thang, father, mother divorced unknown where they are living, cannot be contacted for work, since childhood T lived and was raised by his grandmother. The process of resolving the case related to the issue of civil compensation, specifically according to the provisions of Clause 2, Article 586, Civil Code 2015 stipulates: a person under fifteen years old causing damage but still has parents, the parents must compensate for all damages. However, because it is impossible to summon T's parents to work, the issue of civil compensation has not been thoroughly resolved in the case, must be separated and resolved later, affecting the rights and legitimate interests of the victims in the case.
* Causes of limitations and shortcomings
Based on the analysis and assessment of the existing limitations in the application of the law on VAHS investigation conducted by people under 18 years old, the following causes can be identified:
- Firstly , regarding legal regulations: the provisions of the 2015 Criminal Procedure Code and related documents regulating the investigation of VAHS conducted by people under 18 years old are still limited and not very specific, leading to the fact that the agencies conducting the proceedings are not unified in thinking and applying the law and legal regulations to this special subject in order to best ensure their legitimate rights and interests, but in reality the application is not effective, not meeting the requirements set by lawmakers, specifically as follows:
Firstly , the 2015 Criminal Procedure Code has overcome the limitations of the 2003 Criminal Procedure Code by limiting the time for taking statements and interrogation for accused persons under 18 years of age. However, the lawmakers did not stipulate a break between two times of taking statements and re-interrogation. This can easily lead to the abuse of the prosecutor and continuous prosecution activities, which negatively affects the physical and mental health of persons under 18 years of age.
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Second , there is no separate investigation period for cases involving persons under 18 years of age, while the period of detention for persons under 18 years of age is shorter than that for persons 18 years of age or older. In Article
As criminal cases become increasingly sophisticated and complex, ensuring that cases are thoroughly investigated is of great importance in determining the truth of the case in an objective, comprehensive and complete manner, thereby ensuring the best rights and interests for people under 18 years of age. Therefore, the Law on Criminal Procedure needs to adjust the investigation period to ensure that the investigation is carried out comprehensively, objectively and thoroughly while still being in line with UN guidelines.
Third , VAHS investigation activities carried out by people under 18 years old not only include taking statements and questioning suspects but also many other activities as presented above are conducted with the participation of people under 18 years old, especially investigation measures that can easily affect the psychology of people under 18 years old such as searching people, examining traces on the body but are not specifically regulated by the 2015 Criminal Procedure Code for people under 18 years old, which is a shortcoming that needs to be guided by competent agencies to best ensure their rights and interests.
Fourth, the application of temporary detention, temporary detention, emergency detention, and arrest of persons from 16 to under 18 years of age may only be carried out if there are sufficient grounds in Articles 110, 111, 112, points a, b, c, d, and dd, Clause 2, Article 119 of the 2015 Criminal Procedure Code, and in cases of serious intentional crimes, very serious crimes, or especially serious crimes [27]. However, it is very difficult to determine the type of crime and the fault factor of an 18-year-old person at the initial stage and requires time for investigation and verification. Therefore, the application of the above provisions to the measure of arresting a person red-handed will not be feasible in practice. Because, according to the provisions of the 2015 Criminal Procedure Code, everyone has the right to arrest a person red-handed [27], but not everyone has the ability to determine the type of crime and the offender's fault to ensure compliance with the provisions of the law.
Fifth , regarding the responsibility of the agency/person conducting the proceedings to inform the arrested, detained, imprisoned, or accused of the right to defense. The 2015 Criminal Procedure Code does not stipulate when the agency/person conducting the proceedings must inform the arrested, detained, imprisoned, or accused of this right. This has somewhat affected the legitimate rights and interests of the accuser in quickly accessing his or her right to defense.
Sixth, the 2015 Criminal Procedure Code does not stipulate specific standards for defense attorneys when participating in proceedings for cases involving crimes committed by people under 18 years of age. As analyzed in Chapters 1 and 2, due to the characteristics of the specific subject being people under 18 years of age who commit crimes, the law sets out certain conditions for those participating in resolving cases such as Investigators, Investigation Officers, and Prosecutors to be assigned to handle and resolve cases, but does not stipulate for defense attorneys. This may cause defense activities for people under 18 years of age to not achieve the best results.
