Law on the rights of juveniles in criminal proceedings: international and Vietnamese perspectives

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LAW ON THE RIGHTS OF JUVENILES IN CRIMINAL

PROCEEDINGS: INTERNATIONAL AND VIETNAMESE

PERSPECTIVES

<b>Dr. Vu Thi Thu Quyen</b>

Academy of Journalism and Communication, Vietnam

<b>Abstract</b>

Juveniles are a group of people in society, who are, on a daily basis, involved in social relations and
legal relations to a certain extent. When entering these relationships, juveniles may intentionally
or unintentionally violate general rules of conduct. Therefore, depending on the level and nature
of the behaviour, juveniles may be subject to different consideration and treatment. Based on
age restrictions, national and international legal documents also limit rights, obligations and
responsibilities of juveniles when participating in legal relations.

This paper comparatively analyses the provisions on the rights of juveniles in criminal
proceedings in international law, the laws of some countries and Vietnamese laws, thereby
making recommendations for Vietnam. The author argues that laws on juvenile justice in Vietnam
are relatively in compliance with international law and the laws of many countries. However, the
author also points out some limitations, and based on that, proposes some solutions to perfect
the current legal framework on juvenile justice in Vietnam.

<b>Key words: juvenile justice, international law, Vietnamese law.</b>

<b>1. Juvenile justice: An Overview</b>

In all countries of the world, juveniles are required to participate in court proceedings because
the conduct of illegal criminal acts is considered a crime. This means that juveniles are directly
involved in legal relations in the field of criminal and criminal litigation. This relationship takes place

at a time when juveniles are most vulnerable and in need of assistance and guidance. The procedure
and skills of the litigation are particularly important to ensure that the contact with the agencies
conducting legal proceedings and the person conducting legal proceedings will be treated fairly and
creatively, and guided to be responsible for their behaviour and moreover, to create an opportunity to
avoid making such mistakes in the future to become responsible people.

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the enhancement of the protection of children’s rights in general and juveniles in particular is an
important aspect of the activities of UN agencies and programs. In international documents and United
Nations (UN) programs on this issue, the concept of children and juveniles are used simultaneously.

The United Nations Convention on the Rights of the Child (United Nations Convention on the
Rights of the Child) - referred to as the Convention, is an international legal document providing for
the basic rights of children in general and juveniles in particular. Article 1 of the Convention clearly
defines: “A child means a person whom is under 18 years old, unless the law applicable to children
sets the age of majority earlier”.

In addition to the Convention, which is binding, a set of standards has been adopted by the
international community to specify in detail the application of laws to juveniles. These are the principles
and standards that many member states have agreed on and stated in the declarations, principles, rules
and guidelines. Although these documents are not legally binding on member states, they are built
from international law and supported by a large number of countries around the world. Therefore,
the documents are mainly recommendations, orientations for member countries, contributing to the
implementation of the International Convention on the Rights of the Child.

In some documents, the concept of children is also called juveniles or youngsters or teenagers.
However, in relation to law and law enforcement, children are often referred to as juveniles. The UN’s
minimum rules for the protection of juveniles who are deprived of their liberty, passed on December

14, 1990, specifically stated: “Juveniles are those under 18 years old. The age limit that is below this
level have to be determined by law and must not deprive the freedom of juveniles” (Rule No. 2.1,
item a).

Thus, a juvenile who has committed an illegal act (or broke the law) is a person under the age of
18 who has committed or is accused of committing an act of violation of the law. This concept includes
juveniles who apply to administrative and criminal measures. In international legal documents, these
offenders are sometimes referred to as “illegal children.” Crimes committed by juveniles are acts of
criminal law committed by juveniles who show signs of crime and are investigated as well as handled.

It can be seen that, when defining the concept of children or adult, the international law does
not base on psychological-physiological characteristics or physical development, but directly or
indirectly on age. Both the concept of children and the concept of juveniles are limited to under 18
years of age, while offering scalability to countries depending on their socioeconomic, cultural and
traditional conditions so that they can lay down that age earlier.

<b>2. The rights of juveniles in the criminal justice under international human rights law</b>

There are many international treaties on juveniles, the rights of juveniles have been enacted
for over half a century. Furthermore, strengthening the protection of the rights of juvenile criminals
is also an important aspect of the activity of agencies and programs of the UN. In international
treaties and UN programs on the issue of children, both concepts of children and juveniles are used
simultaneously. In some documents, the concept of children is called juveniles or youngsters. In
relation to law and law enforcement, children are often referred to as juveniles.

