SOME THEORETICAL ISSUES ON RIGHTS OF
Rights of the damage sufferer and state liability to compensate
1.1.1 Definition, characteristics and elements of the rights of the damage sufferer
1.1.1.1 Definition of the damage sufferer
The terminology used to define individuals or organizations affected by the wrongdoing of officials varies across countries, particularly concerning state compensation In general, "victim" refers to someone harmed by criminal acts, while "injured party" denotes a person harmed by another's actions The term "damage sufferer" or simply "sufferer" encompasses both individuals and organizations that have experienced damage In Vietnam, legal documents published by the government specifically use the term "damage sufferer" to refer to those affected by the actions of official duty performers.
The law not only acknowledges human rights but also safeguards the rights of victims in cases of violations Damage refers to the loss of the original state of affairs due to external influences, while compensation is defined as reparation for incurred losses When human rights are compromised by individuals or organizations, the state faces the challenge of providing compensation for these violations Thus, the rights of victims can be closely aligned with the right to compensation.
The right to compensation is a derivative right which only arises when human rights are violated
The distinction between compensation and reparation is significant in international law, particularly as articulated in the ICCPR In the English translation, "compensation" refers to the rights of victims whose rights have been violated, while the French and Spanish versions use the term "reparation." This highlights that compensation is seen as a remedy, as outlined in various international legal instruments Reparation encompasses a broader range of remedies, including restitution, rehabilitation, satisfaction, and guarantees of non-repetition The key difference lies in the state's responsibility; compensation must provide adequate redress, whereas reparations should be proportionate to the violations experienced by victims.
Compensation serves as a vital form of reparation for victims when recovery or replacement is unattainable, particularly in cases of severe trauma such as rape or terrorism This financial support addresses both pecuniary (monetary) and non-pecuniary losses, acting as a substitute for the victim's pre-trauma state However, monetary compensation alone is inadequate for true reparation, highlighting the necessity for comprehensive support services to be integrated into the broader definition of compensation.
Compensation is a legal obligation that arises from harmful actions, serving as a form of reparation for losses incurred due to violations In civil law, it is recognized as a remedy for damages, ensuring that affected parties receive appropriate restitution for their suffering.
"a form of civil liability where the party who causes damage must compensate for physical losses and mental losses for the damaged party” [6, pp 31]
Damage refers to the altered condition of an object or situation after exposure to external factors Compensation for damage entails the obligation to restore the affected items or phenomena to their original state.
Thus, the rights of the damage sufferer can be understood as the right to claim compensation and compensation for damages caused by violations from individuals or organizations
1.1.1.2 The characteristic of rights of the damage sufferer
The right of the damage sufferers have the following characteristics:
The right to claim compensation for victims can be understood in two distinct ways: first, as the right of individuals and organizations to seek compensation from the State for damages incurred, a practice observed in countries such as the United States, Japan, Korea, China, Israel, and France; second, as the reciprocal right where individuals and organizations can also claim compensation from the State, applicable in nations like Canada, Malaysia, Singapore, England, Botswana, and Australia This dual approach significantly influences the scope of compensation available to victims.
Czech jurist Karel Vasak (1977) categorized human rights into three generations The first generation, known as "civil-political" rights, encompasses fundamental freedoms such as the right to life, freedom of association, expression, voting, and a fair trial The second generation focuses on "socio-economic" rights, ensuring equal access to essential services like work, public health, and housing Lastly, the third generation involves "collective-developmental" rights, which pertain to the rights of peoples and groups, including the right to development and self-determination Each generation of rights is susceptible to violations, highlighting the ongoing need for protection and advocacy.
The objective of state compensation is to uphold the rights of individuals who have suffered damages, including physical and mental harm For victims to exercise their right to compensation, two essential conditions must be met: first, there must be a legal framework recognizing the right to compensation, whether in the Constitution, specific laws, or integrated within other legal statutes; second, there must be an institution that delineates the responsibilities of the compensation body and provides assistance to victims in claiming their rights The state compensation body can be interpreted in various ways, either as the entity responsible for providing compensation or as the competent authority tasked with resolving compensation claims.
