Although Vietnam's current criminal procedure law has not yet recognized this form of supervision as a principle in the Code, it has already had the appearance of this form of supervision in specific regulations (for example: the Investigation Agency recommends to the superior People's Procuracy about the requests and decisions of the subordinate People's Procuracy; the regime of returning files to request additional investigation between the prosecution agencies when serious violations of the prosecution procedure are discovered...). In recent times, the practice of criminal justice in our country has not been without the situation that the subsequent stage of the proceedings must illustrate the results of the previous stage of the proceedings, and is even influenced by the previous stage of the proceedings . This creates a very dangerous precedent for judicial practice, and is a risk to the task of preventing injustice and mistakes in the process of resolving criminal cases.
On that basis, it is proposed to supplement the model of TTHS with the principle of ensuring control between agencies in the process of resolving cases, and control of the later stages of proceedings over the previous stages of proceedings. Specifically, the Procuracy has the right to control the activities of the Investigation Agency, return the case file for additional investigation, and declare the invalidity of evidence collected by illegal means; the Court has the right to control and declare the invalidity of evidence collected illegally and when detecting serious violations of procedural law in previous stages of proceedings.
4.3.3. Determining the rights and obligations of criminal procedural subjects is associated with the division of basic criminal procedural functions.
4.3.3.1. On the rights, obligations and relationships between the subjects performing the function of accusation
Currently, there are many opinions that the only function of prosecuting in criminal proceedings belongs to the People's Procuracy. The author of the thesis believes that there is a confusion in the perception of the Constitution's provisions on the functions of the People's Procuracy with the basic functions of the Criminal Procedure. The Constitution and the Law on the Organization of the People's Procuracy stipulate that the People's Procuracy exercises the right to prosecute and supervise judicial activities. Assigning the People's Procuracy to perform the function of exercising the right to prosecute means that the Constitution assigns the People's Procuracy the right to decide on the prosecution of criminal liability.
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whether or not to prosecute a person for criminal liability and this authority belongs only to the People's Procuracy. This is very consistent in the way the Criminal Procedure Code expresses when regulating the authority of the People's Procuracy. However, the fact that the People's Procuracy is the only agency given the authority to decide on the implementation of the right to prosecute does not mean that only the People's Procuracy participates in the prosecution. Right from the time the Investigation Agency arrests the subject, initiates the case, searches for evidence to charge... it has carried out activities within the function of charging.
In our country, the process of building and organizing the implementation of the right to prosecute is closely linked to the process of building the judiciary and the judicial system. However, research on the right to prosecute and the practice of the right to prosecute only began in the 90s of the 20th century. That research process is essentially the process of identifying the right to prosecute. There have been many different views on the right to prosecute [48], [72], [97, p. 204].
Recently, research works on the right to prosecute as well as the way to resolve the 2003 Criminal Procedure Code have come closer to the general concept of the right to prosecute in the world. The author of the thesis expressed his agreement with the viewpoints [24], [44] that: the right to prosecute is the process of finding evidence to charge, prosecuting the criminal to the end before the trial agency, and defending the accusation before the Court. Amendments to the Criminal Procedure Code must correctly reflect the position and relationship of the subjects in performing the function of prosecution. However, when handling this relationship, it is necessary to pay close attention to the characteristics of the criminal procedure model in our country. Unlike the criminal procedure model of the UK and the US, the authority to decide on the application of measures to restrict human rights and civil rights belongs only to the Court; During the investigation phase, the prosecution agency seems to only play the role of a lawyer advising the Judicial Police; at the end of the investigation, if the police file does not have enough evidence, the prosecution decides not to prosecute and returns the file to the police. Vietnam solves the problem in the direction that the Procuracy has a very important role in the investigation, ensuring that all crimes must be discovered, deciding on all measures to restrict human rights and civil rights.
People during the investigation stage and must be responsible for compensating for damages if injustice or mistakes occur in cases where the People's Procuracy has decided to approve.
From these characteristics, the completion of the Vietnamese criminal procedure model must ensure that the Procuracy can fully manage information about crimes; identify criminal investigation as a stage within the content of the prosecution function and to serve the implementation of the right to prosecute. Investigation activities must meet the requirements of the prosecution, so that the Procuracy has enough evidence to prosecute, convict and defend the accusation of the defendant. The investigation agency is responsible for fully and seriously implementing the procedural requirements of the Procuracy to work towards the highest goal of the prosecution function, which is to detect crimes and bring criminals to court for trial. Specifically, it is proposed:
First , about the responsibility of managing denunciations and reports of crimes. There are currently two opinions regarding this issue:
- The first type of opinion suggests [4]: assign many competent agencies to receive denunciations and reports of crimes (police agencies, People's Procuracy, Court, other agencies and organizations). The People's Procuracy acts as the focal point to receive all denunciations and reports of crimes transferred from these agencies and decides on the verification of denunciations and reports.
- The second type of opinion suggests [2]: continue to assign the Investigation Agency to proactively verify denunciations and reports as it is currently doing, but after receiving denunciations and reports, it must be responsible for immediately notifying the Procuracy so that the Procuracy can conduct inspection.