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purposes of applying the law to juveniles and the handling of them always takes into consideration
the condition of the circumstances and the extent of guilt of the juvenile criminals. In terms of judicial

proceedings, this rule states that a juvenile who has been convicted of a crime is benefited the right to
be handled by the law and the right to special treatment, including the need for conducting proceedings
in a knowledgeable atmosphere, ensuring the presence of parents, respecting the privacy of juveniles;
requiring highly trained people to participate in the proceedings to resolve the case. The UN rules for
the protection of juveniles who are deprived of their freedom set forth specific rules which are applied
to all forms of detention; juveniles and adults must be kept separately in the same detention facility.
At the same time, the emphasis on protecting juveniles who are deprived of their freedom, not only
defines their rights, but also regulates the way that they are treated when committing crimes. Respect
of the juveniles’ rights is also an integral part of the management and education of juveniles.

International law and practices provide a specific legal framework for juveniles who violate
criminal law. The purpose of these rules is to determine the minimum standards which are required
for rights that must be respected for juvenile criminals.

In the Convention on the Rights of the Child in Articles 37 and 40, the basic rights and
protections that are compulsory for juveniles are: Prohibiting the use of corporal punishment or any
cruel, inhumane punishment, or degrading the dignity of juvenile criminals, the death penalty or life
imprisonment is not applicable to offences committed by persons under 18 years old.

Also, Article 40 of this Convention prescribes the rights of juvenile criminals and establishes
the protections and standards for management, such as: juvenile criminals are treated in a manner
appropriate to their character and dignity, increasing respect for human rights and rights of the
fundamental freedoms of others (taking into account age); The rights of juvenile criminals are respected
throughout the process of prosecution, investigation, prosecution, trial and sentence execution. This
basic protection includes rights such as: Presumably innocent until proven guilty according to law; Be
informed quickly and directly about the alleged charges; Receive legal assistance or other appropriate
assistance in preparing and presenting their justifications; Not to be compelled to declare or plead
guilty, be interrogated or have other people interrogate witnesses opposing them, to have the right to
invite and interrogate witnesses opposing them; The right to demand a higher authority or judicial
authority, to review the decision independently and impartially as well as the measures to be applied

in accordance with the law; Get help without the cost of a translator; The juvenile offender’s privacy
is fully respected throughout the proceedings.

The Convention on the Rights of the Child also provides that Member States identify a minimum
age under which juveniles are considered to be incapable of crimes, thereby establishing handling
method with these subjects without judicial procedures, provided that human rights and basic legal
protections are fully respected. This Convention requires Member States to take different measures,
such as the obligation to provide care as well as guidance, supervision, consultation, challenge,
sponsorship, as well as education and vocational training programs or other alternatives to ensure
juveniles are treated in a manner that is appropriate to their well-being and commensurate with their
individual circumstances and behaviour about their crimes.

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First, the UN Common Minimum Rules for the Application of Laws on Juveniles (The Beijing Rules).
The Beijing Rules state that juvenile justice practices must be focused on welfare and ensure
that treatment is appropriate to the personality and offenses committed by that person. Alternative
measures outside the care of institutions and organizations in the institution must ensure that juvenile
offenders are treated in a manner that is appropriate to welfare and commensurate with feelings and
offenses committed by that subject. This rule requires that the happiness and re-education of juvenile
offenders must be the main purpose. Forms such as deterrence are considered to determine the length
of the sentence that applies to juvenile offenders for a period not to be too long and not consistent
with the welfare and re-education.

Another important contribution of The Beijing Rules is the recognition of the handling of juvenile
offenders without the need to go to court. It is necessary to consider and weigh any appropriate
circumstances to deal with juvenile offenders without resorting to formal adjudication (rule 11); The
exemption from criminal liability aims to avoid bringing juvenile offenders to court because the trial
can cause psychological trauma and guilt as well as shame.

Regarding juvenile offenders right to adjudication, the Rules affirmed that juvenile offenders
who are considered to have committed a crime have the right to be handled strictly according to law
and the right to have special treatment, respected privacy rights, requiring in-depth trained persons to
solve the case.

The Rules have set the policies for adjudicating juvenile offenders are: The form of detention
pending trial shall be used only as a last resort and for the shortest possible time; no juvenile offender
shall be separated from parental supervision unless it is necessary; The placement of juvenile offenders
into a prison is always the last resort and must be within the shortest possible time.

<i>Second, the UN Guidelines for the Prevention of Crime in Juveniles (The Riyadh Guidelines).</i>

The Riyadh Guidelines provide an approach to prevent crime in a positive and comprehensive
manner, which places juveniles at the center. This approach addresses the underlying social causes
leading to juvenile offenses. Accordingly, the prevention of juvenile delinquency includes addressing
the negative circumstances of juveniles through the authorities and social control mechanisms,
basing on positivity to promote development and well-being of juveniles from an early age. The
best strategy to prevent juveniles from committing crimes is to take many measures to promote the
rights of juveniles and enhance community development. In order to do this, it is necessary to invest
in education, vocational training and job creation for juveniles in accordance with the economic
market and personal interests. This requires cooperation between government agencies and
non-governmental organizations working in the fields of justice, social welfare, health, education, labour
and employment.

