The judgment (decision) on the case is not strict, has no educational and preventive effect, and in some cases even wrongfully accuses innocent people or lets criminals escape, or the decision on the participants in the proceedings is not in accordance with the law, seriously infringing upon their legitimate rights and interests.
Trial practice shows that the incorrect application of criminal law by the Court of First Instance is often demonstrated through the following mistakes:
a) Sentencing a person who did not commit a crime (wrongly convicting an innocent person) as a person who did not commit a crime, but the Court of First Instance made a mistake in convicting that person of committing a crime is wrongly convicting an innocent person. This mistake may be caused by the Investigation Agency or the Procuracy during the investigation process, or by the Court or the Procuracy prosecuting the wrong person for the wrong crime, but during the trial, the Trial Panel did not base on the results of the public interrogation at the trial as a basis for convicting the defendant but used evidence contrary to the provisions of the law as a basis for convicting an innocent person ( For example, the case of Nguyen Thanh Chan in Bac Giang province. During the investigation process, the investigation agency falsified the case file, the Court used evidence collected contrary to the provisions to wrongly convict an innocent person ). There are cases where the wrongly convicted person has committed fraudulent acts to deceive the prosecution agencies. They are not the perpetrators but they arbitrarily admit that they committed the crime, such as some cases where they confess on behalf of the offender or for some reason admit that they are the perpetrators, but after a while, the perpetrator has confessed or been discovered by the Investigation Agency, etc. There are cases where at first the Investigation Agency suspected that the perpetrator was the perpetrator and applied preventive measures (temporary detention), but because of fear or even too much fear, they confessed, and when they appeared in court, they denied the crime and this denial was well-founded, but the Court of First Instance did not fully assess the objective circumstances of the case and therefore wrongly convicted the defendant. There are cases where, due to the inability to distinguish between crimes and acts, the defendant was wrongly convicted.
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In addition, other provisions of law that are not the Penal Code but have decisive significance in the application of the Penal Code, which the Court of First Instance has seriously erred in applying, are also grounds for appeal under the appellate procedure.
b) Sentencing a person whose conduct does not constitute a crime. Non-criminal conduct is a case where the convicted person has committed an act that has caused damage or threatened to cause damage to society, but according to the provisions of law, their conduct is not handled by criminal measures (non-criminal conduct) such as: Causing damage in a case of lack of capacity to bear criminal responsibility; preparing to commit a less serious crime; unexpected event; legitimate defense; urgent situation; intentionally causing injury but the disability rate is less than 11% and does not fall into one of the cases specified from point a to point k, clause 1, Article 104 of the Penal Code; unintentionally causing less serious damage to property; unintentionally causing minor injuries and some types of crimes require the offender to be a person who has been administratively handled, disciplined or convicted but has not had his criminal record erased and still commits a crime or some acts must cause significant damage (serious consequences, serious damage) to be considered a crime and some cases can only be prosecuted at the request of the victim, etc. (for example, the first instance criminal judgment No. 49/2014/HSST dated November 12, 2014 of the People's Court of Bac Quang district, Ha Giang province has criminalized civil relations).
c) Sentencing a person who has not reached the age of criminal responsibility as in the process of investigation, prosecution, trial, the Investigator, Prosecutor, Judge was satisfied with the statement of the criminal or the inaccurate confirmation papers of the local authorities, so they prosecuted, indicted and sentenced the person who has not reached the age of criminal responsibility.
d) The Court of the same level (or the directly lower level) omits a crime, including omitting a specific crime prescribed in the 1999 Penal Code, omitting a criminal act, and omitting a criminal. However, the Court of First Instance is only considered to have omitted a crime in cases where the Procuracy has prosecuted but the Court of First Instance declares that the defendant is not guilty, and that declaration is clearly illegal.
In case the Court of First Instance lets the crime go unpunished when the Procuracy does not prosecute, even if there is an appeal or protest, the Court of Appeal does not have the right to convict the defendant or annul the first instance judgment for a retrial, but only has the right to uphold the first instance judgment and recommend to the Supreme Court to review the judgment.
