Adjudication of criminal cases involving victims aged under 18 a comparison between vietnamese criminal procedure law and international norms and standards on juvenile justice

HO CHI MINH CITY UNIVERSITY OF LAW *** FACULTY OF CRIMINAL LAW NGUYỄN HOÀNG NAM ADJUDICATION OF CRIMINAL CASES INVOLVING VICTIMS AGED UNDER 18: A COMPARISON BETWEEN VIETNAMESE CRIMINA

HO CHI MINH CITY UNIVERSITY OF LAW

***

FACULTY OF CRIMINAL LAW

NGUYỄN HOÀNG NAM

ADJUDICATION OF CRIMINAL CASES INVOLVING VICTIMS AGED UNDER 18: A COMPARISON BETWEEN VIETNAMESE CRIMINAL PROCEDURE LAW AND INTERNATIONAL NORMS AND STANDARDS

ON JUVENILE JUSTICE

BACHELOR THESIS

Supervisor: Dr LÊ HUỲNH TẤN DUY

HO CHI MINH CITY, YEAR 2022

HO CHI MINH CITY UNIVERSITY OF LAW

ON JUVENILE JUSTICE

SCHOOL YEAR: 2018 - 2022 STUDENT ID: 1853801012126

SUPERVISOR: Dr LÊ HUỲNH TẤN DUY

HO CHI MINH CITY, YEAR 2022

DECLARATION

I declare that this thesis, which is named “Adjudication of Criminal Cases Involving Victims Aged Under 18: A Comparison between Vietnamese Criminal Procedure Law and International Norms and Standards on Juvenile Justice”,

is my original work The thesis, which is implemented under the supervision of

Dr Lê Huỳnh Tấn Duy, ensures honesty and complies with rules regarding citation, the note of references promulgated by the Faculty of Criminal Law and Ho Chi Minh City University of Law

I hereby take full responsibility for this declaration of mine

Author

Nguyễn Hoàng Nam

LIST OF ABBREVIATIONS

No Abbreviation Meaning

1 Beijing Rules UN Standard Minimum Rules for the Administration

of Juvenile Justice 1985

2 Circular No 01/2017 Circular No 01/2017/TT-TANDTC

3 Circular No 02/2018 Circular No 02/2018/TT-TANDTC

4 CPC Vietnam Criminal Procedure Code 2015

5

Declaration of Basic

Principles of Justice

for Victims

Declaration of Basic Principles of Justice for Victims

of Crime and Abuse of Power 1985

6 Havana Rules United Nations Rules for the Protection of Juveniles

Deprived of their Liberty 1990

8 ICCPR International Covenant on Civil and Political Rights

06/2018/TTLT-VKSNDTC-11 Model Law Model Law on Justice in Matters Involving Child

Victims and Witnesses of Crime 2009

15 Rome Statute Rome Statute of the International Criminal Court

16 UDHR Universal Declaration of Human Rights 1948

17 UN Declaration UN Declaration of Basic Principles of Justice for

Victims of Crime and Abuse of Power 1985

18 UN Guidelines UN Guidelines on Justice in Matters involving Child

Victims and Witnesses of Crime 2005

19

UN Principles and

Guidelines on Access

to Legal Aid

United Nations Principles and Guidelines on Access

to Legal Aid in Criminal Justice Systems

20 Vienna Guidelines Guidelines for Action on Children in the Criminal

Justice System 1997

21 p / pp Page / pages

TABLE OF CONTENTS

Page

INTRODUCTION 1

CHAPTER 1 GENERAL COMPREHENSION OF THE ADJUDICATION OF CRIMINAL CASES INVOLVING VICTIMS UNDER 18 YEARS OF AGE 8

1.1 Basic definitions relating to the adjudication of criminal cases involving victims under 18 years of age 8

1.1.1 Victims under 18 years of age 8

1.1.2 Adjudication of criminal cases involving victims under 18 years of age 12

1.2 Characteristics of the adjudication of criminal cases involving victims under 18 years of age 13

1.3 Bases for regulations on the adjudication of criminal cases involving victims under 18 years of age 18

1.3.1 Theoretical bases 18

1.3.2 Regulatory bases 20

1.3.3 Practical bases 24

1.4 Reasons for comparing Vietnamese criminal procedure law with international norms and standards on the adjudication of criminal cases involving victims under 18 years of age 25

CONCLUSION TO CHAPTER 1 28

CHAPTER 2 INTERNATIONAL NORMS AND STANDARDS ON THE ADJUDICATION OF CRIMINAL CASES INVOLVING VICTIMS UNDER 18 YEARS OF AGE 29

2.1 Overview of international instruments governing the adjudication of criminal cases involving victims under 18 years of age 29

2.1.1 Human rights and child rights instruments 29

2.1.2 Special international instruments 34

2.2 The scope of application and fundamental principles 36

2.2.1 Scope of application 36

2.2.2 Fundamental principles 38

2.3 Legal and other appropriate assistance 39

2.3.1 Legal assistance 39

2.3.2 Other appropriate assistance 40

2.4 The right to privacy 42

2.5 Special court and procedure of the first-instance trial 45

2.5.1 Special court 45

2.5.2 Procedure of the first-instance trial 46

CONCLUSION TO CHAPTER 2 51

CHAPTER 3 COMPARING VIETNAMESE CRIMINAL PROCEDURE LAW WITH INTERNATIONAL NORMS AND STANDARDS ON THE ADJUDICATION OF CRIMINAL CASES INVOLVING VICTIMS AGED UNDER 18 AND RECOMMENDATIONS 52

3.1 General introduction to Vietnamese criminal procedure law governing the adjudication of criminal cases involving victims under 18 years of age 52

3.2 Comparing some core provisions of Vietnamese criminal procedure law with international norms and standards on the adjudication of criminal cases involving victims under 18 years of age 55

3.2.1 The scope of application and general principles 55

3.2.2 Legal and other appropriate assistances 58

3.2.3 The right to privacy 60

3.2.4 Special court and procedure of the first-instance trial 63

3.3 Recommendations for reforming the Vietnamese criminal procedure law governing the adjudication of criminal cases involving victims under 18 years of age based on relevant international norms and standards 66

CONCLUSION TO CHAPTER 3 69

EPILOGUE 70 BIBLIOGRAPHY I

INTRODUCTION

1 Problem statement

Victims aged under 18, despite suffering from crimes against themselves, are inexorably dragged into the complicated criminal justice proceedings However, these victims are particularly vulnerable due to their young age, lack of fully developed mental and physical health, etc Thus, upon being infringed by crimes, they tend to be severely traumatized and suffer badly.1 If they are not protected well during the aforementioned complex criminal justice proceedings, they themselves would even be victimized once again and suffer from even more traumas.2 Unfortunately, it is evidenced that contrary to the well-known juvenile justice system applicable to offenders under 18, and same adequate attention has not been paid to promulgate rigid mechanisms to best protect victims under 18 years of age.3 Perhaps acknowledging such shortcomings, over recent years, the United Nations has issued a variety of

instruments with the aim, inter alia, to extend the protection for not only the child

offenders but also the child victims

Vietnam has always held onto a unified and coherent approach on matters relating to children and juveniles In 2012, Political Bureau promulgated its Direction

No 20/CT-TW on Enhancing the Communist Party’s Leadership for Caring, Educating, and Protecting Children in the New Situation This document yields a foundation to better protect children and juveniles upon being infringed by crimes and dragged into the justice system Further, being a party to many of these international instruments, Vietnam owes the duty and thus has implemented many of its commitments into its domestic legal system Such implementations can be well found

in the Vietnamese Constitution 2013, Criminal Procedure Code 2015, Law on Children

2016, etc However, it is indisputable that there still exist many shortcomings that can

be identified under these legal documents, especially during the adjudication stage For instance, they lack provisions on assigning people who provide victims aged under 18 with legal and other appropriate assistance These shortfalls shall put them in a

1 Switchboard 111, “Operation Results of the National Child Protection Switchboard 111 since its operation until now”, http://tongdai111.vn/tin/ket-qua-hoat-dong-cua-tong-dai-quoc-gia-bao-ve-tre-em-111-tu-khi-van-hanh- den-nay , accessed on 20 June 2022

2 Uli Orth (2002), “Secondary Victimization of Crime Victims by Criminal Proceedings”, Social Justice

https://www.researchgate.net/publication/235912615_Secondary_Victimization_of_Crime_Victims_by_Crimin al_Proceedings , accessed on 20 June 2022

3 David Finkelhor, Theodore P Cross, and Elise N Cantor (2005), The Justice System for Juvenile Victims: A

Comprehensive Model of Case Flow, Trauma, Violence & Abuse, Vol 6, No 2, p 83, http://www.jstor.org/stable/26638265, accessed on 11 May 2022 See Truc Phuong (2021), “It is necessary to

protect both the juvenile accused and juvenile victims”, chua-thanh-nien-post652724.html , accessed on 20 June 2022

https://plo.vn/can-bao-ve-ca-bi-cao-lan-bi-hai-la-nguoi-disadvantageous position amid the criminal proceedings and also have negative impacts on their recovery

The author observes that the number of research into the topic of criminal cases involving victims under 18 has increased considerably However, most works spread their focus among the entire criminal proceedings, including early stages such as lodging and processing criminal information, filing of charges, investigating, prosecuting, and even enforcing judgements Notably, there have been some rare authors carrying out research on the adjudication stage of criminal cases involving victims under 18 years of age Perhaps due to the length limitation of these works, they have not assessed closely enough Besides, international norms and standards have not been examined thoroughly and holistically enough to point out the gap between them and our domestic law However, being successful at conducting this comparison shall surely provide instrumental pieces of information that shall help legislators reform the Vietnamese Criminal Procedure Law and bridge the gap with the international norms and standards

For the above reasons, the author decided to conduct the thesis, which is named

“Adjudication of Criminal Cases Involving Victims Aged Under 18: A Comparison between Vietnamese Criminal Procedure Law and International Norms and Standards

on Juvenile Justice”, with a hope that it shall contribute to the overall better protection

of the legitimate rights and interests of victims under 18 years of age

- Pham Thi Nguyen (2012), Protecting human rights of victims in criminal procedures, Bachelor Thesis, Ho Chi Minh City University of Law;

