Joint Swedish-Vietnamese
Master’s Programme
MASTER’S THESIS
PHAN THI THANH TAM
EXTENDING AND GUARANTEEING THE
RIGHTS OF THE JUVENILE ARRESTEE OR
ACCUSED UNDER THE VIETNAM CRIMINAL
PROCEDURE CODE 2003 AFTER VIETNAM’S
ADHESION TO THE CONVETION ON THE
RIGHTS OF THE CHILD
MASTER’S THESIS IN LAW
Supervisors:
Assoc.Pro.Dr. NGUYỄN THÁI PHÚC
and Prof. Dr. PER OLE TRASKMAN
HO CHI MINH CITY, 2009
Preface and Acknowledgements
First of all, I would like to oblige Associative Prof. Dr. Nguyễn Thái Phúc and Prof.
Dr. Per Ole Traskman for being my supervisors who have spent time guiding me
through this study with constructive comments and advices.
Secondly, I would like to extend my great thanks to Prof. Dr. Mai Hồng Quỳ and Prof. Dr.
Berglundell, the SIDA Program Directors, and the professors of both universities who
have helped me during my study in the Joint Swedish-Vietnamese Master
Programme.
Thirdly, I would also like to express my deep thanks to HCM University of Law and Lund
University, the two best law schools I have opportunities to attend for broadening my
knowledge, and opening up a new bright future. And I would like to thank my fellowworker who have shared weal and woe in my study.
I would also like to thank Mr. Philip Horowits who has been devoted language check
helping me.
Fourthly, I would also like to thank Dr. Christoffer Wong who have provided the
document sources for my thesis.
Last but not least, I would also like to send my special gratitude to my parents, my late
father Mr. Phan Đức Toản and Mrs. Đào Thị Tùng who have raised me up to become
educated person despite so much difficulties and all of my brothers and sisters who
have given me a lot of supports, and I am indebted to my husband Mr. Giang Thái
Lâm and my son Giang Phan Hoàng Minh who were a great encouragement to me
during the in time my studies.
HCMC, Februay 2009
Author
Phan Thị Thanh Tâm
2
Table of contents
Preface and Acknowledgements .................................................................................. 1
Table of contents .......................................................................................................... 3
Abbreviations ............................................................................................................... 5
Executive Summary ..................................................................................................... 5
Introduction .................................................................................................................. 6
1.
Fundamental issues on the rights of Guarantee of juvenile arrestees or
accused persons in Vietnam criminal procedure ........................................... 8
1.1
1.1.1
1.1.2
Rights and right Guarantee of juvenile arrestees or accused persons ........... 8
The juvenile arrestees or accused persons concept ................................... 8
The rights of juvenile arrestees or accused persons and their Guarantee 11
1.2
Human criminal policies of issues of rights and right guarantee of juvenile
arrestees or accused persons ........................................................................ 13
Current situation of the regulations on rights and right guarantee of the
juvenile arrestees or accused persons in Vietnam Criminal Procedual Code
...................................................................................................................... 15
Regulations on the rights of the juvenile arrestees or accused persons in
Vietnam Criminal procedure Code ......................................................... 15
Right guarantee of juvenile arrestees or accused persons in Vietnam
Criminal Procedure and its reality........................................................... 20
1.3
1.3.1
1.3.2
2.
International Convention of children’s rights and Vietnam’s obligations on
Convention observation in the Criminal Procedure after participation ....... 27
2.1
International Convention on children’s Rights and its main content in the
criminal procedure ....................................................................................... 27
International Convention on Children Right – the basis for children right
protection ................................................................................................. 27
Basic contents of the International Convention in the criminal procedure
................................................................................................................. 30
2.1.1
2.1.2
2.2
2.3
2.3.1
2.3.2
International experiences on obeying the Convention in the criminal
procedure...................................................................................................... 36
Vietnam’s obligation to obey International Convention on children right in
the Criminal procedure after being membership ......................................... 39
Being membership and implementing the international Treaty according
to Vietnam law. ....................................................................................... 39
Participation in the International Convention of Children’s rights and
some problems of Vietnam’s observation in the criminal procedure after
participation ............................................................................................. 42
3.
Comments .................................................................................................... 45
3.1
Extending and guaranteeing the rights of juvenile arrestees or accused
persons in Vietnam Criminal Procedure Code 2003 – current objective
requirement in Vietnam ............................................................................... 45
3
3.2
3.2.1
3.2.2
Some suggestions for extending and guaranteeing the rights of juvenile
arrestees or accused persons in Vietnam Criminal Procedure Code 2003... 47
Amendment, supplement clauses of the Code of criminal procedure ..... 47
Other suggestions .................................................................................... 48
Summary .................................................................................................................... 50
Table of Statutes and other Legal Instruments ........................................................... 52
4
Abbreviations
J
CL
CPC
IA
PP
CP
PA
Juvenile
Criminal liability
Criminal procedure Code
Investigation agency
People’s proceracy
criminal procedure
Procedural Agency
CPA
UN
Committee of Public Accourt
United Nations
5
Executive Summary
Human rights are a key element in the relationship between an individual and society
or the State. The guarantee of human rights is one of the most important
responsibilities of a democratic State. Human rights need the protection of the state
as much as do any other citizen rights or lawful benefits granted to citizens. To see if
human rights are truly guaranteed, we should look at the collective measures applied
by the State to their protection. This thesis just concentrates on the legal measures
applied within criminal procedure to guarantee the rights of those subject to such
procedure. In particular, in Vietnam, the numbers of juveniles accused of committing
crimes and violations of the rights of the accused juveniles during criminal
proceedings are both increasing dramatically; we see violations during arrest, lack of
legal counsel and wrongful detention and investigation. These violations would harm
the human rights of any accused person, but accused because the juvenile juveniles
suffer more as they are not physically and mentally developed enough to be able to
defend themselves in criminal proceedings. Therefore, it is necessary to study the
guarantee of the human rights of juvenile arrestees or accused persons in Vietnamese
criminal proceedings under the 2003 Code, especially after Vietnam’s participation
adhesion to the international convention of children’s rights.
The thesis aims to study the rights of juvenile arrestees or accused persons and
how they are guaranteed by studying the International Convention on the rights of
the child in order to find out the shortcomings of Vietnamese criminal procedure law
on the matter especially after the adhesion to the International Convention on the
rights of the child. The methods used in the thesis are the analytical and comparative
methods. The thesis focuses on the following legal questions: (i) how to deal with
violations of the rights of juvenile arrestees or accused persons during criminal
proceedings under the Vietnamese Criminal Procedure Code 2003 ; (ii) how to apply
provisions of the International Convention on the rights of the child to amend
Vietnamese law on the matter. The thesis will focus on the actual application of the
guarantee of human rights. Throughout the thesis, suggestions for the application of a
guarantee of rights based on the International Convention on the rights of the child
will always be considered in the context of Vietnam
Introduction
Human rights are a key element in the relationship between an individual and society
or the State. The guarantee of human rights is one of the most important
responsibilities of a democratic State. However, in recent years, in Vietnam, more
and more juveniles are being accused of committing crimes and there are also more
violations of the rights of such accused juveniles during criminal proceedings
including violations during arrest, lack of legal counsel and wrongful detention and
investigation. These violations would have harmed the rights of any accused person,
but they are especially harmful to juvenile arrestees or accused persons because
juveniles are not physically and mentally developed enough to be able todefend
themselves in criminal proceedings. Youth is a short but important period of human
development and it is the transitional stage from childhood, when the individual
needs to receive care and education to adulthood when he is responsible for his
behavior before law and society; youths also need some protection. Vietnam’s law of
criminal procedure has an independent chapter prescribing specific criminal
procedures for child criminals, ensuring their rights at all stages of the prosecution.
Such procedures, however, shows some shortcomings when they are put into
practice. As a result, trials in such cases has unsatisfactory outcomes, harming the
child offender’s legitimate rights and interests.
For the above reasons, it is helpful to study the guarantees of the rights of juvenile
arrestees or accused persons under the criminal procedure of Vietnam and the
International Convention on the rights of the child. We will then seek to find out the
causes of any violations and suggest improvements and extensions of the guaranteed
rights of such juveniles with respect to both legal and practical measures. The author
decided to choose the topic: “Extending and guaranteeing the rights of the juvenile
arrestee or accused under the Vietnam criminal procedure code 2003 after Vietnam’s
adhesion to the international convention of children’s rights”.
Together with the study about Convention on the Rights of the Child and the Code
of Criminal Procedure 2003, which stipulated the rights of the juvenile arrestees or
accused persons, the material resource supported for the studying procedure
including: Vietnam legal documents which related to human rights, documents on
websites, law magazines, the Government and Law magazine, the Magazine of
People’s Court, The population and development magazine, Legal Science magazine,
the law and democracy magazine; all of these magazines are use to help clarify the
commitment for the rights of accused, arrestee who are juveniles. This composition
also studies deeply the real activities of procedural process of the procedural offices
in the treatment process to the juvenile arrestees or accused persons.Based on this
foundation, the author has used the competitive method the interrelation between the
6
stipulations of Convention on the Rights of the Child and The Code of Criminal
Procedure 2003 in order to find out the restriction of The Code of Criminal
Procedure 2003 and the real application of procedural offices and based on that
restriction to propose suggestions to expand and ensure the rights of juvenile
arrestees or accused persons
The thesis is built on my studies, with no overlapping of any previous research.
The author’s aims at uncovering shortcomings in Vietnam’s Code of Criminal
Procedures and in the law enforcement as applied to juvenile arrestees or accused
persons by studying how the code of criminal procedures in Vietnam ensures the
rights of juvenile arrestees or accused persons with particular reference toVietnam’s
obligations under the international Convention on the Rights of the Child. Some
proposals will be made to extend and guarantee the rights of juvenile arrestees or
accused persons in Vietnam.
The study is divided into three sections, excluding the introduction, conclusion,
appendix and references. Section 1: Fundamental issues on the rights and of juvenile
arrestees or accused persons in Vietnamese criminal procedure; Section 2:
International Convention of children’s rights and Vietnam’s obligations under it;
Section 3: Some suggestions.
7
1.
Fundamental issues on the rights of Guarantee
of juvenile arrestees or accused persons in
Vietnam criminal procedure
1.1
Rights and right Guarantee of juvenile arrestees or
accused persons
1.1.1
The juvenile arrestees or accused persons concept
Before studying the concept of juvenile arrestees or accused persons, we must
understand who juveniles are, and how they differ from adults. Juveniles are those
who have not yet completed their physical and personality development, but still
have all the rights and obligations of a citizen. Each nation’s Law prescribes
specifies its own age range for juveniles.
The Article 1 of The International Convention on the rights of the child1 says:
“For the purposes of the present Convention, a child means every human being
below the age of eighteen years unless under the law applicable to the child, majority
is attained earlier”.
According to Rule 2(2) (a) of the Beijing Rules, "a juvenile is a child or young
person who under the respective legal system may be dealt with for an offence in a
manner which is different for an adult". This definition allows a national system to
define who should be considered to be a juvenile. However, the later United Nations
Rules for the Protection of Juveniles Deprived of their Liberty addresses this
anomaly by defining a juvenile as every person under the age of 18 years. The
United Nations Convention on the Rights of the Child (hereafter “the CRC”) is
applicable to all children under the age of 18 years. The Convention's juvenile justice
rules apply to all persons below this age, regardless of whether national criminal law
treats younger persons as if they were adults. For those states who are party to the
CRC, the principal definitional limitation of the Beijing Rules is overcome and the
concepts of juvenility and childhood under 18 are linked.
The United Nations Guidelines for the Prevention of Juvenile Delinquency/the
Riyadh Guidelines2 and the United Nations minimum rules approved on February 2,
1990, all define Juveniles as persons under eighteen.
The juvenile concepts are prescribed in Vietnam legal documents as follows:
1
The International Convention on the rights of the child passed by the General Assembly of
the United Nations
2
United Nations General Assembly resolution 112, 14.12., A/RES/45/112.
8
Article 119 in The Labour Code3 prescribes: “Juvenile employees are under
eighteen year old employees”.
Article 20 in The Civil Code prescribes: “Juvenile are not yet eighteen years old,
Adults are eighteen and more than eighteen”.
The concept of a juvenile is different to that of children. According to Article 1 in
the Protecting, Caring and Educating Children Law define: “Children as prescribed
in this Law are under sixteen year old Vietnamese citizens”.
The penal Code4 includes as juveniles those who are over fourteen but are not
over eighteen.
This concept is also mentioned in the Constitution of 19925, the Criminal
Procedure Code of 2003, the primary education compulsory Law of 1991, the
Administrative violation treatment Decree-Law of 2002 and in some other normative
documents, which all prescribe a juvenile age of under eighteen, which is quite in
accordance with The Convention on the Rights of the Child in 1989.
The juvenile concept is built on physical and mental development and an
appropriate age range. Scientific data suggests Vietnam criminal Law prescribed
criminal liability of juveniles from fourteen to eighteen because at that age they will
have experienced significant changes in their body, along with developmenst in
ability and intelligence. Their position in society, in school and at work all change,
which is the result of widening social relations, accumulating real-life experience,
and the influence of their intelectual development. In this period, they develop their
individual awareness, self-evaluation and judgment, societal ambition and their selfrespect. With all this, they have to bear the legal consequences of violating the laws
as prescribed by the law maker.
