Abstract: The criminal laws of Vietnam and Germany embody the specific policies for juvenile criminal offenders to ensure the best interests of juvenile offenders with various approaches. Due to the differences in these provisions, study of reflection of the policies for juvenile criminal offenders and their implementation in two countries can provide valuables lessons for both Germany and Vietnam. This article studies the provisions of the Juvenile Court Act of Germany and the 2015 Vietnamese Criminal Code (amended and supplemented in 2017) on the policy of handling juvenile criminal offenders and their implementation and hencey proposes some directions for improving some provisions of Vietnamese criminal law regarding the embodied specific policies.
Keywords: treatment policy, juvenile offenders, Juvenile Court Act, 2015 Penal Code
1. Introduction
Under the criminal laws of Germany and Viet Nam, juvenile offenders are individuals who commit offences between the ages of 14 and under 18. Neuroscientific research strongly indicates that the human brain typically does not reach full development until an individual attains complete maturity in the mid-twenties. The frontal lobe - responsible for regulating judgment, impulse control, and the ability to predict or recognize long-term negative consequences of risky choices - does not mature until this final stage of brain development.[1] Psychological studies also show that at this age, physical changes, the basic completion of physiological functions, and changes in the personal circumstances of juveniles within the family, school, and society affect them and give rise to new perceptions. Adolescents aspire to autonomy and to making their own decisions. Therefore, during this period, juveniles are highly susceptible to deviant behaviours. This is a normal phenomenon in human development. As they mature, most juveniles will overcome this phase of social resistance without significant intervention by authorities. Mere reminders or warnings are often sufficient to prevent reoffending. However, some adolescents continue to engage in unlawful conduct unless appropriate intervention and support are provided.[2] Given these characteristics of juveniles, the general approach to handling juvenile offenders is to apply criminal measures based on the principles and objectives of education and crime prevention.[3]
On the basis of the characteristics of juveniles and the policy of protecting juveniles, the approach to handling juvenile offenders has always been a component of the State’s criminal policy and has consistently received particular attention from the State and society in countries around the world, including Germany and Viet Nam, each with its own specific approaches.
2. Regulations on the approach to handling juvenile offenders in Germany
A distinct criminal law applicable to juveniles has been developed in Germany as a “youth criminal law,” with its principal aim being the education and, subsequently, the social reintegration of juvenile offenders.[4] On that basis, the approach to handling juvenile offenders in the Federal Republic of Germany is mainly regulated in the Youth Courts Act, enacted on 11 December 1974 and most recently amended on 25 June 2021.
This statute provides that a juvenile is any person who, at the time of the offence, is at least 14 years old but under 18 (Paragraph 2, Section 1). Persons in this age group are recognized as being in a special developmental phase in which personality is not yet fully formed.[5] Given such an assessment of juveniles’ cognitive capacity, the purpose of criminal justice with respect to juveniles in Germany is primarily to educate juvenile offenders and to prevent the recurrence of delinquent behaviour.[6]
According to Section 3 of this Act, a juvenile is criminally liable if, at the time of committing the offence, he or she has reached a level of moral and intellectual maturity sufficient to understand the wrongfulness of the act and to act in accordance with that understanding. Thus, the criminal law of the Federal Republic of Germany does not provide that all persons aged from 14 to under 18 who commit offences are automatically criminally liable; instead, it establishes the mandatory condition that the juvenile’s moral and intellectual maturity must relate to their understanding of the offence they have committed. In practice, in cases where the juvenile’s ability to understand the offence is in doubt, the court will consult psychological experts to determine whether the juvenile should bear criminal liability.[7]
The system of justice for juveniles in Germany emphasises educational support and minimal legal intervention in order to prevent stigma and adverse consequences for young offenders. This approach prioritises diversion in dealing with juvenile offenders and restricts the use of formal legal procedures in handling such cases. Where intervention is necessary, mediation is the preferred method. Minor, informal interventions may include performing community service, compensating the victim, or receiving a reprimand.[8]
Juvenile offenders in Germany may be subjected to educational measures, disciplinary measures, or penalties, with priority given to educational measures. When educational measures are not sufficiently effective, disciplinary measures or juvenile penalties may be applied to sanction the juvenile’s offending conduct. Notably, these educational and disciplinary measures are not regarded as punitive measures and therefore do not appear in the official criminal records of young offenders, which helps reduce the risk of stigma.[9] Detention of juveniles is not applied together with educational support measures.
