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

VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES TRAN HUNG BINH PROTECTING LEGITIMATE RIGHTS AND BENEFITS OF THE JUVENIlE ACCORDING TO CRIMINAL PROCEDURE Legislations OF VIETNAM Subject : Criminal Laws Code : 62.38.40.01 SUMMARY OF PhD. THESIS OF LAWS HANOI - 2013 THE WORK IS COMPLETED AT THE GRADUATE ACADEMY OF SOCIAL SCIENCES 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 thesis can be accessed at the National Library and the Library of the Graduate Academy of Social Sciences INTRODUCTION 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 country shall exercise the dual tasks, including both determining the truth of criminal cases that 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 and justice. The core of the task protecting human rights in criminal procedures is to ensure human rights of the suspect, the accused and the defendant. The juvenile in general and the children in particular are a special group who have distinguished characteristics, immature psychology and development and 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 been recently 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 1 Purpose of research: the thesis comprehensively, sufficiently and profoundly deals with theoretical issues of the legitimate rights and benefits of the juvenile in the criminal procedures. Results of the research would contribute to improving criminal procedure and criminal legislations and enhancing the awareness of the parties on criminal procedures and the whole society as well in better protecting the legitimate rights and benefits of the juvenile in the criminal procedures. 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 out obstacles and disadvantages of Vietnam’s criminal procedure legislations in protecting the legitimate rights and benefits of the juvenile as well as shortcomings of the application of such legislations in reality; 3) To suggest recommendations in order to improve applicable laws particular judicial authorities to protect the legitimate 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 the juvenile violating the laws during the different criminal procedure phrases including 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 domestic legislation, including perspectives of the Party, the legal system of the State about human rights, the rights of the juvenile, the legitimate rights and benefits of the juvenile in the criminal procedures; the role and task of the criminal procedure legislation on human rights protection; In term of periodic scope: from the date that the 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 the humans and human rights; Specifically, the research method that approaches multi and inter-sectors including multi social sectors utilized as mush as possible. A part from examining human rights of the juvenile in the criminal procedures under legal perspectives, issues that are examined are also put in the connection with other social sciences. The author focuses on analyzing and synthesizing methods, comparative legal sciences and methods of sociology and laws to suggest opinions, 2 solutions that help improve criminal procedure legislations. Also, the author suggests economic, social, cultural and educational solutions to more effectively protect the legitimate rights and benefits of the juvenile in the criminal 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 in each chapter of the thesis. Namely, the method used in chapter 2 is analyzing and comparing legal documents, contrasting inter-sectors and examining history- related issues. The method used in chapter 3 is synthesizing and analyzing legal documents, listing the protection work of the rights of the juvenile as the party during the resolution of criminal cases. The problem will be analyzed through two groups of party including procedure conducting persons and procedure participating 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 criminal procedure legislation” and “protecting the legitimate rights and benefits of the juvenile 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 and benefits 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 in order to effectively enhance the protection of the legitimate rights and benefits of the 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 the juvenile 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, the parties in proceedings, families, education institutions and social organizations. 6. Structure of the thesis 3 Besides the introduction, conclusion, list of references and annex, the thesis consists 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 human rights protection for the juvenile on the globe, the author evaluates a number of international 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 by French revolutionists, marking a new development of human rights. The second one 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 International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). Besides, the United Nations adopted a number of legal instruments such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty 1990, the United Nations Guidelines for Prevention of Juvenile Delinquency 1990 (Riyadh Guidelines), the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally 1986, the Guidelines for Action on Children in the Criminal Justice System as part of the Economic and Social Council Resolution 1997/30 for Action on Children in the Criminal Justice System (ICCPR, the United Nations General Assembly 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 4 among a series of criminal justice handbooks issued the Office of the High Commissioner for Drug and Crime in 2009. Through examining foreign works, the author adopts the following advantages: 1) the protection of human rights in criminal justice firstly springs from 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 of legitimate rights and benefits of the juvenile in the criminal procedure under perspective of law studies; 3) fairly describing the current status of international laws 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, the social 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 The Lien, the Education Publishing House 1996; For the rights of children and for the equality of women, Ho Chi Minh National Political Academy, 2000; The rights of children and the media, the National Political Publishing House, 2000; Enhancing approaching methods based on the rights of children - experience and initiatives from Asian countries, the National Political Publishing House, 2006; The rights of children (an in-depth book for studies, education and exercise of the rights of children), 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 5 outstanding works: Preventing children from committing crime - by