Tóm tắt Luận án Protecting legitimate rights and benefits of the juvenile according to criminal procedure legislations of Vietnam

It can be said that the thesis may remain shortcomings or problems. However, what the author examined and solutions suggested can be contributions to improving the criminal procedure code 2003 in order to better protect the legitimate rights and benefits of the juvenile in the criminal procedures in the context that Vietnam is pushing up its process of judicial reform, leading to a rule of law State “of the people, by the people and for the people”.

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benefits of the juvenile who violates the laws. 5. Theoretical and practical significance of the thesis Theoretical significance: Results of the research would enrich theories on the rights of the juvenile in general and on the legitimate rights and benefits of the juvenile in the criminal procedures in particular. Practical significance: Contributing to improving the criminal procedure legislation as well as contributing to changing the awareness of the juvenile, the parties in proceedings, families, education institutions and social organizations. 6. Structure of the thesis Besides the introduction, conclusion, list of references and annex, the thesis consists of 4 chapters and 12 points. Chapter 1 AN OVERVIEW ON CURRENT RESEARCH ACTIVITIES 1.1. CURRENT RESEARCH ACTIVITIES 1.1.1. Current research activities in the world In the field of studying human rights, human rights protection and human rights protection for the juvenile on the globe, the author evaluates a number of international documents and works as follows: For international documents: The Declaration of human and civil rights (26/8/1789) is the first document to be mentioned, which was publicized by French revolutionists, marking a new development of human rights. The second one is the Universal Declaration of Human Rights (UDHR), which was adopted by the United Nations General Assembly on 10/12/1948 in Palaisde Chaillot, Paris, France. On 16/12/1966 the United Nations adopted the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). Besides, the United Nations adopted a number of legal instruments such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty 1990, the United Nations Guidelines for Prevention of Juvenile Delinquency 1990 (Riyadh Guidelines), the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally 1986, the Guidelines for Action on Children in the Criminal Justice System as part of the Economic and Social Council Resolution 1997/30 for Action on Children in the Criminal Justice System (ICCPR, the United Nations General Assembly adopted on 16/12/1996 and took effect from 23/3/1976). Some outstanding works: "American juvenle Justice" Lý luận, lịch sử tư pháp NCTN ở Hợp Chúng Quốc Hoa Kỳ , Franklin E.Jimring,c Oxford University, Publication in 2005; "Juvenile Court: A Judge's Guide for young adults and Their Parents"Hướng dẫn , issued by Leora Krygier, publication by The Scarecrow in 2009, specially "Handbook for Professionals And PolicLý luận ymakers on Justice Matters Involving Child Victims and Witnessed of Crime", this is one among a series of criminal justice handbooks issued the Office of the High Commissioner for Drug and Crime in 2009. Through examining foreign works, the author adopts the following advantages: 1) the protection of human rights in criminal justice firstly springs from the relation among human rights, citizen rights and human rights assurances in events occurring during the criminal procedures; 2) a comprehensive approach on the definition of the rights of the juvenile and accessing the definition of legitimate rights and benefits of the juvenile in the criminal procedure under perspective of law studies; 3) fairly describing the current status of international laws on the legitimate rights and benefits of the juvenile. 1.1.2. Current research in Vietnam During examining documents to study this thesis, the author collects, evaluates and classifies them into three groups according to the above issues, specifically: Category of works specializing in human rights and human rights protection in general, including the book on “Human Rights - a multi and inter-sector law studies approach” - Prof., Dr. Vo Khanh Vinh as chief author, the social science publishing house, 2010 (three Volumes, 1010 pages), “Human Rights” (Textbook for post-graduate) - Prof., Dr. Vo Khanh Vinh as chief author, the social science publishing house, 2011 (487 pages), Monograph Book “Mechanism to ensure and protect human rights” - Prof., Dr. Vo Khanh Vinh as chief author, the social science publishing house, 2011 (431 pages). Category of works specializing in the rights of children including the legitimate rights and benefits of the juvenile, specifically the following works: Protecting the rights of children according to the Vietnamese laws, Hoang The Lien, the Education Publishing House 1996; For the rights of children and for the equality of women, Ho Chi Minh National Political Academy, 2000; The rights of children and the media, the National Political Publishing House, 2000; Enhancing approaching methods based on the rights of children - experience and initiatives from Asian countries, the National Political Publishing House, 2006; The rights of children (an in-depth book for studies, education and exercise of the rights of children), The Center for Human Rights, 2000. Category of works specializing in the protection of the legitimate rights and benefits of the juvenile in the criminal procedures, including the following outstanding works: Preventing children from committing crime - by Vice Dr. Vu Duc Khien as Editor in Chief, the Law Publishing House, Hanoi, 1987; The issue of criminal liability of the juvenile according to the Vietnamese criminal legislation - Ph.D. Thesis - Dinh Xuan Nam, Kiev, 1994; Justice for the juvenile and the rights of children - Vu Ngoc Binh, the National Political Publishing House, Hanoi, 1996; Protecting Human Rights according to Vietnam’s criminal procedures - Nguyen Quang Hien, Law Ph.D. Thesis, Institute for State and Law, 2009; Proceedings for the juvenile according to Vietnam’s criminal procedures, Do Thi Phuong, Law Ph.D. School of Law, Hanoi National University, 2008; Through examining the above works, the author would make some comments as follows: 1) works on human rights would play a role as ground for the author to intensively assess human rights related to the “vulnerable” group of juvenile, particularly in the criminal procedures; 2) there have been “rooms” in the research on special group of juvenile, namely there has not been an intensive, comprehensive, sufficient and systematic research on both theories and actual legislations as well as application in reality, including issues concerning the legitimate rights and benefits of the juvenile. In the other words, these works only approach the rights of the juvenile under perspective of the criminal procedures but not under perspective of human rights. 