The author of the thesis believes that assigning the People's Procuracy to be the focal point to grasp and manage all denunciations and reports of crimes is completely consistent with the position and responsibility of the prosecution agency, ensuring that all crimes must be detected, and at the same time, creating a basis for the People's Procuracy to effectively perform its responsibility of supervising the handling of denunciations and reports of crimes. However, the method for the People's Procuracy to fully and promptly grasp denunciations and reports of crimes and recommendations for prosecution needs to be calculated to suit the specific conditions of our country, not causing major disruptions in the organization, ensuring the speed and timeliness in receiving and handling denunciations and reports of crimes and recommendations for prosecution. We agree with the proposed opinion that it is necessary to continue to stipulate that many agencies are responsible for receiving denunciations and reports of crimes as the solution in Joint Circular No. 06 dated August 2, 2013.
(including Investigation Agencies; Border Guards; Customs Agencies; Forest Protection Agencies; Coast Guard Forces; other agencies of the People's Public Security and the People's Army assigned to conduct a number of investigation activities; Procuracy; Commune, Ward, Town Police, Police Stations; Courts; Press Agencies; Other Agencies and Organizations). These agencies, after receiving, are responsible for promptly transferring to the Investigation Agencies; Investigation Agencies are responsible for promptly notifying the People's Procuracy of denunciations, crime reports and recommendations for prosecution. At the same time, supplement regulations on sanctions for Investigation Agencies in case of violation of regulations on notifying the receipt of denunciations, crime reports and recommendations for prosecution to the People's Procuracy.
Second , build a model of relationship between the Procuracy and the Investigation Agency on the basis of correct understanding of the right to prosecute and the organization of the implementation of the right to prosecute, maximizing the responsibility of these agencies in performing assigned duties and tasks; ensuring no overlap, no replacement of each other's duties and tasks, and no shirking of responsibility. Accordingly:
- Amend and supplement regulations to enhance coordination between the Procuracy and the Investigation Agency right from the stage of receiving denunciations and reports of crimes and throughout the investigation process. This is completely consistent with the nature of investigation and prosecution activities - two activities with the same orientation and purpose. This will help reduce the time of proceedings, avoid returning files for additional investigation requests between the prosecution agencies, and promptly bring criminals and offenders to court. On that basis, it is necessary to supplement investigation activities that require the participation of the Procuracy (in addition to the two cases as in the current Criminal Procedure Code) and specifically determine the authority of the Procuracy when participating in these investigation activities.
- Amend and supplement regulations to overcome the current passive and dependent situation of the Procuracy on the Investigation Agency, giving the Procuracy the right to take the initiative in performing the prosecution function but on the basis of not encroaching on or replacing the functions of the Investigation Agency. The Procuracy shall only carry out prosecution measures (such as: directly verifying denunciations and reports of crimes; initiating criminal proceedings; initiating criminal proceedings; directly investigating cases, etc.) when deemed necessary or when the Procuracy has requested it.
Investigations carried out by the investigating agency are unsuccessful or have serious violations of the law.
- In addition to the authority to investigate certain types of crimes that violate judicial activities where the offender is an officer of a judicial agency as prescribed by current law, the investigative authority of the Procuracy is supplemented in the direction: When discovering that the investigation is not objective, not complete or has serious violations of the law and the Procuracy has issued requests and procedural decisions to the Investigation Agency but the Investigation Agency has not implemented them effectively or in other cases where the Chief Prosecutor deems it necessary to fully perform the prosecution responsibility, the Procuracy may withdraw the case for direct investigation. At the same time, there must be an apparatus to properly perform this investigation responsibility.
Third , in principle, the party that performs the function of accusing must be responsible for proving and arguing for the reasons for the accusation. Accordingly, it is necessary to amend the provisions of the current Criminal Procedure Code to correctly determine the position and role of the subjects in the entire process of resolving criminal cases in general and at the trial in particular. At the trial, the responsibility for questioning and proving the accusation must belong to the Procuracy. The court only asks questions after the prosecution and defense have finished questioning and find that there are still unresolved issues.
Fourth , supplement regulations on responsibility and time for the Procuracy to publicly disclose evidence to the prosecution.
4.3.3.2 . On the rights and obligations of the performing entity , not the defense
The accused and their defenders must be given opportunities to become an independent party, equal to other subjects, especially the subject performing the function of accusing in proving innocence or carrying out exoneration. The author of the thesis agrees with the view that: it must be ensured that when and where there is an accusation, the right to defense must be exercised and respected; the higher the accusation, the greater the defense must be, the more serious the crime, the more important the defense must be [70, p. 113]. Further strengthening the responsibility of the State in ensuring the right to
defense of the accused. Emphasize the role of the defense attorney in the stages of the proceedings. It is necessary to realize that the participation of the defense attorney in the proceedings is not only to defend and exonerate the accused, but throughout the process, the participation of the defense attorney also contributes to the agencies conducting the proceedings in determining the truth of the case, finding the objective truth of the case. The activities of the defense attorney itself also establish an additional monitoring channel for the judicial agencies. On that basis, it is proposed to perfect the regulations on the rights and obligations of the accused and the defense attorney in the direction of:
- Add the arrested person as a subject entitled to the right to defense in accordance with the new content of the 2013 Constitution, and at the same time identify the legal status and mechanisms to ensure the right to defense of the arrested person.
