Trinh Thi Thanh, LL.M.
Department of Law Dissemination and Education and Legal Aid
Ministry of Justice
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| Children participating in activities at the Creative Experiential Science Festival organized by the Ninh Binh Provincial Youth Center__Photo: Hai Yen/VNA |
Children’s right to legal aid
Relevant international regulations
Children’s right to legal aid is expressed in international instruments such as the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, the International Covenant on Civil and Political Rights (ICCPR), the United Nations Convention on the Rights of the Child (CRC), among others. The right to legal aid constitutes a fundamental component of every criminal justice system.
For instance, Article 14.3.d of the ICCPR states: “14(3) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.”.
Meanwhile, Article 12 of the CRC reads: “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”.
In addition, minimum friendly principles and standards have been established under other international instruments that exclusively govern minors in criminal justice, such as the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines); the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules); the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the Havana Rules); the 2005 United Nations Guidelines on Justice for Child Victims and Witnesses of Crime; Resolution 67/187 dated December 20, 2012, of the United Nations General Assembly, on principles and guidelines on access to legal aid in criminal justice systems, etc., in order to guarantee the rights of juveniles, including children, when committing violations of law.
Vietnam’s regulations on children’s right to legal aid
As provided in Article 30 of the 2016 Law on Children, children have the right to protection in legal proceedings and during the course of administrative handling; the right to defense and self-defense, and to protection of lawful rights and interests; the right to legal aid; the right to present their opinions; the right not to be unlawfully deprived of their liberty; and the right not to be subject to torture, coercion, corporal punishment, honor and dignity hurt, body infringement, psychological stress and other forms of infringement.
The 2017 Law on Legal Aid stipulates that children are entitled to free legal aid. Its Article 7 provides the grant of legal aid to not only children (persons aged under 16 years who are engaged in any fields other than business and commerce, including criminally charged children) but also juveniles, who are aged between full 16 years and under 18 years and criminally charged or are financial difficulty-hit victims in criminal cases. These provisions have actually converted the CRC’s provisions on persons aged under 18 years who are deprived of their liberty into domestic regulations. Also under this Law, children who are victims, persons with related rights and obligations, or witnesses in criminal cases, are also entitled to free legal aid.
Above all, as of January 1, 2026, when the Law on Justice for Minors is set to take effect, every person aged under 18 years will be entitled to free legal aid when participating in criminal proceedings. In other words, in addition to the aforesaid persons who are entitled to free legal aid under the Law on Legal Aid, persons who are aged between full 16 years and under 18 years who are denounced or proposed for initiation of criminal cases, held in cases of emergency or serving diversionary measures, victims, witnesses or inmates are all entitled to free legal aid. It can therefore be said that the Law on Justice for Minors’ provisions revising the Law on Legal Aid have further converted the Convention’s provisions on the right of persons aged under 18 years to free legal aid into domestic regulations and helped fulfill the tasks assigned to the justice sector under the Party Central Committee’s Resolution 27-NQ/TW dated November 9, 2022.
In sum, the legal framework on legal aid has provided a firm ground for the provision of legal aid, particularly for children. The provisions of the Law on Children, the Law on Legal Aid and their guiding texts have facilitated the guarantee of children’s right to legal aid. Other relevant documents, such as the Criminal Procedure Code, the Civil Procedure Code, the Law on Prevention and Combat of Domestic Violence, the Law on Administrative Procedure, and the Law on Enforcement of Holding of People in Custody and Temporary Detention, also have provisions regulating legal aid activities, such as provisions allowing legal aid providers to act as defense counsels or defenders of lawful rights and interests of proceedings participants, and provisions on the responsibility of proceedings-conducting bodies (courts, procuracies, public security offices) to explain, notify and provide information about the right to legal aid.
The Ministry of Justice (MOJ) has also issued guidelines for provincial-level Departments of Justice and state legal aid centers to carry out activities of providing legal aid for children. These include the National Program of Action for Children during 2021-30, the Program on Human Trafficking Prevention and Combat, legal aid activities in response to the Action Month for Children, and violence and human trafficking prevention and combat activities, etc. During the Covid-19 pandemic, the ministry promptly directed and requested provincial-level state legal aid centers to intensify the provision of legal aid for children, especially orphans.
