Nong Duc Tai, LL.M.[1]
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| Teaching sign language to students with birth defects at the Vocational Secondary School for People with Disabilities in Hung Yen province__Photo: The Duyet/VNA |
Introduction
As of 2024, Vietnam recorded more than seven million persons with disabilities. Legally recognized as a vulnerable group, alongside women and children, they have long been the focus of attention from the Party and the State. The 2010 Law on Persons with Disabilities affirms their fundamental rights and establishes specific education, employment and social welfare policies for them. These legal frameworks aim to ensure their equality and promote their full participation in political, economic, cultural and social life.
Nevertheless, ensuring effective access to justice for persons with disabilities remains a significant challenge. Like other citizens, they may become victims, witnesses, suspects, or defendants in criminal cases. In such situations, their rights must be safeguarded at every stage of the criminal proceedings. Vietnamese criminal law provides for humane treatment and incorporates protective measures to guarantee fairness and equality before the law for persons with disabilities.
Over the recent years, the implementation of these provisions has produced encouraging results. Courts and law enforcement agencies have adopted various supportive measures, such as appointing sign language interpreters, ensuring accessible facilities, creating safe environments for taking statements, and applying extenuating circumstances for defendants with severe disabilities. These efforts have strengthened the protection of their rights, enhanced their ability to access justice, and reduced psychological and procedural barriers they often face during criminal proceedings.
However, several obstacles continue to hinder equal access to justice for this vulnerable population. The application of supportive/protective measures remains inconsistent across regions, especially in rural or remote areas where facilities and trained personnel are limited. In addition, awareness among investigators, procurators, and judges about the specific rights and needs of persons with disabilities is still uneven. At the same time, many persons with disabilities and their families still lack adequate knowledge of their procedural rights, which further limits their effective participation in legal processes. Addressing these challenges requires stronger coordination among legal institutions, better resource allocation, and continuous capacity-building to ensure that access to justice becomes a tangible reality for all persons with disabilities in Vietnam.
Practical protection of persons with disabilities in criminal investigation
In the course of settling criminal cases, protecting the rights of persons with disabilities is always an important task, reflecting the humanitarian and fair nature of Vietnamese law. Whether they participate in criminal proceedings as victims or as the accused, the rights of persons with disabilities must be ensured in accordance with their specific conditions. The practical protection of the rights of persons with disabilities in criminal proceedings shows notable progress but also encounters persistent challenges and limitations, requiring objective assessment and specific solutions to guarantee their lawful rights in all legal situations.
When persons with disabilities are victims in criminal cases
Vietnamese criminal and criminal procedure law contains positive provisions aimed at protecting the rights of persons with disabilities.
Firstly, a distinctive regulatory feature is the support for persons with disabilities in giving statements and participating in procedural activities. Under Articles 56 and 62 of the 2015 Criminal Procedure Code (as revised in 2021) (the CPC), when a person with a disability is a victim, the investigation body must create favorable conditions for his participation in the proceedings. This includes providing interpreters or appropriate communication tools to ensure he can accurately and fully present his statements. This demonstrates a focus on the rights of persons with disabilities, preventing their exclusion from proceedings solely due to communication limitations.
Secondly, the criminal procedure law specially protects the physical and psychological safety of persons with disabilities throughout the investigation process. As per Articles 62 and 486 of the CPC, investigation bodies are responsible for protecting victims from harm, ensuring they do not face additional pressure or attacks while working with authorities. These measures help persons with disabilities feel safe and protected, creating a more humane procedural environment, especially when their lawful rights have been infringed upon by criminal acts.
Thirdly, competent authorities are responsible for protecting the privacy of persons with disabilities in criminal cases. Under Article 486 of the CPC, personal information of persons with disabilities must be kept confidential to avoid any infringements upon their private lives. This is crucial because persons with disabilities may potentially face greater harm from the public or if their information is disclosed improperly. Confidentiality helps minimize psychological trauma for persons with disabilities and protects them from discrimination.
Lastly, the right to request free legal aid is guaranteed for persons with disabilities. According to Article 71 of the CPC and Article 10 of the 2006 Law on Legal Aid, if persons with disabilities lack financial capacity, they have the right to request free legal aid services. This provision helps ensure that persons with disabilities can access justice without being hindered by financial factors while participating in criminal proceedings.
Despite these provisions demonstrate concern for, and protection of, the rights of persons with disabilities as victims, in practice, the implementation of these provisions still encounters certain inadequacies and obstacles which sometimes prevent them from receiving the full protection expected.
