A person under 18 years of age must meet at least one of the following conditions: “ Have experience in prosecuting, investigating, prosecuting, and trying cases involving people under 18 years of age; have been trained, coached, and fostered in skills to resolve criminal cases involving people under 18 years of age; have been trained, coached, and fostered in psychology and educational science for people under 18 years of age” [05]. This Circular has provided more detailed and specific regulations on the conditions and standards of Investigators and Investigation Officers to help the application of legal provisions on VAHS investigations conducted by people under 18 years of age to be more consistent, unified, and effective.
2.2.2. Investigation activities
As in the normal VAHS investigation phase, during the investigation of VAHS conducted by a person under 18 years of age, the Investigation Agency conducts the following investigative activities: Crime scene investigation, autopsy, examination of traces on the body, investigative experiments; search, seizure, temporary detention of documents and objects; prosecution of the accused, interrogation of the accused, taking statements from participants in the proceedings; confrontation, identification, voice recognition; request for appraisal, asset valuation and special investigative measures.
During the investigation phase of VAHS conducted by people under 18 years old, most of the above investigation activities are applied similarly to the investigation of normal VAHS, but the activities of taking statements and questioning suspects under 18 years old are carried out with many differences, which need to be noted as follows:
Firstly, the process of taking statements and questioning suspects under 18 years of age must be attended by their defense counsel or representative. Before proceeding, the investigating agency must notify in advance the time and location to the defense counsel, representative, and person protecting their legal rights and interests [27]. Regarding the advance notification of the time and location of taking statements and questioning to the defense counsel, representative, and person protecting the legal rights and interests of people under 18 years of age, the 2015 Criminal Procedure Code has not specifically regulated, but only set out the requirements.
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For the competent authority conducting the proceedings, it must notify the defense attorney a “reasonable” time in advance [27]. To circumvent this regulation, Circular No. 70/2011/TT-BCA of the Ministry of Public Security stipulates that the Investigator must notify 24 hours in advance of the time and place of taking the statement. In cases where the defense attorney is far away, the Investigator must notify 48 hours in advance [06].
Second , the maximum time for taking statements and questioning suspects under 18 years old is regulated. Accordingly, the investigation agency is not allowed to take statements and question people under 18 years old no more than twice in 1 day and each time no more than 2 hours, except in some cases prescribed by law. Consider applying appropriate measures to minimize the time and number of times taking statements and questioning and must immediately stop taking statements and questioning when people under 18 years old show signs of fatigue, affecting their ability to give accurate and complete statements [27]. This is a progressive point compared to the 2003 Criminal Procedure Code, which did not have any regulations limiting the number of times and time of questioning. Such regulations aim to ensure the best health for people under 18 years old, because people under 18 years old have psychological characteristics such as being easily emotional, physically and mentally immature, so continuously taking statements for a long period of time will easily make them fall into a state of fatigue, stress, fear, leading to the mentality of wanting to admit guilt or giving inaccurate statements.
Third, on the method of taking statements and interrogation. The 2015 Criminal Procedure Code does not provide details on this issue, however, Article 14 of Circular 06/2018 clearly states: Taking statements of people detained in emergency cases, arrested people, and detained people under 18 years old can be carried out at the place of study, work and living of that person or the place of investigation. In addition, the interrogation of suspects under 18 years old can be carried out at the place of residence of that person or the place of investigation. In case of taking statements and interrogation, the room for taking statements and interrogation must be arranged to ensure friendliness and suitability for the psychology of people under 18 years old.
When taking statements and interrogating, the competent person conducting the proceedings must have a friendly and gentle attitude, use easy-to-understand language, and be appropriate to their age, gender, and cognitive ability. In cases where the representative or defense attorney's questions are suggestive, directional, or affirmative or negative in nature related to the case, the Investigator or Prosecutor must request that no questions be asked and must immediately stop the questioning, especially in cases where there are signs of collusion or prompting, the questioning must be immediately stopped and a record must be made and a report must be reported to the competent person for handling according to regulations.
