Alignment of Vietnamese Law on the Treatment of Juvenile Prisoners With International Standards and Norms
| Author | Le Huynh Tan Duy,Yvon Dandurand |
| Date | 01 April 2022 |
| DOI | 10.1177/1473225421995266 |
| Published date | 01 April 2022 |
https://doi.org/10.1177/1473225421995266
Youth Justice
2022, Vol. 22(1) 3 –20
© The Author(s) 2021
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DOI: 10.1177/1473225421995266
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Alignment of Vietnamese Law
on the Treatment of Juvenile
Prisoners With International
Standards and Norms
Le Huynh Tan Duy and Yvon Dandurand
Abstract
Criminal sanctions, in spite of their obvious limitations, play an important role in the prevention of juvenile
crime. In spite of international admonitions against the use of detention, Vietnam like many other South-East
Asian countries still relies heavily on the deprivation of liberty, in both specialized juvenile institutions and
adult prisons, in handling juvenile offenders. Because imprisonment, according to international standards, is
meant to be used only as a last resort and for the shortest period of time possible, juvenile justice research
has tended to ignore what is going on in places of detention and focus instead on diversion and alternatives
to detention. This article focuses on Vietnamese law concerning the prison regimes applicable to juvenile
detainees and the extent to which it complies with internationally accepted standards and norms. It reviews
existing measures for the protection of juveniles against all forms of violence during their incarceration,
including abusive disciplinary measures and the absence of independent oversight of prisons. It also considers
arguments for and against the building of juvenile prisons to separate juveniles from adults as required by
article 37 of the Convention on the Rights of the Child. It concludes with recommendations for legal reforms.
Keywords
children’s rights, justice reforms, juvenile justice, prison, youth detention
Introduction
Most of the legal research on juvenile justice in Vietnam focuses on the rights of juvenile
offenders during criminal proceedings or the implementation of diversion mechanisms
and alternatives to imprisonment. There is less research on issues relating to the enforce-
ment of sentences of imprisonment or the laws governing prison conditions. As a State
party to the United Nations Convention on the Rights of the Child (CRC), Vietnam is
bound to protect the rights of children deprived of their liberty and to uphold international
standards and norms relating the treatment of prisoners. However, the legal framework
Corresponding author:
Le Huynh Tan Duy, Ho Chi Minh City University of Law, Ho Chi Minh City 72806, Vietnam.
Email: lhtduy@hcmulaw.edu.vn
995266YJJ0010.1177/1473225421995266Youth JusticeTan Duy and Dandurand
research-article2021
Original Article
4 Youth Justice 22(1)
governing the conditions of imprisonment of juveniles and the implementation of that
framework do not yet measure up to the nation’s international commitments.
Imprisonment is the most frequent sanction applied to both juvenile and adult offend-
ers. Between 75 and 80 per cent of convicted persons are serving a sentence of imprison-
ment (Tran, 2019a: 32). Prison sentences and other sanctions imposed on juvenile
offenders still focus on repression and punishment rather than their rehabilitation and
social reintegration. Distinct ‘regimes’ exist for juvenile prisoners, but they are insuffi-
ciently and ineffectively implemented. Serious violations of juvenile prisoners’ rights are
known to occur.
Under art 12 of the Vietnamese Penal Code 2015 (PC 2015),1 the minimum age of
criminal responsibility is 14 years. Persons, below the age of 18 serving a sentence of
imprisonment are referred to as ‘juvenile prisoners’. Nonetheless, under art 73 of the Law
on Enforcement of Criminal Judgments 2019 (LECJ 2019)2 children detainees, once they
reach the age of 18, become subject to the incarceration and treatment regimes applicable
to adult prisoners.
According to art 98 of the PC 2015, penalties imposed on juvenile offenders include
warning, fine, non-custodial reform and a term of imprisonment. Along with criminal
penalties, juvenile offenders can be sentenced to a judicial measure known as education at
reformatory schools. In addition, the PC 2015 provides three supervisory and educational
measures applicable to juveniles exempted from criminal responsibility: a reprimand,
community reconciliation and education in the commune. The stated purpose of these
dispositions is to reduce the use of imprisonment in cases involving juvenile offenders.
However, as confirmed in a recent Ministry of Justice and UNICEF (2019) review of the
situation of children in conflict with the law in Vietnam, the use of imprisonment has
decreased in recent years but is still highly frequent in cases involving juvenile offenders.
During the period between 2016 and 2018, it was used in more than 91 per cent of the
cases involving juveniles.
This over-reliance on imprisonment is due in part to the fact the provisions of art 91(2) of
the PC 2015 limiting the criminal liability of juvenile offenders are not applied uniformly
and that the exemption from criminal responsibility and the application of supervisory and
educational measures are left at the discretion of investigating bodies, procuracies, and
courts. Other reasons for the limited application of these dispositions of the Penal Code
include justice officials’ lack of trust in the effectiveness of community-based sanctions,
particularly when the latter are not strictly supervised, as well as a general lack of public
support for alternatives to imprisonment. Courts are reluctant to order education at reforma-
tory schools for juvenile offenders. This is due in part to a narrow judicial interpretation of
the principle of proportionality focused almost exclusively on the seriousness of the offense
rather than on the circumstances, needs, and best interests of the juveniles.
The Committee on the Rights of the Child (2012: para 72), after reviewing Vietnam’s
compliance with its obligations under the CRC, expressed its concern about ‘the limited
alternatives to child detention, and the absence of rehabilitation and reintegration programs’
in Vietnam and recommended that adequate human, technical, and financial resources be
allocated to the juvenile justice system to implement diversion and other alternative meas-
ures to deprivation of liberty and provide rehabilitation and reintegration programs.
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