Current Situation of Criminal Appeals in Binh Phuoc Province

Determining the legal effect of the unprotested judgments and decisions is not practical. Because when considering appeals, the Court can review the unprotested parts, then the effect of these parts will be changed. However, the provisions of the Criminal Procedure Code are reasonable. Because, in order to ensure the relative stability of the judgments and decisions of first instance as well as to ensure the quick and timely execution of judgments and to promote the practicality of the trial, it is necessary to determine the legal effect of the judgment. However, based on the principle of humanity, the provision that the Court of Appeal can review the unprotested parts, and can amend the judgments and decisions of first instance in a way that does not worsen the defendant's situation is the clearest demonstration of the democratic, humane and progressive nature of the Criminal Procedure Code.

Article 363 of the Criminal Procedure Code stipulates that the Court's judgment or decision shall be enforced immediately, regardless of whether the judgment or decision is challenged by the Procuracy or not. These are cases where the defendant is in detention and the Court of First Instance decides to suspend the case, declare the defendant not guilty, exempt the defendant from criminal liability, exempt the defendant from punishment, the punishment is not imprisonment or imprisonment but is suspended, or when the prison term is equal to or shorter than the detention period, the Court's judgment or decision shall be enforced immediately, although it may still be appealed or protested. In cases where the defendant is sentenced to a warning, it shall be enforced immediately at the trial. The meaning of this provision is to ensure human rights, civil rights, and the rights of the defendant in cases where the Court of First Instance declares the defendant innocent or does not have to suffer any further punishment or coercion. If there is a delay or waiting until the Court of Appeals re-examines, the consequences for the defendant will be irreparable, seriously affecting the defendant's rights. On the other hand, if there is a protest from the Procuracy related to the above cases, the defendant will still have to suffer the penalties imposed by the appellate court's judgment or decision (if any).

Chapter 2 Conclusion

From the analysis and evaluation of the provisions of the 2015 Criminal Procedure Code related to the appeal such as: the object of appeal, basis, authority, procedural order, appeal period, amendment, addition and withdrawal of appeal, consequences of appeal, it can be seen that the 2015 Criminal Procedure Code has inherited the progressive provisions of the previous criminal procedure law, while overcoming the limitations in the practical application of the 2003 Criminal Procedure Code. In general, the provisions of the 2015 Criminal Procedure Code have been and are meeting the requirements of judicial reform. However, there are still some limitations of the 2015 Criminal Procedure Code on appeal that have not been overcome, such as the lack of clear regulations on the first-instance decision as the subject of appeal, the lack of regulations on the basis of appeal, the inadequacies in the regulations and calculation of the appeal period, the time limit for sending the first-instance judgment and decision, as well as the regulations on supplementing and changing the appeal without making the original situation of the defendant worse, which have not been understood in a unified manner. The limited regulations on appeal of the 2015 Criminal Procedure Code may affect the work of appeal in practice. Therefore, in order to improve the effectiveness of law enforcement in general and criminal procedure law on the institution of criminal proceedings in particular, it is extremely necessary to continue researching and perfecting the provisions of the Criminal Procedure Law related to the institution of criminal proceedings. This is a requirement that will be raised in the coming time, contributing significantly to the trial of the right person, the right crime, and the right law, ensuring the rights and interests of the defendant and other participants in the proceedings.

Chapter 3

Maybe you are interested!

CURRENT SITUATION AND SOLUTIONS TO IMPROVE THE EFFECTIVENESS OF CRIMINAL APPEALS IN BINH PHUOC PROVINCE

3.1. Current status of criminal appeals in Binh Phuoc province

3.1.1 Situation of criminal appeals in Binh Phuoc province

The People's Procuracy of Binh Phuoc province was established and put into operation from January 1, 1997 to present. During its formation and development, the People's Procuracy of Binh Phuoc province has performed its functions and tasks well, contributing to protecting the legitimate rights and interests of organizations and citizens; maintaining security, politics, social order and safety, contributing to creating a stable environment for socio-economic development in Binh Phuoc province.