1.1.2 Definition, characteristic, elements of State compensation
In "Leviathan," Thomas Hobbes argues that without a state, human life is characterized by loneliness, poverty, filth, brutality, and brevity However, he acknowledges that the state, being a product of humanity, has its own limitations and often pursues self-interest To uphold and enhance democracy, it is crucial for the law to effectively regulate state power, implementing measures that prevent abuse by the executive branch One such measure is ensuring the rights of individuals harmed by public service officials, alongside imposing sanctions on the state for illegal actions, thereby reinforcing the principle that while power is delegated to the state, individuals do not forfeit their rights.
John Locke emphasized that the State, in addition to its legislative role, must also be subject to the laws it creates, ensuring that these laws serve the public good and are binding on all, including those who enact them.
In "Obligation of Penal Laws," Locke expresses growing skepticism about the government's potential misuse of power However, he emphasizes that individuals have a duty to maintain a peaceful society and should not threaten their government As long as a person's conscience remains free from political interference, they are obligated to adhere to their country's laws.
The regulation of State Civil Liability (SCL) outlines the responsibilities of the government for violations committed by officials in the course of their duties, impacting the public This framework serves as a mechanism to balance the interests of the State and its citizens within the social contract.
The realization of human rights is a collective responsibility shared by individuals, organizations, and the State Human rights law clearly outlines the obligations of the State in safeguarding these rights, which are expressed in three specific forms.
The obligation to respect mandates that States acknowledge and uphold the human rights of individuals, refraining from any direct or indirect interference in their enjoyment of these rights This is viewed as a passive obligation, as it does not necessitate proactive initiatives, measures, or programs aimed at assisting citizens in exercising their rights.
Protecting the rights of the damage sufferers and State
1.2.1 Rights of the damage sufferer in international law
In 1985, the international community acknowledged the victim's right to compensation when the United Nations General Assembly adopted the Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power.
Currently, there is no international treaty that explicitly governs state compensation liability on a global scale Existing regulations related to this issue are limited and primarily take the form of the damage compensation principle found in various international treaties.
The Commission submitted a draft Convention on National Legal Responsibility for Acts Against International Law to the United Nations General Assembly This draft outlines provisions for liability, holding states and their representatives accountable for compensating damages to individuals and legal entities whose legitimate rights and interests have been infringed upon.
The document in question, although not yet approved, outlines responsibilities for individuals and legal entities, primarily focusing on the relationship between states While it does not serve as an international convention governing state compensation to citizens, it is nonetheless a significant reference for nations in shaping their domestic laws At the global level, Article 9, paragraph 5 of the ICCPR establishes the right to compensation for victims of unlawful arrest or detention, while Article 14, clause 6 specifies compensation rights for victims of wrongful actions in criminal proceedings Additionally, various international human rights conventions address compensation, including Article 14 of the Convention Against Torture (1984), Article 8 of the Convention on the Rights of the Child (1989), and multiple articles from the International Convention on the Protection of the Rights of All Migrant Workers and Their Families (1990).
23 and Article 24 of the Convention on the Protection of Everyone from the
Forced disappearance 2006 stipulates the right to compensation of each subject belonging to the scope of each convention
The United Nations Human Rights Committee, along with various convention committees, plays a crucial role in enforcing human rights conventions and facilitating the right to compensation for victims One of the key functions of the Committee is to receive complaints and issue recommendations, which serve as vital measures for victims seeking redress Specifically addressing violations of private life, Guideline No 5 of the ICCPR mandates member states to create independent bodies dedicated to compensating such violations, ensuring accountability and support for affected individuals.
