Pham Thi Lan Anh, LL.M. Nong Duc Tai, LL.M.[1]
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| Nghe An border guard soldiers provide ethinic minority people with legal information relating to the crime of human trafficking__Photo: Van Ty/VNA |
The 2011 Law on Human Trafficking Prevention and Combat (the Law) sets a grounded legal mechanism for effectively preventing and controlling the rise in human trafficking in Vietnam. Yet, this Law’s provisions have revealed some limitations and inconsistencies with other relevant laws such as the 2015 Penal Code and 2019 Labor Law, etc. As a result, this hinders proceedings for victim identification, leading to inadequacy of policies for responsible authorities to handle human trafficking cases. The article focuses on limitations of the current legislation related to victims’ issues and proposes recommendations on perfection of the legislation on human trafficking prevention and combat in the coming time.
The Law is a crucial legislative framework for protecting victims’ rights and combating human trafficking acts since it is founded on the victim-centeredness principle. According to the Ministry of Public Security’s statistics, since 2012, investigation bodies at all levels have initiated 1,708 criminal cases against 2,695 defendants for human trafficking crime in accordance with the Penal Code, and concurrently received and helped 8,121 victims by providing them with basic necessities, travel and medical expenses, legal aid, job training, initial hardship allowance, and loans.
Nevertheless, many of the Law’s victim-related provisions are not only incompatible with contemporary circumstances but also inconsistent with the national and international legal frameworks on human trafficking prevention and combat. The practical effectiveness and efficiency of the human trafficking prevention and combat are deeply affected by the socio-economic conditions today, resulting in challenges and legal shortcomings in this domain.
Firstly, the term “victim” referred to in the Law is not consistent with the current criminal law
Under Articles 2.4 and Article 3 of the Law, human trafficking victims are those who have suffered harm as a result of human trafficking and child trafficking acts specified in Articles 119 and 120 of the 1999 Penal Code (as revised in 2009) or those who have suffered harm as a result of such acts as transferring, receiving, recruiting, transporting or harboring people for sexual exploitation, forced labor, appropriation of body parts or other inhuman purposes.
The current (2015) Penal Code contains revised provisions on human trafficking crimes, including human trafficking (Article 150), trafficking in persons aged under 16 (Article 151), and trading or appropriation of human tissues or body parts (Article 154). Accordingly, victims in human trafficking cases are not only trafficked but also negatively affected by violence, threats to use violence, tricks or other means in cases of transferring, receiving, transporting or harboring people or taking human body parts for inhuman purposes. Resolution 02/2019/NQ-HDTP dated January 11, 2019, of the Judicial Council of the Supreme People’s Court guiding the application of the Penal Code’s Article 150 (human trafficking) and Article 151 (trafficking in persons aged under 16 years) also provides specific guidance on human trafficking and other tricks for human trafficking, including kidnapping; giving sleeping pills, anesthetics, alcohol, beer or other strong stimulants to victims to make them unconscious and incapable of controlling behaviors; poisoning victims; acting as marriage intermediaries or brokers to send people to work abroad; taking advantage of victims’ dependence; taking advantage of victims’ vulnerable or dire situation (for example, taking advantage of the fact that the victim has a seriously ill relative who needs money for immediate treatment, otherwise his/her life will be in danger) to commit the crime, etc. As a result, the interpretation of the term “victim” in the Law is inconsistent with that in the Penal Code and other relevant legal documents.
Secondly, the term “human trafficking” in the current Vietnamese legislation is inconsistent with international legal instruments
The term “human trafficking” or “trafficking in persons” referred to in Article 3(a) of the Palermo Protocol (the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children) and Article 2(a) of ACTIP Convention (the ASEAN Convention Against Trafficking in Persons, Especially Women and Children) is widely accepted to indicate the crime of trafficking in persons involving one of following acts: recruitment, transportation, transfer, harboring or receipt of persons with the aim of exploitation.
It is obviously compulsory for investigators to prove suspects’ aforementioned acts’ purposes as specified in the Penal Code, including sexual slavery, coercive labor, taking of body parts or other inhuman purposes, with the aim of money, property or other financial interests. This might lead to difficulties in identifying victims in cases where foreign states have identified trafficking victims (in their court verdicts) but it remains impossible to identify victims under Vietnamese regulations that lack bases for victim identification. It can be said that the reference to the term of “human trafficking” in the Law leads to a narrowed scope of human trafficking victim identification as compared to international law.
Thirdly, categories of persons under protection are not really appropriate to practice in human trafficking prevention
Under the Law, victim protection and assistance recipients have to complete official papers and formalities certified by authorities in charge of human trafficking cases. The verification process may take up to 23 days in typical cases and up to 63 days in complicated cases where there are no papers or documents for certifying the victim.