Educational measures applied by judges to juvenile offenders include issuing instructions and imposing decisions on receiving educational assistance. Instructions are guidelines and prohibitions through which the juvenile can conduct his or her life and are intended to promote and ensure his or her learning. Instructions must not impose unreasonable requirements on the juvenile’s way of life. In particular, the judge may instruct the juvenile to: comply with instructions concerning his or her place of residence; live with the family or at a residence; accept a training place or employment; perform certain work tasks; be placed under the care and supervision of a specific person (a care assistant); attend a social skills training course; seek a solution with the injured person (offender–victim settlement); restrict contact with certain individuals or refrain from gathering in public recreational places; or attend a road-traffic training course. In addition, with the consent of the parents or the guardian and the legal representative, the judge has the authority to require the juvenile to undergo professional rehabilitative treatment or addiction treatment. If the juvenile is over sixteen years old, this requirement is applied only with his or her consent.[10] In practical application, one type of instruction that is highly valued for its educational effect is the “role-reversal method,” pioneered by Judge Karl Holzschuh of Darmstadt, Germany. This measure places the offender as closely as possible in the position of the person whose rights he has violated, so that the offender may understand the wrongfulness of his conduct. For example, when a person intentionally shoots and kills the neighbour’s beloved canary, he will be required to purchase a canary and care for it for two years; when X sets a fire that burns down a newly planted pine forest, he is required to spend an entire summer planting pine trees in that forest.[11] In the first example above, the judge’s requirement helps the offender better understand the neighbour’s sense of loss when his pet was killed, after the offender has spent two years raising a similar animal and developed an attachment to it. In the second example, requiring the person who burned the forest to spend the whole summer replanting it enables him to understand the effort required to produce such a forest and thereby to appreciate more fully the wrongfulness of his conduct.
The judge shall determine the duration of the instructions. The duration of the instruction requiring care and supervision shall not exceed one year; the duration of the instruction to participate in a social skills training course shall not exceed six months; and the duration of other instructions shall not exceed two years. The judge may amend the instructions, revoke them, or extend their duration for up to three years in advance if such extension is beneficial for educational purposes. If the juvenile offender fails to comply with the instructions, juvenile detention may be imposed, provided that the juvenile has previously been warned about the consequences of non-compliance. The duration of juvenile detention imposed in such cases shall not exceed a total of four weeks if the offender is convicted. The judge shall waive the enforcement of juvenile detention if the juvenile complies with the instructions after the detention measure has been applied.[12]
In addition to instructions, after consulting the youth welfare authority (the agency responsible for and ready to provide advice and support to juveniles, families, and prospective parents) at the court hearing, the judge has the authority to require the juvenile to exercise his or her right to educational support in one of two forms: First, educational support from a social worker (under which the social worker and care assistant help the child or juvenile address developmental issues, if possible through the influence of the social environment, and promote the child’s capacity for independence while living with the family); or second, educational support in a full-time care facility or in supervised accommodation, aimed at supporting the juvenile’s development by combining daily experiences with educational and therapeutic services. The support must be appropriate to the child’s or juvenile’s age and level of development, as well as to the potential for improving educational conditions in the juvenile’s family, assisting the juvenile to reintegrate into the family, prepare for care in another family, or guide a stable lifestyle and prepare the juvenile for independent living.[13]
Disciplinary measures: The judge shall apply disciplinary measures to sanction the juvenile’s offending conduct without imposing a formal penalty if the juvenile is fully aware that he or she must bear responsibility for the wrongful act committed. Disciplinary measures include: reprimand; imposition of conditions; and juvenile detention. Disciplinary measures do not result in legal consequences equivalent to a criminal conviction.[14]
- Reprimand: The purpose of the reprimand is to ensure that the juvenile fully understands the wrongfulness of his or her conduct.
- Imposition of conditions: The judge may impose one or more of the following conditions on a juvenile offender: compensate to the best of his or her ability for the damage caused by the offence; personally apologise to the injured party; perform certain specific tasks; or pay a sum of money to a charitable organization. The judge must not impose unreasonable requirements on the juvenile. Among these requirements, the condition to pay a sum to a charitable organization may be applied only if the juvenile committed a minor wrongful act and voluntarily agrees to pay the amount, or if the amount corresponds to what the juvenile obtained from the offence. The judge may subsequently modify the requirements or waive compliance with all or part of them if this serves educational purposes. When juvenile detention is executed, the judge may declare that the previous requirements have been fulfilled, in whole or in part.