<i>Third, the UN Rules for the Protection of Juveniles Deprived of Freedom</i>

This Code provides complete and comprehensive guidelines on the conditions and treatment of
juvenile offenders who are deprived of liberty. This rule applies to all juveniles who are placed in
centralized education management institutions (prisons, re-education camps, education centers) at the

order of any judicial authority, administrative or public agency.

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on the Rights of the Child. This rule emphasizes that juvenile offenders who are deprived of freedom
have the right to use mediums and services that meet all the requirements of human health and
dignity; juvenile offenders deprived of their freedom have the right to be provided with adequate
food, clean water, clean bedding, weather-appropriate clothing, as well as disease prevention and
treatment; juvenile offenders who are deprived of their freedom have the right to recreational activities
significant for their rehabilitation, reintegration and development; juvenile offenders deprived of their
liberty have the right to education and vocational training to prepare for future jobs; central education
management personnel are trained in appropriate treatment with juvenile offenders who are deprived
of their freedom; juvenile offenders who are deprived of their freedom shall be assisted when they
return to their families and society, and are provided with conditions to go to school and to find jobs
after the completion of educational measures.

<b>3. The rights of juveniles in the criminal justice under the law of some countries</b>

In fact, some countries show that their place exists the phenomenon of juvenile offenders. Each
country will solve this problem at different levels and in different ways depending on the conditions,
customs and laws of each country. In line with international law on juvenile offenders, countries
around the world have introduced provisions on the rights of juveniles who committed crimes which
are suitable for the economic, cultural and social conditions, customs, practices and laws of each
country.

<i><b>Thailand </b></i>

On January 28, 1952, Thailand established its Central Juveniles Court. The purpose of the
establishment of this Court is to give children and young people under 18 a special treatment method

when they violate criminal law. However, the jurisdiction of The Juveniles Court is also allowed
to resolve some cases of family disputes which relate to the well-being and rights of children and
juveniles. Under Article 72 of the Thai Criminal Code 2003, a child not yet over seven years of age
shall not be punished for committing what is provided by the law to be an offence. Children aged 7 to
14 years old who are guilty of a crime are judged and subjected to imprisonment, but the Court will
decide the special treatment by sending it to a re-education school or sending the child to a person or
an agency which the Court think is appropriate for the education and re-education of that child.

Juveniles between the ages of 14 and 17 can be fined and receive special penalties. In cases of
this age, before trial and sentencing, the Court always scrutinizes the person’s circumstances, identity
and living environment. When juvenile offenders are arrested, they must be immediately brought
to detention centres within 24 hours and within 30 days of custody, prosecutors must complete the
procedures and bring them to trial in juvenile courts. (Articles 50 and 51 of the Law on Organization
of Juveniles and Family Courts 1991 Thailand). During the detention process, juvenile offenders are
to remain in good care and protection. They are entitled to health care and checkups for free. The
investigation agency will investigate the situation of the family, living environment... related to this
subject. These activities are carried out quickly to solve issues related to the deprivation of liberty of
juvenile offenders; at the same time, there is accurate information about the identity of this subject to
effectively help the judgment and re-education.

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trial: juveniles as defendants; defence counsels; parents or guardians; court officials; prosecutors;
victims; witnesses; interpreters; social workers; others as allowed by the court. Depending on specific
conditions, appeals or protests may be made to juvenile court hearings of the Court of Appeal. Juveniles
Court proceedings in Thailand also require more specialized staff such as psychologists, caregivers,
supervisors, and social workers. The purpose of the proceedings with these subjects is to create
opportunities to correct, change behaviours and the ultimate desire is to help offenders become good
citizens for society, not for the purpose of penalizing juvenile offenders as for penalizing juveniles

who have committed the crime.

Previously, the Thai criminal law had prescribed the death penalty for juveniles over 17 years
old. In 2003, Thailand amended the above provision to prohibit death sentence or life imprisonment
for persons under 18 years of age at the time of committing the crime. The maximum penalty for this
subject is 50 years imprisonment. In case the offender under 18 years old is sentenced to death or life
imprisonment, the penalty for them will automatically be reduced to 50 years.