1.2. ISSUES NECESSARY TO BE CONTINOUSLY HANDLED IN THE THESIS Firstly, Interpretations to find out definitions and analyze the nature of the definition of “the legitimate rights and benefits of the juvenile in the criminal procedures in Vietnam”. Secondly, the issue of protecting the legitimate rights and benefits of the juvenile in the criminal justice (both on the world and Vietnam) needs to be compared, analyzed and interpreted. Thirdly, the rights of the juvenile and the rights of the mature need to compared to figure out their differences, subsequently finding out “legal empty rooms” remaining. The forth, the current statute of protecting the legitimate rights and benefits of the juvenile in Vietnam needs to be paid more attention and studied as this is a basis to suggest the solutions; The fifth, In Vietnam, mechanisms to protect the legitimate rights and benefits of the juvenile in the criminal procedures legislation has not been researched at appropriate level. The sixth, solutions to improve the legislation and institution to protect the rights of the juvenile in the criminal procedures must be suitable with the current situation in Vietnam. 1.3. QUESTIONS POSED WHEN DOING RESEARCH For the purpose of approaching human rights of the juvenile in the criminal procedures in order to deepen criminal procedure provisions in terms of both theory and practice, the author needs to clarify the relation among human rights, including the legitimate rights and benefits of the juvenile in the criminal procedures. These relations will subsequently play a role as bridge between the Penal Code, the Criminal Procedures Code and the issue of Human Rights. To handle these two huge issues, there need to be following hypothesis: The legitimate rights and benefits of the juvenile in the criminal procedures in Vietnam have not sufficiently and specifically stipulated, and there have not been enough specialized and effective institutions to best protect the juvenile’s rights in reality. From such hypothesis, the author shall examine and systematically answer the following questions: The definition of the legitimate rights and benefits of the juvenile? the legitimate rights and benefits of the juvenile in the criminal procedures? the legitimate rights and benefits of the juvenile in the criminal procedures in Vietnam? The protection of the legitimate rights and benefits of the juvenile in the criminal procedures in Vietnam in history? The trend of how the legitimate rights and benefits of the juvenile is protected in the criminal procedures in Vietnam and in foreign countries as well? Current statues of protecting the legitimate rights and benefits of the juvenile in different criminal procedures phrases from 2004 up to now, namely: the Vietnamese criminal procedures legislation? The structure of institutions to protect the legitimate rights and benefits of the juvenile in the criminal procedures? Requirements to protect the legitimate rights and benefits of the juvenile in the criminal procedures in Vietnam in the times being and the vision to 2020? Solutions to improve the Vietnamese criminal procedures legislation to effectively protect the legitimate rights and benefits of the juvenile? Solutions to improve institutions in charge of protecting the legitimate rights and benefits of the juvenile in the criminal procedures in Vietnam? At the end of Chapter 1, the author makes the following conclusion: the legitimate rights and benefits of the juvenile in the criminal procedures is one issue that interests various sciences including laws studies in general and studies in the criminal procedures law. This issue is even more pivotal as Vietnam is now heading to a rule of law State “of the people, for the people and by the people”. Therefore, approaching human rights in perspective in the criminal procedures is fairly new one, contributing to improving the criminal procedures legislation as a comprehensive and uniformed solution to protect the legitimate rights and benefits of the juvenile in the criminal procedures. Chapter 2 THEORIES ON PROTECTING THE LEGITIMATE RIGHTS AND BENEFITS OF THE JUVENILE IN THE CRIMINAL PROCEDURES In this Chapter, the author will focus on the following issues: 2.1. DEFINITIONS In this part, the author analyses characteristics of the juvenile as special group of the society, who have specific physical, psychological and personal characteristics and have specific features in term of sociology. The author may summarizes as follows: due to immature development of psychological and physical elements, the juvenile may not have sufficient awareness in education and in social communicationdo. Due to this, the society is required to fairly judge them and extend to them the rights equated with their age. This requires that when the juvenile gets involved in criminal violation, they must be treated consistent with their age, and there must be special institutions to deal with them. Subsequently, to figure out the definition of the legitimate rights and benefits of the juvenile, the author approaches general analysis on general characteristics of human rights and then point out the relation and objective existence between the universal and specific features of human rights. Accordingly, the universal features only exists as they are reflected in the specific features of human rights. In the other words, the universal features can be seen