9 CONTENT 11 Chapter 1: Theoretical and legal basis for ensuring the right to legal aid for abused women in Vietnam .... Research about situation of the topic In recent years, there have
Reason for choosing the topic
The right to legal aid, although not specifically recognized in the Constitution, is an important right, especially in the context that Vietnam is building a socialist rule of law state Legal aid is a legitimate request of an individual or a certain group of people to have access to a free legal service system based on the provisions of the law
Judicial practice and human rights assurance in the world have shown that legal aid activities are of special importance in ensuring and realizing human and citizen rights In Vietnam, legal aid is even more necessary in order to provide appropriate legal services to women in difficult circumstances, especially those who have experienced both physical and mental abuse and other policy beneficiaries so that they can best exercise their rights and obligations in the socialist-oriented market economy
Legal aid is one of the areas of interest to the Party, State and society More than a decade has passed, in response to the new development requirements of the country, the implementation of the 2013 Constitution, many important new laws were promulgated by the National Assembly, many reform policies were passed These include strengthening law and judicial reform in line with the Resolution of the 12th National Congress of the Party and requiring proactive and active international integration and legal aid activities has revealed a number of limitations and inadequacies that need to be studied and modified On June 20, 2017, the XIV National Assembly approved the Law on Legal Aid No 11/2017/QH14 with 100% approval of the National Assembly deputies present, creating a legal basis for sustainable development legal aid work to a new height, both in line with the reality of the country's development requirements and integration with regional and international development trends It can be seen that, basically, the system of
6 legal documents regulating legal aid of Vietnam has internalized relevant commitments in international treaties to which Vietnam is a member, such as: : International Convention on Economy, Society and Culture (CESCR); International Covenant on Civil and Political Rights (CCPR); Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); International Convention on the Elimination of All Forms of Racial Discrimination (CERD); Convention on the Rights of the Child (CRC); Convention on the Rights of Persons with Disabilities (CRPD)
At the same time, the legal system on legal aid is becoming more and more complete Currently, there are about 20 legal documents in effect regulating this field; including 01 Law, 01 Decree, 01 Decision of the Prime Minister, 08 Joint Circulars, 08 Circulars of the Ministry of Justice These legal documents have created a synchronous and unified legal basis, quite comprehensively adjusting legal aid work from legal aid recipients to standard conditions, rights and obligations of legal aid recipients legal aid providers and organizations; responsibilities and coordination mechanism of relevant agencies and organizations; financial mechanism; organizational model, state management and social participation
However, due to a number of reasons, abused women in Vietnam still face many inadequacies and difficulties not only mentally but also financially, so they do not seem to be fully aware of their right to help legal aid, do not know where to contact for legal aid, do not know how to use the right to legal aid In addition, the quality of some legal aid activities is still not high, so it has not spread widely in the community, ensuring the right to legal aid of competent agencies and people with Violence against women has not been really focused and taken seriously Due to fear, traditional beliefs and limited understanding of the law, many women who have suffered violence still do not have a voice
Stemming from the above reasons, I chose the topic: "Ensuring the right to legal aid of abused women in Vietnam today" as the graduation thesis of a high-quality jurisprudence program according to Circular 23.
Research about situation of the topic
In recent years, there have been many topics, research works, a number of theses, doctoral and master's theses related to the legal provisions on legal aid such as:
Doctoral theses, Master's Thesis: Tran Thi Chinh (2019), "Ensuring the right to legal aid of ethnic minorities through the practical operation of the State Legal Aid Center of Lao Cai”, “Implementing the law on legal aid for the poor and policy beneficiaries in Ninh Binh province”: Master thesis of jurisprudence / Doan Thi Ngoc Hai, doctoral thesis of jurisprudence Ta Minh Ly: “ Adjusting the law on legal aid in Vietnam in the context of renovation”
Research results of published works, topics, and articles by scientists, educators, and legal experts so far have partly solved both theory and practice, studying the implementation of the law on legal aid in general for a group of people eligible for legal aid in particular, such as the poor, but there is no document mentioning violence against women, is this a problem? overlooked in Vietnam These studies are all based on the Law on Legal Aid 2006, there is one study based on the Law on Legal Aid 2017 and were carried out in many fields, locations, and different subjects, so there are many unique characteristics in terms of natural conditions, socio-economic conditions, traditional culture, etc
The 2017 Law on Legal Aid has been in effect for over a year and emphasizes the crucial role of legal aid in the criminal justice system, particularly for women who have experienced violence This law affirms the State's responsibility to provide legal aid to these individuals, ensuring their access to justice.
