Home    Practice    Roles of procedural agencies in dealing with domestic violence in Vietnam today
Friday, 27 September 2019 09:44
23 Lượt xem

Roles of procedural agencies in dealing with domestic violence in Vietnam today

(LLCT) - According to international and Vietnamese law, domestic violence is the serious violation of the basic human rights and freedom of women. In Vietnam, the legal framework for preventing and combating domestic violence has been built. However, the effectiveness of implementing these rules still encounters challenges which are even caused by the crimical judicial system. This leads to the situation that complaints about domestic violence encounter difficulties on seeking support. The article further clarifies the roles of the procedural agencies in taking responsibility for dealing with the domestic violence acts and raises some recommendations to improve the apparatus of agencies in charge of protecting Vietnamese domestic violence victims.

Keyword: procedural agencies; domestic violence.

1. Necessity to improve the roles of procedural agencies in dealing with domestic violence

The procedural agencies have important duties in dealing with the domestic violence cases to protect and support victims when they are in need of help from the law enforcement agencies. The reasons for this request of duties are as follows:

Firstly, Vietnam has made significant progresses in gender equality awareness, especially domestic violence issues over the past decades. Preventing and combating domestic violence is no longer considered a private issue, but that of the whole society. Moreover, Vietnam’s law system has clear-cut regulations about the roles and responsibilities of State agencies, including law enforcement agencies. After approval of the international Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) in 1982, the legal framework on protecting women in general and domestic violence victims in particular has been gradually formed and constantly improved. The Vietnam Constitution 2013, Law on Gender Equality 2006, Law on Preventing and Combating Domestic Violence 2007, and a lot of regulations in many important codes stipulate the responsibilities of the involved parties, including the State agencies, on preventing and combating domestic violence. The awareness development and law system change have made considerable change in the method to settle domestic violence issues including expansion of preventing and combating activities against domestic violence from popularizing information and preventing violence to making timely and strict handling of the violent acts, especially those with criminal signs. To do this, the positive and active participation of the procedural agencies are required.

Secondly, although Vietnam has achieved certain results in promoting gender equality over the past decades, gender prejudice and cultural and social models remain the barrier to the operating effectiveness of the procedural agencies on solving and dealing with domestic violence. With the view of considering domestic violence a private issue which should only be solved within the family, the domestic violence cases are rarely taken to the procedural agencies, even if a serious consequence is caused. Even if a case is taken to the procedural agencies due to awareness limitation of gender equality, the law enforcing agency may have discriminating or irresponsible attitude towards supporting the domestic violence victims in many cases which leads to high rate of withdrawal from domestic violence cases. The access to justice report in the multi-channel legal system (a typical report on domestic violence towards Vietnamese women) says: “Discrimination when receiving reports and complaints about domestic violence are still rather common ‘because the gender model conception are rather common in the thinking of law enforcers and local government. This also explains why women – victims of domestic violence – are skeptical about the attitude, responsibility, and help of the local cadres”(1).

Thirdly, domestic violence is widespread in Vietnam. The National Study on Domestic Violence on Vietnamese Women carried out by the Government of Vietnam and the United Nations in 2010 shows that one third (34%) of married or divorced women are physically or sexually abused by their husbands(2). Considering all the three major forms of domestic violence including physical, sexual, and emotional abuse, 58% of Vietnamese women say that they are victims of at least one of them.

Depending too much on reconciliation leads to skip of denouncement and complaint applications in the phases of procedural process. Victims of domestic violence mostly look for help from the agencies and unions through non-judicial mechanisms such as reconciliation rather than the judicial agencies even in case of administrative and criminal violations. Therefore, one of the reasons for the inaccessibility to the judicial system of the domestic violence related cases is the unfriendliness of this system towards handling applications and complaints about domestic violence. The situation that the incorrect awareness of domestic violence seriousness of the staff of the investigating, prosecuting, and trying agencies leads to the belief that domestic violence is a private issue which needs to be settled within the family or with neighborhood reconciliation mechanisms is relatively common. As a result, in the most recent recommendation on implementation of the CEDAW Convention of Vietnam, the CEDAW Committee called on the Government of Vietnam to conduct compulsory training for police officers, lawyers, prosecutors, judges on applying criminal rules to domestic violence against girls and women(3).

2. Procedural agencies’ roles to protect domestic violence victims

The responsibility for preventing and combating domestic violence belongs to everyone, every family and the whole political system of which the core is the system of judicial agencies. Preventing and combating domestic violence should be put in the multi-channel legal context including the state judicial, quasi-judicial and non-judicial system(4).

Procedural agencies play a particularly important role in discovering, preventing, and dealing with domestic violence. Pursuant to Article 34 of the 2015 Criminal Procedure Code, procedural agencies consist of Investigation Agency, Procuracy, and Court. These are three agencies responsible for law enforcement to ensure the legal rights and benefits of people. In preventing and combating domestic violence, Article 41 of the Law on Preventing and Combating Domestic Violence specifies: “The Police Agency, Court, Procuracy, in the scope of mission and power, shall work with involved agencies and organizations to protect the legal rights and benefits of domestic violence victims; actively prevent, discover, stop and deal with violation of the law on preventing and combating domestic violence; coordinate, facilitate the state management agencies on preventing and combating domestic violence to record domestic violence prevention and combat”. The roles to prevent and combat domestic violence of the procedural agencies are specifically stipulated for each agency and individual.

