LEGAL NEWSLETTER NO.12 - 10/2020: Some discussion on determining the age of the victim in dealing wi

PART 1: RESEARCH & EXCHANGE 

Some discussion on determining the age of the victim in dealing with criminal case "rape of people under the age of 16"

On May 27, 2020, Mrs. Le Thi Nga, Chairwoman of the Judicial Committee of the National Assembly presented the Report of the National Assembly's Supervisory Delegation on the implementation of policy and Law on Prevention and control of children. An alarming fact is that in the first 6 months of 2019, the number of abused children increased dramatically, with 1,400 children, nearly 80% of the number of abused children in 2018 (1,779 children), on average, in our country, seven children were abused every day.

That issue raises an urgent requirement to promptly implement a series of measures to prevent and strictly handle violations of the law. In particular, the correct application of the legal provisions related to the crime of "Rape of people under the age of 16" is significant where the trial practice of this crime still faces with many problems and the settlement process is difficult, especially in determining the age of the victim.

1. The determination of the age of the victim specified in Article 417 of the Criminal Procedure Code 2015:
2. Article 417. Determination of age of accused persons or crime victims under the age of 18

1. Competent procedural authorities shall determine the age of accused persons and crime victims under 18 years of age according to the laws.

2. The date of birth of such persons shall be determined in the following manner if legitimate approaches do not generate an accurate result:

a) If the month of birth is identified but the day is unknown, the last day of that month shall be the day of birth.

b) If the quarter when birth occurred is identified but the date is unknown, the last date of that quarter shall be the date of birth.

c) If the half of the year when birth occurred is identified but the date is unknown, the last day of the final month of that half of the year shall be the date of birth.

d) If the year of birth is identified but the date is unknown, the last day of the final month of that year shall be the date of birth.

3. If the year of birth is not identified, age shall be determined through expert examinations.”

As such, the determination of the age of the victim in general and victim under 18 years old in particular is considered a compulsory requirement of the presiding authorities to ensure their legitimate rights and benefits. In order to determine the age of the accused or the victim who is under the age of 18, competent procedural authorities need to take all measures to accurately determine their date of birth, based on legal documents such as birth certificate, household registration book, other legal papers, documents,... The above-mentioned documents and evidences must be collected as per the order and procedure provided by Law. In case where the above legal measures have been applied but the day, month and year can not be determined, it shall be determined in each specific case. And in case the year of birth cannot be determined, an expert examination must be conducted to determine the age.

Specifically, in practice, in dealing with cases of "Rape of children", there are cases of problems and inadequate legal issues as follows:

First case:

At the birth certificate that the victim provided to the investigation agency: Vo Thi Ngoc Diem was born on October 13, 2000, until the time of sexual intercourse, the victim was only 12 years old, 5 months and 27 days.

             At first instance criminal judgment No. 36/2014/HSST dated June 23, 2014 of the People's Court of Binh Duong province, the Court decided: Pursuant to Clause 4 of Article 112, paragraph b, p Clause 1 and Clause 2 of Article 46; paragraph g Clause 1 Article 48; Article 69; Clause 1, Article 74 of Criminal Code 1999, Nguyen Minh Hien was sentenced to 12 years in prison for "Rape of children".

             However, the conclusion of the expert examination No. 2627 / C54N dated December 2, 2015 of the Criminal Science Sub-Institute in Ho Chi Minh City shows that at the time of examination, the victim is from 15 years 3 months to 16 years 3 months.

             In Minutes of Trial: The defendant declared "The defendant heard from another that Diem was born in 1999"; The victim claimed "I was born in 1999 but then the identity papers were burnt, so I had uncle remaked the birth certificate with years of birth 2000 ... I have my younger brother born in 2000"; The representative of the victim Vo Thi Doi (the victim's mother) declared: "The victim was born in 1999, because my house was on fire, so Diem's birth certificate burnt, so she had uncle remaked the birth certificate ".

             Thus, in the above case, the content on the birth certificate and the conclusion of the expert examination of the Criminal Science Sub-Institute in Ho Chi Minh City are different. Meanwhile, at the trial, participants in legal proceedings, including: The defendant, the victim and the representative of the victim, all claimed that the victim was born in 1999, but the Trial panel and Procuracy did not clarify. Therefore, it is very important to determine the age of the victim because it is a basis to determine whether the defendant committed a crime or not and what offence is, what the penalty is.

             At the same time, if it is necessary to request an expert examination to clarify (even if the litigants did not request it), conclusion of the expert examination shall help the litigants have the opportunity to protect their legitimate rights and benefits through litigation in court.