8 new and unique To date, there have been no specific studies on ensuring the right to legal aid of abused women.
Research purpose and tasks
The purpose of the thesis is to research and clarify the guarantee of the right to legal aid of abused women in Vietnam today and the current status of ensuring this right through the activities of Legal Aid Centers, National Institutes of Law and Government country On that basis, the author proposes directions to improve the law, solutions to improve the quality of legal aid activities for abused women, thereby creating favorable conditions for abused women access to free legal aid services in the simplest and most convenient way
For that purpose, the Dissertation aims to deal with specific studies as follows:
- Research to clarify the theoretical and legal bases on the right to legal aid of abused women through the concept, content, characteristics and roles
- Synthesize data from years, clarify the advantages, limitations, difficulties, problems, inadequacies and causes
- On the basis of research results, give and explain the direction of perfecting the law and improving the quality of legal aid activities for ethnic minorities, proposing solutions to improve the quality of the law legal aid activities to ensure the right to legal aid of abused women in Vietnam in the coming time.
Research object, research scope of the Thesis
Research object: The thesis focuses on the theoretical and legal issues of legal aid, the right to legal aid of abused women and the current situation in Vietnam
Research scope: The thesis focuses on researching legal provisions on legal aid in order to clarify the right to legal aid of abused women
The dissertation explores the current state of legal aid in Vietnam For comparative analysis, the research draws on theoretical frameworks and empirical data gathered from 2010 to 2019 This period coincides with the implementation of the 2006 Law on Legal Aid and the 2017 Law on Legal Aid.
The research methods used to conduct the thesis
This thesis is made on the basis of the methodology of Marxism- Leninism and Ho Chi Minh's thoughts on materialistic and historical dialectics
The direct research methods are: analytical method, synthesis of legal provisions, and statistics, the thesis also uses a little comparison to clarify the difference but has inheritance, finalize the regulations on legal aid in 2006 and the Law on Legal Aid in 2017.
The scientific significance of the Thesis
- The thesis helps to clarify the theoretical and legal issues of legal aid, legal aid to abused women, ensuring the right to legal aid of abused women
- The research results of the Thesis can be used as a reference for students
- The recommendations raised in the thesis are of reference value for legal agencies and organizations in the process of perfecting the legal aid legislation in Vietnam.
Thesis layout
In addition to the introduction, conclusion and list of references, the thesis consists of 2 chapters:
- Chapter 1: Theoretical and legal basis for ensuring the right to legal aid of abused women in Vietnam
- Chapter 2: The current situation of ensuring the right to legal aid of abused women in Vietnam and solutions to ensure the right to legal aid of abused women in Vietnam today
Theoretical and legal basis for ensuring the right to legal
The concept of ensuring the right to legal aid for abused women
1.1.1 General overview of legal aid
In the world, legal aid activities have a history of birth about 500 years ago and originated in England (XV century), Germany and the Netherlands in the mid-nineteenth century, then France The US appeared later in the early twentieth century, in Australia and some countries in the region such as: Singapore, Malaysia, Cambodia, and China, , in each country, the concept of legal aid is also different depending on the political regime and economic conditions of each country
The term "legal aid" has been widely used in the world since the mid- nineteenth century and published in English as: Legaka aid According to the English-Vietnamese dictionary of author Le Kha Ke, Social Science Publishing House, 1997, "legal aid" is translated as "legal aid" In addition, in some other documents, "legal aid" is translated as "legal aid", "legal aid" or "judicial assistance"
Countries around the world organize and conduct legal aid activities in a very rich and diverse manner depending on the socio-economic development conditions of each country There are many models of legal aid available, with differences in the object, scope, method, and cost of aid worldwide That difference comes from each country's concept of legal aid But in general, the concept of legal aid in all countries refers to this activity from the economic, humanitarian and legal perspectives
From an economic perspective, some countries such as the Federal Republic of Germany consider legal aid to be partially or completely financial help for those who cannot afford the costs of legal advice, representation or defense in court
Under the law of England and Wales, Legal Aid is legal aid to people who cannot afford legal advice, assistance, and representation
Article 2 of Singapore's Legal Representation and Advice Act 1995 also explains that legal aid is helping people who cannot afford legal services
In numerous international jurisdictions, legal aid recipients shoulder financial burdens despite their intended assistance They may be obligated to cover partial expenses or bear the full cost of litigation if they emerge victorious This situation impedes equal access to justice for individuals with limited resources, rendering legal representation contingent on financial means rather than the merits of their case.