- Cao Thi Hien (2013), Victims in Criminal Procedures, Bachelor Thesis, Ho Chi

Minh City University of Law;

- Ngo Thi Huynh Nhu (2021), Adjudication of Criminal Cases involving Sexual Abuse of People under 16 years of age pursuant to Vietnam Criminal Procedure Law,

Bachelor Thesis, Ho Chi Minh City University of Law

• LL.M Theses

- Huynh Thi Truc Mai (2014), Protecting the human rights of the juvenile victims during the first-instance trial stage, LL.M Thesis, Ho Chi Minh City University of Law;

- Do Cao Ngoc Han (2019), Victims’ rights: A Comparison with Russia’s Criminal Procedure Law and Experience for Vietnam, LL.M Thesis, Ho Chi Minh

City University of Law;

- Tran Thi My Dung (2019), Legal aid for victims under 18 years of age in accordance with Vietnamese criminal procedure law, LL.M Thesis, Ho Chi Minh City

University of Law;

- Do Cam Lai (2020), Protecting Legitimate Rights and Interest of Victims by People Providing Legal Assistance Under Vietnamese Criminal Procedure Law, LL.M Thesis, Ho Chi Minh City University of Law

• Ph.D Theses

- Pham Thi Thanh Nga (2015), The Rights of the Child in the Judicial Sector in Vietnam: Compliance with International Legal Standards, Ph.D Thesis, University of

Wollongong

• Student scientific research

- Truong Nhat Minh, Nguyen Hoai Thuong, Tran Thi Huong (2018), Protecting the victims under 18 years of age pursuant to the UN’s guidance and Experience for Vietnam, Student scientific research piece at University Level, Ho Chi Minh City

University of Law;

- Tran Ngoc Hoang Quan, Ho Thi Xuan Hoang & Nguyen Pham Xuan Thy

(2021), Procedures for dealing with sexual cases against persons under 16 years of age: Comparative research and lessons for Vietnam, Student scientific research piece

at University Level, Ho Chi Minh City University of Law

• Other publications

- David Finkelhor, Theodore P Cross, and Elise N Cantor (2005), “The Justice

System for Juvenile Victims: A Comprehensive Model of Case Flow”, Trauma, Violence & Abuse, Vol 6, No 2;

- Pham Thi Thanh Nga (2014), “The establishment of juvenile courts and the fulfillment of Vietnam’s obligations under the convention on the rights of the child”,

Faculty of Law, Humanities and the Arts – Papers, University of Wollongong;

- Le Van Dong (2015), “Discussion about the procedures applicable to persons

under 18 committing a crime pursuant to Criminal Procedure Code 2015”, Journal of Procuratorate studies;

- Nguyen Hai Ninh (2016), “Protection of crime whistleblowers, witnesses,

victims and other participants in criminal proceedings”, Protection of crime

whistleblowers, witnesses, victims and other participants in criminal proceedings

Journal;

- Le Thi Nga (2016), “Rights of child victims and child witnesses in criminal

justice in Viet Nam”, Asia-Pacific Journal on Human Rights and the Law, 17(2016),

88–101;

- Pham Thanh Tu (2017), “Some opinions to protect the legitimate rights and interests of victims under 18 years old in the Criminal Procedure Code 2015”,

Democracy and Law Journal, Ministry of Justice,;

- Vu Thi Quyen (2017), “Criminal Proceedings applicable for Victims under 18

Years of Age Under Vietnamese Criminal Procedure Code 2015”, State and Law Journal, Vol 1(345);

- Dinh Van Doan (2017), “Criminal Proceedings Applicable to Victims under 18

Years of Age Under Vietnamese Criminal Procedure Law”, State and Law Journal,

Vol 6;

- Nguyen Thi Loc (2018), “The rights to privacy of the victims aged under 18 in

criminal procedure”, Journal of Procuratorate studies;

- Nguyen Cao Cuong (2018), “Taking testimony and commanding the taking testimony of victims aged under 18 pursuant to the provisions of Vietnamese Procedure

Code 2015, Journal of Procuratorate;

- Le Huynh Tan Duy (2018), Perfecting the Vietnamese Criminal Procedure Law concerning People Under 18 Years of Age based on the UN’s Legal Framework, Ho

Chi Minh City National University Publication;

- Nguyen Thi My Huong (2020), “The Principle of ensuring The right to privacy

of Persons under 18 years of age pursuant to Vietnam Criminal Procedure Law”, Ho Chi Minh City University of Law;

- Pham Thi Bich Ngoc (2020), “Legal provisions and practical trials of criminal

cases against child victims and recommendations for improvement”, Online Journal of People’s Court;

- Le Huynh Tan Duy, Marilyn McMahon (2021), “Protecting the Identity of Juveniles in Criminal Proceedings in Viet Nam and Victoria: Open Trials and

Restricted Publication”, Asia-Pacific Journal on Human Rights and the Law;

- Le Huynh Tan Duy, Yvon Dandurand (2021), “The Treatment of Juvenile Victims and Witnesses of Crime in the Vietnamese Justice System”, Ho Chi Minh City University of Law

As can be observed, the aforementioned documents shall be valuable sources

on which the author can rely to understand both the theoretical and practical aspects

relating to the thesis There are works mentioning very comprehensive and general understandings of the criminal justice system applicable to “victims under 18 years of age” They mention not only the adjudication stage but also other stages that correlate

to each other in one way or another All in all, a close look at these works has equipped the author with basic knowledge of the realm, and also ensured the author with a holistic and independent assessment of Vietnamese Criminal Procedure Law

Be that as it may, there has not been any work that has researched systematically and thoroughly the adjudication stage Besides, an adequate comparison between the Vietnamese domestic legal system and international norms and standards to realize our shortcomings has not been conducted either Therefore, the author carries out this thesis endeavoring to address the issues that have been left unsolved, covered, or discussed

in the previous studies

3 Research purpose and objective of the thesis

This thesis aims at two primary purposes: firstly, it seeks to demonstrate shortcomings in Vietnamese Criminal Procedure Law concerning the regulations on the adjudication of criminal cases involving victims under 18 years of age in comparison with international norms and standards; secondly, it proffers recommendations for legal reforms to better protect victims under 18 years of age during the adjudication stage of criminal cases they involve in, and to bring the domestic legislation in line with the international norms and standards

To achieve the aforementioned purposes of the study, this thesis shall accomplish herein objectives:

Firstly, this thesis shall deliver general comprehension of the adjudication of

criminal cases involving victims aged under 18 by giving basic definitions, defining its characteristics, identifying the bases for regulations, and concluding by providing reasons for comparing with international norms and standards;

Secondly, the thesis shall examine the international norms and standards on the

adjudication of criminal cases involving the victims under 18 years of age;

Finally, the thesis shall compare Vietnamese Criminal Procedure Law with the

international norms and standards to identify some shortcomings, thereby proffering recommendations for legal reforms

4 Research object and scope of the thesis

Throughout this thesis, first, theoretical matters and relevant notions shall be examined Then, both municipal and international instruments shall be assessed Most prominently, concerning international documents, the thesis takes a close look into UN

instruments touching on the adjudication of criminal cases involving victims under 18 years of age Similarly, for Vietnam’s municipal instruments, the legislation regulating the adjudication stage of criminal cases involving victims under 18 years of age is examined

With respect to theoretical matters, the thesis shall concentrate on the most basic notions concerning the adjudication of criminal cases involving victims under 18 years

of age

With respect to international instruments, the thesis focuses on crucial instruments, such as (i) the UN Declaration, (ii) the Vienna Guidelines, (iii) the UN Guidelines, (iv) the Model Law, and (v) the Model Strategies 2015

With respect to domestic instruments, this thesis studies relevant Vietnamese regulations on the adjudication regulations applicable in criminal cases involving victims under 18 years of age The involved instruments would first be the CPC and its subordinate law documents Also, relevant documents such as the Law on Children, Law on Legal Aid, etc., shall be assessed

In terms of this thesis’s limitation, it will only concentrate on one stage of the criminal proceedings - the first-instance trial Thus, other stages such as lodging and processing criminal information, filing of charges, investigation, prosecution, or enforcement of criminal judgments shall be beyond this thesis’s scope

5 Research methodologies

The author will utilize three main research methods throughout the thesis: analytical, doctrinal legal research, and comparative Additionally, the surveyable and observable methods are also used to collect more statistics, counting the results of numerous surveys from competent authorities and other legitimate, open sources Besides, the historical research method is made use of to study the past events and how they affected the legislating decisions These research methods are determined not to

be set to isolation but in interweavement

The analytical method is conducted primarily in Chapter 1 to generalize the ongoing provisions regarding the adjudication process applicable to the child victim Besides, the analytical method is also applied in Chapter 2 to analyze the international norms and standards In this Chapter 2, the doctrinal legal research method is also employed to exhaustively analyze the international norms and standards, and at the same time, come up with reasoning behind it

In Chapter 3, the comparative method is utilized to contrast Vietnamese domestic legislation with international norms and standards, thereby discovering

strengths, clarifying problems to be solved from a doctrinal perspective, and proffering recommendations

6 Significance of the thesis

From a theoretical perspective, this thesis shall provide an in-depth analysis on our domestic legislation’s limitations in the field, thereby providing recommendations for legislators to consider for legal reforms As for the significance in practice, suggestions for bridging the gap in legislation shall help with the actual implementation and effectiveness of the protection of child victims Finally, for educational purposes, this thesis shall be a valuable source for further research into the realm

7 Thesis structure

In addition to the Introduction, the Epilogue, and the Bibliography, this thesis comprises 03 chapters as follows:

Chapter 1 General Comprehension of the Adjudication of Criminal Cases

Involving Victims Under 18 Years of Age

Chapter 2 International Norms and Standards on the Adjudication of Criminal

Cases Involving Victims Under 18 Years of Age

Chapter 3 Comparing Vietnamese Criminal Procedure Law with International

Norms and Standards on the Adjudication of Criminal Cases Involving Victims Under

18 Years of Age

CHAPTER 1 GENERAL COMPREHENSION OF THE ADJUDICATION OF CRIMINAL

CASES INVOLVING VICTIMS UNDER 18 YEARS OF AGE

1.1 Basic definitions relating to the adjudication of criminal cases involving

victims under 18 years of age

1.1.1 Victims under 18 years of age

The notion of victims under 18 years of age comprises two distinct elements: the first one being the “victim,” and the second one being the additional element to further specify the victim - those “victims” are under 18 years of age

It should be highlighted that the victim referred to throughout this thesis is the individual Hence, organizations as a victim shall not be included within the scope of this thesis Beside the term “victim” as above, these days, it is also suggested that distinctions should be drawn from the term “victim of crime.”

