Applying the law in criminal investigation activities is one of the forms of law enforcement in general and in the field of criminal justice in particular. ADPL in investigation activities is both a task and a right of the People's Procuracy according to the provisions of law, and is one of the methods of supervising state power to ensure the strictness and fairness of the law, protect human rights, civil rights, social order and safety.
The basis for the law enforcement activities of the People's Procuracy is the decisions of the Investigation Agency and the actions of those conducting the proceedings in the criminal procedure. Those decisions and actions can be issued and implemented in accordance with or not in accordance with the provisions of the law. To carry out the functions and responsibilities of the People's Procuracy, the 2013 Constitution has added a special principle of the People's Procuracy, which is "When exercising the right to prosecute and control judicial activities, the Procurator shall comply with the law and be subject to the direction of the Chief Procurator of the People's Procuracy" (Clause 2, Article 109).
From the general theory of law enforcement and law application, the concept of ADPL in the investigation and prosecution of criminal cases can be stated as follows:
Applying the law in criminal investigation activities is a special form of law enforcement, of state power, carried out by the People's Procuracy on the basis of legal provisions to ensure compliance with the law in criminal investigation activities, protect human rights, civil rights, and prosecute all criminals.
ADPL in investigative activities not only aims to detect violations of the law, but also has a more important purpose of thereby determining the causes and conditions leading to violations of the law in the investigation of criminal cases.
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1.3.2. Characteristics of law enforcement in criminal investigation activities of the People's Procuracy
The application of law in the investigation activities of criminal cases of the People's Procuracy has the following basic characteristics:
First feature:
- ADPL in criminal investigation activities of state-authorized criminal cases
The nature of state power of ADPL in KSĐT activities is shown:
- In the state apparatus, only the People's Procuracy has this authority and this is the constitutional authority for the People's Procuracy along with the authority to exercise the right to prosecute.
- The People's Procuracy applies the law in the investigation and prosecution of criminal cases on behalf of state power. The constitutional and legal decisions of the People's Procuracy have legal effect and are enforceable by relevant entities. Article 115 of the Criminal Procedure Code stipulates the responsibility to implement decisions and requests of the Investigation Agency and the Procuracy: "The decisions and requests of the Investigation Agency and the Procuracy during the investigation phase of a criminal case must be strictly complied with by agencies, organizations and citizens."
ADPL activities in the investigation of the People's Procuracy are a special form of law enforcement, associated with the implementation of the constitutional functions of the People's Procuracy, which is an activity of a public authority institution to ensure the implementation of people's power in the field of fighting against crime, protecting human rights, citizens' rights, contributing to protecting the socialist legal system, protecting life, health, property, freedom, honor and dignity of people; ensuring that all acts of infringement on the interests of the State, of the collective and the legitimate interests of citizens must be strictly handled according to the law. According to the provisions of Article 15 of the Law on Organization of the People's Procuracy in 2014, the authority of the People's Procuracy in the investigation of criminal cases includes: requesting the Investigation Agency, the agency assigned to conduct a number of investigation activities to provide relevant documents to supervise compliance with the law in prosecution and investigation when necessary; Recommend and request the Investigation Agency and the agency assigned to conduct certain investigation activities to remedy violations in prosecution and investigation; request the Head of the Investigation Agency and the agency assigned to conduct certain investigation activities to change the Investigator and investigation officers; strictly handle the Investigator and investigation officers who violate the law in litigation activities; recommend
Relevant agencies and organizations apply measures to prevent crimes and violations of the law; perform other duties and powers in supervising the investigation of criminal cases according to the provisions of the Criminal Procedure Code.
Second feature:
- ADPL in criminal investigation activities of the People's Procuracy must comply with the provisions on order and procedures prescribed by law.
Compliance with legal procedures is one of the basic characteristics of law enforcement in any field of law, public law or private law. For ADPL in the investigation activities of criminal cases of the People's Procuracy, this issue is of special importance due to the nature and role of this activity. Investigation of criminal cases is an extremely complex and important field, related to human rights and interests and social order and security, transparency and democracy of the judiciary.
ADPL in the investigation activities of criminal cases of the People's Procuracy must be placed within the framework of strict requirements on legal procedures to ensure that the application does not lead to violations, distort the results of the implementation of the constitutional functions of the People's Procuracy and ultimately affect the rights and interests of citizens. Because of the importance of investigation activities, the Criminal Procedure Law and the Law on the Organization of the People's Procuracy have very strict regulations on procedures for the investigation activities of criminal cases. The Law on Criminal Procedure strictly regulates the order and procedures of investigation activities and supervision activities such as: from the initiation of a case, the prosecution of the accused, investigation measures, preventive measures, merging - separating cases, suspension, temporary suspension of cases, statute of limitations for investigation, investigation period...
