protecting legitimate rights and benefits of the juvenile according to criminal procedure legislations of vietnam

Results of the research would contribute toimproving criminal procedure and criminal legislations and enhancing theawareness of the parties on criminal procedures and the whole society a

GRADUATE ACADEMY OF SOCIAL SCIENCES

TRAN HUNG BINH

PROTECTING LEGITIMATE RIGHTS AND BENEFITS OF THE JUVENIlE ACCORDING TO CRIMINAL PROCEDURE

Supervisor: Prof., Dr., Dao Tri Uc

Judge 1: Ass Prof Dr Tran Dinh Nha

Judge 2: Ass Prof Dr Phung The Vac

Judge 3: Ass Prof Dr Hoang Thi Minh Son

The thesis will be defended by the Thesis Examining Board at Academy Level, meeting at the Graduate Academy of

Social Sciences

At , on / /2014

the Library of the Graduate Academy of Social Sciences

1 The necessity of the thesis

Human rights are an achievement constantly developed by the human being.Human rights consist of non-deprivable rights; the protection of human rights is,therefore, an universal legal assurance

The legal system in general and the criminal procedure law of any countryshall exercise the dual tasks, including both determining the truth of criminal casesthat is to make sure the justice is executed and ensuring the right of the parties to

be respected, ensured and protected during the path seeking for the truth andjustice The core of the task protecting human rights in criminal procedures is toensure human rights of the suspect, the accused and the defendant

The juvenile in general and the children in particular are a special groupwho have distinguished characteristics, immature psychology and developmentand are not able to protect themselves when facing legal issues Thus, there need

to be appropriate, sufficient and necessary legal instruments to help them.Concerning the juvenile who get involved in law violations, there has beenrecently an increase in the number of cases featured with more serious criminal

acts committed There has been an absence of juvenile-related legislations in

Vietnam at the moment as accurately as the meaning of this term Therefore, this

is reflected in reality as commented in Resolution No 08/NQ-TW dated on

02/01/2002 of the Politburo, specifically: In general, the judicial work has not met

the requirement and expectation of the people There are a number of cases failing to punish offenders or, otherwise, making innocent people become the victim of injustice, violating the rights of liberty and democracy of the people and negatively affecting the confidence of the people to the Party, the State and the judicial system This also means the legitimate rights and benefits of the people,

possibly including the juvenile, are not really protected

Due to the above reasons, the research of the thesis “Protecting the legitimate rights and benefits of the juvenile according to the criminal procedure law of Vietnam” may meet the necessity both practically and

theoretically

2 Purpose, task, object and scope of research

Purpose of research: the thesis comprehensively, sufficiently and

profoundly deals with theoretical issues of the legitimate rights and benefits of thejuvenile in the criminal procedures Results of the research would contribute toimproving criminal procedure and criminal legislations and enhancing theawareness of the parties on criminal procedures and the whole society as well inbetter protecting the legitimate rights and benefits of the juvenile in the criminalprocedures

Tasks: 1) To clarify legislations on the legitimate rights and benefits of the

juvenile according to the Vietnamese laws and international laws; 2) To point outobstacles and disadvantages of Vietnam’s criminal procedure legislations inprotecting the legitimate rights and benefits of the juvenile as well as shortcomings

of the application of such legislations in reality; 3) To suggest recommendations inorder to improve applicable laws particular judicial authorities to protect thelegitimate rights and benefits of the juvenile

Object of research: 1) The legitimate rights and benefits of the juvenile who

violate the laws; 2) Mechanism to protect the legitimate rights and benefits of thejuvenile violating the laws during the different criminal procedure phrasesincluding investigation, prosecution and first-instant trials

Scope of research: In term of space, the thesis covers both international legal

regimes, including international conventions and agreements and domesticlegislation, including perspectives of the Party, the legal system of the State abouthuman rights, the rights of the juvenile, the legitimate rights and benefits of thejuvenile in the criminal procedures; the role and task of the criminal procedurelegislation on human rights protection; In term of periodic scope: from the date thatthe criminal procedure code 2003 came into effect (1/7/2004) to the time being

3 Methodological basics and research methods

Methodological basics of the thesis: Namely, materialistic dialectics, Ho

Chi Minh’s thoughts and perspectives of the Communist Party of Vietnam on thehumans and human rights; Specifically, the research method that approaches multiand inter-sectors including multi social sectors utilized as mush as possible A partfrom examining human rights of the juvenile in the criminal procedures underlegal perspectives, issues that are examined are also put in the connection withother social sciences

The author focuses on analyzing and synthesizing methods, comparativelegal sciences and methods of sociology and laws to suggest opinions,

solutions that help improve criminal procedure legislations Also, the authorsuggests economic, social, cultural and educational solutions to moreeffectively protect the legitimate rights and benefits of the juvenile in thecriminal procedures in Vietnam.