The term “victim” in itself was used back in the good old days In the past, the sacrifice of children and women was a ritualistic killing of children and women to please supernatural beings The term “victim” was then used to refer to people suffering from pain to bring peace and happiness to others.4 These days, however, the

term “victim” means much differently Generally, a victim means a person who has been attacked, injured, or killed as the result of a crime, a disease, an accident, etc.5 It

is also suggested that victims can also be organizations.6 There are multiple kinds of victims: victims of natural disasters, accidents, war victims, and victims of crime.7

On the other hand, the most notable definition of the notion of victims of crime can be found in paragraph 1 of the Declaration of Basic Principles of Justice for Victims adopted by the General Assembly in 1985 The term “victims of crime” means

“persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.” Also, this term, as suggested by Smartt, refers to “a person who has suffered direct, or threatened, physical, emotional or pecuniary harm as a result of a commission of a crime.”8 Under these two definitions, the element of having the

4 Spalek, Basia (2005), Crime Victims: Theory, Policy And Practice, Macmillan International Higher Education

5 Oxford University Press, www.oed.com/viewdictionaryentry/Entry/, accessed on 02 May 2022

6 Tran Huu Trang (2010), Matters relating to victims of the crimes, Hanoi Law University, p 47

7 Ibid

8 Ursula Smartt (2006), Criminal Justice, London: Sage Publications

perpetrator identified, apprehended, prosecuted, or convicted is not compulsory This approach is in line with the Declaration of Basic Principles of Justice for Victims,

which specifies under Article 2 that “A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim ”Another UN document – the Basic Principles and

Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations

of International Human Rights Law and Serious Violations of International

Humanitarian Law – also shares the similarities with the Declaration of Basic

Principles of Justice for Victims with respect to the definition of the victim.9 Even though these two documents are not legally binding, the texts are widely accepted as core documents on victim issues at the international level.10

Further, the existing international norms concerning victims' rights also reflect the same approach.11 Thus, although a particular interpretation suggests otherwise (by saying that to be qualified as a victim, the criminal case must have been initiated against the perpetrator), to better protect the crime victims and comply with the international norms and standards, the aforementioned interpretation should prevail To recapitulate,

a victim of crime 12 is a person who has suffered from harm as a result of a commission

of a crime, regardless of the existence of the proceedings initiated against the perpetrator(s)

Remarkably though, in some countries, including Vietnam, only when participating in the criminal proceedings would one qualify as a victim of crime or crime victim.13

The second element of the term shall be “under 18 years of age” To put it differently, the age element of the victim is accentuated It should be noted that there

9 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Article 9

10 Jan Van Dijik and Jo Goodey (2005), “Benchmarking legislation on crime victims: the UN Declaration of

1985”, Bundesamt für Justiz (ed.), Opferhilfe in der Schweiz: Erfahrungen und Perspektiven, Haupt Verlag, Bern,

p 311; Gael M Kerrigan (1988), ‘‘Historical development of the UN Declaration of Basic Principles of Justice

for Victims of Crime and Abuse of Power’’, Cherif M Bassiouni (ed.), International Protection of Victims,

International Association of Penal Law, Ere`s, p 91

11 For instance, the Council of Europe adopted a number of victim-related instruments and documents within the framework of its human rights policy, e.g the 1985 Council of Europe Recommendation 85 (11) on the Position

of the Victim in the Framework of Criminal Law and Procedure, adopted by the Committee of Ministers on 28 June 1985; the Council of Europe Recommendation No R (87) 21 on Assistance to Victims and the Prevention

of Victimization, adopted by the Committee of Ministers on 17 September 1987; 1977 the Council of Europe Resolution (77) 27 on the Compensation of Victims of Crime, adopted by the Committee of Ministers on 28 September 1977; 1983 European Convention on the Compensation of Victims of Violent Crimes, adopted on 24 November 1983

12 Hereinafter, the term “victim” or “victims” shall be used to denote “victim of crime” or “victims of crime”

13 Vietnam Criminal Procedural Code, Article 62 See Tran Huu Trang (2010), above n 3, p 53

are differences among the three following notions – “people under 18 years of age”,

“juvenile,” and “child.”

The attention can first be put to the root documents of the relating realm – the

CRC, which stipulates that “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.”14 Following that, a person that is less than 18 years old shall be considered a child However, the definition finds its scope of application within the CRC only, and it leaves each member state the right to regulate its domestic law differently (that is, to provide the age range of children to be lower)

On the other hand, according to the Beijing Rules, juvenile would encompass child or young person, who, under the respective legal systems, may be dealt with for an offense

in a manner different from an adult. 15 Reference can be made to the above-listed definition of “a child” in the CRC Whilst the definition for a child can be recognized quite clearly, the definition for the young person cannot be found its origin or explanation as obvious Nevertheless, in some documents aimed explicitly at statistical purposes, a young person can be interpreted as a person from 15 years old to 24 years old, acknowledging that this can vary from one country to another.16

Herein, it can be seen that a juvenile is defined as a child or a young person On the other hand, a child is defined as a person who is less than 18 years of age A young person is generally seen as those who are from 15 years old to 24 years old And yet, all of these contain certain exceptions, leaving the discretion for each country to regulate differently However, there is yet another requirement within Article 2.2.(a) –

“a juvenile … may be dealt with for an offence in a manner which is different from an adult” Essentially, this is a loop.17 If there are only two parties, A and B (a juvenile and the adult), one must not define that A is those not being B, or vice versa It is suggested that to extend the protection over persons over 18 (or young persons), the drafters of Beijing Rules decided to opt for such choice (with this word choice, it somewhat not limits the scope of application of procedures - if the domestic law regulates that young persons are dealt precisely the same as the adult, they can be considered as a juvenile and Beijing Rules shall be applied).18 However, as a corollary

of this, there may exist contingence when the domestic law requires the child to be

14 CRC, Article 1

15 Beijing Rule, Article 2.2.(a)

16 United Nations Department of Economic and Social Affairs (2009), Definition of Young Person

17 Geraldine Van Bueren (1995), The International Law on the Rights of the Child, Martinus Nijhoff, p 171

18 Le Huynh Tan Duy (2018), Perfecting the Vietnamese Criminal Procedure Law concerning People Under 18

Years of Age based on the UN’s Legal Framework, Ho Chi Minh City National University Publication, p 3

dealt with pursuant to procedures applicable for adults since committed crimes are the especially dangerous ones, then that child would even not be able to be considered as

a juvenile under the Beijing Rules Consequently, Beijing Rules cannot even step into and protect them.19

Acknowledging the shortcomings of the definition brought by the Beijing Rules, later on, the Havana Rules promulgated a simpler yet more efficient definition

Accordingly, Article 11.(a) of the Havana Rules provides that “A juvenile is every person under the age of 18.” As can be seen, such a definition is similar to the

aforementioned one under the CRC However, there is no caveat or exceptions stipulated under the Havana Rules.20 In fact, this approach shares a variety of similarities with the Office of the High Commissioner of Human Rights' approach

Article 6.5 of the ICCPR provides that “Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age.” Stemming from this, in its

General Comment 10, High Commissioner of Human Rights expressed that while it is aware that the age of juvenile is to be determined by each State party in the light of relevant factors, it suggests that all persons under the age of 18 should be treated as juveniles, at least in matters relating to criminal justice.21

In Vietnam, there is a difference between the term “child” and “juvenile.”22Accordingly, a “child” is defined as a person under 16 years of age23, whereas a

“juvenile” is a person under 18 years of age.24

However, in the realm of criminal justice legislation, the country uses specific age groups instead of the terms “child” and

19 Ibid

20 Dinah Shilton (2003), Commitment And Compliance: The Role Of Non-Binding Norms In The International

Legal System, Oxford University Press, pp 449 - 463 It should be recalled that both the Havana Rules and the

Beijing Rules are considered “soft law” However, as per the international dominant view, they impose the earnest

request for the addressees to apply See Jorge Castaneda (1969), Legal Effects of United Nations Resolutions, New York and London

21 UN Committee on the Rights of the Child (2007), CRC General Comment No 10: Children's Rights in Juvenile

Justice, CRC/C/GC/10, para 13

22 Le Huynh Tan Duy, Yvon Dandurand (2022), “The Treatment of Juvenile Victims and Witnesses of Crime in

the Vietnamese Justice System”, Proceedings of International Conference on Juvenile Criminal Justice, Ho Chi

Minh City University of Law, p 670

23 Law on Children 2016, Article 1

24 Civil Code 2015, Article 21.1

25 Le Huynh Tan Duy, Yvon Dandurand (2022), above n 22, p 670

proceedings initiated against the perpetrator(s) Further, the term “victims under 18

years of age”, “juvenile victims” and “child victims” shall be used interchangeably throughout the thesis, and they all denote the “victims under 18 years of age” or

“victims aged under 18”

1.1.2 Adjudication of criminal cases involving victims under 18 years of age

According to Black's Law Dictionary, adjudication is the legal process of resolving a dispute, or the process of judicially deciding a case, and is also the judgment

or decision given.26 Within the scope of this thesis, the focus shall be placed on the process of adjudicating criminal cases involving victims under 18 Thus, the former meaning of the term “adjudication” would be applied

