Complete the institutions to ensure the rights for female victims of sexual abuse in Viet Nam

11Nghiên cứu trao đổi ● Research-Exchange of opinion COMPLETE THE INSTITUTIONS TO ENSURE THE RIGHTS FOR FEMALE VICTIMS OF SEXUAL ABUSE IN VIET NAM Dang Viet Dat* Date received the article: 4/3/2019 Date received the review results: 4/9/2020 Date published the article: 28/9/2020 Abstract: In Vietnam, the institutions that ensure the right to access to justice for female victims of sexual abuse have undergone many organizational and operational innovations, but in the course of operation, these institutions still reveal restrictions and cause great barriers for female victims of sexual abuse on their way to seek justice. Therefore, the improvement of institutions to ensure the rights to access justice for female victims of sexual abuse in Vietnam needs to be paid more attention in the coming time. Keywords: Right to access to justice; female victims; sexual abuse; institutions, Viet Nam. * Faculty of State and Law, Regional Political Academy IV 1. Introduction The right to access to justice in general and of female victims of sexual abuse (women and girls) in particular requires the right to seek and obtain compensation or remedy through formal and informal mechanisms, consistent with international human rights standards, of which the institution (including judiciary, supervisory and aid agencies, legal advice) is one of the key pillars. In Vietnam, cases of sexual abuse of women and girls have occurred in recent years of a serious nature and tend to increase, however, female victims of sexual abuse have faced many diffi culties and challenges in accessing justice. This fact is caused by the limited legal institutions in ensuring the right to access justice for female victims of sexual abuse in Vietnam today. 2. Institutional limitations ensure the right to justice for female victims of sexual abuse in Vietnam Firstly, in the process of implementing functions and tasks, institutions that ensure the right to access justice for female victims of sexual abuse in Vietnam are ineff ective coordination, causing certain obstacles to the enforcement of justice of these institutions. The coordination between the parties in the investigation, prosecution and adjudication of the case faces many diffi culties, especially for complicated cases. Although there is a coordination mechanism, but sometimes the deliberation Tạp chí Khoa học - Trường Đại học Mở Hà Nội 71 (9/2020) 11-15 12 Nghiên cứu trao đổi ● Research-Exchange of opinion between the three parties creates certain barriers to the handling of the case. The organization and operation of the investigation agencies in our country are still carried out by many units in diff erent ministries and branches performing the task of investigation and proceedings. The agency assisting the Government in unifying the state management of investigation activities has not been clearly defi ned, at the same time, in many places, it is common that many investigative agencies have a small number of sentences, but maintaining an adequate apparatus that leads to a waste of manpower and budget. In addition, in the organization and operation of these agencies, “the task of crime prevention and investigation of proceedings is not clearly separated; the combination of reconnaissance and procedural investigation is not in line with the requirements of the Judicial Reform Strategy”. Moreover, the Supreme Procuracy is in charge of both supervising judicial activities and owns a specialized investigative agency but there is no external inspection mechanism, so it is diffi cult to ensure the objectivity in investigation activities. The quality of investigation by the investigation agency of the Supreme People’s Procuracy is limited with poor results. In addition, the assignment of many other agencies to carry out a number of investigative activities with great powers (prosecute the case, prosecute the accused, investigate and refer to the prosecution) leads to more competent procedural authorities. These restrictions will reduce the quality of investigative agencies in handling cases of sexual abuse of women and girls. Secondly, the organization and operation of the apparatus of the people’s courts and people’s procuracies are not consistent with the requirements of judicial reform and protection of human rights, especially the district people’s courts. Investigating agencies still have many clues that make it diffi cult to inspect and supervise the receipt and resolution of criminal reports, and to investigate cases of sexual abuse of women and girls. Currently, the Court for family and juvenile is newly established at the provincial People’s Court, while the district People’s Court is established because of lack of hard conditions (it must ensure full 50 cases / year to be considered for establishment). Therefore, the handling and trial of sexual abuse cases of women and girls still use common facilities, so it does not meet the requirement of a friendly courtroom for women and girls of sexual abuse cases. Thirdly, the institutions that ensure the right to justice of female victims of sexual abuse in Vietnam still do not promptly respond to practical requirements. In some places, the quality of the judicial system has not been ensured. The reality survey shows that there is still a relatively high proportion of judicial