There are 03 groups of regimes applied specifically to juvenile offenders who are sentenced to prison in order to reform and help them reintegrate into the community when they complete s
Trang 1HO CHI MINH UNIVERSITY OF LAW
Evaluate provisions of the LECJ 2019 governing juvenile prisoners’ regime of incarceration based on relevant UN standards and norms
on juvenile criminal justice.
Group 6 – CLCQTL44B
LONG
ÁNH MINH
TPHCM, Ngày 6 tháng 11 năm 2023
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Trang 2I Rationale 1
II Terminology 1
2.1 Definition of “Juvenile” 1
2.2 Definition of “Prisoner” 2
2.3 Definition of “Incarceration” 2
2.4 Definition of “Regime” 2
III Evaluation provisions of the LECJ 2019 governing juvenile prisoners’ regime of incarceration 2
3.1 Regime of management, education, study, vocation training, and work 3
3.2 Regime of feeding, clothing, healthcare, cultural and performance activities, entertainment 8
3.3 Regime of visits and communication with relatives 11
IV Conclusion 13
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Trang 3I Rationale
The purpose of punishment is to apply treatment and training measures to the offender, so that this person can return to society and live and work as a person How to
be a member of the community And re-education is considered a humanitarian measure that can replace punitive and deterrent measures This becomes more important when the subject of rehabilitation measures is a juvenile offender Because this subject is a more special subject than adult offenders Originating from the psychological, gender and age characteristics of juvenile offenders, they are people who have not really matured, have certain physical and psychological limitations, thoughts and actions Juveniles are often spontaneous, so criminal policies for these subjects also have many differences compared
to adult offenders In particular, in the current conditions of building a socialist rule-of-law state in Vietnam, building legal mechanisms to recognize, respect, and protect human rights in general and the rights of minors is important in particular is a very meaningful and truly necessary issue
This article will evaluate provisions of the LECJ 2019 governing juvenile prisoners’ regime of incarceration based on relevant UN standards and norms on juvenile criminal justice Vietnam's legal framework evaluated in this article is the LECJ 2019 and detailed implementation guidance documents such as Decree, Circulars and Joint Circulars Regarding international standards and norms that will be mentioned in the article are UNCRC; Havana Rules; Nelson Mandela Rules This article focuses only on1
juvenile prisoners rather than detained juveniles awaiting trial
1 Circulars include those adopted by the Chief Justice of the Supreme People’s Court; the Chief Procurator of the Supreme People’s Procuracy; Ministers and Heads of ministerial agencies.
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Trang 4II Terminology
2.1 Definition of “Juvenile”
“Juvenile" is a person who has not attained his eighteenth birthday, and "juvenile delinquency" is the violation of a law of the United States committed by a person prior to his eighteenth birthday which would have been a crime if committed by an adult A person over eighteen but under twenty-one years of age is also accorded juvenile treatment if the act of juvenile delinquency occurred prior to his eighteenth birthday
2.2 Definition of “Regime” 2
For the context of this article, "regime" is understood as Policy and Rules Regime consists of written and unwritten rules, norms, principles that regulate the interactions of both political authorities and all individuals who make up the political community, and at its core is the constitution
"Regime" represents a specialization for a special group of subjects, this term is very important in the article because juvenile prisoners are a very special group and need separate regimes to ensure protect the humanity of the law
2.3 Definition of “Incarceration”
The result of a decision by the courts to confine an individual to corrections as a result of the individual being in conflict with the law
Confinement in a jail or prison : the act of imprisoning someone or the state of being imprisoned
2.4 Definition of “Prisoner”
A prisoner is someone being held in confinement
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Tra cứu trên
https://www.lsd.law › define › legal-regime
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Trang 5Commonly, a prisoner is a criminal who is serving a prison sentence after being convicted of a crime, or a person who has been arrested by law enforcement and is being held in custody pending trial, whether or not the person is in prison, jail or other confinement