- Juvenile detention: Juvenile detention includes after-hours detention, short-term detention, or long-term detention. After-hours detention is applied during the juvenile’s non-working hours on weekdays and is counted as one or two after-hours periods (one to two weeks of free time). Short-term detention is applied in place of after-hours detention if the execution of the sentence is uninterrupted in a manner consistent with educational purposes and does not adversely affect the juvenile’s employment. Two days of short-term detention is considered equivalent to one day of after-hours detention. Long-term detention must be at least one week and not exceed four weeks. Detention time is calculated in days or weeks.
The disciplinary measure of juvenile detention may also be applied when a conditional suspension of a penalty for the juvenile is in effect in the following cases:
- The conditional suspension of the penalty is necessary, and the disciplinary measure is sufficient to help the juvenile understand their responsibility for the crime committed;
- It is necessary to remove the juvenile from an environment with harmful influences for a certain period and to prepare for the probationary period through treatment during the execution of juvenile detention; or
- It is necessary to create a stronger educational impact on the juvenile through the execution of juvenile detention, or to improve prospects through the influence of education during the probationary period.
However, short-term juvenile detention under the above provisions is not necessary if the juvenile has previously been subjected to long-term detention or has been held in pre-trial detention for a significant period.[15]
The penalty applicable to a juvenile is deprivation of liberty in a penal institution. The judge shall impose a penalty on the juvenile if, due to the juvenile’s harmful tendencies in the course of committing the offence, educational measures or disciplinary measures are insufficient for educational purposes, or if the penalty is necessary because of the seriousness of the offence.
The minimum duration of the penalty applicable to a juvenile is six months, and the maximum is five years. If the juvenile’s offence constitutes a serious crime for which the general criminal law provides a maximum sentence of deprivation of liberty exceeding ten years, the maximum duration applicable to the juvenile is ten years. The penalty for the juvenile shall be determined in accordance with the educational purposes required.[16]
To ensure the future of juvenile offenders, the Youth Courts Act provides that, when adjudicating crimes committed by juveniles, the court shall not issue a decision that deprives them of the ability to hold public office, to participate in candidacy or elections, or to vote on public matters. The court shall not order the public disclosure of the sentence.
Juvenile offenders may also be subject to rehabilitative or general preventive measures, such as placement in a psychiatric hospital, a treatment and rehabilitation facility, behavioral supervision, or revocation of a driving license. In addition, the court may impose preventive detention in cases where the juvenile is sentenced to at least seven years’ imprisonment for a serious criminal offence against life, bodily integrity, sexual self-determination of the victim, or causing serious mental or physical harm to the victim, or encounters a similar risk, and an overall assessment of the juvenile and the offence indicates a high likelihood of reoffending in offences of a similar nature.
The Criminal Code of the Federal Republic of Germany provides for the suspension of the execution of sentences. Accordingly, if a juvenile is sentenced to no more than one year of imprisonment (and has not previously been sentenced to imprisonment) but there are grounds to believe that the juvenile will regard the imposed sentence as a warning and will strictly comply with the law, the court shall suspend the execution of the prison sentence and place the juvenile under probation. In such cases, the juvenile shall receive educational guidance during the probationary period. To make this decision, the court must consider the juvenile’s personality, prior life, circumstances of the act, post-offence behavior, living environment, and the effects of the suspension on the juvenile. The court shall also suspend the execution of the sentence and impose probation in cases where the imposed sentence does not exceed two years of imprisonment and the above conditions are met, if execution is unnecessary for the development of the juvenile. In such cases, the judge shall set the probationary period for no more than three years and not less than two years. The probationary period shall commence from the date the decision to suspend the juvenile’s sentence takes effect. Thereafter, the period may be reduced to one year, or before its expiry, it may be extended to a maximum of four years. However, in cases where the court suspends the execution of a sentence of more than one year and up to two years of imprisonment for a juvenile, the probationary period may be shortened but not to less than two years.[17]
If the juvenile provides assurances regarding his or her future conduct or offers to provide services capable of compensating for the wrongdoing, the judge, as a general principle, shall temporarily refrain from imposing instructions and conditions during the period in which the juvenile fulfills those assurances or offers.[18]
To support the juvenile in fulfilling the probationary period, for a maximum duration of two years, the judge shall place the juvenile under the supervision and assistance of a probation officer, who provides guidance to the young offender on conditional release. The judge may also place the juvenile under the supervision of a voluntary probation assistant if this serves educational purposes. The judge may modify or revoke the above decision before the probationary period expires or issue a new order placing the juvenile under supervision during the probationary period. The probation officer is responsible for assisting and supervising the juvenile. In the performance of their duties, the probation officer has the right to access the juvenile and request information regarding the juvenile’s conduct from the parents or guardians, legal representatives, school, or teachers.[19]
The court shall revoke probation for the juvenile and require the juvenile to serve the sentence if any of the following circumstances occur:
- The juvenile commits a criminal offence during the probationary period, indicating that the grounds for suspending the execution of the sentence were not met;
- Serious or repeated violations of instructions, or continuous evasion of supervision and guidance by the probation officer, raising concern that the juvenile may commit further criminal offences; or
- Serious or repeated violations of imposed conditions.