Although the free calculation can be interpreted differently in each country, legal aid is seen as an aid for those who cannot financially enable them to access legal services Therefore, no matter how it is conceived, legal aid is a humanitarian activity As Australians think, the purpose of legal aid is to help a person have the same circumstances and conditions as other people in accessing the law, that is, to create fairness when accessing the law law The humanity of legal aid is that this activity creates equality and does not exclude anyone in accessing legal services
Legal aid is a legal activity mandated by law in all countries It is provided by the State according to legal provisions, making it a lawful service.
Stemming from the nature and form of "Legal aid" activities in the world and the practice of this activity in Vietnam in recent years, the term for legal aid activities is officially regulated as " Legal aid" The term legal aid has both
13 shown the nature, content and form of operation of free legal services in Vietnam
1.1.2 The concept of ensuring the right to legal aid for abused women
In modern times, the legal system has been analyzed in detail by the leading American political philosopher J Rawls mentioned in his book A Theory of Legal, according to which: “ legal is what the first characteristic of social, as well as legal, institutions is that of ideology
J Rawls considers the law to be justice as fairness, the belief of the law, the nucleus of morality, and the prerequisite condition of civil society… Therefore, according to him, “ in a society, equality in civil rights and liberties for all is immutable; Legally guaranteed rights cannot be negotiated in terms of politics or calculations of social interest.” In the Black Law Dictionary, “legal” has been defined as “ fair and reasonable, with three basic concepts: emphasis on personal importance, a requirement that individuals be treated in an appropriate, unbiased and equal manner ” 1
In Vietnam, the legal concept has been mentioned in some recent research works by some authors such as: Nguyen Dang Dung ( “Vietnamese courts in the context of building a rule of law state” ); Nguyen Van Hien (“Discussing the legal system ”), Institute of Legal Science, Ministry of Justice
( “Relationship between law and legality - Theory and practice” ), Vu Cong Giao ( “Legal aid and principles of the rule of law” )…Besides, in terms of language, legal concepts have also appeared in some dictionaries, for example:
The concept of "legal" encompasses justice, fairness, and conformity with prevailing laws, devoid of prejudice In various jurisdictions, the court system symbolizes the law and the legal authority of the regime Legal principles strive to uphold fairness, justice, and correctness in both legal practice and judicial proceedings.
1 Pháp lý là gì ? Khái niệm pháp lý được hiểu như thế nào cho đúng ? (luatminhkhue.vn)
14 recognition and due respect for the legitimate rights and interests of all people.”
Legal aid is a fundamental human right, enabling eligible individuals to access free legal services provided by the state This right ensures that all citizens have equal access to justice, regardless of their socio-economic background By providing legal aid, the government fulfills its obligation to uphold the principle of fairness and equality before the law.
So in general, what is the right to legal aid of abused women, to interpret the meaning of the term "right to legal aid", most researchers give two views: the right to legal aid in the broad and narrow sense In a narrow sense, the right to legal aid is only associated with court proceedings This may not be comprehensive for the right to legal aid of the group of women experiencing domestic violence, because in fact, for vulnerable groups such as the group of women experiencing domestic violence along with many other victims of domestic violence Cultural barriers, and court operations do not create trust and confidence for this group of people, for example, when victims go to the police to report their cases, there is a common situation of assessment the subjectivity of the police and blamed everything on the woman: "You must be complaining, talking too much, but also jealous, so he beat you, right?"
