Nong Duc Tai, LL.M.[1]
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| Students of Ninh Binh province-based Reformatory 2__Photo: https://cand.com.vn |
Introduction
Diversionary measures for juvenile offenders essentially involve applying alternatives to criminal proceedings for juveniles who have committed offenses without requiring a trial since they have acknowledged their criminal involvement. The primary objectives of these measures are to uphold the humanitarian aspect of the law, reduce social stigma, prevent recidivism, and alleviate the burden on the judicial system. Consequently, many countries have focused on improving their legislation in alignment with international law and their national contexts. However, handling juvenile offenders remains complex, as it must comply with international standards on children’s rights, address the unique needs of juveniles, and balance educational, rehabilitative and social reintegration objectives to ensure that these individuals become law-abiding citizens while maintaining public safety and social order.
Juvenile justice systems worldwide are continuously evolving to better protect the rights and needs of juvenile offenders while ensuring public safety and law compliance. The essence of diversion is to provide alternatives to traditional criminal proceedings for juveniles who admit to their involvement in an offense. This strategy emphasizes a humanitarian approach and aims to minimize negative impacts of criminal proceedings on juveniles. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) (1985) and the United Nations Convention on the Rights of the Child (1989) strongly encourage member states to implement diversionary measures that respect human rights and legal protections. These frameworks provide a legal basis for countries to develop and improve their juvenile justice systems, especially in the use of diversion at various stages and levels of intervention.
Diversionary measures in some countries
The diversion of juvenile offenders has been increasingly adopted and implemented by many countries to ensure appropriate treatment of individuals who have not yet fully developed physically and mentally. This approach provides juveniles with the opportunity to admit their mistakes and pursue a more positive path, ultimately becoming responsible citizens in the future. Below is an overview of several Asian countries whose legal systems and traditional characteristics bear significant similarities to those of Vietnam regarding this issue.
China
In China, diversionary measures for juvenile offenders vary depending on the nature of the offense and include conditional non-prosecution and the “Work-Study School” program[2]. Juveniles and their guardians must consent to this arrangement, and it must be approved by the local education department.
Conditional non-prosecution is applied by the Procuratorate for juvenile cases that meet legal requirements. During a probation period of six months to one year, juveniles must meet various conditions, such as abiding by law, undergoing addiction treatment when necessary, participating in community service, and avoiding specific individuals or locations. If a juvenile breaches these conditions, the non-prosecution decision may be revoked, and prosecution will proceed.
Singapore
Singapore’s diversionary programs for juvenile offenders are not consolidated into a single legal document due to its common law system. However, since 2011, the Prosecution Authority has implemented pre-trial diversion programs, primarily for minor offenses. These programs focus on repairing the harm caused to victims and communities, as well as addressing the root causes of the juvenile’s behavior.
Juveniles may receive a “conditional stern warning” for minor offenses, which typically requires no recidivism within 12 months, or participate in a “rehabilitation program” supervised by the National Committee on Youth Guidance and Rehabilitation. This program may include medical treatment, psychological counseling, and community service, depending on the needs of juveniles.
Thailand
In Thailand, diversionary measures are applied both before trial and during judicial proceedings, depending on the severity of the offense. For offenses subject to the maximum sentence of five-year imprisonment, the Juvenile and Family Court considers various factors, such as the juvenile’s age, mental and physical health, and personal background, in order to decide on an appropriate rehabilitation plan. Such a plan may include religious activities, school attendance, and short-term residential programs, such as boot camps.
For more serious offenses, with sentences ranging from five to 20 years, the court determines diversionary measures based on consultations with the victim, the offender’s case file, and potential benefits for the juvenile’s rehabilitation. Successful completion of these measures results in the dismissal of the case without further criminal sanctions.
The efforts of Vietnam
Current general criminal policy
Vietnam is currently drafting the Law on Justice for Minors. However, the issue of diversion for juvenile offenders has been addressed in the current Penal Code. In practice, the Penal Code provides several forms of diversionary measures for juvenile offenders.