However, if the issuance of additional instructions or conditions is applied, or if the suspension or supervision period is extended up to a maximum of four years, or if the juvenile is placed under the supervision of the probation authority again before the expiration of the probationary period, the court shall not revoke probation.
Even if the juvenile commits multiple offences, the court shall apply only one set of educational measures, disciplinary measures, or a penalty for the juvenile. Within the scope provided in this Act (Article 8), different types of educational and disciplinary measures may be applied in combination, or measures may be combined with a penalty for the juvenile.
If the sentence is pronounced simultaneously for a combination of offences, some of which fall within the scope of juvenile criminal law and others within the scope of general criminal law, the juvenile criminal law shall apply to all offences if the main focus is on the acts covered by that law. Conversely, general criminal law shall apply to all offences.[20]
The above studies indicate that the criminal policy towards juveniles in Germany reflects the principle that young offenders should be treated differently from adult offenders. Two approaches under the philosophy of handling juvenile offenders are used in Germany: informal handling and an individual-oriented approach to the offender. The court does not punish the juvenile for their offence but instead applies a case-specific approach aimed at addressing their social disorder.[21] Some studies have shown that juveniles face multiple challenges in integrating into adult society, particularly in securing stable employment. These studies also support the approach adopted by the German juvenile justice policy, which seeks to avoid “labeling” or stigmatizing young offenders. Instead, Germany’s policy emphasizes keeping them out of the formal justice system whenever possible, with the hope that doing so will reduce the negative impacts of processing their offences through the formal justice system. According to statistics from 1984 to 2014, the youth group (ages 18–20) and the juvenile group had higher crime rates compared to other age groups. However, since 2007, these rates have stabilized or decreased, indicating a declining trend. This decline is the result of crime prevention programs implemented in schools and communities.[22]
German criminal law clearly stipulates that the approach to handling juvenile offenders focuses primarily on applying educational measures, and penalties are imposed only if other measures prove ineffective.
3. Approach to handling juvenile offenders in Vietnamese criminal law
The Criminal Code 2015 provides for criminal liability of persons under 18 years of age in Chapter XII. The criminal liability of persons under 18 has certain characteristics, reflected in the following main aspects:
First, the guiding principle in handling all cases of persons under 18 who commit offences is that the handling of such cases must ensure the best interests of the person under 18, with the aim of educating and assisting them to correct mistakes, develop healthily, and become useful citizens for society. The Criminal Code 2015 has domesticated the provisions of the Convention on the Rights of the Child regarding the best interests of the child as a principle in handling persons under 18 who commit offences. This principle is of particular importance for persons under 18 who commit offences, as it forms the foundation for other provisions of the Criminal Code concerning the handling of juvenile offenders.
Similar to the criminal policy of Germany regarding juvenile offenders, the Vietnamese Criminal Code also establishes a distinct criminal policy for persons under 18 who commit offences through the provisions of the principles for handling persons under 18 as follows:
First, the handling of persons under 18 who commit offences must be based on their age, their capacity to recognize the social danger of the criminal act, and the causes and conditions leading to the offence.
Second, the prosecution of persons under 18 shall only be undertaken when necessary and must be based on their personal characteristics, the social danger of the offence, and the requirements of crime prevention.