The concept can be taken as: Juveniles are those under eighteen, not yet
completely developed in mind or body and not yet having full adult capabilities.
In order to bring out the concept of the juvenile arrestee, we must begin with the
“arrestee” concept. According to Article 49.1 in the Criminal Procedure Law: “The
arrestee was introduced to criminal instance.”. However, according to Associate
Prof. Nguyen Thai Phuc’s points of view6, the terms of introduction of criminal
instance are ones which are not clear or obcure. It needs to define that the arrestee is
4
Resolution No. 32/1999/QH10 of December 21, 1999.
5
Constitution in 1992 adopted on April 15, 1992 by the Eighth National Assembly, and
amended by the National Assembly in December 2001
6
9
a person who has been introduced for criminal responsibility. In fact, an arrestee is
linked to criminal actions, as one held with a view to imposing criminal liability on
him or her. Bringing an action against a new arrestee is only the beginning of the
process. The arrestee then is involved in any investigation, the prosecuting process
and the court hearing.
This is an important issue of principle, Article 9 of the criminal procedural Law
stipulate: “Nobody is considered guilty and cannot be punished until the Court’s
judgment becomes effective”. The Procedural Agency is only permitted to conduct
procedural measures regarding the arrestee to determine the truth. Further, the
arrestee is granted procedural rights by Law which must be protected by the
Procedural Agency. The Article 49.1 definition does not contain all of the above
content. The Arrestee’s procedural status will come to an end when the investigating
agency suspends the investigation; the people’s procuracy suspends the case; the
Court suspends the case (in the preparation period); or court decision put the case to
trial.
According to Associate Prof. Dr. Nguyen Thai Phuc - the first definition may be
the more accurate one. We can all agree that an, arrestee has specific signs: 1. he is
accused by PCA of having certain links to a criminal event; 2. a document indicates
the decision to arrest him under legal procedures.; 3. he can be subject to prevention
measures in accordance with the law.
Besides those general concepts of arrestees and accused juvenile, only a
difference of age only
In legal science, we have the term “criminal juvenile”. This term was official used
in the Criminal Law of 1999. Le Cam -Scientific Doctor and Nguyen Thi Phuong
M.A7 think that the criminal juvenile concept stipulated in Criminal Law aimed at
identifying criminal acts caused by juveniles, facilitating the application of
appropriate punishment to juveniles, based on their development level at the time of
committing a crime.
For that reason, authors give the definition:” criminal juvenile is a person aged
between fourteen and eighteen, with psychophysiological limitations, who
committed (intentionallyor unintentionally) dangerous actions forbidden by Criminal
Law.”
The term “criminal juvenile” is thus a term used by the Criminal Law. So it
should not be used in CP because of the presumption of innocence , one of the basic
rprinciples of CP. CP is just a process which indicates a link between an individual
Le Cam and Do Thi Phuong, “The criminal judicial with juvenile”, People’s court magazine
(No.20), page 6-10
7
10
and a potentially criminal action but the arrestee will not be crime until the Court
judges him to be so.
From this we see that the term “criminal juvenile” refers to a juvenile who has
been found guilty of a crime and been sentenced. When under arrest, whether
arrestee or accused, he is not a criminal. So, it is not reasonable to use this term at the
prior stage. In Vietnam, CP is divided into different procedural periods which impose
their own name on an individual (arrestee, accused, convicted person). The sign
showing he is juvenile is only an addition to the sign of his procedural position.
However, there is a certain relation between the concepts “criminal juvenile” and
“juvenile arrestee”. A criminal juvenile must have been a juvenile arrestee in a
concrete case. But not all juvenile arrestees become criminal juveniles.
In conclusion, the definition of the term juvenile arrestee can be understood to be
a person aged between fourteen and eighteen at the time he is linked to a crime.
There must be evidence indicating he did indeed do the criminal act as prescribed in
CP Law.
Both arrestees and accused are subject to the presumption of innocence priciple.
So, what is the definition of accused? Article 50 of Vietnam CP Code indicates that:
“accused is one before a judge in the Court”. the accused may have done one or more
actions considered as a crime and is prosecuted for it by the Procuracy. The accused
definition is a function of CP only. The accused takes part in the procedure from the
time trial starts and until the Court’s decision is made. As with the arrestee
definition, “accused” is a formal definition based on procedural status. A person
becomes an accused when he enters the Court, the accused is not similar to the
criminal. Only after being sentenced by the Court can he be classed as a criminal.
A juvenile arrestee is a person aged between fourteen and eighteen, linked to an
action considered to be a crime and eventually brought before the Court.
Vietnam Criminal procedure Code 2003, regulations age of the juvenile arrestee or
accused person and recognition of rights as well as their guaranteeing the
proceedings.
1.1.2
The rights of juvenile arrestees or accused persons and
their Guarantee
Human rights are the natural rights of human and can not legally be taken away by
anyone or any regime. “Natural rights are the rights of all humans living and are the
basis of human rights. Civil rights are rights of citizen in a specific nation recognized
and protected by the State, its contents and forms depend on the concrete conditions
11
of each nation”8. Thus, the relationship between human rights, civil rights and
guaranteeing human rights of the state is the foundation of guaranteeing human
rights in criminal proceedings.
In order to guarantee civil rights in general and the rights of a person taking part
in criminal procedure in particular, Resolution 08/Central goverment9 on January 02,
2002 clearly states that: “Judicial mission must prevent effectively and treat national
security infiltrating crimes, corrupt criminals and organized criminals in a timely
and, strict manner; protect order and laws; and guarantee and respect the democratic
rights and legal benefits of citizens.”
In CPC, the rights of juvenile arrestees and accused persons are basic essential
rights recognized by the Criminal Procedure Code. Now the State’s coercive power
with respect to CP is greater than that relating to other procedural norms which limit
rights and obligations of citizen. In order to guarantee the rights of juvenile arrestees
or accused persons, we must ensure that investigating procedural persons follow
what is stipulated in the Law. Only by proper implementing procedural law can we
guarantee the rights of juvenile arrestees or accused persons and limit violations of
CP. At the same time, procedural persons working on the case have their rights. This
all stems from a power of the State implemented by competent agency; following
criminal processes connect is linked to criminal law and its application; and it
consists of the investigating, prosecuting and judging process in each of which the
rights of juvenile arrestees or accused persons are to be protected. However, any
breach of a person’s rights in CP tends to be at a higher level than civil rights
violations in other areas. Only by using strict measures can the rights of juvenile
arrestee be protected strictly without infringements. So, the rights of juvenile
arrestees or accused persons must be stipulated by law firstly, and then guaranteed in
the process of following out a criminal case.
All violative behaviour must be investigated, and treated promptly without
leaving any adverse impact on innocent people. It should also be the case that the
investigation and judgement proceed objectively, efficiently, exactly and
TS Nguyễn Thái Phúc, “Thực tiễn bảo đảm quyền con người trong tố tụng hình sự Việt
Nam”, (“The realities of gurantee human rights in Vietnam Criminal procedure’, Dr. Nguyễn
Thái Phúc), Tạp chí KHPL số 3 (34)/2006, available at:
8
http://lawvietnam.com.vn/index.php?option=com_content&task=view&id=640&Itemid=89&l
ang=vi
9
Resolution No. 08 of the Political Bureau on "Some focus tasks on the judiciary in the
coming period”
12
comprehensively. Handling a criminal matter must be in accordance with legal
stipulations10.
In term of CP, the protection of human rights is related to International
Conventions that Vietnam adheres to. These rights are tied to rights in the
constitution, the criminal procedure Code, civil procedure and the criminal
organizing act of 2004.
On the basis of the study of juvenile arrestees and accused persons, concept
ouaranteeing their rights is understood as making sure all actions, investigations and
prosecutions act objectively and comprehensively, without leaving any adverse
unlawful impact on innocent people.
1.2
Human criminal policies of issues of rights and right
guarantee of juvenile arrestees or accused persons
Party and State of Vietnam views to children: In addition to the guiding thoughts,
the principle points to handle the juvenile arrestees or accused persons, according to
the present popular views, the contents of criminal policy relates to two respects:
content of criminal law and crimal procedural law. Points of criminal procedural
law11. However, to accept a juvenile as a juvenile arrestee or accused person, it must
have an account of conviction which comes into effect by the court. But judgments
of the Court is the result of the entire proceedings of the criminal procedures in the
investigation, prosecution, and adjudication juvenile person. These activities directly
related to the rights and interests of the juvenile arrestees or accused persons in the
case and estimate the objective, the truth of judgments.
Therefore, CP also have the second content that is principles, dicrective
guidancing thoughts, the process of investigation, prosecution, and trial of juvenile
areestees or accused persons. This presents in chapter XXXII of the CPC – the
chapter stipulates criminal procedure supplemented ande applied to this object.
However, based on the regulations for juvenile areestees or accused persons in
chapter X of the Penal Code-1999, we can understand the term “policy” juvenile
arrestees or accused persons is: Combination of regulations recognised shows the
huminatarian of the state in protecting rights and legal interests of the juvenile
arrestees or accused persons, towards the extention and reduction of crime in
comparson with adults.
Tran Thao MA, “Guarantee citizen rights of participator in criminal case an investigate
according the spirit reform judicial” Journal the law and democracy
10
11
Tran Quang Vinh, (Ho Chi Ming city University of law) Master’ law syllabus, 2006, pp 5-6
13
Derived from the theoretical basis of the CP recorded in the Convention on the
Rights of the Child in 1989 that: “by reason of his physical and mental immaturity,
needs special safeguards and care, including appropriate legal protection, before as
well as after birth”, At the same time, The Constitution of Vietnam in 1992 stipulates
at Article 71: "Citizens have the right to inviolate the body, protected by law on their
health, honor and dignity ". The Penal Code currently construct a separate chapter of
the ways to handle juvenile offenders. This regulation system based on the analysis
of the mind, with physical juvenile. This object is not fully developed physically and
intellectually, they limit the level of awareness as well as life experience, lack of
conditions of independence, low level of self-control ability and they should easily
be offensive, vulnerable to engaging in the adventure and risk activities. Therefore,
the criminal law of Vietnam has set its own guidelines when handling offenses by
juveniles. Regulations on the procedure for dealing with juvenile arrestees have
differences compared to criminal proceedings applied to minors who commit
offenses. Criminal policy of the State of Vietnam for the access of criminal
responsibility of the juvenile is to help, improve and educate the juvenile to
recognize that mistakes from which they correct their mistakes, enabling them to be
able to re-integrate into life. For this reason the law of criminal procedure in Vietnam
has provisions on the procedure for juvenile individuals when they are juvenile
arrestees or accused persons criminal cases. In Vietnam Penal Code provisions on
criminal policy for juvenile offenders stipulates in Article 69, the criminal policy for
juvenile in CP is shown in Chapter XXXII – criminal proceedings for juveniles
committing crime the Criminal Procedure Code 2003. Penal Code has defined
guidelines for handling violated juveniles, but do not give guidelines for handling
juvenile arrestees or accused person. Criminal Policy for juvenile in criminal respect
mainly related to capacity subject to criminal responsibily. The purpose is to apply
criminal responsibility to education, help them to correct the wrong, healthily
devepo and become good citizens, useful to society, not heavy on punishment “The
handling of juvenile offenders aims mainly to educate and help them redress their
wrongs, develop healthily and become citizens useful to society” In the process and
application of criminal measures for juvenile offenders, those conducting the
proceedings must considered carefully to ensure that the educational objectives,
contort, and deter the wrong behaviour, making them see the wrong and volunteer to
correct with the help of family, school and society. This principle requires that
persons conducting the proceedings in criminal cases the accused is a juvenile must
see that the criminal process is for the healthy development of the juvenile and the
level of process must ensure the healthy development of that people. This shows
clearly in the regulations articles from the 69 to 77 of the Penal Code in 1999.
14
Criminal policies in criminal procedure to juveniles arrestees or accused persons are
main regulations to best guarantee their right to defend, maximized application of
forcing measures, lowest inevitable impact in the juvenile arrestees’ psychology
given by criminal procedure, also providing conditions to clarify causes and
conditions committing crime so that the judge can make a trial and decide a sentence
effective to the psychology of this object. Hence, over all of the activities of
investigation, prosecution, and judgement to juvenile arrestees or accused persons,
procedural agencies must objectively review comprehensively and fully factors
relative to their violatable behaviour such as: ability to recognise a danger to society
of violating act, causes and conditions for committing crime.
In general, the criminal policy of the State of Vietnam has been penetrative with
humanitarian spirit in respect of important role of education, help juvenile arrestees
or accused persons and protect their rights and interests. The law has stipulated
progress, coverage of the investigation, prosecution, adjudication and enforcement of
the sentence including application of preventive measures. It is advisable to apply
broadly to reduce criminal responsibility, free of penalty to juveniles; limitations of
being brought to trial and limiting the application of penalties, banning life term
imprisonment and death penalty for them.