Results of the provision of legal aid for children
In implementing the Law on Children and the Law on Legal Aid, the provision of legal aid for children has so far recorded the following achievements.
Firstly, legal aid centers have been organizationally strengthened while legal aid providers for children have become more and more professional to better meet the demand for legal aid.
According to the MOJ’s statistics, by the end of 2024, the country had 63 state legal aid centers with 96 local branches and 1,240 employees including 707 legal aid providers and institutional legal aid collaborators. The MOJ and local administrations have organized refresher courses for improvement of proceeding participation and legal aid provision skills for legal aid providers.
Secondly, legal aid has been provided for children with fruitful outcomes. During the 2018-24 period, many localities effectively rolled out the provision of legal aid for children through services in specific cases.
During this period, legal aid centers provided legal aid services to 27,000 turns of children, including around 15,000 proceeding participants, accounting for a large proportion in the total legal aid beneficiaries. Most legal aid providers are highly experienced and professionally qualified and knowledgeable about children’s psychology.
Most cases of provision of legal aid to children (including children with disabilities, children being violence victims, etc.) were settled in favor of children. At the same time, legal aid providers’ defending views and arguments were appreciated by procuracies and courts in the course of case settlement.
Thirdly, the interdisciplinary coordination in and public communication about children’s right to legal aid have been effectively organized, especially in the notification of legal aid during proceedings. To help children get access to legal aid services whenever they need, legal aid centers have arranged around-the-clock legal aid service standby for children subject to criminal investigation, summoned to courts or intended to participate in online court hearings. More attention has been paid to the coordination between legal aid centers and related agencies and organizations, such as associations for protection of child rights, commune-level People’s Committees, and provincial-level Departments of Labor, Invalids and Social Affairs, in providing legal aid for children.
The public communication about the right to legal aid has been renovated with more diverse activities and forms, including news, reports, bulletins and multi-media products. This has contributed to effectively protecting lawful rights and interests of children, thereby improving the public awareness about children’s rights to legal aid.
Despite the above achievements, the provision of legal aid for children still encounters drawbacks.
The awareness of related organizations, agencies and individuals about children’s right to legal aid remains limited. The public communication about this right has yet to achieve desired results and not a few children and their families still have no idea about their right to legal aid.
Not a few legal aid providers have insufficient experience and skills for working with children and lack command of ethnic minority languages, especially in remote and deep-lying areas, and are therefore unable to provide legal aid services with quality.
Another problem is that financial sources and physical conditions of state legal aid centers in some localities remain lacking. Some centers have no child-friendly facilities and places for receiving children with disabilities and abused children.
Recommendations
The Government and related ministries and sectors should continue paying adequate attention to directing the proper implementation of policies, guidelines and laws on children. They need to improve institutions for best guaranteeing children’s lawful rights and interests, especially in criminal justice and for children in special circumstances (e.g., getting more studies on children of different age groups, and minors, and identifying the need of children in special circumstances for legal aid, etc.), in conformity with international practices and practical development of Vietnam.
For their part, provincial-level People’s Committees should direct related local agencies and units in coordinating with state legal aid centers in explaining, providing information about and notifying cases involving children, particularly children who are abused, violence or trafficking victims, and juvenile delinquents in their localities, in order to promptly protect children’s lawful rights and interests in accordance with law. It is also suggested that local authorities allocate sufficient funding sources and physical foundations for effective performance of the legal aid provision task in their localities; and enhance the coordination with related socio-political organizations and social organizations in introducing children’s right to legal aid.
In order to facilitate the exercise of children’s right to legal aid, it is proposed to promptly study their needs for legal aid, especially during their proceeding participation in serious criminal cases. At the same time, training courses for human resources for provision of legal aid for children should be held to improve the quality and efficiency of legal aid activities for children. Furthermore, public communication and international cooperation on the child’s right should be promoted in order to provide legal aid services in a more child-friendly manner.-
The Vietnamese version of this article is published on https://lyluanchinhtri.vn/viec-bao-dam-quyen-duoc-tro-giup-phap-ly-cua-tre-em-o-viet-nam-5301.html?utm_source=chatgpt.com.
The statistics referred to in this article had been collected from 2018 to 2024 by the Ministry of Justice.
