Correcting the abuse of requests for criminal records

Phenomenon of abuse

The Law on Judicial Records stipulates that there are two types of judicial records issued by judicial agencies, each serving a different purpose and providing different information.

Criminal record certificate No. 1 is issued to individuals, agencies and organizations specified in Clause 1 and Clause 3, Article 7 of the Law on Criminal Records. This certificate is issued to Vietnamese citizens, foreigners who have resided or are residing in Vietnam; State agencies, political organizations, socio-political organizations that need to issue a Criminal record certificate to serve the work of personnel management, business registration activities, establishment and management of enterprises and cooperatives.

Judicial record certificate No. 2 is issued to the prosecution agency specified in Clause 2, Article 7 of the Law on Judicial Records (i.e., the prosecution agency to serve the investigation, prosecution, and trial work) and is issued at the request of an individual so that he/she can know the content of his/her judicial record.

The regulations are clear, but in reality, in many fields, there is still a phenomenon of abusing criminal records. Mr. D.HT in Nghi Kim commune, Vinh city said: “I drive a technology car, after 6 months of working, I have to get a new card to prove my clean identity, even though I still work normally at the company. The criminal record card is to verify whether that person has a criminal record or not, serving the human resource management of the company when the employee applies for a job. However, once I have started working at the unit, after a while, I still have to apply for a new criminal record card, which is unreasonable, both costly and time-consuming for the employee.”

Many places even abuse the requirement for LLTP card number 2. Mr. N.D.Th. residing in Que Phong district said that over 10 years ago, he followed his friends to fight and beat people, although not directly, the incident caused one person to die. After that, each person in Mr. Th.'s group had to pay the price with different prison sentences for the crime of "Murder". The incident made Mr. Th. repentant and haunted him forever. After serving his prison sentence, Mr. Th. lived honestly by raising livestock and farming, in his free time he worked as a construction worker, a porter... with the hope of earning an income, and at the same time forgetting his past mistakes. The story of his imprisonment gradually faded into the past, especially when his criminal record was cleared.

However, recently, an acquaintance introduced him to a job in an industrial park in Nghi Loc district, but this company required a LLTP certificate No. 2. According to Mr. N.D.Th, when he received LLTP certificate No. 2, he found out that this certificate had a full criminal record even though it had been erased. "Because I didn't want to relive the pain again, didn't want others to know that I had previously served a sentence, and because of social prejudices, I had to give up this job," Mr. Th sadly expressed.

Solutions to remove obstacles

According to Ms. Nguyen Thi Lan - Deputy Director of the Department of Justice, Nghe An is a locality with a large population, the number of applications for temporary residence cards ranks 3rd in the country; the demand for temporary residence cards from people, agencies and organizations is increasing. In 2023, the Department of Justice received 80,215 applications for temporary residence cards; in the first 3 months of 2024, it received 19,511 applications.

In recent times, the issuance of temporary residence cards has received attention and gradually become routine, basically meeting the needs of agencies, organizations as well as people and businesses. However, the issuance of temporary residence cards still has some shortcomings and limitations, such as there are still many administrative procedures requiring temporary residence cards. Some agencies, organizations and businesses abuse the request to provide temporary residence cards, especially temporary residence card No. 2, causing inconvenience and expense for people. It affects the right to have personal privacy guaranteed by law, the humanitarian policies of the Party and State, and the reintegration into the community of convicted people, especially those whose criminal records have been cleared. At the same time, it causes congestion and overload in receiving and processing applications for temporary residence cards at certain times.

Regarding this issue, according to Ms. Nguyen Thi Lan, implementing Directive No. 23/CT-TTg dated July 9, 2023 of the Prime Minister on promoting reform of administrative procedures for granting temporary residence cards to facilitate people and businesses, on August 11, 2023, the Department of Justice advised the People's Committee of Nghe An province to issue Official Dispatch No. 6714/UBND-KSTT on promoting reform of administrative procedures and enhancing the effectiveness of temporary residence cards in the province.

In order to rectify the situation of abusing requests for provision of LLTP certificates, especially LLTP certificate No. 2 in violation of regulations, on September 22, 2023, the Department of Justice issued Official Dispatch No. 1795/STP-VP on the proper implementation of the law on issuance of LLTP certificates. Accordingly, it is requested that directors of departments, heads of agencies, branches, sectors, and provincial-level organizations, People's Committees of districts, cities, and towns; and socio-political organizations properly exercise the right to request issuance of LLTP certificates in accordance with the provisions of Clauses 2 and 3, Article 7 of the Law on Judicial Records; and put an end to the situation of requiring people to submit LLTP certificates that are not in the cases prescribed by law.

At the same time, the Department of Justice coordinates with provincial departments, branches, sectors, People's Committees of districts, cities and towns to review regulations and administrative procedures related to LLTP certificates according to the list of administrative procedures requiring the issuance of LLTP certificates (issued with Directive No. 23 of the Prime Minister proposing to reduce the requirement to submit inappropriate LLTP certificates, based on the review results of agencies and units, the Department of Justice synthesizes and advises the Provincial People's Committee to report to the Government Office the review results, proposing to reduce regulations and administrative procedures related to LLTP certificates. Of which, it is proposed to reduce 16/48 procedures (5/22 procedures in the judicial field; 2/17 procedures in the field of labor - invalids and social affairs; 9/9 procedures in the field of internal affairs), accounting for 33.33%.

Thus, it can be seen that the abuse of the request for LLTP certificates is a reality. Therefore, along with the solutions that have been implemented, it is necessary to actively propagate in many forms about legal regulations, about the right to request LLTP certificates, about issuing LLTP certificates online and through public postal services to raise the understanding and awareness of individuals, agencies and organizations about the purpose and role of LLTP certificates; raise the awareness and responsibility of prosecution agencies, State agencies, political organizations, socio-political organizations about the right to request LLTP certificates. Continue to review and propose to reduce administrative procedures that require LLTP certificates.

At the same time, the above solutions must be combined with sanctions for the abuse of LLTP cards. However, according to the leader of the Department of Justice, Decree 82 on administrative sanctions does not have sanctions for this. Therefore, it is necessary to study and supplement strong enough sanctions to handle agencies and units that abuse the request for people to present LLTP cards in violation of regulations.