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.

Vietnam - annual report 2016

Human Rights Institute delegation at the Federal Constitutional Court in Karlsruhe

Human Rights Institute delegation at the Federal Constitutional Court in Karlsruhe

Strategic Framework

Legal Policy Starting Point

Since 2010, the IRZ has realised projects in the German-Vietnamese rule of law dialogue, which was established in 2009 between the German Federal Ministry of Justice and the Vietnamese Ministry of Justice. Since 2009, three working programmes for three years each have been passed, most recently a programme in April 2015 with a term until April 2018.

The IRZ works together with different partners in the judicial system on a consistent basis, the legal training facilities and academia. The legal reform processes in Vietnam are extremely dynamic. Reform projects are constantly being started as a result of the entry into force of the new Constitution in 2014 and the intended harmonisation and renewal of the legal and judicial systems.

The development of the rule of law is considered very important and is discussed with great interest with the German partners. The IRZ regularly takes this up and realises corresponding consultation projects with different partners in the light of experience to date.

Overall Concept

The Vietnamese Ministry of Justice remains an important cooperation partner, with which two workshops were carried out in 2016. The Academic Legal Research Institute of the Ministry of Justice invited Vietnamese experts from academia, parliament, the government and civil society to discuss the foundation of the National Institute for Human Rights with German colleagues. The remarkably open debate dealt with the Vietnamese understanding of the state separation of powers and the breaches of human rights tolerated by the state.

The other event involved an exchange of experience on juvenile criminal law, which is not the subject of a separate code in Vietnam but is increasingly being developed in practice and the importance of which is underlined by a first specialised court in Ho Chi Minh City.

The Judicial Academy, which works within the Ministry of Justice’s sphere of business, is a long-term partner of the IRZ. It is the central legal training agency for young lawyers from the groups of judges, the Public Prosecutor’s Office, the Bar, notaries and other legal professions. The IRZ continues to focus on practice-oriented measures for young lawyers, because legal basic training in Vietnam is in need of improvement, in particular in view of preparation for professional life.

In cooperation with the Judicial Academy, a seminar was conducted for the second time on case resolution methods, in which teaching concentrated on dealing with facts and circumstances with the aid of subsuming and relational techniques as well as various methods. High demand has prompted the printing of a corresponding handbook, which can also be used as a reference textbook for young lawyers outside the seminars, not only in Vietnam.

A moot court (simulated court proceedings) was also conducted together with the Judicial Academy, an annual occurrence since 2013. Following the conduct of these moot courts for civil law, criminal law and administrative law, it can be said that the Vietnamese side regularly paid the greatest attention to the law of evidence as regards investigation, evaluation, admission and use in court. In addition, a further focus was on questioning and hearing technique in dealing with witnesses.

One focus of the IRZ is on strengthening human rights in Vietnam. In the reporting year, the IRZ once again continued its cooperation with the Vietnamese Institute for Human Rights (VIHR), which has been in place since 2011. The project conceived for this purpose in order to strengthen protection for human rights and fundamental rights in Vietnam through the rule of law and an independent judiciary by a study visit to Germany and a comparative law conference in Ho Chi Minh City was supported by funds from the Federal Foreign Office.

Visits to different German institutions showed how the principles of the rule of law which were discussed are specifically implemented in practice in Germany and how central institutions for the protection of human rights fulfil their function. The highlight of the stay was a visit to the Federal Constitutional Court, which is of particular interest in Vietnam because such specialised court jurisdiction does not exist there, but is regularly discussed.

The Vietnamese Bar regularly approaches the IRZ with a request to support lawyers in the exercise of their profession. Workshops in Hanoi and in Ho Chi Minh City were organised, as well as a study trip to Berlin. Focus was placed on the conduct of proceedings, the production of evidence in criminal proceedings, and questioning and interrogation technique – most notably with regard to the re-enacted Code of Criminal Procedure, which will enter into force in 2017.

Further activities in the field of criminal law were realised together with the Supreme People’s Prosecution Office through the organisation of a seminar in Ho Chi Minh City on fighting cross-border crime.

Business law topics were the subject of the seminar on commercial arbitration and international investment arbitration with the Ho Chi Minh City Law Office. South Vietnam is the country’s central economic region and attracts numerous foreign investors. Binding regulations are therefore necessary for the many investment projects. Consequently, regulations for the structure and handling of contracts and for procedures for dispute resolution were the subject of the event.

Foci of Activity 2016

Constitutional Law / Human Rights

  • Conference to strengthen the protection of human rights through the rule of law and an independent judiciary in Ho Chi Minh City in cooperation with the Vietnamese Institute for Human Rights (VIMR), supported by the Federal Foreign Office
  • Study trip to Karlsruhe and Berlin by a Vietnamese delegation of the VIMR
  • Workshop in Hanoi to establish a National Institution on the Protection of Human Rights with the Ministry of Justice in Hanoi
  • Lecture at Ho Chi Minh City Law College on the essential elements of German constitutional law

Civil and Commercial Law

  • Seminar on commercial arbitration and international investment arbitration with the Ho Chi Minh City Law Office
  • Lecture on commercial arbitration and international investment arbitration at the Ho Chi Minh City University of Economics

Criminal Law and Penitentiary Law

  • Consultation on the revision of juvenile criminal law together with the Ministry of Justice in Hanoi
  • Seminar in Ho Chi Minh City on the prevention of and fight against cross-border crime together with the Supreme People’s Prosecution Office
  • Study trip to Berlin on the new Code of Criminal Procedure and the conduct of court proceedings/production of evidence together with the Vietnamese Bar
  • Seminars on questioning/interrogation technique and production of proof in criminal proceedings together with the Vietnamese Bar in Hanoi and Ho Chi Minh City
  • Lecture at Hanoi Law College on the essential procedural principles of German criminal proceedings

Basic and Further Training

  • Seminar in Hanoi on techniques of legal case resolution together with the Justice Academy
  • Conduct of a moot court in criminal procedure law with the Justice Academy in Hanoi
  • Seminar on the law of evidence at the Justice Academy in Hanoi, in particular on the production of evidence, a measure following on from the moot court 2015
  • Publication of a conference handbook on the principles of methods to resolve legal cases together with the Judicial Academy

Outlook

The working programme of the rule of law dialogue up until April 2018 contains extensive advisory components in all the focal areas specified above, and the IRZ will also continue to implement projects in the German-Vietnamese rule of law dialogue. In view of the experience to date, practice-oriented and interactive formats are planned as far as possible in order to improve the application of the law in the different legal professions.

Download the entire IRZ annual report in PDF format here: annual report 2016.