Law on ensuring the right to legal aid for abused women in Vietnam
1.2.1 The legal concept of ensuring the right to legal aid to abused women
1.2.1.1 Legal concept of legal aid
Legal aid was officially regulated for the first time in Vietnam under the Prime Minister's Decision No 734/TTG dated September 6, 1997, on the establishment of legal aid organizations for the poor and the underprivileged These policies and activities are now uniformly regulated in the Law on Legal Aid The Law on Legal Aid 2006 introduces the concept of legal aid: “Legal aid means the provision of free legal services to legal aid recipients in accordance with this Law, helping legal aid recipients protect their legitimate rights and interests, and improve understanding know the law, sense of respect and observance of the law; contribute to the dissemination and education of the law, the protection of justice, the assurance of social justice, the prevention and limitation of disputes and violations of the law.”
On the basis of inheriting the provisions of the Law on Legal Aid in
2006, the Law on Legal Aid in 2017 has introduced a more concise concept of legal aid: "The provision of free legal services to legal aid beneficiaries in accordance with this Law contributes to ensuring human rights and citizens' rights in accessing justice and equality before the law.".The guarantee of the right to legal aid is also stated in this Code, specifically Clause 2, Article 4:
“The State has policies to ensure the right to legal aid suitable to socio- economic conditions”.
1.2.1.2 Legal concepts on ensuring legal aid rights for abused women
According to Article 7 of the 2017 Law on Legal Aid, legal aid beneficiaries include individuals with meritorious services to the revolution, members of poor households, and children This provision is more comprehensive than those outlined in Article 37, point d, Article 40, clause 2 of the same law.
CRC); ethnic minorities residing in areas with extremely difficult socio- economic conditions; the accused is from full 16 years old to under 18 years old; the accused belongs to near-poor households; people with financial difficulties (people from near-poor households or people receiving monthly social allowances) in one of the following cases: biological fathers, natural mothers, spouses, children of martyrs and other people meritorious care when the martyrs were young; people infected with Agent Orange; Elderly; People with disabilities; persons aged between full 16 years old and under 18 years old are victims in criminal cases; victims of domestic violence cases; victims of human trafficking in accordance with the Law on Prevention and Combat of Human Trafficking; HIV-infected people.” 2
Thus, more advanced than the 2006 Law on Legal Aid, the current Law on Legal Aid 2017 stipulates two groups of independent legal aid beneficiaries closely related to victims of violence on the basis of (Persons with financial difficulties are victims of domestic violence; victims of human trafficking in accordance with the Law on Prevention and Control of Human Trafficking) In addition, if a victim of gender-based violence falls into one of the remaining 12 groups of legal aid beneficiaries, they are still entitled to legal aid rights
We can see that, although there is no specific law that defines the concept of guaranteeing the right to legal aid for abused women In fact, there are very few documents specifying the concept of guaranteeing human rights, so the concept of ensuring the right to legal aid is also an issue that has not been focused on research and clarification
However, it can be understood that ensuring the right to legal aid is the fact that the subjects, first of all, the State, according to the provisions of law, must perform the obligations and responsibilities in order to have the right to receive legal aid from the State individuals and persons eligible for legal aid
2 Article 7 of The Law on Legal Aid 2017
17 under the provisions of the law are organized to provide it, and at the same time these subjects must have the responsibility to create conditions for them to use their right to legal aid
All state agencies are involved in ensuring this right, especially procedure-conducting agencies, temporary camps, temporary detention houses, and those competent to conduct proceedings Among the subjects providing legal aid, legal aid centers of the state, provinces and centrally-run cities are the most specialized entities for this activity
Therefore, we see that it is really necessary to ensure the right to legal aid of the group of women who suffer from domestic violence, stemming from the current situation of protecting this group of rights The victims are mostly women, who find it very difficult to get legal services and protections In addition, the patriarchal culture has forced women to accept, endure and keep silent when experiencing domestic violence, while the right to legal aid of women experiencing domestic violence is considered is a legitimate and essential right of women 3
In addition, the regulation that "discrimination against legal aid beneficiaries" is one of the prohibited acts (Point a, Clause 1, Article 6 of the
Law on Legal Aid 2017 4 ), also shows that legal aid activities are prohibited legal aid ensures that legal aid recipients have equal rights to receive legal aid services without discrimination whether they are victims of gender-based violence or are men or women
1.2.2 Legal content on ensuring legal aid rights for abused women
In order to ensure equal participation of legal aid recipients in the exercise of rights and obligations and to support the implementation of
3 Bảo đảm quyền trợ giúp pháp lý của nhóm phụ nữ bị bạo lực gia đình ở Việt Nam hiện nay (lyluanchinhtri.vn)
4 Article 6 of the Law on Legal Aid 2017
18 protection and support measures for legal aid recipients who are mothers and girls, victims of domestic violence, victims of trafficking, victims of sexual abuse, Circular No 11/2014/TT-BTP dated April 17, 2013, of the Minister of Justice on regulations on ensuring equality Gender equality in legal aid (currently still in effect) has prescribed a number of measures such as
Legal aid ensures access to justice and rights with no gender bias, preventing exploitation of weaknesses For victims of domestic violence, trafficking, or sexual abuse, legal aid provides information and connects them with support services If violations are detected during legal aid, the case is referred to competent authorities for handling or victim protection.
