Can a party to a civil proceeding in the United States depose a willing witness in Vietnam without the need for approval or even to inform the Vietnamese government? If so, may the U.S Consulate facilitate the process by, for example, administering an oath to the deponant?
This memo comments on the deposition of a willing witness who is deposed in Vietnam as part of a civil court proceeding in the U.S. The deponant can be either a Vietnamese citizen or a foreigner located in Vietnam. The witness may be questioned by, say, a lawyer, and there may be a court reporter who travels from the U.S to Vietnam for the deposition. Alternatively, the deponant may be questioned by video or by Skype or by similar means acceptable to the court, by the judge him/herself or by a lawyer for the other party. For these purposes, we will assume that the willing witness is not a current or former Vietnamese government official and that the subject matter of the litigation is, say, a U.S civil dispute. We do not address the situation in which the witness is unwilling to testify. In our circumstances, the witness is totally willing.
Article 25 of the Vietnamese Constitution 2013 (“Constitution”) says “A citizen[1] shall enjoy the right to freedom of opinion and speech, freedom of the press, [the right] of access to information, [the right] to assemble, form associations and hold demonstrations. The practice of these rights shall be provided by the law.” It means that a citizen of Vietnam is free to give his opinion and request, gather, and discuss various information[2]. An interviewer in everyday circumstances may request information from an interviewee if the interviewee is willing to be interviewed and to disclose information. There is no restriction. The fact that the conversation follows a U.S court process does not change the circumstances. The interview is voluntary and freely conducted by the concerned parties pursuant to Article 3 of Civil Code No. 91/2015/QH13 dated November 24, 2015 (‘Civil Code”).
Neither is the government entitled to attach conditions or even to be involved in such opinion or discussion. The delivery of information by a witness to an interviewer is subject to the requirement of confidentiality in accordance with Article 21 of the Constitution, Article 38 of the Civil Code[3] and other relevant laws (such as Law on Information Technology, Law on Electronic Transactions). Generally, these laws provide that the collection, processing and use of personal information must be approved by the information owner and the use of such information must be consistent with the stated purposes. It means that a person may refuse to testify as a willing witness as a result of these laws. Of course, the interpretation and application of the privacy law depends on specific cases and circumstances. However, the Vietnamese government has reserved no right to intervene in the case of a simple voluntary deposition of a voluntary witness. Moreover, there is no mechanism for a foreign government or foreign litigator to seek authority or approval of the Vietnamese government to allow a witness to be deposed or even to inform the Vietnamese government that a deposition will take place or that the U.S government will participate by administering an oath.
According to Article 6 of Law on Legal Assistance No. 08/2007/QH12 (“Law on Legal Assistance”) dated November 21, 2007, “judicial assistance” is provided on the basis of the request of a competent authority of Vietnam or a competent authority of a foreign country through letters rogatory. “Letters rogatory” are written requests from a competent Vietnamese authority or from a competent authority of a foreign country for the other party to perform one or a number of acts of “judicial assistance” under the law of the concerned country or under the treaty to which Vietnam is a signatory. It means, for example, that letters rogatory would be necessary if a U.S court wants to apply for formal judicial assistance from a Vietnamese court (e.g the People’ Court in the location where the depositions will be taken) in order to serve papers, dossiers and documents related to civil judicial assistance, summon witness and experts, collect and supply evidence, and perform other requests classified as civil judicial assistance.
There is no treaty on judicial assistance between the U.S and Vietnam. Vietnam signed the Hague Convention on Taking Evidence in Civil and Commercial Matters to which the U.S is a signatory, and it became effective vis-à-vis Vietnam on May 3, 2020. Letters rogatory would be used if the U.S court wanted to compel a witness to appear. This is because summons of a witness is one form of judicial assistance.
