SOME NEW ISSUES IN THE REGULATIONS OF VIETNAMESE LAW ON PREVENTION AND COMBAT OF HUMAN TRAFFICKING

ABSTRACT

The Law on Prevention and Combating Human Trafficking 2024 consists of 8 chapters and 63 articles (an increase of 05 articles compared to the Law on Prevention and Combating Human Trafficking 2011); of which, 10 new articles are created, 51 articles are amended and supplemented, and 07 articles are removed. The birth of this Law has contributed to perfecting the Vietnamese legal system on preventing and combating human trafficking crimes - an urgent issue worldwide.

АННОТАЦИЯ

Закон «О предупреждении и борьбе с торговлей людьми» 2024 года состоит из 8 глав и 63 статей (на 05 статей больше по сравнению с Законом о предупреждении и борьбе с торговлей людьми 2011 года); из которых созданы 10 новых статей, 51 статья изменена и дополнена, а 07 статей исключены. Утверждение этого Закона способствовало совершенствованию вьетнамской правовой системы по предупреждению и борьбе с преступлениями, связанными с торговлей людьми, - актуальной проблемой во всем мире.

Keywords: Law on Prevention and Combating human Trafficking; human trafficking victims; Vietnam.

Ключевые слова: Закон о предупреждении и борьбе с торговлей людьми; жертвы торговли людьми; Вьетнам.

Human trafficking is a dangerous crime, which seriously violates basic human rights, so Vietnam, as well as other countries and territories around the world, always focuses on cooperation in the fight against and prevention of crimes to limit the occurrence of crimes and minimize the consequences and harms of crimes. However, the terminology between international and regional legal documents, bilateral agreements that our country has signed with other countries and in current Vietnamese legal documents is not consistent. At the international level, there are many legal documents on cooperation in preventing and combating human trafficking crimes in the world, but it can be affirmed that the TIP Protocol, adopted by the United Nations General Assembly on November 15, 2000, effective from December 25, 2003 (Vietnam joined on November 29, 2011, based on Decision No. 2550/2011/QD-CTN) is the most widely recognized and applied document.

At the regional level, the common legal document signed, recognized and applied by countries in preventing and combating human trafficking crimes is the ACTIP Convention, signed on November 21, 2015 in Kuala Lumpur, Malaysia (Vietnam ratified on December 13, 2016, based on Decision No. 2674/2016/QD-CTN).

The Vietnamese Penal Code stipulates the Crime of Human Trafficking in Article 150; trafficking in persons under 16 years old in Article 151. Studying the content of the two above articles shows that the legal characteristics of the crime of human trafficking and the crime of trafficking in persons under 16 years old are basically the same, differing only in 02 points to distinguish them: regarding the age of the victim of trafficking and for the crime of trafficking in persons under 16 years old, the person committing the crime only needs to perform objective acts, it is not necessary to have the means of using force, threatening to use force, deception or other means to constitute a crime. In the process of fighting against human trafficking in general and illegal human trafficking in particular, the authorities need to grasp the legal signs of the above two crimes with other crimes related to human trafficking as prescribed in the current criminal law such as: Crime of exchanging people under 1 year old (Article 152), Crime of appropriating people under 16 years old (Article 153), Crime of buying and selling, appropriating human tissues or body parts (Article 154), Crime of forced labor (Article 297), Crime of violating regulations on border areas (Article 346), Crime of organizing and brokering others to flee abroad or stay abroad illegally (Article 349), Crime of forcing others to flee abroad or stay abroad illegally (Article 350)... to investigate and handle the right people, in accordance with the law.

On the other hand, through the above analysis, it can be seen that the Vietnamese State has recently proactively internalized international treaties and bilateral cooperation documents to prevent and combat human trafficking crimes. Most of the objective acts of human trafficking crimes have been regulated in the current Penal Code. However, due to many different factors, Vietnamese law still has some differences compared to international law on human trafficking crimes, namely:

First: Vietnamese law defines children as people under 16 years old, while international law defines children as people under 18 years old.

Second: in the basic constituent elements of Articles 150 and 151, it must be determined that the case of recruitment, transportation, and harboring is for the purpose of transferring or receiving people and the purpose must be to transfer or receive money, property or material benefits or sexual exploitation, forced labor, taking body parts of the victim or for other inhumane purposes to constitute a crime, but according to international law, it is not necessary to have the purpose of transfer or reception, independent acts are considered human trafficking.

