The right not to be tortured in Vietnamese law

Due to the particularly serious nature of torture, the prohibition of torture has been prescribed in many documents of international human rights and criminal law up to now, including t[r]

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THE RIGHT NOT TO BE TORTURED IN VIETNAMESE LAW

Pham Thanh Son1 PhD Candidate, School of Law, Vietnam National University, Hanoi

Abstract

The article outlines the basic provisions of Vietnamese law on torture prevention On that basis, the author analyzes and assesses the compatibility between Vietnamese law and international law and proposes perspectives and solutions to complete the current legal framework of Vietnam on this issue

According to the author, although the issue of torture prevention has long been noticed and is currently prescribed in many Vietnamese legal documents, including: Constitution, Criminal Code, Ministry Criminal Procedure Code In particular, on November 28, 2014, the National Assembly of Socialist Republic of Vietnam approved the Convention against torture Participation in the Convention against torture is a specific step in the active process of international integration of Vietnam, affirming that Vietnam is an active and responsible member of the international community, improving significantly Vietnam’s international reputation in the field of human rights, and creating new incentives and bases to promote torture prevention in Vietnam today However, the legal framework on this issue in Vietnam still demonstrates some gaps, the most notable of which is the absence of the definition and crime of torture Therefore, the completion of relevant legal documents on torture prevention in compliance with the provisions of the Convention against torture, as well as the provisions of Articles and 10 of the International Convention on Civil and political rights in 1966 is essential Analysis of this content will help to answer two questions: (i) What are the basic provisions of Vietnamese law on torture prevention? and (ii) What requirements are needed to improve the law on torture prevention in Vietnam at present?

Keywords: The Constitution of Socialist Republic of Vietnam; human rights; torture; Convention

against torture

1 Torture prevention in international human rights law and Vietnamese law

Torture, pursuant to Article of the United Nations Convention against torture and other cruel, inhuman or degrading treatment or punishment in 1984 (hereinafter referred to as the Convention against torture), is any act that causes serious physical or mental pain or suffering that is intentionally applied to a person, to draw from that person or a third person information or confession, or to punish

1 This paper is part of the doctoral thesis titled “Improving Vietnamese law on prevention and fighting of torture / Hoàn

372 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS the person for an act committed or suspected by that person or a third person, or to intimidate or enforce that person or the third person, or for any reason based on any discrimination by an official or another person acting in a manner or with the instigation, agreement, or consent of a civil servant.1

Torture (whose ‘secondary’ behavior is punishment, cruel, inhumane treatment, or corporal punishment) is both a legal and an ethical and cultural issue From a moral and cultural perspective, the UN condemns torture as one of the most inhumane and despicable acts that people commit to their fellow human beings, because torture denies their dignity and destroys physique and soul of the victims - those put in the defenseless circumstances From a legal perspective, according to international human rights law, torture is one of the most severe forms of human rights violations and the most criticized act According to international criminal law, torture systematically and commonly carried out depending on the context may constitute genocide, war crimes or crimes against humanity; that is, forms of international crime for which perpetrators can be prosecuted and judged in accordance with Rome Statute (1998)

Due to the particularly serious nature of torture, the prohibition of torture has been prescribed in many documents of international human rights and criminal law up to now, including the Universal Declaration of human rights in 1948 (Article 5), International Covention on civil and political rights in 1966 (Article 7), and especially the Convention against torture in 1984 According to these documents, torture act is strictly prohibited, in any situation including peacetime, wartime or in an emergency status of a nation Any justification for torture is unacceptable In particular, the ban on torture is considered a norm of international customary law, and as such, its effect is binding on all countries, including those that have not yet joined any relevant international treaties

The UN Convention against torture states the specific responsibilities of states to prevent torture, can be summarized as follows:

- Criminalize torture acts, provide appropriate penalties for torture acts (Article 4)

- Investigate, prosecute and quickly and effectively conduct torture acts in different circumstances (Articles 7,8,9,12)

- Coordinate, support other countries in extradition and adjudication of crimes (Article 7,8,9) - Do not deport, return, extradite a person to other countries where there is good reasons to believe that he/ she may be tortured (Article 3)

- Educate and disseminate the prohibition of torture, including the inclusion of the ban on torture in laws on functions and duties of related subjects such as law enforcement officers, civil employees, military employees, medical employees, civil servants… (Article 10)

