1. Issues

On March 30, 2020, the Council of Judges of the Supreme People’s Court (“SPC”) issued Official Letter No.45/TANDTC-PC (“OL45”) concerning the trial of crimes related to the COVID-19 prevention and control period (“CPC”), which provides specific guidance on the identification of crimes related to CPC in accordance with the Criminal Code 2015 (“Criminal Code”).

Patients 17 and Patient 34 who had both been confirmed having SARS-CoV-2 (COVID-19) infections in Vietnam recently are two controversial cases resulting in a much debated topic with respect to the imposition of criminal liability. These cases both have shown illustrative of violations related to the crime of “spreading infectious diseases to humans”, but present different characteristics in the illegal acts violated.

Thus, the issue is whether these two cases have enough elements to constitute a crime? If so, which penalties may be imposed on Patients 17 and 34 pursuant to criminal law?

  1. Relevant law and regulations

The crime of “spreading infectious diseases to humans” is stipulated in Article 240 of the Criminal Code:

1. A person who commits any of the following acts that spread dangerous infectious diseases to humans shall be liable to a fine of between VND 50,000,000 to VND 200,000,000 or face a penalty of 01 – 05 years’ imprisonment:

… c) Other acts that spread dangerous infectious diseases to humans.”

Accordingly, OL 45 of the SPC provides specific guidance in order to identify the crime of “spreading infectious diseases to humans”:

1. A person who has been informed of an illness, suspected of being infected or returned from an infected area of ​​COVID-19 which has been quarantined, committing one of the following acts causing the spreading of COVID-19 to others shall be arrested for the crime of “spreading dangerous infectious diseases to humans” according to Article 240, Clause 1(c) of Criminal Code:

  • Escaping from a quarantine place;
  • Not complying with the quarantine regulations;
  • Refusing and evading the application of quarantine measures;
  • Not performing medical declarations, or performing them insufficiently or fraudulently.”

Thus, the criminal elements of the crime of “spreading infectious diseases to humans” in accordance with Criminal Code and OL 45 consist of:

i. Subject of the crime is the person who

  • has been informed of an illness; or
  • suspected of being infected; or
  • returned from an infected area of COVID-19 which has been quarantined.

ii. Objective acts of the crime include:

  • escaping from a quarantine place; or
  • not complying with the quarantine regulations; or
  • refusing and evading the application of quarantine measures; or
  • not performing medical declarations, or performing them insufficiently or fraudulently.

However, it should be noted that the objective acts of the crime include, but are not limited to, the above four types of acts as instructed in OL 45. The objective act of this crime is like any other acts which lead to the consequence of spreading the disease under the Article 240, Clause 1, Point c of the Criminal Code.

iii. The consequence: is spreading the disease to others. This means that other individuals are infected by the disease, or in other words, they are confirmed to have a SARS-CoV-2 infection due to the objective acts by the subject person.

  1. Case analysis and legal application

3.1. Patient 17 case

– According to the Ministry of Health’s website, before returning to Vietnam on March 2, 2020, Patient 17 entered London (England) on February 15, flew to Milan (Lombardy, Italy) on February 18, returned to London (England) on February 20, then went to Paris (France) on February 25,  for travelling for a day and then returned to England.

(i) Determination of the Subject:

– In order to determine the status of the subject, it is necessary to consider whether Patient 17 is a person who returned from an infected area of COVID-19.

– According to Official Letter No. 991/BYT-DP dated February 29, 2020 of the Ministry of Health (“Official Letter 991”), it has required the local authorities are required to implement medical declarations and quarantine measures for people arriving from epidemic areas in Italy. In particular, Italy had 889 COVID-19 cases as of February 29, 2020. At the time when Patient 17 stayed in Milan, however, Lombardy (Italy) had not been informed of any COVID-19 cases. Therefore, basing on the guidance of the Ministry of Health at that time, it was not possible to identify that Patient 17 was the person who had returned from an COVID-19 epidemic area in Italy.

(ii) Determination of objective acts:

– According to Official Letter 991, it has required all people arriving from epidemic countries, including Italy, were required to perform medical declarations and medical quarantine at the border gate. On March 2, 2020, however, when completing entry procedures at Noi Bai border gate, Patient 17 did not proactively make medical declaration and used a Vietnamese passport (without the entry’s verification of Italy entry) to enter into Vietnam.

– Previously, Patient 17 had symptoms of coughing on February 29, until March 1, 2020, when she had further had symptoms of fatigue, tiredness without fever. However, at the time of entry into Vietnam, Patient 17 did not declare her health status to the competent authority to be supervised and tested.

