Vietnam - annual report 2019

Conference on improving the protection of children‘s rights in Hanoi: Presentation by Lukas Pieplow (at the lectern), specialist lawyer for criminal law at Esche & Partner, Cologne
Conference on improving the protection of children‘s rights in Hanoi: Presentation by Lukas Pieplow (at the lectern), specialist lawyer for criminal law at Esche & Partner, Cologne

Strategic Framework

Legal Policy Starting Point

The political framework remains shaped by the Communist Party‘s claim to sole power. At the same time, the creation of a market economy with a ‘socialist‘ character has led to years of sustained economic growth, so that Vietnam has now developed into a middle-income state and is one of the most dynamic economies in Southeast Asia. In this context, significant improvements in economic and social rights are noticeable, although they have been accompanied by severe restrictions on freedom of expression, press, assembly and association.

Meanwhile, the modernisation of state structures, as well as the reform of the legal system and the judiciary, are continuing. Legislative activity is moving forward briskly, and there are numerous projects to implement international contracts and a large number of measures to strengthen personnel and institutional capacities. In 2020, Vietnam will take over the ASEAN Chairmanship and will hold a seat on the UN Security Council. As a result, it is reasonable to expect strong national reform efforts in view of the international attention these positions will attract.

Overall Concept

The EU and Vietnam maintain strong ties, and the relationship between Vietnam and Germany is particularly close. IRZ has been active in Vietnam since 2010, implementing projects within the German-Vietnamese Rule of Law Dialogue, which was established in 2008 by the Federal Ministry of Justice and Consumer Protection in cooperation with the Vietnamese Ministry of Justice. A new three-year work programme was signed in September 2019, which places an even stronger focus on issues relating to human rights and the rule of law.

IRZ engages in broad-based cooperation with the Ministry of Justice, the Judicial Academy, the Vietnam Bar, the Supreme People‘s Court, the Supreme People‘s Procuracy, the Vietnamese Institute for Human Rights, the Hanoi Law University and various other institutions.

In geographic terms, collaboration is concentrated on the two urban centres of Hanoi and Ho Chi Minh City, but events are also increasingly being planned in other provinces in order to spread the target group more widely.

Overall, basic and further legal training play a key role in the cooperation. This is because the Vietnamese (vocational) education and training system does not meet the increasing economic and social requirements in quantitative and qualitative terms, especially in the minds of the young and rapidly growing population. In particular, there is a substantial lack of practice-oriented courses, as school, vocational and university education are very theoretical. Therefore, the international exchange of experience with legal practitioners from various fields is often highly appreciated.

IRZ focuses its activities on the implementation of human rights guarantees, including the promotion of basic judicial rights in criminal procedure law. Strengthening the rights of defence lawyers under the new Code of Criminal Procedure and the protection of children‘s rights in the criminal justice system are the priorities.

IRZ‘s events are aimed in particular at the advocacy and the judiciary, as both professional groups have a great need for counselling in regard to the practical implementation of the new requirements and the performance of their respective roles in the proceedings.

Focus of Activity in 2019

Constitutional Law/Human Rights and their Enforceability

  • Two comparative law conferences in Ho Chi Minh City and Hanoi, with funding from the Federal Foreign Office and the ifa (Institute for Foreign Relations), on improved protection of children‘s rights under the UN Convention on the Rights of the Child and on the establishment of juvenile jurisdiction with the Vietnamese Institute for Human Rights
  • Conference transcript (print run: 500) of the conferences for the relevant actors and students

Criminal Law and Penitentiary Law

  • Two workshops in Hanoi and Nha Trang with the Vietnam Bar on the practical application of defence lawyers‘ rights under the new Code of Criminal Procedure and on hearing and questioning techniques
  • Study trip to Berlin for representatives of the Vietnam Bar on practical questions of criminal defence and on the subject of specialist lawyers
  • Guideline for defence lawyers on the application of the new Code of Criminal Procedure, with a priority on preparation for the main hearing, as well as hearing and questioning techniques
  • Online workshop on the principle tenets of German juvenile criminal law as part of a monthly newsletter from the Supreme People‘s Court to all courts throughout the country, available as a video download

Basic and Further Training

  • Two workshops with the Supreme People‘s Court in Da Lat and Sa Pa on judicial methodology and on customary law in jurisdiction, with a priority on civil law
  • Two workshops for lawyers on questions of legal representation for minor age offenders and victims and on the representation of victims of domestic violence with the Judicial Academy in Hanoi

Outlook

In 2020, IRZ will continue its cooperation with its established partners by deepening this year‘s focus of activity on (juvenile) criminal procedure law with the aim of further strengthening basic judicial rights. Basic and further legal training will also remain an elementary part of its activities.

