topic guarantee for a fair trial from paragraph61 to 65 in general comment no 24 2019

COMPARE VIETNAMESE LAWS WITH UN STANDARD AND NORMS...2.1 The provision of the Vietnamese Juvenile criminal justice...2.1.1 Presence and Examination of Witnesses in Juvenile Trials relate

MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY OF UNIVERSITY OF LAW HIGH QUALITY TRAINING

PROGRAM

Subject: JUVENILE CRIMINAL JUSTICE

TOPIC: GUARANTEE FOR A FAIR TRIAL FROM PARAGRAPH

61 TO 65 IN GENERAL COMMENT NO.24 (2019)

Lecturers: Dr Le Huynh Tan Duy Faculty of Criminal Law, Ho Chi Minh City University of Law

Ho Chi Minh City, 29th September 2023

TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF ABBREVIATION

INTRODUCTION

I ANALYSIS OF PARA 61- 65 OF GENERAL COMMENT NO.24

1.1 Presence and examination of witness (art.40(2)(b)(iv))

1.2 Right of review or appeal (art.40 (2) (b) (v))

1.3 Free assistance of an interpreter (art.40 (2) (b) (vi))

1.4 Conclusion

II COMPARE VIETNAMESE LAWS WITH UN STANDARD AND NORMS

2.1 The provision of the Vietnamese Juvenile criminal justice

2.1.1 Presence and Examination of Witnesses in Juvenile Trials (related to Para 61)

2.1.2 Right to Appeal for Juvenile Offenders (related to Para 62-63)

2.1.3 Free Assistance of an Interpreter (related to Para 64-65)

2.2 Contribution to the development of Vietnamese Law related to guarantee for fair trial

2.3 Conclusion

III SOME PROVISION OF OTHER COUNTRIES RELATED TO FAIR TRIAL

3.1 Malaysia

3.2 The Maldives

CONCLUSION

REFERENCES

TABLE OF ABBREVIATION

ICCPR International Covenant on Civil and Political Rights

UNCRC United Nations Convention on the Rights of the Child

INTRODUCTION

Article 40 regulates the treatment of children in respect of allegations,accusations or infringements of penal law The treatment accorded is to be consistentwith the promotion of the child's sense of dignity or worth, reinforce the child'srespect for the human rights of others, take into account the child's age, and thedesirability of promoting the child's reintegration and the child's assuming aconstructive role in society

In this context, we delve into three essential components that underpin a fairtrial: the examination of witnesses, the right of review or appeal, and the provision offree assistance of an interpreter These elements collectively serve as criticalsafeguards, ensuring that justice is not only administered but is done so with dueregard to the principles of fairness, equality, and accessibility

The global community has recognized the paramount importance ofsafeguarding the rights and privacy of juveniles within the context of criminal justice.International regulations, such as the Convention on the Rights of the Child (CRC)and General Comment No 24 (GC24) have provided a legal framework to guidenations in this regard Through the incorporation of some of these restrictions intolocal legislation, Vietnam has also made significant strides However, the journeytowards ensuring the full protection of rights related to the examination of witnesses,the right of review or appeal, and the provision of free assistance of an interpreter inthe context of our legal system is far from complete There remain gaps andambiguities in our national legal system when it comes to these critical aspects It isimperative that we, as a nation, reaffirm and clarify our commitment to upholdingthese rights within our legal processes

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I ANALYSIS OF PARA 61- 65 OF GENERAL COMMENT NO.24

1.1 Presence and examination of witness (art.40(2)(b)(iv))

General Comment No.24 (GC24) paragraphs 61 contain the rules governingthese rights It provides:

Para 61 GC24 Children have the right to examine witnesses who testify against them and to involve

witnesses to support their defense, and child justice processes should favor the child’s participation, under conditions of equality, with legal assistance.

Children also have the right to question witnesses, and if they are found guilty

of a crime, they can have their conviction and sentence reviewed by a higher court 1Like adults, they should have the right to examine witnesses who testify against themand should be able to involve witnesses in support of their defense

Furthermore, the emphasis on "conditions of equality" underscores thefundamental need for fairness and impartiality within the justice system It means thatchildren should be treated with the same level of respect and consideration as adults,regardless of their age Encouraging child participation in legal processes is anothercritical aspect of the statement Allowing children to actively engage in proceedingsnot only empowers them but also helps them better understand the complexities of thelegal system Child-friendly procedures can make this participation more accessibleand less intimidating, ensuring that their voices are heard and their rights areprotected

Although the CRC is a major progressive step towards a child-centeredcriminal justice system, the ICCPR does provide additional safeguards for children.This procedural guarantee is originally provided in Art 14(3)(e) of ICCPR, Art 7.1 ofBeijing Rules and Art 40(2)(b)(iv) of the CRC The latter article prescribes:

“Every child alleged as or accused of having infringed the penal law has at least the following guarantees to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality”.