- Review, monitor and monitor the implementation of relevant laws and detention facilities to ensure that torture does not occur (Article 11)

- Ensure the procedural rights of the accused, the defendants, the right to appeal and the right of torture victims to receive compensation, the right of witnesses and victims to be protected (Articles 13, 14)

1 United Nations - UNO (1984), United Nations Convention against Torture and Other Cruel, Inhuman or Degrading

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- Do not use the testimony obtained from torture as evidence in all proceedings (Article 15)1

In fact, the above provisions are also the torture prevention measures that countries have the responsibility to apply It can be seen that the scope of these measures is broad, not only in legislative, executive, judicial activities but also in enforcement, propaganda, dissemination, legal education and international cooperation on justice

In Vietnam, the state has been interested in protecting human rights in legal proceedings since fairly early Immediately after the country’s independence, under the threat of the ‘enemy is inside, the aggressors are outside’ situation and without the Constitution, President Ho Chi Minh signed a number of ordinances (Ordinance 33A, 33B, 33C, Ordinance 46/1945), which cover guarantees of human rights in legal proceedings

The Constitution in 1946 had for the first time defined a principle of arbitrary action prevention in legal proceedings in Vietnam, according to which, “Judicial decisions are not allowed to arrest and detain Vietnamese citizens The housing and correspondence of Vietnamese citizens must not be illegally violated by anyone” (Article 11) Although this provision does not refer specifically to issue of torture, it is very important to protect people from human rights violations in judicial activities, including acts of torture, inhumane treatment, corporal punishment

The above constitutional principles continued to be inherited by the later Constitutions and evolved into the full principle of the inviolable right to the body, honor and dignity of citizens applied in all contexts, including in proceedings (Articles 27, 28 of the 1959 Constitution, Article 69,70,71 of the 1980 Constitution, Article 71 of the 1992 Constitution)

The 2013 Constitution firstly mentioned specifically the ban on torture Clause 1, Article 20 of the 2013 Constitution states: “Everyone has the right to inviolability of the body and to be protected on health, honor and dignity by the law; they not suffer from torture, violence, coercion, corporal punishment or any other form of treatment that violates the body, health, and insults their honor and dignity”2

Although the 2013 Constitution has been approved, the concept of “torture” has not yet been defined in Vietnamese law up to now The documents under the Constitution have not updated the new regulations on banning torture but have only mentioned some related concepts such as corporal punishment, extort depositions In particular, the current legal framework related to torture prevention in Vietnam can be summarized as follows:

The Criminal Code in 2015 (amended and supplemented in 2017) does not provide for specific crimes and does not introduce the concept of “torture” However, all acts of torture nature are determined to be crimes, which are prescribed in the case of using corporal punishment, the crime of extort depositions, bribery or coercing to others to make false statements or provide false documents Acts of torture nature can also be prosecuted for criminal responsibility for crimes such as: murder; crimes of killing people while performing official duties; crime of force to commit suicide; crime of threatening to kill; crime of injury or harm to the health of other persons while on duty; crimes of tormenting others; crime of humiliating others; crimes of arresting, holding or detaining people

1 United Nations - UNO (1984), United Nations Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment

374 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS illegally; crimes of humiliating, assaulting a commander or senior; crimes of humiliating or using corporal punishment against subordinates; crimes of humiliating, assaulting teammates; crime of mistreating prisoners In the spirit of the Convention in 1984, the Criminal Code in 2015 expanded the subject, the behavior, and increased the penalties for torture-related acts in line with the concept of torture as prescribed in the Convention and actual conditions of Vietnam, especially on crimes such as: crime of extort depositions; crime of corporal punishment; crimes of bribery or coercing to others in making declarations and providing documents

- The Criminal Procedure Code in 2015 sets out the principles: prohibit torture, extort depositions, corporal punishment or any other form of treatment that infringes upon the body, life, or human health (Article 10); protect the life, health, honor, dignity and property of individuals (Article 11)

- The Law on Execution of Criminal Judgments in 2010 stipulates the principles: complying with the Constitution, laws; ensuring the interests of the State and legitimate rights and interests of organizations and individuals; guaranteeing socialist humanitarian; respecting the dignity, the rights and legitimate interests of the judgment debtors (Article 4); prohibiting acceptance of bribes, harassment in criminal execution; obstructing judgment debtors from exercising their right to request exemption or reduction of sentence execution term (Article 9)…