Vietnam - annual report 2018

Comparative law conference on constitutional law implications for criminal law and criminal procedure law in cooperation with the Vietnamese Institute for Human Rights: Prof. Tuong Duy Kien (2nd from the right), Director of the Institute; Prof. Georg Güntge (to the left), Senior Public Prosecutor at the General Prosecutor´s Office in Schleswig-Holstein; Dr Matthias Hartwig (on the right), Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law
Comparative law conference on constitutional law implications for criminal law and criminal procedure law in cooperation with the Vietnamese Institute for Human Rights: Prof. Tuong Duy Kien (2nd from the right), Director of the Institute; Prof. Georg Güntge (to the left), Senior Public Prosecutor at the General Prosecutor´s Office in Schleswig-Holstein; Dr Matthias Hartwig (on the right), Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law

Strategic Framework

Legal Policy Starting Point

The political framework remained largely unchanged in 2018 as well – Vietnam is still under stable single-party rule, in which the Communist Party exercises its claim to leadership over the state and civil society. The Constitution introduced in 2014 further solidifies this political situation. In contrast, Vietnam has vowed to establish a market economy based on “socialist values“ and has recorded economic growth for years. The country is among the most vibrant national economies in South-East Asia and is now a “middle income“ state. At the same time, the population is growing and becoming increasingly young; the health sector has improved significantly, and there has been considerable progress in the education sector as well. Modernisation of state structures, the legal system and the judiciary are also continuing. Legislative activity is moving forward briskly, and there are numerous projects to implement international commitments. A large number of measures to strengthen institutional capacities are being implemented as well.

Overall Concept

The IRZ has been active in Vietnam since 2010, implementing projects within the framework of the German-Vietnamese Dialogue on the Rule of Law, which was established in 2008 by the Federal Ministry of Justice and Consumer Protection in cooperation with the Vietnamese Ministry of Justice. This has resulted in a broad range of cooperation, among others with the Ministry of Justice, the Judicial Academy, the Supreme People‘s Court, the Supreme People‘s Procuracy of Vietnam, the Bar Association, the Human Rights Institute, the Judicial Academy and with various other institutions.

The IRZ focuses its activities on supporting the implementation of human rights guarantees, especially in the areas of criminal law procedures and new provisions under civil law. In this regard, a wide range of law practitioners have a significant training need due to the first complete amendment of the Code of Criminal Procedure in 30 years, as well as the reform of the Criminal Code. Participants from the worlds of academia and practice attended two international conferences with the Human Rights Institute, where they joined German colleagues to discuss the changes introduced to promote consistent adherence to human rights in criminal law and criminal procedure law from a variety of perspectives. In this regard, a significant focus was placed on the newly introduced provisions on the presumption of innocence, the filming of interviews and the separation of powers between courts, the Public Prosecutor‘s Office, the police and the accused. Crucial aspects for criminal defence lawyers include the laws on evidence (admissibility, presentation, assessment etc.) and the assertion of their rights in criminal procedure law. This prompted the IRZ to organise a separate workshop on these aspects.

During the reporting year, the IRZ was pleased to continue its legal counselling on the legally enshrined protection of transgender persons, which commenced in 2017. Initially earmarked for 2018, ratification of the new Transgender Law was postponed to 2020. Although there was significant progress in the latest draft legislation compared to last year – including the incorporation of proposals put forward by the IRZ – significant room for improvement remained in many other areas nevertheless. For this purpose, the IRZ organised a workshop with the Center for Consulting on Legal and Policy on Health and HIV/AIDS, as well as a variety of government and civil society representatives. This exchange of opinions made clear that despite the variety of legislative approaches, the stakeholders are, with a view to the rights of the individual and equality before the law, engaged in similar efforts to ensure legal recognition of gender identity. The attending members of the editorial team expressed the intention to again consider the proposed amendments discussed at the workshop, and it is indeed remarkable that extremely progressive draft legislation is about to be included in the legislative process in a country of Confucian traditions.