3 Evaluation provisions of the LECJ 2019 governing juvenile prisoners’ regime of incarceration.
In this article we will present an assessment of LECJ 2019 and then compare3
them with international standards We select the following groups of regimes for analysis There are 03 groups of regimes applied specifically to juvenile offenders who are sentenced to prison in order to reform and help them reintegrate into the community when they complete serving their sentences
● The management of detention institutions, education, vocational training, and work
● The feeding, clothing, medical care of juvenile prisoners, and their opportunities for recreation
● Visits and telephone communication with parents and relatives
3.1 Regime of management, education, study, vocation training, and work
a) Regime of management
According to art 74(1) of the LECJ 2019, juvenile prisoners must be incarcerated under a separate regime suitable to their age, health, gender, and personal characteristics Under art 30 of this Law, a prison must be divided into the following two main sections: (1) a section for prisoners serving sentences of over 15 years imprisonment or life imprisonment and dangerous recidivists and (2) a section for prisoners serving a sentence
of 15 years or less, prisoners serving a sentence of more than 15 years imprisonment that has been reduced to less than 15 years as a result of a good rehabilitation record The
3 2 The LECJ 2019 entered into force on 1 January 2020 It replaced for the LECJ 2010.
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Trang 6majority of juveniles are detained in the second section In both sections, juvenile prisoners must be kept separately from adults
Vietnamese law basically complies with the CRC (art 37(c)) and Havana Rules (Rule 29) governing the management of juvenile detention facilities Vietnam reserves4
separate parts in each prison for juvenile detention rather than establishing a separate prison system Detention facilities are decentralized and facilitate access to and contact between juvenile prisoners and their family members However, at present, there are no open detention facilities for juvenile offenders as suggested by the Havana Rules (Rule 30) All prisoners must be incarcerated in detention rooms and can only leave with the formal permission of the prison’s Director Security is provided by armed guards 24 hours a day
Although the 2019 LECJ has regulations requiring separate detention for prisoners But the decree guiding its gradual implementation lacks basic elements of private detention, such as distance, facilities at the detention center
At present, art 73 of the LECJ 2019 provides that when a juvenile inmate reaches
18 years of age, he or she shall be subject to incarceration and education regime applicable adult prisoners These provisions should be amended as the transfer of juvenile prisoners to adult prisons as soon as they turn 18 years shall obviously affects them psychologically, but also impedes their rehabilitation and successful social reintegration The Committee on the Rights of the Child (2019: para 93) also emphasizes that the requirement to separate children deprived of liberty from adults ‘does not mean that a child placed in a facility for children should be moved to a facility for adults immediately after he or she reaches the age of 18’ A continued stay in the children facility should be possible when this is in his or her best interests and not contrary to the best interests of other children in the facility
4Committee on the Rights of the Child
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Trang 7b) Regime of education, literacy learning, and vocational training and work
Article 74(2) of the LECJ 2019 imposes a duty on prisons to provide juvenile prisoners with academic education, legal information, and vocational training suitable for their age, educational level, gender, and health, and make necessary preparations for them
to successfully reintegrate into the community upon their release Prisons must provide access to primary and lower secondary education for every inmate Primary education is compulsory for prisoners who have not completed a primary education program Learning and vocational training programs for juvenile prisoners should be regulated by the government, but the legislation has not yet been adopted
In comparison to international standards, namely the Havana Rules (Rules 38–41), Vietnamese laws focus more on the length rather than the contents and quality of the education, literacy, and vocational training programs This is perhaps one of the reasons that limit their implementation The majority of the teaching staff only receives training
on incarceration-related skills as opposed to the knowledge and skills required to communicate with and assist prisoners In addition, literacy programs for prisons face difficulties recruiting the services of local school teachers, not only because of a lack of personnel or insufficient funding, but also because teachers are afraid for their own safety For legal and civic education, an umbrella curriculum was adopted at the end of
2017 without establishing common textbooks The contents of the educational program are not adapted to the prisoners’ low and uneven literacy levels In addition, Vietnamese laws do not recognize age- and genderspecific programs and services (such as consultancies on sexual abuse or violence) and women’s health care education, as recommended by the Bangkok Rules (Rule 38) for juvenile female prisoners
The quality of education and rehabilitation programs for juvenile offenders is still low, education and rehabilitation programs still have many shortcomings, and the effectiveness of vocational training is not appropriate to social labor needs Actually surveying the types of labor occupations, jobs for prisoners in prisons today are mainly