In summary, the provisions of the Vietnam Penal Code and the Vietnam Criminal
Procedure show that the policy of the law of the State of Vietnam for the juvenile
arrestees or accused persons reflects the definitive humanitarian, the regulations
protect the the rights and best interests of them, on the level of criminal responsibility
of accused minors more alleviated than that applied to the accused adults.
Thus, the provisions in the Penal Code and the criminal procedure Code of Viet Nam
not only are consistent with the system of legal documents, but also with in the
international documents that the State of Vietnam has joined to sign, creating a
corridor of safety measures to protect juvenile in the case they are the offenders.
1.3
Current situation of the regulations on rights and
right guarantee of the juvenile arrestees or accused
persons in Vietnam Criminal Procedual Code
1.3.1
Regulations on the rights of the juvenile arrestees or
accused persons in Vietnam Criminal procedure Code
Based on the participation in the Convention on the Rights of Child, the Government
of Vietnam has many efforts in establishing and improving the law in general, CPC
in particular, especially the record of the proceeding right of juvenile arrestees or
accused persons. Rights of arrestees and accused in general is stipulated in Article
15
49 and 50, also the right of juvenile arrestees and accused persons is clearly
stipulated in chapter XXXII- Special Procedure.
According to articles 49 and 50 of CPC on arrestees or accused persons include:
- Right to have Procedual Agency explain right and their duty to them. Duty is
what these agencies ought to obey in accordance with the regulations of law, if
unobeying the law it will lead to unbenefitial consequence. For example, when
detained, the detained person must have the explaination of the implementation
agency about their rights and obligations, if not will be a serious breach of the right
to defend in person and the implementation of the accused can not be recognized as
legal.
- Thus, the investigation agency not only simply inform rights and obligations to
the accused but it also explain those clearly to the accused, to enable them to
understand and implement the rights and obligations well. Arrestees as well as the
accused has the right to explain rights and obligations. At the opening of the trial, the
chief judge must have the obligation to explain rights and obligations to the accused.
The accused must have known that during the trial they have the rights and
obligations so that can they perform as stipulated by law.
- The juvenile arrestees and accused persons have the right to give documents and
items required: The arrestee has the right to provide the objects and documents
related to the case. Investigating Agencies after receiving the documents, and items
can be provided to conduct the inspection and assessment in an objective way to
identify documents and objects which are evidence in the case or not.
The arrestees have the right to make request calling for assessment or additional
assessment, the request to reinvestigate, etc. The accused has the right to give
documents and objects, required at the trial. Often evidence at the trial is meant to
allegate the accused persons’s crime, to prove the facts of extenuation criminal
responsibility for the accused, so during the trial the hearing board must check, verify
and evaluatie things those document whether they are evidence in the case or not
and it has something valuable in identifying the facts of the case.
- Right to require a change in prosecutor, forensic official and interpreter
according to this law’s regulation.
When there are clearl bases of those conducting the proceedings, examiner,
interpreter work unobjectively and their conduction or participation in the
proceedings may make the case resolve unbenefit to the arrestee, the arrestee have
the right to change the person conducting the proceedings, assessment and
interpreter. The agency conducting the proceedings must consider and resolve the
request of the arrestee if the proposal is basic.
The accused are the object brought to trial, the object accused in criminal cases,
the trial affected directly to the rights and obligations of the accused, so if in the case
16
when the basis shows the participants in conducting the proceedings are not objective
in conducting their duties, the accused have the right to request changes.
- Right to self defence and ask reqothers to defend: As stipulated by law, the right
to defend is done right from the first stage of the process, in Clause 1 and 2 of Article
58 of the CPC, the defender join in the proceedings from the start when the arrestee
is prosecuted. The arrestee has the right to defend itself to protect their legal rights
and interests, the arrestee can use the grounds and evidence to remove offences. Also
arrestee is to defend the rights through other rights as the right to present a
declaration, given the right materials, objects, and make requests, etc
In the debate at the trial, the accused presented a excuse, if the accused person has
to defend the accused has the right to supplement their opinions. Maybe that
testimony represents the authority of the accused, that is one of the methods to make
the right to defend or methods set certify their innocence.
However, in the case of the juvenile arrestees or accused persons, the accused can
ask people to defend. In this case the investigation agency, the Procuracy or the
Court must request a mission to send a lawyer to defend for them, the accused and
their legal representatives have their right to request changes or reject the defender.
In Clause 1 Article 305 of the CPC provisions on the right to defend for the
juvenile arrestees or accused persons is : "Representatives of the people temporarily
held, the juvenile arrestees or accused persons can choose their own defender or
defend himself”
As stipulated in Clause 1 of Article 57, Clause 1, Article 305 of the CPC Vietnam
in 2003 and Resolution No. 03/2004,12 who defends for the accused or arrestees or
their legal representative is chosen by themselves. Thus, the juvenile arrestees or
accused persons and legal representatives have their choice of defender.
- The accused has the right to appeal the decision, the proceedings of the agency,
the authority conducting the proceedings: the arrestees may appeal the decisions and
acts of the proceedings of, an authory thereby the entities have jurisdiction.
Government required that the subjects mentioned above must comply with the law
while conducting the proceedings, should respect the rights and interests of the
arrestees.
The agency conducting the proceedings and the participants in conducting the
proceedings direct the court decision, so if in the case of acts of agencies and people
conducting the proceedings violated the rights of the accused, the accused has the
right to appeal the decision of the agency's authority, to guarantee the rights of the
accused in the process of participating in the proceedings.
Resolution No. 03/2004 on 20/10/2004 issued by Board of Judges, People’ s Supreme
Court guiding the implantation of a number of regulations in the first section of CP 2003
12
17
in addition to those general points, the arrestees or accused persons have separate
rights when participatin in stage of prosecuton:
Subject to clause 2 of Article 49 in Procedural Law of Vietnam, the arrestees
have the right to know if he/she is prosecuted with what the offense is: When there is
a criminal procsecution, the arrestees must be aware of his/her crime they were
starting to. Authorities are obliged to provide the accused with the knowledge of how
or why they were started by the list of crimes which are stipulated in the Penal Code.
Only when they know that his/her crime is being accused they can give evidence, and
theories to reject those accusations. At the same time, the arrestees is given the
decision to prosecute , in case of change, and supplement to the decision, the accused
must also that announcement.
Right to express testimony: The minutes of the testimony presented is not the
obligations of the arrestees but it is their right. Therefore, they have the right to
present or not present. If in case they refuse or do not report the false report, they will
not be responsible for that behavior. Conversely, attitudes of emergency declared by
them is considered to be facts of extenuation of criminal responsibility according to
mark (p) Clause 1 of Article 46 of the Penal Code in 1999.
The arrestees received the initial decision, the decision to apply, change or cancel
preventive measures; the conclusion of the investigation, the decision to suspend,
temporarily suspend the investigation, the decision to suspend, temporarily suspend
the project; and prosecution decisions, decisions on proceedings under other
provisions of this law.
Arrestees have the right to receive the decisions on proceedings relating to his/her
rights and obligations. This decision aims to facilitate for the arrestees to make well
right to defend as well as the rights and obligations of their proceedings, and requires
agencies conducting the proceedings to resolve the case in accordance with
procedures law.
At the same time, the accused has the right to receive decision on the trial of the
case, decision to apply, change of cancel preventive measures, decision on suspend
of the case, sentence, decision of the court; and other decisions on proceedings as
stipulated by Clause 2, Article 50 of CPC.
Upon receipt of a decision on bringing the case to trial, based on the content of the
decision, the accused know the list of crimes they were brought to trial, time, place
open to the trial hearing or public hearing closed, names of participants in conducting
the proceedings, physical evidence consider at the trial. Since then, they can
implement their rights as the right to participate in the trial, the proposed change in
conduct or participate in the proceedings, the right to consider additional physical
evidence and especially the right to defend.
18
Decision on the case to trial must be provided to the accused at least ten days prior
to the trial13. Besides the accused have the right to receive the decision to apply,
change or cancel prevention measures; decision to suspend the case and the court, the
decision of the Court; decisions other proceedings relating to rights and obligations
of the accused.
- Right to participate in the trial: In order to facilitate the implementation of the
right of the accused and the right to defend and protect the rights and interests of the
accused, CPC stipulates the Court must guarantee equal rights before the Court by
accused, the accused has the right to equality with the police and the participants in
the proceedings in making evidence, objects, make requests and arguments of the
trial. Courts can only treat in the absence of the accused.
- Presented ideas, arguments at the trial: The accused has the right to make
comments, the argument for the answers and ideas with no uniformity of the other
subjects.
- Rights to last saying before deliberation: To facilitate to the accused the
opportunity to expressed attitudes and their aspirations before the hearing board’
announcement of the decision for the case, as stipulated by law , the accused have the
right to say the same before the court. The accused has the right to present all issues
related to the case, to their attitudes to the accusations. Say the last words to
accusations. Saying the last wordsof the accused sometimes is important for the case
when the accused made the important details related to the case, then the Trial Panel
must decide to return for questioning .
- Appeal judgments and decisions of the Courts: Appeal is against the judgments
and decisions of the court, ask for the hearing. The accused has the right to appeal
judgments and decisions suspension and temporary suspension of the case without
effecting law by a court. Under provisions of the CPC, if only the appeal of the
accused, without appeal or protest, the aggravation is the appellate court does not
have the right to edit the disadvantage for the accused . Government regulations will
enable the accused to secure the rights of their appeal.
The juvenile arrestees or accused persons have the full right mentioned above.
They used their proceedings to protect rights and their own legal. Guarantee the
implementation of their rights, Criminal Procedure Code of Vietnam has defined the
procedure especially in the XXXII the Criminal Procedure Code of Vietnam not only
the rights of the juvenile arrestees or accused persons, but also defined the measures
that guarantee the implementation.
13
Article 182(1) of the Criminal Procedure Code 2003.
19
In general, CPC 2003 has stipulated a specific right for the juvenile arrestees or
accused persons. However, when research in comparison with the Convention on the
Rights of the child, we find that the right has not been mentioned in the CPC in 2003,
such as sanctions to take freedom of the juvenile: juvenile not subject detained,
unless detained only be used as a last measure and within the shortest appropriate.
Because, before the situation juvenile offenders has a tendency to increase the
need is to require enhanced measures in the education at the community, the
regulations and application of sanctions as taking freedom, the isolation juvenile
from the community have created psychology of negative discrimination, increasing
the rate of recidivism.
- This means many do not comply with the UN children's rights (custodial
measures are applied last, in as short time as possible), especially with the Resolution
No. 49of Communist Party of Viet Nam on judicial reform policy with limited scope
of application of a penalty imposed on juvenile. The addition of provisions on the
rights of the juvenile arrestees or accused persons in the Criminal Procedure Code in
2003 is the basis to continue to improve the juvenile arrestee or accused persons in
the CPC in Vietnam, to conform with the Convention on rights of the child.
1.3.2
Right guarantee of juvenile arrestees or accused persons
in Vietnam Criminal Procedure and its reality
In Law of criminal proceedings of each country in the world has measures to
guarantee implementation of the proceedings by different ways and only the state
can ensure the implementation of that right. During the resolution of criminal cases,
the initial stage is the start of the case to investigation, prosecution, adjudication, the
rights guaranteed by the juvenile accused iare the condition important to guarantee
that the criminal procedure processse the most crime, and handle lawfully, not to
leave any culprit and do not treat unfairly innocent people.
According to law criminal procedure of Vietnam, measures to guarantee that the
rights of the juvenile arrestees or accused persons be made at Point b of Item 2 of
Article 57, Articles 58, 305, 306 307 CPC, 2003. Proceedings for criminal juveniles
as the procedures are necessary to the agency conducting the proceedings in
compliance with the investigation, prosecution, adjudication and enforcement of
court for the case with juvenile arrestees or accused persons.
Law of CP on child protection, by giving them the right to proceedings so that
children can guarantee their rights, and stipulated the terms of the specific standards
of conduct proceedings, on the subject proof, the conditions apply measures to
prevent, defend issue, the participation of families, schools and civil society in the
20
proceedings to ensure the investigation, prosecution, Judge hearing a criminal case is
objective, comprehensive and correct law14.
To guarantee that the investigation, hearing a case where the accused is the
juvenile arrestees or accused person be objective, accurate, thereby protecting their
rights and interests; education of juvenile so that they soon become useful citizens
for society, the Criminal Procedure Code 2003, reserves the Chapter XXXI
necessarily for regulations, the procedures for cases with juvenile arrestees or
accused person.
Juvenile arrestees or accused persons shall be entitled but not bound to prove the
innocence. Juvenile is guaranteed the right to defend.
To the process is guaranteed, based on the principles mentioned above, criminal law
has specified the standards of conduct proceedings in the case with juvenile arrestees
or accused persons.