First form: Vietnam’s criminal law stipulates that the age of criminal responsibility begins at 14 years old. Juvenile offenders aged full 14 years to under 16 years are not held criminally responsible for all types of crimes but only for certain offenses specified in the current Penal Code. In addition to setting a relatively high age of criminal responsibility compared to some other countries, the criminal law diverts dangerous acts committed by juveniles aged under 14 years to administrative handling. Furthermore, for juvenile offenders aged full 14 years to under 16 years, the law diverts criminal responsibility by specifying that they are only liable for certain offenses. For instance, Article 12.2 of the current Penal Code stipulates: “Persons aged full 14 years to under 16 years shall bear criminal responsibility for very serious crimes or particularly serious crimes as defined in one of Articles 123, 134, 141, 142, 143, 144, 150, 151, 168, 169, 170, 171, 173, 178, 248, 249, 250, 251, 252, 265, 266, 286, 287, 289, 290, 299, 303, and 304 of this Code.” This represents Vietnam’s form of criminal diversion by defining which acts committed by juveniles are considered criminal.
Second form: Vietnam’s Penal Code states that an act must pose a significant level of danger to society to be considered a crime; otherwise, it will be dealt with by other means. By defining that a crime must have a substantial level of danger, Vietnam’s criminal policy diverts less dangerous acts to other measures, such as administrative or civil handling. Article 8.2 of the current Penal Code provides: “Acts that show signs of a crime but pose negligible danger to the society are not considered a crime and shall be handled by other measures.” This form of diversion applies to both juveniles and adults.
Third form: The current Penal Code introduces judicial measures as alternatives to punishment for juvenile offenders. Specifically, Article 91.4 states: “During adjudication, the court shall only impose punishment on criminal offenders aged under 18 years if it deems that the exemption from criminal liability and the application of one of the measures specified in Section 2, or the application of the measure of education at a reformatory as specified in Section 3 of this Chapter do not ensure educational and deterrent effect.” Alternative measures for juvenile offenders include reprimand, mediation in the community, and education at the commune level. Essentially, these are educational measures for juvenile offenders, used to divert them from punishment within the criminal law when it is deemed unnecessary.
Thus, it is evidently clear that there are several distinct forms of diversionary measures for juvenile offenders. The alternative criminal measures for juvenile offenders outlined in Section 2, Chapter XII of the current Penal Code constitute one of the forms of diversionary handling of dangerous acts committed by juveniles. These diversionary measures closely align with Articles 40.3 and 40.4 of the 1989 United Nations Convention on the Rights of the Child.
Diversion in Vietnam’s Law on Justice for Minors
Although Vietnam’s Law on Justice for Minors has so far been in the pipeline, it is expected to come into effect soon. The law introduces a comprehensive legal framework to effectively address juvenile delinquency, prioritizing rehabilitation, education and community reintegration over punitive measures. It is firmly grounded on the principle of safeguarding the best interests of minors, ensuring that criminal proceedings are appropriately adapted to their physical and psychological development stages. The law strongly emphasizes diversionary approaches, such as counseling, community service and vocational training which aim to steer minors away from the formal criminal justice system and promote positive behavioral change. In doing so, it seeks to significantly minimize adverse effects of criminal proceedings on juvenile delinquents, prevent recidivism and facilitate their reintegration into society as productive citizens.
The law also provides specific guidelines for practically handling cases involving juvenile offenders, victims and witnesses, promoting a child- friendly legal environment. These guidelines include special procedural safeguards, confidentiality of personal information, and the active involvement of parents or legal guardians during the legal process. Furthermore, the law mandates close coordination between various judicial bodies, social organizations and community stakeholders to provide comprehensive support for the rehabilitation of juvenile offenders. With these measures, the Law on Justice for Minors not only closely aligns with international standards, such as the United Nations Convention on the Rights of the Child, but also clearly reflects Vietnam’s commitment to developing a fair and effective juvenile justice system that prioritizes the rights and benefits of the youth.
When it comes to addressing juvenile offenders, the law introduces a range of diversionary measures designed to redirect them away from the traditional criminal justice system. These measures focus on educational and rehabilitative strategies that tackle the root causes of criminal behavior while promoting the social reintegration of juvenile offenders. The primary goals are to avoid stigmatization, prevent recidivism, and offer minors opportunities to correct their behavior through non-punitive means. The key diversionary measures in the law include:
Counseling and psychological support: Juvenile offenders may be mandated to attend counseling sessions or psychological treatment[3]. This measure targets underlying emotional or psychological issues that contribute to delinquent behavior. It provides a therapeutic intervention that helps minors develop healthier coping mechanisms and decision-making skills.