<i><b>China </b></i>

Article 44 of China’s 1979 Penal Code provides that no death penalty shall be imposed on
persons who are under 18 years old at the time of committing the offence. However, the offenders
whose age is full 16 but under 18 and commit particularly serious crimes may still be sentenced to
death and the death sentence will be “suspended” for a period of two years. If an offender actually
regrets his or her crime, after two years, the death sentence will be reduced to life imprisonment. If
the offender has both truly regretted and achieved the record, the penalty will be reduced to a term
of imprisonment with a minimum of 15 years and a maximum of 20 years, counting from the end
of the two-year time limit. In cases where there is clear evidence that the offender clearly resists
re-education, the death penalty will be imposed.

By 1997, Article 49 of the Criminal Code (amended) of China banned the application of the
death penalty to persons under 18 years of age at the time of committing the crime. This amendment
of Chinese criminal law is in line with international requirements, because this country ratified the
Convention on the Rights of the Child on January 31, 1992. To ensure the rights of juveniles who
committed crimes, the Chinese Criminal Procedure Code recognizes the rights and obligations of
participants in the proceedings according to the criminal procedure and each type of participants in the
proceedings. Accordingly, juveniles who commit crimes, while being arrested, detained, investigated,
prosecuted and judged, are entitled to: to defend or ask other people to defend; be allowed to request
the cancellation of the required measures; be informed of experts’ conclusions; to ask witnesses and
experts;...

<i><b>Japan </b></i>

In Japan, the Law of Juveniles provides for and regulates juveniles by the Family Court regarding
cases involving people under 20 years of age. The purpose of this Law is not to punish juvenile
offenders, but to “help them grow well, take protective measures to change the personality of juvenile
offenders and create an educational environment to correct juveniles who has made mistakes”.

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The duration of detention must not exceed more than 4 weeks. Within 4 weeks, the Court has to
complete the necessary procedures to organize the trial. In Japan, there is no separate procedure for
the prosecution and trial of juvenile offenders. Under the Juvenile Law, prosecutors have no right to
take part in trials in family courts. However, the judge may allow the prosecutor to attend and, when
necessary, may ask the prosecutor to conduct further investigation.

In Japan, juvenile criminals are allowed to be brought to trial in Family Court where one or two
representatives are present at the trial. The representation is not a defence attorney as in the adult trial.
This representative is not necessarily a lawyer, they can be a teacher or a social worker... The law does
not specify in detail how the next steps should be taken, but only general provisions that the Family
Court must conduct a trial on the basis of “being sincere and beneficial” for juvenile offenders and
“make every effort to protect the best attributes of the target group and for them to have faith” in the
trial which should be conducted publicly.

The rights of juveniles who committed crimes in Japanese criminal procedure law are expressed
in the following aspects: 1, The right to be protected by law and to facilitate self-protection from
unlawful infringement from the procedure-conducting agencies. Accordingly, the principles of
litigation have been recorded to ensure the accusation of juveniles in an objective manner, limiting
the injustice of innocent people, especially to young people; 2, Temporary detention and detention of

juvenile offenders must strictly abide by the time limits and regulations on the order and procedures
of detention and custody; 3, The right to silence and the right to refuse to declare; 4, The right to
self-protection and to protect others; 5, the right to be considered innocent until the offence is determined
in a public hearing; the right to be respected with respect to human values in general; the rights to
be respected and ensured the legitimate rights and interests of citizens when participating in criminal
procedures. In addition, juvenile offenders also have other specific rights prescribed to them.

<i><b>France </b></i>

The rights of juveniles who committed crimes are specifically expressed in the criminal law and
criminal procedure law of the French Republic. The penal liability institution of juvenile offenders is
always attached to the juvenile justice regime (judges adjudicating cases involving juvenile offenders).

In France, a system of judicial authorities responsible for investigating, prosecuting and
adjudicating cases involving juvenile offenders appeared in the late nineteenth century, but in the early
years of the twentieth century the juvenile court - the first specialized criminal institution responsible
for criminal cases committed by juveniles - was officially born (1912). In 1940, a juvenile judge -
a criminal procedure instituted of France was first introduced. The law allows juvenile judges, in
emergencies, to directly ask about juveniles’ family status or personal circumstances without having
to comply with the provisions of Article 114 of the Ministry.

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(2) Putting into an education centre; (3) Bringing to health and education centres; (4) Placing under
judicial assistance or in separate facilities for at-school offenders.

For children under 10 years of age committing a criminal act, the juvenile court may declare one
or more educational and preventive measures such as confiscating criminal tools or means or property
acquired from the commission of an offence; prohibiting appearance in the place where the offence

was committed within a period of not more than 1 year unless if it is a place of residence; banning
contact for not more than 1 year with the victim or accomplices; taking measures to help and correct;
being forced to take professional practice classes.