- Guaranteeing the right to defend for juvenile arrestees or accused persons. CPP
in 2003 provided the juvenile arrestee or accused persons with the right to defend
and specified measures to guarantee the implementation of this to be feasible. "In
case the juvenile arrestees or accused persons or the legal representative is not their
choice the investigation agency, the Procuracy, the Court should request the lawyer
mission official and send a lawyer to defend for them or committee recommended
the Fatherland Front of Vietnam, member organization of the Front's election to
defend for their members”. In order to guarantee the juvenile arrestees or accused
persons interests the participation of the defender is compulsal to procedural agency.
Guarantee law or procedure particularly is to protect right and legal interest of the
subject of prosecution, guarantee the legal of measure of sanction, against arbitrary,
avoiding justice mistakes. Article 132 of Vitenam Constitution in 1992 stipulates: “
right to defend of the arrestees is guaranteed. The accused can self defend or request
others to defend for himself/herself”. Article 9 in law of the People’s Court
Organsation in 1992 also stipulates: “the court guarantees right to defend of the
accused, right of right protection and benefits of the accused”. This completely
complies with the trend of developed countries in the world. The content of the
principle is that most of the authors of Law curriculum of criminal procedure
published in Russia before and in Vietnam are uniformed with the following
contents:
Collection of rights of defence of persons temporily held, the accused; including
guarantee to implement those rights by procedural agency’s responsibily,
organisation of lawyers is established to support the object about their right and
interest and clearify circumstances determining crime, and those reducing criminal
14
Lê Thị Nga, (2007) “The children rights of the Law”, Journal Population and Development
21
responsibility15. Breaking principle guarantee right to defend of the juvenile arrestees
or accused persons is one of the bases to cancelthe sentence. In cases of juvenile the
participation of defender is obliged16.
Lawyer action is important and necessary institution in any law system, including
international law. However, in term of human being and organization, Vietnamese
lawyer has just begun industry in recent years. Voices of lawyer and active
evaluation to lawyer also have appeared trivially in newspaper and importance of
lawyer has not been high appreciated.
At the same time, in procedural action, especially in investigation period, priming
about what to say is also existed because participation of lawyer and control,
supervision affair are not good. Therefore, being signed in crime sheet is easy to
understand. It is necessary to have detail stipulation to guarantee the rights of giving
evidence and argument in front of Lawcourt.
Article 132 of the Constitution 1992 of Socialist Republic of Vietnam regulated:
“Defending rights of accused are sure. Accused can defend them or ask another
defend for them”. This is totally suitable for trend of advanced countries in the
world. Code of criminal procedure 2003 stipulates: Investigator, supervisor, judger,
trial secretary in juvenile arrestee or accused person related cases must be have basic
knowledge about psychology, education sciences as well as juvenile criminal
preventing activities17.
From this point of view, society and State through law maker expect that
procedural maker staff with psychology and physiology knowledge are easy to
understand children emotion and love them. Therefore, this staff can help improve
awareness of mistake, self-awareness to become good citizen.
- Article 10 of Code of Criminal Procedure stipulate: When verdict of law court
has not been effective, no one can be considered as criminal and incurred a
punishment. This is one of important article to ensure citizen and human being rights,
and considered a basic principle of code of criminal procedure.
Article 196 Code of Criminal Procedure also affirms that Lawcourt principle only
present its judgement function in prosecution limit of preoccupancy. Prosecution
limit under this law is considered as “binding ring” to judgement function of
Nguyễn Thái Phúc “Thực tiễn bảo đảm quyền con người trong tố tụng hình sự Việt Nam”
(Right guarantee of humanbeing rights in Code of Vietnamese criminal procedure in reality), in
Tạp chí khoa học pháp lý, (Journal Legal science),No.3(34)/2006.
15
MA. Le Thi Nga, Hue University of Science “Children rights in law” Population and
Development Maganize, 7/2007
16
17
Article 302 of Criminal Procedure Code.
22
Lawcourt, so Lawcourt is always Lawcourt. Lawcourt is agency that undertakes
judgement function, not accused accusation agency. Judgement limit is one of the
guarantees for defending rights of accused
The criminal procedures applied to the juvenile arrestees or accused persons show
that the full and accuracy awareness of these group’s features during judging process
in the current time in Vietnam. Executing the criminal procedure cases, therefore,
Criminal procedure authorities have applied these laws, regulations in the exact way
to every specific case. In proceedings, intervening parties or juvenile arrestees or
accused persons are always paid much attention in their defence rights and legal
benefits by their families, schools, and advocates. In the recent years, the case- rate
related to the juvenile arrestees or accused persons has increased. In fact, almost
judging tasks follow these criminal laws, and procedure codes to judge equally,
minimize mistakes and criminal omissions. All the cases were solved on time under
regulations, and the backlog cases were cut down. In processing, the invited prestige
Jurors such as teacher, Hồ Chí Minh communist youth’s member, are more
considered, so that, guarantee high quality for these cases, minimize the rate of
annulling verdicts, judgments, or decisions and blank criminals have decreased. Juror
of people must have experience in juvenile person educating affair (teacher, official
of Ho Chi Minh Communist Youth Union)18.
According to the tribunal statistics, up to now, there have not any juvenile accused
applied Supplementary punishments or endless imprisonments. In fact, the Court
only applied the imprisonment to the juvenile offender in the necessary cases with
the ineffectiveness of education and deterrence measures. About the terminable
imprisonment to this group, suspended sentence is always the best consideration.
They also applied one or two judicial punishments such as compulsory re-education
school or proving period.
The basic principle in this case to the juvenile arrestees or accused persons is to
mix between the punishment or judicial measure and education goal, support them
correct the mistakes to integrate to their society, and become a good citizen. It is
necessary for each case to cooperate the Court and their families, societies, schools to
select the reasonable education method.
In general, the criminal procedures to the juvenile arrestees or accused persons are
applied with more positive improvement, and follow the accuracy laws to protect
legal rights and benefits of the juvenile arrestees or accused persons.
In spite of the adequate stimulation of the criminal procedures in Criminal
Procedure Code (CPC) to the juvenile arrestees or accused persons, there still have
18
Article 307 of the Criminal Procedure Code.
23
several disadvantages left, which lead ill- quality as well as their right violation. The
disadvantages can be seen in detail problems as followings:
Firstly, In Vietnam, there are not any authorities specified in dealing with these
cases of juvenile implement. According to the Investigation Conducting Act in 2004,
investigation agency is divided into 3 levels: Investigative police Bureau,
Investigative police department and Investigative Group. Investigative agency at
certain level has responsibility of criminal investigation under the judgment
authorities of the same level-Court, accepting the criminals under the Supreme
People Court and investigative agency of Public Securitys authorities. There are in
each agency, only groups specifying under crimes, punishment frames under Code of
criminal procedure without any decision of investigating authorities under the subject
of action.
In conclusion, we have no any department specifying in investigating the cases to
the juvenile implement. Moreover, the investigators are not well equipped
knowledge about psychology, education science, as well as the prevention methods
or actions against the juvenile arrestees or accused persons. About the Public
accounts, there is not clear between the Committee of Public Account (CPA) and
Military one.
CPA consists of Supreme People court, People court at the Central directed
provinces, and ones at the provincial districts, communes. The Military Account also
divided into 3 levels: Central level, military zone or relevance and regional ones.
The Committee of Public Account prosecutes and checks the judicial actions under
regulation. About the structure, at each level, the specific departments are defined
under prosecuting fields and laws conducting-investigation of criminal investigating
agencies and appointing others. Like the investigative ones of Public security, the
committee of the public account leaves blank position specifying in prosecuting and
controlling the judicial actions from the juvenile implement.
About the judgment authorities, under regulation of People LawCourt in 2002,
the law court system includes: People courts and military ones. People Law court
(PLC) operates at 3 levels: Supreme Law court, Province under central, and the
provincial others at districts, communes. The military ones also divide into 3 levels
based on the administrative principal of military zones: Central military court
(structure of Supreme People Court), military ones at military zones and relevance,
and regional ones. Therefore, we lack of the Law court for the juvenile. Moreover,
the judiciary staffs with experience, psychological skills are still considered as a big
question. So, we only base on the illegal actions, their effects, and criminal levels,
during the judging time, but not the deep reasons, targets of crimes inside.
24
We can conclude that, nowadays, in Vietnam judicial agency, there still leaves a
blank department to the juvenile arrestees or accused persons, and lacks of attention
of training staff to meet the standards and knowledge acquired.
Secondly, under the regulation at Article 302.2, and Vietnam CPC: “It needs to
clarify that:
(a) Age, development level in mental, spirit, and awareness of their crimes;
(b) Living condition and education;
(c) The other encouraged adult;
(d) The criminal reason and context.
These are considered as the important bases to stipulate the Criminal liability to
the juvenile. But, in fact it would not be paid much attention. Investigative agencies,
in the investigating stage, only base on their declaration to realize their ages but not
the other legal documents such as birth certificate; which causes the accuracy
problems and applies the common procedures in stead of the special ones for the
juvenile. These may be impact on their legal right when taking procedure.
The lack of full investigation in living condition, education, reason seeking, or
criminal context, development level in mental, spirit, and awareness of their crimes is
also put in question during the stipulating process, the authorities only take care of
the certificate, crimes commitment or not but not deepen this problem. In fact, the
Criminal Liability to the CT under 18 must depend on the crimes, serious levels, and
impacts in society.
Thirdly, defence right is stipulated by constitution but it belongs to the requestapprove mechanism. Under regulation, accepting advocate for the arrestee persons is
the beginning prosecution; however, in fact, almost advocates only take part in later
stage. The main reason is that these important rights have not enough necessary
assurance, and face many obstacles from the procedure conducting agencies. One of
the reasons is Inaccurately considering advocate’s role and defence rights as
obstacles for investigative task. These agencies did not realize the important role of
advocate known as not only assurance for defence rights to protect the accused legal
benefits but also necessary opponents to discover, prevent the crimes by itself.
CPC also stipulates that the accused person have rights to not only talk but also
keep silence as well, especially in the negative cases, the accused can legally keep
silence until the advocate’s participation. In other words, the investigative authorities
need to notice for the accused about their silence rights and lawyers participation if
necessary. These not only reflect citizen respect attitude but minimize the situation in
which the accused has opponent declarations because of extorting depositions.
Vietnam had signed many International Conventions about human rights and CPC
would be in spirit that no one is criminal until judgment come into effect; however,
there is also the other spirit stated that no one withoutany legal support from their
25
private advocate lawyer is investigation, prosecution. This regulation is stipulated by
the constitution but it belongs to the request- approve mechanism. Under Article 57,
it is not clear about the invited lawyer’s knowledge leading the participation of the
trainee ones in several cases and lack of guarantee about the accuser’s legal benefits.
The lack of the clear explanation for the accused causes the situations in which
the accused has opponent declarations because of extorting depositions without
advocate’s participation. The guiding documents of CPC are not exact and adequate,
for example, under its regulation, investigative agencies have rights to refuse, but
what they refuse is not stipulated clearly enough.
Lawyer’s participation depends on the agreement of procedure conducting
agencies but they have no acknowledgement in document in advance about the
processing time. The number and quality of lawyers raise a big issue because of their
working spirit as well as responsibilities, especially in the cases applied the Article
57.2 of CPC. The co-operation between the procedure conducting agencies and
lawyers is in the opponent ways but the friendly equal ones, so that many obstacles
from them prevent the processing time.
Moreover, with an increase in the number of the juvenile offender, it is necessary
to strengthen education methods in societies, some previous sanctions like freedom
dispossession; the accuser’s isolation from their committee can lead the negative
psychology, discrimination, and recommitment, which could not meet the
International Convention on the rights of the child (the detention method only
applied in the shortest possible time)[19], especially in Decision No 49 of Communist
Party regarding about limitation of applied range to the juvenile.
19
Article 37(c) of the Convention of the United Nation on rights of Child.
26
2.
International Convention of children’s rights
and Vietnam’s obligations on Convention
observation in the Criminal Procedure after
participation
2.1
International Convention on children’s Rights and its
main content in the criminal procedure
2.1.1
International Convention on Children Right – the basis
for children right protection
From many ages, men were aware that, due to being immature both in physically and
mentally, children need protection and care for in a special way. The process of
industrialization in Europe (centuries XVII - XIX) was pulled in by the exploitation
of child labour which was quite common, adding that the World War I (1914-1918)
pushed millions of children to the suffering circumstances. Therefore, in 1919, some
children aid organizations were established in the UK and Sweden. The following
years, the International Labour Orgainisation (ILO) has issued a number of
conventions to protect children in the areas of labor, employment and social
sposoring. However, the documents were not placed under the angle of the "rights"
of children.
Only the year of 1924, the new concept of "child rights" officially was mentioned
in International Law, when the Geneva Declaration on children was passed by UN.
