Death of a Foreigner While Under Non-Custodial Reform

1. Non-Custodial Reform in Vietnam

Pursuant to Article 32 of the 2015 Criminal Code, non-custodial reform is one of the main penalties. Which, non-custodial reform is a penalty that does not require the convicted person to be isolated from society, but is assigned to state agencies and social organizations for supervision and education in order to promote the role of the masses in participating in the reform and education of criminals.

Non-custodial reform is applied from 6 months to 3 years to offenders of less serious crimes, serious crimes as prescribed by this Law, who have a stable job or a clear place of residence if it is considered unnecessary to isolate the offender from society. If the convicted person has been detained, the detention time is deducted from the time of serving the non-custodial reform sentence, at a rate of 1 day of detention equaling 3 days of non-custodial reform.

The court hands over the person sentenced to non-custodial reform to the agency, organization where that person works or studies, or the People's Committee of the commune where that person resides for supervision and education. The family of the convicted person has the responsibility to cooperate with the agency, organization, or People's Committee of the commune in supervising and educating that person.

During the execution of the sentence, the convicted person must perform a number of duties as prescribed by the regulations on non-custodial reform and deduct a portion of their income from 5% to 20% to contribute to the state budget. The deduction of income is carried out monthly. In special cases, the Court may exempt the deduction of income but must state the reason in the judgment. Income is not deducted for persons serving the sentence who are performing military service.

In the case of a person sentenced to non-custodial reform who is unemployed or loses their job during the execution of this sentence, they must perform a number of community service jobs during the non-custodial reform period. The time of community service shall not exceed 4 hours per day and 5 days per week. Community service measures shall not apply to pregnant women or women with children under 6 months of age, the elderly, the seriously ill, the severely disabled, or the very severely disabled. Persons sentenced to non-custodial reform must perform the duties prescribed by the Criminal Procedure Code.

2. Death of a Foreigner Under Non-Custodial Reform

Based on the provisions of Clause 2, Article 14 of Circular 65/2019/TT-BCA, the handling of cases where a person serving a sentence dies is carried out as follows:

When a person serving a sentence dies, the commune-level police are responsible for advising the commune-level People's Committee to report in writing and hand over the management, supervision, and education file of the person serving the sentence to the district-level police's criminal enforcement agency. This file includes documents related to the person's sentence execution process.

Within 3 working days from the date of receiving the report from the commune-level People's Committee, the district-level police's criminal enforcement agency must carry out the procedure of notifying the Court that issued the enforcement decision. The purpose of this notification is for the Court to issue a decision to suspend the execution of the sentence for the deceased person. This ensures that the sentence execution process is handled in accordance with the law and that file management is transparent.

After receiving the decision to suspend the execution of the sentence from the Court, the district-level police's criminal enforcement agency will proceed to complete the sentence execution procedures. The execution file will then be filed for storage as prescribed, completing the process of managing and storing related information.

Accordingly, in the case of a person serving a non-custodial reform sentence who dies, the commune-level police must advise the commune-level People's Committee to report in writing and hand over the management, supervision, and education file of the person serving the sentence to the district-level police's criminal enforcement agency. This agency must then notify the Court that issued the enforcement decision within 3 working days so that the Court can issue a decision to suspend the execution of the sentence.

In the case of a foreigner serving a non-custodial reform sentence who dies, the procedures are still carried out as stated, and the Court will issue a decision to suspend the execution of the sentence. However, for foreigners, some specific regulations must be followed:

Based on the provisions of point d, Clause 1, Article 19 of Circular 65/2019/TT-BCA on the management, supervision, and education of persons serving sentences who are foreigners:

• When the person serving the sentence is a foreigner, the district-level police's criminal enforcement agency must report to the provincial-level police's criminal enforcement agency to inform the Ministry of Foreign Affairs in the following cases:
  • After establishing the execution file.
  • When the person serving the sentence is granted a reduction or exemption from the sentence execution period.
  • When the person serving the sentence has completed the sentence.
  • When the person serving the sentence dies.
• All self-criticism reports, reports, and other documents related to the execution of the sentence, if written in a foreign language, must be translated into Vietnamese according to regulations and stored in the execution file, the management file, and the supervision and education file of the person serving the sentence.

Therefore, when a foreigner serving a non-custodial reform sentence dies, the district-level police criminal enforcement agency must report to the provincial-level police criminal enforcement agency. This agency will then inform the Ministry of Foreign Affairs about this situation to coordinate the resolution in accordance with the law. This ensures transparency and compliance with legal procedures for foreigners serving sentences in Vietnam.

3. Legal and Administrative Procedures

According to Vietnamese law, when a foreigner serving a non-custodial reform sentence dies, the criminal enforcement agency will cooperate with relevant authorities to determine the cause of death and handle the case according to regulations. The following are specific cases and their handling:

• Death due to accident or illness:
  • The criminal enforcement agency will cooperate with relevant authorities such as the police and health department to determine the cause of death.
  • After determining the cause of death, the criminal enforcement agency will notify the embassy or consulate of the deceased's country so they can contact the deceased's family and handle the procedures according to the laws of their country.
• Death due to a violation of the law:
  • The criminal enforcement agency will cooperate with the police to investigate and clarify the cause of death.
  • If the investigation results show that the deceased violated the law, the police will handle the case according to Vietnamese law.
  • The criminal enforcement agency will notify the embassy or consulate of the deceased's country of the investigation results and guide them through the next legal procedures.

