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
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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,

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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
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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
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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
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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;
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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
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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 various sciences including laws studies in general and studies in the
criminal procedures law. This issue is even more pivotal as Vietnam is now
heading to a rule of law State “of the people, for the people and by the people”.
Therefore, approaching human rights in perspective in the criminal procedures is
fairly new one, contributing to improving the criminal procedures legislation as a
comprehensive and uniformed solution to protect the legitimate rights and benefits
of the juvenile in the criminal procedures.
Chapter 2
THEORIES ON PROTECTING THE LEGITIMATE RIGHTS AND
BENEFITS OF THE JUVENILE IN THE CRIMINAL PROCEDURES
In this Chapter, the author will focus on the following issues:
2.1. DEFINITIONS
In this part, the author analyses characteristics of the juvenile as special
group of the society, who have specific physical, psychological and personal
characteristics and have specific features in term of sociology. The author may
summarizes as follows: due to immature development of psychological and
physical elements, the juvenile may not have sufficient awareness in education
and in social communicationdo. Due to this, the society is required to fairly judge
them and extend to them the rights equated with their age. This requires that when
the juvenile gets involved in criminal violation, they must be treated consistent
with their age, and there must be special institutions to deal with them.
Subsequently, to figure out the definition of the legitimate rights and
benefits of the juvenile, the author approaches general analysis on general
characteristics of human rights and then point out the relation and objective
existence between the universal and specific features of human rights.
Accordingly, the universal features only exists as they are reflected in the specific
features of human rights. In the other words, the universal features can be seen
through the specific features, and the latter only exist as they are linked to the
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universal features of human rights. Based on analysis on the universal features of

human rights, the author focuses on human right related to the juvenile and their
legitimate rights and benefits.
In terms of human rights related to the juvenile, the author mainly focuses
on two documents as follows: The UN declaration of the rights of the child 1959
and the UN Convention on the rights of the child 1989. Through these two
important documents, it is firmly asserted that the children must be protected as
they are “physically and intelligently immature and need to be particularly
protected, including appropriate legal means before and after they are born”.
In terms of the legitimate rights and benefits of the juvenile, there has been
an absence of the official definition on “the legitimate rights and benefits”. These
terms are indication of human rights and are provided in the legal system of
countries, depending on social, economic conditions and practices of each country.
These rights are protected by the laws and different legal institutions. Thus, it is
appropriate to mention “the legitimate rights and benefits” in the context of a certain
country, and this thesis only examine the topic in the context of Vietnam. The have
not been official definition of Children and juvenile; therefore, “the legitimate rights
and benefits of the children” is obviously “the legitimate rights and benefits of the
juvenile”. However, it is not totally rights as we understand in a opposite way
because there is always a “gap” of legal provisions on the group between 16 and 18
years old. Therefore, in Vietnam at the moment, “the legitimate rights and benefits
of the juvenile is generally “the legitimate rights and benefits of children”.
Through briefly analyzing 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 in reality as well as protect them when violated.
After suggesting the definition on “the legitimate rights and benefits of the
juvenile”, the author focuses on clarifying the term “the protection of the
legitimate rights and benefits of the juvenile according to Vietnam’s criminal

