Guaranteeing the Right to Presumption of Innocence for Juvenile Defendants

The right to litigate in court. This is one of the constitutional principles recognized in points 5 and 7, Article 103 of the 2013 Constitution and stipulated in Articles 11, 57, 217, 218 of the 2003 Criminal Procedure Code. These provisions on ensuring the right to defense of detainees, suspects, and defendants are manifestations of democracy and humanism of socialist society, and are a guarantee for the trial to be conducted in an objective, fair, and humane manner.

The right to defense plays an important role in ensuring the rights of juvenile offenders at the trial stage of the Court. Because the right to defense is a synthesis of criminal procedural rights, creating a legal basis for the defendant to defend his/her actions, being accused and protecting other legitimate rights and interests. The right to defense under Vietnamese criminal law for juvenile offenders is guaranteed at all stages of criminal proceedings.

In cases involving minors, the participation of a defense attorney in the proceedings is mandatory. A defendant who is a minor has the right to self-defense as prescribed in Article 50 of the Criminal Procedure Code.

Article 305 of the Criminal Procedure Code stipulates the "defense" for suspects and defendants who are minors as follows:

1. The legal representative of a detainee, suspect or defendant who is a minor may choose a defense attorney or defend the detainee, suspect or defendant himself/herself.

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2. In cases where the accused or defendant is a minor or their legal representative cannot choose a defense attorney, the Investigation Agency, the Procuracy, or the Court must request the Bar Association to assign a law office to appoint a defense attorney for them or request the Vietnam Fatherland Front Committee or a member organization of the Front to appoint a defense attorney for a member of their organization [27].

However, it should be noted that in cases where the offender is a minor but when they are prosecuted, tried, or tried, they are 18 years old or older, the participation of a defense attorney is not required. According to the provisions of Clause 1, Article 56 of the Criminal Procedure Code, the defense attorney can be a lawyer, a representative, or a person who is not a minor.

The legal representative of the defendant or the people's defender. The participation of the defender in the proceedings may be at the request of the defendant, their legal representative or at the request of the prosecution agency. In case the defender participates in the proceedings at the request of the prosecution agency, the defendant and their legal representative still have the right to request a change or refuse the defender according to the provisions of Point b, Clause 2, Article 57 of the Criminal Procedure Code.

1.2.3. Guarantee the right to be presumed innocent for defendants who are minors

Article 31 of the 2013 Constitution and Articles 9 and 10 of the 2003 Criminal Procedure Code contain many important principles to protect human rights in the most thorough manner, in which the principle of presumption of innocence stands out. This is reflected in the fact that, in the system of State agencies in general and the system of criminal justice agencies in particular, only the Court has the function of adjudication, which means that: The Court is the only adjudication agency, with the right to convict someone and decide on the punishment for the offender based on the consideration and evaluation of evidence in an objective, comprehensive and official manner at the trial.

With this provision, the principle of presumption of innocence in criminal proceedings is raised to the constitutional level. This is a very progressive new point of the 2013 Constitution that meets the requirements of building a Vietnamese rule of law state, ensuring that no one is considered guilty when the crime they committed has not been proven in accordance with the provisions of the Criminal Procedure Code and has not been determined by a valid conviction by the Court.

In Vietnam, the recognition and application of the presumption of innocence principle has created many advantages for a progressive, appropriate and responsive procedural process that meets the requirements of judicial reform.

1.2.4. Guarantee the right to be tried under separate procedures for minors who commit crimes

The provisions from Article 301 to Article 310 of Chapter XXXII, Part Seven of the 2003 Criminal Procedure Code are special procedures that are only applied to minors who commit crimes. In addition to these provisions, the criminal procedure for those who are arrested, detained, accused, or defendants who are minors

Minors are also subject to other provisions of the Criminal Procedure Code, but on condition that such provisions do not contravene the provisions in Chapter XXXII of the Criminal Procedure Code.

The reason why the Penal Code and the Criminal Procedure Code of Vietnam have separate provisions on investigation and trial of juvenile offenders is based on the viewpoint of the Socialist Republic of Vietnam, which always determines: Because juveniles have different psychological and physiological development characteristics compared to adults such as: Not fully developed physically and psychologically, their level of awareness and life experience is still limited, so the Penal Code has a policy of handling juvenile offenders that is completely different from that of adult offenders. Handling juvenile offenders is mainly aimed at educating and helping them correct their mistakes, develop healthily and become useful citizens to society.

1.2.5. Guarantee the right to appeal for minor defendants .

One of the conditions to ensure human rights and civil rights of defendants in general and defendants who are minors in particular is the legal provisions on their right to appeal against first-instance judgments and decisions.

