Requirements of Administrative Law in Ensuring Human Rights

state itself. This is a reality in state and social life that needs to be recognized and acknowledged. From there, there is a full and objective understanding of the role of the administrative apparatus and administrative law.

1.2.2.2. Requirements of administrative law in ensuring human rights

Thus, research on human rights protection must be studied in all administrative law regulations and in all manifestations of the actual implementation of administrative law provisions directly or indirectly related to individuals and organizations. Administrative law in a broad sense includes: material law (substantive law); procedural law (formal law - administrative procedure law) and administrative procedural law - a new legal field formed in Vietnam since the Court had the function of administrative adjudication. Therefore, research on human rights guaranteed in administrative law needs to be considered in all parts that make up this legal field.

In particular, ensuring human rights through the role of administrative procedural law is given more attention. Administrative procedural law - a field, or a new branch of law formed in our country since the People's Court had the function of administrative adjudication - adjudicating administrative disputes between citizens, organizations and administrative authorities. The Court, in the name of justice, in the name of the State, judges the legality of administrative decisions and administrative acts complained by citizens and organizations, thereby ensuring the freedom of citizens and organizations that have been violated by administrative decisions and administrative acts of administrative authorities. Ensuring human rights in administrative proceedings must first of all create conditions and premises for citizens and organizations to easily access the Court to ensure their rights, which they believe have been violated by administrative decisions and administrative acts. On the other hand, it must

Maybe you are interested!

create favorable conditions for citizens to exchange and negotiate with agencies and persons with authority to make administrative decisions and administrative acts that are being sued. That means creating equality in the administrative litigation relationship between citizens and agencies, persons being sued by citizens and also with the Court in administrative trials. In line with the process of building a socialist rule of law state in our country today, the scope and subjects of administrative decisions and administrative acts that individuals and organizations can sue in court are increasingly expanding. This also means that citizens and organizations have more conditions and opportunities to protect their rights when they are violated by administrative decisions and administrative acts of the state administrative system and other state agencies. However, it must also be recognized that legally, not all administrative decisions and administrative acts that violate the rights and legitimate interests of citizens can be protected by the Court. The new law only stops at administrative decisions and administrative acts of state administrative agencies and some other state agencies when performing administrative activities that are subject to complaints.

In addition to issuing administrative decisions and performing administrative acts, state administrative agencies also issue policies and legal documents, which in many cases infringe upon the interests of certain social subjects, but those subjects do not have the right to complain or sue about policies and legal documents to protect their rights and interests. This practice leads to a situation where the rights and interests of individuals and organizations are deprived by the public authority, but there is no mechanism to protect them. This is a "gap" in our country's law in ensuring and protecting human rights and civil rights when they are violated by the administrative system, which needs to be supplemented.

CHAPTER 2

STATUS OF HUMAN RIGHTS PROTECTION

DURING THE PROCESS OF APPLYING ADMINISTRATIVE MEASURES

2.1. CURRENT STATUS OF LAWS PROTECTING HUMAN RIGHTS IN THE PROCESS OF APPLYING ADMINISTRATIVE MEASURES BEFORE THE 2012 LAW ON HANDLING ADMINISTRATIVE VIOLATIONS TAKES EFFECT

2.1.1. Current status of laws ensuring human rights in the process of applying administrative measures

Before July 1, 2013, administrative measures were called other administrative measures. Other administrative measures are special administrative enforcement measures, applied only to violators who are individuals, based on the personal background and the process of violating the law of the subject. This form is applied without going through a court but is applied by a state administrative agency, a person with authority by administrative decision, with strict enforcement, more or less related to the restriction of personal freedom for a certain period of time. According to the 1995 Ordinance on Handling Administrative Violations, these administrative enforcement measures are classified into the group of other administrative measures. The 2002 Ordinance on Handling Administrative Violations has been amended and supplemented in a more humane direction to create conditions for violators to quickly reintegrate into the community. According to the 2002 Ordinance on Handling Administrative Violations, there are the following other administrative enforcement measures:

- Education at commune, ward and town levels;

- Put in reform school;

- Put into educational facilities;

- Take to medical facility.

