Is it necessary to amend the law on asset recovery in corruption cases?

Recently, at the first instance trial, the Hanoi People's Court ordered Mr. Dinh La Thang to pay 630 billion VND in compensation in two cases, but so far the prosecution agencies have not taken any action to seize or freeze his assets. Therefore, many opinions believe that this compensation will be very difficult to enforce if the appeal court upholds the verdict.

Not only the case of Mr. Dinh La Thang but also a series of other corruption cases, the recovery of assets for the State is not easy because the law does not bind the litigants to apply measures of asset seizure and freezing, and a series of problems...

Recovering corrupt assets: The weak link

According to the Criminal Procedure Code, to ensure the activities of prosecution, investigation, prosecution, trial, and execution of judgments, competent agencies and individuals conducting proceedings may apply measures of escort, confiscation, asset seizure, and account freezing.

In particular, property seizure is applied to suspects and defendants who are prosecuted for crimes that are punishable by fines or may have their property confiscated or to ensure compensation for damages. The seizure can be carried out immediately after the prosecution of the suspect and investigation of the case.

The Law on Anti-Corruption (PCTN) defines: “Corrupt assets are assets obtained from corrupt acts, assets originating from corrupt acts”.

Legal regulations are available, but in reality, asset recovery is always the weakest link.

According to lawyer Le Thanh Kinh (Le Nguyen Law Company Limited), corruption cases are rarely detected but when handled, the amount of assets recovered is very small. The reason is that the provisions of the relevant law still have many shortcomings; the time to have a verdict on the defendant's corruption crime is long, so a large part of the assets obtained through corruption are dispersed, transferred to other people's names, or even smuggled abroad. Therefore, the consequences caused by the offender are large, causing hundreds of billions of dong in misappropriation and loss, but the amount recovered is very small. "We can name a series of cases where after the court ordered the return and compensation of hundreds of billions of dong, the amount recovered is less than tens of billions of dong," he said.

That shows the weakness in recovering corrupt assets is due to the inappropriate provisions of our current laws in the field of anti-corruption.

Apply at will

Having handled many corruption cases, Mr. Vu Phi Long, former Deputy Chief Justice of the Criminal Court of Ho Chi Minh City, said: Normally, if the investigation agency does not mention the seizure of assets or the freezing of accounts, the Procuracy and the court do not have the conditions to collect documents and evidence themselves to apply the above coercive measures.

And this is a non-mandatory provision applied according to procedural order.

In practice, the application of the above-mentioned coercive measures is not common due to procedural pressure in terms of time. Because before applying the decision to seize assets or freeze accounts, the prosecution agency must investigate, verify, and collect evidence to prove that the owner of the assets or accounts belongs to the person who will be accused or is a related co-owner.

Furthermore, the law also stipulates: “Only the property portion corresponding to the amount that can be fined, confiscated or required to pay compensation for damages shall be seized.” While these corresponding amounts can only be known after the court has pronounced a verdict, this has contributed to limiting the application of measures of freezing and seizure.

Dr. Phan Anh Tuan, Head of the Criminal Law Department (Ho Chi Minh City University of Law), also acknowledged: In corruption cases, the regulation on property seizure for suspects and defendants is not mandatory (optional). In reality, only when there is sufficient basis for the level of damage, can the prosecution agencies proceed with property seizure to ensure the execution of the judgment later.

Dr. Tuan further analyzed: With corruption crimes, when suspects feel they can be prosecuted and are invited to work by the police, they proactively erase evidence and disperse assets. The law also stipulates that only the portion of assets corresponding to the amount that can be fined, confiscated or compensated for damages will be seized.

Even in cases where a defendant is prosecuted for corruption, the prosecuting agencies cannot immediately determine the damage caused by the crime in order to decide on the amount of property to be seized corresponding to the amount of compensation. During this period, the defendant can still dispose of the property.

However, Dr. Tuan believes that such regulations on seizure are reasonable, avoiding arbitrariness and abuse by the prosecution agencies. The important issue here is that the prosecution agencies must seize assets quickly and in accordance with the law, which can only be achieved when these agencies improve their expertise and professionalism.

Under Singapore's Proceeds of Corruption Act, a person whose assets or property interests exceed his or her declared income will have the excess assets deemed to be proceeds of corruption if he or she cannot explain the legal source of his or her assets.

Is it necessary to change the law?

According to Dr. Tuan, although there are many limitations, there is no need to amend the law to ensure the recovery of corrupt assets. Because in the criminal law, there are provisions on not executing the death penalty for corruption criminals when they proactively return at least 3/4 of the embezzled assets, receive bribes and the mitigating circumstances of criminal responsibility have been recorded in the law when they compensate for damages or remedy the consequences caused by corruption. "In my personal opinion, we do not need to amend the law, as long as we proactively and actively apply the correct regulations to fight against corruption crimes, promptly recover corrupt assets for the State," he said.

Meanwhile, former judge Vu Phi Long said that to ensure court decisions are strictly enforced, it is necessary to amend the regulation on coercive measures as a procedural procedure during the investigation phase.

Lawyer Nguyen Huu The Trach (Ho Chi Minh City Bar Association) said that the seizure of assets depends on the subjective perception of the person with the authority to order the seizure. To limit this situation, the law needs to stipulate that the seizure of assets in cases causing property damage must be applied immediately when the defendant is prosecuted to avoid the situation of asset dissipation. "During the investigation, prosecution, and trial, if it is found that the seizure of assets is no longer appropriate, a decision can be made to cancel the seizure of assets," he said.

He said that the current law has provisions on encouraging offenders to make amends and compensate in all stages of the proceedings and will be considered for a reduction in sentence and sentence duration, which is a progressive point. However, the fundamental measure to prevent and recover corrupt assets is to amend the Anti-Corruption Law in the direction of preventing from the beginning acts that can lead to corruption crimes. The purchase and transfer of assets abroad must be monitored. Perfect the mechanism of publicity, transparency, and monitoring of assets of officials, civil servants and relatives of officials, civil servants, etc.

According to lawyer Le Thanh Kinh, to effectively fight corruption, the State needs a mechanism to control assets and income of the whole society through management tools, especially taxes, to make assets transparent and thereby the State can control fluctuations and origins of assets, prevent asset dissipation and money laundering from criminal activities, including corruption, and support the recovery of corrupt assets.

In Vietnam, every year, relevant subjects must seriously declare their assets according to the provisions of Article 44 of the Anti-Corruption Law. This is the basis for agencies, organizations and people to monitor the assets of subjects who are required to declare their assets and income according to the provisions of the Anti-Corruption Law. That is, the State exercises its control rights to make transparent the assets and income of subjects through declaration, but in reality, it is not very effective in preventing, detecting corruption and recovering corrupt assets because the assets are not fully and seriously declared according to the provisions of the law.