Vice Dr. Vu Duc Khien as Editor in Chief, the Law Publishing House, Hanoi, 1987; The issue of criminal liability of the juvenile according to the Vietnamese criminal legislation - Ph.D. Thesis - Dinh Xuan Nam, Kiev, 1994; Justice for the juvenile and the rights of children - Vu Ngoc Binh, the National Political Publishing House, Hanoi, 1996; Protecting Human Rights according to Vietnam’s criminal procedures - 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 some comments as follows: 1) works on human rights would play a role as ground for the author to intensively assess human rights related to the “vulnerable” group of juvenile, particularly in the criminal procedures; 2) there have been “rooms” in the research on special group of juvenile, namely there has not been an intensive, comprehensive, sufficient and systematic research on both theories and actual legislations as well as application in reality, including issues concerning the legitimate rights and benefits of the juvenile. In the other words, these works only approach the rights of the juvenile under perspective of the criminal procedures but 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 criminal procedures 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 be compared, 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 empty rooms” 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 a basis to suggest the solutions; 6 The fifth, In Vietnam, mechanisms to protect the legitimate rights and benefits of the juvenile in the criminal procedures legislation has not been researched 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 current situation in Vietnam. 1.3. QUESTIONS POSED WHEN DOING RESEARCH For the purpose of approaching human rights of the juvenile in the criminal procedures in order to deepen criminal procedure provisions in terms of both theory and practice, the author needs to clarify the relation among human rights, including the legitimate rights and benefits of the juvenile in the criminal procedures. These relations will subsequently play a role as bridge between the Penal Code, the Criminal Procedures Code and the issue of Human Rights. To handle 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 answer the following questions: 1. The definition of the legitimate rights and benefits of the juvenile? the legitimate rights and benefits of the juvenile in the criminal procedures? the legitimate rights and benefits of the juvenile in the criminal procedures in Vietnam? The protection of the legitimate rights and benefits of the juvenile in the criminal procedures in Vietnam in history? The trend of how the legitimate rights and 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 the juvenile in different criminal procedures phrases from 2004 up to now, namely: the Vietnamese criminal procedures legislation? The structure of institutions to protect the 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 7 [...]... 4 SOLUTIONS TO EFFECTIVELY PROTECT THE LEGITIMATE RIGHTS AND BENEFITS OF THE JUVENILE ACCORDING TO THE CRIMINAL PROCEDURES LEGISLATION OF VIETNAM 4.1 INTERNATIONAL TREND AND OPINIONS OF THE PARTY AND THE STATE OF VIETNAM ON THE ISSUE OF PROTECTING THE LEGITIMATE RIGHTS AND BENEFITS OF THE JUVENILE ACCORDING TO THE CRIMINAL PROCEDURES In this section, the author analyzes and comments on the global trend... 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 criminal procedures legislation, clarifies the means to protect the legitimate rights and benefits of the juvenile, specifically: In terms of the criminal procedures... current statues of relevant legislations and institutions related to the protection of the legitimate rights and benefits of the juvenile in the criminal procedures and under the guidelines by the Party and the State concerning the amendment of the criminal procedures code to effectively protect the legitimate rights and benefits of the juvenile, the author examined and suggested three groups of solutions... protecting children as well as the opinion of the Party and State of Vietnam on the issue of protecting the legitimate rights and benefits of 17 the juvenile in the criminal procedures, particularly opinions on amending the current criminal procedures code according to the judicial reform In terms of the global trend: There has been a profound understanding of the development of the children, the juvenile. ..8 protect the legitimate rights and benefits of the juvenile? Solutions to improve institutions 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 issue that interests... handling criminal cases of which the accused and the defendant are the juvenile 2.3 EXPERIENCE OF PROTECTING THE LEGITIMATE RIGHTS AND BENEFITS OF THE JUVENILE IN THE CRIMINAL PROCEDURES IN SOME FOREIGN COUNTRIES 2.3.1 Overview on a number of means to protect the juvenile in the criminal procedures in the world In this part, the author examines some models to protect the juvenile in the criminal procedures... international laws to establish means to protect the legitimate rights and benefits of the juvenile in the criminal procedures However, Vietnam is still facing challenges and obstacles and new approaches need to be examined to better protect such group of people Chapter 3 CURRENT STATUS OF PROTECTING THE LEGITIMATE RIGHTS AND BENEFITS OF THE JUVENILE ACCIRDING TO THE CRIMINAL PROCEDURES LEGISLATION OF VIETNAM. .. the legal system of Vietnam, the author suggest a definition 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... terms of the procedures conducting agencies (lack of specific interpretations, issuing poor and improper regulations to protect the legitimate rights and benefits of the juvenile) ; 2) In terms of the procedures conducting officials (failing to ensure the right to defend counsel for the juvenile, failing to explain the rights and duties of the juvenile during interviewing them and their family; failing to. .. investigating agencies and courts to protect this group In this thesis, the author focuses on examining the following contents: 1 Interpreting and clarifying definitions and characteristics of the juvenile to subsequently suggest the following definitions: the legitimate rights and benefits of the juvenile and the protection of the legitimate rights and benefits of the juvenile in the criminal procedures activities"; . criminal procedures? the legitimate rights and benefits of the juvenile in the criminal procedures in Vietnam? The protection of the legitimate rights and benefits of the juvenile in the criminal procedures. perspectives of the Party, the legal system of the State about human rights, the rights of the juvenile, the legitimate rights and benefits of the juvenile in the criminal procedures; the role and task of. structure of institutions to protect the 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