Moreover, judicial basic and further training were another important priority, leading to the organisation of two seminars for judges. The focus here was placed on the application of unwritten law throughout civil law, which prompted discussions on the distinction between codified law and its interpretation, as well as the identification of common law, its collision with written law and the detection of legal loopholes.

Events were organised in a variety of regions outside of Hanoi as a means of including participants from these regions on a regular basis.

Foci of Activity in 2018

Constitutional Law / Human Rights and their Enforcement

  • Comparative law conference on constitutional law implications for criminal law and criminal procedure law in cooperation with the Vietnamese Institute for Human Rights; supported by the Foreign Office (AA) in Hanoi and Da Nang

Criminal Law and Penitentiary Law

  • Workshop on the law of evidence and the rights of defence lawyers with the Vietnamese Bar in Hai Phong

Civil Law

  • Workshop on continuing counselling for the Gender Reassignment Act (strengthening the rights of transgender persons) with the Center for Consulting on Legal and Policy on Health and HIV/AIDS in Hanoi

Basic and Further Training

  • Workshop on judicial methodology in case-law (focusing on civil law) with the Supreme People‘s Court in Hanoi and Ho Chi Minh City
  • Technical translation of the Criminal Code and criminal procedure law from Vietnamese into German

Outlook

German-Vietnamese Dialogue on the rule of law is expected to continue in 2019. The IRZ will pursue cooperation with its partners by offering a larger number of measures concerning the application of criminal law provisions in a variety of fields, e.g. juvenile criminal law. Basic and further training will remain as a significant part of its activities. In this regard, judges and lawyers are the main target group for legal counselling by the IRZ.

Vietnam - annual report 2017

Participants of the workshop “Special investigation methods according to the amended criminal procedure law for the Judicial Academy” in Hanoi: Prof. Dr. Nguyen Thai Phuc, former Director Judicial Academy (7 th from left, front); Lawyer Otmar Kury, President of Hamburg Bar (2 nd row centre); Ms Van, Director of Studies at Judicial Academy (to the left)
Participants of the workshop “Special investigation methods according to the amended criminal procedure law for the Judicial Academy” in Hanoi: Prof. Dr. Nguyen Thai Phuc, former Director Judicial Academy (7 th from left, front); Lawyer Otmar Kury, President of Hamburg Bar (2 nd row centre); Ms Van, Director of Studies at Judicial Academy (to the left)

Legal Policy Situation

Since 2010, the IRZ has implemented projects within the framework of the German-Vietnamese rule of law dialogue , which was established in 2008 between the Federal Ministry of Justice and Consumer Protection and the Vietnamese Ministry of Justice. Through a better understanding of Vietnamese traditions and culture, the aim of the rule-of-law initiative of the Federal Ministry of Justice and Consumer Protection is to contribute jointly to the enforcement of the rule of law both in thought and action, including the effective protection of human rights. Most recently a threeyear programme was prepared in April 2015 with a term until April 2018.

Since the new Constitution came into force on 1 January 2014, Vietnam has initiated reform efforts to implement human rights guarantees. Against this background, the IRZ has conducted measures to promote a dialogue on the rule of law and independent judiciary as essential elements of the protection of human rights and fundamental rights as part of its current intensive cooperation with partner institutions. The amendments to the Vietnamese Code of Criminal Procedure and the Criminal Code, which were developed in 2015 and are implemented with effect of 1 January 2018, confirm the desire towards enforcing fundamental rights more rigorously.

Overall Concept

One focus of the IRZ continues to lie on strengthening fundamental and human rights in Vietnam. In the year under review, the IRZ once again sustained its cooperation with the Vietnamese Institute for Human Rights (VIHR), which has been in place since 2011 and is funded by the Federal Foreign Office. The implementation of constitutional requirements in criminal law and criminal procedure law were key areas here. A study trip provided participants with a comprehensive insight into German practice.

Further, a visit to the European Court of Human Rights in Strasbourg was organised to introduce the central institution for the enforcement of the European Convention on Human Rights. In addition, a three-day event was organised in Can Tho with German experts, including lawyers from practice and academia and state institutions from Vietnam in attendance. Here, the German experience in implementing rule-of-law and democratic principles in a criminal justice system that prioritises human rights and fundamental freedoms took centre stage.