through the specific features, and the latter only exist as they are linked to the universal features of human rights. Based on analysis on the universal features of human rights, the author focuses on human right related to the juvenile and their legitimate rights and benefits. In terms of human rights related to the juvenile, the author mainly focuses on two documents as follows: The UN declaration of the rights of the child 1959 and the UN Convention on the rights of the child 1989. Through these two important documents, it is firmly asserted that the children must be protected as they are “physically and intelligently immature and need to be particularly protected, including appropriate legal means before and after they are born”. In terms of the legitimate rights and benefits of the juvenile, there has been an absence of the official definition on “the legitimate rights and benefits”. These terms are indication of human rights and are provided in the legal system of countries, depending on social, economic conditions and practices of each country. These rights are protected by the laws and different legal institutions. Thus, it is appropriate to mention “the legitimate rights and benefits” in the context of a certain country, and this thesis only examine the topic in the context of Vietnam. The have not been official definition of Children and juvenile; therefore, “the legitimate rights and benefits of the children” is obviously “the legitimate rights and benefits of the juvenile”. However, it is not totally rights as we understand in a opposite way because there is always a “gap” of legal provisions on the group between 16 and 18 years old. Therefore, in Vietnam at the moment, “the legitimate rights and benefits of the juvenile is generally “the legitimate rights and benefits of children”. Through briefly analyzing the legal system of Vietnam, the author suggest a definition of “the legitimate rights and benefits of the juvenile”, namely: The legitimate rights and benefits of the juvenile are peculiar human rights extended to the juvenile, who is physically and mentally immature and vulnerable, and the Sate shall adopt these rights in the constitution and national legal system and ensure them to be implemented in reality as well as protect them when violated. After suggesting the definition on “the legitimate rights and benefits of the juvenile”, the author focuses on clarifying the term “the protection of the legitimate rights and benefits of the juvenile according to Vietnam’s criminal procedures legislation” in sub-section 2.1.3. To obtain the purpose of the research, the author begin from summarizing mechanism to protect human rights. Namely, the said mechanism may mean the organization and operation of a certain system, which bears two features including system and operation. Accordingly, a system may consist of: 1) legislations and regulations made in accordance with certain competences, procedures and orders and obliged to parties; 2) a structure of authorities established to enforce certain functions and duties. Operation may mean the operation of authorities and organizations to practice their assigned duties. Next, the author analyzes and emphasizes the role of the criminal procedures legislation as a legal instrument to protect the legitimate rights and benefits of the people in general as well as the juvenile in particular. This is because protecting human rights in the criminal procedures is consider the core matter among all criminal procedures activities. This role is indicated in the Universal Declaration of Human Rights 1948 and the International Covenant on Civil and Political Rights 1966; the Basis Principles for the Treatment of Prisoners, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1985 These legal instruments are regarded as standards of human rights in the criminal procedures. Human rights in the criminal procedures consists of the right to a fair trial under a just and open criminal proceeding and court; the inviolable right to live, health, dignity, honor and other rights of private freedom. Any coercive measures applied in the criminal procedures shall be in accordance with the laws; the right to the presumption of innocence; the right to defend, the right not be tried to late; the right to be applied special procedure for the juvenile; the right to appeal, the right to seek justice the right to double jeopardy For the special group of juvenile, the protection of their legitimate rights and benefits is stipulated in international documents for the juvenile criminal justice, namely: 1) the Convention on the rights of the child adopted by the United Nations’ General Counsel on 20/11/1989 and came into effect in 2/9/1990; 2) the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (the Beijing Rules); 3) the United Nations Guidelines for Prevention of Juvenile Delinquency 1990 (Riyadh Guidelines); 4) the United Nations Rules for the Protection of Juveniles Deprived of their Liberty 1990 (the 1990 Rules) These legal documents function as guidelines and recommendations to establish a justice system for the juvenile in a country’s legal system. This is not only to respect and protect the rights of the child but also to maintain the social order and safety. Thus, these documents enable countries to make policies for the juvenile criminal justice and domestically legalize and implement provisions of the Convention on the rights of the child concerning the juvenile criminal justice. In the context of Vietnam, the author briefly introduces the criminal policy of Vietnam to the juvenile crime, which bear profound humanitarian features by the Party and State to the juvenile crime. This is indicated through Vietnam’s criminal procedures legislation, including the Penal Code, the Criminal Procedures Code, one sector legal regulations like Resolutions by the Supreme People’s Court’s Judge Counsel and multi-sector like Circulars, even other ones which are not legal documents but function as interpretations to apply the laws, such as Annual Reviews by the Court, Letters to direct the application of the laws issues by the Supreme People’s Code From examining the relevant international laws and Vietnamese laws, the author render out the definition of the protection of the legitimate rights and benefits of the juvenile in the criminal procedures as follows: The protection of the legitimate rights and benefits of the juvenile in the criminal procedures may mean that the State, through providing provisions in the Criminal Procedures Code, shall prevent the juvenile from being violated, depending on ages, levels of development and personal demand to be protected in accordance with the laws where they are a party in the criminal procedures. 