In criminal cases, the competent courts shall reserve the right to determine criminal charges.27 However, it is widely known that one criminal case is not solely

adjudicated by one and only one court Article 14.5 of ICCPR clarified that “Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed

by a higher tribunal according to law ”This article imposes the active obligation of

the member states to ensure the review is done by a higher tribunal both based on a substantive manner.28 It is indisputable that the appellate system serves several ends, among them are correcting legal and factual errors,29 promoting the developments and revolutions of legal principles confined under a specific legal system,30 increasing the uniformity in the application of the law,31 and ensuring the everlasting and continuously-developing respect for the rule of law.32 Especially in criminal cases, the existence of the appellate level is to minimize the contingence of wrongful convictions

26 Black's Law Dictionary (11th ed 2019), adjudication

27 ICCPR, Article 14 See UN Human Rights Committee (2007), CCPR General Comment No 32: Article 14:

Right to equality before courts and tribunals and to a fair trial, CCPR/C/GC/32, para 9

28 Human Rights Committee (2007), above n 27, para 48

29 Chad M Oldfather (2010), “Error Correction”, 85 Indiana Law Journal, Vol 49, p 49

30 Paul D Carrington, Daniel J Meador, & Maurice Rosenberg (1976), “Justice on Appeal”, St Paul: West

Publishing Co

31 Cassandra Burke Robertson (2006), “Appellate Review of Discovery Orders in Federal Court: A Suggested

Approach for Handling Privilege Claims”, 81 Washington Law Review, 733

32 Michael Heise (2009), “Federal Criminal Appeals: A Brief Empirical Perspective”, Marquette Law Review, Vol 93 p 825, 827 See Cassandra Burke Robertson (2013), “The Right to Appeal”, 91 North Carolina Law

Review, p 1219

33 Keith A Findley (2009), “Innocence Protection in the Appellate Process”, Marquette Law Review, Vol 93

However, within the scope of the thesis, the author shall respectfully focus on the adjudication at the first-instance level for two reasons: (1) the attention shall be put

on the immensely core underlying principles and some formalities of the procedures,

thus bearing the burden of bringing about the regulations of appellate adjudication proves no significant; (2) to address the appellate adjudication processes and compare

them with those of the first-instance adjudication thoroughly would rather take another

project

1.2 Characteristics of the adjudication of criminal cases involving victims

under 18 years of age

Globally, it is critically required that proceedings and procedures applied in any criminal cases must adhere to rigid and unified regulations.34 Similarly, in case any child victim (who is technically a human in their rights) is involved as a result of others infringing the penal law, the procedures dealing with them should at least meet the standard of those for adult victims Yet, considering that the subject of this particular type of criminal proceedings is children – those particularly vulnerable and prone to being traumatized, they should receive more favorable and considerate treatment to ensure the promotion of children’s development and their fullest recovery and social reintegration 35 Thus, after analyzing numerous international and domestic instruments, the author comes to a conclusion on several characteristics of the adjudication of criminal cases involving victims under 18 years of age

Firstly, the subject of the entire procedure is victims under 18 years of age

Broadly speaking, victims are those suffering from damage due to the committed crime However, they are then dragged into the complicated criminal proceedings that cost them time, physical health, and mental health (such as shame, loss of self-esteem, depression, and traumatic anxiety).36 Thus, it is said that there are several types of needs that general victims would need – emotional, financial, practical, and informational needs.37 What is crucial herein is that the victims in the scope of this thesis are under 18 years of age They are different from adults in the sense of their lack of physical and psychological development And there was evidence illustrating that exposure to the criminal justice system would have a bad influence on them

34 ICCPR, Article 14

35 Le Thi Nga (2016), “Rights of Child Victims and Child Witnesses in Criminal Justice in Viet Nam”,

Asia-Pacific Journal on Human Rights and the Law, Vol 17, p 88-101

36 Azmiati Zuliah, Madiasa Ablisar (2018), Rights to restitution for child victim of criminal act under government

regulation number 43, year 2017, p 1

37 Mike Maguire (1985), “Victims' Needs and Victim Services: Indication from Research”, Victimology: An

International Journal, Vol 10, pp 539 - 559

becoming well-rounded adults.38 While it is true that all criminal cases, including those involving juvenile victims, would need to pass through several agencies and institutions, not all of them would directly exert over the juvenile victims’ well-being For instance, an offender may face the interrogation and the testimony; then, he may

be brought in front of a court and plead guilty before being taken into custody Yet, these all can technically happen without the juvenile victim see or know about.39However, there would still be contingencies where the juvenile victims may have to give testimony to the investigating, prosecuting authorities, appear at the court or to confront the accused, etc Therefore, having recognized the vulnerability and their needs for special protection, assistance, and support,40 Article 39 of the CRC imposes

an obligation upon all members to take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim This very first characteristic has a profound effect on the entire proceedings

Secondly, the adjudication of criminal cases involving victims under 18 years

of age would be conducted in a way that would best protect the legitimate rights of the juvenile victims.41 First of all, the UN Declaration of Basic Principles of Justice for Victims was adopted by consensus in the General Assembly in 1985, and thus reflects the collective will of the international community to restore the balance between the fundamental rights of the suspects and the legitimate rights and interests of victims.42

Specifically, “judicial… mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible“.43 Be that as it may, it is often observed that the national justice systems have usually focused on the offender and omitted victims’ rights, needs, and interests.44 Given that from the outset, victims are those having their rights violated in some ways, the primary concern should therefore

be to ensure that they at least feel that justice has been done Thus, more and more legal instruments have been developed to step-by-step address this issue Following the UN

38 UN Committee on the Rights of the Child (2019), General comment No 24 (2019) on children’s rights in the

child justice system, CRC/C/GC/24, para 12

39 David Finkelhor, Theodore P Cross, and Elise N Cantor (2005), above n 1, pp 83–102

40 UN Economic and Social Council (2005), UN Guidelines, Preamble

41 See Tran Ngoc Hoang Quan, Ho Thi Xuan Hoang, Nguyen Pham Xuan Thy (2021), Procedures applied in the

child-abuse cases: A comparison research and Experience for Vietnam, Ho Chi Minh City University of Law, p

8

42 UN Office for Drugs Control and Crime Prevention (1999), Guide for Policy Makers on the Implementation of

the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, United Nations,

Introduction

43 Declaration of Basic Principles of Justice for Victims, Article 5

44 United Nations and International Bar Association (2003), Human Rights In The Administration Of Justice: A

Manual On Human Rights For Judges, Prosecutors And Lawyers (Professional Training Series ; No 9), United

Nations, p 752

Declaration of Basic Principles of Justice for Victims, UN Guidelines were issued to clarify the basic principles and ensure the specifically-catered procedural regime for juvenile victims.45

Further, as the victims herein are under 18 years of age, providing more adequate measures becomes even more necessary Article 39 of the CRC provides that

member states “shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim.“ Besides, to better

assist the member states in implementing the mentioned provisions, the UN Office on Drugs Control and Crime Prevention also promulgated Model Law 46 These documents are all targeted at enhancing the possibility of access to justice for juvenile victims and witnesses

Thirdly, each law enforcement authority owes the duty to give the victims

adequate treatment to ensure the best-possible adjudication of criminal cases involving victims under 18 years of age As mentioned above, the concern should be that all conduct should make victims feel that justice has been done.47 The other way around, children would suffer more disillusionment (also known as secondary victimization48) Their disappointment and disillusionment can be highly attributed to the thoughtlessness and lack of consideration by the police, prosecutors, court officials, judges, etc.49 To that end, it is mandatory that every subject working in the criminal justice system must continuously show respect and understanding

Specifically, the police are the first agency victims encounter after an offense is committed Oftentimes, victims come and report the case to the police Or else they are dragged into the criminal proceedings by the police after a criminal case has been initiated against the accused Thus, in many cases, this is also the only agency that victims would ever meet throughout the proceedings The reaction of victims to the whole criminal justice system is therefore essentially determined by the police’s work.50

45 UN Economic and Social Council (2005), UN Guidelines

46 UN Office on Drugs Control and Crime Prevention (2009), Model Law and Related Commentary on Justice in

Matters involving Child Victims and Witnesses of Crime

47 United Nations and International Bar Association (2003), above n 44, p 758

48 Secondary victimization denotes the phenomenon where victims become disappointed in the way they are

treated, and their cases are dealt with See UN Congress on Prevention of Crime and the Treatment of Offenders (1990), United Nations Norms and Guidelines in Crime Prevention and Criminal Justice: Implementation and

Priorities for further Standard-Setting

49 UN Congress on Prevention of Crime and the Treatment of Offenders (1990), United Nations Norms and

Guidelines in Crime Prevention and Criminal Justice: Implementation and Priorities for further Setting, United Nations, p.10, para 31

Standard-50 Ibid., para 36

Similarly, the prosecutor and the court play no less vital roles Though the criminal systems are different among countries, thus differences in the role played by victims, every law enforcement officials have the possibility of causing further traumas

to children In fact, not only may the investigation process be done by the police lead

to victims’ distress, but the whole process of criminal proceedings, starting from the investigation, prosecution, the trial itself, and the sentencing of offenders or even the offenders’ release has, despite being more subtly, exact same effect.51 As a corollary

to this, such personnel would have the most significant responsibility to prevent secondary victimization

Finally, the adjudication of criminal cases involving victims under 18 years of

age must comply with domestic law and international norms and standards

Matters relating to children, juveniles and crime have been regarded among the most issues of concern in the UN Crime Prevention and Criminal Justice Programme.52

As child protection issues have been gaining prominence within the UN system, many instruments have been released to include more child protection issues First and foremost, the CRC was adopted in 1989 and served as the most widely ratified human rights convention.53 As an extension to the CRC, in 2011, the Optional Protocol to the CRC on Communication Procedures was adopted.54 This protocol allows children to seek justice directly at the Committee on the Rights of the Child if the national legal system has not been able to provide a remedy for a child rights violation.55 Additionally, the juvenile in international criminal justice is also governed by other international humanitarian instruments:56 Universal Declaration of Human Rights;57 International Covenant on Civil and Political Rights;58 International Covenant on Economic, Social and Cultural Rights;59 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and