Article 250 of the 2003 Criminal Procedure Code stipulates the annulment of the first-instance judgment for re-investigation or re-trial as follows: “1. The appellate court annuls the first-instance judgment for re-investigation when it finds that the investigation at the first-instance level is incomplete and the appellate level cannot supplement it ” [8, p.174], which shows that if a person is declared innocent by the first-instance court but there is reason to believe that he has committed a crime, the appellate court has the right to annul the first-instance criminal judgment so that the first-instance court can re-try the case according to the first-instance procedure to convict that person of the crime. Therefore, if the People's Procuracy has prosecuted a person for a crime prescribed in the 1999 Criminal Code but the People's Court of first instance declares that person not guilty, then the People's Procuracy has the right to appeal and request the People's Court of first instance to annul the first-instance judgment for re-trial.
However, if a person has been prosecuted but during the investigation and prosecution process, the investigation agency or the People's Procuracy has suspended the investigation or suspended the case against that person and at the first instance trial, the Court of First Instance also finds that there is a basis to determine that the person committed a crime, the People's Procuracy cannot appeal according to the appeal procedure. If at the first instance trial, through questioning and debate, the People's Procuracy finds that the suspension of the investigation or suspension of the case against a person is clearly incorrect.
If the law and the Court of First Instance do not recommend resuming the investigation, after the judgment comes into legal effect, the People's Procuracy will appeal according to the cassation procedure to cancel the judgment at first instance or the decision to resume the investigation to prosecute the person that the investigation agency or the People's Procuracy has suspended (if the resumption of the investigation does not affect other defendants in the same case).
d) Mistakes in determining the crime and deciding on the punishment. Determining the crime is the first necessary basis for prosecuting the criminal. Based on determining what crime the criminal has committed, and which article or clause of the Penal Code, the person conducting the proceedings and the prosecuting agency will decide on an appropriate punishment for that crime. For example : Judgment No. 09/2010/HSST dated June 18, 2010 of the People's Court of QB district, Ha Giang province decided to declare the defendant Phan Van D guilty of the crime of "Intentionally causing injury". The appellate court accepted the appeal of the People's Procuracy to amend the first instance criminal judgment, declaring the defendant D guilty of the crime of "Murder due to exceeding the limits of legitimate defense".
Conviction is considered a premise and condition for deciding the correct punishment. Correctly determining the crime is not only of decisive significance in VAHS but also contributes to the effectiveness in the fight against and prevention of crime. However, the issue of determining the crime and determining the penalty framework in cases where there is a criminal act that satisfies the signs of many criminal elements is a complex issue that is being debated in practice as well as in criminal science theory. In reality, there have been cases where determining the crime incorrectly or wrongly means deciding the wrong punishment. In the case of incorrect conviction, it will lead to wrongful conviction, inconsistent with the objective truth of the case, wrongly prosecuting innocent people, and letting criminals escape.
Wrongful conviction is when the Court of First Instance decides that the defendant's criminal act is not consistent with the crime prescribed by the Penal Code and
It includes cases where the Court sentences the defendant for a more serious or less serious crime than the crime the defendant committed. In fact, there are cases where the Court of First Instance sentences the defendant for a crime equal to the crime the defendant committed but not in accordance with the criminal act and the elements constituting the crime. The wrong conviction inevitably leads to the incorrect decision on the penalty, but there are also cases where the penalty for the defendant is commensurate with the nature and level of danger of the crime committed by the defendant and if the crime is changed, the penalty will not change. This does not mean that the Court of First Instance has made the correct judgment, but the wrong conviction is still the basis for an appeal. However, the appeal of the VAHS when the Court of First Instance makes a mistake in determining the crime must also comply with the provisions of the 2003 Criminal Procedure Code on the jurisdiction of the Court of Appeal. Pursuant to Clause 3, Article 249 of the 2003 Criminal Procedure Code:
In case the Procuracy appeals or the victim appeals, the Court of Appeal may increase the penalty, apply the provisions of the Penal Code on a more serious crime; increase the level of compensation for damages, if there is a protest from the Procuracy or an appeal from the victim or civil plaintiff; if there is a basis, the Court may still reduce the penalty, apply the provisions of the Penal Code on a less serious crime, change to another penalty of a lighter type, maintain the prison sentence and grant a suspended sentence, reduce the level of compensation for damages [8. , p.174]
With the above provision, in all cases, the Court of Appeal can amend the first instance judgment in a direction favorable to the defendant without the condition of whether there is an appeal or protest in that direction or not. However, if the Court of Appeal wants to amend the judgment in a direction unfavorable to the defendant, there must be a condition of an appeal or protest in a more aggravating direction.