A major obstacle is the shortage of resources and facilities to support persons with disabilities during their participation in proceedings. Although the current criminal procedure law requires investigation bodies to create favorable conditions for persons with disabilities to give statements, such as providing interpreters or appropriate communication tools, in practice, functional agencies do not always have sufficient resources to do so. The lack of human resources specialized in supporting persons with disabilities or appropriate assistive tools can hinder their full and accurate participation in the proceedings.
Furthermore, though Article 486 of the CPC primarily addresses general subjects requiring protection or those who request protection without specific regulations applicable to particular victims like persons with disabilities, sometimes they face pressure from the accused or are threatened by the suspect’s family, making them vulnerable to physical and psychological harm during the investigation. Shortcomings in guaranteeing their safety can exacerbate the trauma they have already suffered.
Articles 62 and 71 of the CPC stipulate that persons with disabilities have the right to request free legal aid. However, in practice, this right is not always fully guaranteed. Lacking information and awareness of their rights, many persons with disabilities do not request legal aid, or even when they do, they may not receive timely and adequate support from competent authorities.
When persons with disabilities are offenders
Vietnamese criminal and criminal procedure law’s provisions focus not only on handling crimes but also on guaranteeing humanitarianism and protecting the lawful rights of offenders being persons with disabilities during criminal proceedings, particularly those on the application of extenuating circumstances for criminal liability, and protecting their rights during the investigation, prosecution and trial stages.
One notable aspect is the consideration of the offenders’ disability status when determining their criminal liability and penalties. Articles 50 and 51 of the 2015 Penal Code (as revised in 2017) (the PC) stipulate that during trial, procedural bodies may consider health conditions of the offender, including disability status, as an extenuating circumstance. This helps ensure that persons with disabilities are not subjected to excessively harsh penalties.
Moreover, with provisions on application of special protective measures for persons with disabilities during detention, Article 120.1 of the CPC requires functional agencies to ensure living conditions, healthcare, and protection of the rights of persons with disabilities during detention. This regulation helps ensure that persons with disabilities not only bear penal liability for their criminal acts but are also treated fairly and humanely throughout the proceedings and execution of sentences.
Although the Vietnamese criminal and criminal procedure law provides the protection of the rights of offenders being persons with disabilities during criminal proceedings, in practice, the implementation thereof still faces inadequacies and limitations, hindering the assurance of fairness and humanity in adjudication.
A major challenge is the lack of understanding and full awareness of offenders’ disability status. Though Article 51 of the PC stipulates that disability can be an extenuating circumstance, in practice, procedural bodies do not always fully and accurately assess the impact of the disability on the criminal act, and the understanding of this extenuating circumstance varies among local units. The lack of coordination between medical and psychological experts and procedural bodies can lead to insufficient consideration of extenuation for offenders with disabilities.
The lack of special supportive measures during the investigation and trial of persons with disabilities also poses a significant problem. Though persons with disabilities have the law-provided right to request free legal aid, in practice, they do not always receive timely and adequate legal aid. In many cases, persons with disabilities may face difficulties in accessing information and understanding their rights, making it hard for them to protect their rights throughout the proceedings.
Another limitation is the detention conditions and care for persons with disabilities during the execution of sentences. Functional agencies are required by law to ensure living conditions and healthcare for persons with disabilities during detention, but many detention facilities and prisons do not adequately meet special needs of persons with disabilities, particularly those with severe disabilities. This can cause physical and psychological harm to them during the sentence execution.
Finally, the poor participation of social organizations and experts in the criminal proceedings when offenders are persons with disabilities is also a limiting factor. The legal basis is established under Article 83 of the CPC but has not been thoroughly implemented in practice. Social organizations can play a significant role in supporting persons with disabilities, helping them understand legal procedures, and providing them with legal aid services. However, in reality, the lack of coordination between these organizations and procedural agencies reduces the effectiveness of protecting the rights of offenders being persons with disabilities.
These inadequacies and limitations indicate a need for regulatory improvements and changes in criminal proceedings in order to ensure that persons with disabilities, whether victims or offenders, receive full and fair protection of their rights.
Recommendations
For cases where persons with disabilities are victims
Vietnamese law’s provisions on protection of the rights of persons with disabilities as victims during proceedings still see inadequacies affecting their enforcement. To address these inadequacies, the following specific solutions should be taken:.
Firstly, to provide in-depth training for procedural officials on issues related to persons with disabilities. Investigating, prosecuting and judicial agencies need to be equipped with knowledge on identifying different types of disabilities as well as appropriate communication and support methods. This not only helps protect the rights of persons with disabilities but also ensures a fairer and more effective procedural process. If procedural officials possess sufficient knowledge and skills, they can apply appropriate measures in collecting evidence, interrogating, and processing information provided by persons with disabilities, thereby minimizing errors during investigation.