International treaties recognize the right to compensation for victims, supported by specific agencies that ensure their rights Globally, two main types of agencies function to protect human rights: first, those established under the United Nations Charter, which include the General Assembly, Security Council, Economic and Social Council, International Court of Justice, and the Secretariat (with the Trusteeship Council's operations suspended since November 1, 1994) These bodies are tasked with promoting and safeguarding human rights Second, agencies formed under human rights conventions, governed by the Board of Supervision of International Human Rights Conventions, oversee compliance with these conventions, except for the Commission on Economic, Social Rights, and Culture, which was created by a United Nations Economic and Social Council resolution.
1.2.2 Rights of the sufferer in the region law
In various parts of the world, mechanisms exist to safeguard and advance human rights, particularly focusing on the rights of victims and survivors Currently, institutions dedicated to the protection and fulfillment of human rights have been established in three key regions: Europe, North America, and South America.
In Europe, the protection of human rights is underpinned by various key documents, notably the Convention for the Protection of Human Rights and Fundamental Freedoms (1950) along with its 16 Additional Protocols, which safeguard individuals affected by unlawful actions of officials Membership in the European Council requires adherence to the European Convention on Human Rights, and currently, all 47 Member States, including the United Kingdom, have ratified this important Convention.
Article 5 (5) of the European Convention provides that “everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation” To explain this,
Article 3 Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms extends the list of rights to protect under the Convention, include the right to compensation in the event of a miscarriage of justice Besides, precedent, one of the sources of law has also regulated in case of compensation In the case of Francovich, the Europe Justice court has stated that the principle “individuals have the right to ask member states to compensate for violations of Europe Council” [89] The duty of a Member State to compensate is subject to three conditions Firstly, the result prescribed by EC law must entail the grant of rights to individuals Secondly, the content of the rights must be identifiable on the basis of the legal instrument Thirdly, there must be a causal link between the breach of the Member State‟s obligation and the harm suffered by the injured party [89] Another known case is the case of Brasserie and Factortame III [62] Indeed, the Court ruled that the member state shall compensate for the damage caused to the victim because national law violates the terms of the international treaty, through the interpretation of Article 215 (2) (now it‟s Article 288 (2) of the Treaty) on the expression of the basic principle of state responsibilities related to the law of the member state Although this access to the issues seems strange, the Court explains that the member state has the obligation to obey the law of the public [62, section 36]
The European Court of Human Rights was established to address complaints from individuals and states regarding violations of the Convention for the Protection of Human Rights and Fundamental Freedoms, primarily focusing on civil and political rights As a "super national Court," it serves as the final recourse for individuals who believe their rights have been infringed by a member state The Court does not initiate cases independently; instead, it categorizes complaints for Member Courts, which are then evaluated by a Committee of three judges that decides whether to accept the case If approved, the complaint is further examined by a Council Notably, the number of cases filed in the Court surged from approximately 60,000 in 1999 to over 120,000 by early 2010.
In 2016, over 38,000 cases were submitted to the Court, highlighting the growing reliance on the European human rights regime, which is considered to be more rigorous and effective than the UN human rights mechanism Additionally, some member states impose administrative fees for applications seeking state compensation, ranging from €9 to €170.
The Inter-American system of human rights originated with the adoption of the American Declaration of the Rights and Duties of Man in 1948, alongside the Charter of the Organization of American States (OAS) This Declaration serves as a key document in the framework for protecting human rights in the Americas.
Established in 1948, the American Convention on Human Rights (1969/1978) led to the creation of key institutions for human rights protection, including the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights Unlike Europe, where individuals can directly file complaints with the regional Human Rights Court, the Inter-American system relies on the Human Rights Commission to address issues within OAS member countries Despite its early formation and development, the Inter-American human rights mechanism continues to face challenges.
“is quite complicated, with overlap of functions and functions among agencies; therefore, the actual effect of this mechanism is somewhat limited” [33, pp 364]
Africa's system of human rights documents has been established since
Since the adoption of the African Charter on Human and Peoples' Rights in 1981, all 53 member states of the African Union, which succeeded the Organization of African Unity in 2001, have ratified this important document The Charter has established a legal framework for the promotion and protection of human rights across the continent Additionally, key institutions such as the African Commission on Human Rights and the African Court on Human and Peoples' Rights were created to ensure the implementation of these rights, significantly contributing to the advancement of human rights in Africa.