Third, persons under 18 who commit offences falling under one of the following cases and with multiple mitigating circumstances, voluntarily remedying the majority of the consequences, may, if not falling under the cases provided for in Article 29 of the Criminal Code, be exempted from criminal liability and subject to one of the measures prescribed in Section 2 of this Chapter:
a) Persons from 16 to under 18 years of age who commit minor or serious offences, except for offences specified in Articles 134, 141, 171, 248, 249, 250, 251, and 252 of this Code;
b) Persons from 14 to under 16 years of age who commit very serious offences as prescribed in Clause 2, Article 12 of this Code, except for offences specified in Articles 123, 134, 141, 142, 144, 150, 151, 168, 171, 248, 249, 250, 251, and 252 of this Code;
c) Persons under 18 who are accomplices with an insignificant role in the case.
Fourth, in adjudication, the Court shall only impose a penalty on persons under 18 who commit offences if it determines that exemption from criminal liability or the application of educational measures at reformatory schools does not ensure effective education or prevention.
Fifth, life imprisonment or the death penalty shall not be applied to persons under 18 who commit offences.
Sixth, the Court shall only impose a fixed-term prison sentence on persons under 18 who commit offences when it considers that other penalties and educational measures are ineffective for deterrence and prevention. In imposing a fixed-term prison sentence, the Court shall grant persons under 18 a lighter sentence than that applied to persons aged 18 or older committing the corresponding offence, and with the shortest appropriate term.
Seventh, supplementary penalties shall not be applied to persons under 18 who commit offences.
Eighth, sentences imposed on persons under 16 who commit offences shall not be taken into account for determining recidivism or dangerous recidivism.
In addition to the regulations on the principles for handling persons under 18 who commit offences mentioned above, similar to Germany, Vietnamese criminal law also provides educational measures and penalties applicable to juvenile offenders. The Criminal Code stipulates the measures for handling persons under 18 who commit offences through three major groups of provisions: 1/ Supervisory and educational measures applied in cases of exemption from criminal liability, including reprimands, community mediation, or educational measures at communes, wards, or towns; 2/ Judicial educational measures at reformatory schools; 3/ Penalties.
The provisions for all three groups of measures include specific regulations on the conditions and content of application.
The group of provisions on penalties for persons under 18 who commit offences generally inherits the corresponding regulations from the 1999 Criminal Code, with four types of penalties: 1. Reprimand; 2. Fine; 3. Non-custodial rehabilitation; 4. Fixed-term imprisonment. Except for the reprimand, the other three penalties, when applied to persons under 18 who commit offences, are imposed at lower levels than those applied to persons aged 18 or older committing the corresponding offences.
Compared with the measures applied to juvenile offenders in Germany, it can be seen that certain provisions in the Vietnamese Criminal Code 2015 are not as advanced as the corresponding regulations in Germany. Regarding the principles of handling, Article 91 of the Criminal Code 2015 provides that “the handling of persons under 18 years of age who commit offenses must be based on their age and their capacity to understand the social danger of the criminal act.” However, this provision does not clearly reflect the principle that juveniles should only bear criminal responsibility if, at the time of committing the offense, they have attained moral and intellectual maturity sufficient to understand the wrongfulness of their act and to act accordingly, as stipulated in the Criminal Code of the Federal Republic of Germany. In addition, the number of educational measures and disciplinary measures in Germany exceeds the supervisory and educational measures in Vietnam, and the independent regulation of educational and disciplinary measures in Germany allows these measures to be applied more widely than in Vietnam, because in Vietnam, supervisory and educational measures are only applied in cases where the juvenile offender is exempted from criminal liability.
Compared with the corresponding provisions of the Criminal Code 1999, the Criminal Code 2015 has continued to improve the criminal policy for juvenile offenders in order to ensure consistency with the Party and State’s orientation on strengthening the protection of juveniles, enhancing the effectiveness of crime prevention, and increasing the rehabilitative focus in handling offenders, as recognized in Resolution No. 48/NQ-TW and Resolution No. 49/NQ-TW of the Party Central Committee. At the same time, it ensures compliance with the United Nations Convention on the Rights of the Child and international legal standards on juvenile justice. The current Vietnamese legal system has policies on juvenile justice aimed at ensuring the best interests of juveniles and limiting the negative impacts of criminal justice on juvenile participants and the proceedings, as well as educating juvenile offenders. However, through the process of application alongside social development, some provisions still seem unable to fully reflect the State’s policy on juveniles within the justice system.