2.2. MEANS TO PROTECT THE LEGITIMATE RIGHTS AND BENEFITS OF THE JUVENILE ACOORDING TON THE CRIMINAL PROCEDURES LEGISLATION OF VIETNAM In this part, the author, based on Vietnam current statute of the criminal procedures legislation, clarifies the means to protect the legitimate rights and benefits of the juvenile, specifically: In terms of the criminal procedures legislation, indicated by two aspects: Firstly, provisions on procedures and orders to deal with a criminal case in various phrases of procedures. In these provisions, there will be a separate chapter stipulating criminal procedures only applied to cases of which the arrestee, the accused or the defendant is the juvenile. However, besides this chapter, other provisions of the criminal procedures legislations shall also be applied to the juvenile. Secondly, Provisions on the operation (function, duty and power) of the criminal procedures conducting authorities (the investigative agencies, the procuracies, the courts), the law enforcement officers (investigators, the prosecutors, the judges, the jurors, the clerks) and other state agencies and organizations involving in dealing with criminal cases. In terms of organization of criminal justice system, these are structure and operation of criminal procedures conducting authorities, provisions on obligations to protect the legitimate rights and benefits of the juvenile through the court’s activities of adjudication. Besides the organization of the criminal justice system, the legitimate rights and benefits of the juvenile are also protected through other family and social institutions, namely the participation of agencies, organization, families in handling criminal cases of which the accused and the defendant are the juvenile. 2.3. EXPERIENCE OF PROTECTING THE LEGITIMATE RIGHTS AND BENEFITS OF THE JUVENILE IN THE CRIMINAL PROCEDURES IN SOME FOREIGN COUNTRIES 2.3.1. Overview on a number of means to protect the juvenile in the criminal procedures in the world In this part, the author examines some models to protect the juvenile in the criminal procedures in the world both in the past and currently. These models is selected to be examined based on their aspects representing different legal model. The models chosen to be examined are the Philippines, New Zealand, New South Wales, Japan, Scotland, the Czech Republic and the United States. Comments: Through examining these legal models, the author finds that, in order to protect the legitimate rights and benefits of the juvenile, apart from improving specialized legislations, a specialized justice system is fairly crucial, including a model of specialized courts as an. 2.3.2. Some models of specialized court in the world Models of specialized court in the world can be the juvenile specialty court (welfare model), justice model for the juvenile (punishment model) and model of family courts. Through examining these models, the author makes the following comments: a model of combined family court can be, in different aspects, regarded as a ideal justice system. This is a comprehensive approach to handle families’ problems to maintain a healthy life and welfare to every member of a family. At the end of chapter 2, the author makes the following conclusion: in order to protect the legitimate rights and benefits of the juvenile in the criminal procedures, countries in the world have implemented various approaches, such as making specialized legal provisions as part of legal policies, establishing specialized institutions and other relevant institutions. Facing increasing demands during the international integration, Vietnam has made huge efforts to keep up with other countries by domestically legalizing international laws to establish means to protect the legitimate rights and benefits of the juvenile in the criminal procedures. However, Vietnam is still facing challenges and obstacles and new approaches need to be examined to better protect such group of people. Chapter 3 CURRENT STATUS OF PROTECTING THE LEGITIMATE RIGHTS AND BENEFITS OF THE JUVENILE ACCIRDING TO THE CRIMINAL PROCEDURES LEGISLATION OF VIETNAM In this Chapter, the author examines and evaluates current status of means to protect the legitimate rights and benefits of the juvenile according to the criminal procedures legislation of Vietnam, namely: 1) Provisions and their actual application of the criminal procedures legislation; 2) current status of organization and operation of the procedures conducting authorities; 3) current status of protect the legitimate rights and benefits of the juvenile in the criminal procedures from families and social organizations. The author utilizes methods such as contrasting relevant provisions, international recommendations in protecting the legitimate rights and benefits of the juvenile (as clarified in Chapter 2 of the thesis), analyzing provisions in the criminal procedures code to point out “legal gap”, shortcomings and suggesting their reasons in order to give out a number of solutions and recommendations in Chapter 4. Namely: 3.1. PROVISIONS OF CRIMINAL PROCEDURES LEGISLATION AND THEIR ACTUAL APPLICATIONS IN PROTECTING THE LEGITIMATE RIGHTS AND BENEFITS OF THE JUVENILE In this part, the author focuses on evaluating shortcomings and obstacles concerning provisions in the criminal procedures legislation in protecting the legitimate rights and benefits of the juvenile as well as their application in reality, namely difficulties in applying provisions on matters necessary to be proved (Article 302 of the criminal procedures code); shortcomings in arresting procedures (in urgent cases and caught red-handed), and temporary detention and term-detention against the juvenile. By analyzing