Guaranteeing human rights in the execusion of imprisonment penalty in Vietnam

The reality of human rights guarantee in the execution of

imprisonment penalty in Vietnam has shown that the human rights of

prisoners are getting more attention, regulations on the execution of

imprisonment sentences are being strictly and uniformly abided by

agencies and organizations, prisoners' rights and interests are basically

exercised. From 2010 to 2019, management of prisoners was carried

out in accordance with legal regulations, and achieved certain results

in ensuring security and safety for prisons. These results are strict

compliance with the law of individuals, agencies and organizations in

the execution of imprisonment penalty. In addition to such results,

from the perspective of guaranteeing human rights, over the years,

there have been still many limitations and inadequacies in executing

judgments. This situation occurs due to many different reasons:

First, the awareness of rights and human rights guarantee in the

execution of imprisonment penalty still has many limitations.

Second, the legal system of imprisonment penalty execution

remains inadequate.

Third, the facilities have not met the needs of educating and

retraining prisoners.

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the theoretical issues of guaranteeing human rights in the execution of prison sentence. The dissertation's research results contribute to the development of the general theory of guaranteeing human rights in the execution of imprisonment penalty in Vietnam with contents such as the concept of guarantee, content of guarantee, and mechanism of human rights guarantee in the execution of imprisonment penalty. Practically: The dissertation has certain meanings in the execution of imprisonment penalty in practice. The dissertation's research results can be referenced in the process of completing the law on the execution of imprisonment penalty in general, and improving the issue of guaranteeing human rights of prisoners in executing prison sentence in particular so as to meet requirements of crime prevention in accordance with missions set by the Party and State, at the same time, strengthening the people’s confidence towards the legal protection agencies, encouraging society and citizens actively participate in the fight against crimes. The research results of the dissertation can be used as a reference for researching and teaching subjects related to human rights and guaranteeing human rights in the execution of criminal judgment in general and imprisonment penalty in particular. The dissertation also can be seen as reference for staffs to effectively implement human rights guarantee of prisoners in prisons. 7. Structure of the dissertation Besides the introduction and conclusion, references and appendix, the dissertation includes 4 chapters: 6 Chapter 1: Literature review Chapter 2: The theoretical issues on guaranteeing human rights in the execution of imprisonment penalty Chapter 3: The reality of guaranteeing human rights in the execution of imprisonment penalty in Vietnam today Chapter 4: Viewpoints and solutions of guaranteeing human rights in the execution of imprisonment penalty in Vietnam Chapter 1 LITERATURE REVIEW 1.1. Research situation 1.1.1. Domestic research situation Theoretical research works on guaranteeing human rights in the execution of imprisonment penalty: “Human rights” by Prof. Dr. Vo Khanh Vinh (ed.), Social Science Publishing House, 2015. “Human rights in the field of criminal justice” by Assoc. Prof. Dr. Nguyen Ngoc Chi (ed.). Doctoral dissertation in criminal law by Lai Van Trinh, HCMC University of Law, 2011. “The law on the execution of criminal judgments: Theoretical and practical issues” by Prof. Dr. Vo Khanh Vinh & Nguyen Manh Khang (eds.); “Mechanism of guaranteeing and protecting human rights” by Prof. Dr. Vo Khanh Vinh (ed.). “Guaranteeing human rights of prisoners in Vietnam” by Do Thi Phuong, school-level research project, 2018. “Guaranteeing human rights and citizen rights in Vietnam’s administrative law (methodology and research orientation)” by Pham Hong Thai & Nguyen Thi Thu Huong, published in Science Journal of Hanoi National University. “Court in guaranteeing human rights in Vietnam today” by Chu Thi Ngoc, doctoral dissertation in law. Research works on the reality of guaranteeing human rights in the execution of imprisonment penalty in Vietnam: 7 “Implementing the law on human rights of prisoners in executing prison sentence in Vietnam” by Nguyen Duc Phuc, HCM National Graduate Academy of Politics and Administration, Hanoi, 2012. “Guaranteeing human rights in executing imprisonment penalty in Vietnam” by Pham Thi Tuyet Mai, Master thesis, HCMC University of Law, 2009. “Human rights in detention and executing criminal sentences in Hai Phong” by Truong Ngoc Son, Master thesis, Faculty of Law – Hanoi National University, 2014. “The reality of criminal judgment execution and recommendation” by Nguyen Phong Hoa published in the Journal of People’s Court, No. 21/2006; “The