In addition, an issue that has not been specifically regulated by the Criminal Procedure Law but is closely related to the investigation of crimes committed by people under 18 years old is the model of the Criminal Investigation Department. Currently, according to the Criminal Police Department (Ministry of Public Security), our country is in the process of building and perfecting the Criminal Investigation Department model, and is piloting a model of the Criminal Investigation Department to take statements from children under 18 years old to ensure humanity; helping investigators support victims to stabilize their psychology, comfortably make statements, and exchange information. Accordingly, the Criminal Investigation Department has an area of 12 m2 or more, the paint color must create a warm, close, and comfortable feeling, be modernly designed, have children's books, toys, and pictures to create a sense of closeness for children when making statements to the Investigator. When taking statements, officers must have a friendly and gentle attitude, use language appropriate to their age, gender, cognitive ability, and maturity level; It is not necessary to wear uniforms, based on age, psychological status, health, and cognitive ability to apply appropriate professional measures to minimize the number of times to take statements. The investigators will not sit directly opposite the children as before, but will sit behind one-way glass to take statements. The children will not see the police officers, so they will be more comfortable when answering questions. Taking statements and interrogations will only be carried out with the participation of a representative or another person the child trusts and chooses, a defense attorney, a psychologist or social welfare worker [28]. This model is
one of the ways to ensure the implementation of the principles of criminal procedure friendly specifically for people under 18 years of age.
2.2.3. Preventive and enforcement measures
Preventive measures and coercive measures play an important role in the process of resolving VAHS in practice. Because the application of these measures directly affects human rights, the basic rights of citizens have been recognized and protected by the Constitution. The 2015 Criminal Procedure Code lists preventive measures including: emergency detention; arrest (arrest of a person detained in an emergency, arrest of a person caught red-handed, arrest of a wanted person, arrest of a suspect or defendant for temporary detention); temporary detention; temporary detention; bail; deposit of money as security; prohibition from leaving the place of residence and temporary suspension of exit. Coercive measures include measures such as escort, escort, seizure of property, and freezing of accounts. The regulation of coercive measures into a separate section in the 2015 Criminal Procedure Code is essentially a synthesis of coercive measures that have been scatteredly regulated in the 2013 Criminal Procedure Code into one section to ensure the consistency and rationality of the law, while also demonstrating the increasingly developed legislative techniques in Vietnam.
The provisions on preventive measures and coercive measures for persons aged 18 and under have many similarities, except for some provisions related to temporary detention, temporary detention, emergency detention, and arrest. In principle, the 2015 Criminal Procedure Code stipulates that preventive measures and escort measures are only applied to accused persons under 18 years of age in cases of real necessity. Temporary detention and temporary detention measures are only applied to accused persons under 18 years of age when there are grounds to believe that the application of supervision and other preventive measures is ineffective. The period of temporary detention for accused persons under 18 years of age is two-thirds of the period of temporary detention for persons aged 18 and over [27]. However, the “necessity” to apply preventive measures in
The 2015 Criminal Procedure Code does not specify the specific cases and "basis" for assessing that other monitoring and preventive measures are ineffective. In order to specify this Article, Clause 2, Article 12, Circular 06/2018 stipulates: Measures of detention, arrest, temporary detention, and temporary imprisonment may only be applied after the agency conducting the proceedings considers and considers applying monitoring measures, other measures such as bail, deposit of money to ensure, prohibition from leaving the place of residence, temporary suspension of exit, and temporary detention measures that are ineffective. The bases for determining that the application of monitoring measures and other preventive measures is ineffective include escape, being arrested under a wanted decision, showing signs of escape, continuing to commit crimes, showing signs of continuing to commit crimes, or having acts of bribing, coercing, or inciting others to make false statements or provide false documents; Destroying, falsifying evidence, documents, objects of the case, dispersing assets related to the case; threatening, controlling, retaliating against witnesses, victims, people reporting crimes or relatives of these people. The measure of escort is applied in the following cases: the suspect or defendant has been summoned for the second time but intentionally absents without a reason of force majeure or objective obstacles; the person being detained in an emergency, the suspect or defendant being temporarily detained from the place of detention to the location of investigation, prosecution, and trial of the case.
Compared to the 2003 Criminal Procedure Code, the 2015 Criminal Procedure Code has made progress by providing three completely new provisions: First , the notification to the representative of a person under 18 years of age when applying preventive measures within 24 hours when applying preventive measures such as holding a person in an emergency or arresting a person. Second , the provision on timely cancellation or replacement with another preventive measure when there is no longer a basis for applying temporary detention or temporary custody. Third , the provision on the period of temporary detention for a person accused of being under 18 years of age is two-thirds of the period of temporary detention for a person aged 18 or older [27]. However, the 2015 Criminal Procedure Code lacks provisions on the period of time.
extension of detention. As a general rule, the provisions relating to the extension of detention for persons accused of being 18 years of age or older shall apply to persons accused of being under 18 years of age. Allowing an extension without specifying the period for which it may be extended defeats the purpose of specifying a detention period specifically for persons under 18 years of age.