Statistical research by the Supreme People’s Court shows that over a period of 10 years from 2015 to 2024, 34,355 defendants under 18 years of age were tried, of which 10 defendants were acquitted. Among the 34,345 convicted defendants, 66 defendants were exempted from criminal liability or exempted from punishment (accounting for 0.2%), 144 defendants were subjected to judicial measures (accounting for 0.42%), and the remaining 33,676 defendants were imposed penalties (accounting for 99.35%). These figures indicate that the principle “the Court shall only apply a penalty to persons under 18 years of age if exemption from criminal liability or the application of educational measures at reformatories does not ensure educational or preventive effectiveness” is not well reflected in judicial practice. Notably, among the defendants subject to penalties, those sentenced to imprisonment accounted for over 92.7% (31,201 out of 33,676 defendants).[24] This data also shows that the principle “the Court shall only impose a term of imprisonment on persons under 18 years of age if other penalties and educational measures are ineffective in deterrence and prevention” has not been properly applied in the practice of adjudicating juvenile offenders.
Many studies also indicate that, while acknowledging the achievements attained, they also point out shortcomings in the criminal policy toward juvenile offenders, such as: Viet Nam’s justice system has revealed certain limitations, including the lack of attention to alternatives to formal processing, and regulations that have yet to fully ensure the best interests of the child.[25] The practice of criminal handling of juvenile offenders also shows that Viet Nam, like many other Southeast Asian countries, still relies heavily on the deprivation of liberty.[26] The Submission No. 68/TTr-TANDTC dated 26 April 2024 on the Draft Law on Juvenile Justice also reflects this spirit when stating that: the current system of penalties still contains certain errors and cannot be implemented in practice; a number of provisions are not suitable for the age, characteristics, and nature of the offending acts committed by juveniles; some penalties do not differentiate between juveniles and adults; the maximum term of imprisonment applicable to juveniles remains very severe...; the supervisory and educational measures that have been provided for are rarely applied, lack feasibility, and still contain many inadequacies; diversionary measures remain limited and largely formalistic, lacking mechanisms for rehabilitation for juveniles. These issues need to be studied in order to improve the criminal policy toward juvenile offenders and young adult offenders in Viet Nam.
4. Some proposals for improving Vietnamese criminal law
Based on the study of juveniles, the State’s criminal policy toward juvenile offenders in Viet Nam, and the reference to German regulations on approaches to handling juvenile offenders, we consider that experience can be drawn to improve the corresponding provisions of Viet Nam’s law in the following aspects:
First, under the German Criminal Code, a juvenile shall bear criminal responsibility if, at the time of committing the offence, he or she has attained a level of moral and intellectual maturity sufficient to understand the wrongfulness of the act and to act in accordance with such understanding. This is a provision that is both humane and scientific in dealing with juvenile offenders, since the ultimate purpose of handling juvenile offenders can only be achieved if their acts are addressed in accordance with their actual cognitive capacity. Drawing on German experience, we propose amending the provision that “the handling of offenders under 18 years of age must be based on their age and their cognitive capacity regarding the socially dangerous nature of the offence” in Article 91 of the Criminal Code 2015 to the following: persons aged 14 years to under 16 years shall bear criminal responsibility if, at the time of committing the offence, they have attained a level of moral and intellectual maturity sufficient to understand the wrongfulness of the act and to act in accordance with such understanding.