According to the Committee on the Rights of the Child and the Human RightsCommittee, this procedural safeguard derives from the principle of equality of arms(between defense and prosecution) The ultimate aim of this principle is to ensure theaccused has the same rights as are available to the prosecution of compelling thepresence of witnesses and examining or cross-examining any witnesses The2Committee on the Rights of the Child explains there are distinctions between differentlegal systems, especially between the accusatorial and inquisitorial trials, involvingthe use of the term “to examine or to have examined” In the inquisitorial system,3

1 Van Bueren, G (2006) Article 40: Child criminal justice Leiden: Martinus Nijhoff Publishers.

2 Human Rights Committee, General Comment No.32, UN Doc CCPR/C/GC/32 para 39

defendants often transfer their right to examine witnesses to the lawyer or, in the case

of children, to another appropriate body Nonetheless, the Committee on the Rights of4the Child emphasizes that the child should be informed of the possibility to examinewitnesses and given opportunities to express his or her views on this matter inaccordance with his or her age and maturity.5

Generally, there are two aspects to this procedural guarantee First, juvenileoffenders have the right to examine witnesses against them (adverse witnesses).Second, under the same conditions, juvenile offenders are also entitled to present andexamine witnesses on their behalf As to the first aspect, the Human RightsCommittee notes that a proper opportunity to question and challenge adversewitnesses is only given at some stages of the criminal process The second aspect is6not an unlimited right

This means juvenile offenders can only present witnesses who are relevant fortheir defense In other words, art 14(3)(e) of the ICCPR does not entitle the defendant7

to submit evidence at any time or in any manner.8

On the other hand, the Human Rights Committee asserts that, within theseparameters and subject to the restrictions on the use of statements, confessions, andother evidence obtained in violation of Article 7 of the ICCPR, the right not to besubject to torture or to cruel, inhuman, or degrading treatment or punishment, it isessentially up to the legislatures of State parties to determine the admissibility ofevidence and how their courts evaluate it These CRC and ICCPR rules provide thelegal framework for both offenders and prosecutors to assess the validity and provenimpact of evidence as well as the veracity of witness testimony.9

1.2 Right of review or appeal (art.40 (2) (b) (v))

This right is regulated in Para 62-63 of General Comment No.24 (GC24) It provides:

Para 62 of GC24 The child has the right to have any finding of guilt or the measures imposed

reviewed by a higher competent, independent and impartial authority or judicial body This right of review is not limited to the most serious offenses States parties should consider introducing automatic measures of review, particularly in cases that result in criminal records or deprivation of liberty Furthermore, access to justice requires a broader interpretation, allowing eviews or appeals on anyr

procedural or substantive misdirection, and ensuring that effective remedies are available.

4 Ibid

5 Committee on the Rights of the Child, General Comment No 10, UN Doc CRC/C/GC/10, para 59

6 Human Rights Committee, General Comment No.32, UN Doc CCPR/C/GC/32, para 39.

7 Ibid

8Johnson v Spain, Communication No.1102/2002, UN Doc CCPR/C/86/D/1102/2002 (2006), para 6.5

9 Le, Huynh Tan Duy (2013) Protecting the rights of juvenile offenders in Vietnamese and Victorian criminal procedure laws in compliance with the United Nations benchmark model of juvenile justice La Trobe Thesis.

Para.63 of GC24 The committee recommended that States parties withdraw any reservation made in

respect of Article 40 (2) (b) (v).

Importantly, the statement emphasizes that the right of review should not berestricted solely to the most serious offenses This is a significant recognition thateven for less severe infractions, children deserve a mechanism to challenge decisionsthat could have long-lasting consequences on their lives, such as criminal records ordeprivation of liberty

It acknowledges that certain consequences of legal proceedings can have alasting impact on a child's future prospects and rehabilitation The allowing reviews orappeals on any procedural or substantive misdirection is a crucial element of a fair andeffective legal system It ensures that children have access to remedies not only forobvious legal errors but also for any injustices, whether procedural or substantive, thatmay have occurred during their legal proceedings It ensures that their rights areprotected through reviews conducted by competent, independent, and impartialauthorities, regardless of the severity of the offense

Similarly, in Article 14(5) of the ICCPR:

“Every child alleged as or accused of having infringed the penal law has at least the following guarantees: If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority

or judicial body according to law”.