51 UN Office on Drugs and Crime (2015), Training Programme on the Treatment of Child Victims and Child

Witnesses of Crime for Law Enforcement Officials, United Nations, p 41

52 See Tran Ngoc Hoang Quan, Ho Thi Xuan Hoang, Nguyen Pham Xuan Thy (2021), above n 44, p 11

53 International Bureau for Children's Rights, Brief Guide on Child Protection and International law for Canadian

Police Officers deployed in Peacekeeping Operations, Royal Canadian Mounted Police, p 11

54 The Protocol so far has 48 State Parties and 16 Signatories See “Optional Protocol to the Convention on the

Rights of the Child on a communications procedure - Status of Ratification”, https://indicators.ohchr.org,

accessed on 08 May 2022

55 International Bureau for Children's Rights, above n 53, p 13

56 Pham Quang Thanh (2020), “Justice Model for People Under 18 Years of Age according to the UN’s direction”, https://iluatsu.com/hinh-su/mo-hinh-tu-phap-nguoi-duoi-18-theo-dinh-huong-cua-lien-hop-quoc/, accessed on

15 May 2022

57 Universal Declaration of Human Rights 1948

58 International Covenant on Civil and Political Rights 1966

59 International Covenant on Economic, Social and Cultural Rights 1966

Serious Violations of International Humanitarian Law;60 United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, 61 etc.62 It should be mentioned that mentioned instruments do not distinguish children’s rights specifically They concern all human rights and therefore also apply to children.63 Such documents were signed, and many states have become the parties to it, thus, they are all bound by the treaties Therefore, when legislating or executing their domestic legal documents, including those regulating the adjudication of criminal cases involving victims under

18 years of age, they must ensure such conduct would comply with the international instruments

Besides international legally binding instruments that have been signed and ratified by various states, the international community has developed a series of international guidelines to regulate the way States treat children Oftentimes, they address all aspects of children’s interactions with a state’s justice system Being guidelines, they are not legally binding, yet they are technically set up to establish minimum standards64 which States should obey

However, these documents are designed for guiding purposes, and they regulate human rights and children’s rights in general Thus, the detailed provisions on the criminal procedures applied in criminal cases involving victims under 18 years of age cannot solely be extracted from these international humanitarian instruments Accordingly, it is also necessary to incorporate the fundamental procedural principles

to solve cases throughout different stages.65 Even though these principles are not used directly to administer criminal cases, they nevertheless provide important guidance for the detailed provisions, in turn, the actual application of the law.66 The United Nations lays down these basic yet important principles that the member states must obey in order to best protect the rights of victims under 18 years of age From these principles, the member states can bring about more principles to lay a ground for further legislation,

60 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law 2006

61 United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems 2012

62 Other conventions address specific human rights include: The UN Charter of 1945; The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984; The Convention relating to the Status of Refugees of 1951 and its Optional Protocol of 1967; The Convention on the Elimination of Discrimination against Women of 1979 and Optional Protocol of 1999; The UN Convention on the Rights of Persons with Disabilities of 2006

63 International Bureau for Children's Rights, above n 53, p 13

64 Ibid., p 14

65 See Tran Ngoc Hoang Quan, Ho Thi Xuan Hoang, Nguyen Pham Xuan Thy (2021), above n 44, p 12

66 Truong Nhat Minh, Nguyen Hoai Thuong, Tran Thi Huong (2018), Protecting the victims under 18 years of

age pursuant to the UN's guidance and Experience for Vietnam, Ho Chi Minh City University of Law, p 33

including the adjudication of criminal cases involving victims under 18 years of age, with the ultimate aim of ensuring the best protection and treatment for them

1.3 Bases for regulations on the adjudication of criminal cases involving

victims under 18 years of age

The bases for specifically-catered regulations on the adjudication of criminal cases involving victims can be divided into three more minor elements: theoretical, regulatory, and practical

1.3.1 Theoretical bases

As illustrated earlier, victims in these criminal cases are under 18 years of age For that, it is necessary to impose specifically designed regulations for the entire criminal procedure After assessing the field, the author concludes that there are several reasons for this Notably, this would help enhance the victim’s cooperation; enhance public support for the criminal justice system; reinforce socially desirable behaviors; and, most importantly, avoid secondary victimization.67

Firstly, providing more provisions on the adjudication of criminal cases

involving victims under 18 years of age proves to be beneficial for the victims, thereby providing incentives to report a crime to the competent authorities The impact of crime

on victims can be profound They may suffer from physical, mental, emotional, and financial harm, from which some may never recover However, in addition to the strong human rights incentives for assisting and protecting victims, there are criminal justice incentives for doing so.68 Victim cooperation is crucial to achieving successful prosecutions of criminal offenders and dismantling organized criminal groups.69 Such

is the fact since most crimes can only be detected with the public’s aid, and crimes being outside the knowledge of the police shall be exempt from the control of the criminal justice system.70 Yet one of the challenges faced by many criminal justice systems is to obtain such cooperation.71

67 Joanna Shapland et al (1985), Victims In The Criminal Justice System, the Dutch Research and Documentation

71 In fact, as pointed out by many statistics, this is the real phenomenon happening In 1978, the Dutch Ministries

of Justice and Internal Affairs installed a committee in Netherlands to consider treatment of victims of violent sex crimes According to the committee, there was the large gap between police statistics and victim surveys, which indicated many crimes were not reported to the police Similarly, in the U.S, surveys show that even where some

of the more serious offenses were concerned, more than half were not reported, which later led to the formation

of Law Enforcement Assistance Administration (LEAA) in the early of 1970s See Shapland, Joanna et al (1985), above n 67, p 27; See Mike Maguire (1991), “The Needs and Rights of Victims of Crime”, Crime and

Justice, vol 14, p 369, http://www.jstor.org/stable/1147465, accessed on 14 May 2022

Victims are reluctant to give information and evidence because of perceived or actual intimidation or threats against themselves or their family members This concern may be worsened where victims are particularly vulnerable For instance, by virtue of their age and developing levels of maturity, children require that special measures be taken to ensure that they are appropriately assisted and protected by criminal justice processes.72 However, in reality, not only is there a lack of dissatisfaction by the police and the prosecutors during the investigation and the prosecution processes, but the adjudication of cases also even pushes the victims more plunging into the annoyance Specifically, these have been attributed to a variety of different causes: the lack of facilities, annoying surroundings, sitting next to the defendant with consequent feelings

of intimidation, lack of information, and above all, lack of information and knowledge

of what they would have to do.73 It is evidenced that upon receiving appropriate and adequate care and support, victims are more likely to cooperate with the criminal justice system in reporting the perpetrators to justice.74 Thus, providing better schemes

to ensure the best interest of child victims in general or to adjudicate the criminal cases involving them effectively in particular is deemed more necessary than ever before

Secondly, in the same vein, providing provisions to better conduct the

adjudication the criminal cases involving victims under 18 years of age, which is a part

of victim assistance, is viewed as an important fact in maintaining the continuous support of society for the criminal justice system.75 This, in turn, helps with improving legal awareness and enhancing respect for the law Society will also benefit from it thereto in the sense of foreseeable reduction in crime rates.76

Thirdly, treating victims adequately would reinforce socially desirable

behaviors Imagine if victims (including those under 18 years of age) come to report their cases yet receive mediocre indifferent attitudes from the police, the prosecutors, and the courts, they will grow up thinking that it is acceptable to commit illegal conduct

To put it differently, failures to send out the “no” signals indeed signify the acceptance

of the behavior.77 On the contrary, the other way round would make victims themselves,

72 United Nations Office on Drugs and Crime, “Victim Assistance and Witness Protection”, https://www.unodc.org/unodc/en/organized-crime/witness-protection.html, accessed on 14 May 2022

73 Joanna Shapland (1984), Victims, the Criminal Justice System and Compensation, The British Journal of

Criminology, 24(2), http://www.jstor.org/stable/23637025, accessed on 14 May 2022, p 134

74 Mike Maguire (1991), above n 68; See Joanna Shapland (1984), above n 70

75 Recht in beweging (1990), Judicial Policy and Victim Working Group (Werkgroep justitieel beleid en slachtoffer)

76 Joanna Shapland et al (1985), above n 67, p 29

77 Ibid

the society in extensive grasp sturdier understandings of “what should be done, and what should not.”

Finally, the adjudication of any criminal case is generally the last step that settles

down the entire criminal proceedings However, not only can the actual outcome of the case affect the victims, but the adjudication processes also play a significant role Surprisingly enough, many victims even put more stress on the latter element78 - they were happy if the offenders would not be caught Yet, they would really be disappointed if the hearing processes were poorly conducted Also, as mentioned, many reports show many problems caused by the adjudicating procedures, such as the lack of facilities, cramped surroundings, lack of information, etc.79 Above all, they are deeply bothered by the lack of information about the current process and about the general court procedures.80 Unfortunately, this seems to be a prevailing case in many jurisdictions – the judges, prosecutors, and the police still are somewhat lagged behind from victims’ plight.81 These shortfalls may, one way or another, cause “secondary victimization” or “secondary injury”, which is the last thing one would want to do towards victims, especially those under 18 years of age The officials are supposed to alleviate the suffering of the victims by bringing them fair justice, not to bring about the other injury and force them to bear

The abovementioned theoretical bases illustrate the necessity of having a distinct regulation for the adjudication of criminal cases involving victims under 18 years of age

78 Joanna Shapland (1984), above n 70, p 135

79 Ibid

80 Ibid., p 136

81 Martin Symonds (1975), “Victims of violence: Psychological effects and aftereffects”, The American Journal

of Psychoanalysis, Vol 35(1), p 25

82 David Finkelhor, Theodore P Cross, and Elise N Cantor (2005), above n 39, p 83

83 This system is usually handled as a part of other systems, or to put it differently, a specifically designed system

that deals with victims in mind has not been established yet See Ibid

84 Ibid., p 83

85 United Nations Office on Drugs and Crime (2009), Handbook for Professionals and Policymakers on Justice

Matters involving Child Victims and Witnesses of Crime, p 1

have not been synthesized to constitute a whole system, several instruments, including binding and non-binding ones, have already been adopted by UN bodies to tackle the needs of reforming justice systems and better protect the rights of victims, especially those of victims under 18 years of age The bases for the adjudication of criminal cases involving victims under 18 years of age can also be found thereto

Firstly, within the realm of legally binding international instruments, the CRC86

was adopted and achieved almost universal adherence.87 The CRC contains many general provisions relating to child victims of abuse and juvenile justice.88

Article 19 of the CRC provides that “States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.”