In 1948, the United Nations (UN) adopted the World Declaration on Human Rights,
which affirmed that children are also subject of equality of human rights. 1959,
through the United Nations’ second Declaration on children, developed the content
of the first Declaration passed in 1924. From 1959 to 1980s of century XX, a series
of international documents had been passed, directly or indirectly refers to the rights
of children. However, documents were neither subject to legal obligations, nor
accessible from the position and not giving special attention to the specific needs of
children thereby their impact on practice is limited. Children need to live in peace,
harmony society; require the care of the state, society, family and need the protection
of law. This is especially meaningful in developing countries. Therefore, it needs to
have international treaties multilaterally recognised and amended in this field. With
the efforts of many nations, the International Convention on the Rights of the Child
was adopted and signed on November 20, 1989 (also called the Convention on rights
of the child in 1989) and has been effective from September 2, 1990, Currently there
have been 197 member countries participating. Convention is open for other nations
to participate in signing, and approving. Besides the preface, the text of the
27
Convention, including the 3 sections with 54 terms, covers all the aspects related to
the children and determines the obligations of countries in guaranteeing the rights of
children, the relationship between children and human rights in general.
The Convention on the Rights of the Child shows respect and attention of the
international community for children - the future of mankind. First time, "child"
definition is defined as the basis for promoting and protecting the rights of children
in practice. A collection of children's rights in all fields (the rights that were not
mentioned by previous documents) is recognised by the Convention, to ensure
children are protected, care for effectively so that they develop comprehensively
both physical, intellectual, emotional, moral and social. It not only refers to children
in general, the Convention also refers to the protection of rights of special children
such as handicapped, waifs and children affected by armed conflict, etc; meanwhile,
identifies measures to remove the risk of being seriously threatened to the lives of
many children as being sexual abuse, exploitation of child labor, the influence of
drugs and forced to participate in the armed conflict. Along with that, the Convention
also established an international mechanism to monitor the implementation of the
rights of children in the world, creating necessary conditions for children to develop
fully.
With the above content, the Convention is regarded as the basic international legal
document and most comprehensive of rights of children in the current time.
However, to support for this Convention, in 2000, the UN Protocol issued two
additional decrees, referring to the prohibited use of children in the armed conflict
and prohibited child trafficking, commercial exploitation and sexual abuse of
children and cultural and pornographic products to children are banned (Vietnam
approves these two Decrees lon December 20, 2001). Immediately after the
Convention on the Rights of the Child becomes effective, the world Summit about
children was held at New York from 29 to 30-9-1990. The conference adopted the
World Declaration and Action Plan on survival, development and child protection,
referring to the challenges and specific goals to guarantee the lives and rights of
children in the period 1990 to 2000. In the end of this period, mankind has achieved
initial results, but very great in guaranteeing children's rights. With vaccination
campaigns and popular use of chemical salt, annually in the world nearly 3 millions
of children are saved, 75 thousands of children are out of physical disabilities and 12
million children escape from the risk of mental disease, etc. By using common clean
water, environmental sanitation, breastfeeding that every year tens of millions of
children are not malnourished. By education, advocacy of rights of children and
awareness of position of children in society have changed from consideration of a
child as a dependent object governed entirely by adults to the fact that children have
28
been recognized and treated as the owner's rights rather than just as objects of love of
humanity.
Compared to other International Treaties in general, International Treaties on
human rights in particular, the Convention on rights of children in 1989 is
highlighted with the following20
Firstly, the time from when the Convention is signed to the time it comes into
effect is very short (only 9 months and 18 days) and it is one of the multilateral
international treaties having the most largest number of member countries (197
countries) as compared with all other international treaties approved in the world.
This feature reflects the importance of the problem in child protection as well as the
interests of the country for the young.
Secondly, the 1989 Convention on the Rights of the Child in the first time
generalised all aspects of children’s rights and determined clearly the obligations of
countries in guaranteeing them, and the relationship between the children’s rights
and human rights in general.
Thirdly, according to Article 43 in the convention on the rights of children in
1989, Committee on the Rights of the Child was established to review the progress
that member countries achieved in implementing the obligations they have
committed through periodical reports. Also under Article 45, beside the Committee
on the Rights of the Child, the specialized agencies, UNICEF and other organizations
under the United Nations also have rights to supervise and help member countries in
the implementation of the Convention.
On November 26, 1990, Vietnam signed the Convention on the Rights of the
Child and approved on February 20, 1990 ( no reservations). In fact, Vietnam is the
first country in Asia and is the second c in the world which approved the Convention,
Vietnam ratified Protocol on two additional Convention, i.e., Decree mail (optional)
on child trafficking, child prostitution and child pornography; and Decree mail
(optional) on use of children in armed conflict.
Immediately after approval of the Convention, in 1991, State of Vietnam has
issued two separate laws on the rights of children: Protecting, Caring and Education
Children Law and Primary education Universalizational Law. The later, the more
widespread and effective the Vietnamese Law will be institutionalized the state and
society’s guarantees in the protection, care and education of children.
Chu Manh Hung, (2003), “Công ước quyền trẻ em năm 1989 - Cơ sở cho việc bảo vệ quyền
trẻ em”, “ the Convention on The rights of the child – Foundation for child rights protection”Tạp
chí
Luật
học,
(Journal
of
Law)
No.
3/2003,
available
at:
http://cenforchil.org.vn/VN/Detail/?gID=32&tID=98&cID=451
20
29
Thus, Vietnam ratified the 1989 Convention on the rights of the child providing
international legal basis for the guarantee of children in Vietnam and simultaneously
changing many activities to guarantee effectiveness of the child rights.
2.1.2
Basic contents of the International Convention in the
criminal procedure
Juvenile’s justice is part of the background of the national justice, including the
regulations of law and applications of those for law-breaking juveniles implemented
by a system of agencies and a team of people involved in judicial activities following
the guidelines that considered happiness and improvement of the juveniles the top
target and at the same time maintaining public order and social ethics, to ensure that
the process of handling law-breaking juveniles be always appropriate and
correspondent with their circumstances, motives and law violation.
To implement a judicial system for juveniles in accordance with the above
meaning, the International Convention on the Rights of the Child has built up
international standards on rights of the children whose freedom was taken away
(Article 37) and of the suspected children who are considered committing crimes
(Article 40), on that basis giving programmed instructions, in order to help to form
in every member country a legal system, the institutions and proceedings as well as
legal measures to handle appropriately besides the judicial system to apply to
children whp fall into the above circumstances.
Freedom deprivation Children are those children who are applied with any form
of detention either in any general custody or private one or put in prison and as a
result, they are not freely to leave the detention place unless there is a decision of the
judicial or administrative agency or other public authorities.21
International convention on the rights of children stipulates that the deprivation of
the children freedom should follow 3 certain conditions, that is to be conducted in
accordance with the law; last measures and only applied during the shortest time22
(Article 37 (b).
Article 37(d) stipulated to procedural right: Every child deprived of his/her liberty
has the rights to prompt to legal and other appropriate assistance , as well as the
rights to challenge the legality of the deprivation of his/her liberty before of court or
other competent, independent and impartial authority, and to a prompt decition on
any such action. Every child arrested and deprived of his/her liberty should be
21
UN widespread minimum principle on juvenile protection from being deprived with
freedom passed by General Assembly of UN on December 14, 1990
22
Article 37(b) of the Convention of the United Nation on rights of Child.
30
brought before a competent authority to examine the legality of this deprivation of
liberty within 24 hours. The Committee also recommends that the States paties
ensure by strict legal provition that the legality of a pretrial detention is reviewed
regularly, preferably every two weeks. In case condition release of the child, e.g. by
applying alternative measures, is not possible, the child should be formaly charged
with the alleged offences and be brought before a court or other competent,
independent and impartial authority or judicial body, not later than 30 days after
his/her pretrial detention takes effect. The Committee, conscious of the practice of
adjourning court hearing, often more than one, urges the States parties to introduce
the legal provitions necessnary to ensure that the court/juvenile or other competent
body makes a final decition on the chrage not later than six months after they have
been presented. The right to challenge the legality of the deprivation on liberty
includes not only the right to appeal, but olso the right to access th court, or other
competent, independent and impartial authority or judicial body, in case where the
deprivation or liberty is an adminitrative decition means that a decition must be
rentered as soon as possible, e.g.within or not later than two weeks after the
challenge is made.
The Convention guarantees that the following rights of children must be respected
during deprivation of freedom:
- The right is towards humane treatment and respect of dignity including the needs
of the children’s age;
- Rights of the children are isolated with other criminals who are mature to avoid
negative impacts (unless not doing so is because the best interests of children) while
children with freedom deprivation do still have the right to maintain contact with
their family.
- Rights demand for rapid enjoyment of the support of the relevant law; the right
inquiries in on the legality of freedom deprivation before a court or other authorial
agencies, independence and impartiality; and the right demands for quick
proceedings.23
- For arrested juveniles or temporary detained juveniles for trial: the overall
principle is that a juvenile is considered to be innocent and must be treated as
innocent24. Because the juvenile’s freedom deprivation must be considered as a last
measure and only applies in the shortest time, therefore, the Court and the
investigation department must have the highest priority for emergent processing
cases committed by juveniles. While the temporary detention, the juvenile should be
23
Article 37 (a), (c), and (d)
24
Section 17
31
keep separately from convicted juveniles. The juvenile arrestees or accused persons
enjoy the following rights:
+ They can have private defence attorney and can usually contact with their
lawyers;
+ They are to be if possibly provided with job opportunity, they are allowed to
receive payment, and continue to be trained and educated;
+ They are allowed to receive things for appropriate entertainment and play
- Article 40 in the Convention on child rights stipulates that the child rights are
considered to be or accused of or convicted as committing crime.
Article 40, clause 1 of the convention gives four standards in violated children,
these are:
1/ Treatment in the form appropriate with encouragement of their dignity and
values;
2/ Increase in the respect of the child for human rights and freedom rights of
others;
3/ Age-appropriate for children;
4/ Promotion of the re-integration and the role of children in society.
Article 40(2) of CRC contains an important list of rights and guarantees that are
all meant to ensure that every child alleged as or accused of having infrighed the
penal law receives fair treatment and trial. Most of these guarantees can also be
found in article 14 of the Internation Convenant on Civil and Political Rights
(ICCPR), which the Human Rights Committee elaborated and commented on its
general comment No.13 (1984) which is currently in the process of being reviewed.
Before doing so, the Committee wishes to emphasize that a key condition for a
proper and effective implementation of these rights or guarantees is the quality of
the person involved in tha administration of juvenile justice. The training of
professionals, such as police officers, prosecutors, legal and others is crucial and
should take place in a systematic and on going manner. All the guarantees
recognized in art.40(2), which will be dealt with hereafter, are minimum standards,
meaning that States parties can and shuold try to establish and observe higher
standards, e.g. in the areas of legal assistance and the involvement of the child and
her/his parents in the judicial process25
Clause 2 of Article 40 of the Convention identified 8 guarantees for a proceeding
appropriate for children prosecuted:
- Criminal law does not have retroactive effect, that is to ensure children are not
prosecuted about behaviour because the national and international laws do not
prohibit at the time of the implementation of that behaviour (Section A);
25
United Nations, General comment No.10(2007) – Children’s rights in juvenile justice
32
- they are allowed to enjoy principles reasoning as innocent, that is, children are still
considered innocent until proven that the offender has committed crime following
legal regulations (Section b I);:
- Before being brought to trial: Children must be informed promptly, directly on
the accusations and must be provided with assistance or legal assistance appropriate
to prepare the present their protection (Section IIb);
- At the trial hearing: Children must be provided with the legal assistance to
participate with parents or legal guardian in giving a reporter, fair inquiry , lawful
before a authorial Trial Panel, impartially and able to decide quickly (Section IIIb);
- For the witness: Children should ne be forced to witness or receive committing
crime; they have the right to consult or seek for counselling the witnesses against
themselves and also have the right to provide witnesses in equal conditions (Section
IV b);
- Right appeals against the decision of first instance to be heard against by a
greater Appeal Board hearing, independently and innocently.
- Rights of the child are to have an interpreter free of charge in the case necessary
(Section VI b);
- Rights of the child are to keep individual’s secrets from during proceedings
(Section VII b)
Clause 3 and Clause 4 of Article 40 give the programmed standards to promote a
formation of nations:
The laws, procedures and separate institutions applied to children from a certain
age considered the minimum age to bear criminal responsibility;
The system of handled measures regardless to judicial proceedings in appropriate
cases and with conditions to guarantee the respect for human rights and legal order;
In addition to the agencies and organizations in the judicial institutions, it needs to
set up community measures (consultants, the alternative care in place of parents,
education programs and vocational training ...) to order to guarantee that children are
treated in accordance with welfare corresponding to their offenses
In fact, article 40 of the Convention on rights of the child is general, and
improved Beijing Rules26. Therefore the research in Beijing Rules is necessary to
further clarify the content of the Convention.
Part II of the Beijing Rules on "Investigation and prosecution" presents the rules
of action from the authorities in the period of the proceedings "before the court" to
ensure the rights of children suspected as committing a crime as prescribed in
Article 40 (2) (b) of the Convention Including the following rules:
26
UN popular minimum principle on application of law to juveniles issued by General
Assembly of UN on November 29, 1985
33
- In the initial contact with violated children who are temporarily detained,
officials or authorities must respect the legal position of the juveniles, avoid damage
to children, review appropriately the circumstances of the cases and must not delay
in relief of the captured Rules 10).