reality of the law on the execution of imprisonment penalty and perfecting directions” by Pham Van Loi published in the State and Law Magazine, No. 2/2006. “The reality of the law on the execution of criminal sentences for guaranteeing human rights” by Dr. Nguyen Duc Phuc, The People Police Academy, 2011; “Vocational training for prisoners and guaranteeing jobs for people leaving prison” by Nguyen Van Cu published in Human Rights Magazine, No. 1 + 2/2011. Research works on solutions of guaranteeing human rights in the execution of imprisonment penalty in Vietnam: “Improving state management in criminal judgment execution” by Dr. Vu Trong Hach, Justice Publishing House, Hanoi, 2006. “Protecting personal freedom and security by the criminal law in Vietnam” by Dr. Trinh Tien Viet, Justice Publishing House, 2015. “Implementing the law on human rights of prisoners in executing prison sentence in Vietna” by Nguyen Duc Phuc, HCM National Academy of Politics and Administration, Hanoi, 2012. “The relationship between human rights and the law on criminal judgment execution in Vietnam” by Dr. Do Duc Hong Ha in “Human rights - Multi-disciplinary and interdisciplinary approach to Law”, 2010. “Some recommendation to improve the law of executing criminal 8 sentences to protect human rights of prisoners” by Nguyen Thi Lan published in Science Journal, Hanoi National University, vol. 31, No. 3/2015. 1.1.2. Research situation abroad Theoretical research works on guaranteeing human rights in the execution of imprisonment penalty: “Comments on Criminal procedure code” by Geo L.J. Ann, 2013. “Protecting Prisoners: The Impact of International Human Rights Law on the Treatment of Prisoners in the United Kingdom” by Susan Easton; “International human rights protection for prisoners: Which way South Africa?” by John C. Mubangizi, 2001; “Prisoners’ (Human) rights and prisoners’ litigation in the Netherlands” by Gerard de Jonge; “Toward a Theory of Prisoners’ Rights” by Richard L.Lippke, 2002; “Right in prison: Institutional police, juridical activism, democratic struggles” by Gilles Chantraine, Dan Kaminski. Research works on the reality of guaranteeing human rights in the execution of imprisonment penalty: “Capitalist Punishment: Prison Privatization & Human Rights” by Andrew Coyle, Allison Campbell, Rodney Neufeld - Clarity Press, 2003; “Prisoners' Rights: Principles and Practice” by Susan Easton - Routledge, 2011; “A Compedium of Comparative Prison Legislation” by Penal Reform International, 2008; “Latino/as and U.S. Prisons” by José Luis Morín in Suzanne Oboler (ed.) Behind Bars, Palgrave Macmillan, New York, 2009. “Human Rights and Respect in Prisons: The Prisoners' Perspective” by Bronwyn Naylor, 2014. “A Human Rights Approach to Prison Management” by Andrew Coyle, 2009. 1.1.3. The research contents are clear and inherited by the dissertation Theoretically, previous works have provided a quite comprehensively outlook on the concept of human rights and human rights in criminal judgment execution, and indicated the need to 9 guarantee human rights in the execution of imprisonment penalty. The domestic works have analyzed and clarified some basic rights of prisoners in terms of real law. Regarding the reality of guaranteeing human rights in the execution of imprisonment penalty in Vietnam, previous works have outlined fully the situation of management and the execution of prison sentences in Vietnam before the law on criminal judgment execution 2010 and the law on criminal judgment execution 2010 took effect. Regarding proposals and recommendations, previous works have given some solutions related to specific aspects of guaranteeing human rights in the execution if imprisonment penalty. This is a basis for the author may continue giving general solutions to improve the efficiency of guaranteeing human rights of prisoners in the criminal law in Vietnam today. 1.1.4. The issues need to further examine in this dissertation Theoretically: Although some concepts of “human rights in the execution of imprisonment penalty” and “guaranteeing human rights in the execution of imprisonment penalty” have been mentioned in previous works, they have not been explained specifically and clearly. The dissertation continues to clarify the contents of guaranteeing human rights by analyzing international legal standards on human rights in the execution of imprisonment penalty in Vietnam. Analyzing the human rights guarantee mechanism, the meaning of guaranteeing human rights in the execution of imprisonment penalty. On the reality: In terms of status: analyzing the reality of the provisions of the law on guaranteeing human rights in the execution of imprisonment penalty. Surveying and assessing the reality of implementing the provisions of the law on human rights guarantee in the execution of imprisonment penalties in Vietnam, and pointing out positive results, limitations, obstacles and their causes. 10 Solutions and recommendations: Proposing solutions to improve the law and strengthening human rights guarantee in the execution of imprisonment penalty in accordance with current situation of Vietnam. 