For 13-year-old offenders, measures that may be taken are: Handing over to a parent or relative;
sending to vocational education or training centres; sending to a medical centre; sending to an
education and re-education centre. For those aged full 13 to under 18, the juvenile court may apply
the penalty of deprivation. The fine imposed on juvenile offenders shall not exceed ½ of the fine
prescribed by law. If the prescribed penalty is life imprisonment, the highest penalty shall not exceed
20 years in prison.

In cases where juveniles aged 13 to under 18 are sentenced and sentenced to imprisonment
penalties, but given suspended sentences which have challenges, the juvenile judge of the place where
the convicted person lives shall carry out the rights of judges to execute sentences (Articles 739, 741
(2) Criminal Procedure Code of the French Republic) until the time of probation expires. The juvenile
judge has the right to terminate the suspended sentence in case the convicted person violates the
probationary conditions that the court has applied.

<i><b>United States</b></i>

Although there is no unified juvenile court system for the entire federation, there are several
states in the United States that have established and operated their own juvenile court system. The
federal government has impacted the policy on juvenile offenders by setting federal conditions that
come with the federal funds for state governments. Currently, several states have established juvenile
courts to specialize in protecting the rights of juvenile offenders. Some states are experimenting with
the Family Court model, which deals with cases of juvenile offenders.

In 1988, the United States abolished the death penalty for people under the age of 16, the age
of criminal responsibility was different from state to state. Only 13 states have set the minimum age,
from 6 to 14 years old.

The United States is currently one of the two remaining countries in the world (along with
Somalia) that is not a member of the Convention on the Rights of the Child, so it does not have to be
bound by the Convention to eliminate the death sentence of juvenile offenders. However, in 1988, the
US Supreme Court ruled that the death penalty should be abolished for people under 16 years old.
As of 2013, 32 states in the United States still apply the death penalty, some of which allow the death
of people under 18 who committed crimes. From January 1973 to April 2003, there were 22 cases of
juveniles being executed, of which only one person committed an offence at the age of 16 and the rest
committed an offence at the age of 17. Later, 19 states applied the death penalty for people under 18.

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International Covenant on Civil and Political Rights (effective 1976) stipulates that no death sentence
can be imposed on offenders under 18 years of age. The United States has signed this convention
but reserves the above provision. Therefore, the US Supreme Court still allows the states to continue
using the death penalty. More than 10 countries have protested, demanding that the United States
withdraw its reservation but they still refused. On March 2005, the US Supreme Court decided to
amend the law that prohibits the death penalty for people who commit criminal acts when they are
under 18 years old. Voters agree that when juveniles commit a crime, the state may deprive them of
some of the most basic freedoms, but not deprive them of their lives. According to the US Supreme
Court, the death penalty for juveniles committing crimes is cruel and unusual. The abolition of the
death penalty for these subjects represents a consensus with countries against the death penalty for
juvenile offenders. With this ruling, 72 people in 12 US states got rid of the death sentences for
committing crimes when they were under 18 years old.

<i><b>New Zealand </b></i>

The New Zealand Parliament has passed the Children, Juveniles and Family Act in 1989. This
Act governs issues related to the care and protection of disadvantaged children and young people,

including juvenile offenders. The purpose of the enactment of this law is to internalize the Convention
on the rights of the child as well as to integrate the elements of good customary law into the care
and protection of children of aboriginal communities into New Zealand law. Therefore, in this act, in
addition to the international principles and standards of the juvenile justice, a number of customary
laws of aboriginal communities such as measures of family and community meetings to address
conflicts involving juvenile offenders and many other care and protection measures have been
recorded. Many countries in the world (including Thailand) have inherited these measures.

The minimum age for criminal liability in New Zealand is 10 years, but the Youth Court has
jurisdiction only for people from 14 to 16 years old. The Act also provides a number of juvenile
justice principles to guide the decision-making process of stakeholders, such as: (i) Not applying
criminal penalties if an alternative option is available to resolve the issue; (ii) Not applying criminal
penalties to achieve welfare purposes; (iii) Measures to deal with juvenile offenders should support
the entire family and help them have the skills to handle the offences of their children; (iv) These
subjects have the right to have special protection during investigations and proceedings.

Police plays an important role in the application of redirection handling and reducing the number
of cases transferred to the Youth Court for a formal trial. The Youth Court is a branch of the municipal
court system, and judges are experts with experience handling juvenile criminal cases. If the juvenile
offender does not have a lawyer, the Court must assign a lawyer for them. The trial process is a closed
trial aimed at protecting the privacy of juvenile offenders. Courts have autonomy in choosing to apply
more than one decision related to juvenile offenders such as: acquittal, forced supervision, forced
labour to serve the community, correction of mistakes, reprimand, deprivation of any civil rights, or
transfer of juvenile offenders to city courts to apply the same methods as adults.