- Whenever appropriate decisions are necessary to process the other way without
official forms of trial. Other forms of processing (from the criminal handling to
social support from family, schools, organizations and social control) in the case
which is not serious by the standards of each legal system only applies to the
following conditions: must have the agreement of the juvenile or parents, guardians
and the decision of the authority (Rules 11).
- Hold pending trial is used as the last measure in as short time as possible which
can allow. The officials and authorities must ensure that children temporarily
detained have the protection, care and receive the assistance necessary depending on
age, gender, circumstances, especially to combat negative influences, and being
infected by adult offenders who are being detained in the jail (Rules 13).
- The need of specialisation, guidance and training of special police force assigned
to resolve problems related to the juveniles is required. The set out requirements are
that the police must understand the situation and act according to appropriate
methods, which are important for the entire processing the juveniles for the police is
the first breakthrough in the judicial system to the juveniles (Rules 12).
In part III-"Hearing and decision “ by Beijing Rules, the rules of the action of
agencies in the period of trial and implement of sentence to ensure the rights of
children suspected as committing offences under Article 40 (2) (b). These are the
rules guiding practically to choose the most relevant way of handling internationally
recognized including the following rules:
- Hearing child offenders under the principles of a fair trial and equality with an
air of knowledge allows children to freely and expressing opinions (Rules 14).
Hearing child offenders under the principles of a fair trial and equality with an air of
knowledge allows children to freely express their opinions (Rules 14).
The determination of offence and shape must always suit the circumstances, motives
of the juveniles and the needs and requirements of society. It must not sentence any
death penalty for any offender, and must not apply the penalty of torture to the
juveniles; only remove individuals’ freedom if the personal behaviour is seriously
violated by force against others and unless no other appropriate resolutions (Rules
17).
One of the inevitable characteristics of hearing is that the authorial agency can
suspend the case at any time when they know its facts.
- There should be multiple measures to handle cases to avoid the maximum
custodial penalty (Rules 18).
34
Part IV-How to handle non-custodial. In this section, if the main rules of the
agencies, organizations related to implementing effectively the decision process is
not detained by the Court pronouncement, specifically:
- It must have the independence or the welfare organisations of children to
monitor implementation of the decision of the hearing agencies (Rules 23).
- To provide the juveniles with assistance and services of accommodation,
education, vocational training, jobs, etc, for their best benefit in the recovery (Rules
24).
- To Mobilise the volunteers and l social services contributing to the restoration of
dignity of the juveniles in the social and family environment (Rules 25).
- Need to organize the means of partial detention such as educational institutions,
the daytime training centres to help the juvenile arrestees and accused persons
during process of reintegration into society (Rules 29).
- It must set up the research mechanism as a basis for planning, setting out
policies, regular collecting and evaluating the relevant data and information relevant
to improving the management violate juveniles. (Rule 30).
Preventive issues against violated juveniles
Guided by Riyadh, to prevent juveniles from committing crime is a major part of
crime prevention in society, but crime prevention is part of the work of general
prevention. To prevent the juveniles from committing crime is to help children at
high risk of violating trough the attraction of children to participate in legal activities,
useful social-oriented with a humanitarian vision for life.
In view of the above views, although the Convention does not have separate
regulations directly assigned to juvenile offenders prevention, but through articles 5,
18, 19, and 27 of the Convention have affirmed the responsibility of parents, family,
guardians, schools and the community in guiding children only to develop in
accordance to appropriate ways with the developing speed and the ability of children.
The convention on rights of the child and Riyadh rules both consider family the
first center responsible for socialization for the child on the basis of maintaining the
sovereignty of the family, so family holds prior positions in general prevention for
children. Article 19 of the convention on the right of child says the state must
implement legal, administrative, social and educational measures , appropriately to
protect children from all forms of violence to body or spirit, support foster parents,
care for and protect the development of good physical and wisdom of children.
Riyadh guidelines emphasize "attention must be especially for children of families
affected with influence of unusual and repeated changes in economy, society and
cultures , because changes such as those would make loss of the social ability of
the family in ensuring up bringing and traditional education of children's own
families. "
35
Article 29 the convention has confirmed important roles of schools in the
socialization and education of children. Meanwhile, Riyadh guidelines also
recommend that the school be preventive and detective places of use of alcohol and
drugs by children, the centre for advicing the provision of health services,
counselling for the juveniles. Through schools, a majority of children will receive
these services "especially children with special needs or other abuse, neglect or
victims of exploitation" ( Rule 26 ).
The community development programs guarantee all children are entitled to the
welfare and protection before the negative impact while providing advice and
guidance to them and their families.
Mass media is encouraged to promote the grate social impact by participating in
advocacy, dissemination of information encouraging positive role of the juveniles.
The State is responsible for issuing and implementing laws to continue to better
protect the rights of children, to prevent ruthless treatment to restrict the juveniles
from accessing to the objects and means of creating crime. The State has a role to
provide services essential for the juveniles in the community programs; coaching
staff to enforce the law and the relevant persons and use to the maximum of this
program to protect the juveniles from the treatment of the hearing system .
In summary, the Convention on the Rights of the Child and other documents of
the United Nations have created a system of relatively completing standards and
orient nations to construct and implement a judicial system for juveniles appropriate
to conditions of each country.
2.2
International experiences on obeying the Convention
in the criminal procedure
From the specific conditions of economic, political, cultural, and social customs and
habits of each country in the world, the different legal system is different from
country to country hence every country has different problems in crime situation.
At the same time, the issues of juvenile offenders of the countries also are different.
However, in reality, the actual issues of human rights and protecting human rights
are always the national interest, particularly the juvenile. Up to this time in the world
there have been 197 countries participating in the convention on the rights of
children in 1989, this is also reflected the concerns of the international community
for the purpose to protect the rights of children. Therefore, the law of most countries
on the basis of the rights of children in 1989 has stipulated that the best protection of
rights and legal benefits for the youth.
The procedure for dealing with cases of juvenile arrestees or accused persons
under the law of Sweden
36
In the field of child protection Sweden has achieved many results. Sweden has the
criminal, civil and administrative courts (the first two Courts are entitled to
judgments) and the Administrative Court does not have the judgments. There are no
responsible professional judges in each issue but they are moved to the rotation after
a certain court time. There are no courts for children but there have been specialized
judges in cases of children. According the Sweden criminal procedures, there is no
division of periods of different proceedings. The procuracy will decide to proceed
when there is violated behaviour, the start of this proceeding is done by the authorial
agencies only, but also the procuracy proceeds by the accusations of the victim .
From the beginning of the proceeding, they are considered suspects. At the trial, the
person denounced were called "the accused". Thus, the provisions of the Sweden
penal code the denounced persons are called either “suspect “ or "accused". CPC of
Sweden have defined a separate chapter on "suspect person" and guaranteed their
right to self defend, which recorded the rights of the suspect in criminal cases. In
Section 3 of Chapter 21 particularly rules: " if the suspect is a minor, their guardian
will have power to exercise the right of defence at the trial if the court accepted in
place of them “. Thus, although Sweden CPC does not have any rules defined in
principle to guarantee the right to defend of the arrestees or the accused persons, but
it is entitled through the institutions of law and separate laws. Meanwhile, the
principles to defend of the accused persons have been recorded specificly in article 6Convention on Human Rights by the European Union, which Sweden is an official
member in participation in this Convention. And the right to defend of the accused
persons in the criminal procedures again is recognised as an important and decisive
principle in solving criminal cases in which the Member States of the Convention
must comply with.27
Age of violated children is divided into two ranges:
- From 12 to 15 years old: Police can join the investigation in certain cases, social
workers play the main role. This may record sounds or record images.
- From 15 to 18 years olo: a common principle is not to push children into prison
(except for special cases). This is completely in accordance with Article 37 (b) in the
convention on the rights of the child.
Children at 15 years is criminally responsible and bear responsibility before the
court. Procurator has the right decisions about either a trial should make to the child
or not. There are some penalties to be applied as punishment by charging some
amout of money or making the juvenile arrestees or accused persons do public work
Luong Thi My Quynh, (2003), “ Right Guarantee of errestees or accused persons according
to Article 6 in European Convention on Human rights” M.A. thesis, 2003, HCM University of
Law
27
37
from 20 to 100 hours. If children do not contend with care plan, and restoration
given by the social officers they can be back to the court to reconsider or choose
other forms, but due to court decision (note this is not a verdict for children).
Measures used are mainly family form instead.
To protect children is meant early prevention which not only implemented
through social services but are integrated into many other programs. One of the
solutions to protect children is training social staff with high qualification, associated
training with practices.
Thus, through above regulations, we can see that the rights of children in Sweden
Criminal Procedure are guaranteed to a great extent and be treated.equally.
Procedure for dealing cases of juvenile arrestees or accused persons under the
law of France
Based on the participation of the Republic of France in the Convention on rights
of the child, The France law stipulates on the age of the juvenile based on age of
children in general, completely in accordance with the Convention. According to the
law the Republic of France, the age of juvenile is a child under the age of eighteen
years and the age that begin to bear criminal responsibility is 13 years old. Law of
France disferentiates between the procedure for dealing with juvenile and that for
adults and the former shall be a separate procedure.
Proceeding in the law of the Republic of France is divided into 4 stages:
The period of preliminary investigation: At this stage the proceedings apply to all
cases in which the arrestees or accused persons are bot minors and adults.. However,
by characteristics of the juvenile arrestees or accused persons are not developing
fully in body and mentality, the laws of France have regulations on more preferential
policies for them.
The period of investigation and trial at the Court: In this period the law has clearly
distinguished between the cases committed by the juvenile and adults. This legal
system has had responsible authorities to resolve the case commtted by the juvenile,
including: special Judges responsibie for the position of minors, juvenile court, the
Court's image for minors and the second trial department.
The first authorities in charge are judges specially responsible for cases of the
juvenile, their duty is to hear the case including duty of investigation. However, The
special function of the Judge is to decide but not to declare the punishment to the
juvenile arrestees or accused persons. In case of necessity to apply penalty it must
be transferred to the second responsible authority that is the second juvenile court to
resolve.
Juvenile court is the provincial court, the hearing Council includes: Chairman as a
special judge in charge of minors, a professional judge and two assessors.
38
Criminal juvenile Jurisdiction Court is hearing crime of juveniles aged from 16
to under 18, with the structure including Chief Justice - as a judge of the Court of
Appeal, two assessors are Judges special for juvenile accountability and delegation
of jurors
Authority responsible for the final is the second trial department. This is part of a
special Court of Appeals, its function is to appellate the decisions of the special
judges in charge of juvenile arrestees or accused persons
Thus, in view of determination of judge for juveniles in Penal Code and Criminal
Procedure Code of the Republic of France we see the important role of judges in the
process of investigation, trial and improving education of juvenile arrestees or
accused persons. The richness of these measures with the nature of education is
applied to juvenile, the invention relates to the process of preparing to re-integrate
into community convict, and this can help lawgiver Vietnam in finding direction for
institutions in the Penal Code and Criminal Procedure Code for juvenile.
2.3
Vietnam’s obligation to obey International
Convention on children right in the Criminal
procedure after being membership
2.3.1
Being membership and implementing the international
Treaty according to Vietnam law.
Law on signing, entering and implementing International Treaty is approved by the
XI National Assembly, 7th session, dated 14th June 2005; President signed the
command to announce dated 24th June 2005. This law became effective as from 1st
January 2006. It replaces Ordinance dated 20th August 1998 on signing and
implementing International Treaty.
The first Vietnamese legal document on this field is Ordinance in the year 1989,
about signing and implementing International Treaty. This ordinance is replaced by
the one in the year 1998. However, law’s stipulations and the fact of signing,
entering and implementing international treaty in the past time arose many subjective
and objective elements, which require the Ordinance should be improved into Law
on Signing, entering and implementing International Treaty.
Law issuing has an important meaning both in internal and external affairs; the
law timely and sufficiently institutionalized Party’s policies, meeting requirement of
completing laws, serving international economic integration, taking advantage of
external force and maintaining internal force to build and develop the nation.
Law on signing, entering and implementing international treaty consists of nine
chapters, 107 Articles (Ordinance in 1998 on signing, entering and implementing
international treaty consists of 6 Chapters, 35 Articles). This law stipulates on
39
signing, entering, reserving, storing, copying, announcing, registering, implementing,
explaining, modifying, adding, extending, terminating effect, abandoning,
withdrawing, suspending implementation of signed or entered international Treaty on
behalf of State and Government of Socialist Republic of Vietnam.
The main content of Vietnam Law on entering and signing international Treaty
mentions the following matters:
Firstly, according to Article 1 of Law on modification scope: “This law stipulates
on signing, entering, reserving, storing, copying, announcing, registering,
implementing, explaining, modifying, adding, extending, terminating effect,
abandoning, withdrawing, suspending implementation of signed or entered
international Treaty on behalf of State and Government of Socialist Republic of
Vietnam”.
