Circular No. 02/2018/TT-TANDTC dated September 21, 2018 on detailing the trial of criminal cases involving proceeding participants who are under-18 persons under the jurisdiction of the family and juvenile tribunal

CIRCULAR

Detailing the trial of criminal cases involving under-18 persons under the jurisdiction of the family and juvenile tribunal^[1]

Pursuant to the November 24, 2014 Law on Organization of People’s Courts;

Pursuant to the June 22, 2015 Law on Promulgation of Legal Documents;

Pursuant to Clause 7, Article 423 of the November 27, 2015 Criminal Procedure Code;

At the proposal of the Director of the Legal and Science Management Department of the Supreme People’s Court;

The Chief Justice of the Supreme People’s Court promulgates the Circular detailing the trial of criminal cases involving under-18 persons under the jurisdiction of the family and juvenile tribunal.

Article 1.Scope of regulation

1. This Circular prescribes the trial of criminal cases involving defendants who are under 18 years old or criminal cases involving victims who are under 18 years old suffering serious psychological trauma or in need of support in living or learning conditions for they have no healthy family environment like other under-18 persons (below referred to as under-18 proceeding participants) under the jurisdiction of the family and juvenile tribunal.

2. For courts in which the family and juvenile tribunal is not yet organized, the trial of the cases specified in Clause 1 of this Article shall be carried out by specialized judges.

Article 2.Interpretation of terms

1.Under-18 victim suffering from serious psychological traumameans a person who is always in a state of panic, anxiety, mental and physical depression, or mental and behavioral disorder caused by criminal acts.

2.Person in need of support in living or learning conditions for he/she has no healthy family environment like other under-18 personsmeans a person who has special family circumstances (being an orphan or a domestic violence victim, having divorced, addicted or law-breaking parents, etc.) and therefore suffers material and emotional deprivation, has no home, drops out of school or has no schooling.

3.Person experienced in or knowledgeable about the psychology of under-18 personsmeans a person who has worked for a long time in juvenile justice or been engaged in the management, training, protection, care and education of under-18 persons, or been trained in juvenile education or otherwise experienced in or knowledgeable about the psychology of under-18 persons.

For example: a retired judge who has specialized in adjudicating cases involving under-18 proceeding participants; a retired teacher; a child protection officer; a social worker or child collaborator; a person who used to work in an agency or organization related to the prevention and control of juvenile delinquency and education of under-18 persons; a person engaged in child protection work; or a member of the Vietnam Women’s Union, Children Rights Protection Association or War Veterans Association who has experience in managing, educating or helping under-18 offenders and delinquents.

4.Friendly courtroommeans a courtroom for trial of cases and settlement of matters falling under the jurisdiction of the family and juvenile tribunal as prescribed in Article 6 of Circular No. 01/2017/TT-TANDTC of July 28, 2017, of the Chief Justice of the Supreme People’s Court, on courtrooms.

Article 3.Criminal jurisdiction of the family and juvenile tribunal

The family and juvenile tribunal has the jurisdiction to hear the following criminal cases:

1. Criminal cases involving under-18 defendants.

2. Criminal cases involving under-18 victims who suffer serious psychological trauma or need support in living or learning conditions for they have no healthy family environment like other under-18 persons.

Article 4.Criminal cases falling under the jurisdiction of the family and juvenile tribunal to be tried in criminal courtrooms

1. Criminal cases involving defendants who are aged between full 16 years and under 18 years and have committed a very serious crime intentionally or a particularly serious crime.

2. Criminal cases involving defendants who are aged between full 14 years and under 16 years and have committed one of the particularly serious crimes prescribed in Articles 123, 134, 141, 142, 144, 151, 168, 169, 170, 171, 248, 249, 250, 251, 252 and 299 of the Penal Code.

3. Criminal cases involving both defendants who are aged under 18 years and those who are aged full 18 or more years.

4. Criminal cases involving defendants who are aged full 18 or more years and victims who are aged under 18 years and suffer serious psychological trauma or need support in living or learning conditions for they have no healthy family environment like other under-18 persons.

Article 5.Criminal cases falling under the jurisdiction of the family and juvenile tribunal to be tried in friendly courtrooms

1. Criminal cases involving defendants who are aged under 18 years and falling under the jurisdiction of the family and juvenile tribunal other than those specified in Article 4 of this Circular shall be tried in a friendly courtroom.

2. When hearing a case specified in Clause 1 of this Article, the court that has no friendly courtroom shall arrange its courtroom in a friendly way to ensure the best interest of under-18 persons.