In the process of performing its functions, the work of THQCT and KSXX has always been of interest and focus to the People's Procuracy of Binh Phuoc province, in which the work of criminal investigation has been gradually strengthened, achieving initial results. Through summarizing the implementation of Directive 03/CT-VKSTC-VPT1 dated June 19, 2008 on strengthening the work of criminal investigation, as well as to organize the effective implementation of Directive No. 08/CT-VKSTC dated April 6, 2016 of the Chief Prosecutor of the Supreme People's Procuracy on continuing to strengthen the work of criminal investigation, the People's Procuracy of Binh Phuoc province issued Plan No. 21 dated April 27, 2016, setting out specific contents and solutions, and implementing them to professional departments and district-level People's Procuracies in the province. In the above plan, the People's Procuracy of Binh Phuoc province considers the work of criminal investigation as one of the key tasks in the annual work plan. Therefore, in recent years, the criminal investigation work of the People's Procuracy at two levels of Binh Phuoc province has gradually become more organized, overcoming many violations of the law by the Court of First Instance, ensuring the settlement of criminal cases in accordance with the law, strictly, contributing to ensuring that the Court's trial is in accordance with the law, not letting criminals escape and not wrongfully convicting innocent people, successfully completing the targets and tasks assigned by the National Assembly and the Procuracy.

According to statistics of the People's Procuracy of Binh Phuoc province from 2016 to 2020 (Table 3.1), the number of cases and defendants resolved by the two-level Court of Binh Phuoc province was 4,896 cases/8,459 defendants, of which 4,843/8,384 defendants were tried at first instance, 53 cases/75 defendants were suspended and temporarily suspended, the main reason for suspension was that the victim withdrew the request, exempted from criminal liability; the temporary suspension was mainly waiting for the appraisal results, the defendant absconded so there was no appeal, KNPT.

Among the first-instance trials, the number of appealed cases and the number of cases accepted for appeal is also the number of cases accepted for appeal: 742 cases/1,146 defendants, of which the number of cases accepted for appeal is 65 cases/95 defendants, on average each year the People's Procuracy of two levels of Binh Phuoc province accepts 13 cases/19 defendants, accounting for 8.76% (65/742) of cases and 8.29% (95/1,146) of defendants compared to the number of cases accepted for appeal, accounting for only 1.34% (65/4843) of cases and 1.13% (95/8384) of defendants tried at first instance.

Regarding the number of appellate cases resolved (Table 3.2) of 662 cases/1,006 defendants, the number of KNPT resolved at the appeal level is 64 cases/94 defendants, including the number of cases with suspended appeal trials of 147 cases/206 defendants, of which the People's Procuracy of two levels of Binh Phuoc province withdrew KNPT, which was 15 cases/27 defendants, accounting for 19.20% of cases and 13.10% of defendants had suspended appeal trials; the number of cases tried at the appeal level is 515 cases/800 defendants, of which KNPT were tried at 49 cases/67 defendants, accounting for 9.51% (49/515) and 8.38% (67/800) defendants. Thereby, it shows that the number of appellate cases received, resolved and tried at the appeal level is mostly through appeals of first-instance judgments, the number of KNPT is not large.

Regarding the number of cases that have been tried on appeal in the past 5 years, the number of cases that have been overturned or revised at first instance is 304 cases/501 defendants, accounting for 59.03% (304/515) of cases and 62.62% (501/800) of defendants. Of the above cases that have been overturned or revised, in terms of quantity (Table 3.3), the People's Procuracy at two levels of Binh Phuoc province has overturned or revised 65 cases/95 defendants, accounting for 21.59% (65/301) of cases and 18.96% (95/501) of defendants. In terms of quality , out of the total of 64 cases/94 defendants who have resolved the KNPT, 49 cases/67 defendants have been protected by the superior People's Procuracy and brought to trial by the Court of Appeal, reaching 76.56% (49/64) of the number of cases and 71.27% (67/94) of the number of defendants; the number of KNPT withdrawn is 15 cases/27 defendants, accounting for 23.44% (15/64) of the number of cases and 28.72% (27/94) of the defendants. Among the cases with KNPT that have been tried at the appeal level, the KNPT was brought to trial by the Court of Appeal.

The number of cases accepted by the court was 45/62 defendants, reaching 91.84% (45/49) of cases and 92.54% (62/67) of defendants.

The number of cases and defendants whose judgments were overturned or amended by the Court of Appeal through appeal (Table 3.4) accounted for only 14.80% (45/304) of cases and 12.36% (62/501) of defendants, while the number of cases and defendants whose judgments were overturned or amended through appeal accounted for 85.20% (259/304) of cases and 87.62% (439/501) of defendants compared to the number of judgments tried by the Court of Appeal. Thus, the number of judgments overturned or amended by the Court of Appeal was mainly through appeal, accounting for more than 85% of the number of judgments tried by the Court of Appeal.