Thus, to solve domestic violence cases, the participation of various agencies and procedures in the judicial and non-judicial system are needed. Depending on the specific situation and degree of domestic violence case, the settlement can be done in either the form of reconciliation or administrative fine. When a case gets serious, the victim can look for help of the procedural agencies and apply the criminal procedural measures. Below are the specific roles of the important agencies in the procedural process as the Police Agency, Procuracy, and Court in solving domestic violence cases.

a) Responsibilities of police agency

A police agency plays an essential role in preventing and protecting domestic violence victims. This is the frontline agency of the judicial system responsible for receiving domestic violence cases. The police’s participation in dealing with domestic violence cases is at two levels: local police and investigating police who deal with the cases if there are any criminal signs.

The local police are responsible for preventing, combating criminals and law violations, ensuring security and order, and enforcing law. Normally, they are requested to intervene when the violent act happens or right after that. This agency is in charge of early investigation on any violent acts and carries out investigation in the direction of respecting the rights and demands of involved parties.

The investigating police agency will do their job when the violation is considered having criminal component. Investigating officers are responsible for clarifying the violation through studying the case or its situation and determining the executive measures suitable for the case or situation. After the decision to prosecute is approved, the agency investigates to collect evidences so that the crime and criminal, aggravating and mitigating circumstances for criminal responsibilities, and damage caused by the violation are determined through some investigating measures. The evidences include the materials (of the victim, witness, etc.), documents of investigation operations, assessment conclusion. The officer makes clear the violations through studying the case or its situation and determine the executive measures suitable for the case or situation. For domestic violence cases, the investigation process often encounters a lot of barriers.

According to the law of Vietnam, the police agency is required to deal with reports and denouncement of domestic violence cases. However, in fact, the settlement of these cases is not really effective due to the influence of culture and society. Many law enforcers still consider domestic violence a private issue which causes the victim’s reluctance to denounce domestic violence criminal.

According to “Study on current criminal judicial service quality for domestic violence victims in Vietnam” conducted by UNODC in 2011, the percentage of domestic violence cases reported to the police agency is low; among the violent cases mentioned in the study, only 43% are cared by the investigating agency(5). The main reason of this situation is that victim wants to solve their own issue within the family. They do not want anyone to know their story or assume that the issue is not serious enough to seek police’s help. Particularly, for some sensitive issues such as sexual abuse the denouncement of criminal is more difficult. On the other hand, the study also says that among the cases reported to the law-enforcing agencies, 34% of them are advised to settle within the family or contact with other agencies such as women’s union or reconciling group by the police. This is caused by lack of awareness and understanding of the responsibilities of the law enforcers for dealing with domestic violence of police officers. As a result, local and investigating police have the specific duties on investigating domestic violence constituting criminals as follows:

- Conducting investigation effectively when having the evidence of violence against women.

- Investigating on the basis of respecting the rights and demand of victim rather than causing more burden for the victim.

- Taking action to support and protect the victim

- Taking specific measures to prevent crime, ensure public order, and enforce law(6).

More specifically, in the domestic violence cases, the law enforcers, especially policemen, must not overlook criminal and make sure the necessary protection for the victim.

b) Responsibilities of the People’s Procuracy

The People’s Procuracy is the agency responsible for exercising prosecution and supervision over judicial operations with the main task of ensuring the rightness and transparency in trying the criminal cases as well as law enforcement of the agencies such as the court, criminal inspector, or agencies dealing with complaints and denunciations. The supervising agency works as the bridge between the police agency and the court. When a domestic violence case is passed to the investigating agency and concluded to have criminal sign, it will be moved to the Procuracy to request for prosecution. Prosecution is the next phase to deal with the domestic violence cases. The Procuracy has the right to i) prosecute the accused before the Court with indictment, ii) return the dossier to investigating agency to make additional investigation in case the important evidences are found missing which the Procuracy cannot add or when there is evidence to prosecute the accused for other crime, there is other accomplices, or there is serious violation of prosecution procedure, iii) suspend or temporarily suspend the case when there are enough evidences like the temporarily suspended or suspended cases of investigation(7).

This is the phase of implementing procedural support for the victims and the phase that victims often give up and withdraw the application. Due to the intimate relationship between the culprit and the victim (often husband and wife), the victims, after reporting to the police, tend to refuse to prosecute the culprit for fear that her husband/partner has to take criminal responsibility and get detained. This is a major obstacle to collecting information and performing legal procedures. In addition, some victims may not want further procedural process for being afraid of the prosecutor, loss of time, money, and belief in the fairness of the prosecutor. Subsequently, the Procuracy is an important link in supporting the domestic violence victims to approach justice.

c) Responsibilities of the People’s Court

The court is the last agency of the procedural process with the roles to try criminals and provide the verdict in compliance with the Constitution and law. When there are sufficient evidences for trial, the prosecutor will pass the dossier to the court for trial. The dossier consists of all the documents of the case settlement process, minutes of declaration, evidences, investigation conclusion and indictment. Notably, the nature of domestic violence is not like that of other violence form. The domestic violence victims are normally not cooperative or tend to mitigate the violence in the declaration because the culprit is a family member.