In addition to the above provisions, the 2015 Criminal Procedure Code allows the prosecution agency to apply measures of temporary detention, temporary detention, and arrest of people under 18 years old from 16 to under 18 years old, who have committed less serious or serious crimes unintentionally, when these people under 18 years old continue to commit crimes, escape or are arrested under a wanted decision [27]. By stipulating the conditions applicable to each age of the accused person under 18 years old, the 2015 Criminal Procedure Code has overcome the shortcomings of the 2003 Criminal Procedure Code which did not mention this case, contributing to facilitating the agencies/persons conducting the prosecution in the process of carrying out the prosecution activities within their duties and powers.
2.2.4. Participation of defense attorney, representative, school, organization
In the process of resolving VAHS committed by people under 18 years old as well as during the investigation phase of the case, the prosecuting agency is responsible for ensuring the effective participation of defenders, representatives, and protectors of their legitimate rights and interests in order to help the proceedings take place in a comprehensive and objective manner. Specifically, when investigating VAHS committed by people under 18 years old, the Investigation Agency, Investigator, and Prosecutor shall request or propose the agency or legal organization to appoint a guardian, representative, legal aid provider, defender, or People's Defender to participate in the proceedings.
2.2.4.1. Defense counsel
Clause 2, Article 72 of the 2015 Criminal Procedure Code stipulates that defense attorneys include: lawyers, representatives of the accused, people's defenders, and assistants.
Legal assistant. Accordingly, the 2015 Criminal Procedure Code has expanded the scope of subjects that can be considered defenders compared to the 2013 Criminal Procedure Code when it additionally stipulates that defenders are legal assistants.
During the investigation phase of regular criminal cases as well as those conducted by persons under 18 years of age, the defense counsel has the right to meet and question the accused; the right to be present during confrontation, identification, voice recognition and other investigative activities; the right to request competent authorities to conduct proceedings to collect evidence, conduct additional appraisals, re-appraisals and re-evaluate assets. In particular, the participation of the defense counsel is mandatory in taking statements and interrogations; without their participation, the minutes of statements and interrogations are not legally valid and cannot be used as evidence in the case file. In addition, the 2015 Criminal Procedure Code also stipulates designated defense counsel. Accordingly, in case the accused is under 18 years old, has no defense counsel or their representative or relatives do not invite a defense counsel, the prosecution agency shall appoint a defense counsel for them or request the State Legal Aid Center to send someone to provide legal aid according to regulations [27]. This regulation aims to ensure maximum benefits for people under 18 years old who commit crimes throughout the investigation of the case as well as in other stages of the proceedings. However, because defense is a right, people under 18 years old who commit crimes or their representatives or relatives can still change or refuse a defense counsel. Upon request, the investigation agency will make a record of the refusal of the defense counsel and terminate the appointment of the defense counsel.
2.2.4.2. Representative, school, organization
The representative of a litigant under 18 years of age is determined to be the biological parents, adoptive parents; guardian (natural guardian or person appointed by the People's Committee of the commune where the person under 18 years of age resides or appointed by the Court according to the provisions of Articles 46, 47, 48, 52 and 54, Section 4
Chapter III of the Civil Code) [05]. According to the 2013 Criminal Procedure Code, the representative of a detainee or defendant is a person from 14 years old to under 16 years old; a defendant with mental or physical disabilities or in other necessary cases must be present during interrogation and questioning sessions [26]. Currently, the 2015 Criminal Procedure Code has removed the provisions on age and health status as a basis for determining the necessity of the presence of a representative. This means that the representative of a person under 18 years old must be present during interrogation and questioning sessions regardless of the physical or mental status of that 18-year-old person [27]. In addition, the 2015 Criminal Procedure Code has specific provisions on the rights that the representative of a person aged 18 can exercise to best protect the rights and interests of a person under 18 years old, such as participating in the process of taking statements and questioning a person under 18 years old; presenting evidence, documents, objects, requests, complaints, and denunciations; reading, recording, and photocopying documents related to the accusation of a person under 18 years old in the case file after the investigation is completed [27]. The above specific provisions help the representative to better perform the task of protecting the legitimate rights and interests of a person aged 18 years old. With the above provisions, it somewhat limits the representative's participation in the litigation process, being present in the investigation procedures only as a formality without being able to perform his or her role.
In addition, during the investigation of VAHS conducted by a person under 18 years of age, in cases where a person under 18 years of age commits a crime without a family, without a stable place of residence and at their request, a legal representative or when deemed necessary, in addition to the participation of a representative, a person protecting legal rights and interests, the Investigation Agency and the Investigator may request the Department of Labor - Invalids and Social Affairs, the Women's Union, the Ho Chi Minh Communist Youth Union, the Association for the Protection of Children's Rights, the Legal Aid Center, other agencies and organizations where the proceedings are conducted to send people to participate in the proceedings to support and protect the case.