1.2. Theoretical basis Research theory: from the perspective of human rights, criminal law and criminal judgment execution, the dissertation bases on the content of human rights theory and theories of penalty and executing penalty. Research questions and hypothesis Research questions: to assess comprehensively and intensively human rights in the execution of imprisonment penalty, the dissertation tries to answer the following questions: (i) Why human rights must be guaranteed in the execution of imprisonment penalty? (ii) What are contents of guaranteeing human rights in the execution of imprisonment penalty? (iii) What is mechanism of guaranteeing human rights in the execution of imprisonment penalty? (iv) How is the reality of guaranteeing human rights in the execution of imprisonment penalty in Vietnam? What are causes of this reality? (v) What can be done to further guarantee human rights in the execution of imprisonment penalty in Vietnam? Research hypothesis: the research hypothesis is the argument that needs to be proved, so the study has the following hypothesis: In Vietnam, there are still many limitations and inadequacies of guaranteeing human rights in the execution of imprisonment penalty in both awareness and practice of legal provisions and law enforcement. This can be resolved by completing the provisions of the judgment execution law on guaranteeing human rights in the execution prison sentence and implement synchronously legal measures to 11 enhance human rights guarantee of prisoners in particular and in criminal justice in general. Chapter 2 THE THEORETICAL ISSUES ON GUARANTEEING HUMAN RIGHTS IN THE EXECUTION OF IMPRISONMENT PENALTY 2.1. The concept of human rights and guaranteeing human rights in the execution of imprisonment penalty 2.1.1. The concept of human rights in the execution of imprisonment penalty “Human rights in the execution of imprisonment penalty are considered as inherent natural needs and interests of prisoners (rights of prisoners) without being limited by criminal sentence that took legal effect, requires the state which is directly prisons must respect, protect and guarantee them during their time in prison”. Human rights in the execution of a prison sentence are at risk of abuse, especially from agencies execute imprisonment penalty. These agencies are primary entities in preventing human rights violations, and are also the most likely entities to violate human rights of prisoners. The implementation of coercive measures to achieve penalty that directly affects the rights and interests of prisoners. Therefore, guaranteeing human rights in the execution of prison sentence is an indispensable activity. 2.1.2. The concept of guaranteeing human rights in the execution of imprisonment penalty Generally, guaranteeing human rights means the state makes political, economic, social, legal and organizational premises and conditions for individuals to implement their rights and interests. Human rights will be only potential rights that cannot be implemented if the mechanism of guaranteeing is not established and implemented in practice. 12 Guaranteeing human rights in general and human rights in criminal judgment execution in particular, is expressed through many aspects such as economic guarantee, socio-political guarantee, and legal guarantee. However, in this dissertation, due to time limitations and to be suitable with her major, the author only analyzes the most important aspect that is legal guarantee for human rights in executing prison sentence. In a broad sense, legal guarantee is to ensure human rights by law. The law is generally compulsory, performed by convincing education, coercive when necessary and to be implemented by state power. If the law does not recognize, human inherent natural rights have not become common will and action goals that are compulsory value for everyone. Therefore, legal guarantee is considered the most effective method with scale across the society. At the same time, legal guarantee is the institution of political and socio-economic guarantees into compulsory standards for all subjects in society. To implement the legal guarantees of human rights in the execution of imprisonment sentences, the State should first issue legal provisions recognizing the basic human rights of prisoners, then building up institutionalize and material resources (housing, equipment, budget, staff) so that human rights can be strictly and effectively implemented in prisons. Requirements for legal guarantees of human rights as follow: First, creating premises and legal conditions to ensure human rights in the execution of imprisonment penalty. Second, creating premises and conditions to enforce legal provisions on human rights guarantee in the execution of imprisonment penalty. The concept of guaranteeing human rights in the execution of imprisonment penalty can be understood as follows: “Guaranteeing human rights in the execution of imprisonment penalty means the State 13 creates the necessary conditions, especially the law and mechanism of law enforcement to protect offenders from violations of their rights, and they may exercise and enjoy their human rights without being restricted by criminal sentences and appropriate to the circumstance and conditions of prisons”. 