- The Law on Enforcement of custody and temporary detention in 2015 regulates the prohibition of torture, prosecution, corporal punishment or any other form of treatment that violates the lawful rights and interests of the person held in custody or temporary detention, imprisonment (Articles and 8)

- The Law on Organization of Criminal Investigation Agencies in 2015 strictly prohibits from extorting depositions, the use of corporal punishment and other forms of torture or treatment, cruel, inhumane punishment, humiliation of people or any other form of infringement upon other legal rights and interests of agencies, organizations and individuals (Article 14)

- The Law on Complaints in 2011 ensures the right to appeal and resolve complaints for all individuals and organizations, including tortured victims; prohibits hindering or causing troubles to persons exercising the right to complain, to threatening, taking revenge, retaliatong against the complainant (Articles and 6)

- The Law on Denunciations in 2011 provides for denunciations and settlement of denunciations regarding violations of law by officials, public servants and public employees in the performance of duties, official duties and of agencies, organizations and individuals on state management in all fields; protects whistleblowers and manages denunciation treatment work (articles 1, 4, 5, 8)

- Law on Organization of the National Assembly in 2014 (Article 33), Law on Organization of the Government in 2015 (Article 21), Law on Organization of the People’s Court in 2014 (Clause Article 2), Law on Organization of the People’s Procuracy in 2014 (Clause 2, Article 2, Point b, Clause 2, Article 3, Point b, Clause 2, Article 4), Law on People’s Public Security in 2014 (Clause 2, Article 15), Law on Vietnam People’s Army Officers in1999 (Article 26), The National Security Law in 2004 (Clause 6, Article 13), Law on Professional Soldiers, Workers and National Defense Officers in 2015 (Article 7)… regulate responsibilities of agencies and individuals in the protection of human rights

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Law on Prevention of Family Violence in 2007 (articles: 2, 8), Law on Gender Equality in 2006 (Articles: 6, 7, 10), Law on Press in 2016 (Articles 4, 9), Law on Union in 2012 (Articles: 9, 14, 18, 19, 21), Law on Nationality in 2008 (Articles 2, 5, 6), Law on Legislation Assistance in 2006 (articles: 6, 7, 10), Law on medical examination and treatment in 2009 (articles: 6, 35, 37, 38, 73), Law on children protection, care and education in 2004 (articles: 5, 7, 14, 15, 26, 27), Law on Education in 2005 (Article 75), Law on primary education popularization in 1991, Law on cadres and civil servants in 2008 (articles: 16, 17, 18), Law on Officers in 2010 (articles: 17, 19) and Law on access to information 2016 (articles from to 15)

Evaluation of the compatibility of the Vietnamese legal system with the provisions of the 1984 Convention against torture:

Basically, Vietnamese law demonstrates certain compatibility with the provisions of the 1984 Convention against torture and the world standards on torture prevention and combat, such as the obligation to prohibit torture, to punish torture, to prevent torture, and to protect victims of torture

Although there are no specific crimes against torture, the provisions of the current Criminal Code can be applied in the handling of the acts of torture or cruel, inhumane and punitive treatment such as: killing people who are despicable or abusive in their profession, guilty of bail, corporal punishment However, these crimes clearly not cover the content of torture according to the broad definition stated in the Convention

Similar to the laws of other countries around the world, in criminal proceedings, Vietnamese law allows the application of a number of coercive preventive measures such as arrest, custody, detention However, in order to combat the abuse of power or intentional violation of the human rights protected by law, the law contains very specific and strict regulations on the application of certain preventive measures Those arrested, detained or serving imprisonment sentences are deprived of a number of rights but still protected by the citizens’ basic rights such as the right to life, health and honor, dignity, the right to not be tortured, beaten, cruelly punished

Compared with the provisions of the Convention, Vietnam has also been applying a series of measures to prevent torture such as

- Legislative: Acting against torture, punishment or cruel, inhumane or humiliating treatment of human beings is a basic principle that is thoroughly grasped in the law-making process

- Regarding law enforcement: the principle of respect and assurance of human rights, action against torture, punishment or cruel, inhumane and humiliating treatment of human beings, is thoroughly implemented in the provisions on enforcement activities of state agencies, especially agencies directly related to law protection activities such as police, procuracies and courts