Secondly, the Law stipulates principles of signing, entering and implementing
international Treaty at the Article 3, including 6 rules:
- Respecting independence, sovereignty and territorial integrity, forbidding usage
or risk to use force, not interfering mutual domestic affairs, being equal, mutual
profitable; and other principles of international Law;
- Conformity with Constitution of the Socialist Republic of Vietnam
- Conformity with national benefit, foreign policy of Vietnam;
- Treaty signed in the name of Government is not against International Treaty in
the name of State
- The International Treaty of signing has stipulation against or unstipulated in the
legal documents of National Assembly, Standing Committee of the national
Assembly must be submitted to Standing Committee of the national Assembly for
approval before negotiation, signing or entering if there is any stipulation against or
unstipulated in the legal documents of National Assembly and Standing Committee
of the national Assembly; in case of negotiation, signing international treaty there is
any stipulation against or unstipulated in the legal documents of National Assembly,
Standing Committee of the national Assembly must report to National Assembly for
advice.
- State of Socialist Republic of Vietnam obeys the International Treaty in which
Socialist Republic of Vietnam is a member; and also has right to require other
members to obey that Treaty.
Thirdly, Law stipulates the relation between the International Treaty and domestic
legal documents
The Law affirms one general principle stipulated in almost laws, ordinances,
decrees in case that these documents are different from stipulations of International
Treaty in which Vietnam is a member, stipulations of that international treaty are
applied ( Article 6.1)
40
The Law stipulates the legal document drafting must ensure not to obstruct
implementation of International Treaty in which Vietnam is a member (Article 6.2).
This is a new stipulation as compared with stipulation in the legal document issuing
law.
Besides, this is the first time in the Vietnamese legal normative documents, law
on international treaty be effective in Vietnam is applied directly according to
decision of authorities at the Decision on signing, approving, ratifying or joining in
International Treaty. In the event that it is impossible to apply some stipulations of
international treaty directly, the authority, when making decision to sign, approve or
join that international treaty, will decide to issue the legal normative document to
implement International treaty. (Article 6.3)
Fourthly, the Law concretely stipulates on competence, order and united
procedure for signing, joining and implementing international treaty. These
stipulations include not only proposal of negotiation, signing, joining in international
treaty but also checking those proposals (Ministry of Foreign Affairs is responsible);
assessing those proposals (done by Ministry of Justice or juror council); examining
to submit to National Assembly the approval or joining in International Treaty
(mainly implemented by Committee of foreign affairs of National Assembly); being
consistent in State management and implementation of international treaty
(conducted by the Government); monitoring action of signing, joining and
implementing international treaty (done by National Assembly).
Fifthly, the Law stipulates the competence, order, and procedure to submit
National Assembly and Standing Committee of the National Assembly for advice
about proposal of negotiation, signing or joining in International Treaty in case that
the international treaty has stipulations against or unstipulated in the legal normative
documents of National Assembly, Standing Committee of the national Assembly.
These stipulations contribute to connecting proceeding of signing, joining and
implementing international treaty with Program of building law and ordinance of
National Assembly; creating good conditions for implementing international
commitments of Vietnam effectively.
Sixthly, at Article 105, Law stipulates for ensuring expenditure for negotiation,
signing joining and implementing international treaty. This stipulation is necessary
because so far there has been no legal normative document on supplying expenses
for signing, joining and implementing international treaty meanwhile this action
consists of complex procedures, requiring expenses to deploy.
41
2.3.2
Participation in the International Convention of
Children’s rights and some problems of Vietnam’s
observation in the criminal procedure after participation
Since participating in International Convention on the Rights of the Child to present,
the state of Vietnam has been trying their best to make harmonious between
International Convention on the Rights of the Child and national law. Basis spirit and
content of the Convention has been represented fairly fully in all new law official
documents or amended and supplemented law official documents during last period.
In the system of those official documents, an important part in which
institutionalized guidelines and policies of the Party and the State of Vietnam about
education, treatment and protection the Rights and legal benefits of Juvenile
delinquency; create the law frame about Juvenile Judicial System of Vietnam
On February 1st 1990, The State of Socialist Republic of Vietnam has officially
approved Convention of United Nations on the Rights of the Child and is one of the
first countries those approved this Convention (to be the third country in the world
and the second one in Asia). In order to assume responsibility for applying this
Convention, on August 16th 1991, The State has promulgated the law of children care
and protection. The law of children care and protection stipulates that “the
investigation in administrative responsibility, civil responsibility, criminal
responsibility to criminal children must obey the law regulations to the Juvenile”
(Article 15). About the stipulation of the State of Vietnam about the minimum age of
Juvenile who must bear administrative responsibility and criminal responsibility and
establishment of separate procedure and law for criminal children is suitable with
article 40, section 3 of Convention on the Rights of the Child.
Basis regulations in treating criminal Juvenile have been institutionalized in
documents about legal personality of Juvenile. The treatment for criminal actions of
Juvenile has stipulated at article 69 of the penal code- the year 1999. This stipulation
has represented humanitarian spirit of Vietnam criminal law; simultaneously it is also
suitable with the spirit of Convention of United Nations on the Rights of the Child
with the following basic regulations:
Criminal action treatment of Juvenile is to educate and support to reform them
from their faults, to help them become useful citizens for the society. Procuracy,
Court primarily applies educational and preventive measures. Family, school and
society participate actively and carry out those measures (section 1 and 2 at article 69
of the penal code- the year 1999). Procuracy can exempt Juvenile from criminal
responsibility if he/she does not commit serious offence and bring about big
consequence simultaneously has mitigating circumstances and be supervised and
educated by family or social organization.
42
- Only bring criminal juvenile out to judge and apply punishment on them in
necessary cases but meet fully the 3 conditions:
+ The criminal juvenile has evil dignity relatives
+ Acted criminal has serious nature
+ Educational and preventive measures such as trial period, training in training
centre is not enough to take effective to improve criminal Juvenile but needs to apply
punishment to them
To the Juvenile to be considered, to be condemned to commit an offence as
stipulated at section 1, article 40 in the Convention on the Rights of the Child which
has been institutionalized by innocent presuming principle, which ensured by
Vietnam constitution and law that “ nobody be considered as criminal and withstood
punishment until receiving the accused judgement from the People’s Court which
has judicial effectiveness” ( article 12 of 1992 Constitution28 and article 9 of the code
of criminal procedure
The responsibility to demonstrate criminal belongs to procedural organizations
(investigation body, procuracy institute and court); thus, these bodies have to apply
all legal measures to determine the truth of the case objectively, totally and fully,
clarify criminal evidences and innocent evidences; aggravating circumstances and
mitigating circumstances of the arrestee, accused29. According to article 127, 1992
Constitution and article 1, law on People’s Court organization30, The Court is the
judged organization of the State of Socialist Republic of Vietnam. The responsibility
of the Court is to apply law. During the procedure to judge cases which have the
accused who is Juvenile, the court has to ensure principles and regulations, which are
stipulated in details at chapter X of the penal code and chapter XXXII of the code of
criminal procedure of Vietnam. The Judge team is appointed by the chairman of the
State with 5 years term that is already and being developed both quantity and quality
in the past years, which has contributed an important part in protection legal rights
and benefits of Juvenile.
However, at the current time in Vietnam, there has not had judge who is
responsible for judgment Juvenile and has not also prepared necessary acknowledge
and skills about Juvenile, therefore the judgment get limited. In the current years,
some judges have been joined in cultivated courses, training and exchanging
28
The 1992 constitution to be adopted by the National Assembly of The Socialist Republic of
Vietnam, Course VIII, the session 11th. In this course the National Assembly united to approve
the constitution in the meeting on April 15th 1992 at 11h45’
29
Article 10 , the Code of criminal procedure
30
The 33/2002/QH10 of the law on People’s Court organization
43
experiences inside and outside the country about the Juvenile investigation,
prosecution and judgment
Simultaneously, criminal procedure of Vietnam stipulates about applying law to
the Juvenile : do not punish life-sentence or death sentence to the criminal juvenile31
. According to statistics of the court, till the current time Vietnam has not had any
juveniles to be under sentence of death or life- sentence. When applying term
sentence, the court applies to criminal juveniles who are getting lighter sentence than
the criminal maturation. During the time punishment the imprisonment, the juvenile
is imprisoned separately, not to be punished together with the maturation, and getting
the benefit of different supervision32.
The participation of lawyer in case in which arrestee, accused is Juvenile is a
must. In all cases, if this person or the legal representative (father, mother or
guardian) does not choose the lawyer, the procedural organization must assign the
lawyer. The lawyer must be joined in the criminal procedure at the beginning time of
introduction of instance the arrestee and appeal decision of procedural organization,
appeal against the judgment and decision of the court.
The participation of family, school and social organization during the procedural
process33 to cases acted by juvenile is very important. Family, school, teachers,
Youth Union organization, social organization where the juvenile joins in learning,
working and living much more understand about the juvenile than any other one. For
this reason, in any period of the criminal procedure, the family, school, teachers,
Youth Union organization, social organization must be invited to take part in the
procedure in order to find out about relatives, living condition and educational
condition of criminal juvenile. According to the stipulation of the code of criminal
procedure in Vietnam, at the trial of cases that carried out by juvenile, it is a must to
have the presentation of the representative of family, school and social organization.
Guarantee the members of the jury as regrulation34 (having people’s juror is
teacher or member of the Ho Chi Minh Communist Youth Union). Through the
supervision, judgment to find out law violation related to the Rights and legal
benefits of Juvenile, at that time the Procuracy Institute has right to introduce of
instance in order to protect the Juvenile.
And such, after joining in the International Convention on the Rights of the Child,
the State of Vietnam has had suitable stipulations with the Convention in the criminal
31
Article 34, 35 of penal law of Vietnam
32
Article 308, section 1 of the code of criminal procedure of Vietnam
33
Article 306, the code of criminal procedure
34
Article 307 of the code of criminal procedure of Vietnam
44
procedure that aimed to find out the best way in protecting rights and legal benefits
of the Juvenile during the process of criminal procedure
3.
Comments
3.1
Extending and guaranteeing the rights of juvenile
arrestees or accused persons in Vietnam Criminal
Procedure Code 2003 – current objective requirement
in Vietnam
The guarantee human rights in criminal judiciary is the full process of investigation,
prosecution, judgment, sentence implementation and also the process of criminal
confinement and re-education in order to ensure that all criminal behaviours must be
detected timely and treated strictly and clearly, also ensure that innocent persons are
not proceeded unjustly. The criminals must be judged and punished correctively with
what their guilty behaviours. However, the purpose of punishment is not only
punished but also considered re-education, improvement, admonishment and
protetion from offence behaviours as the leading target. This is the basic requirement
to protect human rights in socialist legitimate state35. As we knew, Vietnam is the
first country in Asia and is the second country in the world to retify Convention of
United Nations on the Rights of the Child on February 20th 1990. At the
“Introduction” of the Convention of United Nations on the Rights of the Child stated
very clearly :“ "the child, by reason of his physical and mental immaturity, needs
special safeguards and care, including appropriate legal protection, before as well as
after birth", at Article 3 of the Convention of United Nations on the Rights of the
Child stipulated that “In all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law, administrative authorities
or legislative bodies, the best interests of the child shall be a primary consideration”.
With the consitent point of view in Children Protection, judicial improvement task at
the current time, the Vietnam Party and State always put the perfectibility of law
system in Children Protection on the top, in which children who break the law is the
top and special care, especially the accused juvenile in violation.
35
Phạm Ngọc Anh, “Tăng cường bảo vệ quyền con người trong lĩnh vực tư pháp hình sự”,
“Strengthen and protect human rights in criminal judicial”, in Tạp chí bảo hiểm xã hội
(the social insurance magazine) No. 8/2007
45
The activities of criminal procedure is a process of demonstration the crime and
guilty person which is proceeded by bodies as inquiry agency of Procuracy Institute,
Court and the jurisdiction authorities as inquirers, controllers, judges, people’s
jurors) who promulgate criminal specific official letters such as: introduction of
instance decision (introduction of instance decision of sentence and introduction of
instance decision judgment to arrestee), indictment, judgment, decision of judgment
implementation (imprisonment implementation judgment, death sentence
implementation).
Criminal Procedure activity includes stages: investigation, prosecution, judgment
and criminal judgment implementation with the participation of persons who carry
out the litigation procedure (temporary detention person, accused, arrestee, civil
plaintiff, civil defendant, relevant persons about rights and duties, victim, witness,
expert, interpreter) of government agency, social organization and citizen. The
Criminal Procedure activity has its owned specific nature because it is relevant to
human politics and life and also affects directly to basic human rights and citizen
rights. Therefore, one of the important targets of the code of Criminal Procedure
2003 is supplementation, adjustment stipulations in order to ensure the respect and
implementation for the rights of citizen’s freedom and democracy in Criminal
Procedure activity based on International Convention on the Rights of the Child.
The reality of Vietnam in past years, litigation body and people who participate to
litigate, when they settle cases, they have still committed some given violations,
particularly is the violation in unjustly arrest that leads to wrong investigation, wrong
introduction of instance and judgment; simultaneously the defense is not completed,
especially to the juvenile criminals. Criminal Procedure activity directly related to
rights and legal benefits of juvenile people who are accused, arrestees in cases and
also related to the objective and the truth of the case. Through reality, although the
implementation of code of Criminal Procedure – The year 2003 which takes effective
from July, 1, 2004 until now is not so long, it is enough time to realize that the new
Code has revealed many insufficiencies and has not satisfied judicial reform duty in
the basic of respecting and ensuring human rights in Criminal Procedure especially
to the juvenile criminals. Therefore, the improvement of the code of Criminal
Procedure in general and expansion in ensuring rights of juvenile accused, arrestee in
particular is the indispensable inquiry of Vietnam in integrated and developed
process in the current period.