Letters rogatory issued by a U.S court, together with other required documents[4], have to be sent to the Vietnamese Ministry of Foreign Affairs (“MFA”). These documents must be certified by the U.S State Department under U.S law and then consularized by the Vietnamese Embassy in the U.S in order to be filed with the MFA. The MFA would consider whether or not to apply the principle of reciprocity to accept a letter rogatory, and respond in writing to the U.S court. There is a specific mechanism to consider a letter rogatory jointly by the Vietnamese Ministry of Justice (“MOJ”), the Supreme People’s Court and the MFA, before it can be delivered to a competent Vietnamese court. After the application for a civil judicial mandate is accepted by the competent Vietnamese court, the court would apply necessary measures to perform the judicial mandate. For example, the Vietnamese court may force a witness to appear as requested by the U.S court. Under the Law on Legal Assistance, a summons must clearly state the conditions for the witness/expert, and the commitment to guarantee his safety, accommodation, food and travel conditions. The witness/expert is entitled to enter and exit Vietnam, and may not be arrested, detained, held in custody or investigated, prosecuted or tried due to acts that he has done (eg. committing crime in Vietnam[5]) before his arrival in Vietnam.[6]
If the U.S court fails to provide a deadline to perform the judicial mandate, the Vietnamese court will notify the MOJ of judicial results within 90 days from the date of receipt of the application from the MOJ. The Vietnamese court must notify the MOJ and explain in writing if:
- the judicial mandate cannot be performed, e.g the Vietnamese court cannot summon the
witness;
- the time limit to perform the judicial mandate has expired when compared to the request of the
U.S court; or
- the judicial mandate requires further information or documents.
In such cases, MOJ will notify the U.S court.
If enforcement of a U.S judgment in Vietnam is foreseen, taking depositions of a willing witness, without the process of letters rogatory, should be conducted prudently. For your reference, the act of taking testimony of a witness by a Vietnamese court is stipulated in Articles 98.2 and 99 of Vietnam Civil Proceedings Code No. 92/2015/QH13 dated November 25, 2015: “A witness shall him/herself read, or listen to the reading of, the record of his/her testimony, and sign or make a fingerprint [on the record]. The witness shall be entitled to request any amendments or additions to be included in the record of the testimony, and sign or make a fingerprint [on the amended record] for confirmation. The record must be signed by the witness and the person taking the record, and affixed with the seal of the court; where the record is made in multiple pages, each page shall be initiated by such persons and affixed with the seal of the court in all margin of pages. Where the record of the testimony is made outside the head office of the court, the attendance of a person who witnesses the testimony is required at depositions or the record must be certified by the People’s Committee of the province or by the police office of the ward/commune/township or by an agency/organization in which the record has been made.”
[1] A citizen of Vietnam is a person with Vietnamese nationality.
[2] The right to access information is recognized in the International Covenant on Civil and Political Rights (“ICCPR”) to which Vietnam acceded on December 24, 1982. Article 19.2 of the ICCPR says that “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”
[3] Article 21.2 of the Constitution: “Everyone has the right to privacy of correspondence, telephone conversations, telegrams and other forms of private communication. No one may illegally break into, control or seize another’s correspondence, telephone conversations, telegrams or other forms of private communication.”
Article 38.3 of the Civil Code: “The safety of mails, telephones, telegrams, other forms of electronic information of an individual shall be ensured and kept confidential.
The opening, control and keeping of mails, telephones, telegrams, other forms of electronic information of an individual may only be conducted in cases provided by law”.
[4] An application for a civil judicial mandate, including letters rogatory, is set out in Articles 11 and 12 of Law on Legal Assistance, and Articles 18 of Joint-Circular No. 12/2016/TTLT-BTP-BNG-TANDTC dated October 19, 2016 of the Ministry of Justice, the Ministry of Foreign Affairs and the Supreme People’s Court on Procedures for Mutual Legal Assistance in Civil Matters.
[5] Article 8.4 of Law on Legal Assistance.
[6] The right not to be arrested, detained, held in custody or investigated, prosecuted or tried is terminated if he does not leave Vietnam within 15 days after receipt of written notice on his unnecessary presence in Vietnam issued by the Vietnam court.
For further information, please contact:
Dao Hong Diu, Russin & Vecchi
DHDiu@russinvecchi.com.vn