Article 39 of the CRC further stipulates: “States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture

or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts Such recovery and reintegration shall take place in an environment which

fosters the health, self-respect and dignity of the child.”

Other legally binding international instruments also state relevant provisions for the adjudication of criminal cases involving victims under 18 years of age:

Article 68 of the Rome Statute:89 “Protection of the victims and witnesses and their participation in the proceeding: 1 The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses In so doing, the Court shall have regard to all relevant factors, including age, gender ”

Article 75 of the Rome Statute even provides specific regulations on the

reparation scheme for victims: “Reparations to victims 1 The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.”

86 Convention on the Rights of the Child 1989

87 There are 196 State Parties and 1 Signatory to this Convention See “Convention on the Rights of the Child”, https://indicators.ohchr.org, accessed on 14 May 2022

88 United Nations Office on Drugs and Crime (2009), above n 85, p 2

89 Rome Statute of the International Criminal Court 1998

Articles 6, 7 and 8 of the United Nations Convention against Transnational Organized Crime and the Protocols90 thereto also provide similar provisions “Each State Party shall ensure that its domestic legal or administrative system contains measures that provide to victims of trafficking in persons, in appropriate cases: (a) Information on relevant court and administrative proceedings; (b) Assistance ”;

“Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons”;

Besides, the United Nations Convention against Corruption91 also has a distinct article (Article 32) dedicated to protecting witnesses, experts, and victims

Secondly, in addition to the binding instruments, some non-binding instruments

were adopted to fill the gap found in the former Declaration of Basic Principles of Justice for Victims, and Economic and Social Council Resolution 1989/57 on the implementation of the UN Declaration and the plan of action for the implementation

of the UN Declaration also contain several relevant provisions, though they are generally claimed to not be able to provide detailed and specific guidance on the treatment of children as victims.92 Significantly, in its resolution 2005/20, the Economic and Social Council adopted the UN Guidelines,93 which serves as a filler for many important gaps in international norms and standards in the area of the treatment

of child victims Later, the Model Law was drafted to better assist the countries in adapting their national legislation to the provisions contained in the Guidelines and in other relevant international instruments.94

As analyzed, the aforementioned documents demand the countries to design specifically catered regulations on the adjudication of criminal cases involving victims under 18 years of age They undoubtedly set a solid ground for the governments to reform their domestic criminal justice systems to meet the international standards and norms

Vietnam has established a rigid legal framework for the treatment of children in general and children who are victims in particular.95 First off, in general, the Constitution 2013 expressly recognizes the rights of children to enjoy protection, care and education, and to participate in children's affairs.96 It also bans all forms of

90 United Nations Convention against Transnational Organized Crime and the Protocols 2004

91 United Nations Convention against Corruption 2004

92 United Nations Office on Drugs and Crime (2009), above n 85, p 1

93 UN Guidelines 2005

94 United Nations Office on Drugs and Crime (2009), Justice in Matters involving Child Victims and Witnesses

of Crime Model Law and Related Commentary, p iii

95 Le Huynh Tan Duy, Yvon Dandurand (2022), above n 22, p 673

96 Vietnam Constitution 2013, Article 31.7

violations of children's rights Following this, the Law on Children 2016 was

promulgated to prescribe the rights and duties of children; the principles and measures

to guarantee children's rights; and the responsibilities of agencies, organizations, educational institutions, families, and individuals in realizing children's rights and duties.97 This law also dedicates a separate article to address the measures to protect,

inter alia, the juvenile victims.98 In particular, with respect to the criminal justice context, two main pillars of this area – the PC and CPC – all contain distinct provisions relating to juvenile victims.99 While in PC, many offences were regulated specifically

to reflect the danger posed by the fact that the victims are juvenile,100 the CPC also reserves a whole Chapter 28 to provide special procedures for dealing with criminal

cases involving, inter alia, victims of crime who are under 18

Besides, to better implement the provisions under the Constitution, codes, and laws, many subordinate law documents were adopted The Supreme People's Procuracy, the Supreme People's Court, the Ministry of Public Security, the Ministry

of Justice and the Ministry of Labour, War Invalids and Social Affairs jointly adopted Joint Circular No 06/2018 on cooperation in implementing some provisions of the CPC 2015 regarding the procedures applicable to cases involving juveniles Additionally, the Supreme People's Court adopted several explanatory legislations, including Circular No 01/2017, Circular No 02/2018, and Resolution No 06/2019 The first one prescribes matters relating to the organization of the courtroom of Family and Juvenile Courts The second one contains detailed regulations for the trial of criminal cases involving juveniles that fall within the jurisdiction of Family and Juvenile Courts The last one has specific provisions on the adjudication of sexual-related cases in which the victims are under 18 The Supreme People's Court also issued Official Dispatch No 68/TANDTC-PC on the adjudication of offences of child sexual abuse and violence against children Lately, Joint Circular No 01/2022/TTLT-VKSNDTC-TANDTC-BCA-BQP-BLĐTBXH has been issued to prescribe issues on the coordination between competent agencies in receiving and handling denunciations and information about crimes, requisitions for charges, investigating, prosecuting and trying in first-instance cases of sexual abuse of persons under 18 years of age

As can be observed, Vietnam has established quite concrete regulations to protect juvenile victims throughout the criminal justice proceedings, and these include

97 Law on Children 2016, Article 2

98 Law on Children 2016, Article 71

99 Le Huynh Tan Duy, Yvon Dandurand (2022), above n 22, p 671

100 These include the offences under Articles 124, 142, 144, 145, 146, 157, 151, 152, 153, 296, 325, and 329 of

PC

specific provisions ensuring the proper adjudication of criminal cases involving victims under 18 years of age

1.3.3 Practical bases

Beside the theoretical and regulatory bases, there are a couple of practical commands that result in the needs to have distinct regulations on the adjudication of criminal cases involving victims under 18 years of age

In 2017, European Union Agency for Fundamental Rights published a report on Child-friendly justice Perspectives and experiences of children involved in judicial proceedings as victims, witnesses or parties in nine EU Member States.101 Universally speaking, there are many protection measures for victims, with some specifically targeting child victims To put some prime examples, one of children's rights is to be ensured their right to protection and privacy.102 Among the manifestations of the infringement of this right of them is that they are not kept safe from wrongs.103However, the practices show that 37% of children interviewed had to encounter the defendant or other parties Such exposure indeed had a negative impact on most children (79% of them).104 Another example can be found within the discipline of ensuring the best interest of the child One of the conditions to achieve such a goal is

to ensure children's right to be protected from hardship during the justice process.105 In turn, one of the necessary conducts is to guarantee the expeditiousness of the proceedings (to ensure each phase shall be done swiftly) It is shown that the length of proceedings is directly related to children's assessments of their child-friendliness: the more prolonged proceedings last, the less child-friendly and more negative children find them.106 Remarkably, when proceedings lasted less than 1.5 years, 35 % of the interviewed children found them child-friendly, yet this number nosedived to only 11 % when they lasted two years.107

On the contrary, statistics show that children would greatly appreciate the supports they receive.108 For example, one of the fundamental rights of child victims is

to be ensured their best interest This right is enshrined throughout many instruments,

101 European Union Agency for Fundamental Rights (2017), “Child-friendly justice - Perspectives and experiences of children involved in judicial proceedings as victims, witnesses or parties in nine EU Member States”, https://fra.europa.eu/en/publication/2017/child-friendly-justice-perspectives-and-experiences-children- involved-judicial , accessed on 16 May 2022

102 CRC, Article 16, 39, 40

103 European Union Agency for Fundamental Rights (2017), above n 101, p 85

104 Ibid., p 87

105 United Nations Office on Drugs and Crime (2009), above n 85, p.66

106 European Union Agency for Fundamental Rights (2017), above n 101, p 36

107 Ibid

108 Ibid., p 11

ranging from the CRC,109 Rome Statute,110 and ICCPR111 to the soft-law instruments such as the UN Guidelines112, etc In practice, children perceiving legal proceedings themselves or the elements of them as child-friendly would assess their best interests

as having been served.113

All in all, it is obvious that the criminal justice proceedings would have tremendous effects on children In cases where the proceedings are hassle, the juvenile victims have to bear a considerable burden, thus resulting in certain significant adverse reactions By contrast, when the procedures, including the adjudication of the cases in which they involve, are child-friendly, they would hugely benefit from that These all statistics point to the needs to have a distinct regulation on the adjudication of criminal cases involving victims under 18 years of age

1.4 Reasons for comparing Vietnamese criminal procedure law with

international norms and standards on the adjudication of criminal cases involving victims under 18 years of age

This thesis shall herein first discuss international norms and standards on the adjudication of criminal cases involving victims under 18 years of age; afterwards, it analyzes according provisions under the Vietnamese legal system to compare the difference between the two Before getting any further, it is necessary to first identify what international norms and standards are It is often defined that “standard and norm”

is a document containing normative elements that determine how members of the target audience should conduct themselves In the same sense, an “international standard and norm” is a “standard and norm” that is intended to apply to more than one country.114Generally, due to the nature of being parts of soft law, standards and norms do not in themselves bind the independent state.115 However, it should be accentuated that upon

deciding to ratify or accede to these instruments, countries will be bound by them (and

in these circumstances, they will essentially become hard law).116

109 CRC, Article 3

110 Rome Statute, Article 53

111 ICCPR, Article 14

112 UN Guidelines, Article 8.(c)

113 European Union Agency for Fundamental Rights (2017), above n 101, p 112

114 Matti Joutsen (2012), International Standards and Norms as Guidance in Criminal Justice System, p 57

115 United Nations Office on Drugs and Crime, “Topic one - Introducing the United Nations standards and norms

on crime prevention and criminal justice vis-à-vis international law”, prevention-criminal-justice/module-1/key-issues/1_introducing-UN-standards-and-norms-on-CPCJ-vis-a-vis- international-law.html , accessed on 20 May 2022

https://www.unodc.org/e4j/zh/crime-116 Matti Joutsen (2012), above n 114, p 57

Firstly, Vietnam is the state party to many legally binding instruments; thus, it

is bound by and owes the obligation these international obligations to incorporate international standards and norms and codify them into its domestic legislation

