What Are Conditions to Clean Up Criminal Records?

 

Offenders who have completely served their penalties shall be given conditions to do business, live honestly and integrate with the community, and when they meet all the conditions prescribed by law, their conviction may be expunged and their criminal records will be cleaned. A person whose criminal record is removed is considered as having not been convicted. There are three cases of conviction expungement, including: Automatic conviction expungement; Conviction expungement under a Court’s decision; Special cases of conviction expungement.

Automatic conviction expungement applies to people convicted not for crimes of infringing upon national security and crimes of undermining peace, against humanity and war crimes when they have completed their main penalty, the probationary period of the suspended sentence, the person has served the additional penalty, other decisions of the judgment or has expired and does not commit any new crime during the periods specified below: (i) 01 year in case of a warning, fine, community sentence or suspended imprisonment; (ii) 02 years in case of imprisonment of up to 05 years; (iii) 03 years in case of imprisonment from over 05 years to 15 years; (iv) 05 years in case of imprisonment of over 15 years or commuted life imprisonment. A convict serving an additional punishment that is mandatory supervision, prohibition from residence, prohibition from holding certain positions, prohibition from doing certain jobs, deprivation of certain citizenship rights for a period longer than those specified in  points (i), (ii), (iii) above, automatic conviction expungement shall be granted when he/she finishes serving the additional punishment.

Conviction expungement under a Court’s decision is applicable to persons convicted of crimes of infringing upon national security and crimes of undermining peace, against humanity and war crimes. The Court shall decide the conviction expungement of convict based on the nature of the crimes committed, the law-observing attitude, the convicted person’s labor attitude and the following conditions:

The Court shall grant conviction expungement if the convict, after serving the primary sentence or probation period as well as additional sentences and other decisions of the judgment, does not commit any new crime over the following periods: (i) 01 year in case of warning, community sentence, or suspended imprisonment; (ii) 03 years in case of imprisonment of up to 05 years; (iii) 05 years in case of imprisonment of between more than 5 years and 15 years; (iv) 07 years in case of imprisonment of more than 15 years, life imprisonment or death sentence that is commuted.

If the convict is serving an additional sentence which is mandatory supervision, prohibition from residence, or deprivation of certain citizenship rights for a longer period than that specified in points (i), (ii) above, conviction expungement shall be considered when he/she finishes serving the additional sentence.

If an application for conviction expungement is rejected for the first time, it may only be resubmitted after 01 year from the day on which it is rejected; if the application for conviction expungement is rejected for the second time, it may only be resubmitted after 02 years from the day on which it is rejected.

Where a convict shows remarkable improvements and has made reparation in an effort to atone for the crime and conviction expungement is requested by his/her employer or local authority, the court shall decide to grant conviction expungement if has served at least one third of the above period.

In order to be automatically expunge conviction or expunged conviction according to the decision of the Court, the convict must fully comply with the decisions in the judgment including the payment of court costs and not commit any new crime within the prescribed time limit. For special cases of conviction expungement, convict must have at least one-third of the time limit for conviction expungement according to regulations and the Court shall decide to expunge conviction at the request of agencies or organizations where the person works or the local government where the person resides.

The period after which a conviction may be expunged depends on the primary sentence. If the convict who has not had the conviction expunged commits a new crime which leads to a conviction under an effective judgment, the period after which the conviction may be expunged shall start over from the day on which the primary sentence has been served or the end of the probation period of the new judgment or from the deadline for execution of the new judgment. If the convict has committed more than one crime and one of which is automatically eligible for expungement, one of which is eligible for expungement under a court’s decision, the Court shall decide expungement pursuant to the prescribed time limit for conviction expungement under the Court’s decision.

A convicted corporate legal entity shall automatically have its conviction expunged if it does not commit any new criminal offence for 02 years from the day on which the primary punishments, additional punishments, other decisions of the judgment are served or from the expiration of the time limit for execution of the judgment.

Criminal record card can be obtained at authority to reveal the current criminal conviction situation or changes of situation of such conviction.

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Legal Validity of Criminal Records Card in Vietnam

Criminal record or judicial record is a record of criminal convictions of convicted persons with criminal judgments and decisions of courts which have taken legal effect, judgment execution status and ban on individuals to hold positions or setting up company in Vietnam, or managing enterprises and cooperatives in Vietnam in cases where enterprises or cooperatives are declared bankrupt by Courts.