2.2. Contents of guaranteeing human rights in execution of imprisonment penalty Based on the main documents on human rights of prisoners, the author determines that there are basic rights that prisoners must be respected and guaranteed in the execution of prison sentence: (i) The right to guarantee body, honor and dignity; (ii) The right to guarantee living standard such as eating, clothing, accommodation and medical care; (iii) The right to guarantee physical training, sports, cultural activities, arts, legal education; (iv) The right to work and enjoy the fruits of labor; (v) The right to communicate with relatives and family; (vi) The right to complain and denounce. 2.3. Mechanism of guaranteeing human rights in the execution of imprisonment penalty 2.3.1. Subject’s obligation to guarantee human rights in the execution of imprisonment penalty The Law on Execution of Criminal Judgments stipulates the organizational system, responsibilities and powers of specialized agencies, creating a legal basis for agencies to apply and perform tasks of guaranteeing and protecting human rights of prisoners in the process of supervising and educating prisoners. Guaranteeing human rights in the execution of imprisonment penalty is conducted by the following subjects: - Agencies are in charge of managing and executing imprisonment penalty - Prisons, officers and soldiers are working in the field of managing and educating prisoners 14 - The Procuracy and Court 2.3.2. Object and scope of human rights guarantee in the execution of imprisonment penalty In this study, the dissertation focuses on prisoners who are serving sentences in prisons and isolated from society, studying and working in accordance with the law. Guaranteeing rights and human rights of prisoners in the execution of imprisonment penalty is in prisons, because when they leave detention place, their rights have also changed. 2.3.3. Methods of guaranteeing human rights in the execution of imprisonment penalty Basically, guaranteeing human rights in the execution of imprisonment penalty means legal protection. When mentioning human rights guarantee, it is comprehensively referred to synchronous measures from law building to law implementation and operation of the apparatus, specialized agencies related to the protection and promotion of human rights so as to create favorable conditions so that the human rights of prisoners always be implemented in practice. From analysis mentioned above, human rights guarantee in the execution of imprisonment penalty includes the following basic methods: First, guaranteeing human rights by building and perfecting the system of legal provisions on the execution of imprisonment penalty. Second, guaranteeing human rights by the organizational system and operation of the imprisonment execution agencies. Third, guaranteeing human rights by performing functions and duties of the imprisonment execution officers. Fourth, guaranteeing human rights by monitoring, inspecting and examining human rights guarantee in the execution of imprisonment penalty. Fifth, guaranteeing human rights by dealing with violations of human rights. 15 Sixth, guaranteeing human rights by the physical and technical conditions for detention places. Seventh, guaranteeing human rights by propagating, disseminating and educating the law on human rights for prisoners. Eighth, guaranteeing human rights by granting offenders a special reprieve earlier, reducing the term serving sentences and conditional release from prisons. 2.4. Significance of guaranteeing human rights in the execution of imprisonment penalty 2.4.1. Political significance Guaranteeing human rights in the execution of the imprisonment penalty has an important political significance in undertaking the Party and the State’s policies. 2.4.2. Social significance Guaranteeing human rights has an important significance in changing the society’s perception of judgment executors to assure fairness and equality in the society. Guaranteeing human rights in the execution of imprisonment sentences has great significance in asserting Vietnam's development and civilization to the international community, and its ready to integrate into the international arena. 2.4.3. Legal significance Guaranteeing human rights in the execution of imprisonment penalty has an important role in turning legal elite ideas of humanity into realization. Guaranteeing human rights not only protects human rights of offenders but also guaranteeing the correctness and appropriateness of punishment of offenders. 