shortcomings of these preventive measures, the author points out the cause of “abuses” of preventive measures against the juvenile, namely: 1) current status of administrating criminal records and forensic situation; 2) lack of provisions on stand-by measures which can apply to the juvenile offenders where coercive measures are not applied against them; lack of sanctions applied to the person who fails to supervise the juvenile offender. Besides, the author also pays attention to clarifying other effective measures to protect the legitimate rights and benefits of the juvenile offender, such as the role of the defend counsel and legal aids. Subsequently, the cause of shortcomings and difficulties have been pointed out, namely 1) the relevant provisions in the criminal procedures code may not be an efficient mechanism, and therefore these provisions is difficult to implemented, if not implemented in reality; 2) difficulties from the counsel (capability and responsibility); 3) lack of awareness of the juvenile and their family. 3.2. CURRENT STATUS OF ORGANIZATION AND OPERATION OF PROCEDURES CONDUCTING AGENCIES IN HANDLING CRIMINAL CASES RELATED TO THE JUVENILE This part introduces findings of the thesis. The author, through analyzing the performances of the procedures conducting agencies as well as procedures conducting officials to clarify current status of the justice institutions as one of tools protecting the juvenile in the criminal procedures. The following causes can be blamed for shortcoming and obstacles of authorities in the justice system: Firstly, the awareness of the protection of the legitimate rights and benefits of the juvenile in the criminal procedures has been fairly limited: 1) In terms of the procedures conducting agencies (lack of specific interpretations, issuing poor and improper regulations to protect the legitimate rights and benefits of the juvenile); 2) In terms of the procedures conducting officials (failing to ensure the right to defend counsel for the juvenile, failing to explain the rights and duties of the juvenile during interviewing them and their family; failing to prepare for interviewing with the juvenile, even showing improper manners against them). Secondly, the capacity of procedures conducting officials who handle cases related to the juvenile has remained limited, not meeting practical requirements. Specifically: 1) the investigator and prosecutor have not had enough knowledge of treating juvenile offenders the during the investigation stage; 2) during pending trials or at trials, there has been a lack of specialized judges handling juvenile cases. Explaining and sentencing activities also pose some problems concerning the capacity of the judge. Besides, the capacity of the juror can be a problem concerned. Finally, the trying chamber has sometimes failed to summon relatives of the juvenile defendant. Thirdly, facilities to assist in handling juvenile cases have not been paid enough attention as expected, specifically: 1) the juvenile offenders are often interviewed at the office of the investigative agency. This may raise tense and uncomfortable atmosphere against them and may not ensure the rights of the accused to be properly exercised, negatively affecting the investigative activities; 2) During trials, the form in which trials are underway seems to be inappropriate, not meeting “the right to enjoy a private trial” as recommended by the international community. The fact is that juvenile trials are not taken place behind the door closed. In some localities, the trials are even taken place publicly as the so called “mobile trials”. Also, the facts related to juvenile cases are somehow available to the media. These problems obviously worsen the juvenile offenders and their families as well. This can lead to a prejudice or discrimination against them in the community, which can negatively affect the concerned juvenile’s future. 3.3. CURRENT STATUS OF PROTECTING THE LEGITIMATE RIGHTS AND BENEFITS OF THE JUVENILE UNDER PERSPECTIVE OF THE FAMILY AND SOCIETY The Criminal Procedures Code has a number of provisions indicating the role of the family and society in criminal procedures activities. Not mentioning group of the disable, who account for a very small group possibly getting involving in the criminal procedures, the legitimate rights and benefits of the juvenile is clearly subject to these provisions. The provisions on the role of the family, the school and other social organizations as parties in the procedures are rather obscure; therefore, the application of these provisions has remained ineffective, specifically: 1) information of the arrest against the juvenile offenders is not available to the their family’s representative in order to supervise them; 2) representatives of the family or the school are not summoned to juvenile trials. Furthermore, the obligation of officers from relevant state agencies organizations to take part in the jury is not legally clear, particularly who specialize in taking care and protecting the juvenile (such as The committee for protecting and taking care of the children). At the end of Chapter 3, the author makes the following conclusion: examining shortcomings and obstacles and finding out causes of the ineffectiveness of measures are a ground to suggest a number of solutions to protect the legitimate rights and benefits of the juvenile in the criminal procedures, which is expected to close the gap between the domestic laws and the international laws. Chapter 4 SOLUTIONS TO EFFECTIVELY PROTECT THE LEGITIMATE RIGHTS AND BENEFITS OF THE JUVENILE ACCORDING TO THE CRIMINAL PROCEDURES LEGISLATION OF VIETNAM 4.1. INTERNATIONAL TREND AND OPINIONS OF THE PARTY AND THE STATE OF VIETNAM ON THE ISSUE OF PROTECTING THE LEGITIMATE RIGHTS AND BENEFITS OF THE JUVENILE ACCORDING TO THE CRIMINAL PROCEDURES In this section, the author analyzes and comments on the global trend in policies concerning protecting children as well as the opinion of the Party and State of Vietnam on the issue of protecting the legitimate rights and benefits of the juvenile in the criminal procedures, particularly opinions on amending the current criminal procedures code according to the judicial reform. In terms