Secondly, to provide timely and adequate legal aid for persons with disabilities. Although the current criminal procedure law stipulates that persons with disabilities have the right to request free legal aid, in practice, not everyone is aware of this right. Therefore, it is necessary to have programs to disseminate and provide information about this right to the community, while ensuring that persons with disabilities can easily access professional and free legal services. Legal aid is a key factor helping persons with disabilities understand their rights and participate fully and effectively in the proceedings.
Thirdly, to improve facilities and support tools at proceeding-conducting agencies. Investigating agencies and courts need to equip assistive devices such as hearing aids, sign language interpreters for the deaf, or communication support tools for persons with intellectual disabilities. This will help prevent the exclusion of persons with disabilities from the proceedings. The procedural environment must be adjusted to suit the needs of persons with disabilities, thereby helping them exercise their rights throughout the investigation and trial.
Fourthly, to facilitate the process of taking statements of and interrogating persons with disabilities. Proceeding-conducting agencies need to create a comfortable and non-stressful environment, ensuring persons with disabilities do not feel fear or difficulty when participating in the proceedings. Particularly, measures to protect the privacy and dignity of persons with disabilities during statement-taking and interrogation are needed, helping them fully and accurately express what they have experienced.
Fifthly, to facilitate the participation of social organizations and experts to better protect the rights of persons with disabilities in criminal proceedings. These organizations can provide information about conditions of persons with disabilities, advise proceeding-conducting agencies on necessary measures, and help persons with disabilities become more aware of their rights. Coordination between social organizations and procedural agencies will contribute to more effective and comprehensive protection of the rights of persons with disabilities.
For cases where persons with disabilities are offenders
When persons with disabilities become offenders in criminal cases, protecting their rights is equally important. Even as offenders, persons with disabilities need to be treated fairly and humanely throughout the proceedings. Vietnamese legal provisions have certain merits in protecting the rights of persons with disabilities in this scenario, ensuring they are dealt with fairly and without discrimination.
Firstly, to provide specific guidance on procedures for persons with disabilities participating as suspects or defendants to ensure their rights during trials, especially when they face communication difficulties or complex procedural formalities and wish to request interpreters, guides or other assistive tools.
Secondly, Article 10 of the PC provides the right to protection of the dignity of offenders, which covers prohibiting cruel, inhuman treatment, or degrading the dignity of suspects or defendants, should be strictly internalized by proceeding-conducting agencies to have fuller awareness aimed at protecting persons with disabilities from human rights violations during investigation and trial.
Thirdly, to focus more on applying measures appropriate to the disability status of offenders. The PC’s Article 21 stipulates that if the offender has diminished penal liability capacity due to a disability or an illness, the level of his/her penal liability shall be considered flexibly. The court may decide on lighter penalties, such as suspended sentence or non-custodial reform, to avoid incarcerating persons with disabilities in detention facilities unsuitable to their conditions.
Fourthly, to issue documents guiding/explaining the extenuating circumstances for penal liability referred to in the PC. For instance, Article 51.1.p of the PC provides the extenuating circumstance that “the offender is a person with a severe disability or an extremely severe disability”. However, to date, the Supreme People’s Court has issued no guidance document on the application of this provision, so enforcement practice encounters differing viewpoints in case where a person was not disabled when committing the crime but, at the time of trial, is certified by a competent authority as having a severe or extremely severe disability. Therefore, the Council of Justices of the Supreme People’s Court should issue a resolution specifically guiding extenuating circumstances for penal liability to ensure unified application. This solution aligns with the principles of humanity and leniency in law and is similar to existing guidelines related to pregnant women or persons aged 70 and above.
Fifthly, to add provisions requiring that at least one people’s assessor participating in the trial must have a deep understanding of the type of disability of the involved party or be a person with a similar disability in order to ensure a more favorable and friendly environment for persons with disabilities in courtrooms. Additionally, in-depth training for people’s assessors and court officials on types of disabilities as well as appropriate communication and support methods, is essential. Support tools such as sign language, Braille documents, hearing aids, or other technologies should be deployed to help persons with disabilities fully participate in the trial. This solution aligns with international human rights commitments that Vietnam has made.
Therefore, protecting the rights of persons with disabilities in criminal proceedings, whether as victims, witnesses or offenders, remains a critical component of ensuring access to justice for all. This task requires coordinated and sustained efforts from judicial and law enforcement agencies. Although Vietnamese law contains progressive provisions designed to safeguard the rights of persons with disabilities throughout investigation, prosecution and trial, practical shortcomings and implementation gaps persist. To uphold fairness, equality and humanity in the justice process, it is essential to adopt specific and effective measures to strengthen law enforcement, enhance institutional coordination, and build a criminal justice system that is both inclusive and responsive to the particular needs and circumstances of persons with disabilities.-
[1] People’s Security Academy