The reality of human trafficking prevention and combat reveals that, pending the confirmation of their victim status, persons may have received support for victims, such as basic needs, travel expenses, medical assistance, mental assistance and legal aid. However, it is sometimes challenging to identify human trafficking victims due to their poor awareness, young age or long period of being trafficked and insufficient authority of responsible bodies to confirm potential victims, making it difficult to identify and arrest trafficking suspects as well. The Government also finds it hard to provide financial support for “potential” victims who are currently undergoing identification procedures in order disburse budget funds for victim assistance.
Fourthly, the criteria used to identify victims are incompatible with practices and relevant criminal law’s provisions
Under Article 27 of the Law, a person may be identified as a human trafficking victim if he/she is trafficked, transferred, received, recruited, transported or harbored for sexual exploitation or coercion of labor, taking of body parts or other inhuman purposes. Yet, this provision is similar to the provisions defining the term “victim” and incompatible with the current criminal law.
Despite this, the criminal legislation does not apply to cases in which victims may actually be human trafficking victims and have other reasons to be treated as victims even when responsible authorities are unable to establish their victim status. For instance, there are those who are found and saved together with victims showing signs of physical and emotional harms; there are indications of sexual exploitation or forced labor; or there are sufficient legal evidences to establish a basis for victim identification. Adding criteria for identifying victims is incredibly significant in such circumstances in order to ensure that rights of human trafficking victims are protected to the fullest extent possible and to uphold humanitarian standards in the law enforcement.
Based on shortcomings and inadequacies in the legislation regarding victims of human trafficking cases as highlighted above, we recommend the following amendments and supplementations to the Law:
Firstly, the definition of the term of “victim” (Article 2) should be revised as follows:
“Article 2. Victims
4. Victim means a person who is harmed by a human trafficking act specified in the current Penal Code and other relevant legal documents on human trafficking prevention and combat.”
Secondly, Clauses 1 and 2 of Article 3 on prohibited acts should be revised as follows:
“Article 3. Prohibited acts
1. Trafficking in persons specified in Articles 150, 151 and 152 of the current Penal Code and other legal documents on human trafficking prevention and combat.
2. Trafficking in persons as specified in treaties which Vietnam has signed or acceded to.
Thirdly, the scope of protected subjects in the Law should be widened to cover people who have not been granted by responsible authorities papers or documents certifying that they are victims there exist evidences to believe that they have been truly harmed and can be identified as “potential victims”. Accordingly, the Law should be revised as follows:
- The term “potential victim” should be supplemented to refer to a person who shows signs of being abused by a human trafficker but has neither been nor is verified by a responsible authority as a victim under regulations.
- Rights and obligations of potential victims should be added, specifically as follows:
“Article 6a. Rights and obligations of potential victims
1. To request competent agencies, organizations and persons to apply measures to protect themselves, their relatives and people aged under 18 years accompanying them when being abused or at risk of having their lives, health, honor, dignity, property, rights and other lawful interests harmed.
2. To receive support and protection in accordance with this Law.
3. To provide to competent agencies, organizations and persons information about human trafficking acts and violations of the law on human trafficking prevention and combat.
4. To fulfill requests of responsible authorities related to human trafficking cases as specified in the Law.
5. Other rights and obligations provided or specified in relevant legal documents related to human trafficking prevention and combat.”
The provisions on the protection mechanism for potential victims should be supplemented as applicable to the receipt and identification of domestic trafficking victims under Article 24; receipt and verification of rescued victims under Article 25; and receipt and verification of victims returned from abroad under Article 26.
Fourthly, Article 27’s provisions on criteria for trafficking victim identification should be revised. In case a responsible authority is unable to identify whether a person is a victim or not, such person may still be regarded as a potential victim if satisfying one of the following conditions:
· He/she shows signs of sexual exploitation, forced labor, injury, loss of body parts, or depression;
· He/she is found and rescued together with other victims;
· He/she spends time living with other victims and has been detained, managed and treated like those victims.
Subsequently, the provisions on provision of essential needs and travel expenses to potential victims should be revised to be consistent with those applicable to victims.
At the same time, the provisions on provision of medical, mental and legal aid to potential victims should be revised as follows:
“Article 34a. Medical aid for potential victims
If potential victims need medical care to recover their health, they will be considered for support with medical examination and treatment costs.
Article 35a. Mental aid for potential victims
Potential victims may receive support for stabilization of their mental health while waiting to be identified as victims.
Article 36a. Legal aid for potential victims
Potential victims may receive legal aid in carrying out household registration and civil status registration procedures and other support regimes, be involved in legal proceedings and other legal procedures related to their cases of trafficking in persons while waiting to be identified as victims.”-
[1] The Law Faculty of the People’s Security Academy.
