Arrest of a U.S. Citizen

The Department of State is committed to ensuring fair and humane treatment for U.S. citizens imprisoned overseas. We stand ready to assist incarcerated citizens and their families within the limits of our authority in accordance with international law, domestic and foreign law.

If you are arrested…

If you are arrested, you should ask the authorities to notify the U.S. Embassy in Hanoi or U.S. Consulate in Ho Chi Minh City.  Consular officers cannot get you out of jail (when you are in a foreign country, you are subject to its laws).  However, they can work to protect your legitimate interests and ensure that you are not discriminated against.  They can provide you with a list of local attorneys, visit you, inform you generally about local laws, and contact your family and friends.  Consular officers can transfer money, food, and clothing to the prison authorities from your family and friends.  They can try to obtain relief if you are held under inhumane or unhealthy conditions.

What To Expect and When to Expect It

The first thing that an American citizen detained by the authorities in Vietnam must understand is that the Vietnamese system of justice, and even the concept of justice, differ greatly from the concept and administration of justice in the United States.  The U.S. Embassy in Hanoi and the U.S. Consulate General in Ho Chi Minh City will do all that it can to ensure that an American citizen accused of a crime in Vietnam receives all the protection and benefits afforded a detainee under Vietnamese law, but it will not be able to guarantee any of the protections and guarantees that have come to be expected under American law.  American law takes as its most important imperative the protection of the rights of the individual.  On the other hand, Vietnam’s criminal justice system still reflects the traditional Confucian concept of law as an instrument with which to punish disruptions of social order, and an individual’s “rights” tend to come second to those of the society at large.

An American should not expect that s/he will be subjected to brutal interrogations, or sentenced without some legal representation.  Instead, s/he can expect to receive treatment according to carefully considered procedural law and that the progress of his legal situation will be monitored by the Embassy and/or the Consulate.  The legal procedures may strike Americans as unfair when considered in the context of those expected under the American legal system, but in fact, they generally meet Vietnamese expectations.  This information sheet will attempt to outline briefly what an American detained in Vietnam can expect.

An Embassy or Consulate consular officer is guaranteed access to detained Americans and will help them to understand their situations as well as possible. However, consular officers cannot investigate crimes, provide legal advice or represent American citizens in court, serve as official interpreters or translators, or pay legal, medical, or other fees for American citizens.

Notification and Access

A 1994 agreement between the United States and Vietnam provides for immediate notification of and reciprocal access within 96 hours to each other’s detained citizens.  Bearers of U.S. passports who enter Vietnam with a Vietnamese visa, including those of Vietnamese origin, are regarded as U.S. citizens by the U.S. Government for purposes of notification and access.  Therefore, U.S. citizens are encouraged to carry photocopies of passport data and photo pages with them at all times so that, if questioned by Vietnamese officials, proof of U.S. citizenship is readily available.

Despite the 1994 agreement, U.S. consular officers in Vietnam are rarely notified in a timely manner when a U.S. citizen is arrested or detained.  There have also generally been very significant delays in U.S. consular officers obtaining timely access to incarcerated U.S. citizens.  This has been particularly true when the U.S. citizen is being held during the investigatory stage that Vietnamese officials do not consider as covered by the bilateral agreement.  The investigatory stage can last up to two years depending on the nature of the  crime.  Americans should note that the problem of access has been particularly evident when the U.S. citizen is considered by the Vietnamese government to be a citizen of Vietnam, irrespective of proof of U.S. citizenship.  According to the 1994 agreement, U.S. citizens, including dual nationals, have the right to consular access if they were admitted into Vietnam as a U.S. citizen with their U.S. passport, and should insist upon contact with the U.S. Embassy or the U.S. Consulate General.

The Players

The Vietnamese legal system is made up of three parts.  The Investigative Body of the Police (Police) is responsible for the investigation and detention and issuance of arrest warrants in criminal cases.  It is roughly analogous to the police in America.  The People’s Procuracy issues or approves arrest warrants, supervises pre-trial investigations, and initiates public prosecutions.  It is roughly analogous to the role of a prosecutor in the United States.  The third part is the People’s Court, which adjudicates the cases of persons arrested by the Police and prosecuted by the People’s Procuracy.  Its role is analogous to that of the court system in the United States.

The apparent symmetry between these organizations and their American counterparts, however, can be deceiving.  The most important player in criminal cases is the Police.  The Police may first identify a suspect and can then detain him/her for an extended period for interrogation and investigation, but they generally do not formally arrest a suspect until they are reasonably certain that enough evidence has been gathered to assure approval of the arrest warrant by the People’s Procuracy and conviction by the People’s Court.

Phases of a Criminal Case

A typical case can be divided into the following stages:

1. Pre-Investigation (Police or People’s Procuracy)

2. Investigation (Police)

3. Prosecution and Pre-Trial (People’s Procuracy)

4. Trial and Sentencing (People’s Court)

Investigation:  In the course of an investigation, the Vietnamese police will often “invite” an individual in for questioning.  In some cases this is a written summons, instructing the individual to appear at a certain police station at a specific date and time.  The suspect is usually not placed in detention at this stage but may be summoned for questioning for several days or even weeks.  Failing to respond to a police invitation can be seen as an admission of guilt and will likely lead to the individual being detained.