of the global trend: There has been a profound understanding of the development of the children, the juvenile as well as further understanding of the behavior of children suffered by their psychology damaged. Also, there has been a trend in changing judicial model in which welfare and punishing models turn into recovery model; the trend in which the traditional justice system may, as far as possible, no longer deals with the juvenile crime; the trend in enhancing the aid of the community to the children and their family; the trend in supporting families. Direction to amend the Criminal Procedures Code, the amendment must stick to five principles, including: 1) thoroughly following and legalizing the resolutions of the Party on strategy of judicial reform, which is to meet requirements to fight against crimes in the process of development; 2) focusing on the most challenges and difficulties arising from the Criminal Procedures Code under the spirit of judicial reform; 3) strongly reforming the procedures under the spirit of democracy, open, transparency, coherence, convenience, ensuring the role and supervision of the people over judicial activities; 4) better maintaining the right of freedom, democracy of the people, human rights and the rights of the child, which are stipulated in the constitution, the domestic laws as well as international agreements and rules to which Vietnam is the party; 5) reviewing difficulties and obstacles arising from the investigation, prosecution and adjudication work in practice, combining adopting legal tradition and experience of other countries concerning the criminal procedures laws. 4.2. CATEGORIES OF SOLUTIONS TO EFFECTIVELY PROTECT THE LEGITIMATE RIGHTS AND BENEFITS OF THE JUVENILE ACCORDING TO THE CRIMINAL PROCEDURES LEGISLATION OF VIETNAM 4.2.1. Category of solutions to enhance legislations The author supposes that the introduction of a separate law on the juvenile justice would ensure standards in the international community to be legalized. However, it is not easy to establish such separate law. In some civil law countries, the legislation on the juvenile justice is only a chapter in the criminal law. Thus, instead of introducing a separate law on the juvenile justice, it is reasonable to stipulate provisions featuring basis principles among the general provisions on the resolution of cases in which the juvenile is a party which play as fundamental principles to fix specific provisions during different phrases of the cases. Along with this, improving chapter 10 of the penal code and chapter 32 of the criminal procedures code is sufficient and feasible for the implementation as well as meeting international standards. Direction to amend chapter 32, firstly there should be a specialized and peculiar procedures for juvenile cases. Accordingly, scope of application, includes the juvenile offender or the juvenile as other parties like the victim, the witness. Concerning specialized and peculiar procedures, the amendment will be in three content, equivalent to three Parts, including: 1) General principles on dealing with cases in which the juvenile is a party; 2) provisions on the procedures only for the juvenile offender; 3) provisions on the procedures only for the juvenile who is the witness and the victim in the case. In further details, the author proposes a direction to improve provisions on investigation, prosecution and adjudication of the juvenile offender in the criminal procedures code, accordingly: 4.2.1.1. Supplementing principle provisions To interpret the thought that “the best interests of the children must be taken into consideration”, the author proposes to add to Part I - General provisions, chapter II - Fundamental principles of the Criminal Procedures Code a new article which stipulates a principle governing the investigation, prosecution and adjudication against the juvenile. This new article is based on Circular No. 01/2011/TTLT-VKSTC-TANDTC-BCA-BTP-BLĐTBXHĐ by the Supreme People’s Procuracy, the Supreme People’s Court, the Ministry of Public Security and the Ministry of Labor, Invalid and Social Matters, dated on 12/7/2011. Based on this fundamental principle, certain provisions would be improved in order to protect the rights of the juvenile. 4.2.1.2. Amending provisions on investigation, prosecution and adjudication of the juvenile To tackle shortcomings and obstacles existing from the application of the current criminal procedures code in relation to procedures applied for the juvenile offender, which is to meet demand of protecting the legitimate rights and benefits of the juvenile offender in criminal proceedings and stick to polices by the Party and the State on the fight against juvenile crime, the author proposes a number of approaches to improve provisions on investigation, prosecution and adjudication of the juvenile offender in the criminal procedures code, specifically: Firstly, amending Article 301 of the Criminal Procedures Code, which provides for scope of application of provisions in Chapter XXXIII on procedures applied for the juvenile; accordingly, the convicted is added, and the specialized procedures are also applied to the offender who is 18 years old, but under 18 at the time committing crime. Secondly, Amending provisions on requirements for judicial officers who handle juvenile cases. Thirdly, supplementing a new article providing for determining the age of the juvenile. The forth, amending provisions on the application of preventive measures in investigation, prosecution and adjudication of the juvenile, specifically: 1) amending article 79 on preventive measures; 2) amending article 80 on the arrest of the accused and the defendant for detention; 3) amending article 81 on the arrest of a person in urgent circumstances; 4) amending article 85 on informing of the arrest; 5) supplementing a new paragraph in article 86 about 3 - 9 day detention; 6) amending article 87 about time periods of 3 - 9 day detention; 7) adding to paragraph 7, article 120 about time periods of detention during the investigation phrase. The fifth, supplementing a new article about skills to interview the juvenile offender. The sixth, amending article 304 about supervising the juvenile