Third: Vietnamese law stipulates that the purpose of transferring or receiving money, property or material benefits or sexual exploitation, forced labor, taking body parts of the victim or for other inhumane purposes in cases of human trafficking or trafficking of people under 16 years old is a mandatory sign, but according to international law, it is not a mandatory sign.

In addition to the provisions of international law and Vietnamese criminal law on human trafficking, the Vietnamese National Assembly passed the Law on Prevention and Combat of Human Trafficking in 2011. This is the first legal document directly regulating the prevention and combat of this dangerous crime, which provides measures and regulations on competent agencies in the prevention and combat of human trafficking; the reception, support and rescue of victims... However, in the context of increasing human trafficking crimes with sophisticated and complicated tricks, there is a need to amend and supplement human trafficking prevention and combat activities. The Law on Prevention and Combat of Human Trafficking in Vietnam in 2024, consisting of 08 chapters and 63 articles, has just been passed by the 15th National Assembly at the 8th Session to improve the effectiveness of human trafficking prevention and combat, ensure the consistency of the legal system and compatibility with international treaties. The Law takes effect from July 1, 2025. Accordingly, this Law has some outstanding points as follows:

Firstly, amend and supplement the provisions on the State's principles on preventing and combating human trafficking. In particular, the Law has added important principles to meet practical requirements, in accordance with international treaties to which Vietnam is a member, such as: Respecting and protecting the legitimate rights and interests of victims and those in the process of being identified as victims; Ensuring that victims and those in the process of being identified as victims are able to use a language they can understand and receive support in accordance with their beliefs and religions within the framework of Vietnamese law, in accordance with their age, gender, health status, and personal characteristics. In particular, the provisions of the Law on Prevention and Combat of Human Trafficking in 2024 have provided provisions on the fact that violations of the law that are a direct consequence of human trafficking may not be subject to administrative sanctions or criminal prosecution...

Secondly, supplementing the State's policies on prevention and combat of human trafficking in Article 5, such as: prioritizing budget allocation for ethnic minority areas and areas with particularly difficult socio-economic conditions for the prevention and combat of human trafficking; protecting and supporting agencies, organizations and individuals in the prevention and combat of human trafficking...

Third, amend and supplement prohibited acts such as: “agreeing to buy and sell people while they are still in the womb”; not handling or handling human trafficking acts in accordance with the law; Obstructing the rescue, reception, protection, verification, and support of victims and people in the process of being identified as victims…

Fourth, amending the contents related to the work of supporting victims of trafficking. Specifically, in Chapter IV of the Law on Prevention and Combat of Human Trafficking of Vietnam in 2024 on receiving, verifying, identifying and protecting victims, a number of articles will be amended and supplemented to suit current law enforcement practices.

Accordingly, this Chapter regulates the reception and verification of victims who come to report themselves; the reception and verification of rescued victims; the rescue, reception and verification of victims who are abroad; the reception and verification of victims returning from abroad; receiving, verifying and returning foreigners who have been trafficked in Vietnam; basis for identifying victims; papers and documents certifying victims; rescuing and protecting victims and people in the process of being identified as victims; subjects of protection and applicable authority; protecting confidential information about victims and people in the process of being identified as victims. Accordingly, Article 29 stipulates that rescuing, receiving and verifying victims abroad is the responsibility of diplomatic representatives, consular representative agencies or other agencies authorized to perform consular functions of Vietnam abroad. Domestic authorities are responsible for organizing verification, responding to Vietnamese representative agencies abroad and coordinating the organization of issuing necessary documents and completing procedures to bring these people back to the country. In case an international agreement has provisions on direct information exchange and cooperation on preventing and combating human trafficking between competent foreign agencies, international organizations and Vietnamese competent agencies in the country, it shall be implemented in accordance with the framework of that international agreement.