Community service and social integration programs: The law prescribes community service as a means for juvenile offenders to contribute positively to society. This approach is designed to build a sense of responsibility and community belonging. Community service is carried out under the supervision of relevant authorities to ensure that it is beneficial to both the offender and the community[4].
Education and vocational training: Juveniles are directed to participate in educational or vocational training programs. This measure aims to equip young offenders with the necessary skills and knowledge for future employment[5], thereby reducing the likelihood of committing offenses due to economic or social disadvantages.
Supervised freedom and restrictions: Such measures as restricting movement during specific hours or prohibiting access to certain places are implemented to prevent juveniles from engaging in activities or environments that could lead to further criminal conduct[6]. These restrictions are monitored by local authorities to ensure law compliance and the minor’s safety.
Family and social support programs: Recognizing the role of family and social environment in shaping juvenile behavior, the law mandates the involvement of parents or guardians in the rehabilitation process. This measure strengthens family ties and encourages positive social interactions that support the juvenile’s behavioral adjustment[7].
Reconciliation and apology to victims: The law emphasizes the importance of reconciliation between the offender and the victim. Juveniles may be required to issue a formal apology, either in private or public, as a means to admit wrongdoings and restore relationships[8]. Reconciliation encourages juveniles to understand impacts of their actions, fosters empathy and offers closure to the victims.
The diversionary measures outlined in the Law on Justice for Minors reflect a progressive approach to juvenile justice, focusing on rehabilitation over punishment. By prioritizing education, community service, and psychological support, the law seeks to address the personal and social factors that contribute to juvenile delinquency. These measures aim to provide a supportive framework for behavioral correction and prevent recidivism by equipping juveniles with tools needed for a constructive future.
In comparison with China, Singapore and Thailand, several lessons can be drawn for further development and implementation of diversionary measures in Vietnam.
Firstly, integration of education institutions and community organizations: Similar to China’s “Work-Study School” program, Vietnam could benefit from closer integration of education institutions in the diversion process. Schools and community organizations can play a pivotal role in providing a structured environment for rehabilitation and personal development.
Secondly, flexibility and customization: Singapore’s context-specific approach, where different measures are applied based on the nature of offenses and the needs of juveniles, highlights the importance of flexibility. Vietnam should ensure that its diversionary measures are adaptable and that authorities have the discretion to choose the most suitable intervention.
Thirdly, early intervention and comprehensive support: Thailand’s focus on early intervention before judicial proceedings and its consideration of the juvenile’s background, health and social circumstances, suggests that Vietnam could benefit from similar early-stage diversion strategies. Early intervention, coupled with comprehensive support from families, social workers and the community, can significantly improve rehabilitation outcomes.
Fourthly, capacity building for implementing authorities: Effective implementation of diversionary measures requires well-trained personnel and robust institutional support. Vietnam should invest in capacity building for law enforcement, social workers and judicial personnel to ensure that they can effectively deliver the intended outcomes of these measures.
However, the overall effectiveness of these measures heavily relies on the implementation capacity of local authorities, social services and family involvement. Close coordination between judicial bodies, schools and community organizations is crucial for the successful execution of these programs. Potential challenges include significantly limited resources, insufficient training for personnel and considerable variability in local support structures, which could adversely affect the consistency and quality of these diversionary programs.
Generally speaking, the diversionary measures in the Law on Justice for Minors obviously demonstrate a commitment to adopting a rehabilitative approach in line with international standards, such as the Beijing Rules. By diligently implementing these measures, the law strives to create a juvenile justice system that upholds the dignity, rights and development potential of juvenile offenders.-
[1] Faculty of Law, the People’s Security Academy.
[2] The “Work-Study School” program is designed to rehabilitate juveniles who have engaged in “serious unhealthy behavior,” which refers to actions that are not severe enough to warrant criminal prosecution, such as repeatedly disturbing public order or committing non-violent thefts.
[3] Article 12 the draft Law on Justice for Minors
[4] Article 14 the draft Law on Justice for Minors.
[5] Article 16 the draft Law on Justice for Minors.
[6] Article 17 the draft Law on Justice for Minors.
[7] Article 18 the draft Law on Justice for Minors.
[8] Article 19 the draft Law on Justice for Minors.