procedures legislation” in sub-section 2.1.3.
To obtain the purpose of the research, the author begin from summarizing
mechanism to protect human rights. Namely, the said mechanism may mean the
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organization and operation of a certain system, which bears two features including
system and operation. Accordingly, a system may consist of: 1) legislations and
regulations made in accordance with certain competences, procedures and orders
and obliged to parties; 2) a structure of authorities established to enforce certain
functions and duties. Operation may mean the operation of authorities and
organizations to practice their assigned duties.
Next, the author analyzes and emphasizes the role of the criminal
procedures legislation as a legal instrument to protect the legitimate rights and
benefits of the people in general as well as the juvenile in particular. This is
because protecting human rights in the criminal procedures is consider the core
matter among all criminal procedures activities. This role is indicated in the
Universal Declaration of Human Rights 1948 and the International Covenant on
Civil and Political Rights 1966; the Basis Principles for the Treatment of
Prisoners, the Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment 1985 … These legal instruments are
regarded as standards of human rights in the criminal procedures. Human rights
in the criminal procedures consists of the right to a fair trial under a just and
open criminal proceeding and court; the inviolable right to live, health, dignity,
honor and other rights of private freedom. Any coercive measures applied in the
criminal procedures shall be in accordance with the laws; the right to the
presumption of innocence; the right to defend, the right not be tried to late; the
right to be applied special procedure for the juvenile; the right to appeal, the
right to seek justice the right to double jeopardy…
For the special group of juvenile, the protection of their legitimate rights
and benefits is stipulated in international documents for the juvenile criminal
justice, namely: 1) the Convention on the rights of the child adopted by the

United Nations’ General Counsel on 20/11/1989 and came into effect in
2/9/1990; 2) the United Nations Standard Minimum Rules for the Administration
of Juvenile Justice 1985 (the Beijing Rules); 3) the United Nations Guidelines for
Prevention of Juvenile Delinquency 1990 (Riyadh Guidelines); 4) the United
Nations Rules for the Protection of Juveniles Deprived of their Liberty 1990 (the
1990 Rules)…
These legal documents function as guidelines and recommendations to
establish a justice system for the juvenile in a country’s legal system. This is
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not only to respect and protect the rights of the child but also to maintain the
social order and safety. Thus, these documents enable countries to make
policies for the juvenile criminal justice and domestically legalize and
implement provisions of the Convention on the rights of the child concerning
the juvenile criminal justice.
In the context of Vietnam, the author briefly introduces the criminal
policy of Vietnam to the juvenile crime, which bear profound humanitarian
features by the Party and State to the juvenile crime. This is indicated through
Vietnam’s criminal procedures legislation, including the Penal Code, the
Criminal Procedures Code, one sector legal regulations like Resolutions by the
Supreme People’s Court’s Judge Counsel and multi-sector like Circulars, even
other ones which are not legal documents but function as interpretations to
apply the laws, such as Annual Reviews by the Court, Letters to direct the
application of the laws issues by the Supreme People’s Code…
From examining the relevant international laws and Vietnamese laws, the
author render out the definition of the protection of the legitimate rights and
benefits of the juvenile in the criminal procedures as follows:
The protection of the legitimate rights and benefits of the juvenile in the
criminal procedures may mean that the State, through providing provisions in
the Criminal Procedures Code, shall prevent the juvenile from being violated,
depending on ages, levels of development and personal demand to be protected