- Regarding justice: during the investigation process, investigating bodies must strictly abide by the principle of respect and assurance of human rights; action against torture, punishment or cruel, inhumane and humiliating treatment of people, to ensure the right people, the right crimes, not to overlook crimes and not to wrongly accuse people

376 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS punishment or cruel, inhumane and humane treatment, human humiliation must be punished with a punishment commensurate with the consequences of the offense Provisions on custody, temporary detention and judgment execution during the investigation process require the judgment execution agencies and investigating bodies to thoroughly grasp the view of respect and protection of human rights of people help in custody, temporary detainees, and prisoners Vietnamese law also stipulates that persons held in custody or temporary detention have the right to complain about or denounce illegal custody or temporary detention or acts contrary to the regulations on custody and temporary detention In addition, the provisions on jurisdiction, extradition, return, non-deportation obligations, exchange or extradition in Vietnamese law have basically met the requirements of the Convention

Regarding the prevention of torture acts, Vietnamese law also specifies the obligation to propagate against torture, guarantee the rights of people arrested and detained, the principle of not using the testimonies as a result of torture, obligations to prevent acts of cruelty, inhumane or humiliating treatment or punishment ensuring compliance with the contents of the Convention

Regarding the protection of victims of torture, the law of Vietnam has specific provisions to ensure the rights of complaints and denunciations of tortured victims, the obligation to compensate victims of torture in accordance with the content of international law on anti-torture

2 Requirements to improve the current law on torture prevention in Vietnam

Socialist Republic of Vietnam signed the Convention against torture on 07th November 2013 On

28th November, National Assembly of the Socialist Republic of Vietnam approved the Convention

against torture Participation in the Convention against torture is a specific step Vietnam is taking in the active process of international integration, affirming that Vietnam is an active and responsible member of international community, improving significantly Vietnam’s international reputation in the field of Human Rights and creating new incentives and bases to promote torture prevention in Vietnam

Before joining the Convention against torture, in order to protect human rights, civil rights, the laws of Vietnam have relatively basic and adequate mechanisms to ensure the right not to be tortured, treated and punished brutally or humiliated Although the aforementioned analysis shows that there is a legal framework for torture prevention in Vietnam, there are still gaps that need addressing Filling these gaps and perfecting the current legal framework on torture prevention in Vietnam is an urgent task This comes from a number of reasons:

- Firstly, the Constitution in 2013 has detailed regulations on torture prevention The new regulations create the basis for promoting prevention of human rights violations in Vietnam in the future, because as stated above, the definition of torture under international human rights law is much broader than the definitions of persecution, corporal punishment, insulting honour and dignity of citizens enshrined in the constitution before 2013 Therefore, the new regulations of the Convention against torture in 2013 necessitate further study, amendment, and supplementation of the current legal framework of Vietnam, especially the law framework on criminal, criminal proceedings to make it harmonize with international standards on torture prevention

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Therefore, it is necessary to amend and supplement the legal framework on torture prevention in order to fully implement Vietnam’s increasingly strong commitment and increasingly heavier, more specific international obligations concerning this issue

- Thirdly, The requirement to ensure human rights in judicial activities, including corporal punishment prevention in the course of criminal procedure implementation, was emphasized in Resolution No 49-NQ/ TW dated 02/06/2005 of Politburo on the strategy of judicial reform by 2020, and recently the Resolution No 63/2013 / QH13 dated 27/11/2013 of the XIII National Assembly on strengthening measures of Crime prevention Therefore, amending and supplementing the legal framework on torture prevention is to aim at implementing these two important documents

- Fourthly, although prohibited by law, instances of torture, corporal punishment sometimes still occur in the activities of Vietnam’s criminal proceeding agencies, especially in investigating agency Recently, a number of serious cases have been discovered, causing much anger in the public, requiring the government to act quickly and take effective measures to prevent similar incidents and regain citizens’ trust in the legal agencies system Completing the legal framework on torture prevention is the first and indispensable measure to accomplish this goal

In order to consolidate and complete the current legal framework on torture prevention, it is necessary to implement the following amendments and supplements:

Firstly, it is necessary to clearly define the concept of torture in the Criminal Code, and also criminalize torture behaviours Although the Criminal Code currently has specified two crimes, namely extort depositions and the use of corporal punishment, these crimes clearly not cover the full content of torture as defined in the Convention on torture prevention of United Nations According to the author, there is a need to stipulate more crimes of torture and to provide specific definitions of cruel, inhumane acts of torture and corporal punishment in accordance with relevant standards of international law