The competent state authority will grant individuals a criminal or judicial record card, which is issued by the department of justice or data center of judicial records to provide information whether or not an individual has any criminal record; prohibited or not prohibited from holding the position, establishing company in Vietnam, managing enterprises and cooperatives in Vietnam in case the enterprise or cooperative is declared bankrupt. Within the enterprise, judicial record cards will support human resource management, business registration, establishment, management of enterprises, cooperatives … Besides, many government agencies and organizations requesting individuals to provide judicial record cards for some necessary activities i.e. criminal record requirement for employment, criminal record for work permit application, criminal record for immigration purposes. According to Clause 1, Article 44, Law on Judicial Records 2009, there are two types of judicial record cards, including:

– Judicial record card No. 1 issued to Vietnamese citizens, foreigners who have or are residing in Vietnam to serve the purpose of human resource management, business registration, establishment, management of enterprises and cooperatives.

– Judicial record card No. 2 issued to Vietnamese citizen or foreigners whom have or are residing in Vietnam to serve the purpose of immigration, or others.

Depending on the purpose of using judicial record cards, individuals, agencies and organizations request the issuance of judicial record cards No. 1 or No. 2.

Pursuant to the Law on Judicial Records in 2009, Decree 111/2010 / ND-CP guiding the implementation of the Law on Judicial Records, the time limit for judicial record cards of Vietnam so far has not been clearly defined. Criminal record card’s time limit depend on the provisions in the documents of each relevant legal field and depending on the decision of the agency or organization that need to verify the status of judicial record of this individual.

As Articles 20, 24 and 28 of the Nationality Law of 2008, amended and supplemented in 2017, the application for admission, renunciation and return to Vietnamese nationality must have a judicial record card issued within no more than 90 days. For visa applications (VISA) at the US Embassy or the US Consulate General, the individual must have a judicial record card issued within 1 year for immigration verification.

Therefore, when individuals are required to provide judicial record cards at agencies and organizations, they must consider the regulations on the time limit that such agencies allow for judicial record cards. It is not contrary to the Law on Judicial Records in 2009, because the Law does not clearly stipulate the legal effect on two judicial record cards No. 1 and 2, as well as there are no regulations limiting the agencies and organizations to set the time limit for the criminal record cards in Vietnam.

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Expiry Date of the Criminal Record Card

According to Clause 4 of Article 2 of the Law on criminal record, criminal record card is the document issued by the competent state agencies for organizations and individuals, proving that individuals have or do not have criminal record. The problem is that, for how long since the date that state agencies issue the criminal record card, it will be expired?

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The law on criminal record of 2009 and the current law documents do not have regulations on the duration of use of the criminal record card. However, depending on the areas and purpose of using that the expiry dates of the criminal record card will be regulated differently.

For example, Articles 20, 24 and 28 of the Nationality Act of 2008, amending and supplementing in 2014 specified that in the dossier of application, stop and return to Vietnam nationality, there must have the criminal record card that is issued not more than 90 days before the date of submission.

Besides, a number of diplomatic representative missions of foreign countries in Vietnam also provides for the shelf life of the criminal record card when resolving visa application requirements, such as the United States Consulate provides that applicants for entry visas from 16 years or older need to submit the criminal record that was issued within a year.

Thus, the shelf life of the criminal record card in Vietnam currently is not clearly specified. It depends on the provisions in the documents of each different fields and the will of agencies and organizations wishing to learn about previous criminal conviction status of the litigants.

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Criminal Record Card in Vietnam

Criminal record cards or Police check provides criminal or judicial information about a person in Vietnam. The Vietnam law on criminal record governs the process to obtain the criminal records cards.

Criminal backgroundcheck in Vietnam

Accordingly, to obtain the Criminal Record cards in Vietnam, the applicant must apply at the provincial/ municipal Justice Department in Vietnam. For foreigners residing in Vietnam, he/she has to submit the request to the Department of Justice where he/she resides and receives the results at Justice Department.