Article 6.Appointment of judges and assessors

When settling a criminal case involving an under-18 proceeding participant, the chief justice of the court shall appoint judges and assessors who satisfy the following conditions:

1. Judges must have experience in trying cases involving under-18 persons or have been trained in skills to settle criminal cases involving under-18 proceeding participants or in psychology and educational science for under-18 persons.

2. One of the appointed assessors must be a teacher or Ho Chi Minh Communist Youth Union cadre or a person experienced in or knowledgeable about the psychology of under-18 persons.

Article 7.Trial of criminal cases involving under-18 defendants or victims

1. When trying a criminal case specified in Article 5 of this Circular, a court must satisfy the following requirements:

a/ The courtroom is arranged in a friendly way to ensure the best interest of under-18 persons under Circular No. 01/2017/TT-TANDTC of July 28, 2017, of the Chief Justice of the Supreme People’s Court, on courtrooms;

b/ The judge wears the administrative office attire of people’s court staff (without overcoat);

c/ The organization and protection of the hearing comply with Circular No. 02/2017/TT-TANDTC of July 28, 2017, of the Chief Justice of the Supreme People’s Court, promulgating the Regulation on organization of court hearings;

d/ For a case involving an under-18 sex assault, domestic violence or human trafficking victim, the court shall organize a closed hearing; for other cases where under-18 persons or their representatives so request or it is necessary to protect under-18 persons or their privacy, the court may also organize a closed hearing but shall publicly pronounce its judgment under Article 327 of the Criminal Procedure Code;

dd/ For a case involving an under-18 proceeding participant, no mobile hearing is organized.

2. When trying a criminal case involving under-18 defendants and victims as specified in Article 4 of this Circular, a court shall comply with Points c, d and dd, Clause 1 of this Article.

Article 8.Participation of representatives, schools, agencies and organizations in hearings

1. The following persons must be present at the hearing under decisions of the court:

a/ Representative of the under-18 person;

b/ Representative of the school of the under-18 person;

c/ Representative of the agency or organization where the under-18 person works or is a member.

2. In case a person specified in Clause 1 of this Article is absent from the hearing for the first time or for the second time for aforce majeurereason or an objective obstacle, the court shall postpone the hearing.

In case a person specified in Clause 1 of this Article is absent from the hearing for the second time not for aforce majeurereason or an objective obstacle, the court may also postpone the hearing in order to ensure the best interest of under-18 persons.

Article 9.Participation of defenders of lawful rights and interests of under-18 victims

1. Under-18 victims or their parents, lawful representatives and guardians may ask the following persons to defend lawful rights and interests of under-18 victims:

a/ Lawyers;

b/ Legal aid providers;

c/ People’s advocates;

d/ Other persons.

2. The court shall notify under-18 victims or their parents, lawful representatives and guardians of the right to ask persons specified in Clause 1 of this Article to defend lawful rights and interests of under-18 victims. In case they cannot choose persons to defend lawful rights and interests of under-18 victims but lodge written requests for such persons, the court shall request the bar association to designate a law-practicing organization to appoint its lawyers or a legal aid center to appoint its legal aid providers or lawyers or the Vietnam Fatherland Front or one of its member organizations to appoint people’s advocates to defend lawful rights and interests of under-18 victims.

3. Defenders of lawful rights and interests of under-18 victims have the rights to participate in the proceedings from the stage of initiation of criminal cases against the accused and to be present when proceeding-conducting bodies take statements of persons whom they defend; to appeal against parts of the court’s judgments or rulings related to the interests and obligations of persons whom they defend; and to request replacement of proceeding-conducting persons, expert witnesses, interpreters, translators and property valuators in accordance with the Criminal Procedure Code.

Article 10.Contact between under-18 victims and defendants

1. During a trial, the trial panel shall separate under-18 victims from defendants in the following cases:

a/ Cases involving under-18 sex assault, domestic violence or human trafficking victims;

b/ Cases involving under-10 victims;

c/ Cases in which under-18 persons or their representatives request separation from defendants and the trial panel finds it necessary to ensure the best interest of under-18 persons.

2. During the trial of a criminal case specified in Clause 1 of this Article, victims shall be placed in an isolated room. Information about the hearing’s developments as well as the exercise of their rights and performance of their obligations shall be broadcast via a video live streaming platform or otherwise communicated to ensure that they can follow all developments of the hearing and exercise their rights and perform their obligations.

3. Representatives, guardians, socio-psychological experts or officers and child protection officers must be present in the isolated room to help victims participate in the hearings.

Article 11.Effect

This Circular takes effect on December 1, 2018.-

Chief Justice of the Supreme People’s Court
NGUYEN HOA BINH