offi cials who have certain prejudices against female victims of sexual abuse. This creates diffi culties in the process of receiving and handling the case. A signifi cant proportion of judicial offi cers said that “sexual abuse is partly due to the victim’s fault” or many people think that “Abused women and girls who lose their virginity can hardly have a happy married life. Therefore, the public disclosure of case related to sexual abuse only makes the victims more hurt”. Having such a prejudice will prevent the authorities from making an eff ort to bring the cases to light and the offi cer himself can advise victims to quickly end the case by negotiation, 13Nghiên cứu trao đổi ● Research-Exchange of opinion especially in situations where traces and evidences are diffi cultly identifi ed. However, if the case is not brought to light and is not tried through formal criminal justice, it is diffi cult for victims to fi nd justice, and they may become victims of more abuse. Many people and also judicial offi cers also said that “offi cers who receive and deal with cases related to sexual abuse often behave in a lack of sympathy with the victims” or “offi cers who receive and handle cases related to sexual abuse often do not sympathize with the psychological trauma that victims of sexual abuse have to endure”. There is still the evasion of push-pull between judicial bodies. In addition, formal judicial institutions still have diffi culty in providing female victim-friendly facilities as private courtrooms with a design that ensures the court model for family and juvenile. Fourth, activities of legal aid consulting agencies in Vietnam show that most people do not know about agencies that provide legal advice to victims of sexual abuse. The practical survey results show that 88.8% of people in the study sample confi rm that they do not know the agency or organization performing the function of counseling and legal aid for victims of sexual abuse; 3.1% of the people confi rmed that there is no agency or organization to provide legal advice and assistance for victims of sexual abuse in their locality and 42.6% of the people answered that there are very few agencies and organizations implementing this function. In addition, 24.1% of the people believe that the cost that the victim has to pay for legal aid advice is quite high. In addition, the people and offi cials do not have a high assessment of the eff ectiveness in the operation of legal aid consulting agencies. With a scale of 5, the average score that people evaluate the eff ectiveness of the legal aid consulting agency is 3 points at the average score, the average score rated by judicial offi cials is 2,5 points. Fifth, inadequate monitoring mechanisms for judicial institutions in implementing their functions to ensure the access to justice for female victims of sexual abuse. Supervisory activities of the National Assembly and People’s Councils at all levels have not been conducted regularly, sometimes in a formal manner, mainly based on reports of the supervised agencies, so the monitoring conclusion close to general; not clearly defi ned responsibilities for individuals, heads of agencies and organizations in implementing policies and laws on the protection of women and girls from sexual abuse. The publicity, transparency and accountability of the agency are not high, making it diffi cult for people to participate in the supervision of the settlement of sexual abuse cases by judicial agencies. 3. Solutions to improve institutions to ensure the right to justice for female victims of sexual abuse in Vietnam In order to overcome the institutional limitations that ensure the right to access justice for female victims of sexual abuse in Vietnam in recent years, it is necessary to implement the following contents: Firstly, to renew the organization, arrangement and operation of people’s courts. In order for the people’s courts to truly become an independent judicial body that is not dominated, distorted, or interfered with by any agency or organization, “organize the court system 14 Nghiên cứu trao đổi ● Research-Exchange of opinion according to the jurisdiction, regardless of administrative units”, so it is necessary to establish a regional court of fi rst instance to replace the district people’s court because this court is organized on a large scale, the number of judgments is higher, especially sexual abuse. In addition, it is necessary to reorganize the court system towards the establishment of specialized courts to ensure that the judges participating in the trial are capable, qualifi ed and have in- depth knowledge of their fi elds, in which, urgently build and complete the model of the family court and juvenile court under the Law on Organization of the People’s Court 2014 and the Court’s Circular No. 01/2016/TT-CA dated January 21, 2016 of Supreme People’s Court. In addition, the Supreme People’s Court should direct specialized units to summarize the trial practice, and guide the uniform application of the law; implement law on juvenile justice. Moreover, “ reducing the number of jurors in the fi rst instance trial panel because the jurors’ qualifi cations and capacity are limited in discussions and decisions on matters of the law application”. Secondly, to renew the organization, arrangement and operation of the People’s Procuracy. Continue to renew and perfect the People’s