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Official Gazette

Sunday, September 20, 2020

Juvenile justice

Updated: 10:27’ - 27/07/2009

Associate Professor Tran Van Do, Ph.D.
Deputy Chief Judge, People’s Supreme Court

Juvenile delinquency has always been a concern of the international community. Internationally, the United Nations and many countries have shifted to change international and national standards on the handling of juvenile delinquents towards a more humanitarian perspective and encouraging the prevention and application of special procedures appropriate to the physical characteristics and age of juveniles.

International laws related to juvenile justice include:

- The Convention on the Rights of the Child, adopted by the UN General Assembly on November 20, 1989, and taking effect on September 2, 1990;

- UN standard minimum rules for the administration of juvenile justice (Beijing Rules), adopted by the UN General Assembly on November 29, 1985;

- Riyadh guidelines for the prevention of juvenile delinquency, adopted by the UN General Assembly on December 14, 1990;

- UN Rules on the protection of juveniles deprived of their liberty, adopted by the UN General Assembly on December 14, 1990.

These contain provisions on different aspects of juvenile justice, and recommendations on the creation of a judicial system for juveniles within the legal framework of each country to protect and respect the rights of children and at the same time ensure social order and safety. These documents are designed to help member countries in policy planning related to juvenile justice, and interpret the application of the provisions of the Convention on the Rights of the Child concerning juvenile justice.

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 whole. 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 localize 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 Constitution (amended), the 1999 Penal Code, the 2003 Criminal Procedure Code, the Ordinance on Enforcement of Imprisonment Sentences and 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 families in the prevention of juvenile crimes and the reintegration of convicted children into the community.

All these important documents have created a fundamental legal system for juvenile justice.

The principles and guidelines for handling juvenile criminals in Vietnam are clearly set out in various legal documents. The Law on Protection, Care and Education of Children states: “The examination of administrative, civil and criminal liabilities of juvenile delinquents must comply with juvenile-related regulations.” (Article 15)

The Penal Code has a separate chapter on juvenile offenders (Chapter X).

In general, 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).

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 citizens (Clause 1, Article 69 of the Penal Code). These provisions embrace the four principles of treatment of juvenile offenders established in Clause 1, Article 40 of the Convention on the Rights of the Child.

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 cases of necessity based on the dangerousness of their acts and personal characteristics and crime prevention requirements (Clause 3, Article 69 of the Penal Code). Amendments to the 1999 Penal Code recently passed by the National Assembly at its fifth session in June 2009, state that “when imposing penalties on juvenile offenders, it is necessary to restrict the imposition of imprisonment penalties.”

The 1999 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 for trial, if considering penalty unnecessary, the court may apply judicial measures to him.

Types and levels of penalty applied to juvenile offenders are lighter than that those applied to adults, and different penalties are applied to those of different ages (Articles 69 and 75). Life imprisonment and death penalty are not imposed on juvenile offenders. If it is to hand down an imprisonment sentence to a juvenile, the court must give a sentence lighter than that applicable to adults. No additional penalty is imposed on juveniles (Clause 5, Article 69). 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 (Articles 76 and 77).

Juvenile procedure

The Criminal Procedure Code reserves a chapter to juvenile procedure which comply with general and important principles applied to prosecution of juvenile cases. 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” (Article 72 of the Constitution and Article 10 of the Criminal Procedure Code). The second principle is that retrospective effect shall only be applied to the abolition of a crime or imposition of a lighter penalty (Article 7 of the Criminal Procedure Code). 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 (Article 10). During the investigation and prosecution process, arrest and detention must strictly follow the provisions of the Criminal Procedure Code and can only be applied to juvenile offenders committing very serious or especially serious crimes (Article 303).

Criminal procedure must be conducted by officers with good knowledge of psychology and educational science, together with families, schools and social organizations (Articles 302 and 306). In criminal cases with juvenile defendants, there must be a defense lawyer (Article 305) and there must be a teacher or Youth Union staff as a member of the trial panel (Article 307). The defendants, themselves or through a legal representative or defense lawyer, have the right to know what charges they are being prosecuted for, present evidence and demand or request to change judges (Article 34); and appeal decisions of investigative agencies and the procuracy. Their appeals must be dealt with within 15 days (Article 144).

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 (Article 308).

The above provisions on the minimum age of penal liability and the application of separate criminal procedures to juveniles are consistent with Clause 3, Article 40 of the Convention on the Rights of the Child. These provisions have been properly enforced and have contributed to the prevention of crimes and the care for and education of children in Vietnam.-

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