offender. The seventh, amending article 305 about the participation of the defend counsel and legal aid officer, namely: the article is to enable the accused and the defendant to practice their own right of defending, and to enable the defend counsel to practice their right of defending as well as making sure their presence in the proceedings of juvenile cases. Besides, the author proposes to amend article 306 of the criminal procedures code, accordingly the presence of the representative of Labor, Invalid and Social Matters Authorities, the women organization and the youth union shall participate in the proceedings as a party to assist and defend the juvenile offender. What is more, there need to be a new provision about the postponement of the trial where parties necessary to attend the trial to protect the juvenile offender are absent in the trial. The eighth, in terms of trying procedures, it is necessary to legalize regulations in Circulars No. 01/2011 to create a friendly environment for the juvenile. 4.2.2. Category to improve the organization and operation of the procedures conducting agencies In this sub-section, the author proposes the following solutions: Firstly, enhancing the capacity of the procedures conducting officials and agencies in charge of juvenile cases, including the following solutions: - Enhancing capacity and skill of the procedures conducting officials and agencies: 1) judicial officials who are in charge of juvenile cases need to be frequently trained in relation to juvenile cases; 2) Juvenile cases shall only be assigned to the investigator, prosecutor, juror and judge who meet the requirements provided in article 302 of the criminal procedures code, or those whose work is specialized in the children or who work in the youth unions for a certain long period; 3) the application of friendly juvenile trials as the author proposed; - Improving facilities and human resources to practice friendly skills to the juvenile: 1) equipping friendly interview rooms for the juvenile offender similar with 8 UNICEF-sponsored interview rooms established and operated in 6 provinces; 2) running a testing program in which specialized units are established in Hanoi and Ho Chi Minh city where there are investigators and prosecutors who are specially trained to handle juvenile cases; 3) making policies to financially support judicial officials who are in charge of dealing with the juvenile offender. - Continuing to examine and review practical activities: 1) the procedures conducting agencies need to spend times and financial courses on reviewing practical activities; 2) national and local research centers for the juvenile offender need to be soon established. Secondly, creating a mechanism to coordinate among the investigation agency, the people’s procuracy and the people’s court as well as other agencies or organizations, accordingly: 1) legalizing the relation between the procedures conducting agencies and relevant agencies or organizations; 2) frequently arranging multi-agency meetings to speed up the resolution of juvenile criminal cases which finds out the best solution to protect the rights of the children; 3) Procedures conducting agencies should organize more training activities or workshops on investigating skills as well as supervising over investigating activities of juvenile cases. Thirdly, considering establishing specialized courts for the juvenile. This is a special justice system needed to be taken into consideration to be established in the coming times, consistent with opinions of the Party and the State of Vietnam with regard to the protection, support and education of the children in general and the dealing with juvenile cases in particular. This is also to be consistent with the international standards. Accordingly, the author point out the need to establish specialized courts for the juvenile in Vietnam. Requirements to establish such courts are also taken into account, and some models of the juvenile courts are also suggested, which are suitable with the four level court system being established under the requirement of the judicial reform. The forth, besides proposing to establish specialized courts, the author also suggests to establish specialized units in the investigating agencies and the procuracies to handle juvenile cases. 4.2.3. Category of solutions to enhance the effectiveness of the family and the society; accordingly the author proposes a number of uniformed solutions: 1) enhancing the supervision of the State over criminal procedures activities concerning juvenile cases; 2) enhancing the collaboration between the family and the state agency or organization to supervise and educate the juvenile for whom the prosecution is exempted; 3) enhancing social supervision which assists in positively dealing with juvenile cases and enhancing cooperation in the fight against crime. CONCLUSION Human rights is sacred and inviolable, which is universal but various to certain contexts. Human rights are also, in some aspects, featured by the rights and interests of the juvenile. The juvenile who get involved in the criminal procedures under various roles, but mainly as the accused. Many sciences including law studies and theories on the criminal procedures have paid attention to the legitimate rights and benefits of the juvenile in the criminal procedures. Criminal Proceedings can be considered as a “sensitive issue” and tend to violate the legitimate rights and benefits of the juvenile. This problem is even more serious in the circumstance in which a rule of law State, “of the people, by the people and for the people” is being established, and the judicial reform is part of this establishment. The juvenile is a peculiar group in the society in general and in the criminal procedures in particular. That is the reason why there need to be a special mechanism, including the criminal procedures legislation and specialized investigating agencies and courts to protect this group. In this thesis, the author focuses on examining the following contents: 1. Interpreting and clarifying definitions and characteristics of the juvenile to subsequently suggest the following definitions: “the legitimate rights and benefits of the juvenile” and “the protection of the legitimate rights and benefits of the juvenile in the criminal procedures activities"; 2. Examining international legal documents with regards to criminal justice and adopting mechanisms to protect the legitimate rights and benefits of the juvenile in some countries. As a result, the author finds that besides establishing a separate legislation on the juvenile justice, some countries in the world utilize a comprehensive approach, including legal instrument, organization of specialized authorities and other relevant organizations, particularly operating model of the family court. 