RIGHTS OF THE DAMAGE SUFFERER IN THE LAW
Period before 2009
From the XI to the XIX century, Vietnam was governed by a tyrannical monarchy where all state power resided with the king The written laws of this era, particularly Quoc trieu hinh luat and Hoang Viet luat le, emphasized the responsibilities of officials in public service, imposing strict penalties for delays and failures in duty Notably, officials were required to compensate victims for any harm caused, with compensation set at double the damages suffered King Quang Trung, known for his military successes, exemplified a ruler who acknowledged his mistakes and promised reparations, as seen in his response to the destruction of the Temple of Literature by his soldiers This incident highlighted that the notion of "the king can do no wrong" was not absolute, as Quang Trung actively listened to the people's grievances and took responsibility However, the overarching power of the king meant that the rule of law and state compensation were largely foreign concepts during this feudal period In contrast, modern democratic societies prioritize human rights and the rule of law to prevent abuses of power and protect citizens' rights.
The Hoang Viet luat le outlines the responsibilities of officials, including their obligation to provide compensation for various violations During the Nguyen dynasty, it was established that officials were liable for compensation in 53 documented cases across four dynasties Notably, the construction sector accounted for the majority of these cases, with 27 instances, while other areas such as treasure management, wages, military, judicial matters, and taxes contributed to a total of 31 cases, representing 58.5% of all violations At the central level, there were 22 cases, which made up 41.5% of the total.
To ensure officials fulfill their compensation responsibilities, the State implemented various regulations alongside the Hoang Viet luat le Key milestones include the 1858 rule on remuneration, the 1870 guidelines for compensating evidence, the 1874 mandate for evidence collection compensation, and the 1975 procedures for compensating losses related to public works Additionally, a review of the Hoang Viet luat le reveals numerous provisions addressing the recovery and reimbursement of compensation for officials in cases of death or retirement.
The regulations established in the Quoc trieu hinh luat and Hoang Viet luat le during King Quang Trung's reign highlight the compensation responsibilities of officials towards the people Firstly, when officials violate their duties, the State does not provide direct compensation; instead, the responsibility falls on the officials themselves, who face state-imposed penalties such as fines or disciplinary actions Secondly, the compensation amount is determined by the actual damages incurred, with specific provisions for loss of life Following the August Revolution, President Ho Chi Minh's Declaration of Independence on September 2, 1945, marked a significant turning point for the Democratic Republic of Vietnam.
The Declaration emphasizes that the fundamental rights of Vietnamese citizens are established and protected by law, ensuring that the State engages as an equal partner in civil relations, sharing both rights and obligations However, the lack of direct legal regulation regarding State compensation remains a significant issue.
In Constitution 1959, the right to compensation of the people for the first time is specified in Article 29:
Citizens of the Democratic Republic of Vietnam have the right to report any state officials for legal violations, and these complaints must be promptly investigated Individuals who experience losses due to the infringement of their rights by state servants are entitled to receive compensation.
On March 23, 1972, the Judge Council of the People’s Supreme Court issued Circular No 173/TANDTC, which guides the trial of tort damages This circular establishes that legal entities are liable to compensate employees, workers, or legal representatives for damages caused while performing their duties Enterprises must first cover the damages under civil liability and may subsequently seek reimbursement from the responsible parties based on labor relations However, if employees or representatives act outside the scope of their assigned tasks for personal gain and cause harm to others, they must take personal responsibility for the compensation.
In 1977, Vietnam official became the member of the United Nations
In 1982, Vietnam ratified the ICCPR and ICESCR, two key conventions that detail human rights and outline the responsibilities of member states These conventions mandate that states ensure individuals seeking remedies for rights violations have access to competent judicial, administrative, or legislative authorities To align with these international standards, the 1980 Vietnam Constitution enshrines the protection of citizens' rights to life, property, honor, and dignity, emphasizing that violations must be rectified, strictly penalized, and compensated for damages suffered.
