Causes of Limitations and Inadequacies in the Regulations and Application of Regulations on Aggravating Circumstances of the Subjective Side of the Crime of Murder

2.3. Causes of limitations and shortcomings in regulations and application of regulations on aggravating circumstances of the subjective side of the crime of murder

2.3.1. Causes of limitations and inadequacies in regulations on aggravating circumstances in the subjective aspect of the crime of murder

Firstly, some concepts are currently understood with many inconsistent, unclear, even contradictory and overlapping views, causing difficulties when applying regulations on aggravating circumstances of the subjective aspect of the crime of murder in practice. For example, regulations related to public servants are stipulated in four legal documents: Article 277 of the 1999 Penal Code; Resolution No. 04/HDTP dated November 29, 1986 of the Council of Judges of the Supreme People's Court; Decree 208/2013/ND-CP stipulating measures to prevent, stop and handle acts of resisting public servants and the Law on State Compensation Liability. However, each of the above documents provides a different concept of "public servants".

Second, some circumstances are not clearly distinguished, there are no specific instructions to distinguish this circumstance from circumstances with many similar signs such as the aggravating circumstance of "murder to commit or conceal another crime" with the aggravating circumstance of "murder and immediately before or immediately after committing a very serious or especially serious crime"; the aggravating circumstance of "murder to take the victim's body parts" with other circumstances such as "violating the body" or murder with the circumstance of "committing a crime in a barbaric manner"...

Third, there are guiding documents that were issued a long time ago, so they do not keep up with the development trend of society and lack rigor, and need to be updated and supplemented, such as Resolution No. 04/HDTP dated November 29, 1986 of the Council of Judges of the Supreme People's Court.

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Fourth, the provisions of criminal law are usually cast in stone.

summarize and draw conclusions from the practice of crime prevention and control in order to continuously improve regulations and minimize shortcomings and limitations when applied in practice. However, for circumstances that have never occurred in practice in Vietnam, such as the aggravating circumstance of "murder to take the victim's body parts", there has been no summary or assessment to draw lessons in the fight, handling and prevention of this type of crime. Therefore, limitations and shortcomings in regulations are inevitable.

2.3.2. Causes of limitations and inadequacies in the application of regulations on aggravating circumstances in the subjective aspect of the crime of murder

2.3.2.1. Causes in the investigation of murder crimes Firstly, in professional work, investigation techniques

Due to the poor protection of the crime scene, when the police arrived at the scene, the scene was already disturbed. This reduced the effectiveness of the investigation because mechanical traces were erased; biological traces were destroyed by time and weather; the perpetrator had time to conceal his crime or escape... In addition, when examining the scene, the examiner unintentionally lost important traces of the case or did not analyze the existing information and the relationship between the traces and the information; did not take photos of the scene, traces; did not draw a diagram describing the scene, so it was not known which was the main scene, which was the secondary scene, which was the fake scene. Therefore, only one place was examined and other places were ignored, leading to the failure to detect important traces of the case. Autopsy work, due to the professional level of the Investigators in some localities not meeting the requirements, in some places the Forensic Doctor did not perform an autopsy and the Investigating Officer did not have any comments. The principles of assessing the general condition of the corpse; the principles of examining in order from head to toe, from front to back, from right to left, from outside to inside... are mostly not respected.

In one case, the victim was a young woman, but the autopsy did not determine whether the victim had been raped or not, or whether the uterus was pregnant or not... These shortcomings have caused the loss of important evidence proving the subjective aggravating circumstances of the crime of murder.

