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The Rights of the Child in the Judicial Sector in Vietnam: Compliance with International Legal Standards Thi Ath Nh Nga Pham University of Wollongong

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The Rights of the Child in the Judicial Sector in Vietnam: Compliance with International Legal Standards Thi Ath Nh Nga Pham University of Wollongong University of Wollongong Research Online University of Wollongong Thesis Collection University of Wollongong Thesis Collections 2015 The rights of the child in the judicial sector in Vietnam: compliance with international legal standards Thi aTh nh Nga Pham University of Wollongong Recommended Citation Pham, Thi aTh nh Nga, The rights of the child in the judicial sector in Vietnam: compliance with international legal standards, Doctor of Philosophy thesis, Faculty of Law, Humanities and the Arts, University of Wollongong, 2015. http://ro.uow.edu.au/theses/4524 Research Online is the open access institutional repository for the University of Wollongong. For further information contact the UOW Library: [email protected] Faculty of Law, Humanities and the Arts THE RIGHTS OF THE CHILD IN THE JUDICIAL SECTOR IN VIETNAM: COMPLIANCE WITH INTERNATIONAL LEGAL STANDARDS PHAM Thi Thanh Nga This thesis is presented in fulfilment of the requirements for the award of the Degree of Doctor of Philosophy at the University of Wollongong July 2015 DECLARATION I, PHAM Thi Thanh Nga, declare that this thesis, submitted in fulfilment of the requirements for the award of Doctor of Philosophy in the Faculty of Law, Humanities and the Arts, University of Wollongong, is wholly my own work unless otherwise referenced or acknowledged. The document has not been submitted for qualification at any other academic institution. Pham, Thi Thanh Nga 23 July 2015 ABSTRACT In this thesis I analyse and evaluate the treatment of children who come in contact with the judicial system in Vietnam with a focus on the implementation of the state party’s obligations under the Convention on the Rights of the Child (CRC), which Vietnam ratified in 1990. I explore to what extent Vietnam has implemented its obligations and consider what it should do further to fully comply with international juvenile justice standards. These questions are addressed with respect to each aspect of the juvenile justice system: the prevention of juvenile delinquency, the treatment of juvenile offenders and the protection of child victims and witnesses of crime. An interdisciplinary, mixed method approach has been employed, including analysis of documents, statistical analysis, case studies and contextual analysis. Vietnamese law and its actual implementation in juvenile justice are considered through the analysis of international and national legal normative documents, statistics, reports, academic studies and court cases. The thesis includes recommendations based on a careful consideration of Vietnam’s obligations under international law, particularly Vietnam’s commitment to its obligations under the CRC. Research findings indicate that Vietnam has approached international juvenile justice standards in a number of aspects, including the age of criminal responsibility and the recognition of most juvenile offenders’ rights. However, there are significant shortcomings in the definition of the child, national policies on juvenile delinquency prevention, the rights of child victims and witnesses of crimes, and inadequacies in law enforcement. The thesis finally provides practical recommendations for law reform and mechanisms for effective legal implementation. ACKNOWLEDGEMENTS This thesis would not have been possible without the support and encouragement of many individuals and institutions. It is hard to express my gratitude to all for invaluable help in different ways that all contributed to my completion of this project. From the bottom of my heart, I appreciate Professor Vera Mackie’s supervision of my project. Her professional guidance, constructive criticism and constant encouragement inspired me to conduct the research. She encouraged me to participate in academic forums although at first I was very nervous because of difficulties with working in my second language and with a very different research methodology. I sincerely thank my co-supervisor Professor Mark McLelland for proposing ideas for the thesis structure, for his thorough comments on my writing, and for practical suggestions and constant support. I am indebted to the sponsor Program 165 (Vietnam) which has enabled me to study overseas. Many thanks go to the staff of the University of Wollongong, the Faculty of Law, Humanities and the Arts, and University of Wollongong Library for kind support in many aspects of finance, academic support and technical support during my study. My gratitude goes to the Supreme Court’s leaders and staff, especially Professor Tran Van Do, Mr Dinh Van Que, Ms Bui Thi Dung, Mr Hoang Van Hong, Mr Pham Quoc Hung, Ms