- Second , in terms of human resources: due to the increasingly complicated nature of crimes committed by people under 18 years old in Bien Hoa city, Dong Nai province, while the number of investigators, investigation officers and police officers is still lacking in the face of the general crime situation as well as crimes committed by people under 18 years old in particular. According to statistics, on average, in one year, an investigator/investigator must handle nearly 32 criminal cases (757 cases/24 people, not including cases prosecuted without a subject, cases under investigation and sources of information and denunciations of crimes), requiring the investigative police force in Bien Hoa city to handle and resolve a large amount of work, high pressure, so it is inevitable that there will be limitations and shortcomings in the process of investigating crimes committed by people under 18 years old. Besides, the capacity, qualifications, awareness, attitude of serving the people and protecting the law of some officers conducting the proceedings in general
and Investigators, Investigation Officers in particular are still limited, not really showing their sense of responsibility. In particular, the role of Investigators who directly conduct investigation activities, collect and consolidate evidence as well as directly apply the TTHS procedures according to the provisions of law. In addition, the organization of staff has not promptly met the requirements of practical work. Compared with the number of staff of the agency and the amount of work the unit receives, it shows that most of the Investigators are overloaded, professional training and in-depth training are still limited, not given due attention, not meeting the requirements of the fight against crime. The treatment regime, policies for officers have not met the requirements of the task, so in general, life is still difficult, not being able to completely feel secure in work, which also partly affects the quality and effectiveness of work.
- Third , regarding material facilities: the law on criminal proceedings stipulates the necessary conditions for litigants in general and investigators and investigation officers in particular when handling cases committed by people under 18 years old, as well as building a model of a criminal investigation room. However, due to human resources and cost issues, the Bien Hoa City Police Investigation Agency has not yet organized a separate team of investigators to handle cases involving people under 18 years old, and the construction of a criminal investigation room model has not yet been implemented and built in practice.
- Fourthly , regarding the management, direction, operation, and leadership of the prosecution agencies in Bien Hoa city, they have not really closely followed and paid attention to the investigation of VAHS committed by people under 18 years old. The implementation of the fight and suppression against this type of crime has not been really drastic, so the effectiveness is not high. Besides, although there is a coordination relationship between the prosecution agencies of the Investigation Agency - the Procuracy - the Court, this coordination relationship is not really close, the coordination is not smooth, leading to the over-
The process of resolving cases still faces difficulties and obstacles in the policies and viewpoints on applying the law to resolve these cases.
- Fifth , the work of summarizing and drawing lessons from the process of resolving cases committed by people under 18 has not been closely paid attention to by the Prosecution Agencies in Bien Hoa city, and has not been regularly organized to promptly point out violations and errors, thereby finding directions to resolve problems and difficulties in the process of resolving cases.
- Sixth , regarding legal propaganda work: due to the awareness and consciousness of people under 18 years old as well as the legal propaganda work of state agencies are not yet really extensive, the law has not reached every citizen in social life so that they can accurately and fully understand the provisions of the law as well as their rights and obligations according to the regulations, leading to the commission of crimes.
3.2. Solutions to improve the effectiveness of criminal investigation carried out by people under 18 years old
3.2.1. Perfecting legal regulations on criminal investigation carried out by persons under 18 years of age
Firstly , research and supplement regulations on the time frame for taking statements and interrogations and regulations on the break time between two consecutive statements and interrogations. Due to the difference in the psychology of people under 18 years old, when participating in the litigation process, more attention should be paid to ensuring health compared to people who are 18 years old. Not regulating the break time between two consecutive statements and interrogations not only affects the health and quality of statements of people under 18 years old, but also makes the regulation on the maximum time for each statement and interrogation in the Law on Criminal Procedure not ensure the original meaning that the legislator intended when promulgating. Therefore, it is necessary to supplement regulations on the time frame for taking statements and regulations on the time
Rest between two consecutive interrogations and statements based on consideration of the physical and mental conditions of people under 18 years old. The addition of regulations on the time frame for taking statements and statements above can be referred to the UN's guidelines, according to which the time for questioning and taking statements of people under 18 years old should only be carried out between 8 am and 10 pm. This time period is suitable for the geographical location, time zone as well as the living habits of people in Vietnam. In addition, Vietnam can also refer to some regulations of Sweden related to taking statements of people under 18 years old such as: One , each time of taking statements must not exceed 3 hours and the interval between two times of taking statements is 12 hours. Two , encourage investigators to contact and meet with the accused person who is under 18 years old before the day of taking statements and interrogations. Contacting the person before the person is accused helps the person to be less confused or feel unfamiliar. From there, the implementation of taking statements and interrogation is more effective.