46
3.2
Some suggestions for extending and guaranteeing the
rights of juvenile arrestees or accused persons in
Vietnam Criminal Procedure Code 2003
3.2.1
Amendment, supplement clauses of the Code of criminal
procedure
- Article 303.136, applying measure of remand in custody for the range of age 1416 is too strict. It should be reduced to lowest applying coercive measures but for
necessary cases.
In order to suit the assign of Convention “ the arrest, detain or put in prison a child
have to be permitted by the law, and that was the last measure in the short period”
- Adjust the law on organization of people’s Court, stipulate that in the system of
Court should establish the court for juveniles.
- Should supplement in Chapter XXXII litigated procedure to juveniles of
criminal procedure some general stipulation about order, procedure of shift
treatment, supervisor structure, and implementation of shift treatment to juvenile
criminal.
Shift treatment is a supersede process to treat violation of Juveniles by informal
method and out of orthodox judicial system (dispute settlement based on community,
supported services or community education). This term refer to shift treatment or
bring a juvenile criminal out of orthodox judicial system in order to apply other
supersede processes in the community37. Shift treatment is applied by judgment body
at anytime in the judgment process when necessary. Many researches in the world
are indicated that shift treatment to juvenile criminal has outstanding points in
comparing with orthodox sanction. Shift treatment does not refer to sanctions with
punished natures to juvenile criminal but focus on damaged surmounting which
cause by juvenile criminal’s behavior. With this main target, shift treatment
positively impulses the re-integration of juvenile criminal to family and social
community
- Article 307, The Code of Criminal Procedure about case judgment to Juveniles:
“In necessary cases, The Court can decide for secret judgment” (paragraph 2, item
1). With this stipulation, almost all cases of Juveniles are the crimes are judged in
36
37
See Article 303 code of criminal procedure
Juvenile is the person who is from 12 to under 18. Children are whom under 16, The law of
children care, protection and education of Vietnam - the year 2004 stipulated very clearly at Article 1
: “Children stipulated in this Law is citizen who is under 16”
47
front of public. When the Juveniles are proceeded as accused or arrestee although it
is in investigation period or prosecution, judgment, ect. Have not gotten proper care.
Personal secret protection of Juveniles especially for the children who are victims of
criminal cases have stipulated completely and causes of deep hurt for children in
Criminal Procedure.
3.2.2
Other suggestions
- It is necessary to limit to punish by imprisonment and strengthen to apply
judicial measures to criminal juveniles. The Penal Code is reserved a chapter to
stipulate about criminal juveniles, in which stated very clearly the main purpose is
education, encouragement to apply the “out of detention” punishment; however, in
reality the courts often try imprisonment to criminal juveniles; therefore, It should be
limited to punish by imprisonment to criminal juveniles and expand applying range
the probation punishment to criminal juveniles; complement the institution
conditional freedom release for criminal juveniles who are executing the imprisoned
punishment
- The re-education to the juveniles is taking more attention than the maturities.
Article 308 of the code of criminal procedure stipulated: “Cannot imprison the
juveniles and the maturities together”. This is quite suitable with the stipulation of
the International Convention on the Rights of the Child “…every child who is
dispossessed of liberty will be isolated from the maturities unless for the best benefit
of the child” 7. However, in current time there still has no reformatory which is only
reserved for the juveniles. Although this point is stipulated in the law; it must be had
a defense mechanism to ensure these stipulations are performed in reality, it is
requested the Vietnam Government must pay more attention to this matter.
- The person who performs the criminal procedure needs to obey strictly the
stipulation of procedural law to ensure there must have defender for accused from the
first period of the introduction of instance.
- During the trial period, the Court must pay more attention to invite juror who is
teacher or member of the Ho Chi Minh Young Communist League in order to create
good conditions for volunteered individuals or organizations to take part in
procedural process to protect legal rights for the juveniles.
The improvement of the institution the rights of accused, arrestee who are
juveniles together with measures of legal guarantee about human rights, citizen
rights when joining in the procedural process is very important and very necessary in
the new situation like present time. The continued improvement stipulations about
the rights of accused, arrestee who are juveniles in the code of criminal procedure is
48
continuous to be completed to the trend performing requirement of the resolution 49
of the Political Ministry about judicial innovation strategy from the current time until
the year 2020, in which stated clearly the orientation to overcome the missing out of
criminal as well as don’t let any injustice cases happen, respect and protect human
rights and legal benefits of the citizens. This improvement will enhance value in
theoretic factor as well as in real quality of the code of criminal procedure 2003, the
code that are evaluated by many foreign experts that this is a total penal code , which
combined the justice principles of a modern judicial criminal system.
49
Summary
Practices that have proven important of guaranteeing the rights of the juvenile
arrestee or accused persons in criminal procedure Viet Nam, the application of this
has contributed actively to protect of the socialist, ensuring democratic, fair society.
Wishing to further enhance effective application of the rights and guarantee the
rights of the the juvenile arrestee or accused person in criminal proceedings, meet
people in the criminal proceedings by spirit of the resolution of the party of judicial
reform has been thesis and the study and guaranteeing the rights of the juvenile
arrestee or accused in criminal proceedings in both Vietnam's average of Comment
and practical application.
At aspect theory, has thesis about the concept of rights and ensure the rights of the
accused is a juvenile in criminal proceedings; analyze the situation of the rights and
guarantee the rights, criminal policy of the State of Vietnam for the juvenile arrestee
or accused in criminal procedure, determine the rights of the accused is a juvenile in
criminal procedure. Clarify the responsibilities of conducting the proceedings in
ensuring the rights of the accused is a juvenile in criminal proceedings. Ensuring the
report of the accused is a juvenile in criminal proceedings not only to ensure free,
democratic citizens but also help the agency conducting the proceedings to overcome
the false mistake in the implementation of the functions, tasks, and especially the
situation unfairly, incorrectly in criminal proceedings. Also, analyzing the contents
of international conventions in the field of criminal proceedings, draw the valuable
experience of other countries to comply with the Convention in this field. Since then
contact Vietnam in compliance with the International Convention on the Rights of
the Child after joining.
Results of study practices that ensure the rights of the accused is a juvenile in
criminal proceedings in Vietnam still have the limitations of, reveal many pair should
continue improved. Based on theoretical research, assessment practices, has
discovered a number of measures contributing to improve the guarantee of rights of
the accused is a juvenile in criminal proceedings. Solutions discovered in if
mentioned in both aspects is to develop laws and institutions of law enforcement.
With the results of such research, thesis will provide additional scientific
discussing the development, improve and ensure the rights of the accused is a
juvenile and expand the rights that the of the International Convention on the Rights
of the Child, to promote the positive effects of this invention in ensuring human
rights in general, rights and interests of the accused is a juvenile in the criminal in
50
particular, strengthening of the socialist building social equality, democracy,
civilization under the direction of the Party.
51
Table of Statutes and other Legal Instruments
International documents
1. The criminal procedure of Russian Federation.
2. The Convention on the Rights of the Child (1989)
3. United Nations Guidelines for the Prevention of Juvenile Delinquency (the
Riyadh Guidelines)
4. United Nations for popular minimum rules approved on February 2, 1990
5. United Nations Standard Minimum Rules for the Administration of Juvenine
Justice (The Beijing Rules)
6. United Nations Rules for the protection of Juvenile Deprived of Their
Liberty has approved by General Assembly of the United Nations on
14/12/1990
Vietnamese documents
7. Constitution of the Socialist Republic of Vietnam in 1992
8. Code of Civil of the socialist republic of Vietnam in 2005
9. Code of Criminal procedure of the socialist republic of Vietnam in 2003
10. Law on Protecting, Caring and Educating Children of the socialist republic
of Vietnam has approved in 1991
11. Law on Education in 1991
12. Law on the organisation People’s Court in 2002
13. Luật Ký kết, gia nhập và thực hiện điều ước quốc tế
14. Labour Code of the socialist republic of Vietnam in 1995 (đã được sửa đổi
bổ sung năm 2002), Nxb CTQG, 2002.
15. The penal code of the socialist republic of Vietnam in 1999, Nxb CTQG,
1999.
References
16. Chu Manh Hung , “Công ước quyền trẻ em năm 1989 - Cơ sở cho việc bảo
vệ quyền trẻ em”, Tạp chí Luật học số 3/2003, “ Internation Convention on
the rights of the child 1989, the basic for children right protection”), Journal
of the law, March, 2003.
17. Đặng Nam, “Kinh nghiêm bảo vệ trẻ em của Thụy điển”, (The experience to
gurantee the child of Sweden), in Báo điện tử của Báo Gia đình và xã hội,.
(Electronic Newspaper of The family and society of the Newspaper), To
update Web, 2008-12-03
52
18. Le Cam and Do Thi Phuong, “Tư pháp hình sự đối với người chưa thành
niên: Những khía cạnh pháp lý hình sự, Tố tụng hình sự, Tội phạm học và so
sánh luật học”, (The criminal judicial with juvenile), in Tạp chí Tòa án nhân
dân, , (Journal of People’s court) (No.20), pp. 6-10
19. Luong Thi My Quynh, (2003), “Đảm bảo quyền của người bị buộc tội theo
Điều 6 Công ước Châu Âu về quyền con người”, (Guaranty of rights of the
accused under the Article 6 of the European Convention of Human right),
Luận văn Thạc sỹ (Master’s Thesis), in 2003, Ho Chi Ming city University of
law.
20. Le Thi Nga, Hue University of Science “Children rights in law” (Journal of
Population and Developmen)t, July 2007.
21. Hanoi Law University (2005), Textbook on State and law argument ,
Publishing House Judiciary, Ha Noi, 2005.
22. Hanoi Law University (2007), Textbook on International Law, The People
security Publishing House, 2007
23. Institude of law research – Ministry of Justice and Radda Barnen, (1998),
“Strenthening the capacity of the Juvenile justice system in Viet Nam”, Legal
information bulletin, 1998.
24. Nguyen Thai Phuc, “Nguyên tắc suy đoán vô tội”, (The principle of
presumetion innocence”) in Tạp chí nhà nước và pháp luật, (Journal of law
and state), November 2006, pp. 72-83.
25. Nguyen Thai Phuc, “Thực tiễn bảo đảm quyền con người trong tố tụng hình
sự Việt Nam”, (The realities of gurantee human rights in Vietnam Criminal
procudure), in Tạp chí Khoa học pháp lý (Journal Legal science), No.3
(34)/2006.
26. Nguyen Tien Đat, “Bảo đảm quyền con người trong việc bắt, tạm giữ, tạm
giam”, (... ), Tạp chí Khoa học Pháp lý, (Journal Legal science), No.3
(34)/2006)
27. Nguyen Trong Phuc, 2008, “ About the principles to ensure the defending
right in the Code of criminal procedure of Vietnam”, The State and Law
Magazine (No. 2/2008), P.83)
28. Nguyen Tien Dat, “ The guarantee about human rights in arrest, temporary
custody, temporary detention”, Legal Science magazine (No. 3 (34)/2006)
29. Nguyen Thai Phuc, “Thực tiễn bảo đảm quyền con người trong tố tụng hình
sự Việt Nam”, (Right guarantee of humanbeing rights in Code of Vietnamese
criminal procedure in reality), in Tạp chí khoa học pháp lý, (Journal Legal
science),No.3(34)/2006.
30. Nguyen Thai Phuc (2007), “ The compulsory participation of counsel for the
defence in criminal procedure”, the Legal Science magazine, 3-2007
53
31. Pham Ngoc Anh, National Institute of Political and administrative Studies at
Ho Chi Minh “Strengthen and protect human rights in criminal judicial”, the
social insurance magazine No. 8/2007
32. Tran Thao, “ Đảm bảo quyền công dân của người tham gia tố tụng trong điều
tra vụ án hình sự theo tinh thần cải cách tư pháp”, (Guarantee citizen rights of
participator in criminal case an investigate according the spirit reform
judicial) , in Tạp chí dân chủ và pháp luật, (Journal the law and democracy),
No.9(198)-2008.
33. The right of the child in Nations and International, Political Nation
Publishing House , Ha Noi, 1995
34. Tran Quang Vinh, (Ho Chi Ming city University of law) Master’ law
syllabus, 2006, pp 5-6
35. The legal science Research Institute, “Comparative criminal judicial”, the
legal science information, 1999, P. 78
36. Tran Van Dung, (2008), “Institution of Juvenile Judge in the criminal law and
criminal procedure of French Republic, Law magazine (No. 5/2008)
37. Resolution no. 03/2004/ on 02/10/2004 of judgement board People ‘supreme
court instructs implementation of some stipulations in the first part of Code of
criminal procedure in 2003
38. Vietnamese Dictionary, Social Sciences, Ha Noi, 2000
54