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Trang 8simple occupations such as: agricultural, forestry, handicraft, manual labor, preliminary processing , requirements for qualifications and labor skills are low On the other hand, the duration of cooperation is often short-term, year-by-year, seasonal, and not long-term Therefore, these occupations are less likely to form regular labor skills and have limited effectiveness in improving the labor skills of prisoners during their sentences, making it difficult to meet the requirements The needs and qualifications of the social labor market reduce the effectiveness of community reintegration Furthermore, when juveniles complete their prison sentences, they are all in their prime working age (from 18 to 45 years old), with a high need to find jobs and stabilize their lives of the total number of prisoners who complete their annual prison sentences (an average of 86.41%) 5
According to Decision No 1041/QD-TTg of the Prime Minister adopted on 19 August 2019, the government is required to draft a Decree to specify the various education regimes stipulated in the LECJ 2019 Therefore, the government still has to review every aspect of the education programs for juvenile prisoners and assess their implementation Attention should be given not only to the length and format of these programs, but also to their contents, quality, and delivery These programs should be very similar to regular educational programs and diplomas or certificates awarded to juvenile prisoners should be issued by regular education institutions
Besides, preparing prisoners under 18 years old to reintegrate into the community
at the end of their prison term in some prisons is often carried out passively That causes prisoners under 18 years old to not understand the situation and the local reception capacity, so they often feel confused
Because the 2019 LECJ Law does not stipulate, the Prison Supervision Board does not have specific activities such as: Notifying people who have been released from prison
in general about the local reception capacity; What is the attitude of family, school, and society towards them; Will they have a job after being released from prison? If there is no
5 Tham khảo trên tạp chí toà án - bài viết những vấn đề về phạm nhân là người vị thành niên
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Trang 9good coordination between local agencies, education, supervision, and creation of favorable conditions for studying and working, they can easily be drawn into crime In addition, when amending the Law on Criminal Enforcement in 2010, many opinions agreed with the view: "Uniform application of the primary school program and universal secondary education for people over 18 years old who have not completed these programs." ; At the same time, it is mandatory for prisoners under 18 years old to have universal secondary education, because in prisons it can be applied in the form of continuing education Through the practice of executing prison sentences, it is shown that
in order to ensure the goal of education and reform for those serving prison sentences, it
is necessary to regulate the study and vocational training regime of prisoners as a mandatory regime
Article 74(3) of the LECJ 2019 emphasizes that juvenile prisoners must work in areas where they are separated from adult prisoners and only perform work suitable to their age; they must not be required to do heavy or dangerous work, nor should they work
in contact with hazardous substances In reality, as previously mentioned, juvenile prisoners tend to be engaged in simple jobs while serving their imprisonment sentences Vietnamese legal provisions governing prisoners’ work regimes are basically compatible with relevant international standards, namely Nelson Mandela Rules (Rules 96–103) and Havana Rules (Rules 44–46)
Nonetheless, two issues require attention: the implementation of labor opportunities outside prisons and the prisoner’s access to the income they earn through their labor Firstly, the Havana Rules encourage, if possible, the opportunity to perform remunerated labor within the community to help juvenile prisoners find appropriate jobs after their release A proposal for organizing prisoners’ work outside prisons was included in the Draft LECJ 2019 made by the Ministry of Public Security
Unfortunately, however, the proposal was withdrawn because of the lack of support by members of the National Assembly (Thai, 2019) The majority of them were
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Trang 10apparently concerned that the proposal, in addition to practical security and staffing issues it might create, placed too much emphasis on profit making and not enough on the goal of educating and rehabilitating prisoners (Vietnam News, 2018) Secondly, contrary
to Rule 46 of the Havana Rules, prisoners are not entitled to send their earnings from work directly to their families, to other persons outside prison, or to compensate crime victims
LECJ 2019 has regulations establishment of labor, vocational training, and union zones collaborate with organizations and individuals to organize work motivate and train inmates on land prison management, however, this encountered many difficulties and limitations due to specific characteristics prisons are located far from the centers local economics and politics are difficult to access access to product consumption markets such
as urban areas, cities, industrial parks ,difficult transportation increases costs transportation, consumable costs, product prices labor products Some prisons are near the center The center is small and narrow, making it difficult to allocate funds land for coordination and cooperation
Current legal documents only generally mention that minors are given priority in vocational training and capital support, but there is no specific mechanism to bring the above options into life
3.2 Regime of feeding, clothing, healthcare, cultural and performance activities, entertainment
Prisoners under 18 years old are guaranteed the same food and medical care standards as adult prisoners and are provided with additional meat or fish but not exceeding 20 percentage of the quantity In addition to standards of clothing and personal belongings similar to those of adult prisoners, juvenile offenders are equipped with other uniforms and personal items according to regulations Time and form of organizing physical training, sports, cultural and artistic activities, listening to the radio, reading
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