             Currently, related to the expert examination of age is specified in Articles 205 and 206 of Criminal Procedure Code 2015, expert examinations are mandatory to corroborate the age of suspects, defendants and crime victims if it is significant to solve the case and there is no document to determine their exact age or the authenticity of such documents is doubtful.

             However, in some cases, the conclusion of the expert examination is still inexplicit. This leads to not evaluating the nature of the case exactly and causing many mistakes in the process of dealing with the case. For example, the conclusion of the expert examination about the victim's age assessment stated in some judgments with the following contents:

             “The forensic assessment No. 1075 / GĐPY / 17 dated October 26, 2017 of the Long An Provincial Forensic Assessment Center concluded that Hoang Nhi Giang at the time of assessment was 14 years old (+/- 3 months) ". The above assessment results are not yet objective and specific. For cases involving rape, as long as there is a difference in the date and month of the victim, two different crimes with different penalty frames are applied. This affects the criminal determination of the crime.

             Specifically:

             Related to a rape of children case in Tay Ninh province as follows:

             According to the content of the case, the defendant, Tuan (born on May 25, 1999) was acquainted with the victim, L.N.T.T.  According to the birth certificate, she was born on October 2, 2002. After that, Tuan repeatedly drove T.  to go out and both had sex with each other. Discovering the incident, T.'s family accused to the competent authorities.

             According to documents, Tuan was born on May 25, 1999, so up to the date of sexual intercourse (June 26, 2015), he is 16 years old. Beside, the victim, according to the birth certificate, was born on October 2, 2002. Up to the time of harm, the victim was 12 years old, 9 months and 19 days.

             At the second first instance trial in April 2016, the Tay Ninh Provincial Court sentenced Tuan to 8 years in prison for rape of children. Then, in December 2016, the high court in Ho Chi Minh City, in appellate court, declared the cancellation of the first instance judgment, required the age assessment of the victim to serve as a basis for dealing with defendant’s crime and clarifying the time of sexual intercourse between the defendants and the victim.

             At the first-instance trial of this case, the Trial panel judged that the victim's birth certificate was late and there were 2 birth certificates and there was no other clear evidence of the date of birth of the victim. victim. In addition, the statements of the victim's mother and grandfather as well as other witnesses have many contradictions, with no basis to determine the date of birth of the victim.

             Meanwhile, the victim's bone examination showed that the victim was from 12 years, 10 months to 13 years 4 months at the time of having sexual with the defendant. Therefore, the Trial panel considered that the results should be applied in a way that is beneficial to the defendant. Since then, the court recognized that at the time when the accused and the victim had sex, the victim was more than 13 years old. That means the defendant did not commit rape of children.

             Thus, in this case, the Court applied the principle of favor to the defendant, the High Court in Ho Chi Minh City declared Tuan not to commit a crime even though Tuan had sexual intercourse with N.

             Second case:

             Ms. Nguyen Thi Th (Binh Chanh District, Ho Chi Minh City) said that on November 19, 2019, her daughter, Nguyen Thi B, after a party at the helmet factory, was taken to a hotel by a man named N.N.Q (a painter at the factory) and had sex.. B told her that she was forced because she did not know and love this man. Ms. Th reported to the police. The incident was transferred to the Police Department of Binh Chanh District Police. On December 2, 2019 and December 16, 2019, Binh Chanh district police announced the conclusion of the assessment, confirming that there were male cells in B's anus, and it was enough to compare with Quang's DNA sample. Quang's DNA was in B's anus.

             Until January 06, 2020, the conclusion of the assessment No. 157A had the following content: "Over the course of the clinical examination and clinical outcome, suggesting that B is between the ages of 17 and nearly 17 years and six months. Thus, at the time of being accused of abuse, B was over 17 years old ". But in the birth certificate, B was born on January 2, 2005, at the time of the incident, she was 14 years old.

             There is a viewpoint that: In this case, “if there are enough papers such as birth certificate, household registration book,... to prove the year of birth, the age assessment is contrary to Clause 3, Article 417 of the Criminal Procedure Code 2015. Accordingly, only conducting age assessment in case the year of birth cannot be determined.”

              Lawyer who protect the victim of the Child Rights Protection Association in this case, said that: In case, “according to the assessment results, B was born in the period from May 2002 to November, 2002. Meanwhile, B has a brother who was born on March 27, 2002. Therefore,  the assessment results are conflicting because the mother can not give birth to two children within a few months ”.