in accordance with the laws 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 legislation, indicated by two aspects:
Firstly, provisions on procedures and orders to deal with a criminal case
in various phrases of procedures. In these provisions, there will be a separate
chapter stipulating criminal procedures only applied to cases of which the
arrestee, the accused or the defendant is the juvenile. However, besides this
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chapter, other provisions of the criminal procedures legislations shall also be
applied to the juvenile.
Secondly, Provisions on the operation (function, duty and power) of the
criminal procedures conducting authorities (the investigative agencies, the
procuracies, the courts), the law enforcement officers (investigators, the
prosecutors, the judges, the jurors, the clerks) and other state agencies and
organizations involving in dealing with criminal cases.
In terms of organization of criminal justice system, these are structure
and operation of criminal procedures conducting authorities, provisions on
obligations to protect the legitimate rights and benefits of the juvenile through
the court’s activities of adjudication.
Besides the organization of the criminal justice system, the legitimate
rights and benefits of the juvenile are also protected through other family and
social institutions, namely the participation of agencies, organization, families in
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 in the world both in the past and currently. These
models is selected to be examined based on their aspects representing different
legal model. The models chosen to be examined are the Philippines, New
Zealand, New South Wales, Japan, Scotland, the Czech Republic and the
United States.
Comments: Through examining these legal models, the author finds that,
in order to protect the legitimate rights and benefits of the juvenile, apart from
improving specialized legislations, a specialized justice system is fairly crucial,
including a model of specialized courts as an.
2.3.2. Some models of specialized court in the world
Models of specialized court in the world can be the juvenile specialty
court (welfare model), justice model for the juvenile (punishment model) and
model of family courts. Through examining these models, the author makes the
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following comments: a model of combined family court can be, in different
aspects, regarded as a ideal justice system. This is a comprehensive approach to
handle families’ problems to maintain a healthy life and welfare to every
member of a family.
At the end of chapter 2, the author makes the following conclusion: in
order to protect the legitimate rights and benefits of the juvenile in the
criminal procedures, countries in the world have implemented various
approaches, such as making specialized legal provisions as part of legal
policies, establishing specialized institutions and other relevant institutions.
Facing increasing demands during the international integration, Vietnam has
made huge efforts to keep up with other countries by domestically legalizing
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
In this Chapter, the author examines and evaluates current status of means
to protect the legitimate rights and benefits of the juvenile according to the
criminal procedures legislation of Vietnam, namely: 1) Provisions and their
actual application of the criminal procedures legislation; 2) current status of
organization and operation of the procedures conducting authorities; 3) current
status of protect the legitimate rights and benefits of the juvenile in the criminal
procedures from families and social organizations. The author utilizes methods
such as contrasting relevant provisions, international recommendations in
protecting the legitimate rights and benefits of the juvenile (as clarified in
Chapter 2 of the thesis), analyzing provisions in the criminal procedures code to
point out “legal gap”, shortcomings and suggesting their reasons in order to
give out a number of solutions and recommendations in Chapter 4. Namely:
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3.1. PROVISIONS OF CRIMINAL PROCEDURES
LEGISLATION AND THEIR ACTUAL APPLICATIONS IN PROTECTING
THE LEGITIMATE RIGHTS AND BENEFITS OF THE JUVENILE
In this part, the author focuses on evaluating shortcomings and obstacles
concerning provisions in the criminal procedures legislation in protecting the
legitimate rights and benefits of the juvenile as well as their application in
reality, namely difficulties in applying provisions on matters necessary to be
proved (Article 302 of the criminal procedures code); shortcomings in arresting
procedures (in urgent cases and caught red-handed), and temporary detention
and term-detention against the juvenile. By analyzing shortcomings of these