Procuracy at all levels in the direction: “The People’s Procuracy is organized in accordance with the court’s organizational system”. Besides, the Supreme People’s Procuracy soon develops and issues a Joint Circular on coordination among procedural agencies in the process of receiving denunciations, crime reports, petitions for prosecution, investigate, prosecute and adjudicate child sexual abuse cases. At the same time, the Supreme People’s Procuracy instructs the Procuracy at all levels to synchronously apply solutions to well exercise the exercise of prosecution rights and supervise the settlement of cases of child abuse; closely coordinate with investigation authorities right after denouncing or reporting crimes, proposing prosecution of child abuse cases in order to promptly collect evidence, protect and support children victim, to speed up the settlement of cases and combat crime omission; ensure that the timely decision to prosecute 100% of the cases of child abuse and the prosecution of the accused on the correct crime reaches 100%. Third, to renovate the organization, arrangement and operation of the investigative agency. Criminal case investigation plays a very important role, so it is necessary to “reorganize the investigative agency in the direction of reducing the focal point”. Accordingly, unifying the investigation agency under the jurisdiction of the police (especially for military investigation agency dedicated to military cases), the People’s Procuracy exercising prosecution and prosecution monitoring procedural activities, including investigative activities. Fourthly, to renew the organization, arrangement and operation of the people- elected institutions, the Fatherland Front and mass organizations in supervising the activities of courts, procuracies and investigation agencies in dealing with cases of sexual abuse. In order to ensure that special institutions and formal judicial institutions operate eff ectively and eff ectively, it is necessary to improve the monitoring mechanism, and at the same time to promote supervision of the activities of 15Nghiên cứu trao đổi ● Research-Exchange of opinion this agency in fact. Accordingly, in the coming years, it is necessary to speed up the public disclosure of judgments on electronic information sites, creating conditions for people’s supervision activities; at the same time, to step up the supervision of the National Assembly and People’s Councils at all levels, internal supervision and cross-supervision in the operation of judicial institutions. In addition, it is necessary to improve the quality of judicial supervision of the People’s Councils, to appoint full- time offi cials of the Legal Department with expertise and judicial expertise to improve the quality of supervision on handling cases on sexual abuse. Fifth, to renovate the organization, arrangement and operation of the legal aid and assistance institutions. It is necessary to develop and reorganize the legal aid institutions such as lawyers, assessment agencies, and psychological counseling agencies for victims of sexual abuse. Support is needed to develop and reorganize law-practicing organizations and professional-social organizations of lawyers in provinces and cities. For judicial assessment agencies, it is necessary to consolidate the system of judicial assessment organizations; building a one-stop judicial surveillance model for sexual abuse, such as a one- stop center in Thailand and a one-stop- shop model in Korea, which makes it easy and convenient to easily overcome the psychological trauma of female victims of sexual abuse, especially girls. The State coordinates with the Fatherland Front and mass organizations to develop counseling centers to provide psychological assistance to female victims of sexual abuse, especially child sexual abuse. Accordingly, the Ministry of Labor, Invalids and Social Aff airs should continue to maintain and develop services, switchboards to support and advise women and children who are victims of sexual abuse. To ensure that these services are widely developed and eff ective in counseling and providing psychological assistance to all victims in all regions of the country. Coordinate and promptly process information between the locality and the 111 Call Center in verifying, supporting and intervening in cases of violence and sexual abuse against children and women; implementing procedures of support and intervention for victims who are sexually abused women and girls. Completing an institution to ensure the right to justice of female sexual abuse victims in Viet Nam is the responsibility of the state and society to improve the capacity of female victims to access justice, thereby repelling this problem in society./. References: [1]. Nguyễn Hà, Phạm Dung, Phụ nữ, trẻ em bị xâm hại: Im lặng không làm sự việc qua đi, https://laodong.vn/lao-dong-doi-song/phu- nu-tre-em-bi-xam-hai-im-lang-khong-lam- su-viec-qua-di-611418.ldo, ngày 11/06/2018 [2]. UNDP, Programming for Justice: Access for All A Practitioner’s - Guide to a Human Rights-Based Approach to Access to Justice, (UNDP Regional Centre in Bangkok, 2005), accessed 15 Semptember 2019, p 5 [3]. Trần Thị Thu Hằng (2019), Địa vị pháp lý của Hội thẩm ở Việt Nam hiện nay, Học viện Khoa học xã hội, Hà Nội, tr. 106-107. Author address: Faculty of State and Law, Regional Political Academy IV Email: vietdatdanghv4@gmail.com