<b>3. The rights of juveniles in criminal justice under the law of Vietnam</b>

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– for example the Ministry of Justice (MOJ) sets out legal codes and court procedures, the Ministry
of Public Security (MPS) manages policing and the custodial estate, and the Ministry of Labour,
Invalids and Social Affairs (MOLISA) makes (limited) provisions for a range of socially excluded
people, including young drug users, sex workers and offenders, as well as those who are homeless,
disabled, abused or neglected. A separate juvenile court system was recently established in Vietnam to
deal with juveniles involved in all but the most serious cases and to offer a new range of
community-based options including diversion and restorative justice programmes. In contrast to many western
experiences, then, Vietnam is arguably moving away from a very particular justice model of crime
control and towards a variant of a welfare model1_{. In Vietnam’s ‘justice’ model, shaped by communist}
legal theory and fervent nationalism, crime has been viewed as an offence against the community,
and, by extension, an offence against the nation and, hence, an offence against the very revolution that
had established that nation2_{. Community-based prevention and punishment, as a means of delivering}
a new kind of welfarism, is starting to take on a new shape through new training initiatives3_{. Custodial}
institutions, such as reform schools, are starting to speak the new language of life skills, counselling
and child-centredness (also outlined below). In both settings, new groups of psy-professionals such as
psychologists and social workers are beginning to exert an influence4_{. All this represents convergence,}
of a kind, with western models in the sense that these developments are in many ways derived from
those models5_.

Reform of the framework of juvenile justice has been driven by two key factors: Vietnam’s
signing of the UNCRC in 1990 and its broader programme of legal reform which has been closely
tied to its economic liberalization6_{. Most recent changes include the revision of the Penal Code and}
the drawing up of a National Plan of Action on Juvenile Justice. Areas targeted for reform include
wholesale changes to police, court and legal procedures involving children as witnesses, victims,
suspects and offenders7_.

Juvenile justice is not only a special concern of the Party and State of Vietnam but also a regular
concern of every family and organization and society as a whole8_{. Following Party and State guidance}
on education, punishment and protection of the legitimate rights of juvenile offenders, the Government
of Vietnam has made every effort to incorporate the principles of the Convention on the Rights of

the Child into the national legal system. Principles of juvenile justice were thoroughly stated in the
1992 and 2013 Constitutions, the 1999 and 2015 Penal Codes, the 2003 and 2015 Criminal Procedure
Codes, and various guiding documents. These documents have clearly defined such important issues
as assurance of human and children’s rights; investigation, prosecution and trial procedures suitable
to the physical and psychological conditions of children to ensure their comprehensive physical and
mental development; and the roles and duties of functional bodies, social organizations, schools and
<i>1 Pamela Cox, “Juvenile Justice Reform and Policy Convergence in the New Vietnam”, Youth Justice 10(3):227-244 · </i>

December 2010, DOI: 10.1177/1473225410381685.
2 Pamela Cox, ibid.

3 Pamela Cox, ibid.
4 Pamela Cox, ibid.
5 Pamela Cox, ibid.
6 Pamela Cox, ibid.
7 Pamela Cox, ibid.

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families in the prevention of juvenile crimes and the reintegration of convicted children into the
community1_.

In general, according to the law of Vietnam, only juveniles of full 16 years of age bear penal
liability for all types of crimes. Those between full 14 years and under 16 years of age must only
bear penal liability for very serious crimes intentionally committed (subject to seven to 15 years
of imprisonment as the highest penalty) or especially serious crimes (carrying the highest penalty
of above 15 years of imprisonment, life imprisonment or capital punishment) 2_{. The main purpose}
of treating juvenile offenders is to educate them and help them correct their mistakes, develop in
a wholesome manner and become useful citizens3_{. Educational and preventive measures will be}

mainly applied to juvenile offenders. Trial and punishment, especially imprisonment, of juvenile
defenders should only be the last resort in case of necessity based on the dangerousness of their acts
and personal characteristics and crime prevention requirements4_{. The Penal Code provides immunity}
for juvenile offenders in cases of less serious or serious crimes causing minor damage and involving
extenuating circumstances, if they are received for supervision and education by their families and/
or social organizations. Even in case a juvenile has been examined for penal liability or brought to
trial, if considering the penalty to be unnecessary, the court may apply judicial measures to him5_.
Types and levels of penalty applied to juvenile offenders are lighter than those applied to adults, and
different penalties are applied to those of different ages. Life imprisonment and the death penalty are
not imposed on juvenile offenders. If it is to hand down an imprisonment sentence for a juvenile, the
court must give a sentence lighter than that applicable to adults. No additional penalty is imposed on
juveniles. There are differences in the consideration of reduced penalty terms for juvenile offenders
and early remission of their criminal records in order to facilitate their reintegration 6_.