Method of research: In order to obtain objects and tasks suggested,

methods of research are, throughout the research, supposed to specifically used ineach chapter of the thesis Namely, the method used in chapter 2 is analyzing andcomparing legal documents, contrasting inter-sectors and examining history-related issues The method used in chapter 3 is synthesizing and analyzing legaldocuments, listing the protection work of the rights of the juvenile as the partyduring the resolution of criminal cases The problem will be analyzed through twogroups of party including procedure conducting persons and procedureparticipating persons Analyzing and explaining methods will be used in chapter 4

to focus on suggesting solutions in both long and short terms

4 New scientific contributions of the thesis

Firstly, the thesis will examine and render out a number of definitions about

“the legitimate rights and benefits of the juvenile according to Vietnam’s criminalprocedure legislation” and “protecting the legitimate rights and benefits of thejuvenile according to Vietnam’s criminal procedure legislation”;

Secondly, the thesis will fully and comprehensively assess provisions of the

criminal procedure code 2003 and, by doing so, clarify its shortcomings,disadvantages and obstacles concerning the protection of the legitimate rights andbenefits of the juvenile as well as their actual implementation;

Thirdly, the thesis will examine and suggest fundamental provisions,

institutions of criminal procedures and social-family specialized to the juvenile inorder to effectively enhance the protection of the legitimate rights and benefits ofthe juvenile who violates the laws

5 Theoretical and practical significance of the thesis

Theoretical significance: Results of the research would enrich theories on

the rights of the juvenile in general and on the legitimate rights and benefits of thejuvenile in the criminal procedures in particular

Practical significance: Contributing to improving the criminal procedure

legislation as well as contributing to changing the awareness of the juvenile, theparties in proceedings, families, education institutions and social organizations

6 Structure of the thesis

Besides the introduction, conclusion, list of references and annex, the thesisconsists of 4 chapters and 12 points.

Chapter 1

AN OVERVIEW ON CURRENT RESEARCH ACTIVITIES

1.1 CURRENT RESEARCH ACTIVITIES

1.1.1 Current research activities in the world

In the field of studying human rights, human rights protection and humanrights protection for the juvenile on the globe, the author evaluates a number ofinternational documents and works as follows:

For international documents: The Declaration of human and civil rights

(26/8/1789) is the first document to be mentioned, which was publicized byFrench revolutionists, marking a new development of human rights The secondone is the Universal Declaration of Human Rights (UDHR), which was adopted

by the United Nations General Assembly on 10/12/1948 in Palaisde Chaillot,Paris, France On 16/12/1966 the United Nations adopted the InternationalCovenant on Economic, Social and Cultural Rights (ICESCR) and theInternational Covenant on Civil and Political Rights (ICCPR)

Besides, the United Nations adopted a number of legal instruments such asthe United Nations Standard Minimum Rules for the Administration of JuvenileJustice 1985 (the Beijing Rules), the United Nations Rules for the Protection ofJuveniles Deprived of their Liberty 1990, the United Nations Guidelines forPrevention of Juvenile Delinquency 1990 (Riyadh Guidelines), the Declaration onSocial and Legal Principles relating to the Protection and Welfare of Children,with Special Reference to Foster Placement and Adoption Nationally andInternationally 1986, the Guidelines for Action on Children in the Criminal JusticeSystem as part of the Economic and Social Council Resolution 1997/30 for Action

on Children in the Criminal Justice System (ICCPR, the United Nations GeneralAssembly adopted on 16/12/1996 and took effect from 23/3/1976)

Some outstanding works: "American juvenle Justice" , Franklin E.Jimring,c

Oxford University, Publication in 2005; "Juvenile Court: A Judge's Guide for

young adults and Their Parents", issued by Leora Krygier, publication by The

Scarecrow in 2009…, specially "Handbook for Professionals And Policymakers on

Justice Matters Involving Child Victims and Witnessed of Crime", this is one

among a series of criminal justice handbooks issued the Office of the HighCommissioner for Drug and Crime in 2009