If the police believe that they have a serious case, they may choose to place the individual in temporary detention restrict his/her movements from his domicile, or confiscate the passport.  As noted above, the investigation is the most important stage and can last up to four months in its initial stage.  This is oftentimes extended several times for even the most routine cases. In complex cases, this period can be extended to one year or more.  It is at this point that the Police identifies a person as a suspect, and begins the “preparatory investigation.”  The suspect at this time may be in detention, may have been released into the custody of someone acting as a guarantor (the Embassy or Consulate cannot act as the guarantor of a suspect), may have his/her passport seized but allowed to remain free, or may remain at home “under surveillance.”  Generally, a detained person may contact family members or consult with an attorney subject to the approval of the relevant authorities or investigation police. Requests for meetings with family members or attorneys are not always approved. According to the 1994 Agreement between the United States and Vietnam, the detention of an American citizen must be reported to the Embassy or Consulate within 96 hours.

After the actual notification, a U.S. consular officer is guaranteed access to the detained American and will be allowed, when necessary, to arrange for legal assistance.  As noted earlier, issues regarding notification and access remain problematic.

The suspect can be interrogated throughout this period of detention, but there are safeguards against mistreatment.  Any American citizen who feels that he is being mistreated should bring any examples of it to the attention of the consular officer as soon as possible and the Embassy and/or Consulate will determine if a formal protest is warranted on the American’s behalf.

* Issuance of an Arrest Warrant:  If the Police concludes from its investigation that the evidence gathered is sufficient to justify arrest, an arrest warrant may be issued by the Police, provided that it must be approved by the People’s Procuracy of the same level before they are executed.  In terms of an emergency arrest, the arrest warrant may be carried out before it is approved by the People’s Procuracy. However, the People’s Procuracy then has only 12 hours in which to approve or disapprove the emergency arrest.  Practically speaking, however, the Police will not issue the arrest warrant without confidence that the arrest will be approved by the People’s Procuracy.  Nevertheless, in complex cases, the Procuracy will oftentimes send the case back to the Police for further investigation, effectively restarting and/or extending the process.

Pre-Trial:  Upon the termination of the investigation, the Police must make an investigation conclusion report proposing either to prosecute or to cease the investigation. The case will be handed over to the People’s Procuracy for up to two months of “pre-trial processing” during which time the People’s Procuracy will deem whether the Police’s evidence and investigation report are correct.  It should be noted that, at this stage, the suspect is entitled to consult with an attorney.    If the People’s Procuracy “hands down an indictment”, or initiates a public prosecution of the suspect, the case moves to the People’s Court.

The Trial:  Under the Vietnamese legal system, the formal indictment must be served to the defendant within three days of the day of its issuance.  Trials are generally short and often last only one or two days.  The People’s Procuracy will generally not bring a case to trial unless they are confident that they will obtain a quick conviction. For this reason, it is difficult for a defense lawyer to assume an adversarial role in court.  As such, he is not likely to defend the defendant’s interests nearly as aggressively as the client thinks he should, as his duty is as much to the State and society as it is to the defendant.  In some cases, the American defendant may be frustrated to find that the lawyer also seems to have accepted his guilt and is only playing for a more favorable sentence.  In fact, this actually may be the case, as this is what is normally expected of the attorney in a Vietnamese trial.

The Court is presided over by a judge and two jurors, so-called “citizen assessors” or perhaps by two judges and three jurors in a complicated case.  The People’s Court will hear charges, question the defendant and witnesses, allow cross-examination of witnesses, and hear evidence presented by the People’s Procuracy.  The role of the Court is to verify evidence gathered by the Police, the People’s Procuracy and lawyers.  The defendant’s rights to present evidence and witnesses at trial are limited due largely to the fact that Courts tends to rely on evidence based on documents and conclusions of the authorities.  The defendant will be represented in court by his/her attorney, and he will be provided with an interpreter.  The trial will generally be open to the public and a consular officer is usually permitted to attend the trial.

Sentencing:  Depending on the severity of the crime and the attitude of the defendant, those convicted can be sentenced to penalties provided by the Penal Code, from deterrence or payment of a fine to life in prison or even death. Depending on each case, the accused U.S. citizen may be expelled from Vietnam.

The Appeal:  One appeal can be made within fifteen days of sentencing.  Throughout this process a consular officer will perform consular visits to the detained American to ensure that any health and welfare issues are addressed by the Vietnamese authorities.  The Embassy and/or Consulate will attempt to ensure that the American is given the opportunity to select an attorney and to seek outside medical assistance if he has a special medical condition.  The Embassy and/or Consulate will act as a communications link between families and their detained relative and will strive to ensure that all of the detained American’s rights according to Vietnamese law are maintained.