The Criminal Procedure Code reserves a chapter to juvenile procedure which complies with
general and important principles applied to prosecution of juvenile cases7_{. The first principle of}
presumption of innocence is guaranteed by the Constitution and law in that “No one shall be considered
guilty until a verdict has been reached by a people’s court”. The second principle is that retrospective
effect shall only be applied to the abolition of a crime or imposition of a lighter penalty. The third
principle is that procedural bodies (investigative agency, procuracy and court) are responsible for
proving the commission of crimes and, therefore, these bodies must apply every lawful measure to
identify the true facts in an impartial and comprehensive manner. The accused persons have the right
and no obligation to prove their innocence. During the investigation and prosecution process, arrest
and detention must strictly follow the provisions of the Criminal Procedure Codes and can only be
applied to juvenile offenders committing very serious or especially serious crimes.

Criminal procedure must be conducted by officers with good knowledge of psychology and
educational science, together with families, schools and social organizations. In criminal cases with
juvenile defendants, there must be a defence lawyer and there must be a teacher or Youth Union
1 Tran Van Do, ibid.

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LAW ON THE RIGHTS OF JUVENILES IN CRIMINAL PROCEEDINGS: INTERNATIONAL...

staff as a member of the trial panel. The defendants, themselves or through a legal representative or
defence lawyer, have the right to know what charges they are being prosecuted for, present evidence
and demand or request to change judges; and appeal decisions of investigative agencies and the
procuracy. When serving their prison sentences, juvenile offenders are placed in separate cells under
separate management regulations. They are entitled to moral and legal education, literacy education
and vocational training.

<b>4. The perspective of the rights of juvenile offenders in Vietnamese law </b>

In each country, depending on the development of the economy and society, legislative history,
traditions and human psycho-physiological factors, the criminal situation and the need to fight against
juvenile criminals that have different regulations on age, criminal responsibility, procedures, methods
of handling offences... are also different. But it is undeniable that the purpose of considering and
handling crime committed by juveniles is to create the best conditions for them to correct mistakes
and strive to become a useful person in society. The laws of all countries aim to protect juveniles
committing crimes from all angles.

Through general research on the rights of juvenile offenders of some countries, the experiences
that can be acquired and referenced selectively to apply in Vietnam are:

<i>- The law on juvenile offenders’ rights is provided for the time limit for conducting legal </i>

<i>proceedings and summary procedures</i>

Most countries have their own rules about the timeline for juvenile criminal proceedings, for
example, in France there are regulations that limit the time taken to take testimony of juvenile offenders.

Accordingly, it is not allowed to take testimonies of juveniles who commit crimes continuously for
more than 2 hours and the total time must not exceed 4 hours in a day.

The shortened procedure in criminal proceedings is not a new issue in legal science. This
procedure with different forms is applied relatively common in many countries around the world, but
has not been applied in practice in Vietnam. This is an experience that needs to be concretized and
applied in Vietnam to solve cases of juvenile offenders, if the case has certain conditions to help with
the investigation, prosecution and adjudication rapidly.

<i>- The law on the rights of juvenile offenders is prescribed in a friendly handling model</i>

Many countries make the rules about juvenile-friendly proceedings. There are countries that
require the taking of testimony of juvenile offenders conducted in special rooms, but not at the
headquarters of the investigating authority. The testimony room must ensure friendly requirements
such as: quiet, comfortable, creating a sense of security, and not causing fear to juvenile offenders...
In some countries, regulations require that the testimony must be taken at the Children’s Exculpation
Center, which are equipped with the best equipment and facilities for these subjects to feel safe when
providing information to the children’s agencies conducting legal proceedings.

<i>- The law on juvenile offender rights on the application of preventive measures</i>

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ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS

354

or criteria for having no permanent residence as a major basis for considering and deciding the use of
preventive measures.

<i>- The law on juveniles’ right to privacy in general and that of juvenile offenders in particular.</i>
A number of international treaties on juvenile offender issues recommend that countries apply
strict measures to manage juvenile information in criminal cases. The records of juvenile offenders

must be kept secret and access must not be allowed for third parties, cases involving these subjects
must be tried in secret to avoid possible damage due to the publicity of the proceeding activities.