Based on the provisions of the Constitution 1980, Article 24 of the Criminal procedure code 1988 stipulates:
Citizens possess the right to report illegal activities conducted by investigating agencies, the Procurator, the Court, or their personnel Competent authorities are required to address these complaints swiftly, inform the complainants in writing about the outcomes, and implement necessary remedial actions Agencies responsible for injustices must restore the honor and rights of victims and provide compensation Individuals found guilty of misconduct will face appropriate disciplinary actions or legal consequences based on the specifics of each case.
The 1992 Constitution emphasizes that any violations of state interests and the lawful rights of individuals and collectives will be addressed legally It distinguishes between two types of responsibilities: first, the accountability of litigation agencies, which states that citizens unlawfully arrested or detained have the right to compensation and rehabilitation of their honor, and those responsible for such unlawful actions will face legal consequences Second, it outlines liability for compensation, asserting that any infringement on state interests or the legitimate rights of individuals and collectives must be promptly addressed, allowing victims to seek compensation and honor restoration as stipulated by law.
The 1992 Constitution emphasizes the protection of the rights of individuals and organizations, alongside establishing civil liability for officials whose duties result in harm To address previous shortcomings in the 1995 Civil Code, it is essential to clearly define and enforce this responsibility to ensure accountability and effective compensation for damages caused by official actions.
State agencies are required to compensate for damages caused by their civil servants and employees during the course of their duties According to Article 623, if public employees or officials commit errors while performing their official responsibilities, the agencies must seek reimbursement from these individuals for the amounts paid to the victims, in accordance with legal provisions.
Agencies responsible for conducting legal procedures are required to compensate victims for damages caused by their appointed personnel during investigation, prosecution, trial, and judgment execution According to Article 624, if a competent person makes an error while fulfilling their duties, the agency must seek reimbursement from that individual for any compensation paid to the victim, in accordance with legal provisions.
On May 3, 1997, the Government issued Decree No 47/CP to clarify the application of Articles 623 and 624 of the Civil Code 1995 This decree marked a significant advancement in offering detailed guidelines for the effective implementation of these articles.
State agencies and legal proceedings bodies are required to compensate for damages caused by their officials or employees while performing their duties, as outlined in Articles 623 and 624 of the Civil Code Victims have the right to seek compensation from these agencies for damages inflicted by their representatives or to request court intervention to safeguard their legitimate rights and interests.
State compensation liability in the period 2017 up to now
In 2013, Constitution 2013 was promulgated, one of its regulations is:
Everyone has the right to lodge complaints and denunciations about the illegal acts of State bodies, organisations, and individuals with the relevant State bodies, organisations and individuals [45, Clause 1 Article 30]
State bodies, organizations, and individuals are responsible for receiving and addressing complaints and denunciations Individuals who have suffered damages are entitled to compensation for material and psychological harm, as well as the restoration of their honor, in accordance with the law.
The comparison between the rights of individuals and the rights of damage sufferers under SCL 2009 reveals significant disparities, indicating that the right to compensation is a constitutional right that remains unrestricted In contrast, the provisions of SCL 2009 are narrower than those outlined in the Constitution of 2013 While SCL aims to establish legal mechanisms that facilitate compensation settlements, practical implementation reveals inefficiencies, such as complex compensation procedures that hinder individuals' ability to assess claims and complicate the work of compensation agencies Additionally, the actual duration for settling compensation claims often falls short of expectations, failing to provide favorable conditions for both claimants and agencies, and the established time limits for settlements are misaligned with real-world scenarios.
Despite the enactment of SCL 2009, the persistent presence of multiple legal mechanisms for resolving state compensation cases remains a significant issue This multitude of legal options contributes to the inefficiencies in the implementation of SCL 2009 Therefore, amending SCL 2009 is essential to enhance its effectiveness.