Appeal is the right to appeal against the judgment and decision of the Court, requesting a retrial. The defendant has the right to appeal against the judgment and the decisions to suspend and temporarily suspend the case that have not yet taken legal effect of the Court. When the defendant's appeal is valid, the Court of Appeal must consider and resolve the defendant's right to appeal.

In order for the defendant to be able to exercise his right to appeal with peace of mind, the Criminal Procedure Code stipulates that if there is only an appeal by the defendant without any other appeal or protest in the direction of aggravation, the Court has the obligation to retry the case but has no right to worsen the defendant's situation, that is, not to increase the criminal responsibility of the defendant. This right is intended to limit the mistakes of lower-level prosecution agencies that can cause damage to the legitimate rights of the parties. This is an extremely important legal guarantee for the defendant to exercise his right to protect his rights and interests, creating a stable mentality for the defendant, trust in the law and law enforcement agencies.

1.2.6. Guaranteeing minor defendants certain other rights

- Guarantee the right of minor defendants to claim compensation if they are wrongfully convicted.

Article 29 of the Criminal Procedure Code sets forth the principle of “Ensuring the right to compensation for damages and restoration of honor and rights of the wronged person”. This is one of the basic principles of the Criminal Procedure Code, which sets out the guidelines and orientations governing all or some important stages of the criminal procedure. This principle reflects the criminal policy and viewpoint of our Party and State: A person wronged by a competent person in the criminal procedure activities has the right to compensation for damages and restoration of honor and rights; The competent authority in the criminal procedure activities that has caused the wrong must compensate for damages and restore honor and rights to the wronged person.

- Guarantee the right of juvenile defendants not to be tried twice for the same crime.

Article 14, paragraph 7 of the ICCPR recognizes the principle of Ne Bis In Idem, which means that no one shall be liable to be tried or punished again for an offence for which he has already been convicted or acquitted in accordance with the law and criminal procedure of each country. This provision prohibits a person who has previously been convicted or acquitted before the same court or another court for the same offence.

- Guaranteeing the right of a minor defendant not to be considered guilty if the act did not constitute a crime under the law at the time of committing the act. The prohibition of retroactive application in criminal law is a fundamental principle in

In a society based on the rule of law, one of its aspects is to ensure predictability or foresight, thereby ensuring legal security for individuals, the prohibition of retroactivity is an important principle in Vietnamese criminal law, which is stipulated throughout the process of building the legal system. The spirit of the principle of retroactivity is clearly expressed in Article 7 of the 1999 Penal Code: "The law applicable to a criminal act is the law in effect at the time the criminal act is committed" [26].

- The right not to be prosecuted for failure to fulfill obligations

contract

In the Vietnamese legal system, only the Penal Code regulates criminal offenses and penalties. Article 140 of the Penal Code regulates cases of failure to fulfill contractual obligations with the intention to appropriate property, and the crime of abuse of trust to appropriate property. Apart from the two cases mentioned in Article 140, Vietnamese law does not allow any other cases of imprisonment for the reason that person fails to fulfill contractual obligations.

In addition to the above rights, the rights of minor defendants in the first instance trial stage are also specifically regulated by the Vietnamese Criminal Procedure Code in this stage of the proceedings to protect the defendant's legitimate rights and interests. Clause 2, Article 50 of the Criminal Procedure Code stipulates that defendants have the following rights: The right to receive the decision to bring the case to trial is an important right of the defendant. Based on the content of the decision to bring the case to trial, the defendant is informed of the crime they are being tried for, the time and place of the trial, the names of the prosecutors, the participants in the trial, the evidence to be examined at the trial... On that basis, they can exercise their rights such as the right to participate in the trial, the right to request a change of the prosecutor... At the trial, the defendant is equal to the Prosecutor and other participants in the trial in presenting evidence, documents, objects, making requests and debating democratically at the trial. Therefore, the defendant's right to participate in the trial will create favorable conditions for the defendant to exercise his/her right to defense and protect his/her legitimate rights and interests. The court must ensure the defendant's right to equality before the court and can only try the defendant in absentia in cases prescribed by law; in other cases, the trial must be postponed. The defendant has the right to make requests such as requesting to summon additional witnesses or requesting to provide additional evidence, documents for review, requesting to postpone the trial... These requests must be considered and resolved by the Trial Panel. The defendant has the right to complain about the decisions and procedural actions of the agency or person conducting the proceedings if those decisions and actions are illegal...