preventive measures, the author points out the cause of “abuses” of preventive
measures against the juvenile, namely: 1) current status of administrating
criminal records and forensic situation; 2) lack of provisions on stand-by
measures which can apply to the juvenile offenders where coercive measures
are not applied against them; lack of sanctions applied to the person who fails to
supervise the juvenile offender.
Besides, the author also pays attention to clarifying other effective
measures to protect the legitimate rights and benefits of the juvenile offender,
such as the role of the defend counsel and legal aids. Subsequently, the cause of
shortcomings and difficulties have been pointed out, namely 1) the relevant
provisions in the criminal procedures code may not be an efficient mechanism,
and therefore these provisions is difficult to implemented, if not implemented in
reality; 2) difficulties from the counsel (capability and responsibility); 3) lack of
awareness of the juvenile and their family.
3.2. CURRENT STATUS OF ORGANIZATION AND OPERATION OF
PROCEDURES CONDUCTING AGENCIES IN HANDLING CRIMINAL
CASES RELATED TO THE JUVENILE
This part introduces findings of the thesis. The author, through analyzing
the performances of the procedures conducting agencies as well as procedures
conducting officials to clarify current status of the justice institutions as one of
tools protecting the juvenile in the criminal procedures. The following causes can
be blamed for shortcoming and obstacles of authorities in the justice system:
Firstly, the awareness of the protection of the legitimate rights and
benefits of the juvenile in the criminal procedures has been fairly limited: 1) In
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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 prepare for interviewing with the juvenile, even showing improper
manners against them).
Secondly, the capacity of procedures conducting officials who handle
cases related to the juvenile has remained limited, not meeting practical
requirements. Specifically: 1) the investigator and prosecutor have not had
enough knowledge of treating juvenile offenders the during the investigation
stage; 2) during pending trials or at trials, there has been a lack of specialized
judges handling juvenile cases. Explaining and sentencing activities also pose
some problems concerning the capacity of the judge. Besides, the capacity of
the juror can be a problem concerned. Finally, the trying chamber has
sometimes failed to summon relatives of the juvenile defendant.
Thirdly, facilities to assist in handling juvenile cases have not been paid
enough attention as expected, specifically: 1) the juvenile offenders are often
interviewed at the office of the investigative agency. This may raise tense and
uncomfortable atmosphere against them and may not ensure the rights of the
accused to be properly exercised, negatively affecting the investigative
activities; 2) During trials, the form in which trials are underway seems to be
inappropriate, not meeting “the right to enjoy a private trial” as recommended
by the international community. The fact is that juvenile trials are not taken
place behind the door closed. In some localities, the trials are even taken place
publicly as the so called “mobile trials”. Also, the facts related to juvenile cases
are somehow available to the media.
These problems obviously worsen the juvenile offenders and their
families as well. This can lead to a prejudice or discrimination against them in
the community, which can negatively affect the concerned juvenile’s future.
3.3. CURRENT STATUS OF PROTECTING THE LEGITIMATE
RIGHTS AND BENEFITS OF THE JUVENILE UNDER PERSPECTIVE OF
THE FAMILY AND SOCIETY
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The Criminal Procedures Code has a number of provisions indicating the

role of the family and society in criminal procedures activities. Not mentioning
group of the disable, who account for a very small group possibly getting
involving in the criminal procedures, the legitimate rights and benefits of the
juvenile is clearly subject to these provisions.
The provisions on the role of the family, the school and other social
organizations as parties in the procedures are rather obscure; therefore, the
application of these provisions has remained ineffective, specifically: 1)
information of the arrest against the juvenile offenders is not available to the
their family’s representative in order to supervise them; 2) representatives of
the family or the school are not summoned to juvenile trials. Furthermore, the
obligation of officers from relevant state agencies organizations to take part in
the jury is not legally clear, particularly who specialize in taking care and
protecting the juvenile (such as The committee for protecting and taking care of
the children).
At the end of Chapter 3, the author makes the following conclusion:
examining shortcomings and obstacles and finding out causes of the
ineffectiveness of measures are a ground to suggest a number of solutions to
protect the legitimate rights and benefits of the juvenile in the criminal
procedures, which is expected to close the gap between the domestic laws and
the international laws.
Chapter 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 in
policies concerning 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
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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 as well as further understanding of
the behavior of children suffered by their psychology damaged. Also, there has
been a trend in changing judicial model in which welfare and punishing models
turn into recovery model; the trend in which the traditional justice system may,
as far as possible, no longer deals with the juvenile crime; the trend in
enhancing the aid of the community to the children and their family; the trend
in supporting families.
Direction to amend the Criminal Procedures Code, the amendment must
stick to five principles, including: 1) thoroughly following and legalizing the
resolutions of the Party on strategy of judicial reform, which is to meet
requirements to fight against crimes in the process of development; 2) focusing
on the most challenges and difficulties arising from the Criminal Procedures
Code under the spirit of judicial reform; 3) strongly reforming the procedures
under the spirit of democracy, open, transparency, coherence, convenience,
ensuring the role and supervision of the people over judicial activities; 4) better
maintaining the right of freedom, democracy of the people, human rights and the
rights of the child, which are stipulated in the constitution, the domestic laws as
well as international agreements and rules to which Vietnam is the party; 5)
reviewing difficulties and obstacles arising from the investigation, prosecution
and adjudication work in practice, combining adopting legal tradition and
experience of other countries concerning the criminal procedures laws.
4.2. CATEGORIES OF SOLUTIONS TO EFFECTIVELY
PROTECT THE LEGITIMATE RIGHTS AND BENEFITS OF THE
JUVENILE ACCORDING TO THE CRIMINAL PROCEDURES
LEGISLATION OF VIETNAM