Regarding the same-level criminal judgment : Statistics show that in the past 5 years, in 11 district-level units and the People's Procuracy of Binh Phuoc province (total of 12 units), criminal judgments were issued for a total of 65 cases/95 defendants, of which 45 cases/66 defendants were criminal judgments at the same level, accounting for 69.23% of cases/69.47% of defendants. Of the 11 district-level units, 9 units have not issued a KNPT for 3 years or more, of which 1 unit is the Bu Dang District People's Procuracy which has not issued a KNPT at the same level for 3 years (2017, 2019-2020), 5 units have not issued a KNPT for 4 years including the Chon Thanh District People's Procuracy, Bu Dop District People's Procuracy, Dong Phu District People's Procuracy, Phu Rieng District People's Procuracy and Bu Gia Map District People's Procuracy, the remaining 3 units including the Binh Long Town People's Procuracy, Phuoc Long Town People's Procuracy, Loc Ninh District People's Procuracy have not issued any KNPT at the same level for 5 years (white protest area). There is one district-level unit, Dong Xoai City People's Procuracy, which did not issue a KNPT at the same level for 2 years (2017 and 2018). The remaining units did not issue a KNPT at the same level for 1 year, including Hon Quan District People's Procuracy (2019) and Binh Phuoc Provincial People's Procuracy (2018). The number of KNPT at the same level whose KNPT was withdrawn is still high, 12 cases/23 defendants, accounting for 26.6% (12/45) of the cases and 34.85% (23/66) of the defendants who have been KNPT.

Regarding appeals at one level : in the past 5 years, the People's Procuracy of Binh Phuoc province has issued appeals at one level in 20 cases/29 defendants, accounting for 30.77% (20/65) of cases and 30.53% (29/95) of defendants who have appealed. Thus, the number of appeals at one level compared to the total number of cases appealed is relatively large, but the number of withdrawn appeals over the total number of cases appealed accounts for a small proportion of 3 cases/4 defendants, accounting for only 4.26% (3/65) of cases and 4.21% (4/95) of defendants.

There are still first-instance judgments that seriously violated procedural rules, made serious mistakes in applying the law, and let criminals escape, requiring the judgment to be annulled for investigation or retrial, but without timely appeals, and had to appeal the final judgment (in 2015 and the first half of 2016) or report to higher levels to appeal the final judgment or retrial. Of the 33 cases/61 defendants annulled by the Court of Appeal for investigation and retrial, only 03 cases/03 defendants had appeals, accounting for 9.1% of the annulled cases and 4.91% of the defendants whose judgments were annulled.

Although the work of the People's Procuracy at two levels in Binh Phuoc province has not achieved the desired results, it can be seen that the work of the People's Procuracy at two levels in Binh Phuoc province has been gradually improved; the quality and quantity of the same-level People's Procuracy protected by the People's Procuracy at higher levels and the cases accepted by the Court of Appeal are increasing. Specifically : (Table 3.3) In 2016, the People's Procuracy at two levels in Binh Phuoc province prosecuted 21 cases/36 defendants, of which 10 cases/20 defendants had their prosecution withdrawn, accounting for 47.62% of the cases and 55.56% of the defendants who had prosecuted, the number of prosecutions accepted by the Court of Appeal reached 90.90% (10/11) of the cases and 93.75% (15/16) of the defendants; From 2017 to present, the number of KNPTs at the same level has always been protected by the higher-level People's Procuracy, increasing every year. In 2020, only 01 KNPT was withdrawn for 01 case/01 defendant, accounting for 8.33% (1/12) of cases and 6.25% (1/16) of defendants. KNPTs protected by the higher-level People's Procuracy have always been accepted 100% by the Court of Appeal.

3.1.2 Results achieved

Results achieved : The criminal investigation work of the two-level People's Procuracy of Binh Phuoc province has been gradually improved, the quality of investigation is increasingly guaranteed. The form of investigation is basically issued in accordance with form No. 15/XP issued with Regulation No. 505 and within the time limit prescribed by law. The content of investigation is increasingly specific, clear, with tight arguments, accurately citing legal grounds. The basis for investigation is increasingly diverse, not only investigation on the procedure in the direction of annulling the first-instance judgment for re-investigation or re-trial, but also investigation on the content of case settlement in the direction of amending the first-instance judgment, not only investigation in the direction of aggravating but also investigation in the direction of mitigating, not only investigation on charges and penalties but also investigation on civil matters in criminal cases, investigation on handling of evidence and court fees. Typically:

again:

- Appeal against the appeal of the trial court in the direction of annulling the first instance judgment for investigation