Note:

• The handling of cases where a person serving a non-custodial reform sentence dies must be carried out seriously and in accordance with the law.
• The criminal enforcement agency must closely cooperate with relevant authorities to ensure that the handling is carried out quickly, accurately, and fairly.
• The deceased's family should be fully supported with information and procedures so that they can arrange for the funeral and necessary legal procedures.

4. Compensation and Financial Matters

Potential for Compensation or Benefits:

• Government Compensation: In certain cases, the Vietnamese government may provide compensation or benefits to the deceased's family, especially if the death was due to negligence or misconduct on the part of government officials or agencies involved in the non-custodial reform program.
• Insurance Claims: If the deceased had life insurance or other relevant insurance policies, the family may be able to file claims for compensation.
• International Assistance: The deceased's home country's embassy or consulate may be able to provide information on potential sources of financial assistance or support.

Financial Assistance for Repatriation:

• Government Assistance: The Vietnamese government may offer financial assistance for the repatriation of the deceased's remains to their home country.
• Insurance Coverage: If the deceased had travel insurance, it may cover some or all of the repatriation costs.
• Family Resources: The deceased's family may need to rely on their own financial resources to cover the costs of repatriation.

Legal Advice:

• Consult with Experts: It is recommended to consult with legal experts in Vietnam and the deceased's home country to explore all potential avenues for compensation or financial assistance.
• Understand Local Laws: Familiarize yourself with the relevant laws and regulations in Vietnam regarding compensation for deaths in custody or under non-custodial reform.

While there may be potential for compensation or financial assistance in certain cases, it is important to understand the specific circumstances and applicable laws to determine the available options.

5. Legal Rights and Representation

Rights of the Deceased's Family:

• Notification and Information: The deceased's family has the right to be notified of the death and to receive information about the circumstances surrounding it.
• Access to Records: They may also have the right to access relevant medical records, police reports, and other documents related to the case.
• Representation: The family has the right to seek legal representation to protect their interests and ensure that their rights are upheld.

Legal Counsel:

• Obtaining a Lawyer: It is highly recommended to consult with a lawyer who specializes in international law or Vietnamese law to navigate the legal process and understand their rights.
• Assistance: A lawyer can provide guidance on legal procedures, assist with communication with authorities, and represent the family's interests.

Understanding the Legal Process:

• Due Process: The family has the right to due process, which means that the investigation and any legal proceedings must be conducted in accordance with the law.
• Fair Treatment: The family should be treated fairly and with respect throughout the legal process.

It is crucial for the deceased's family to seek legal advice and representation to ensure that their rights are protected and that they are treated fairly in accordance with Vietnamese law.

6. Cultural and Religious Considerations

Respecting Cultural Practices:

• Understanding Customs: It is important to respect the cultural practices and beliefs of the deceased and their family.
• Funeral Arrangements: Facilitate funeral arrangements that are in accordance with the deceased's cultural and religious traditions.
• Religious Rites: If the deceased had specific religious beliefs, ensure that appropriate religious rites and ceremonies can be performed.

Repatriation and Burial:

• Cultural Preferences: Respect the family's wishes regarding the repatriation of the deceased's remains and the burial or cremation process.
• Coordination: Coordinate with the relevant authorities and funeral services to ensure that the repatriation and burial are carried out according to cultural and religious customs.

Cultural Sensitivity:

• Communication and Etiquette: Be mindful of cultural differences and communicate respectfully with the deceased's family and local authorities.
• Avoid Offenses: Avoid any actions or words that could be considered offensive or disrespectful to the deceased's culture or religion.

It is essential to approach these situations with sensitivity and understanding, respecting the cultural and religious beliefs of the deceased and their family.

7. Challenges and Limitations

Language Barriers:

• Communication Difficulties: Language barriers can hinder communication between the deceased's family and local authorities, leading to misunderstandings and delays.
• Translation Services: The use of translation services may be necessary to ensure effective communication.

Cultural Differences:

• Varying Customs: Cultural differences between the deceased's home country and Vietnam may lead to challenges in understanding and respecting local customs and traditions.
• Navigating Bureaucracy: Differences in cultural approaches to bureaucracy and legal procedures can make the process more complex.

Administrative Hurdles:

• Delays: Administrative procedures may be time-consuming, leading to delays in repatriating the deceased's remains or resolving legal matters.
• Bureaucratic Challenges: Navigating the Vietnamese bureaucracy can be challenging, especially for those who are unfamiliar with the system.

Legal Disputes:

• Disagreements: In some cases, legal disputes may arise between the deceased's family and local authorities regarding the circumstances of the death or the repatriation process.
• Legal Representation: It is crucial to have legal representation to protect your rights and navigate any legal disputes.

It is important to be aware of these potential challenges and to seek assistance from legal professionals or relevant authorities to address them effectively.

8. Conclusion