4.2.1. Category of solutions to enhance legislations
The author supposes that the introduction of a separate law on the
juvenile justice would ensure standards in the international community to be
legalized. However, it is not easy to establish such separate law. In some civil
law countries, the legislation on the juvenile justice is only a chapter in the
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criminal law. Thus, instead of introducing a separate law on the juvenile justice,
it is reasonable to stipulate provisions featuring basis principles among the
general provisions on the resolution of cases in which the juvenile is a party
which play as fundamental principles to fix specific provisions during different
phrases of the cases. Along with this, improving chapter 10 of the penal code
and chapter 32 of the criminal procedures code is sufficient and feasible for the
implementation as well as meeting international standards.
Direction to amend chapter 32, firstly there should be a specialized and
peculiar procedures for juvenile cases. Accordingly, scope of application,
includes the juvenile offender or the juvenile as other parties like the victim,
the witness.
Concerning specialized and peculiar procedures, the amendment will be
in three content, equivalent to three Parts, including: 1) General principles on
dealing with cases in which the juvenile is a party; 2) provisions on the
procedures only for the juvenile offender; 3) provisions on the procedures only
for the juvenile who is the witness and the victim in the case.
In further details, the author proposes a direction to improve provisions
on investigation, prosecution and adjudication of the juvenile offender in the
criminal procedures code, accordingly:
4.2.1.1. Supplementing principle provisions
To interpret the thought that “the best interests of the children must be
taken into consideration”, the author proposes to add to Part I - General
provisions, chapter II - Fundamental principles of the Criminal Procedures
Code a new article which stipulates a principle governing the investigation,

prosecution and adjudication against the juvenile. This new article is based on
Circular No. 01/2011/TTLT-VKSTC-TANDTC-BCA-BTP-BLĐTBXHĐ by
the Supreme People’s Procuracy, the Supreme People’s Court, the Ministry of
Public Security and the Ministry of Labor, Invalid and Social Matters, dated on
12/7/2011. Based on this fundamental principle, certain provisions would be
improved in order to protect the rights of the juvenile.
4.2.1.2. Amending provisions on investigation, prosecution and
adjudication of the juvenile
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To tackle shortcomings and obstacles existing from the application of
the current criminal procedures code in relation to procedures applied for the
juvenile offender, which is to meet demand of protecting the legitimate rights
and benefits of the juvenile offender in criminal proceedings and stick to
polices by the Party and the State on the fight against juvenile crime, the
author proposes a number of approaches to improve provisions on
investigation, prosecution and adjudication of the juvenile offender in the
criminal procedures code, specifically:
Firstly, amending Article 301 of the Criminal Procedures Code, which
provides for scope of application of provisions in Chapter XXXIII on
procedures applied for the juvenile; accordingly, the convicted is added, and the
specialized procedures are also applied to the offender who is 18 years old, but
under 18 at the time committing crime.
Secondly, Amending provisions on requirements for judicial officers who
handle juvenile cases.
Thirdly, supplementing a new article providing for determining the age of
the juvenile.
The forth, amending provisions on the application of preventive measures
in investigation, prosecution and adjudication of the juvenile, specifically: 1)
amending article 79 on preventive measures; 2) amending article 80 on the
arrest of the accused and the defendant for detention; 3) amending article 81 on

