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Participants of the International Conference on Comparative Law on the Topic of Protection of Human Rights in Hanoi
For the fourth time in a row the IRZ and the Institute of Human Rights have organised a conference on the protection and enforcement of human rights. Some 50 participants from academic institutions, the Supreme People's Court and the Supreme People’s Prosecutor’s Office as well as from other judicial institutions attended the conference. Human rights as well as fundamental rights have been a particular focus in Vietnam since the reform of the Constitution with effect from 1 January 2014.The new Constitution does not extend these rights, but nevertheless the government has been regularly pointing out that fundamental rights were moved up from chapter 5 to chapter 2 of the Constitution with the intention to strengthen the respect of them.Furthermore, the Ministry of Justice announced that all laws were to be reviewed or adapted to ensure that they are in line with the Constitution.Moreover, reforms to restructure the courts (separation of the court districts from the administrative districts) and to reorganise the public prosecutor’s offices have been initiated.The German presenters were Renate Citron-Piorkowski, judge at the Administrative Court of Berlin; Prof Dr Birgit Daiber, Seoul National University School of Law, and Susanne Bunke from the German Federal Ministry of Justice and Consumer Protection.They gave an overview of how the German Constitution came into being and has developed, of the obligation to respect fundamental rights, of the legal protection in case of violations of the Constitution, of the European Human Rights Charter as well as of similarities and differences of Vietnamese and German concepts of the Constitution.These topics were discussed with enthusiasm and in detail, whereby the different perspectives on fundamental and human rights were revealed.
German delegation meeting Nobel Peace Prize Laureate Aung San Suu Kyi in Naypidaw on 28 March 2014
Since 2011, the Government of the Republic of the Union of Myanmar has been pursuing a reform course and aims at achieving a "disciplined democracy". During the rule of the military junta, which was in power until then, the country sealed itself off, in particular from Western influences, and did not implement any modernisations. Efforts are being made to develop a market economy within the changes of the political system, and the necessary framework conditions are currently being reviewed. Myanmar is the largest country in continental South East Asia and has huge economic potential. These circumstances attract a great deal of international attention and entail an active commitment by foreign players. Legal reforms are of considerable importance in such a period of radical change in order to set up a functioning and enforceable legal system, which is a stability factor and an indispensable prerequisite for economic prosperity.
Against this background, a delegation travelled to Myanmar at the suggestion of the Alliance for German Law and met with different representatives from politics, the judiciary and industry. The German participants were Sabine Leutheusser-Schnarrenberger, former Federal Minister of Justice, Axel Filges, President of the German Federal Bar, its Director Kei-Lin Ting-Winarto, Prof Dr Stephan Wernicke, General Counsel of the Association of German Chambers of Industry and Commerce, and Angela Schmeink of the IRZ. The dialogue partners were the Union Attorney General, the President of the umbrella organisation of the Chambers of Industry and Commerce, international legal advice organisations, German and Myanmar lawyers and the Nobel Peace Prize Laureate and elected Secretary General of the biggest opposition party NLD, Aung San Suu Kyi.
It was stated that there was a great need for legal advice, especially in view of the economic development. Myanmar is attracting many investors who set store by legal certainty and stability. As in many transformation states, the implementation of new laws poses difficulties. At the same time, "law and order" is very much at the forefront of the citizens' legal awareness. Many reforms – such as the new Constitution – are politically controversial and are now being tackled in the light of the Presidential elections to take place in 2015.
Germany has already established close relations with Vietnam, another country in South East Asia, through the German Vietnamese Rule of Law Dialogue, amongst other activities.
This institutionalised cooperation is of particular importance with regard to Vietnam's efforts to achieve the status of an industrialised country by 2020. Hence, the interdependencies between law and economy were discussed during a meeting of the German delegation with high-ranking Vietnamese Government representatives at the residence of the German Ambassador Jutta Frasch in Hanoi on 31 March. Participants of this exchange of opinions were: Dr Ha Hung Cuong, Minister of Justice, Truong Hoa Binh, President of the Supreme People's Court, Ho Thi Kim Thoa, Vice Minister for Trade and Investments, Dinh Van Cuong, Deputy Head of the Economic Committee in Parliament, Dr Vu Tien Loc, Chairman of the Vietnamese Chamber of Commerce, and Truong Trong Nghia, Vice President of the Bar Association. The delegation also visited the Minister of Justice, the Supreme People's Court (including a criminal trial), the Bar Association and Vietnamese lawyers. The Vietnamese dialogue partners explained the complex reform projects in the legal area, such as the court organisation or the review of laws on their conformity with the new Constitution which entered into force in January 2014. A main discussion point was the orientation to rule of law principles. There was agreement that efforts are necessary to increase legal certainty, in order to ensure that investors will find an attractive environment also in this respect. Insofar there will be sufficient potential for the mutually appreciated German-Vietnamese cooperation, both in the legal and the economic areas, also in the future.
The Judicial Academy of Vietnam is the central training institute for the specialised and hands-on training of the legal professions in Vietnam. It has now been cooperating with the IRZ for three years.
A moot court on criminal law was offered from 13 to 15 November in cooperation with the Vietnamese Bar Association. For this purpose, the Judicial Academy had prepared a case based on an actually committed offence. At first, the prospective judges and attorneys at law of the Judicial Academy simulated a trial in accordance with the Vietnamese procedural law involving two regular judges and three lay judges, a public prosecutor, a joint plaintiff, a defence counsel and several witnesses. The participants seemed to be well-prepared, the way in which the presiding judge acted showed that he was quite aware of his authority. It was particularly striking for the German participants that the indictment included investigative results, that the witnesses were interrogated jointly rather than individually and that a reply by the defence counsel and the joint plaintiff followed upon the public prosecutor's application for the sentence. Furthermore, the seating arrangements differed from the usual arrangements in Germany (e.g. the public prosecutor at the same level as the jury above the defence counsel and the joint plaintiff).
The trial was followed by a large number of students in the audience. Thanks to the excellent simultaneous interpretation the German experts, Prof. Dr. Robert Esser (University of Passau), Dr. Jan Orth (judge at the Regional Court of Cologne), the criminal defence lawyer Otmar Kury and Johannes Rochner (research assistant at the University of Passau), were also able to follow the trial.
To illustrate the different procedures, the German experts subsequently re-enacted part of the hearing in which the presiding judge mainly interrogated the accused in detail in a friendly but distant manner. Furthermore, an expert and a witness were heard, and the defence counsel filed motions to take evidence. Also the seating arrangements were changed to meet the German understanding so that the prosecutor and the accused with the defence counsel were seated opposite each other.
The respective procedures were lively commented and discussed during the subsequent discussions. It seems that the differences are to a large extent due to the fact that the existing procedural regulations are not applied in Vietnam, for instance it is not usual for a witness to be interrogated more than once since this incurs further costs and organisational efforts. The judge decides about the hearing of witnesses on a case-to-case basis, and it is common practice to interrogate a witness in the presence of the other witnesses. In Vietnam trials are frequently delayed (tracking down witnesses appears to be too time-consuming) and the evaluation of evidence poses big problems. Furthermore, complaints were raised that many judges are not sufficiently qualified. On the part of the attorneys at law it was pointed out that they were in many cases not able to enforce their rights as defence counsels.
This first experience has shown on which points the Judicial Academy focuses in the practical training and that there is potential for similar projects in the further cooperation.