Under international law, specifically Article 26 of the Vienna Convention on the Law of Treaty, every country shall have the duty to act properly in the performance

of its treaty obligation.117 In other words, every treaty in force is binding upon the parties to it and must be performed by them in good faith.118 Upon acceding and ratifying these instruments, the country shall have the duty to undertake its obligations

by any possible means, through legislative, executive, etc As for its domestic bases, the Consitution specifies that the country shall abide by the Charter of the United Nations and treaties to which the Socialist Republic of Vietnam is a contracting party.119 This principle is again listed under Vietnam Law on Treaties, where one of the principles of conclusion and operation of treaties is to ensure compliance with a treaty to which the Socialist Republic of Vietnam is a party.120

Vietnam is the state party to many legally binding instruments relating to criminal justice; among them are those pertaining to juvenile criminal justice These include many instruments such as the CRC,121 the ICCPR,122 and the Optional Protocol

to the Convention on the Rights of the Child on the involvement of children in armed conflict, Thus, the country shall have the duty to undertake all measures to implement the rights guaranteed to the protected under such documents To this end, comparison with the international norms and standards would help expose the shortcomings or any incompatibilities with the international norms and standards In large, this would enable Vietnam to conduct its legal reforms with respect to its juvenile criminal justice system

Secondly, being a state in the international community, Vietnam is encouraged

to adhere to the international norms and standards, including those contained within non-binding instruments

It should be mentioned that concerning the legally binding instruments, the member states would have an obligation to ensure their compliance with the laid-down

117 Vienna Convention on the Law of Treaty, Article 26 See Leah Aluoch Odhiambo (2016), Application of the

Legal Doctrine of Pacta Sunt Servanda on Kenya’s International Relations, The University of Nairobi, p 1

118 Vienna Convention on the Law of Treaty, Article 26

119 Vietnam Constitution, Article 12

120 Vietnam Law on Treaties, Article 3

121 Indeed, Vietnam was the first country in Asia and the second country in the world to ratify the CRC in 1990

See UNICEF (2019), “30th Anniversary of the Convention On the Rights of the Child”,

https://www.unicef.org/vietnam/stories/30th-anniversary-convention-rights-child, accessed on 20 May 2022

122 Vietnam ratified the ICCPR on 1982

provisions contained thereto This shall be done not only through legislation but also through the execution of the law, or the adjudication of cases by every personnel Even though it is true that the international norms and standards do not bind countries in the world,123 it should not be, however, said that they are meaningless In reality, they do

impose the earnest request for the addressees to apply.124 In fact, its significance lies at both the national and international levels On the international level, “soft law” may be seen as an intermediate stage in the formulation of ideas and concepts that may later be put into “hard law” (or the binding instruments).125 On the national level, they may be utilized by the decision-makers to justify certain courses of conduct, by the citizens, non-governmental organizations, lobbyists, etc., to convince the need for legal reforms.126 In other words, these norms and standards have been developed in the conviction that they do not simply serve as a shared understanding about the minimum

standards of human rights that should be upheld when dealing with crime but also that

such standards contribute to improved professionalism and to the strengthening of the criminal justice system.127 Besides, according to the UN’s Commission on Crime Prevention and Criminal Justice, upon providing flexible guidance for legal reform, international standards and norms also take into account differences in legal traditions and structures yet provide a collective vision of how one criminal justice system should

be structured.128 Thus, taking an attentive look into and comparing with these international norms and standards shall definitely yield benefits towards improving a country’s domestic legal system

As a country in the international community, Vietnam is also encouraged to take into account these recommendations Accordingly, Vietnam may thoroughly consider these instruments to prevent its domestic legislation from contradicting international norms and standards Herein, the comparison made between the country's ongoing legislation with the international norms and standards once again proves its usefulness when it comes to realizing its legislations' shortcomings, and to bring about necessary adjustments

123 One prime example of this is when an official violates the international norms and standards upon mistreating

a child (but not contrary to the legally binding instruments or “hard law”), there is hardly anything that child could

do See Matti Joutsen, UN Standards and Norms on Juvenile Justice: From Soft Law to Hard Law, p 15

124 Jorge Castaneda (1969), above n 20

125 Matti Joutsen, above n 123, p 15

126 Ibid, p 14

127 Matti Joutsen (2012), above n 114, p 60

128 UN’s Commission on Crime Prevention and Criminal Justice, “Standards and norms”,

https://www.unodc.org/unodc/en/commissions/CCPCJ/ccpcj-standards-and-norms.html , accessed on 01 June

2022

CONCLUSION TO CHAPTER 1

It is almost always necessary to begin with a general comprehension of several relevant issues in any research This shall provide the solid ground to dive deeper into further chapters more accurately and effectively Being aware of this, in the first chapter of the thesis, the author spent the entire writing researching some general comprehension of the adjudication of criminal cases involving victims under 18 years

In the following two chapters, the international norms and standards shall first

be analyzed and discussed to provide detailed understandings, which in turn sets a rigid ground for the comparison that will be done in the final chapter

CHAPTER 2 INTERNATIONAL NORMS AND STANDARDS ON THE ADJUDICATION

OF CRIMINAL CASES INVOLVING VICTIMS UNDER 18 YEARS OF AGE

2.1 Overview of international instruments governing the adjudication of

criminal cases involving victims under 18 years of age

2.1.1 Human rights and child rights instruments

There were many early signals about the need for specialized instruments to govern matters relating to human rights This concept of human rights and human rights principles can be traced to their antiquity, such as the Ten Commandments, the Code

of Hammurabi, and the Rights of Athenian Citizens.129 The origin can be drawn to several wars in the past, which demanded the law of war.130 This law of war originally included rules based on chivalry, humanity, and religious values designed to protect noncombatants Later on, it even expanded to encompass regulations on accountability and protection.131 This law generated the counterbalance to military necessity, which then serves the whole purposes of the armed conflict The early complete institution can be said to be a League of Nations institution that dealt with minorities' rights and mandated territories.132 Such mandates of the League yet applied only to former colonies of the states that were defeated in World War I Following World War II, the world leaders vowed never ever to let the atrocities the world had just been through happen again.133 Thus, the UN Charter enshrined and encouraged guarantees for the rights of human beings.134

However, against the background of being the aftermath of World Wars, the Holocaust, and the deaths of millions of innocent human beings, the UN Charter did not specify any concrete obligations on the UN member states.135 This exclusion was primarily attributed to the opposition of the major powers with severe domestic human

129 Weissbrodt, Fitzpatrick and Newman (2001), International Human Rights: Law, Policy and Process

130 Theodor Meron (2000), “The Humanization of Humanitarian Law”, The American Journal of International

Law, 94(2), 239–278, https://doi.org/10.2307/2555292, accessed on 25 May 2022, p 242

131 Ibid.; See Theodor Meron (1993), Henry's Wars and Shakespear's Law; Theodor Meron (1998), Bloody

Constraint: War and Chivalry in Shakespear

132 Thomas Buergenthal (2006), “The Evolving International Human Rights System”, The American Journal of

International Law, 100(4), 783–807, http://www.jstor.org/stable/4126317, accessed on 25 May 2022, p 785

133 Global Citizenship Commission (2016), “The Long and Influential Life of the Universal Declaration of Human

Rights In G Brown (Ed.)”, The Universal Declaration of Human Rights in the 21st Century: A Living Document

in a Changing World (1st ed., Vol 2, pp 29–38), Open Book Publishers,

http://www.jstor.org/stable/j.ctt1bpmb7v.9 , acceesd on 25 May 2022 p 29

134 UN Charter, Preamble; Article 1.4, 13.1, 55, 62, 68, 76.3

135 Thomas Buergenthal (2006), above n 133, p 786

rights problems.136 Thus it is even said that the human rights provisions under the

Charter were purposefully drafted to be weak and vague.137 Despite these shortcomings, the human rights provisions under this instrument laid a solid ground for internationalizing the concept of human rights.138 It is thus suggested that the human rights provisions of the Charter have essential consequences in two senses: it, as mentioned, internationalized the human rights concept, and it imposed the obligation

on member states to cooperate with the Organization to promote human rights.139 The foundation of these efforts was the UDHR adopted on 10/12/1948,140 which to this day still owns the title of the UN system's normative basis.141 Despite being a non-binding instrument, the UDHR is widely recognized as having inspired and paved the way for adopting more than seventy human rights treaties.142

Contained within the UDHR are numerous provisions on the general human rights that are either directly or indirectly relevant to the criminal justice system at large

UDHR provides that “Everyone has the right to life, liberty and security of person”143,

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”144, and “Everyone has the right to recognition everywhere as a person before the law”145, “All are equal before the law and are entitled without any discrimination to equal protection of the law ”146, etc On a smaller scale, children are vulnerable, lack of ability to make decisions, and need protection.147 Upon being infringed by a criminal offense, their rights to life, right to be protected from inhuman

or degrading treatment, etc., are invaded Thus, close attention must be paid to avoid them being victimized again,148 or at least, to feel that justice has been done and get

136 Thomas Buergenthal (1997), “The Normative and Institutional Evolution of International Human

Rights”, Human Rights Quarterly, 19(4), 703–723 http://www.jstor.org/stable/762684, accessed on 25 May

2022, p 706

137 See Paul Gordon Lauren (1983), “First Principles of Racial Equality: History and the Politics and Diplomacy

of Human Rights Provisions in the United Nations Charter”, Human Rights Quarterly, Vol 5, No 1