Victims of gender-based violence have the right to legal aid to protect their rights Legal aid organizations coordinate with relevant agencies to ensure this right is upheld, especially during legal proceedings These agencies are responsible for informing victims of their right to legal aid and facilitating access to it The State Legal Aid Center plays a key role in coordinating and providing timely assistance to victims of gender-based violence.
5 Circular No 11/2014/TT-BTP dated April 17, 2013, of the Minister of Justice on regulations on ensuring equality Gender equality in legal aid
19 is an important mechanism to help minimize the loss of legal aid beneficiaries, including victims suffer from gender-based violence
Second, regulations on gender equality and domestic violence prevention and control: the 2006 Law on Gender Equality and the 2007 Law on Domestic Violence Prevention and Control have defined concepts, behaviors, prohibitions, and measures to prevent domestic violence prevent, fight and handle acts of gender inequality and domestic violence and protect victims of the above acts The above provisions are the basis for identifying acts of domestic violence and gender-based violence and the basis for other legal documents to prescribe specific measures in the fight against and prevention of such acts in this regard, ensuring compliance with the provisions of international conventions to which Vietnam is a contracting party In particular, on the basis of the principle that "Women who are victims of domestic violence receive legal advice to deal with domestic violence" has created the basis for the adjustment of legal aid policies for this object
SITUATION OF GUARANTEEING THE LIGHT OF
Current status of women experiencing violence in Vietnam
In modern society, violence against women does not just stop at physical abuse, causing damage to women's health, but it also manifests in many different aspects The damage caused to the body may still heal, but the wounds and deep cuts in the psyche and spirit are forever still there, imprinted in the minds of miserable women Maybe in a family, a woman is never beaten, but is forced to do hard work, without a day of rest, a life in bondage, without the comfort and encouragement from her family family members, especially from the husband Or they have to constantly listen to insults and insults, which come from many reasons such as not being able to give birth to a son, being a parasite,…Having to bear pressure from her husband's family or insults about her ugly and fat appearance after giving birth All are scary types of violence that seriously affect the psyche and soul of women, while women can be extremely sensitive souls, just a small impact can leave them deeply hurt.