Other BPXLHC are only applicable to individuals who are Vietnamese.

Nam, has committed violations of the law on security, order and social safety but not to the extent of criminal prosecution. In addition to the 1995 Ordinance on Handling of Administrative Violations, amended and supplemented by the 2002 Ordinance on Handling of Administrative Violations, regulations on other administrative violations are also stipulated in many other legal documents.

In terms of advantages, in general, the system of documents covers most areas related to the application of other BPXLHC. The documents stipulate in relatively detail the procedural order from the decision to apply to the organization of implementation of other BPXLHC. One thing that needs to be emphasized is that the adaptability to changes in practice and legal documents is always guaranteed, thereby making a positive contribution to education, sensitization, and the fight against and prevention of violations of the law in life.

* Comments on some major limitations and shortcomings of the law regulating other BPXLHC

- In terms of quantity : we currently have a very large system of documents containing other administrative procedures, from the ordinances of the National Assembly Standing Committee to documents of the Government, ministries, ministerial-level agencies... The system of issued documents is quite large but overlapping, with many contradictions, and many issues that are not clear and transparent. " It can be considered that assigning too many competent state agencies to issue regulations related to other administrative procedures is one of the reasons leading to overlap, complexity and difficulty in understanding and applying these regulations in practice [6].

One of the main limitations and shortcomings in current regulations on other BPXLHC is the inconsistency between some regulations of the guiding documents of the Ordinance and the regulations of the Ordinance itself. This is one of the reasons for the delay in promulgating documents.

Other laws on BPXLHC. And this is also the reason for the low efficiency in applying and organizing the implementation of other BPXLHC in practice. The Government's decrees detailing and guiding the implementation of the Ordinance are all issued nearly a year or more after the Ordinance takes effect. There are even decrees that take two years to be issued after the Ordinance takes effect.

Along with the delay in issuing Government decrees is the delay in issuing guiding documents for implementation by Ministries and functional branches due to having to wait for documents from higher levels, etc. Although the Decrees regulating the regime for applying other administrative sanctions have been issued, many localities are still waiting for guiding documents from the Ministries, so they are slow to apply the provisions of the new documents; some localities even still apply the provisions of the Provincial Advisory Council with the reason that " doing so is more secure and accurate". At the same time, with the contradictions and overlaps, there are shortages, creating many gaps in the system of regulations on other administrative sanctions, for example, on coercive measures in applying other administrative sanctions, regulations on management of exhibits and means of administrative violations, etc.

- Regarding the subjects of application of other administrative measures: The number of documents is large but there are some issues that have not been covered. Therefore, in reality, it has led to a situation where some ministries have issued legal documents expanding the scope of subjects subject to other administrative measures compared to the Ordinance. (Specifically: Decree No. 163/2003/ND-CP dated December 19, 2013 "Detailed regulations on the implementation of educational measures in communes, wards and towns". Circular No. 22/2004/TT-BCA dated December 15, 2004 guiding the implementation of some decisions of Decree No. 163/2003/ND-CP dated January 19, 2003 detailing the implementation of educational measures in communes, wards and towns. This is considered a temporary solution to meet practical requirements. However, from a legal perspective, this is a manifestation of the lack of

comply with the hierarchical order of legal effect of the system of legal documents.

- Regarding ensuring the principle of the supremacy of law and social management by law: The above principles have not been clearly expressed in legal regulations and in practical application. In essence, other administrative sanctions are actually issues directly related to the basic rights of citizens and human rights that should be regulated in legal documents. Meanwhile, not only are there regulations in the ordinance, but in reality, many administrative agencies also have the authority to regulate administrative sanctions. One of the reasons for the above situation is the perception that these are less strict measures, light sanctions, and a stepping stone to applying administrative sanctions, so the development of legal documents on other administrative sanctions has not been taken seriously. This perception is also clearly expressed in the application of regulations on other administrative sanctions.