<i>- The laws on juvenile offenders’ rights are specified through juvenile judicial institutions and </i>

<i>juvenile courts.</i>

The Regulations on juvenile judges is not new, but systematic studies of it in comparison with
the Vietnamese legal system, especially the provisions of criminal law and criminal procedure, are not
mentioned much in legal books. Studying this institution in the criminal law and criminal procedure
law of the French Republic shows us the great role of juvenile judges in the process of investigating,
adjudicating and re-educating juvenile offenders. That role is expressed not only in the investigation
and trial stage, but also in the execution phase. It shows the views of the legislators of the French
Republic who want to put more expectation on the Juvenile judges and juvenile judicial institutions,
considered as the French invention of the 40s of the twentieth century. There are many issues that
need to be discussed about the fairness of juvenile judges’ activities, but it is clear that the role of
juvenile judges in the procedural system is undeniable.

<i>- The law on juvenile offenders’ rights is specified through educational measures</i>

Educational measures applied to juvenile offenders, institutions related to the preparation process
of community reintegration of convicted people, the recent tendency to apply tough measures in some
countries can help Vietnamese researchers and legislators in finding directions for institutions of
criminal law and criminal procedure law for juvenile offenders in Vietnam. It is an urgent requirement,
especially when Vietnam is one of the countries that have ratified the Convention on the Rights of the
Child.

<b>References</b>

<i>Ministry of Justice (2012), Report on assessing the provisions of the Criminal Code regarding </i>

<i>juveniles and implementation practices, Justice Publishing House, Hanoi.</i>

<i>United Nations (1985), UN Standard Minimum Rules for the Application of Laws on Juveniles (The </i>

<i>Beijing Rules), Training material.</i>

<i>United Nations (1989), International Convention on the Rights of the Child, Training Materials.</i>
<i>United Nations (1990), United Nations Guidelines to Legal Prevention of Juveniles (The Riyadh </i>

<i>Guide), Training material.</i>

<i>United Nations (1990), United Nations Code for the Protection of Juveniles Deprived of Freedom, </i>
Training Manual.

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<i>Trinh Quoc Toan (Editor) (2007), Crime committed by juveniles in Hanoi - Situation and solutions, </i>
People’s Publication Publishing House, Hanoi.

Tran Van Do, Juvenile justice, />

<i>Save the Children Sweden’s Organization (1999), Activities of Radda Barnen for children against the </i>

<i>law, Training material.</i>

<i>Committee for Population, Family and Children, UNICEF (2005), Situation of juveniles in violating </i>

<i>the law in Vietnam, Training manual.</i>

<i>Committee for Population, Family and Children, UNICEF (2005), Rehabilitation justice towards </i>

<i>Non-Detention, Training Manual.</i>

Pamela Cox, “Juvenile Justice Reform and Policy Convergence in the New Vietnam”, Youth Justice
10(3):227-244· December 2010, DOI: 10.1177/1473225410381685.

<i>UNICEF and the Supreme People’s Procuracy (2010), Results of a criminal justice enforcement </i>

<i>survey on young people in Hanoi, Hanoi.</i>

<i>UNICEF - Institute of Legal Science (2005), Researching, assessing and analyzing the situation of </i>

<i>juveniles violating laws and handling systems in Vietnam, (Synthesis Report), Hanoi.</i>

<i>Institute of Procuratorial Science (2002), Criminal Procedure Code of the Federal Republic of Russia, </i>
(Reference translated documents), Hanoi.

<i>Institute of Procuratorial Science (2002), Criminal Procedure Code of the People’s Republic of China, </i>
(Reference translated documents), Hanoi.

<i>Institute of Procuratorial Science (2002), Thailand Criminal Procedure Code, (Reference translated </i>
documents), Hanoi.

<i>Institute of Procuratorial Science, UNICEF Vietnam (2012), Assessing the compatibility of provisions </i>

<i>of the Criminal Procedure Code regarding violators of criminal law, victims, witnesses who are </i>
<i>juveniles with international standards, Justice Publishing House, Hanoi.</i>

<i>Department of Criminal - Administrative Law (Ministry of Justice) and UNICEF (2010), Evaluation </i>

<i>report, recommendations on handling of diversion, rehabilitation justice for juveniles violating </i>
<i>the law in Vietnam, Hanoi.</i>

<i>CRC (2012), Consideration of reports submitted by States parties under article 44 of the Convention, </i>

<i>Concluding observations: Vietnam, CRC/C/VNM/CO/3-4, Sixtieth session, 29 May-15 June </i>

2012.

<i>Nicholas Bala and Julian V.Roberts (2006), Canada’s Juvenile Justice System: Promoting </i>

<i>Community-Based Responses to Youth Crime, in Josine Junger-Tas and Scott H. Decker (eds.), International </i>

Handbook of Juvenile Justice, page 37-63.

<i>Nobuhito Yoshinaka (2012), “Historical Analysis of Juvenile Justice System in Japan”, Hirosima </i>

<i>University Journal, tại </i>

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