Documents required are:

i) the written application form;

ii) certified photocopies of passports;

iii) a copy of the permanent or Temporary resident card in Vietnam;

iv) authorization letter in case of authorized application for Criminal Record card (if the authorized persons are not the parents, spouse or children). The written authorization must be certified or authenticated in accordance with the law;

v) application letter for granting Criminal Record.

During the process of applying for the Criminal Record, the applicant might has to work with the Public Securities agencies; the Court: in case there are not sufficient evidence at the police agencies to conclude that the applicant has no criminal records or the content of the applicant’s criminal records is not clear; People’s Committees of communes, wards and townships; agencies, organizations and agencies related proceedings: in case of coordination to verify the conditions of having his/her conviction automatically written off.

In practice, there are cases when the foreigner already left Vietnam and now he/she is in need of Criminal Record for the time he/she resided in Vietnam. We have successfully assist clients in various cases.

Our lawyers in Vietnam constantly follow up with changes of law to provide the client with update for better decision making process.

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The Purposes of Using Criminal Record Card

Under Clause 1, Article 2 of the Law on Criminal Record 2009, criminal record card is the records on the previous convictions of a person that is sentenced under valid court judgments or decisions, and banning individual from holding position, establishing or managing enterprises and cooperatives in cases where the enterprises or cooperatives are declared bankrupt by the court.

Article 7 – The Law on Criminal Record 2009 regulates that the following individual, agencies and organizations may request competent agencies to issue Criminal Record card:

Vietnamese citizens and foreigners who have been or are residing in Vietnam have the right to request the issuance of their criminal record cards;

Proceeding agencies may request the issuance of criminal record card for investigation, prosecution and trial;

State agencies, political organizations and socio-political organizations may request the issuance of criminal record to serve the personnel management, business registration, establishment and management of enterprises and cooperatives.

Criminal record cards include:

a/ Criminal record card no.1 is issued to individual, agencies and organizations defined in Clauses 1 and 3, Article 7 of this Law;

b/ Criminal record card no.2 is issued to agencies conducting the proceedings, defined in Clause 2, Article 7 of this Law and issued at the request of the individual so that he/she can know the contents of his/her criminal resume.

The basic difference of these two types is that the criminal record card no.1 only records the sentence has not been removed. If the case has been deleted, it will state “no criminal record”. The criminal record card no.2 records all previous criminal convictions regardless of whether they were deleted or not.

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Circumstances in which Foreigners are required to obtain a Criminal Record

In the process to grant the work permit for foreigner working in Vietnam, it is required the foreigner to have the criminal record in their dossier.

Foreigner applying for criminal record to obtain work permit in Vietnam is divided into 2 cases.

In the first case, foreigner who is in foreign country or in Vietnam less than 06 months has to apply for criminal record in foreign country. The laws of each country are not the same therefore the regulation on criminal record application is also different.

Also please note that the criminal record which is issued by another country, when using in Vietnam to apply for work permit, it must be translated, legalized and notarized in accordance with the law of Vietnam.

In the second case, foreigner temporarily residing continuously in Vietnam for 06 months or above can apply for criminal record in Vietnam. In Vietnam, the competent authority that granting the criminal record for foreigner is the Department of Justice of the province or city where foreigner is residing.

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When Will Foreigner Need to Obtain Criminal Record?

In the process to grant the work permit for foreigner working in Vietnam, it is required the foreigner to have the criminal record in their dossier.

Foreigner applying for criminal record to obtain work permit in Vietnam is divided into 2 cases.

In the first case, foreigner who is in foreign country or in Vietnam less than 06 months has to apply for criminal record in foreign country. The laws of each country are not the same therefore the regulation on criminal record application is also different.

Also please note that the criminal record which is issued by another country, when using in Vietnam to apply for work permit, it must be translated, legalized and notarized in accordance with the law of Vietnam.

In the second case, foreigner temporarily residing continuously in Vietnam for 06 months or above can apply for criminal record in Vietnam. In Vietnam, the competent authority that granting the criminal record for foreigner is the Department of Justice of the province or city where foreigner is residing.

For example, Peter is an Australian and currently living in Hanoi, Peter must go to the Department of Justice in Hanoi to apply for criminal record. If Peter is temporary residing in Bac Ninh, he must go to the Department of Justice in Bac Ninh to apply for criminal record.

Source: ANT lawyers

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