Second, the provision on the maximum term of imprisonment imposed on juvenile offenders should be amended towards reducing the maximum term of imprisonment in order to limit the period during which minors are separated from normal life. This adjustment, based on German experience, enables better compliance with the principle of “the best interests of offenders under 18 years of age”, as affirmed in international law and Vietnamese law, and is consistent with the principle that the prevention of legal violations is a fundamental element of juvenile justice policy, rather than placing emphasis on punishing juvenile wrongdoing.[27] We agree with the view that imprisonment, when imposed for a short period, may satisfy the requirement of deterrence but does not cause substantial negative impacts on the sentenced person, especially from the perspective of social reintegration.[28] This also implies that long-term imprisonment imposed on juvenile offenders causes many negative impacts on the development of minors. It is clear that the principle of the best interests of juvenile offenders cannot be realised if the maximum term of imprisonment for persons aged 14 years to under 16 years is 12 years and for persons aged 16 years to under 18 years is 18 years, as provided under the current Criminal Code. In this regard, the Juvenile Justice Law adjusts the maximum term of imprisonment for persons aged 14 years to under 16 years to 9 years (instead of 12 years under current regulations) and reduces the maximum term of imprisonment for persons aged 16 years to under 18 years to 15 years (instead of 18 years under current regulations), but still provides exceptions for certain cases. For persons aged 14 years to under 16 years who commit any of the following offences: murder; rape; rape against a person under 16 years of age; sexual assault against a person aged 13 years to under 16 years; illegal production of narcotic substances, the maximum term of imprisonment remains 15 years. For persons aged 16 years to under 18 years who commit any of the following offences: murder; rape; rape against a person under 16 years of age; sexual assault against a person aged 13 years to under 16 years; illegal production of narcotic substances, the maximum term of imprisonment remains 18 years. This approach differs from the German criminal legislation. As analysed above, German criminal law does not select specific offences for which juveniles must receive heavier penalties, as provided under the Juvenile Justice Law, but instead applies a general rule: the minimum term of imprisonment imposed on juveniles is six months, and the maximum is five years. If the minor’s conduct constitutes a serious offence for which the general criminal law provides a maximum penalty of more than ten years of imprisonment, the maximum term applicable to juveniles is ten years. I highly appreciate the adjustment to reduce the maximum term of imprisonment imposed on juvenile offenders in the current Juvenile Justice Law; however, I consider the above-mentioned exceptional cases inappropriate because the offences listed in the Criminal Code are classified based on an assessment of their social danger to determine corresponding penalties. The five offences used to impose a higher maximum term of imprisonment under the Juvenile Justice Law do not share common features indicating that they should be treated differently from other offences under the Criminal Code. If it is necessary to identify offences showing that juveniles committing such offences pose greater danger to society and require special treatment with a higher maximum penalty, more reasonable selection criteria are required. I consider that only the provision on the maximum term of imprisonment of 15 years for persons aged 14 years to under 16 years and 18 years for persons aged 16 years to under 18 years who commit offences of killing multiple persons should be retained. For other cases, the maximum terms should be reduced in the direction provided under the current draft.
5. Conclusion
The objective of educating and rehabilitating juvenile offenders in order to assist minors in developing in a healthy manner, becoming useful members of society, and avoiding reoffending in the future is the primary and most important objective in criminal policy towards juvenile offenders. To achieve this objective, the approach to handling juvenile offenders plays a particularly important role, with measures that are appropriate to the psychological and physiological characteristics of minors, consistent with the degree of danger posed by the offences committed, and capable of promoting the roles of the State, society, families, and the juvenile offenders themselves in addressing the complex issues caused by juvenile delinquency. This objective appears difficult to achieve under a policy that places emphasis on punitive measures instead of strengthening appropriate educational and preventive measures.
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12. Pablo Alberto De Rosa, “Psychoeducational Approach of Vygotsky and its Relationship with the Symbolic Interactionism: Application to the Juvenile Criminal Responsibility and Educational Processes”, Propósitos y Representaciones, 6(2), 631-669, p. 662, (2018)
13. DÜNKEL, F., HEINZ, W.. GERMANY. IN: DECKER, S., MARTEACHE, N. (EDS) INTERNATIONAL HANDBOOK OF JUVENILE JUSTICE. SPRINGER, CHAM., P. 307, https://doi.org/10.1007/978-3-319-45090-2_15 (2017)
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18. Juvenile Court Act of Germany
* Assoc. Prof. Dr. Cao Thi Oanh, Head of the Department of Criminal Law, Hanoi Law University; Tel.: 0969558998. Approved for publication on 12 December 2024. Email: oanhhs@hlu.edu.vn
** MSc. Vo Hien Anh, Lecturer, Hanoi Law University; Tel.: 0977180697. email: anhvh_lhs@hlu.edu.vn
[1] CHRISTOPHER J. SCHRECK (EDITED), THE ENCYCLOPEDIA OF JUVENILE DELINQUENCY AND JUSTICE, WILEY BLACKWELL, P.44, (2018)
[2] HANOI LAW UNIVERSITY, TEXTBOOK ON JUVENILE JUSTICE, JUDICIAL PUBLISHING HOUSE, HANOI, 71-75 (2020)
[3] Pablo Alberto De Rosa, “Psychoeducational Approach of Vygotsky and its Relationship with the Symbolic Interactionism: Application to the Juvenile Criminal Responsibility and Educational Processes”, Propósitos y Representaciones, 6(2), 631-669, p. 662, (2018)
[4] Storck, Wolfgang. "More Education of Juvenile Offenders in Sentences of Imprisonment: A Reform and Justification Approach as a Consequence of Niklas Luhmann's Systems Theory.", Access to Justice in Eastern Europe, no. 3, pp. 55. HeinOnline. (2023)
[5] The perspective of Ms. Elisabeth Fritz in the presentation Criminal Law on Juveniles in the Federal Republic of Germany at the International Scientific Conference on Juvenile Justice – Experiences of Germany and Vietnam, October 7, 2024, Hanoi Law University.