e) The incorrect application of the provisions of the current Penal Code includes not only the incorrect determination of the provisions of the law regulating the corresponding crime but also the incorrect application of other provisions of the Penal Code related to the prosecution of criminal liability against the offender, such as: The case of Phuong Van Tu committing the act of Rape of the victim while the victim was sleeping, but when the defendant began to have sexual intercourse, the victim discovered it, the defendant ran away, the defendant's criminal act was at an incomplete stage, but in Judgment No. 08/2014/HSST dated July 2, 2014 of the People's Court of Quan Ba district, Ha Giang province, Article 18 and Clauses 1 and 3, Article 52 of the Penal Code were not applied to decide the penalty for the defendant Tu, which is not beneficial to the defendant and contrary to the provisions of the 1999 Penal Code and the Resolution of the Council of Judges, the Supreme People's Court, the judgment was overturned. The People's Procuracy of Ha Giang province appealed to amend the judgment, applying Article 18 and Clauses 1 and 3, Article 52 of the Penal Code to decide the sentence for the defendant. Violations in the above cases are considered serious violations of the criminal procedure and must be detected and protested in time for investigation, re-prosecution or retrial. Violations outside the scope of this concept are considered non-serious procedural violations and only recommendations for correction and remedy are made. For example : Violations of the time limit for investigation of the case, the time limit for trial... are also procedural violations but are not serious violations.
4) Fourth basis – There is a serious error in the application of the law.
Regarding the judgment (decision) of the Court of the same level (or directly lower level), in addition to the mistake in applying the Criminal Procedure Code and the Penal Code, there are also serious mistakes in applying other laws such as resolving civil issues in criminal matters.
Incorrect application of the Ordinance on Court Fees and Charges, affecting the legitimate rights and interests of litigants and the State.
Resolving civil issues in VAHS is a basic principle of the Law on Criminal Procedure, specifically stipulated in Article 28 of the 2003 Criminal Procedure Code. Therefore, in the litigation process, in addition to proving and resolving criminal liability, the prosecuting agencies must also prove and resolve civil liability in the case accurately and objectively, protecting the rights and legitimate interests of individuals and organizations. This principle requires that right from the stage of initiating civil cases, civil matters must be one of the contents that need to collect evidence to prove and clarify, on the basis of the evidence collected by the Investigation Agency and within the scope of the prosecution decision of the People's Procuracy, the Court conducts the trial, issues judgments on issues of civil liability along with resolving the contents of criminal liability in the same judgment. The resolution of civil matters in civil cases is only determined within the scope of "Non-contractual liability for damages" as prescribed in Chapter XXI of the Civil Code, which are compensation relationships arising from the life, health, honor, dignity, and property of organizations and individuals being violated by crimes and arising from the commission of crimes. There are many civil issues arising from the commission of crimes that cause damage to civil relations, including: criminal acts that cause damage to health, life, honor, dignity, and property, in addition to giving rise to criminal liability, also give rise to civil liability of those participating in the proceedings. Or issues related to money and property such as: exhibits, court fees, confiscation of objects, money or property obtained from crimes, reclaiming property, and claiming compensation for damages.
Civil matters in VAHS include claiming the return of appropriated property, claiming compensation for the value of property that the defendant appropriated but was lost or destroyed, being forced to repair damaged property, claiming compensation for damage to interests associated with the use and exploitation of property, reasonable costs to prevent and remedy damage caused by appropriated property; claiming compensation for material and spiritual damage caused by infringement of life, health, honor, dignity, and reputation.
In case the parties cannot provide evidence on civil matters and these civil matters are related to determining the criminal liability of the defendant, the prosecution agency must still investigate and clarify the damage that has occurred, on that basis determine the level of compensation for damages. If the civil matter is not related to the criminal liability of the defendant, and at the trial the requesting party cannot provide the basis for its request, the Court may separate the civil part to resolve it according to the civil procedure when there is a petition to initiate a civil lawsuit without mentioning the resolution in VAHS.
Civil matters in VAHS also include the application of provisions of the Civil Code and other regulations such as the decision on the level of court fees as prescribed in the Ordinance on Court Fees and Court Fees of the Standing Committee of the National Assembly that is incorrect and affects the legitimate rights and interests of the participants in the proceedings or the State, which are all grounds for appeal to the VAHS. Errors in the application of the law to the extent that the Procuracy appeals according to the VAHS appeal procedure must be serious errors that affect the legitimate rights and interests of the participants in the proceedings, baseless compensation for damages, and confiscation of property or money not in accordance with the provisions of the law.