1.3. Legal provisions on ensuring the rights of minors who commit crimes during the first-instance trial of the People's Court

1.3.1. Principles for handling juvenile offenders

The principle of handling juvenile offenders is a synthesis of positive criminal law norms that demonstrate the humanity of the State's criminal policy to solve the problem of criminal responsibility of juvenile offenders in a more lenient direction compared to the level of responsibility of adults [26, p.20].

In order to comply with the spirit of the International Convention on the Rights of the Child, Vietnamese criminal law also establishes principles of handling to ensure the "special nature" of this group of subjects. Article 69 of the Penal Code stipulates the principles of handling juvenile offenders as follows:

1. The main purpose of handling juvenile offenders is to educate and help them correct their mistakes, develop healthily and become useful citizens to society.

In all cases of investigation, prosecution and trial of criminal acts committed by minors, competent state agencies must determine their ability to perceive the socially dangerous nature of the criminal acts, the causes and conditions that caused the crimes.

2. A minor who commits a crime may be exempted from criminal liability if he or she commits a less serious crime or a serious crime that does not cause great harm, has many mitigating circumstances, and is supervised and educated by his or her family or an agency or organization.

3. The prosecution of juvenile offenders and the application of penalties to them shall be carried out in necessary cases and must be based on the nature of the crime, personal characteristics and requirements of crime prevention.

4. If it is deemed unnecessary to apply a penalty, the Court shall apply one of the judicial measures of education at the commune, ward or town level or placement in a reformatory school.

5. Do not impose life imprisonment or the death penalty on minors who commit crimes.

When applying punishment to juvenile offenders, it is necessary to limit the application of imprisonment. When imposing a term of imprisonment, the Court shall give juvenile offenders a lighter sentence than that applied to adults who commit the corresponding crime.

Fines shall not be imposed on juvenile offenders between the ages of 14 and under 16.

No additional penalties shall be applied to minors who commit crimes [26].

The principles of handling juvenile offenders in our country's law emphasize the education and assistance of juvenile offenders to correct their mistakes and develop healthily to become useful citizens to society as the main purpose. In all cases of investigation, prosecution, and trial of juvenile crimes, competent authorities must determine their ability to perceive the social danger of their crimes, the causes, and conditions that cause the crimes.

All measures applied to juvenile offenders as prescribed in our country's law must be appropriate to the circumstances and commensurate with the nature and severity of the juvenile's violation. Forcing juveniles to take responsibility for their actions is aimed at making them deeply aware that their criminal behavior has violated the standards and rules of the state and society. However, the measures for handling juveniles as recorded in the Penal Code are considered not only based on the nature and severity of the behavior as well as the consequences caused by that behavior, but also take into account the individual circumstances of the juvenile, because the purpose of punishment and the application of punishment to juveniles is not only to punish the offender, but also to support the offender to recover and reintegrate into the community. Juvenile trials are only conducted in cases of real necessity, if punishment must be applied to the juvenile, it is also for the purpose of

Education and reform are the main things, do not let the image of the law exist in the minds of children too fearfully or too harshly, easily causing dissatisfaction and hatred.

The principles of handling juvenile offenders stipulated in the Penal Code fully reflect the viewpoint of our Party and State in protecting the human rights of juvenile offenders, in accordance with the requirements of the International Convention on the Rights of the Child which our State has signed and participated in.

1.3.2. Subjects to prove that in a case, the defendant is a minor

The 2003 Criminal Procedure Code stipulates the subject of proof in criminal cases in Article 63 as follows:

1. Whether a crime has occurred, the time, characteristics and other circumstances of the crime.

2. Who committed the crime; fault or not fault, intentional or unintentional; criminal capacity or not; purpose and motive of the crime.

3. Aggravating and mitigating circumstances of the criminal responsibility of the accused and the personal characteristics of the accused.

4. The nature and extent of damage caused by the crime [ 27].

However, in cases where the defendant is a minor, in addition to the issues that need to be proven like in other ordinary cases, it is necessary to prove the circumstances as prescribed in Article 302 of the Criminal Procedure Code.

Article 302 of the Criminal Procedure Code stipulates:

“1. Investigators, prosecutors, and judges conducting proceedings against juvenile offenders must have the necessary knowledge of psychology, educational science, and activities to combat and prevent juvenile crime”[27].

Article 4 of Joint Circular No. 01/2011/TTLT-VKSNDTC-TANDTC-BCA-BTP-BLDTBXH dated July 12, 2011 stipulates that those assigned to conduct proceedings in these cases must be those who have been trained or have experience in investigating, prosecuting, and trying minors or people.

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