Unlike other types of crime, the perpetrators of violence and abuse against children are usually relatives and acquaintances Specifically, about 21.3% of violators are biological fathers, stepfathers, brothers and cousins; 6.2% are teachers, school staff; 59.9% are acquaintances, neighbors… For adult women, the majority of victims of violence are domestic violence However, the numbers still do not fully reflect the heartbreaking reality, because there are still many cases of child sexual abuse that go unreported for various reasons, such as family shame or concern worry about their children being discriminated against, judged Therefore, this is still just the tip of the iceberg
In 2019, in Vietnam, two out of three women (63%) experienced one or more types of partner violence1 in their lifetime and 32% experienced current violence (in the last 12 months), These are: physical violence, sexual violence, psychological violence (including emotional violence and behavioral control) and economic violence
One in three women (32%) experienced physical and/or sexual violence by their husbands in their lifetime, and one in ten women experienced physical and/or sexual violence by their husbands during those 12 months Younger women, aged 20 to 44, were more likely to experience physical and/or sexual violence in the past 12 months than women in other age groups Women are more at risk of being abused by their husbands than by other people
This finding suggests that intimate partner violence is common, tends to start early and lasts throughout a woman's life Beginning in adolescence (ages
15 to 19), 8% of women/girls experienced physical and/or sexual violence by a husband or boyfriend Women of childbearing age (aged 20 to 44) have the highest rates of current physical and/or sexual violence (in the last 12 months) The Survey results show that there is a significant association between violence and the health and well-being of both women and their children Women are at risk of violence during pregnancy, which can harm the unborn baby, and children living in violent families often witness violence and are at risk of injury themselves
In general, women are more at risk of violence by their husbands than by others Comparatively, one in ten women experiences physical violence by someone other than their husband Other people here are usually male family members
Policies and programs to prevent and respond to violence against women should provide options for women throughout their lives
With the exception of sexual violence, the rate of violence against women perpetrated by husbands in 2019 was lower than in 2010, this is especially true for younger women
The prevalence of physical and mental violence as well as the rate of behavioral control in the lifetime and in the last 12 months in the 2019 Census was lower than in the 2010 Census The lifetime and 12-month rate of physical violence Last month in the 2019 Census was lower than in the 2010 Census in most age groups, especially among women under 40 This difference shows that the current group of young women is less likely to experience physical violence by their husbands more accurate than women of the same age group in 2010
On the other hand, it should be noted that the percentage of women experiencing sexual violence from their husbands in their lifetime in 2019 (13%) is higher than in 2010 (10%), while the rate of sexual violence in the past 12 months is almost between the two surveys The findings on sexual violence are striking because it contrasts with the results of investigations in other forms of violence The reasons for the increase in sexual violence by husbands are not known and need to be further researched and analyzed In addition to the fact that sexual violence may actually increase, it may also be because more people are aware of and knowledgeable about this type of violence, leading to women's willingness to share their experiences of abuse sexual violence This could be a positive effect of the 2010 Census when the issue of sexual violence was discussed publicly for the first time at both the national and local levels
Women with disabilities experience more violence by their husbands (physical, sexual, emotional, economic and behavioral violence) than women without disabilities
Women who experience violence are often isolated and isolated from the community Functional disability may be responsible for this isolation and puts women at greater risk
In this Survey, rates of violence by husbands in the lifetime and in the last 12 months, of all forms of violence, were higher for women with disabilities than for women without disabilities The Survey results show a strong link between disability and husband violence, however, it is not possible to conclude that violence is the cause of disability or that women with disabilities are targets of assault work due to their disability The issue that can be raised here is the need for special response and support measures for women with disabilities who experience violence to be able to meet their special needs
Concepts and attitudes that exacerbate inequality between women and men persist in the 2019 Census However, when studying how women respond by age group, it can be seen that only Fewer women in the young age group in
2019 have the perception that inequality increases in comparison to 2010 This shows that there is a positive change in gender equality among young women compared to older women
The analysis of the 2019 Census identified 17 factors associated with women's experience of violence in the 12 months prior to the interview (compared to 15 identified in the 2010 Census) In both the 2010 and 2019 Census, husband's behavioral characteristics (such as alcohol use, fighting with other men, and adultery) were most strongly associated with husband's violence Harmful gender norms are reinforced by disgruntled attitudes and perceptions gender equality as seeing men as better decision makers than women These notions lead to men having more power and control than women, increasing gender inequality and making women more vulnerable to violence when men want to control or feel them woman cannot be controlled
Attitudes and beliefs associated with culture and children can be shaped by society to believe in these beliefs from an early age Children will assume these beliefs are normal in the society in which they grow up and unconsciously believe them
In Vietnam, a significant proportion of women hold traditional gender roles Over a third (36%) believe that men should lead decision-making and head households Furthermore, 27% endorse the notion that a good wife should unquestioningly obey her husband These findings highlight the persistent influence of patriarchal values in Vietnamese society.
Women in rural areas agree more with this view than women in urban areas, as well as women with low education or no schooling believe it more The relationship between attitudes and educational attainment suggests that harmful attitudes can be reduced as education levels increase
Comparing data from 2010 to 2019 reveals a generational shift in women's attitudes towards gender equality While the overall number of women agreeing that a wife should obey her husband has remained relatively stable, younger women exhibit a significantly more positive view of gender equality compared to their older counterparts.