- Regarding the responsibility regime and coordination mechanism in implementing other BPXLHC: Basically, in the system of documents regulating other BPXLHC, there is no regulation on which agency is the focal agency responsible for applying these measures, but mainly on the coordination, but there are still many unreasonable things for local management agencies, so it is not feasible. Current legal regulations also show confusion between the responsibilities of state agencies and social organizations. The lack of a main agency responsible for directing and operating leads to the phenomenon of no one crying over the common father, work stagnation due to agencies relying on each other, contributing to ineffective implementation. Along with the lack of regulation on the focal agency, the lack of clear regulations on the reward and punishment mechanism for achievements and mistakes and violations of agencies and organizations is also a weakness that leads to the implementation often becoming formalistic.

- Regarding the order and procedures for deciding and applying other administrative measures: The provisions of the law are generally very complicated and cumbersome, not ensuring timeliness, flexibility, economy and efficiency. For example, after the Commune Police Chief makes a record of sending a subject to a reformatory school, it is necessary to have the approval of an advisory council with the participation of many agencies and organizations, or the assignment of the commune organization assigned to be responsible for education in the commune, ward or town must chair the meeting on the basis of calling for coordination with the police agency and a number of other social organizations... In other words, this is a manifestation of the lack of clear and transparent determination between the legal responsibility of the government and the participation of social organizations. The root cause of this situation is that in any matter, there must be many types of subjects, individuals and organizations, participating in almost every stage according to the principles of the Coordination Mechanism. Coordinate but do not identify a single point of responsibility for the whole.

In educational institutions, the programs and plans for implementing the measures are not really clear and effective. The time for applying educational measures at communes, wards and towns is short, combined with the discriminatory mentality of the authorities as well as the community, so when the implementation period of the measures expires, the integration of subjects who have been subjected to other BPXLHC is very difficult and leads to the horse getting used to the old path. A similar situation also occurs in the application of measures to send to medical facilities, according to which the effectiveness of this measure depends largely on the regulations on coordination with health agencies to determine medical records. In addition, there is a phenomenon of abusing the application of this measure, leading to many cases of incorrect application (not determining whether the leak is a drug addict or a troublemaker, has a criminal record or not...), that is, applying coercive measures even when not necessary. This phenomenon can stem from many reasons, including the reason of "disease".

achievements", the reason is due to pressure from families who want to send all drug addicts to treatment facilities...

* The current status of law enforcement on the application of BPXLHC in our country in recent times is specifically shown as follows:

- On the application of measures to send to educational facilities

According to statistics in the report summarizing the practical implementation of legal provisions on applying the BPXLHC to send to reform schools, educational facilities and medical treatment facilities from 2003 to 2013 of the Supreme People's Court . From 2003 to June 2013, educational facilities received 43,793 people (98.82% male, 1.18% female). In our country, the Ministry of Public Security is managing 06 educational facilities with 5,496 inmates (including 40 female). Of these, the number of inmates with 1-6 criminal records accounts for 31.25% (including life sentences). Most of these subjects are hooligans, thugs, aggressive, have many criminal records, drug addicts, and have low educational level. The main violations were disturbing public order, accounting for 44.12% (southern educational institutions had high rates: Con Cat 66.88%, Ben Gia 52.86%, Phu Hoa 52.12%); theft of property, accounting for 38.25% (northern educational institutions had high rates such as Thanh Ha 75.34%, Hoan Cat 57.68%); intentional injury, accounting for 11.03%. During the period from 2008 to 2012, Thanh Ha and Hoan Cat educational institutions had 70% of inmates addicted to drugs and 50% infected with HIV. The subjects of the measures were mainly between the ages of 18 and 28, accounting for 58.33%; between 29 and 40, accounting for 29.76%. The education level of inmates was very low, 32.34% primary school, 40.55% secondary school. The term of execution of 24 months accounts for 77.22%; from 18 to 24 months accounts for 11.51%; from 12 to 18 months accounts for 8.95%;

6 to 12 months accounts for 2.37%.

The issue of classification, proposal for reduction of term, temporary suspension, exemption from execution, organization of visits... is strictly implemented, in accordance with the law, the rate of classified inmates