies may refuse to extradite to foreign countries according to the above stipulations.

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