             Legal provisons on mandatory expert examinations are when corroborating the age of suspects, defendants and crime victims if it is significant to solve the case and there is no document to determine their exact age or the authenticity of such documents is doubtful.

             According to Article 417 of Criminal Procedure Code 2015 on determining the age of the defendants, the victim who is under 18 years old and guided by Circular No. 06/2018 / TTLT-VKSNDTC-TANDTC-BCA -BTP-BLĐTBXH about coordinating to implement a number of provisions of the Criminal Procedure Code on procedures for people under 18 years old:

"1. The determination of the age of the defendants, the victims are under 18 based on one of the following documents: a) Birth document; b) Birth certificate; c) Identity card; d) Citizen's identity card; dd) Household registration book; e) Passport.

             2. In case the documents mentioned in Clause 1 of this Article are contradictory, unclear or not having these documents, competent procedural authorities or authorized procedural persons must coordinate with family, representatives, relatives, schools, Ho Chi Minh Communist Youth Union or other relevant organizations and individuals where persons under 18 years old study, work or live. in asking, taking testimonies, verifying and clarifying conflicts or finding other identification and documents that have the value to prove the person's age.

             In case legal measures have been applied but only the period of month, quarter, first half or second half of the year or year of birth is determined, depending on each specific case, it is necessary to base on Clause 2, Article 417 of the Law on Procedure Criminal to determine their age.

             3. If the age assessment results can only determine the age range of the defendants and the victim, competent procedural authorities or authorized procedural persons shall choose the lowest age of the specified age range to determine their age.

             Example: With the assessment conclusion, A's age is from 13 and 6 months to 14 years and 2 months, A shall be determined the age as 13 years and 6 months. ”

             From the above analysis, the basis for identifying the types of papers and verifying in reality still faces with many difficulties due to the conflicting types of papers and testimonies of the participants in the proceedings.

             This leads to competent procedural authorities have a lot of difficulties in the process of resolving the case, and the legitimate rights and benefits of the victims are not guaranteed. Therefore, specific instruction documents on how to determine the age of the suspects, the defendants, especially for the victim, the victim under 18 years old is essential to apply in practice.

             3. With that fact, the author recommends some measures for determining the victim's age in dealing with cases of "Rape of people under the age of 16".

            It can be seen that this offense violates the children's right to protection of the body, dignity and honor, which adversely affects the social safety and security, negatively affects the fine traditions and customs as well as the normal mental and physiological development of children. Children, in this case, are under 16 years old, there are several signs of belonging to the victim, unlike in rape where the victim is not a child, such as: For the victim from enough 13 years old to under 16 years old, the sexual intercourse must be determined against the will of the victim. For the victim under 13 years old, whether or not the victim agrees to have sexual intercourse, the offenders are still criminally prosecuted for rape under 16 years old. Age of victim (raped person) is a mandatory sign of constituent rape of a person under 16 years old, reflected in the name of the crime. The age of the victim is determined on the basis of their birth certificate. If the birth certificate is lost or there is no birth certificate, the competent procedural authorities must take all possible measures to determine the true age of the victim. Finally, if there is no way to determine the true age of the victim, the principle in favor of the offender will apply.

            Accordingly, in many cases, the real age of the victim and the defendent does not match their identity papers. Because all kinds of administrative documents such as birth certificate, household registration book, school records, ... do not show the actual age of the victim, this leads to confusion between rape and rape of children. Therefore, it is necessary to conduct an assessment of the age of the victim in order to determine a crime exactly.

            From the above analysis, the determination of the real age of the victim in the process of resolving the case related to the crime of "Rape of people under the age of 16" must be carefully considered and investigated from personal documents of the victim,  the testimony of people participating in the proceedings and factors happenings at trial to avoid falsifying case documents.

            In addition, there should be close coordination among the investigation agency, the People's Procuracy and the People's Court to collect evidence and details of the case to ensure objectivity and honesty in the investigation process, prosecution and adjudication of sexual abuse cases in general and Rape of persons under the age of 16 in particular to protect victims related to these crimes where they are increasing in social life.

PART 2: LAW & PRACTICE

I. Can a foreigner do bussiness in the service of sending vietnamese people to work abroad?

II. Is it necessary to apply for the re-issuance of identity card when changing permanent residence to another province?

III. Procedures For The Issuance Of A Vietnam Border Laissez-Passer

PART 3: KNOW THE RULES

21 Type of taxes, fees and charges that foreign enterprise may pay

Link for download: LEGAL NEWSLETTER NO.12 - 10/2020

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