It is also arguable that similar child-centric procedures should be applied toreview or appeal proceedings when a child is in court for those purposes Thisincludes providing specialized training for lawyers and judges involved in the appealprocess to ensure they are well-versed in child rights and needs These rights are10enshrined in binding international agreements Children also have the right to questionwitnesses, and if they are found guilty of a crime, they can have their conviction andsentence reviewed by a higher court Access to review by a higher court must be11

“according to law” (as expressed in Article 14(5) of the ICCPR) The Human RightsCommittee has explained that this expression does not mean that the very existence ofthe right to appeal is left to the discretion of States Parties, since the right isguaranteed by the ICCPR Rather, the expression refers to the modalities by which12the review is to be carried out 13

10 United Nations Convention on the Rights of the Child (1989), art 12.

11Van Bueren, G (2006) Article 40: Child criminal justice. Leiden: Martinus Nijhoff Publishers, page 21.

12 Mennen v the Netherlands, HRC Communication 1797/2008, UN Doc CCPR/ C/99/D/1797/2008 (2010),

para 8.2.

13 UN Human Rights Committee, CCPR General Comment 32 (2007), para 45 See also Salgar de Montejo v Colombia, HRC Communication 64/1979, UN Doc CCPR/C/15/D/64/1979 (1982), para 10.4; Gomaríz Valera v

1.3 Free assistance of an interpreter (art.40 (2) (b) (vi))

This procedural right is guaranteed by Para 64-65 of General Comment No.24

as follow:

Para 64 of GC No.24 A child who cannot understand or speak the language used in the child justice

system has the right to the free assistance of an interpreter at all stages of the process Such interpreters should be trained to work with children.

Para 65 of GC No.24 States parties should provide adequate and effective assistance by well-trained

professionals to children who experience communication barriers

Ensuring that children who are unable to understand or speak the language used

in the child justice system have access to competent interpreters is paramount forupholding their rights and ensuring a fair trial process This right to free assistance of

an interpreter of all stages of the legal proceeding acknowledges that language shouldnot be a barrier to a child’s understanding of their situation and their ability toparticipate in their own defense

Additionally, it emphasizes how crucial it is for these interpreters to receivespecialized training to work with kids, taking into account their particular needs andvulnerabilities States parties are required to do more than just provide translators;they must also provide thorough and efficient assistance from qualified experts whocan help kids overcome communication difficulties and guarantee that everyone mayaccess justice, regardless of language limitations In doing so, the legal system affirmsits dedication to equity and equality in the administration of justice in addition toupholding children's rights

Like adults, children who cannot understand or speak the language used inlegal proceedings are entitled to the assistance of an interpreter In certain cases,particularly in Kwa Zulu Natal in South Africa, child victims of sexual abuse are notdirectly questioned by legal counsel Instead, questions are directed to an interpreter,14and only if the interpreter can understand the question will it be posed to the child Both Article 40(2)(b)(vi) of the CRC and Article 14(3)(f) of the ICCPR providethis procedural right The CRC stipulates that a child offender who is unable tounderstand or speak the language being used is entitled to the free aid of aninterpreter Obviously, this right should be accessible throughout the entire criminalprocess to ensure justice and "equality of arms" in criminal trials.15

Spain, HRC Communication 1211/2003, UN Doc CCPR/C/87/D/1211/2003 (2006), para 7; Sánchez and Clares

v Spain, HRC Communication 1332/2004, UN Doc CCPR/C/88/D/1332/2004 (2006), para 7.2; and Serena v Spain, HRC Communications 1351/2005 and 1352/2005, UN Doc CCPR/ C/92/D/1351–1352/2005 (2008), para

9.3

14 Ibid

15 Chu Thanh Quang, “Handling juvenile offenders under criminal law in Vietnam”, UNAFEI: Annual report

It is suggested that the interpreter should have knowledge and experience ofworking with children in order to assist the juvenile offender to fully comprehend anyquestion raised and protect the right to a fair trial and ensure effective participation.16Moreover, deriving from the spirit of this article and in compliance with Article 23 ofthe CRC, the Committee on the Rights of the Child proposes that children with speechimpairment or other disabilities involved in criminal proceedings should be providedwith adequate and effective assistance by well-trained professionals, e.g in signlanguage, by State parties This approach aligns with the commitment to uphold the17rights and dignity of all children within the justice system, regardless of their uniqueneeds and circumstances.