- Add 01 article (Article 31) regulating the reception, verification and return of foreigners trafficked in Vietnam with specific contents:

1) Upon receiving information and documents on foreigners trafficked in Vietnam exchanged by competent foreign agencies, international organizations, domestic agencies and organizations or reported by people who know the matter, the agency receiving the information shall be responsible for immediately notifying the provincial-level Public Security agency where the victim is detained for verification, investigation and rescue; In case they have been rescued or self-reported as being trafficked, the Police Agency, Border Guard, Coast Guard where the victim was rescued or the Police Agency where the person self-reported as being a victim will provide support according to regulations if deemed necessary and transfer that person to the Department of Labor, War Invalids and Social Affairs where they were rescued or the nearest place where they reported being trafficked; when there is sufficient basis to determine that the rescued person or the person self-reported as a victim, the rescue agency or the agency receiving the report will issue a Certificate of Victim of Trafficking according to its authority before transferring;

2) The Department of Labor, War Invalids and Social Affairs, after receiving a foreigner who has been trafficked in Vietnam, shall provide support according to regulations and notify the State Management Agency for Foreign Affairs at the provincial level and the Immigration Management Department of the provincial level Public Security to carry out the work to return them to the country of which they are citizens or permanent residents;

3) The competent agency of the Ministry of Foreign Affairs of Vietnam, upon receiving a diplomatic note from the diplomatic representative agency of the country of which the victim is a citizen (or permanent resident) agreeing to return them, along with valid exit and entry documents issued to the victim, shall be responsible for agreeing with the foreign side on the issues to return the victim to the country, then notify in writing and transfer the exit and entry documents of the victim to the competent agency of the Ministry of Public Security;

4) The competent authority of the Ministry of Public Security is responsible for issuing visas and temporary residence certificates to victims, notifying the plan to bring victims back to the country to the Immigration Management Department of the provincial-level Public Security, the Department of Labor, War Invalids and Social Affairs where the victims are being held; the police at the international airport or the Border Guard at the border gate where the victims will exit; and international organizations (if any) to coordinate in bringing victims back to the country;

5) The Department of Labor, War Invalids and Social Affairs where the victims are being held directs the social assistance facility or victim support facility to bring the victims to the border gate and coordinate.

– Add 01 article (Article 34) on the subjects of protection including: 1) Victims; 2) People in the process of being identified as victims; 3) Relatives of victims, people in the process of being identified as victims; 4) Individuals participating in preventing and combating human trafficking and supporting victims.

– Amend and supplement regulations on receiving and verifying people reporting as victims; receiving and verifying rescued victims; receiving and verifying victims returning from abroad; basis for identifying victims; documents and papers confirming victims and authority to issue documents and papers confirming victims; rescuing and protecting victims and people in the process of being identified as victims; protection measures and applicable authority; protecting confidential information about victims and people in the process of being identified as victims.

In particular, Article 32 of the draft Law stipulates the basis for identifying victims, amending and supplementing the basis for identifying victims to ensure compliance with the 2015 Vietnamese Penal Code (amended and supplemented in 2017); in accordance with the Protocol on the Prevention, Suppression and Punishment of Trafficking in Persons, Especially Women and Children (supplementing the United Nations Convention against Transnational Organized Crime), the ASEAN Convention against Trafficking in Persons, Especially Women and Children and other international treaties to which Vietnam is a member; supplementing regulations on sources of documents and evidence to identify victims and some other bases to identify victims as stipulated in Clause 2 and Clause 3, Article 5 of Decree No. 62/2012/ND-CP dated August 13, 2012 of the Government of Vietnam stipulating the bases to identify victims of trafficking and protecting the safety of victims and their relatives. The Law amends and supplements regulations on documents and papers confirming victims and the authority to issue documents and papers confirming victims (Article 33) in the direction of creating convenience in proving the identity and personal history of victims.

References:

1. Law on Prevention and Combat on Human Trafficking of Vietnam, 2011. // URL: https://www.warnathgroup.com/wp-content/uploads/2024/09/F-1429920306_VNM91653-Eng.pdf  (date of request 21.01.2011)
2. Law on Prevention and Combat on Human Trafficking of Vietnam, 2024. Law on Prevention and Combat on Human Trafficking of Vietnam, 2024. // URL:  https://vietnamlawmagazine.vn/new-law-against-human-trafficking-helps-improve-efficiency-of-human-trafficking-fight-73400.html  (date of request 21.01.2011)