Through examining foreign works, the author adopts the followingadvantages: 1) the protection of human rights in criminal justice firstly springsfrom the relation among human rights, citizen rights and human rights assurances

in events occurring during the criminal procedures; 2) a comprehensive approach

on the definition of the rights of the juvenile and accessing the definition oflegitimate rights and benefits of the juvenile in the criminal procedure underperspective of law studies; 3) fairly describing the current status of internationallaws on the legitimate rights and benefits of the juvenile

1.1.2 Current research in Vietnam

During examining documents to study this thesis, the author collects,evaluates and classifies them into three groups according to the above issues,specifically:

Category of works specializing in human rights and human rights protection in general, including the book on “Human Rights - a multi and inter-

sector law studies approach” - Prof., Dr Vo Khanh Vinh as chief author, the social

science publishing house, 2010 (three Volumes, 1010 pages), “Human Rights”

(Textbook for post-graduate) - Prof., Dr Vo Khanh Vinh as chief author, thesocial science publishing house, 2011 (487 pages), Monograph Book “Mechanism

to ensure and protect human rights” - Prof., Dr Vo Khanh Vinh as chief author,the social science publishing house, 2011 (431 pages)

Category of works specializing in the rights of children including the legitimate rights and benefits of the juvenile, specifically the following works:

Protecting the rights of children according to the Vietnamese laws, Hoang TheLien, the Education Publishing House 1996; For the rights of children and for theequality of women, Ho Chi Minh National Political Academy, 2000; The rights ofchildren and the media, the National Political Publishing House, 2000; Enhancingapproaching methods based on the rights of children - experience and initiativesfrom Asian countries, the National Political Publishing House, 2006; The rights ofchildren (an in-depth book for studies, education and exercise of the rights ofchildren), The Center for Human Rights, 2000

Category of works specializing in the protection of the legitimate rights and benefits of the juvenile in the criminal procedures, including the following

outstanding works: Preventing children from committing crime - by Vice Dr VuDuc Khien as Editor in Chief, the Law Publishing House, Hanoi, 1987; The issue

of criminal liability of the juvenile according to the Vietnamese criminallegislation - Ph.D Thesis - Dinh Xuan Nam, Kiev, 1994; Justice for the juvenileand the rights of children - Vu Ngoc Binh, the National Political PublishingHouse, Hanoi, 1996; Protecting Human Rights according to Vietnam’s criminalprocedures - Nguyen Quang Hien, Law Ph.D Thesis, Institute for State and Law,2009; Proceedings for the juvenile according to Vietnam’s criminal procedures,

Do Thi Phuong, Law Ph.D School of Law, Hanoi National University, 2008;

Through examining the above works, the author would make somecomments as follows: 1) works on human rights would play a role as ground forthe author to intensively assess human rights related to the “vulnerable” group ofjuvenile, particularly in the criminal procedures; 2) there have been “rooms” in theresearch on special group of juvenile, namely there has not been an intensive,comprehensive, sufficient and systematic research on both theories and actuallegislations as well as application in reality, including issues concerning thelegitimate rights and benefits of the juvenile In the other words, these works onlyapproach the rights of the juvenile under perspective of the criminal proceduresbut not under perspective of human rights

1.2 ISSUES NECESSARY TO BE CONTINOUSLY HANDLED IN THE THESIS

Firstly, Interpretations to find out definitions and analyze the nature of the

definition of “the legitimate rights and benefits of the juvenile in the criminalprocedures in Vietnam”

Secondly, the issue of protecting the legitimate rights and benefits of the

juvenile in the criminal justice (both on the world and Vietnam) needs to becompared, analyzed and interpreted

Thirdly, the rights of the juvenile and the rights of the mature need to

compared to figure out their differences, subsequently finding out “legal emptyrooms” remaining

The forth, the current statute of protecting the legitimate rights and benefits

of the juvenile in Vietnam needs to be paid more attention and studied as this is abasis to suggest the solutions;

The fifth, In Vietnam, mechanisms to protect the legitimate rights and

benefits of the juvenile in the criminal procedures legislation has not beenresearched at appropriate level

The sixth, solutions to improve the legislation and institution to protect the

rights of the juvenile in the criminal procedures must be suitable with the currentsituation in Vietnam

1.3 QUESTIONS POSED WHEN DOING RESEARCH

For the purpose of approaching human rights of the juvenile in the criminalprocedures in order to deepen criminal procedure provisions in terms of boththeory and practice, the author needs to clarify the relation among human rights,including the legitimate rights and benefits of the juvenile in the criminalprocedures These relations will subsequently play a role as bridge between thePenal Code, the Criminal Procedures Code and the issue of Human Rights Tohandle these two huge issues, there need to be following hypothesis:

The legitimate rights and benefits of the juvenile in the criminal procedures in Vietnam have not sufficiently and specifically stipulated, and there have not been enough specialized and effective institutions to best protect the juvenile’s rights in reality.