3. Contrasting international standards with provisions of Vietnam’s Criminal Procedures Code 2003, which are related to the protection of the legitimate rights and benefits of the juvenile; examining and reviewing the application of relevant legislations, the operation of the procedures conducting agencies in dealing with juvenile cases. As a result, the author finds that: Firstly, provisions on principles, object, tasks, procedure model in Vietnam’s criminal procedures legislation generally meet the requirement of handling juvenile cases in practice. Secondly, apart from the above advantages, there have been a number of obscure provisions, which lead to inconsistencies; a lot of provisions seem to be outdated in terms of both theory and practice. Some provisions have not been updated, leading to difficulties protecting the rights of the juvenile as parties during proceedings, specifically the provisions on matters required to be proved during the resolution of juvenile cases, the provisions on determining the age, psychological and physical development, the tort of juvenile offenders as the immature particularly provisions on applying preventive measures against the juvenile as well as an assurance of the participation of the defend counsel or legal aid officers. Thirdly, Specially, there are a number of shortcomings concerning the organization and operation of the procedure conducting agencies and officers in dealing with juvenile cases, particularly their problems such as capacity, responsibility, awareness. In addition, there are other objective shortcomings such as lack of specialized institutions, human resources, facilities, training activities, which have not met requirements in reality and international standards; The forth, it is worth mentioning the role of families, schools and other social organizations in dealing with juvenile cases. Through examining the current legislation as well as in practice, the author points out shortcomings that are causes of the ineffectiveness concerning protecting the legitimate rights and benefits of the juvenile; 4. Based on analyzing current statues of relevant legislations and institutions related to the protection of the legitimate rights and benefits of the juvenile in the criminal procedures and under the guidelines by the Party and the State concerning the amendment of the criminal procedures code to effectively protect the legitimate rights and benefits of the juvenile, the author examined and suggested three groups of solutions as follows:: Firstly, solutions on improving legislations (amending and improving provisions on investigation, prosecution and adjudication concerning juvenile casess in the criminal procedures code 2003), specifically: 1) proposing to add an article about principles to investigate, prosecute and try juvenile offenders; 2) amending provisions on investigation, prosecution and adjudication of the juvenile offenders, including scope of application of procedures for the juvenile offenders; adding new provisions on the requirements of judicial officers who are in charge of juvenile cases; amending provisions on preventive against the juvenile offenders; adding a new article about skills to interview the juvenile; amending and supplementing provisions on supervising the juvenile offenders; amending and supplementing provisions on the role of the defend counsel and legal aid officers; amending provisions on the role of families, schools and other social organizations in the proceedings; amending and supplementing provisions to create a friendly environment for the juvenile; amending and supplementing provisions on sentence enforcement and expire of prior conviction. Secondly, solutions on improving organization and operation of the procedure conducting agencies, accordingly: 1) enhancing capacity of judicial institutions and judicial officers who are in charge of juvenile cases; 2) establishing a mechanism for the investigating agencies, the procuracies, the courts and other relevant institutions to effectively coordinate with each other in dealing with juvenile cases; 3) considering to establish specialized courts; establishing specialized units in investigating agencies and the procuracies to handle juvenile cases; Thirdly, solutions on enhancing the role of families, schools and other social organizations, including improving their capacity of supervising criminal procedure activities in judicial system concerning juvenile cases; establish a network among families, schools and relevant agencies or organizations to supervise and educate the juvenile whose prosecution is exempted; enhancing support from the society concerning the juvenile and enhancing international cooperation in the fight against crime. It can be said that the thesis may remain shortcomings or problems. However, what the author examined and solutions suggested can be contributions to improving the criminal procedure code 2003 in order to better protect the legitimate rights and benefits of the juvenile in the criminal procedures in the context that Vietnam is pushing up its process of judicial reform, leading to a rule of law State “of the people, by the people and for the people”. LIST OF WORKS RELEASED BY THE AUTHOR WHICH ARE RELATED TO THE THESIS 1. Tran Hung Binh (2012), "Protecting Human Rights of the juvenile victims in the criminal procedures", Prosecution Review, No. 23, 12/2012 (44); 2. Tran Hung Binh (2013), "Protecting Human Rights of the juvenile accused in the criminal procedures", The State and Law Review, No. 297, 1/2013 (56);

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