Juvenile offenders in Vietnam and the right to defence
| Author | Thi Thanh Nga Pham |
| DOI | 10.1177/1473225415587737 |
| Published date | 01 April 2016 |
| Date | 01 April 2016 |
| Subject Matter | Articles |
Youth Justice
2016, Vol. 16(1) 49 –70
© The Author(s) 2015
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DOI: 10.1177/1473225415587737
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Juvenile offenders in Vietnam
and the right to defence
Thi Thanh Nga Pham
Abstract
This article examines Vietnam’s regulations and practices concerning the right to defence of juvenile offenders
in comparison with international standards. I use mixed methods including statistics and analysis of case
studies. Research findings indicate that Vietnam’s laws firmly state the right to defence of juvenile offenders
but lack specific guarantees for appropriate legal support and protection of privacy. In the implementation
of the law, we can see various issues, including a lack of understanding of their rights by offenders and
their representatives, and failure to provide appropriate defence for juvenile offenders among responsible
agencies.
Keywords
counsel, defence, juvenile justice, Vietnam
Introduction: Vietnam’s commitment to international law
concerning the right to defence of juvenile offenders
Defence is a salient point in criminal justice; it guarantees a fair and just trial and protects
the human rights of those who are tried as offenders, juvenile offenders included. Defence
can be conducted by the offender (self-defence) and their lawful representatives or by
defence counsel. Ensuring the right to defence is a topic of concern of human rights and
criminal justice from local jurisdictions to the international community.
In this essay, I present an evaluation of the implementation of the right to defence of
juvenile offenders in Vietnam. The theoretical framework used to evaluate Vietnam’s
implementation is based on the principles of international human rights law and the rule
of law at both international and national levels with reference to the United Nations (UN)
treaty system. State parties to human rights treaties are bound to respect, protect and fulfil
human rights by putting into place domestic measures and legislation compatible with
Corresponding author:
Thi Thanh Nga Pham, Faculty of Law, Humanities and the Arts, University of Wollongong, Building 19, Northfields
Avenue, Wollongong, NSW 2522, Australia.
Email: ttnp744@uowmail.edu.au; thanhnga13579@yahoo.com.vn
587737YJJ0010.1177/1473225415587737Youth JusticePham
research-article2015
Article
50 Youth Justice 16(1)
their obligations and duties (UN, n.d.). The rule of law requires that all natural and legal
people and the State itself are accountable to and equal before the law; laws should be
consistent with international human rights law and publicly promulgated, equally enforced
and independently adjudicated; and there should be measures to ensure adherence to the
principles of supremacy of the law and of fair, just and effective law enforcement
(Secretary-General of UN Security Council, 2004).
The right to defence or counsel is enshrined in most important international treaties on
human rights generally and on criminal justice particularly. A criminal charge and any
punishment applied to a person will be unreasonable and illegal if that person’s right to
defence is not guaranteed. Under the Universal Declaration of Human Rights (UDHR), no
one is presumed guilty of a criminal offence until their guilt is proven with all the guaran-
tees necessary for their defence (art. 11). In the International Covenant on Civil and
Political Rights (ICCPR), due defence with adequate time and facilities for the prepara-
tion and communication with counsel is one of the minimum entitlements guaranteed to
anyone who is charged with a criminal offence (art. 15).
It can be said that the guarantee of the right to defence is essential for realising the other
procedural rights of offenders. During the complicated and difficult process of criminal
proceedings, without adequate legal counsel and defence, offenders face difficulties in
understanding and exercising their rights, including the right to examine witnesses, not to
confess guilt and to be presumed innocent until proved guilty according to the law.
For a child or juvenile, the system and process of criminal proceedings are often seri-
ous and complicated. It is very hard for them to conduct their own defence. Juvenile
offenders therefore in every case need to be assisted in the preparation and presentation of
their defence.
With regard to human rights for children or juveniles, the Convention on the Rights of
the Child (CRC) of 1989 is the primary document containing ‘the whole gamut of human
rights’ for children – all economic, social, cultural, civil and political rights (Mower, 1997:
6). The CRC was adopted in 1989 and entered into force in 1990. It has been accepted by
194 countries1 and has become the international standard for children’s rights and child
protection.
State parties of the CRC have responsibility for undertaking all appropriate measures
for the implementation of the rights set forth therein and for the full and harmonious
development of people below 18 years. In the aspect of the administration of justice, the
CRC (arts 37, 40) restates all the fundamental rights of children or juveniles as stated in
the UDHR, ICCPR and other relevant international treaties with the emphasis on the pur-
pose of promoting the child’s reintegration and constructive role in society. These include
basic guarantees for a fair and just trial and treatment. For every child alleged or accused
of having infringed the penal law (i.e. every juvenile offender), the guarantee of appropri-
ate assistance in the preparation and presentation of the defence is one of the minimum
standards of juvenile justice (CRC: art. 40/2/ii). This clause should be understood in the
elucidation of relevant international instruments specifying the rights of juvenile offend-
ers, particularly the Standard Minimum Rules for the Administration of Juvenile Justice
of 1985, the Rules for the Protection of Juveniles Deprived of their Liberty of 1990 and
the General comment No. 10 (2007) on Children’s Rights in Juvenile Justice. As required
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