CAT/C/VNM/CO/1
concerned at the absence of a definition of torture in national legislation. In addition, the
Committee is concerned at reports that committing acts of torture at the instigation of or
with the consent or acquiescence of a public official or other person acting in an official
capacity, as outlined in article 1 of the Convention, is not covered adequately in the laws of
the State party (arts. 1–2 and 4).
7.
The State party should:
(a)
Amend national legislation, including the 2015 Criminal Code, in order
to introduce and explicitly criminalize acts of torture;
(b)
Introduce a definition of torture that includes all the elements set out in
article 1 of the Convention. In that regard, the Committee draws attention to its
general comment No. 2 (2007) on the implementation of article 2 in which it states that
serious discrepancies between the Convention’s definition and that incorporated into
domestic law create actual or potential loopholes for impunity (para. 9).
Punishment for the crime of torture and impunity
8.
While taking note that article 9 of the 2015 Criminal Code provides for up to 3 years
of imprisonment for less serious crimes, up to 7 years for serious crimes, up to 15 years for
very serious crimes and up to 20 years, life imprisonment or death for extremely serious
crimes, the Committee is concerned that these punishments cover torture offences as well
as general offences and that the definitions of torture offences are contained in different
articles and are vague. It is also concerned that article 373 of the Criminal Code on “use of
torture” states that “any person who, in the course of proceedings, trial, or implementation
of measures including mandatory attendance at a correctional institution or rehabilitation
centre, uses torture or brutally treats or insults another person in any shape or form shall
face a penalty of 6–36 months of imprisonment”, without aggravating circumstances. This
means that a person committing acts of torture in correctional and rehabilitation institutions
can receive a sentence of as little as six months of imprisonment (arts. 1–2 and 4).
9.
The State party should:
(a)
Ensure that both the crime of torture and the attempt to commit such a
crime are punishable with appropriate penalties that are commensurate with the
gravity of their nature, as set out in article 4 (2) of the Convention, regardless of
whether there are aggravating circumstances;
(b)
Provide information to the Committee as to whether the entry into force
on 1 January 2018 of amendments to the Criminal Code has resulted in an increase in
the number of prosecutions brought in cases of torture and whether further
amendments to the Criminal Code are envisaged in order to provide a simpler and
clearer basis for the prosecution of torture.
Statute of limitations for the crime of torture
10.
The Committee is concerned that less serious crimes have a statute of limitations of
5 years while extremely serious crimes have a statute of limitations of 20 years, and that
these categories may encompass acts of torture, which may result in impunity for acts of
torture and be in violation of the Convention (arts. 1–2 and 4).
11.
The State party should amend the Criminal Code in order to ensure that there
is no statute of limitations for the crime of torture and that all acts of torture may be
prosecuted and punished independently of the time that has passed since the crime
was committed. The law should also be amended so that the granting of amnesty and
pardon is inadmissible when torture offences are concerned.
Superior orders and complicity in acts of torture
12.
The Committee is concerned:
(a)
That the Law on the People’s Public Security Forces, the Law on Viet Nam
People’s Army Officers and the Law on Cadres and Civil Servants stipulate that officers
have the responsibility to strictly implement the directions, directives and orders of their
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