Nguyen Thanh S's case of robbery: Around 4:00 a.m. on

April 27, 2017 Nguyen Thanh S invited Nguyen Duc A to go find a house that was not open to steal property, A agreed. S drove a motorbike to take A to search and saw Dieu K driving a Sirius motorbike, license plate 93C1 - 104.53, traveling in front in the same direction, so S had the idea of stealing K's motorbike. S drove a motorbike carrying A to follow K. When K stopped the motorbike at a nearby cashew garden, S pretended to talk and get to know him, then asked to borrow K's phone. K gave the phone to S, S took it and gave it to A, then continued to go around behind K and used his right hand to snatch the motorbike key from K's right pocket. K discovered it and turned around, but S pushed K off the motorbike. S inserted the key into the motorbike's ignition and tilted the kickstand, turned the motorbike around, started the engine and drove away (about 1 to 3 minutes), A drove S's motorbike to follow behind. Because he was afraid of being beaten by S and A, K did not dare to resist and take back his property. After taking K's motorbike (worth 19,206,000 VND), S drove the motorbike to Loc Ninh district, Binh Phuoc province, removed the license plate 93C1 - 104.53 and threw it into a bamboo bush on the side of the road. A gave K's FPT mobile phone (worth 1,192,000 VND) to S to hold, then both drove the motorbike back to Loc Ninh district.

First instance criminal judgment No. 43/2018/HSST dated June 13, 2018 of the People's Court of Hon Quan district decided: Regarding the crime : Declare the defendant Nguyen Thanh S guilty of the crime of "Robbery", Nguyen Duc A guilty of the crime of "Failure to report a crime". Regarding the penalty: Applying Clause 1, Article 136; Points b, p, Clause 1, Clause 2, Article 46; Article 33 of the 1999 Penal Code, (amended and supplemented in 2009) to sentence the defendant: Nguyen Thanh S to 03 (three) years and 06 (six) months in prison; Applying Clause 1, Article 314, Points b, h, Clause 1, 2, Article 46, Article 33 of the 1999 Penal Code, amended and supplemented in 2009 to sentence the defendant Nguyen Duc A to 01 year and 02 months in prison.

The People's Procuracy of Binh Phuoc province considers: The first instance judgment is not accurate and comprehensive. Because A's actions are an accomplice of S but A's role has not been revealed. Furthermore, if defendant S is sentenced from the crime of Robbery to the crime of Snatching, defendant A will no longer commit the crime of "Failure to report a crime" as prescribed in

Clause 1, Article 314 of the Penal Code. In addition, during the investigation and at the trial, defendants S and A, and victim Dieu K continuously changed their testimonies. The defendants' testimonies were inconsistent, contradicting the defendants' own testimonies, contradicting the victim's testimonies. However, the investigation did not conduct an investigation to reveal the contradictions, which was an incomplete and not comprehensive investigation to accurately determine the crime of each defendant. Therefore, on July 11, 2018, the Chief Prosecutor of Binh Phuoc Provincial People's Procuracy appealed in the direction of annulling the entire above-mentioned first-instance judgment for reinvestigation. The appeal judgment No. 59/2018/HSPT dated September 19, 2018 of the Binh Phuoc Provincial People's Court accepted the appeal, annulling the first-instance judgment for reinvestigation according to the provisions of law [97, pp. 3-4].

- Appeal on content in the direction of increasing the penalty:

The case of Bui Van S committing the crime of Murder: First instance criminal judgment No. 04/2019/HSST dated March 29, 2019, Binh Phuoc Provincial People's Court determined: The victim Tran Trung T is a mentally abnormal person, forgetful, so Mr. Tran Trung Tu wrote the words " The old man has lost his memory, anyone who meets him, please contact, thank you, 0984.005...... " on Mr. T's shirt (the shirt has been confiscated). Thus, the victim is a person with a mental disability, so he used provocative words to challenge the defendant to commit the crime, so the victim is also partly at fault. Because the defendant has many mitigating circumstances, good personal background, the victim is also partly at fault, and the defendant is now old (69 years old), Article 54 of the Penal Code should be applied to the defendant to receive a sentence below the lowest level of the penalty range, within the adjacent penalty range, and the defendant Bui Van S should be sentenced to 11 years in prison.

The Binh Phuoc Provincial People's Procuracy found that: The first instance judgment determined that because the victim T was forgetful, the fact that Mr. Tu was the son of the victim T printed the words " The old man has lost his memory, if anyone sees him, please contact, thank you, 0984005... " to determine that Mr. T was mentally disabled, and that his words challenged the defendant to commit a crime, so the victim was also partly at fault, which was unfounded and unconvincing. Just because the victim refused the defendant's invitation to drink, the defendant had the intention to kill the victim. The defendant took a knife in his hand and went to where Mr. T was watching TV, challenging him " I will stab you to death ", showing his reckless, hooligan nature and disregard for human life.

Comment