Bui Thi Minh, Mr Tran Van Thu, Mr Chu Thanh Quang, Mr Thai Ba Diep, Ms Nguyen Thi Bich Loan, Mr Quoc Khanh, Ms Uyen Bui, Ms Ngoc Pham, Ms Loc Phung, Mr Thuong Nguyen, Mr Hoang Hung, Ms Hai Nguyen and many other colleagues. They have given me invaluable support in many aspects from academic advice to data collection and encouragement which all contributed to the completion of my doctoral study. I would like to express special thanks to my former teachers and my friends at Hanoi University of Law, in particular Professor Duong Tuyet Mien, Doctor Cao Thi Oanh, Ms Tran Thanh Van, Ms Hong Thu, and also to my friends working at the Supreme Procuracy, Ministry of Public Security, Ministry of Justice, Judicial Academy, and National Assembly Office, particularly Mr Dung, Mr Duong, Ms Thuy Nga, Ms Ngoc Van, Ms Giang Coi and Mr Thanh Nguyen. Their constant willingness to help in various ways has encouraged me to reach the destination of the long journey. I truly appreciate Kylie, my friend and Aussie sister, and the Jeffress family for their love and help during the time I have lived in Australia, particular when I was sick or homesick for my family. I am so happy to be the Jeffress family’s daughter. Many thanks also go to my fellow students at the University and friends in Australia for their friendship, particularly, Kel Magrath, Josip Matesic, Bela Peal, Mark Hilder, Paula Arvela, Kirsty Rawstron, Phan Nhat Thanh, Hanh Nguyen, Hung Nguyen, Ha Thanh, Cuong Le, Hien Nguyen and Dr Neville Williams. I am deeply indebted to my parents, husband, daughter, brothers and sisters for their love, support and sacrifice. My parents, brothers and sisters encouraged me throughout the journey, helping me to overcome many difficulties on the way. I can not express enough my great thanks for my husband’s love, understanding and care for our family, particularly our little girl, to allow me to concentrate on my studies. My little daughter Bong Mai is the greatest inspiration for me to complete my research to the best of my ability. Finally, my thanks go to Ms Elaine Newby for her help in proofreading the thesis and all others who have supported and favoured me in many ways during my journey of doctoral study. LIST OF PUBLICATIONS The following publications contain aspects of the research and were published while the project was being undertaken: Pham, Thi Thanh Nga, ‘Juvenile Offenders in Vietnam and the Right to Defence’ Youth Justice (in press), onlinefirst service: <http://yjj.sagepub.com/cgi/reprint/1473225415587737v1.pdf?ijkey=11SDxIarddO7vfP&keytype=finite> Pham, Thi Thanh Nga, ‘Developments in the Right to Defence for Juvenile Offenders since Vietnam’s Ratification of the Convention on the Rights of the Child (2014) 19(3) East Asian Law Review 43 <http://scholarship.law.upenn.edu/ealr/vol9/iss3/2/> Pham, Thi Thanh Nga, ‘Thuc Thi Cong Uoc Quyen Tre Em o Viet Nam: Tuoi Chiu Trach Nhiem Hinh Su va Che Tai doi voi Nguoi Chua Thanh Nien Pham Toi’ [The Implementation of the Convention on the Rights of the Child: The Age of Criminal Responsibility and Penalties Applicable to Juvenile Offenders] (2014) 18 Nghien Cuu Lap Phap [Journal of Legislative Studies] 14 <http://www.nclp.org.vn/nha_nuoc_va_phap_luat> Pham, Thi Thanh Nga, ‘The Establishment of Juvenile Courts and the Fulfilment of Vietnam’s Obligations under the Convention on the Rights of the Child’ (2013) 14(3) Australian Journal of Asian Law <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2297142> Pham, Thi Thanh Nga, ‘Du Doan nhung Hieu Ung cua viec Thanh lap Toa An Nguoi Chua Thanh Nien o Viet Nam voi viec Thuc Hien Trach Nhiem Phap Ly Quoc Gia theo Cong Uoc Quoc Te ve Quyen Tre Em’ [Predicting the Effects of the Establishment of Juvenile Courts in Vietnam on the Implementation of the National Liability under the International Convention on the Rights of the Child] 2012(20–21) The People’s Court Journal 38, 36 Pham, Thi Thanh Nga, ‘Xem Xet Moi Tuong Quan giua Thanh Lap Toa An Gia Dinh va Nguoi Chua Thanh Nien o Viet Nam va viec Thuc Hien Trach Nhiem Phap Ly Quoc Gia theo Cong Uoc Quye Tre Em’ [Considering the Establishment of the Family and Children’s Court and the Implementation of Vietnam’s Obligation as a Signatory to the Convention on the Rights of the Child’] in Tai Lieu Toa Dam: Tham Van Chinh Sach Thanh Lap Toa An Gia Dinh va Nguoi Chua Thanh Nien o Viet Nam [Proceedings of the Supreme Court of Vietnam & UNICEF Vietnam’s Advocate Workshop on the Establishment of Family and Juvenile Court in Vietnam], Lao Cai, Vietnam, 13–16 May 2012. TABLE OF CONTENTS Declaration ……........ ................................................................................................... i Abstract ……................................................................................................................ii Acknowledgements ..................................................................................................... iii List of Publications
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