Secondly, The Criminal Procedure Code has added regulations to ensure the silence rights of arrestees, detainees, suspects, defendants, and the presence of lawyers during the taking of statements from defendants; however, research is needed to improve existing legal proceedings, including research that sets forth special procedures if necessary to ensure torture acts will be investigated, prosecuted and reviewed, judged quickly and strictly This is because, as in any other country in the world, the perpetrators of torture in Vietnam are the ones who conduct the proceedings, while the investigation, prosecution and trial are also done by the authorities conducting proceedings Cases of intentionally delaying, covering up violators are consequentially unavoidable

378 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS Fourthly, it is necessary to research and strengthen educational and propaganda measures on torture prohibition, and on human rights of citizens deprived of liberty to relevant objects, especially for officials conducting legal proceedings This is one of the most rigorous and proactive measures to prevent torture Experience from around the world shows that there are very few countries allowing torture, but in fact such action is still taking place due to the ignorance or poor sense of law compliance among law enforcement officials Besides the sanctions, education, propaganda on torture prohibition and human rights of citizens deprived of liberty will significantly reduce the torture behaviours of law enforcement officials In this regard, it is necessary to conduct research or amend and supplement the content on torture prohibition and human rights of citizens deprived of liberty into the curricula of law universities and schools of law training enforcement officers at all levels In addition, it is also necessary to develop and implement mandatory training programs on the content stated for the officers, police officers, security officers, civil and health workers in concentrated detention, education, detoxification facilities Furthermore, it is necessary to develop or amend and supplement the code of ethics for the subjects mentioned, emphasizing the issue of torture prohibition and respect and protection of the human rights of those deprived of liberty

Fifthly, it is necessary to study and improve the mechanism of examination and supervision of the law compliance by agencies and officials conducting legal proceedings, especially in investigating and detention activities In this regard, it is necessary to especially promote the supervision role of the Judiciary Committee and the National Assembly deputies, and to simultaneously expand the conditions that allow the mass media regularly supervise and evaluate the effectiveness of the judiciary, including the detention facilities In addition, it is necessary to encourage the formation and operation of non-governmental organizations working in the field of human rights, especially those specialized in protecting the rights of those deprived of liberty and tortured and supporting torture victims

Sixthly, it is necessary to continue studying and completing the existing laws and mechanisms to ensure the human rights of those deprived of liberty, especially the procedural rights of the accused, defendants, prisoners, and the right to protection of victims and witnesses of torture Concerning this matter, it is also necessary to research and improve the regulations to ensure that the principle of testimony obtainment from torture, corporal punishment or bow of any form will not be used as evidence of accusation in every stage of the proceedings

Seventhly, it is necessary to simplify the the procedures for determining damages and claiming state compensation in the implementation of the provisions of the Law on compensation liability of the State in 2017 and Decree No 68/2018/ND-CP detailing a number of articles and measures to implement Law on compensation liability of the State It is also necessary to stipulate the consideration of compensation for damages, both direct and indirect, physical and mental, thereby ensuring that people who are subjected to brutal, inhumane and humiliating torture, treatment and punishment can be compensated quickly and satisfactorily

Eighthly, it is necessary develop separate, long-term programs, policies and mechanisms for torture prevention (or place them in programs, policies, and general mechanisms for the protection of human rights), including mobilizing the participation of civil society organizations, media agencies, jurists to detect, prevent and effectively handle torture acts

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of Special Rapporteur on torture, arbitrary arrests of people and international non-governmental organizations on human rights to visit and monitor domestic detention facilities

Tenthly, it is necessary to conduct research to develop a separate Act on torture prevention and protection of victims of torture, according to the experience of some other countries such as the United States, Philippines, Uganda, South Africa

References

Government (2017), Decree No 68/2018/ ND-CP regulating in detail some articles and measures to enforce the state’s compensation liability law;

United Nations - UNO (1948), Universal Declaration of Human Rights;

United Nations - UNO (1984), United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

National Assembly (2012), Law on handling administrative violations in 2012; National Assembly (2013), Constitution of the Socialist Republic of Vietnam in 2013 National Assembly (2015), Criminal Procedure Code in 2015;

National Assembly (2015), Civil code in 2015;

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