2.4.4. International significance Guaranteeing well human rights in the execution of prison sentence has a great impact on the international integration process and implement Vietnam’s international commitments and reducing 16 international community's skepticism about human rights violations in prisons in Vietnam. Chapter 3 THE REALITY OF GUARANTEEING HUMAN RIGHTS IN THE EXECUTION OF IMPRISONMENT PEANLTY IN VIETNAM TODAY 3.1. The reality of regulations of the law on guaranteeing human rights in the execution of imprisonment penalty 3.1.1. Regulations of the law on guaranteeing human rights in the execution of imprisonment penalty in Vietnam before issuing the 2019 Law on execution of criminal judgments - From after the August Revolution in 1945 to 1954. - From 1954 to before the 1993 Ordinance on Execution of Prison Sentences took effect. - From the 1993 Ordinance on Execution of Prison Sentences to before the 2010 Law on execution of criminal judgements took effect. - From the 2010 Law on execution of criminal judgements took effect to the promulgation of the 2019 Law on execution of criminal judgments. 3.1.2. Regulations of the existing law on guaranteeing human rights of prisoners in the execution of imprisonment penalty 3.1.2.1. Regulations on human rights of prisoners Recognizing human rights through specific legal provisions is the first basis for such rights to become true and implemented in practice. Vietnam has increasingly shown its efforts to recognize and guarantee human rights by internalizing international legal standards into the national legal system. Regarding specific rights, Vietnamese law also has the regulations to ensure the respect and enforcement of prisoners' rights in practice. These regulations are in legal documents such as the Criminal Law, the Criminal Procedure Law, the Law on Execution of Criminal Judgments and guiding documents. 17 First, the rights to body safety, honor and dignity of prisoners in detention places. Second, the rights to ensure a living standard in executing prison sentences. Third, the right to physical training, sports, cultural, art activities, and legal education. Fourth, the right to work and enjoy the fruits of labor Fifth, the right to access information and contact with relatives and family. Sixth, the right to complain and denounce. 3.1.2.2. Regulations on methods of guaranteeing human rights of prisoners First, the provisions on the organization, functions and duties of criminal judgment execution agencies. Second, regulations on imprisonment penalty execution officers. Third, regulations on inspection and supervision of imprisonment penalty execution activities. Fourth, regulations on handling human rights violations of prisoners while executing imprisonment penalty. Fifth, regulations on granting a special reprieve and reducing imprisonment term and and conditional release of imprisonment. 3.2. The reality of implementing regulations of the law on guaranteeing human rights in the execution of imprisonment penalty Stemming from the requirements on managing prisoners over the years, the competent authorities have promptly directed and taken positive actions, and have strictly enforced regulations of the law on execution of imprisonment penalty, strengthening enforcement of regulations on supervision and education, and preventing human rights violations. 18 3.2.1. The reality of implementing human rights in the execution of imprisonment penalty 3.2.2. The reality of the organizational system and the imprisonment execution officers 3.2.3. The reality of implementing the policy of granting special reprieve, reduction of sentences, and conditional release 3.2.4. The reality of inspecting and supervising human rights guarantee in the execution of imprisonment penalty 3.3. Assessment and comments The reality of human rights guarantee in the execution of imprisonment penalty in Vietnam has shown that the human rights of prisoners are getting more attention, regulations on the execution of imprisonment sentences are being strictly and uniformly abided by agencies and organizations, prisoners' rights and interests are basically exercised. From 2010 to 2019, management of prisoners was carried out in accordance with legal regulations, and achieved certain results in ensuring security and safety for prisons. These results are strict compliance with the law of individuals, agencies and organizations in the execution of imprisonment penalty. In addition to such results, from the perspective of guaranteeing human rights, over the years, there have been still many limitations and inadequacies in executing judgments. This situation occurs due to many different reasons: First, the awareness of rights and human rights guarantee in the execution of imprisonment penalty still has many limitations. Second, the legal system of imprisonment penalty execution remains inadequate. Third, the facilities have not met the needs of educating and retraining prisoners. Fourth, the official forces in the execution of prison sentences are not enough. 19 Fifth, the real inspection and supervision of guaranteeing human rights of prisoners and handling of violating rights are not really effective. Chapter 4 VIEWPOINTS AND SOLUTIONS OF GUARANTEEING HUMAN RIGHTS IN THE EXECUTION OF IMPR

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