Second, in implementing the provisions of the Criminal Procedure Code

Researching recent murder cases, we found that many investigators did not fully and systematically carry out investigative measures according to the law, such as: videotaping or recording the defendant's testimony but not making a record to keep in the case file... Some investigators even used torture, prompted confessions, enticed confessions, forced confessions of the defendant or suspect; suggested to the defendant about the statements or let the defendant listen to the statements of others even though the confrontation had not been completed. They did not carry out the procedure for identifying the victim's body, and even prevented the victim's relatives from identifying the body. They interrogated the defendant before a decision to prosecute the defendant was made. They did not sign the defendant's self-declaration when collecting evidence, making it difficult to determine the evidence and responsibility of the investigator. They left out many important documents proving the defendant's alibi when transferring the case to the Procuracy. Failure to fully implement investigative measures as prescribed by law to examine evidence, favoring incriminating evidence, ignoring exculpatory evidence, thus prosecuting criminal liability inconsistent with the nature and extent of the crime committed.

Third, violating regulations on appraisal work

Many forensic examiners, after performing autopsies, did not send the forensic examination conclusion or, although they did send it to the agency requesting the examination, did not conclude the cause of death or circumstances of death (murder, accident or suicide); did not take blood or organs from victims in suspected poisoning cases for testing or only took too small a dose to be sufficient for testing.

examination; incomplete autopsy, especially with a decomposed body; failure to test the blood type of the victim or of some evidence (weapons, clothes with blood stains...)... On the other hand, due to the nature of their part-time work, most doctors performing the examination do not have the minimum knowledge of this specialty, so errors in the examination are inevitable.

Fourth, about the objectivity of the appraisal work.

The request for an expert examination is usually sent after the autopsy and only briefly states "determining the cause of death". The vehicle used for the examination is always the car of the Investigation Agency and most of the time the expert comes to pick up the expert is urgent without prior notice, so the expert is not prepared and often does not have time to bring the necessary tools. The above problems have affected the quality of the examination in particular as well as the quality of the investigation, prosecution and trial of murder crimes in general.

2.3.2.2. Causes in the prosecution of murder crimes First, about the team of prosecutors

Due to lack of regular training and non-specialization in the use of prosecutors, the level of prosecutors is still limited. In addition, the Supreme People's Procuracy has not promptly provided solutions to subordinates when handling this type of case, has not regularly announced lessons learned, and has not yet had regulations on investigative supervision to ensure quality and effectiveness in the investigation of murder cases. Therefore, the charges sometimes do not match the nature of the case.

Second, about views and ideas

Many prosecutors, due to incorrect awareness of their functions and duties, have not exercised their legal powers to contribute to solving cases.

Some prosecutors even consider crime detection to be the task of the Investigation Agency. Some prosecutors are afraid of being personally responsible for their decisions, so they do not want to carry out activities related to the content of practicing the right to prosecute. In addition, due to the habit of relying on the Investigation Agency and the mentality of being too lenient, when serious violations of procedural law are discovered, they should have proposed to the Institute's leaders to return the case files, but they think that these violations are not serious and do not reach the level of returning the case files. Therefore, prosecutors have chosen a "flexible" solution in the style of "family", based on the "emotional" relationship between the agencies conducting the proceedings.

Third, on the organizational and leadership mechanism

Many Chief Prosecutors are not interested in directing, and even "outsource" the work of solving cases to their subordinates. The policy of encouraging material benefits, investment in funds and means is still underestimated, so it does not motivate prosecutors in investigating and detecting crimes. The situation of "cold" prosecution, prosecution on files and records is quite common, making prosecutors not fully aware of the investigation activities and violations during the investigation process, so they cannot give timely direction, prevention and handling opinions. For complicated cases, because prosecutors do not have a firm grasp of the case as well as investigators, and are not more skilled than investigators, investigators are not "convinced" and do not follow the investigation requests of prosecutors.

Fourth, in each stage of the investigation activities

During the initial investigation phase, many prosecutors only acted as witnesses and assistants when supervising the crime scene investigation and autopsy, resulting in shortcomings and violations such as neglecting to take photos; neglecting to draw a diagram describing the crime scene... The collection and preservation of objects and documents at the crime scene also had many shortcomings.