– From the above analysis, her act of not actively making a medical declaration at the border gate, i.e. declaration of her entry into Italy, may be considered as an act of not making medical declarations and evading health information. This is subject to one of the four types of acts of violation pursuant to the guidance of Official Letter 45 above.

(iii) Determination of the Consequence:

– With regards to the situation of COVID-19 cases in Vietnam, there were three03 cases of SARS-CoV-2 infection due to Patient 17, including one01 driver, one01 family member and one01 person on the same flight. Moreover, the failure to make a medical declaration for being timely isolated meant that of Patient 17 had caused Truc Bach Ward area (Ba Dinh District, Hanoi) to be quarantined for 14 days, Thus, affecting residential activities and economic activities in this area.  It is essential to determine the consequences and assess the level of spreading disease to others due to Patient 17’s violation for the purpose of identifying the crime of “spreading infectious diseases to humans” as prescribed by Article 240, Clause 1, Point c of the Criminal Code.

A number of elements have not been clarified to identify the crime in Patient 17 case. In particular the definition of relevant phrases and technical terms. Therefore, it is necessary to have further guiding regulations, and more specific definitions as a basis to clearly identify the crime, e.g. how to determine an inspected foreign area for the COVID-19 epidemic, etc.

In addition, the consideration of the “guilt” element in this case is only to determine the penalty level if criminal liability is imposed. In fact, Patient 17 was aware of her ability to be inspected, so she was isolated herself at home and actively went to Hong Ngoc Hospital for medical examination, but did not make a declaration to the competent authorities.  However, this is not a certain basis to ascertain whether this is an indirect intentional guilt, or just an unintentional guilt, due to her subjective awareness.

3.2. Patient 34 case

– According to the website of the Ministry of Health, Patient 34 was confirmed to have been infected by SARS-CoV-2 infection on March 10, 2020 and was treated at Binh Thuan General Hospital. With regards to the situation of COVID-19 cases in Vietnam, there were more 10 more cases of COVID-19 infection deriving from Patient 34. During the declaration process, Patient 34 continuously provided insufficient information regarding her travel itinerary, the number of people contacted, etc.

(i) Determination of the Subject:

– As stated above, Patient 34 was confirmed to have a SARS-CoV-2 infection on March 10. Thus, it is clear that Patient 34 was infected by disease and isolated in a medical facility and is the subject of crime.

(ii) Determination of the Objective acts:

– During the process of the competent authorities’ making travel itinerary and the list of people contacted with Patient 34, Patient 34 first declared that she only contacted with 17 people. However, Patient 34 then changed the number of contacted people to that was 21, 31, 46 … when the local authority determined how complicated her travel itinerary was and further investigated.

– Clearly, this was an act of making an insufficient and dishonest medical declaration at the time when Patient 34 was confirmed to have a SARS-CoV-2 infection. Patient 34’s act was subject to one of four violations listed above in OL 45.

(iii) Determination of the Consequence:

While the consequences of Patient 34’s acts are even more serious than Patient 17’s case when spreading disease for 10 more other individuals. In addition, due to the dishonest, incomplete medical declaration of Patient 34, it was difficult for the competent authorities to determine the supervision and isolation list.

(iv) In consideration of guilt:

It may be found that Patient 34’s continuously dishonest, incomplete declaration showed her intention with clear awareness. This intentional violation by Patient 34 made it difficult for the competent authorities to prevent COVID-19 infection, resulting in the spreading diseases to many others. This is an element that should be considered to be a penalty level when the crime has been identified.

From the above analysis, it could be determined that the case of Patient 34 has all the elements constituting the crime of “spreading infectious diseases to humans” under Article 240 of the Criminal Code. In addition, based on the severity of the consequences caused by the violation of Patient 34, she must be charged with strict criminal liability according to the basic penalty framework, namely, a fine of between VND 50,000,000 to VND 200,000,000, or imprisonment from 01 year to 05 years.

  1. Conclusion

In conclusion, in order to identify the crimes related to CPC, OL 45 was issued to implement the policy of charging the offenders who affected the disease prevention and control of our society, and to also promote the education of community consciousness.

However, there are still certain cases where specific regulations or definitions have been unavailable or unclear. Therefore, it is necessary to have further documents issued by the relevant authorities to guide in more detail the violations, the penalty level corresponding to the consequence level, etc., as well as to ensure uniformity, efficiency in crimes and criminal liability identification.

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This LBN newsletter are NOT legal advice. Readers are advised to retain a qualified lawyer, should they wish to seek legal advice. VCI Legal are certainly among those and happy to be retained, yet VCI Legal is not to be hold responsible should any reader choose to interpret/apply the regulations after reading this LBN without engaging a qualified lawyer.