During the adjudication process and law enforcement, due to a lack of evidence and procedural errors, wrongful convictions are inevitable. Some wrongful cases have lasted for decades, such as the "10-year wrongful conviction of Nguyen Thanh Chan" and the shocking case of "Huynh Van Nen – the wrongful conviction of the cashew garden," where the wrongful conviction lasted for 17 years, considered the "pinnacle" of wrongful convictions in Vietnam.
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A wrongful conviction case often leads to numerous consequences. Besides financial and health damages to the wronged individual, the prolonged procedural processes also result in wastage of state budget and further erode public trust in the legal system.
Upon discovering a wrongful conviction, besides the requirement to restore the wronged individual's reputation, the compensation for damages caused by public officers in administrative, procedural, and enforcement activities is also detailed in the Law on State Compensation Liability 2009. Accordingly:
The types of damages entitled to compensation as stipulated by the Law include:
- Damages due to violated property- Damages due to lost or reduced actual income- Spiritual damages- Material damages incurred by the death of the wronged individual
For damages due to violated property, Article 45 of the Law on State Compensation Liability 2009 stipulates compensation based on the following principles:
- Confiscated or lost property => Compensation with equivalent property plus depreciation;- Damaged property => Compensation for repair and restoration costs, or compensation with equivalent property if repair and restoration are impossible;- Unused property => Compensation for actual lost income based on market prices at the time when the damage occurred;- Confiscated, seized, or otherwise withheld monetary amounts => Refund plus interest, calculated from the date the money was submitted to the state budget, confiscated, seized, or deposited to ensure at authorities until the date the compensation resolution decision is issued or the court's ruling on compensation becomes legally effective.
The draft Law on State Compensation Liability issued on June 3, 2015 (Draft Law) also expands the scope of compensation for damages due to violated property as follows:
- Special property types as per the Civil Code => Compensation in value calculated in gold at the time when the wronged individual had ownership rights. Compensation in these cases is implemented in cash equivalent to the value in gold of the lost property at the time of resolution.- Unfulfilled civil or economic transactions => Compensation includes the penalty for non-fulfillment plus any incurred amounts (interest of penalty loans, non-loan penalty interests).- Costs incurred to document demands for compensation.
For damages due to lost or reduced actual income, compensation is provided under Article 46 of the aforementioned Law:
- Identifiable income => Compensation for actual income lost.- Regular but unstable income => Average income over three consecutive months before the damage occurred.- Seasonal income => Compensation based on the local average income of comparable work; if undetermined, it is based on the state’s minimum wage at the time of compensation resolution.
Notably, the Draft Law includes new compensation provisions for legal entities as follows:
- Damages due to lost or reduced actual income of legal entities are calculated based on the average income over two consecutive years before the damage occurred. If the legal entity has not been operational for two years, the calculation is based on the average income during its operation period.
Regarding spiritual damages, this has proven to be a challenging issue for lawmakers in all compensation matters. It is difficult to measure spiritual losses in monetary terms. Despite this, the Law on State Compensation Liability provides specific rates for these damages:
- One day of administrative detention, placement in reformatory, educational or medical facility => Compensation of 2 minimum wage days;- One day of detention, custody, or imprisonment => Compensation of 3 minimum wage days;- Spiritual damages when the wronged individual dies (not due to their fault) => Compensation of 360 months' minimum wage;- Spiritual damages when health is violated => Compensation is based on health but not exceeding 30 months' minimum wage;- One day under prosecution, indictment, trial, non-custodial reform, or suspended sentence without being detained or held in custody => Compensation of 1 minimum wage day.
In response to public feedback during the drafting process for the Law on State Compensation Liability, where many agreed that the compensation rates for spiritual damages are “inadequate” and “unjust,” the Draft Law proposes increased rates as follows:
- One day of administrative detention, placement in reformatory, educational, or medical facility => Compensation of 3 statutory pay rate days;- One day of detention, custody, or imprisonment => Compensation of 5 statutory pay rate days;- Spiritual damages when the wronged individual dies => Compensation of 600 months' statutory pay rate;- Spiritual damages when health is violated => Compensation based on health but not exceeding 50 months' statutory pay rate;- The Draft also introduces a new compensation rule for officials unlawfully dismissed => Compensation of 2 statutory pay rate days for each day of unlawful dismissal.
Additionally, in the unfortunate event of the wronged individual's death, the state provides compensation for:
- Reasonable expenses for medical treatment, nourishment, and care for the wronged individual prior to death.- Funeral costs as stipulated by social insurance law.- Support payments for dependents that the wronged individual was obligated to support.
The draft Law on State Compensation Liability is expected to be passed in 2017.
View the full draft of the Law on State Compensation Liability.