138 Thomas Buergenthal (2006), above n 133, p 787

139 Thomas Buergenthal (1997), above n 136, p 787

140 Universal Declaration of Human Rights 1948

141 Frans Viljoen (2012), “International Human Rights Law: A Short History”,

https://www.un.org/en/chronicle/article/international-human-rights-law-short-history , accessed on 25 May 2022

142 United Nations, “Universal Declaration of Human Rights”, declaration-of-human-rights , accessed on 25 May 2022

over the trauma Many principles under the UDHR have been more or less considered

to be a part of customary international law.149

The UDHR formed the basis of two later-adopted covenants: the International Covenant on Civil and Political Rights150 and the International Covenant on Economic, Social and Cultural Rights151 These three instruments are collectively known as the International Bill of Human Rights However, it should be noted that in contrast to the UDHR, which only has the value of a soft-law instrument, the two Covenants are legally binding.152 Additionally, it is said that the ICCPR is more substantial compared

to the ICESCR since the former contains “classical human rights.”153

As for the ICCPR, several rights stemmed from the UDHR Article 6.1 of the

ICCPR reiterates, “Every human being has the inherent right to life This right shall be protected by law No one shall be arbitrarily deprived of his life.” Notably, this right

encompasses many other minor duties as well The HRC has stressed that there exists

an obligation upon the State party to train relevant personnel to minimize the chance

of violation.154 In its General Comment No 36, the HRC has noted that the right to life should never be interpreted narrowly as is Instead, the states should rather employ all

possible measures to ensure the right to enjoy life with dignity.155 Article 17 also

stipulates, “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful attacks on his honour and reputation.” Further, Article 14 of the ICCPR provides that “1 All persons shall be equal before the courts and tribunals The press and the public may be excluded from all or part of a trial for reasons when the interest of the private lives of the parties so requires, ”, “4 In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation ” The

HRC highlighted that the domestic law does not have the sole discretion to determine whether to incorporate these essential elements that the ICCPR already guarantees Instead, these guarantees are what the state parties must adhere to.156 Besides, the HRC also required that juveniles are entitled to at least the same guarantees accorded to

149 Global Citizenship Commission (2016), above n 133, p 790

150 International Covenant on Civil and Political Rights 1996

151 International Covenant on Economic, Social and Cultural Rights 1996

152 Frans Viljoen (2012), above n 141

153 Sarah Joseph and Melissa Castan (2013), The International Covenant on Civil and Political Rights: Cases,

Materials and Commentary, Oxford University Press, p 7

154 Ibid., p 184

155 United Nations Human Rights Committee (2019), General comment No 36 (2018) on Article 6 of the

International Covenant on Civil and Political Rights on the right to life, CCPR/C/GC/36, para 3

156 United Nations Human Rights Committee, General Comment No 32 (2007) on Article 14 of the International

Covenant on Civil and Political Rights on Right to equality before courts and tribunals and to a fair trial,

CCPR/C/GC/32, para 4

adults and also need other special protection.157 The Article also contains a specific part to exclude the participation of the press or the public Above all, the legitimate rights and interests of the juvenile are put as the top priority.158 Herein, victims under

18 years of age are those who suffer severely, and their personal lives are negatively affected Thus, the role of their families, governments, and society in protecting them should be stressed In the same vein, the protection of their rights should be maintained throughout the proceedings,159 from the initiation to the adjudication stage

Whereas the ICCPR seeks to protect civil and political rights, the provisions in the ICESCR concern economic, social, and cultural rights In contrast to those in the ICCPR, the provisions in the ICESCR are considered aims to which the parties agree

to aspire.160 One may think the rights contained within ICESCR are not relevant to the criminal justice system at large or the adjudication of criminal cases involving victims under 18 years of age However, it should be accentuated that such an assumption is incorrect Firstly, there exists an interdependence and indivisibility between civil and political rights on the one hand and economic, social, and cultural rights on the other hand.161 Secondly, economic and social rights violations exacerbate the initial violations and cause secondary victimization.162 Following that, it reduces the possibility of successful prosecution of those committing crimes and simultaneously weakens the outlook for an end to violence.163 Hence, it is submitted that ensuring the proper assistance and effective criminal justice entails guaranteeing economic, social, and cultural rights.164 Indeed, many provisions of ICESCR were drafted to protect undeniable children's rights.165 Notably, Article 12.2.(a) requires states to recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health In the broad sense, this involves a safe living environment and their mental and physical health being protected.166 As can be seen, the ICESCR also plays

a vital role in protecting children's rights, including those of juvenile victims

157 Ibid., para 42

158 Paul M Taylor (2020), Article 14: Fair Trial Rights, A Commentary on the International Covenant on Civil

and Political Rights, The UN Human Rights Committee's Monitoring of ICCPR Rights, p 388

159 Tran Ngoc Hoang Quan, Ho Thi Xuan Hoang, Nguyen Pham Xuan Thy (2021), above n 44, p 18

160 U.S Citizenship and Immigration Services (2019), RAIO Combined Training Program, International Human Rights Law, p 18

161 Sarah Joseph and Melissa Castan (2013), above n 153, p 7

162 Chapter 1, section 1.3.b

163 Christine Chinkin (2011), The Protection of Economic, Social and Cultural Rights Post-Conflict, United

Nations High Commissioner for Human Rights, p 4

164 Ibid

165 ICESCR, Article 10.3, 12.2.(a)

166 Ben Saul, David Kinley, Jaqueline Mowbray (2014), The International Covenant on Economic, Social and

Cultural Rights: Commentary, Cases, and Materials, Oxford Scholarly Authorities on International Law, p 988

Alongside the ICCPR, the ICESCR also set out the foundation for other instruments to

be later on adopted

In addition to the International Bill of Rights, there exist few other human rights instruments They can be divided into two small sub-categories – Regional Treaties and UN Treaties pertaining to human rights Regional Treaties include Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms

1950 and its Protocols ,167 the American Convention on Human Rights 1969,168 and African Charter on Human and Peoples' Rights 1981.169 On the other hand, UN Treaties pertaining to human rights contain many instruments, for instance, the International Convention on the Elimination of All Forms of Racial Discrimination,170the Convention on the Elimination of All Forms of Discrimination against Women,171etc Among these instruments is a document that can be considered a core one to this thesis – the CRC The CRC synthesized and systemized various children's rights and codified them into a single legal instrument.172 Throughout the CRC, all aspects of children's rights, especially the need to ensure “the best interest of the child,” are continuously reiterated.173 Significantly, Article 9 of the CRC also mentions the participation of parents and other parties in the procedural proceedings, acknowledging thoroughly “the best interest” of them Besides, as mentioned, the CRC drafted a separate Article 39 to protect child victims' legitimate rights Thus, these provisions illustrate how important this document is for the procedural proceedings involving child victims

Besides, there are a variety of other international instruments governing matters relating to juveniles in international criminal justice These include the Beijing Rules,174 the UN Standard Minimum Rules for Non-custodial Measures 1990 (the Tokyo Rules), the Havana Rules, the Riyadh Guidelines, Basic Principles on the Use

167 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms in 1950

168 It is also known as the Pact of San Jose, Costa Rica It was signed by the United States on June 1, 1977, but not ratified

169 African Charter on Human and Peoples’ Rights in 1981

170 International Convention on the Elimination of All Forms of Racial Discrimination in 1965

171 Convention on the Elimination of All Forms of Discrimination against Women in 1979

172 UNESCO (2012), The Review of legal protection indicators in early childhood, Commissioned by UNESCO within the framework of the Holistic Early Childhood Development Index, pp 3 - 13

173 CRC, Article 3, 9, 15, 17, 18, 20, 21, 37, 40

174 In 1985, the General Assembly of the UN also adopted another instrument, namely the Beijing Rules As its name suggests, the Beijing Rules seek to provide instructions on how the children should be dealt with upon contacting the criminal justice system Remarkably, this instrument brings about the notion of “diversion” by

recommending alternative justice methods for minors See Juvenile Justice Center, “United Nations Standard

Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules)”,

juvenile-justice-the-beijing-rules/ , accessed on 30 May 2022

https://juvenilejusticecentre.org/resources/united-nations-standard-minimum-rules-for-the-administration-of-of Restorative Justice Programmes in Criminal Matters 2002, Guidelines for the Alternative Care of Children 2010, the General Comment No 10,175 the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems 2012, etc

The abovementioned human rights and child rights instruments have demonstrated the willingness of the international community to protect children going through the criminal justice system They nonetheless provide the sturdy ground for other special international instruments to lay more detailed provisions to protect the child, particularly in the adjudication of criminal cases involving victims under 18 years of age

2.1.2 Special international instruments

Based on general human rights and child rights instruments, specific international instruments have been adopted to better implement general principles by guiding the process of adjudicating criminal cases involving victims under 18 years of age Essentially, there are several main instruments: the UN Declaration, the Vienna Guidelines, the UN Guidelines, the Model Law, and the Model Strategies

Firstly, in 1985, General Assembly of the UN adopted the UN Declaration

based on the conviction that victims in general should be treated with compassion and respect for their dignity, and that they must be prompted redress for the harm they have suffered Beside protecting victims of abuse of power, the UN Declaration spends most

of its contents on provisions on victims of crime It denotes the notion of victims and provides regulations on aspects that could best help victims' interests, namely those on access to justice and fair treatment, restitution, compensation, and assistance.176

Secondly, in 1997 and 2005, ECOSOC respectively adopted the Vienna

Guidelines and the UN Guidelines Comparing the two, it can be seen that apart from the common purposes to assist in amending domestic laws,177 those under the UN Guidelines focus on the child victims and witnesses and even seek to provide guides for personnel working with them.178 The latter plays a critical role in providing detailed instructions to better protect child victims' rights and thus shall be discussed further in the following sections

175 As of 2014, there are 18 general comments of the Committee on the Rights of the Child in total These general comments can be found at the following address: https://archive.crin.org/en/library/publications/crc-general- comments.html

176 UN Office for Drug Control and Crime Prevention (2009), Handbook on Justice for Victims on the use and

application of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, United

Nations, Foreword

177 UN Guidelines, para 3(a); Vienna Guidelines, para 4(b)

178 UN Guidelines, para 3(c)