This is the opinion of Lawyer Pham Ngoc Minh - Everest Law Firm LLC when discussing the story of officials and officials "calling in sick" when there are signs of violations.

Attorney Pham Ngoc Minh

Regarding some cases where officials and officials with signs of wrongdoing are investigated for using the excuse of being hospitalized or receiving medical treatment, from a lawyer's perspective, what is your opinion on this?

Attorney Pham Ngoc Minh:First of all, getting sick and suddenly discovering the disease can be considered an objective issue, especially when you are old. Besides, the need for medical examination and treatment is an essential need of the sick. This is a constitutional right of citizens stipulated in the 2013 Constitution: “Everyone has the right to health protection and care, equality in the use of medical services and has the obligation to comply with regulations on disease prevention, medical examination and treatment” (Clause 1, Article 38).

In general, cadres, like other ordinary people, have the need for medical examination and treatment, and in many cases, they suddenly develop illnesses without knowing in advance.

However, it cannot be completely denied that there may be cases where the disease is caused by “intentional” or “arrangement” by some officials and civil servants when violating the law. Because the law has provisions on temporarily “stopping” the prosecution of legal responsibility if that person is sick and needs treatment.

In some cases, if there is evidence to prove that when committing an illegal act, the person suffered from a mental illness or another disease that caused him or her to lose the ability to perceive or control his or her behavior, he or she will not be held legally responsible. This is also one of the reasons why, whenever a violation of the law by a civil servant is discovered, some people “suddenly” become ill.

A National Assembly delegate said that "the situation of civil servants making mistakes and claiming illness is quite common nowadays, but there is no specific "medicine" to cure it." In your opinion, is there a loophole in the law?

Attorney Pham Ngoc Minh:Regarding the current situation of officials and civil servants "claiming illness" which is quite common but there is no specific "medicine" to cure it, I must immediately affirm that the loophole does not come from the law but from the legal awareness of the officials and related individuals, agencies and organizations.

Claiming illness is the subjective intention of the offending officer, but if that person is not provided with documents confirming the illness (Health certificate, Hospital admission papers, etc.), it is also worthless. So where do these documents come from? Who has the authority to issue these documents?

In fact, every time there is an investigation or work by a competent authority, some officials and civil servants "call in sick" or "report to be ill". If so, it can be said that the ethics of a portion of officials and civil servants have problems.

Furthermore, the process of appointing officials, the process of recruiting and selecting civil servants also has problems. Before being appointed, everyone commits to being healthy enough to work and contribute, but when disciplined, they present all kinds of illnesses. Even in just a few months, the health status is different.

One problem is that most violations when reported by the press receive the answer from the authorities: "following the correct procedure". The implementation of the procedure depends a lot on the qualifications, ethics, and awareness of law compliance of those who carry out the procedure. The main problem is that the procedure needs to be continuously updated, supplemented, and improved because economic and social life changes frequently and the "tricks" to "bypass" the procedures are also becoming more and more sophisticated.

In addition, competent authorities need to strengthen inspection and supervision of compliance with established procedures. If there are violations, they need to be strictly handled to educate as well as deter and prevent.

In addition, the responsibility of the prosecuting agencies and law enforcement agencies needs to be considered. Why do the prosecuting agencies and law enforcement agencies not re-examine and conduct independent assessments when receiving applications and medical records?

So, can you please elaborate on the regulations on exemption from trial for cases of officials and public employees who show signs of embezzlement or corruption and are sick?

Attorney Pham Ngoc Minh:The 2003 Criminal Procedure Code stipulates the presence of the defendant at the trial: “The defendant must be present at the trial upon summons from the Court; if absent without a valid reason, he/she shall be escorted according to the procedures prescribed in Article 130 of this Code; if absent with a valid reason, the trial shall be adjourned. If the defendant is mentally ill or has another serious illness, the Trial Panel shall temporarily suspend the case until the defendant recovers. If the defendant absconds, the Trial Panel shall temporarily suspend the case and request the Investigation Agency to search for the defendant” (Clause 1, Article 187 of the Criminal Procedure Code).

According to the above provisions, the presence of the defendant at the trial is mandatory, regardless of whether the defendant is an ordinary citizen or an official. If the defendant is absent due to illness (with confirmation from a competent medical facility), the trial must be postponed, or if the defendant is mentally ill or has a serious illness, the case will be temporarily suspended until the defendant recovers without being exempted from trial.

Many people think that the phrase “chay sick” should be added after the words: chay position, chay power, chay sentence, chay rotation... Is this statement correct, sir? And to limit this situation, what do you think should be done?

Attorney Pham Ngoc Minh:First of all, it must be affirmed that terms like “buying a case”, “buying a position”, or “buying a disease” are not legal terms. “Buying a disease” is just a trick to find a way to delay or avoid legal responsibility.

In fact, this issue has been reflected by many press agencies and people, but when asked to point out specific cases, it is very difficult. The responsibility to prove, find and not let criminals escape belongs to a number of competent state agencies - agencies that receive salaries from the state budget, from the people's tax payments.

In addition, it must be reiterated that being sick does not mean “getting away with the crime” as many people mistakenly believe. What is important is that individuals, agencies, organizations, especially hospitals and organizations with the authority to appraise medical records, need to be more determined in performing their duties, avoiding the case of providing fake papers and documents, aiding and abetting criminals.

The situation of corrupt officials using medical records to escape punishment has been around for a long time, and the National Assembly has even discussed it, but the situation has not decreased but has tended to increase. In my opinion, to limit the situation of officials “running away from illness”, the following issues need to be noted:

Firstly, strictly handle those who assist in falsifying medical records and documents according to Article 267 of the Penal Code, which stipulates the crime of falsifying seals and documents of agencies and organizations. Accordingly, the act of falsifying documents to "treat illness" can be prosecuted, specifically, can be imprisoned for up to 7 years and fined up to 50 million VND.

Second, in cases of claiming illness to request a delay in trial, the prosecuting agencies should conduct a re-examination and use independent channels to check. If the medical records are correct, the proceedings will be stopped. Depending on the severity, the person may be sent to a hospital or compulsory treatment center for treatment or for the family to receive care. However, when the illness is gone, the trial or sentence must continue. As for cases of using fake medical records to evade punishment, it is necessary to clarify and strictly handle them according to the provisions of the law.

Thank you for the interview!

According to Infonet