The Bar Association is a long-standing partner with whom cooperation has been intensified recently. Institutional self-administration, which was addressed in the projects of the year under review, continues to be of interest. Furthermore, the provisions of the new Vietnamese Code of Criminal Procedure were a focal point. The reason for this is that the amended procedural law spells out the rights of criminal defence in greater detail, more specific and extensive than before. It should be mentioned here that the presumption of innocence and the requirements for a court-appointed defence were stipulated for the first time. As violations by prosecution authorities or the courts did not have any consequences within the scope of the old Code of Criminal Procedure, exercising the rights granted by the new provisions is even more important. However, it also poses an extraordinary challenge.

A workshop with the Judicial Academy was also devoted to the reformed Code of Criminal Procedure. There is a special need in this area at the practice-oriented central training agency for young members of the judiciary, the Public Prosecutor’s Office, the Bar, the notaries’ office and other legal professions. The event addressed special investigation methods in particular and saw comparative-law discussions on the new regulations in relation to German experience.

Further criminal law activities were carried out together with the Ministry of Public Security in Hanoi. Topics discussed included the obligation to record evidence on video, victims’ law and witness protection introduced by the new Criminal Procedure Code. The participants were members of the departments responsible for supervising several police investigating authorities.

Juvenile jurisdiction was the subject of a seminar with the Supreme People’s Court. This particular judiciary is only taking its first steps in Vietnam; there is only one juvenile court in Ho Chi Minh City. The efforts to expand, including specific further training for judges, have been intensified recently and were discussed vigorously with German judge colleagues.

In addition, the IRZ provided support for a working visit to Berlin, during which the delegation, led by the Deputy President of the Court, looked into issues relating to court organisation.

Regarding civil and family law, the IRZ was able to support the nongovernmental organisation “Center for Consulting on Legal and Policy on Health” for the first time ever this year with a workshop on providing advice on transgender legislation. This was preceded by new provisions of the Civil Code that took effect at the beginning of 2017 that provide for greater protection of fundamental rights by including a separate law for transgender persons.

Foci of Activity 2017

Constitutional Law/Human Rights and their Enforcement

  • Comparative law conference on constitutional law implications for criminal law and criminal procedural law in Can Tho; supported by the Foreign Office
  • Study trip by a delegation of the Vietnamese Institute for Human Rights (VIHR) to Frankfurt am Main and Strasbourg/France; supported by the Foreign Office

Criminal Law and Penitentiary Law

  • Workshop on special investigation methods according to the amended criminal procedure law at the Judicial Academy in Hanoi
  • Workshop with the Vietnamese Bar Association on selected aspects of the amended Code of Criminal Procedure (comparison with German criminal law) in Hanoi and Can Tho
  • Workshop on regulations on victim protection within criminal procedures and the use of video technology in criminal procedures, with special emphasis on the preservation of evidence and victim protection with the Ministry of Public Security in Hanoi
  • Workshop on improving the effectiveness and efficiency of family and juvenile courts with the Supreme People’s Court in Hanoi

Civil and Commercial Law

  • Workshop on providing advice on drafting transgender legislation with the Vietnamese Centre on Legal and Policy on Health in Hanoi

Administration of Justice

  • Study trip to Berlin with the Vietnamese Bar Association on selected aspects of the law of the legal professions (specialised lawyer model, organisation of law firms, etc.)
  • Cooperation with the Vietnamese Bar Association and participation in the 3 rd International Lawyers Forum with Vietnamese Bar representatives in Berlin
  • Study trip to Berlin with the Supreme People’s Court on court organisation, judges’ salaries and appointment of judges to Berlin

Basic and Further Training

  • Participation of two Vietnamese students in the IRZ’s “summer school German Law” in Bonn
  • Specialist translation of the Criminal Code and Criminal Procedure Code from Vietnamese into German.

Outlook

The is striving to continue its activities in the areas of law that have been addressed thus far, including criminal law, criminal procedure law and court organisation with the respective cooperation partners. With the scheduled commencement of the amended substantive and procedural criminal law, there will still be a great need for advice in the application of the law, especially regarding systematic processing. For this purpose, the IRZ relies on proven formats with the project partners to take a differentiated approach in enlarging upon the respective perspectives of the different legal professions.