the arrest of a person in urgent circumstances; 4) amending article 85 on
informing of the arrest; 5) supplementing a new paragraph in article 86 about 3
- 9 day detention; 6) amending article 87 about time periods of 3 - 9 day
detention; 7) adding to paragraph 7, article 120 about time periods of detention
during the investigation phrase.
The fifth, supplementing a new article about skills to interview the juvenile
offender.
The sixth, amending article 304 about supervising the juvenile offender.
The seventh, amending article 305 about the participation of the defend
counsel and legal aid officer, namely: the article is to enable the accused and
the defendant to practice their own right of defending, and to enable the defend
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counsel to practice their right of defending as well as making sure their
presence in the proceedings of juvenile cases.
Besides, the author proposes to amend article 306 of the criminal
procedures code, accordingly the presence of the representative of Labor,
Invalid and Social Matters Authorities, the women organization and the youth
union shall participate in the proceedings as a party to assist and defend the
juvenile offender. What is more, there need to be a new provision about the
postponement of the trial where parties necessary to attend the trial to protect
the juvenile offender are absent in the trial.
The eighth, in terms of trying procedures, it is necessary to legalize
regulations in Circulars No. 01/2011 to create a friendly environment for the
juvenile.
4.2.2. Category to improve the organization and operation of the
procedures conducting agencies
In this sub-section, the author proposes the following solutions:
Firstly, enhancing the capacity of the procedures conducting officials and
agencies in charge of juvenile cases, including the following solutions:
- Enhancing capacity and skill of the procedures conducting officials

and agencies: 1) judicial officials who are in charge of juvenile cases need to
be frequently trained in relation to juvenile cases; 2) Juvenile cases shall only
be assigned to the investigator, prosecutor, juror and judge who meet the
requirements provided in article 302 of the criminal procedures code, or
those whose work is specialized in the children or who work in the youth
unions for a certain long period; 3) the application of friendly juvenile trials
as the author proposed;
- Improving facilities and human resources to practice friendly skills to
the juvenile: 1) equipping friendly interview rooms for the juvenile offender
similar with 8 UNICEF-sponsored interview rooms established and operated in
6 provinces; 2) running a testing program in which specialized units are
established in Hanoi and Ho Chi Minh city where there are investigators and
prosecutors who are specially trained to handle juvenile cases; 3) making
policies to financially support judicial officials who are in charge of dealing
with the juvenile offender.
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- Continuing to examine and review practical activities: 1) the procedures
conducting agencies need to spend times and financial courses on reviewing
practical activities; 2) national and local research centers for the juvenile
offender need to be soon established.
Secondly, creating a mechanism to coordinate among the investigation
agency, the people’s procuracy and the people’s court as well as other agencies
or organizations, accordingly: 1) legalizing the relation between the procedures
conducting agencies and relevant agencies or organizations; 2) frequently
arranging multi-agency meetings to speed up the resolution of juvenile criminal
cases which finds out the best solution to protect the rights of the children; 3)
Procedures conducting agencies should organize more training activities or
workshops on investigating skills as well as supervising over investigating
activities of juvenile cases.
Thirdly, considering establishing specialized courts for the juvenile.

This is a special justice system needed to be taken into consideration to
be established in the coming times, consistent with opinions of the Party and
the State of Vietnam with regard to the protection, support and education of
the children in general and the dealing with juvenile cases in particular. This
is also to be consistent with the international standards. Accordingly, the
author point out the need to establish specialized courts for the juvenile in
Vietnam. Requirements to establish such courts are also taken into account,
and some models of the juvenile courts are also suggested, which are suitable
with the four level court system being established under the requirement of
the judicial reform.
The forth, besides proposing to establish specialized courts, the author
also suggests to establish specialized units in the investigating agencies and the
procuracies to handle juvenile cases.
4.2.3. Category of solutions to enhance the effectiveness of the family
and the society; accordingly the author proposes a number of uniformed
solutions: 1) enhancing the supervision of the State over criminal procedures
activities concerning juvenile cases; 2) enhancing the collaboration between the
family and the state agency or organization to supervise and educate the
juvenile for whom the prosecution is exempted; 3) enhancing social supervision
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which assists in positively dealing with juvenile cases and enhancing
cooperation in the fight against crime.
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