English - CEDAW Southeast Asia

A Gendered and Rights-Based Review of Vietnamese Legal Documents through the Lens of CEDAW
It is provided that courts conduct trials in public. 167 However, in special cases where State
secrets or the parties’ secrets (upon their legitimate request) should be kept secret or the fine
national customs/traditions should be preserved, the courts must conduct trials behind closed
doors but judgments must be pronounced publicly.
Recommendation: It is recommended that the Criminal Procedure Code provides
that, at all stages of investigation, prosecution and trial of cases involving GBV, the
investigating and prosecuting bodies as well as the courts must recognize the right to
confidentiality and privacy of the denouncer and/or victim. In addition to names,
addresses and autographs being kept confidential, the personal circumstances of the
victim or any other information tending to establish the identity of the victim must not
be disclosed to the public at any time. In cases of GBV, upon request and when necessary
to protect the identity of the victim, or to ensure a fair and impartial proceeding,
the trial can held behind closed doors. In all cases, it should be mandatory for procedure-handling
persons to inform denouncers and victims of their right to request for
confidentiality and to explain consequences relating to it. See recommendations in Part
V.1.3.6, Indicators 22-26 and their Sub-indicators.
Institution and termination of particular cases
Article 105 of the Criminal Procedure Code states:
Article 105: Institution of criminal cases at victims’ requests
(1) The cases involving the offenses prescribed in Clauses 1 of Articles 104, 105, 106, 108,
109, 111, 113, 121, 122, 131 and 171 of the Penal Code shall only be instituted at the
requests of victims or lawful representatives of victims who are minors or persons with
physical or mental defects.
(2) In cases where the criminal case institution requesters withdraw their requests before
the opening of court sessions of first-instance trial, the cases must be ceased. Where
exist grounds to determine that the institution requesters have withdrawn their requests
against their own will due to force or coercion, the investigating bodies, procuracies
or courts may, though such institution requesters have withdrawn their requests, still
continue conducting the procedure for the cases.
Victims who have withdrawn their criminal case institution requests shall have no right
to file their requests again, except for cases where their withdrawal is due to force or coercion.
87
This provision does not show strong intent on the part of the State to prosecute the
crimes it lists, 168 in particular rape and forcible sexual intercourse that affect women. The
crimes of rape and forcible sexual intercourse must be removed from the list of crimes that can
be instituted only with the victim’s consent. In some cases, victims themselves cannot institute
167
Ibid. Article 18
168
They are: Articles 104-106, 108-109 (Inflicting Injury); Article 111 (Rape); Article 113 (Forcible Sexual Intercourse);
Articles 121 and 122 (Humiliating, and Slander); and Articles 131 and 171 (Infringement of Copyright, and Industrial
Property Rights)
General undertakings to eliminate discrimination and ensure equality (Articles 1-3 of CEDAW)