National Assembly Delegate Le Thanh Hoan (National Assembly Delegation of Thanh Hoa Province) gives comments on the draft Law on Juvenile Justice

On the morning of October 23, at the National Assembly House, continuing the 8th Session Program, under the chairmanship of National Assembly Chairman Tran Thanh Man, the National Assembly held a plenary discussion in the hall on the draft Law on Juvenile Justice.

Participating in giving comments, National Assembly Deputy Le Thanh Hoan, full-time member of the National Assembly's Law Committee (Thanh Hoa National Assembly Delegation) agreed with many contents of the draft Law that the National Assembly Standing Committee directed to absorb and revise.

Commenting on the authority to apply diversion measures (Article 53), the delegate said that if the authority to apply diversion measures is assigned to the Investigation Agency or the Procuracy, it is not really consistent with the principles of the Constitution, especially in the case of minors who have been charged. Because according to Clause 2, Article 31 of the Constitution, the accused must be tried by the Court promptly within the time limit prescribed by law, fairly and publicly.

According to the draft Law, minors who are suspects or defendants in one of the cases in Article 38, if not in the case of exemption from criminal liability according to the provisions of the Penal Code, can be subject to diversion measures, which is completely different from the current criminal policy.

The 2015 Penal Code (Articles 29, 91, 92) applicable to persons under 18 years of age who commit crimes stipulates that if they have many mitigating circumstances and voluntarily remedy most of the consequences, the Investigation Agency, the Procuracy or the Court shall decide to exempt them from criminal liability and apply measures of reprimand, community reconciliation or educational measures at the commune, ward or town level, provided that the person under 18 years of age who commits a crime or their legal representative agrees to the application of one of these measures. This policy of the 2015 Penal Code is consistent with Article 31 of the 2013 Constitution.

In the world, countries have different regulations on the competent authority to decide on diversion measures depending on each national legal system. In some countries, the police can decide on diversion measures, in others, this authority belongs to the prosecutor and the court, and in some countries, this authority is only given to the court on the basis of considering the context of the principle of presumption of innocence stipulated in the country's Constitution or not.

Thus, in order to implement the 1985 Beijing Rules, which stipulates that, whenever appropriate, consideration should be given to the handling of juvenile offenders without formal trial, it is necessary to inherit the current criminal policy and supplement Article 29 of the Criminal Code on the grounds for exemption from criminal liability as a premise for applying the measure of diversion. Because international treaties do not have a higher effect than the Constitution according to the provisions of the 2016 Law on International Treaties. In cases where exemption from criminal liability is not provided for in order to be able to handle diversion, the authority to handle diversion is only assigned to a single agency, which is the Court, and in cases where there is no agreement on compensation for damages, it must be decided by the Court.

Regarding the conditions for applying the redirection measure, according to delegate Le Thanh Hoan, to apply the redirection measure in Article 40 of the draft Law, there are conditions: the minor must admit that he/she has committed a crime and agree in writing to the redirection measure.

Although juveniles may rely on advice from their parents, guardians, or legal representatives, the ultimate decision to plead guilty (or not guilty) rests with the juvenile himself or herself. This is a concern for many scholars, as juveniles are considered to lack sufficient autonomy to decide whether to smoke, drink alcohol, or decide who to vote for in an election simply because the law does not allow them to do so; while they are pressured into deciding to plead guilty, when they do not have enough awareness of what a criminal act is. This is consistent with the approach that juveniles do not have full civil capacity. Therefore, a process and procedure need to be added to ensure that decisions to plead guilty are made voluntarily by juveniles, without being coerced.

In addition, the application of the measure of sending to a reformatory school also requires the consent of the juvenile offender, which is unreasonable. It is recommended to remove this provision. At the same time, it is necessary to clarify whether changing the handling measure of diversion under Article 85 requires the consent of the juvenile or not? Because if the condition in Article 40 is applied, the agencies will not be able to change the handling measure of diversion if the juvenile does not agree.

Regarding the change of the diversion measure (Article 82), a person who is subject to one of the community diversion measures may be changed to another community diversion measure or educational measure at a reformatory school if it is considered that the community diversion measure does not achieve the purpose of education and rehabilitation when they intentionally violate their obligations. However, according to Article 36, the diversion measure shall not be applied if at the time of consideration the offender is 18 years of age or older.

Therefore, the delegate proposed to review and reconsider the content of this change in the redirection measure, because the new redirection measure outside the community cannot be applied, nor can the measure of sending the person to a reform school be applied if the person is 18 years of age or older.

In this case, it is necessary to add a provision that if a minor violates the obligations of the diversion measure when he or she is 18 years of age or older, the case must be restored and formal proceedings must be applied according to the provisions of the Criminal Procedure Code. This is also a provision in Article 20 of the United Nations Model Law on Juvenile Justice 2013, which is: In cases where a child violates the conditions attached to the diversion measure, the competent authority may decide to continue formal judicial proceedings against the child, taking into account the diversion measure that the child has performed when sentencing. The admission of responsibility for the alleged crime for the purpose of applying the diversion measure shall not be used against the child in court.

Quoc Huong

Source: https://baothanhhoa.vn/dbqh-le-thanh-hoan-doan-dbqh-tinh-thanh-hoa-gop-y-vao-du-thao-luat-tu-phap-nguoi-chua-thanh-nien-228399.htm