Second , supplementing regulations related to the time limit for investigating and resolving VAHS cases carried out by people under 18 years old. The process of resolving cases carried out by people under 18 years old must ensure the implementation of two tasks: understanding the specific characteristics of psychology, physiology, physicality and cognition of people under 18 years old that need to be protected, and ensuring that the case is thoroughly investigated, determining the truth of the case in an objective, comprehensive and complete manner. Vietnamese Criminal Procedure Law has specific regulations on the time limit for temporary detention and temporary detention of people under 18 who commit crimes, which is shorter than that of people 18 years old who commit crimes. However, the 2015 Criminal Procedure Code still stipulates that the time limit for investigating cases carried out by people under 18 years old is similar to that of people 18 years old. This is inconsistent with the principle of ensuring prompt and timely resolution of cases involving persons under 18 years of age as prescribed by the Vietnamese criminal procedure law and the UN guidelines, showing inconsistency in legislative techniques. According to the UN guidelines, the maximum time limit for the investigation process for cases involving persons under 18 years of age must be prescribed.
shorter than the similar provisions applicable to adults [15]. At the same time, the Committee on the Rights of the Child recommends that the maximum investigation period for cases involving minors should not exceed 06 months [12]. Therefore, the Criminal Procedure Code needs to adjust the investigation period to ensure that the investigation is carried out comprehensively, objectively and thoroughly, while being consistent with UN guidelines in the direction of shortening the investigation period for cases carried out by persons aged 18 years and over.
Third , in addition to taking statements, questioning, and confronting, it is necessary to have detailed regulations on other investigative activities in cases carried out by people under 18 years old, especially investigative measures that can easily affect the psychology of people under 18 years old, such as searching people and examining traces on the body. In addition, it is necessary to have regulations to ensure the presence of a defense attorney or representative of people under 18 years old when carrying out the above activities. People under 18 years old participating in investigative activities without a defense attorney or representative can easily cause psychological trauma, leaving bad consequences. At the same time, the presence of a defense attorney or representative of people under 18 years old helps the litigation activities to take place objectively and comprehensively, ensuring that the prescribed litigation procedures are not violated.
Fourthly , at the time of emergency detention and arrest as mentioned above, it is difficult to determine the age of the accused and the type of crime that the prosecution agency is accusing, so it is necessary to amend the provisions in Clauses 2 and 3 of Article 419 of the 2015 Criminal Procedure Code in the direction of applying preventive measures to detain people in emergency cases and measures to arrest people when there are legal grounds regardless of age.
Fifth , supplementing regulations on the time when the agency/person conducting the proceedings must notify the arrested, detained, imprisoned, and accused of their right to defense. In fact, an important content in the right to defense is the provision of the law.
The issue of defense for people under 18 years old is the issue of designated defense. The delay in notifying them of this right will lead to the case where people under 18 years old have to carry out the first investigation procedures without the protection of a defense attorney. Because the defense attorney must carry out the defense registration procedure prescribed in Article 78 of the 2015 Criminal Procedure Code and it takes a period of time to carry out that procedure to be eligible to participate in the proceedings. Therefore, not specifying the latest time for the prosecutor to notify 18-year-olds about the right to defense will make it difficult for them to prepare properly, find a defense attorney they trust, or even not be able to have the participation of a defense attorney to defend them in the first investigation activities. The Law on Criminal Procedure needs to supplement this provision in the direction that the agency/person conducting the proceedings is responsible for informing the arrested, detained, imprisoned, and accused about their right to defense immediately after their arrest and throughout the proceedings.
Sixth , it is necessary to specify in detail the standards of defense counsel when participating in resolving cases committed by people under 18 years of age. Currently, the 2015 Criminal Procedure Code as well as Circular 06/2018 only have provisions on the conditions and standards of competent persons conducting proceedings to accept the investigation of cases committed by people under 18 years of age, while the investigation activities of this case also require the participation of defense counsel, but not specifying the standards of defense counsel when participating in this special proceeding is a shortcoming. As analyzed in Chapter 1, according to the UN guidelines, the investigation process of cases involving people under 18 years of age includes not only the police but also other people conducting proceedings to support the proceedings, including defense counsel for people under 18 years of age; child protection service practitioners; child welfare agency staff; Prosecutors and defense attorneys must also be trained in knowledge and skills to serve the criminal investigation process, such as knowledge of law, understanding of the psychology of children of this age, and persuasion skills.