2.3.1 Protecting the right of the damage sufferer in the Law on State compensation liability 2017 and comparion to the Law on State compensation liability 2009
The drafting of SCL 2017 is based on the following basic guiding points:
The Vietnamese Party's 12th National Congress emphasizes the need to institutionalize the socialist-oriented market economy and establish a socialist rule of law This aligns with the Politburo's Conclusion No 01-KL/TW from April 4, 2016, which focuses on advancing the implementation of Resolution No 48-NQ/TW regarding the development and enhancement of the Vietnamese legal system up to 2010, with goals extending to 2020 A key requirement of this strategy is the ongoing improvement of laws that safeguard human rights, as well as the rights to freedom and democracy for citizens.
Ensuring the clarity and specificity of the provisions in the 2013 Constitution, particularly those related to human rights and citizens' basic rights, is essential Additionally, achieving uniformity among related laws is crucial for effective governance and the protection of individual freedoms.
Civil Code 2015, Criminal Code 2015, Criminal Procedure Code 2015, Civil Procedure Code 2015, etc On the basis of determining the legal framework for state compensation with its own characteristics
The amendment of SCL 2009 must align with the country's economic, social, and developmental needs, reflecting the current qualifications of officials involved in judicial reform Additionally, it should focus on preventing violations of the rights of victims caused by those performing official duties.
Amending the regulations for compensation procedures aims to streamline the claims process, reducing both the time and steps involved This initiative seeks to ensure fairness between the State and those affected, promoting a more efficient resolution for claimants.
The drafting of SCL 2017 will be based on three key elements: a summary of practical implementation results, the incorporation of effective regulations from SCL 2009, and the adoption of advanced regulations from various countries worldwide.
Compare the regulations in SCL 2009 and 2017, it is shown that SCL
In 2017, significant regulations were introduced regarding state compensation, which are crucial for the implementation of the State Compensation Law (SCL) 2017 This law stipulates that state compensation is applicable only in cases involving wrongdoing by officials performing their duties, marking a progressive shift from previous SCL regulations Furthermore, this new regulation aligns with Article 598 of the Civil Code 2015, which emphasizes that SCL should be utilized to resolve compensation issues arising from the misconduct of duty performers.
SCL 2017 has expansioned the mechanism to claim for compensation
Therefore, the victims has the right to choose the way to claim compensation according to the law The mechanism is defined as follows:
Once the relevant document is issued, the individual affected has the right to file a compensation claim directly with the agency responsible for the official who caused the damage.
After the issuance of the necessary documentation for claiming compensation, individuals have the right to pursue their claims in court under civil procedure This entitlement applies to various contexts, including administrative management, civil proceedings, administrative proceedings, and the execution of criminal or civil judgments, allowing claimants to seek compensation through the appropriate legal channels.
Integrating the resolution of compensation claims within criminal and administrative proceedings is essential for effective judicial management This approach ensures that compensation claims are addressed during civil proceedings, the execution of criminal judgments, and administrative processes, promoting a comprehensive legal framework for all parties involved.
In criminal proceedings, compensation claims must first be addressed at the agency responsible for the official whose actions caused the damage It is essential to resolve the claim with this agency before pursuing compensation in court under civil procedure.
According to SCL 2017, a compensation claimant can request a compensation-settling agency to handle their claim, and once accepted, they cannot approach another agency for the same claim [54, Clause 3 Article 4] This regulation ensures a unique and effective settlement mechanism in practice.
The SCL 2017 has removed the right for individuals to request competent authorities or courts to address compensation claims during the complaint process or when filing administrative lawsuits, a provision that was present in SCL 2009 Despite some opinions advocating for the continuation of this regulation during the drafting phase, there have been no recorded instances since the implementation of SCL 2009 where individuals have successfully utilized this right Furthermore, even if individuals attempt to exercise this right, they face challenges in protecting their interests due to the application of the Law on Complaint, which lacks specific provisions for resolving such cases.