From such hypothesis, the author shall examine and systematically answerthe following questions:

1 The definition of the legitimate rights and benefits of the juvenile? thelegitimate rights and benefits of the juvenile in the criminal procedures? thelegitimate rights and benefits of the juvenile in the criminal procedures inVietnam? The protection of the legitimate rights and benefits of the juvenile in thecriminal procedures in Vietnam in history? The trend of how the legitimate rightsand benefits of the juvenile is protected in the criminal procedures in Vietnam and

in foreign countries as well?

2 Current statues of protecting the legitimate rights and benefits of thejuvenile in different criminal procedures phrases from 2004 up to now, namely: theVietnamese criminal procedures legislation? The structure of institutions to protectthe legitimate rights and benefits of the juvenile in the criminal procedures?

3 Requirements to protect the legitimate rights and benefits of the juvenile

in the criminal procedures in Vietnam in the times being and the vision to 2020?Solutions to improve the Vietnamese criminal procedures legislation to effectively

protect the legitimate rights and benefits of the juvenile? Solutions to improveinstitutions in charge of protecting the legitimate rights and benefits of the juvenile

in the criminal procedures in Vietnam?

At the end of Chapter 1, the author makes the following conclusion: the

legitimate rights and benefits of the juvenile in the criminal procedures is one issuethat interests various sciences including laws studies in general and studies in thecriminal procedures law This issue is even more pivotal as Vietnam is nowheading to a rule of law State “of the people, for the people and by the people”.Therefore, approaching human rights in perspective in the criminal procedures isfairly new one, contributing to improving the criminal procedures legislation as acomprehensive and uniformed solution to protect the legitimate rights and benefits

of the juvenile in the criminal procedures

Chapter 2 THEORIES ON PROTECTING THE LEGITIMATE RIGHTS AND BENEFITS OF THE JUVENILE IN THE CRIMINAL PROCEDURES

In this Chapter, the author will focus on the following issues:

2.1 DEFINITIONS

In this part, the author analyses characteristics of the juvenile as specialgroup of the society, who have specific physical, psychological and personalcharacteristics and have specific features in term of sociology The author maysummarizes as follows: due to immature development of psychological andphysical elements, the juvenile may not have sufficient awareness in educationand in social communicationdo Due to this, the society is required to fairly judgethem and extend to them the rights equated with their age This requires that whenthe juvenile gets involved in criminal violation, they must be treated consistentwith their age, and there must be special institutions to deal with them

Subsequently, to figure out the definition of the legitimate rights andbenefits of the juvenile, the author approaches general analysis on generalcharacteristics of human rights and then point out the relation and objectiveexistence between the universal and specific features of human rights.Accordingly, the universal features only exists as they are reflected in the specificfeatures of human rights In the other words, the universal features can be seenthrough the specific features, and the latter only exist as they are linked to the

universal features of human rights Based on analysis on the universal features ofhuman rights, the author focuses on human right related to the juvenile and theirlegitimate rights and benefits.

In terms of human rights related to the juvenile, the author mainly focuses

on two documents as follows: The UN declaration of the rights of the child 1959and the UN Convention on the rights of the child 1989 Through these twoimportant documents, it is firmly asserted that the children must be protected asthey are “physically and intelligently immature and need to be particularlyprotected, including appropriate legal means before and after they are born”

In terms of the legitimate rights and benefits of the juvenile, there has been

an absence of the official definition on “the legitimate rights and benefits” Theseterms are indication of human rights and are provided in the legal system ofcountries, depending on social, economic conditions and practices of each country.These rights are protected by the laws and different legal institutions Thus, it isappropriate to mention “the legitimate rights and benefits” in the context of a certaincountry, and this thesis only examine the topic in the context of Vietnam The havenot been official definition of Children and juvenile; therefore, “the legitimate rightsand benefits of the children” is obviously “the legitimate rights and benefits of thejuvenile” However, it is not totally rights as we understand in a opposite waybecause there is always a “gap” of legal provisions on the group between 16 and 18years old Therefore, in Vietnam at the moment, “the legitimate rights and benefits

of the juvenile is generally “the legitimate rights and benefits of children”

Through briefly analyzing the legal system of Vietnam, the author suggest adefinition of “the legitimate rights and benefits of the juvenile”, namely:

The legitimate rights and benefits of the juvenile are peculiar human rights extended to the juvenile, who is physically and mentally immature and vulnerable, and the Sate shall adopt these rights in the constitution and national legal system and ensure them to be implemented in reality as well as protect them when violated.