[6] According to information from Ms. Elisabeth Fritz in the presentation Criminal Law on Juveniles in the Federal Republic of Germany at the International Scientific Conference on Juvenile Justice – Experiences of Germany and Vietnam, October 7, 2024, Hanoi Law University.
[7] According to information from Ms. Elisabeth Fritz in the presentation Criminal Law on Juveniles in the Federal Republic of Germany at the International Scientific Conference on Juvenile Justice – Experiences of Germany and Vietnam, October 7, 2024, Hanoi Law University.
[8] DÜNKEL, F., HEINZ, W. GERMANY. IN: DECKER, S., MARTEACHE, N. (EDS) INTERNATIONAL HANDBOOK OF JUVENILE JUSTICE. SPRINGER, CHAM., P. 311 https://doi.org/10.1007/978-3-319-45090-2_15 (2017)
[9] DÜNKEL, F., HEINZ, W. GERMANY. IN: DECKER, S., MARTEACHE, N. (EDS) INTERNATIONAL HANDBOOK OF JUVENILE JUSTICE. SPRINGER, CHAM., P. 311 https://doi.org/10.1007/978-3-319-45090-2_15 (2017)
[10] Juvenile Court Act of Germany, section 10.
[11] Overland, Mark E., and James Newhouse. "Juvenile Criminal Law in the Federal Republic of Germany and in England." California Western Law Review, vol. 4, no. 1, pp. 39. HeinOnline (1968)
[12] Juvenile Court Act of Germany, section 11.
[13] Juvenile Court Act of Germany, section 12.
[14] Juvenile Court Act of Germany, section 13.
[15] Juvenile Court Act of Germany, section 16a.
[16] Juvenile Court Act of Germany, section 18.
[17] Juvenile Court Act of Germany, section 21, 22.
[18] Juvenile Court Act of Germany, section 23.
[19] Juvenile Court Act of Germany, section 24.
[20] Juvenile Court Act of Germany, section 32.
[21] Overland, Mark E., and James Newhouse. "Juvenile Criminal Law in the Federal Republic of Germany and in England." California Western Law Review, vol. 4, no. 1, pp. 35-36. HeinOnline (1968)
[22] DÜNKEL, F., HEINZ, W. GERMANY. IN: DECKER, S., MARTEACHE, N. (EDS) INTERNATIONAL HANDBOOK OF JUVENILE JUSTICE. SPRINGER, CHAM., P. 307, 310 https://doi.org/10.1007/978-3-319-45090-2_15 (2017)
[23] CRIMINAL LAW - ADMINISTRATIVE LAW DEPARTMENT, COMMENTARY ON THE CRIMINAL CODE 2015 (AMENDED AND SUPPLEMENTED IN 2017): PART ON GENERL PROVISIONS, MINISTRY OF JUSTICE, JUSTICE PUBLISHING HOUSE, HANOI, P. 316 (2018).
[24] GENERAL DEPARTMENT, SUPREME PEOPLE'S COURT.
[25] Hoang Minh Duc, Criminal Policy on Juveniles in Vietnam at Present, Doctoral Dissertation in Law, Academy of Social Sciences, Hanoi, p. 81 (2016).
[26] Duy Tan Huynh Le and Yvon Dandurand, Alignment of Vietnamese Law on the Treatment of Juvenile Prisoners With International Standards and Norms, Youth Justice, p.5-14 (2021)
[27] HANOI LAW UNIVERSITY, TEXTBOOK ON JUVENILE JUSTICE, JUSTICE PUBLISHING HOUSE, HANOI, P. 33 (2020)
[28] ACADEMY OF SOCIAL SCIENCES, TEXTBOOK ON CRIMINAL EXECUTION LAW, SOCIAL SCIENCES PUBLISHING HOUSE, HANOI, P. 200 (2013).