- Continue to recognize the rights and obligations of detainees, suspects and defendants as they are now, and at the same time, expand the scope of their rights such as: the right to be considered innocent until their criminal acts are proven in accordance with the provisions of law; the right to be informed of the accusation and evidence; the right to have time and conditions to prepare a defense or have someone else defend them; the right to collect evidence, prove, confront and question witnesses, victims and other participants in the proceedings at all stages of the proceedings; the right to be tried within the time limit; the right to appeal, complain, denounce and the right to compensation when wronged or wronged. At the same time, to ensure the good implementation of human rights of detainees, suspects and defendants, it is necessary to add a provision: investigators, prosecutors and judges are responsible for ensuring that detainees, suspects and defendants know and fully exercise their rights and obligations in accordance with the provisions of law; Supplementing sanctions applicable to entities violating the rights of detainees, suspects, defendants and defense attorneys.
- To ensure the implementation of the principle of litigation, it is necessary to change the concept of evidence and the right to collect evidence of the accused, defendants and their defense attorneys instead of only limiting their right to present documents, objects and requests as in current law; the defense attorney has the right to read, take notes and photocopy the entire file.
case instead of just recording and photocopying documents in the case file related to the defense as prescribed by current law. If there is difficulty in collecting evidence, the Procuracy and the Court must be the agency to support them in collecting evidence such as: issuing an order to summon witnesses or requesting agencies and organizations to provide evidence. At the trial, there is the right to request to check the evidence presented by the prosecutor, and the right to object to the incriminating evidence.
- To ensure that defense attorneys can quickly participate in the proceedings and approach arrested persons, detainees, suspects and defendants, it is necessary to simplify the procedures for granting defense certificates and procedures for participating in defense. To be granted a defense certificate, a lawyer only needs to present a lawyer's card and a request for a defense attorney from the accused person; other defense attorneys must present a letter of introduction from the agency, organization or local government where that person resides or works, and an identity card and a request for defense from the accused person. The person directly assigned to handle the case (investigator, prosecutor, judge) is granted a defense certificate, not the leader of the agency conducting the proceedings as prescribed in current regulations. The defense certificate is issued once and is valid throughout the investigation, prosecution and trial stages; if there is a change in the defense attorney, the agency responsible for re-issuing the defense certificate is responsible for the stage at which the case file is in.
4.3.3.3. On the rights and obligations of the Court - the entity performing the adjudication function
Innovate the provisions of the Criminal Procedure Code so that the Court is truly the embodiment of justice, objectivity and fairness. The Court must play an important role in protecting justice and human rights. Accordingly, it is necessary to innovate the tasks and powers of the Court in the following directions:
- Affirming that the Court only performs the function of adjudication, not exercising the powers of prosecution. When adjudicating, the Court investigates the truth, perceives the truth of the case mainly through listening to the parties' questions, debates, and responses. The Trial Panel only asks questions when absolutely necessary to check the evidence of accusation and exculpation in order to correctly perceive the truth, and asks about
unresolved or conflicting issues.
- Eliminate the Court's jurisdiction that is not part of the trial function in the Criminal Procedure Code, affecting the principle of independent trial such as: responsibility to prove crime (Article 10); jurisdiction to initiate a case (Articles 13, 104); jurisdiction to continue trial when the Procuracy has withdrawn the decision to prosecute (Article 221); jurisdiction to try beyond the prosecution limit of the Procuracy (Article 196), the prosecution limit of the Procuracy must be implemented according to the principle of prosecuting to the extent of the charge, the Court tries the defendant within the maximum limit that the Procuracy prosecutes.
- Strengthen the Court's supervisory role in the process of resolving cases in the direction that during the investigation and prosecution stages, procedural activities are entirely under the authority and responsibility of the Investigation Agency and the Procuracy. The Court does not intervene in any procedural activities conducted during this stage. However, from the time the case file and the prosecution decision are transferred to the Court, the Court has the right to declare the invalidity of evidence and not accept the procedural results carried out during these stages if it is discovered that the implementation process seriously violates procedural rules and human rights as prescribed by law.
4.3.4. The issue of dividing the subjects of litigation
Assessing the model of TTHS, many opinions believe that the division of the subjects of the proceedings into: the agency conducting the proceedings, the person conducting the proceedings and the person participating in the proceedings is unreasonable, creates discrimination and does not ensure equality. The terms "conducting party" and "participating party" seem to have created a more proactive party while the participating party seems to be passive and only has a participating role as the name of this subject suggests. One of the important requirements of judicial reform is:
Strongly reform litigation procedures towards democracy, openness, transparency, strictness but convenience, ensuring people's participation and supervision of judicial activities; ensuring the quality of litigation at trials, taking the results of litigation at court as an important basis for judgment, considering this as