1.4 Conclusion

These procedural rights ensure fairness, accountability, and access to justice forall individuals involved in legal proceedings In General Comment No 24, theregulation of the presence and examination of witnesses, the right of review or appeal,and the provision of free interpreters in juvenile justice is specified in Article 61-65,and these provisions are closely interpreted in conjunction with the principles outlined

in Article 40(2)(b)(iv), Article 40(2)(b)(v), and Article 40(2)(b)(vi), as well as somespecific rules

Justice Programs Available at: under-criminal-law-vietnam-unafei (Accessed: 25 September 2023)

https://www.ojp.gov/ncjrs/virtual-library/abstracts/handling-juvenile-offenders-16 Phuong Mai, D.T., “Juvenile justice principles under criminal procedure and penal laws”, Vietnam Law and Legal Forum Magazine, Available at: https://vietnamlawmagazine.vn/juvenile-justice-principles-under- criminal-procedure-and-penal-laws-49082.html (Accessed: 25 September 2023)

17 Le Huynh Tan Duy., “Evaluation of Vietnamese criminal procedure law applicable to juvenile offenders (case study of the United Nations model of juvenile criminal justice”, Available at:

II COMPARE VIETNAMESE LAWS WITH UN STANDARD AND

NORMS

2.1 The provision of the Vietnamese Juvenile criminal justice

Vietnam ratified the United Nations Convention on the Rights of the Child(UNCRC) on February 20, 1990, making the first nation in Asia and the second nation

in the world do so Children's rights are always acknowledged in the Vietnameseconstitutions, from the Constitution of 1946 to the present Constitution of 2013 Thereare currently explicit legal protections intended to ensure fair proceedings for juvenileoffenders in the Penal Code and Criminal Procedure Code

These sections cover minors’ rights and responsibilities as well as those oforganizations and people who have been granted the ability to initiate legal actionagainst young offenders

2.1.1 Presence and Examination of Witnesses in Juvenile Trials (related to Para 61)

a) Overview

In the Vietnamese criminal procedure law, juvenile offenders are divided intotwo subjects, called ‘accused persons’ and ‘defendants These procedural18participants appear in the investigation, prosecution and first-instance trial stages.Since the Vietnamese criminal justice system is modeled after the inquisitorial system,similar to Article 40(2)(b)(iv), juvenile offenders exercise this right by participating inthe “confrontation" of witnesses, and/or exam witness by themselves or acting viatheir defense counsels or representatives in first-instance trials Overall, there are no19differences between juvenile and adult offenders in exercising the right to examinewitnesses

b) Confrontation

In investigation and prosecution stages, offenders may participate in criminalinvestigation activity called “confrontation” Article 189 of the CRC stated thatconfrontation is conducted when there are contradictions in the statements of two ormore persons, including offenders and witnesses, after having applied otherinvestigative measures but the conflict has not yet been resolved

Although the purpose of the regulation is to find the objective truth, it is a wayfor offenders to utilize their right to examine witnesses, especially those whocontradict them 20

18 Malaysian Child Act, Section 11, 117.

19 Malaysian Case Law, Case Buri Hemna v PP, 1998) 5 MLJ 813.

c) First-instance trial

Similar to previous stages, defendants can exercise this right by directlyexamining witnesses at hearings In addition, offenders can exercise their right tocross-examine witnesses with the assistance of defense lawyers or advocates Specifically, Article 61(1)(i) and Article 72(i) recognize the right to request theJudge to examine the witness or do it by themselves or make requests of a counsel.More clearly, Article 311(2) provides that after the inquiries of the trial panel andprosecutor, defendants may further examine witnesses with the consent of the Judge

or exercise this right via their defense counsel

Furthermore, specific provisions related to this entitlement apply to juvenileoffenders, as outlined in Article 420(3)

2.1.2 Right to Appeal for Juvenile Offenders (related to Para 62-63)

a) Overview

Vietnamese criminal procedure law contains provisions governing the right ofappeal for those involved in the criminal justice system generally and juveniledefendants specifically that are quite similar to those found in international law andthe justifications provided by the Human Rights Committee and the Committee on theRights of the Child

b) Safeguarding Defendant Rights and Appeals in Vietnamese Criminal Procedure Code 2015

First, Article 27 of Criminal Procedure 2015 established a mechanism forreviewing effective judgment or ruling in case of serious errors These are alsocompatible with the principle of implementation of two level-trial regimes prescribed

in a supplementation of the Criminal Procedure Code 2003

Additionally, the characteristics and obligations of the appeal trial arecomparable to those stated in General Comment No 32 of the Human RightsCommittee and are outlined in Vietnamese criminal procedural law and examined inofficially cited sources By assessing "the sufficiency of the evidence and of the law,the conviction and sentence," the appellate trial procedure is intended to generallyanalyze the essence of the case in this context.21

21 “Equality of arms requires the enjoyment of ‘the same procedural rights by all the parties unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantages or other unfairness to the defendant”, Human Rights Committee, General Comment No 32, UN Doc