The case of Vu Van Khe fighting and stabbing Cao Van Hanh to death in Q province is an example. In this case, the Investigation Agency and the Provincial Procuracy both confirmed that the iron bar that Khe's family submitted was the weapon that the suspect used to stab the victim, but in fact the victim was killed by another knife (dagger). The pursuit of the perpetrator based on hot traces, the examination of the suspect's body to collect traces and evidence have not been carried out urgently and resolutely.

After the investigation was completed, due to incorrect assessment of evidence or confusion of the specific legal signs of murder with other crimes that also caused fatal consequences, innocent people were prosecuted or the crime was wrongly determined.

2.3.2.3. Causes in the trial of murder crimes First, about the team of judges

According to the 2003 Summary Report of the Supreme People's Court, by December 2014, the number of judges of the People's Court was 7,543. Compared to the number of judges allocated by the National Assembly Standing Committee in 2014, the number of judges of the People's Courts at all levels that have not been appointed is 2,210, of which the Supreme People's Court alone is short of 33 judges, and the district-level People's Courts are short of 2,131 judges, mainly in mountainous, remote and isolated areas and in some newly established units. Although the quality of the judges of the People's Courts at all levels has made significant strides, it still fails to meet the requirements of the Party, the State and the people.

Second, on the skill of trying murder cases with subjective aggravating circumstances.

During the trial preparation stage, due to not checking the case file carefully, some judges were unable to determine issues such as: Does the case file have all the documents according to the transcripts; has the procedural requirements been ensured? Are there any shortcomings in the autopsy report, the record of evidence seizure, the record of the examination of traces on the victim's body, and the forensic examination conclusion?

Are the evidence and documents in the file sufficient to prove the circumstances of the case? What circumstances of the case do these evidence and documents prove - the subjective aspect, the objective aspect, the defendant's personal background or the aggravating or mitigating circumstances? During the trial, during the questioning, there were cases where the presiding judge and members of the trial panel, due to not discovering contradictions in the testimony, did not conduct a confrontation to clarify those contradictions. There were also cases where, due to incorrect assessment of the objective circumstances of the case, they incorrectly determined the subjective consciousness of the defendant. During the debate, the presiding judge and members of the trial panel, due to not fully recording the responses of the parties, did not discover any evasive or unclear manifestations to request the parties to re-present. During the deliberation and sentencing, the presiding judge and members of the Trial Panel rarely discussed or evaluated all the evidence and documents that had been publicly examined at the trial, resulting in an unfounded verdict.

Chapter 3

PERFECTING REGULATIONS AND PROPOSAL FOR IMPROVING THE EFFECTIVENESS OF APPLYING AGGRAVATING CIRCUMSTANCES ON THE SUBJECTIVE SIDE OF THE CRIME OF MURDER

3.1. Perfecting regulations on aggravating circumstances in the subjective aspect of the crime of murder

In order to handle crimes with the right people and the right crimes, so that the Penal Code can be put into practice and be effective and efficient, positive laws must be specifically and clearly defined and must be officially, consistently and promptly interpreted to minimize misunderstandings, inconsistencies and taking advantage of legal loopholes to commit wrongdoing. In addition, given the complicated developments of murder crimes and the increasingly fierce demands of the fight against this dangerous crime, the construction of a synchronous legal system, creating a solid legal corridor for law enforcement agencies to operate effectively, has become even more urgent and necessary. Based on the above awareness, in this section we would like to propose solutions to improve and enhance the explanation and guidance on the application of the provisions of the Penal Code related to murder with aggravating circumstances on the subjective side - the legal basis for the fight against crime in the following direction:

3.1.1. Perfecting the regulations on the circumstance of "murder for the victim's official reasons"

From the analysis in Chapter 2 of the thesis, we think it is necessary to soon issue a document guiding the application of the aggravating circumstance of "murder for the victim's official reasons". Because, without specific guidance, it will be very difficult to uniformly apply the aggravating circumstance of "murder for the victim's official reasons".

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