After suggesting the definition on “the legitimate rights and benefits of thejuvenile”, the author focuses on clarifying the term “the protection of thelegitimate rights and benefits of the juvenile according to Vietnam’s criminalprocedures legislation” in sub-section 2.1.3

To obtain the purpose of the research, the author begin from summarizingmechanism to protect human rights Namely, the said mechanism may mean the

organization and operation of a certain system, which bears two features includingsystem and operation Accordingly, a system may consist of: 1) legislations andregulations made in accordance with certain competences, procedures and ordersand obliged to parties; 2) a structure of authorities established to enforce certainfunctions and duties Operation may mean the operation of authorities andorganizations to practice their assigned duties

Next, the author analyzes and emphasizes the role of the criminalprocedures legislation as a legal instrument to protect the legitimate rights andbenefits of the people in general as well as the juvenile in particular This isbecause protecting human rights in the criminal procedures is consider the corematter among all criminal procedures activities This role is indicated in theUniversal Declaration of Human Rights 1948 and the International Covenant onCivil and Political Rights 1966; the Basis Principles for the Treatment ofPrisoners, the Convention against Torture and other Cruel, Inhuman orDegrading Treatment or Punishment 1985 … These legal instruments areregarded as standards of human rights in the criminal procedures Human rights

in the criminal procedures consists of the right to a fair trial under a just andopen criminal proceeding and court; the inviolable right to live, health, dignity,honor and other rights of private freedom Any coercive measures applied in thecriminal procedures shall be in accordance with the laws; the right to the

presumption of innocence; the right to defend, the right not be tried to late; the

right to be applied special procedure for the juvenile; the right to appeal, theright to seek justice the right to double jeopardy…

For the special group of juvenile, the protection of their legitimate rightsand benefits is stipulated in international documents for the juvenile criminaljustice, namely: 1) the Convention on the rights of the child adopted by theUnited Nations’ General Counsel on 20/11/1989 and came into effect in2/9/1990; 2) the United Nations Standard Minimum Rules for the Administration

of Juvenile Justice 1985 (the Beijing Rules); 3) the United Nations Guidelines forPrevention of Juvenile Delinquency 1990 (Riyadh Guidelines); 4) the UnitedNations Rules for the Protection of Juveniles Deprived of their Liberty 1990 (the

1990 Rules)…

These legal documents function as guidelines and recommendations toestablish a justice system for the juvenile in a country’s legal system This is

not only to respect and protect the rights of the child but also to maintain thesocial order and safety Thus, these documents enable countries to makepolicies for the juvenile criminal justice and domestically legalize andimplement provisions of the Convention on the rights of the child concerningthe juvenile criminal justice

In the context of Vietnam, the author briefly introduces the criminalpolicy of Vietnam to the juvenile crime, which bear profound humanitarianfeatures by the Party and State to the juvenile crime This is indicated throughVietnam’s criminal procedures legislation, including the Penal Code, theCriminal Procedures Code, one sector legal regulations like Resolutions by theSupreme People’s Court’s Judge Counsel and multi-sector like Circulars, evenother ones which are not legal documents but function as interpretations toapply the laws, such as Annual Reviews by the Court, Letters to direct theapplication of the laws issues by the Supreme People’s Code…

From examining the relevant international laws and Vietnamese laws, theauthor render out the definition of the protection of the legitimate rights andbenefits of the juvenile in the criminal procedures as follows:

The protection of the legitimate rights and benefits of the juvenile in the criminal procedures may mean that the State, through providing provisions in the Criminal Procedures Code, shall prevent the juvenile from being violated, depending on ages, levels of development and personal demand to be protected

in accordance with the laws where they are a party in the criminal procedures.

2.2 MEANS TO PROTECT THE LEGITIMATE RIGHTS AND BENEFITS OF THE JUVENILE ACOORDING TON THE CRIMINAL PROCEDURES LEGISLATION OF VIETNAM

In this part, the author, based on Vietnam current statute of the criminalprocedures legislation, clarifies the means to protect the legitimate rights andbenefits of the juvenile, specifically:

In terms of the criminal procedures legislation, indicated by two aspects:

Firstly, provisions on procedures and orders to deal with a criminal case

in various phrases of procedures In these provisions, there will be a separatechapter stipulating criminal procedures only applied to cases of which thearrestee, the accused or the defendant is the juvenile However, besides this