Third feature:
- The decision to apply the law in the investigation activities of criminal cases of the People's Procuracy is guaranteed by law to be enforced.
The results of law application in criminal investigation activities of the People's Procuracy are shown in ADPL decisions - that is, documents applying the law. ADPL decisions in criminal investigation activities of the People's Procuracy have legal value and are mandatory for implementation.
The decision to apply the law of the People's Procuracy in the investigation and prosecution of criminal cases represents the power of the State and has the force of compulsory law. It is a specific legal document for specific individuals and for specific cases. The documents applying the law of the People's Procuracy in the investigation and prosecution of criminal cases not only directly affect the subject of the application, the offender, but also affect the prosecution agency, the prosecutor and related subjects. This is a specific and individual legal document that gives rise to certain legal consequences for related subjects and acts as one of the important legal events that give rise to, change or terminate specific legal relationships.
Legal documents in the activities of the Investigation Police must be signed by the Chief Prosecutor or Deputy Chief Prosecutor in charge or an authorized prosecutor. In case the prosecutor is authorized to sign, they must be sent to the Chief Prosecutor or Deputy Chief Prosecutor in charge at the same level for monitoring and direction. To issue correct ADPL decisions, prosecutors are required to have solid professional qualifications, ethics, professional courage, and high professionalism.
According to the provisions of Article 114 of the Criminal Procedure Code, the investigation agency is responsible for implementing the requests and decisions of the People's Procuracy. In case the investigation agency does not agree with the requests and decisions of the People's Procuracy, the investigation agency must still comply and at the same time has the right to make recommendations to the immediate superior People's Procuracy. Within twenty days from the date of receiving the recommendation of the investigation agency, the immediate superior People's Procuracy must consider, resolve and notify the resolution results to the agency that made the recommendation.
At the same time, the 2014 Law on Organization of the People's Procuracy also clearly stipulates the responsibility of relevant agencies, organizations and individuals to strictly comply with the decisions, requests, recommendations and protests of the People's Procuracy; have the right to make recommendations, complaints and denunciations about illegal acts and decisions of the People's Procuracy; the People's Procuracy must resolve and respond according to the provisions of law. Agencies, organizations and individuals are strictly prohibited from obstructing or interfering with the practice activities.
the right to prosecute and supervise judicial activities of the People's Procuracy; taking advantage of the right to complain and denounce to slander cadres, civil servants, public employees and other employees of the People's Procuracy.
Decisions on law application in criminal investigation activities have been strictly and fully regulated by the 1999 Penal Code and the 2003 Criminal Procedure Code. Enforcement of issued decisions on law application is the final stage of the law application process, which is very important. In case the decision on law application after issuance is not enforced in practice, it is synonymous with invalidating the law application activities of competent state agencies in general, and the People's Procuracy in particular.
Implementing the decisions on law enforcement of the People's Procuracy also means respecting and complying with the law, ensuring that the process of resolving criminal cases is in accordance with the provisions of the law; ensuring the principle of the rule of law, ensuring human rights and civil rights. By implementing the decisions on law enforcement of the People's Procuracy in the investigation of criminal cases to overcome and handle violations of the law by competent agencies and officials. The decisions on law enforcement of the People's Procuracy in the investigation of criminal cases must be strictly implemented to ensure that the right people are prosecuted in accordance with the law, with grounds, and to prevent cases of wrongful and incorrect prosecution, arrest, and detention.
The content of the decision to apply the law by the People's Procuracy must be in accordance with legal provisions. Prosecutors themselves can also be subject to legal measures if they violate the law, only then can the society's trust in the People's Procuracy be ensured. Recently, the National Assembly's Supervisory Delegation has supervised the situation of wrongful convictions in the application of criminal law, criminal proceedings and compensation for damages in Soc Trang province, where a number of wrongful convictions have occurred, causing public outrage. The Supreme People's Procuracy has served the decision to initiate criminal proceedings, prosecute the accused and apply preventive measures to conduct an investigation against Pham Van Nui, former Prosecutor of the People's Procuracy of Soc Trang province, for the crime of "Lack of responsibility causing serious consequences" ; Major Nguyen Hoang Quan and Captain Trieu Tuan Hung,
Former Investigator of the Soc Trang Provincial Police Investigation Agency for the crime
“Using torture” [48].