The court plays an important role in protecting domestic violence victims, ensuring procedural order for the accused, and sentencing in accordance with the crime. On criminal trial, the judge needs to ensure respect for the victim and appropriate punishment for the criminal. The Court’s ruling over the domestic violence cases not only means to punish the guilty people but also convey the message to the community that domestic violence is illegle and unforgivable. The court staff, especially the judge, play an important role because the judge is the one to make decision affecting life of the victim, criminal, and even other families members including children. They help improve the people’s access to the court, contact thoroughly between different units of the court, raise effectiveness in the court procedures, and create a safe environment for the victim and witness. Specifically, the judge and court staff can help ensure that the investigation and evidence collection process include the particular demand and view of the domestic violence victims and standard compliance in collecting evidence to gain valuable evidences.

When considering victim’s declaration, the judge should note that there may be a delay period from the time of violence occurrence to the time that the victim decides to report. This delay is not rare in the domestic violence cases. The victim may be afraid of being discriminated, embarrassed, distrusted, or revenged; she may depend on her husband financially or have distrust or insufficient knowledge about the criminal judicial system. Regrettably, the judicial experts believe that this delay means that the victim is unreliable. The court should not have any negative conclusions about victim’s delay of report. Specifically, when the judge evaluate the victim’s trustworthiness, he should not rely on late report to reach a negative conclusion for the victim.

One of the difficulties in domestic violence trial operation is the complexity and sensitiveness of the cases. Judges need to make timely decision to avoid risk for victims. Moreover, delay in trial may make the victim change expectation and withdraw her application. Although there is no specific statistics about the number of withdrawals in the trial period, the rate of the cases brought to the court is not high.

3. Solutions to enhance the roles of judicial agencies in dealing with domestic violence in Vietnam today

To solve the challenges and obstacles today such as family, process of receiving report, denouncement of criminal, prosecution, investigation, prosecution and trial, and improvement of the roles of the procedural agencies in dealing with domestic violence, the following solutions should be carried out:

Firstly, the biggest limitation remains the existing gender prejudices, so the staff of procedural agencies need training through specialized training programs and sessions to improve their competence to consider the sensitive issues related to gender and domestic violence. Unifying the awareness of society, procedural agencies of dealing with domestic violence should be considered the urgent and long term solution.

Secondly, although the legal framework on domestic violation in Vietnam is relatively fully defined regarding the roles and responsibilities of procedural agencies, the awareness and knowledge of law on preventing and combating domestic violence of the law enforcers are still limited. Therefore, they need further legal information and documents to ensure the implementation of these regulations in practice.

Thirdly, from the fact that dealing with the domestic violence cases often depends on reconciliation measures, even when the case is reported to the police agency, the procedural agencies need to enhance their responsibility to ensure all criminal complaints go through the phases of the procedural process.

Fourthly, reforms are required to minimize unnecessary procedures hindering the victim’s access to the judicial agencies. Due to the sensitive characters of sexual abuse, a victim has to report the case several times: the commune police officer takes the early declaration, and then the investigator verifies the declaration. In some cases, when there is conflict in the declaration of the suspect, the victim is called for declaration again or confrontation with the suspected, etc. This cause tiredness and frustration which make the victim give up.

Fifthly, the treatment to the domestic violence victims in the procedural process is not emphasized, especially the private issues affecting the victim’s psychology. To solve this situation, it is necessary to select an experienced and a skilled procedural staff to deal with domestic violence cases. As investigators who take the declaration of the victims are mostly men, it may exert negative effect on the psychology of victims and effectiveness of investigation.

Sixthly, the legal framework on protecting women’s right and victims of domestic violence should be further improved. Nowadays, some forms of sexual abuse such as sexual abuse in marriage are not recognized in the criminal law of Vietnam.

_______________________

Endnotes:

(1) Le Thi Thuc, Le Thuy Hang, Nguyen Thi Thanh Hai, Chu Thi Thuy Hang: Access to justice in the multi-channel legal system: Case study on domestic violence against women in Vietnam, Labour Publishing House, 2015, p.69.

(2) General Statistical Office: National study on domestic violence against women in Vietnam, Study Report, 2010.

(3) CEDAW Committee, final conclusion for Vietnam, 2015.

(4) See more for multi-channel legal system at: Le Thi Thuc, Le Thuy Hang, Nguyen Thi Thanh Hai, Chu Thi Thuy Hang: Access to justice in the multi-channel legal system: Typical study on domestic violence against women in Vietnam, Labour Publisher, 2015.

(5) UNODC: Study on current judicial service quality for domestic violence victims in Vietnam, 2011.

(6) UNODC: Handbook on effective police responses to violence against women, United Nations New York, 2010, https://www.unodc.org.

(7) Criminal Procedure Code 2015.

Contact us

Links