1.4. Stages and contents of law application in criminal investigation activities
1.4.1. Stages of the law enforcement process in criminal investigation activities
ADPL in criminal investigation activities of the People's Procuracy is an activity of state power and must strictly comply with a standard process and procedure as prescribed by law.
The ADPL process in criminal investigation activities of the People's Procuracy includes logically successive stages in terms of time and implementation content, the previous stage is the premise for the next stage.
The law enforcement process is the order and procedure prescribed by law, which has the force of law and must be followed by competent state agencies in law enforcement activities. The law enforcement process in criminal investigation activities includes basic stages that the People's Procuracy must follow to ensure the legality and correctness of law enforcement decisions of the investigation agencies and the People's Procuracy.
Applying the law in criminal investigation activities includes the following stages: comprehensive and accurate analysis and assessment, research, review and assessment of details and evidence related to legal events, subjects and handling decisions of investigating agencies, selecting appropriate legal norms and analyzing the content and meaning of legal norms for cases that need to be applied; issuing documents to apply the law.
- First phase: research, review, and evaluate the details and evidence related to the legal event, subject, and handling decision of the investigating authorities.
This is the first stage, of special importance to ADPL in criminal investigation activities, and is the premise for the next stages. On the basis of
Based on the provisions of criminal law on content and procedures, the People's Procuracy conducts the review and evaluation of documents, evidence and proceedings conducted by the investigation agency in criminal cases. The task of the People's Procuracy at this stage is to determine their legality, determine the nature and extent of the socially dangerous acts of the subjects who have committed them: whether or not there is a crime, the extent and nature of the crime, location, time of commission, subject of the crime, tools and means of committing the crime; the identity and the issue of criminal responsibility capacity of the subject. The People's Procuracy considers the legality of the order and procedures for collecting documents and evidence...
In practice, the application of criminal law in the investigation phase often leads to some mistakes that are easy to make, mainly due to subjective reasons such as the level of awareness, incorrect assessment of criminal behavior, which can occur entirely due to intentional errors, personal motives or profit motives. In cases where the investigation agency collects evidence documents in an incorrect order, procedure, or incompletely or comprehensively, the review and assessment (supervision of compliance with the law) by the People's Procuracy will encounter difficulties, easily leading to mistakes when issuing documents to apply the law. ADPL in criminal investigation activities is the activity of the People's Procuracy to supervise the legality of the actions and decisions of agencies in criminal investigation activities, carried out right from the time of receiving and handling denunciations, reports of crimes, and recommendations for prosecution.
Based on the provisions of the Law on Criminal Procedure, the People's Procuracy itself, through sources of information or documents and evidence sent by the investigation agency, reviews and evaluates the legal events that have occurred. The People's Procuracy needs to study and consider basic issues such as: whether the collection of documents and evidence is legal or not, whether the socially dangerous behavior must be handled criminally or only by administrative measures, who committed the socially dangerous behavior, the capacity to bear criminal responsibility, the criminal subject may be subject to preventive measures, etc.
The investigating prosecutor must consider and evaluate the elements constituting the crime.
violations in the conduct of the subjects. To carry out this task, the People's Procuracy must assign specific and clear responsibilities to prosecutors, with close coordination with the investigation agency. The initial study of case files is of utmost importance to ensure the legality of the People's Procuracy's decision to apply the law, to ensure the settlement of criminal cases in accordance with legal provisions, and to protect the rights and interests of individuals and citizens.
- Second stage: select and analyze appropriate legal norms as a basis for applying the law to specific cases in criminal investigation activities.
On the basis of research, comprehensive and thorough consideration of the circumstances, assessment of circumstances, evidence related to legal events, subjects and handling decisions of the investigating agencies, the subjects performing the investigation and prosecution activities of criminal cases must consider to choose appropriate legal regulations. This stage is of special importance, so it is necessary to analyze legal regulations appropriate to the nature and content of the incident, choose the correct legal regulations, then the decision to apply the law will be correct and have legal value.
This stage of law application requires the correct selection of legal norms intended for that case; the applicable legal norm must be a legal norm that is in legal effect and does not contradict other legal normative documents; determining the authenticity of the legal normative document containing this norm; correctly perceiving the content and ideology of the legal norm that the People's Procuracy applies to perform its constitutional functions.
The conditions for the People's Procuracy to make a correct decision on the application of the law in general and the selection of the correct legal norm in particular are professional qualifications, a deep understanding of the criminal law provisions on content, procedures as well as other relevant legal provisions. At the same time, the person with authority in ADPL on criminal investigation of criminal cases must have professional ethics, professional courage, a sense of responsibility, and protection of justice.
The person with the authority to apply the law in criminal investigation cases needs to