- Propose investigation requests and request the investigation agency to conduct an investigation; directly conduct a number of investigation activities according to the provisions of procedural law.
- Request the head of the investigation agency to change the investigator according to regulations; if the investigator's behavior shows signs of crime, criminal prosecution shall be initiated.
- Decide to apply, change, or cancel arrest, temporary detention, temporary imprisonment, and other preventive measures. Decide to approve or disapprove decisions of investigation agencies in accordance with procedural law. If not approved, the reasons must be clearly stated in the decision.
- Cancel the unfounded decisions of the investigation agency, request the investigation agency to search for the accused.
- Decision to prosecute the accused; decision to suspend or temporarily suspend the case.
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- The decisions of the Procuracy in criminal investigation represent state power, so those decisions must be implemented by state agencies, social organizations and all citizens. In particular, the investigation agency must be responsible for implementing the decisions of the Procuracy; if the investigation agency does not agree, it must still comply but has the right to make recommendations to the higher-level Procuracy (as stipulated in Article 330 of the 2003 Criminal Procedure Code).
1.2.4.2. Duties and powers of the People's Procuracy when investigating criminal cases
The 2002 Law on Organization of the People's Procuracy was amended to stipulate the functions, tasks, and powers of the People's Procuracy when investigating criminal cases. The 2003 Criminal Procedure Code specified the powers and duties of the People's Procuracy as follows:
- Supervise the prosecution, supervise the investigation activities and the preparation of criminal case files by the investigation agency. This is a key task of the entire investigation process of the People's Procuracy. With this task, the Procuracy must:
+ Supervise the initiation of criminal cases and prosecution of defendants; see whether the initiation of criminal cases by the investigation agency has sufficient grounds according to the provisions of law.
+ Supervise the investigation activities of the investigation agency such as: examination, questioning of suspects, taking statements of witnesses, taking statements of people who know the incident, applying preventive measures, investigation measures, procedures, and steps of investigation... Check whether the above activities are in accordance with the provisions of the law; whether they are effective or not. Supervise the preparation of case files by the investigation agency to see if they are in accordance with the procedures prescribed by procedural law or not, especially whether they are in accordance with the inter-sectoral guidance of the Ministry of Public Security and the Supreme People's Procuracy or not. In order to effectively exercise the right to prosecute as prescribed in Article 112 of the 2003 Criminal Procedure Code.
- Supervise compliance with the law by litigants and participants in the proceedings.
The persons conducting the proceedings are the Head, Deputy Head of the investigation agency, investigators; the Chief, Deputy Chief of the People's Procuracy, prosecutors; the Chief Justice, Deputy Chief Justice, Judges, and Court Clerks.
Participants in the proceedings are detainees, suspects, defendants; civil plaintiffs, civil defendants; persons with rights and obligations related to the case, witnesses, defenders, persons protecting the rights of litigants; experts, and interpreters.
- The People's Procuracy is the only agency responsible for resolving disputes over jurisdiction over criminal investigations. As stipulated by the Law on Criminal Procedure, there are currently three systems of investigative agencies in three sectors: investigative agencies in the People's Public Security; investigative agencies in the People's Army; and investigative agencies of the Supreme People's Procuracy. In addition, the current procedural law also divides investigative agencies into different levels from the central to local levels (three levels). Therefore, disputes over jurisdiction over criminal investigations are inevitable.
- Request the investigation agency to correct violations of the law in investigation activities such as: using professional measures for the wrong purposes; exceeding the investigation deadline, forcing confessions, torture; violating detention and custody regimes... Request the head of the investigation agency to strictly handle investigators and investigation officers who violated the law when conducting investigations. Depending on the nature and severity of the violation, the People's Procuracy may recommend the head of the investigation agency to:
Investigate and take appropriate disciplinary action; if serious consequences or signs of crime are caused, a criminal case will be filed.
- Recommend relevant agencies and organizations to apply measures to prevent crimes and violations of the law. Through investigation, the People's Procuracy discovers loopholes and shortcomings; those loopholes can be the cause of crimes so that agencies and organizations can take proactive measures to prevent violations and crimes. This is a regular and effective task of the People's Procuracy.
The People's Procuracy fully performs its duties and powers when prosecuting during the investigation phase of criminal cases; the duties and powers when investigating criminal cases are also the application of the law by the People's Procuracy during the investigation phase of criminal cases.
1.3. The role of investigative prosecution and basic requirements for improving the quality of law enforcement by the People's Procuracy in investigating criminal cases
1.3.1. The role of law enforcement in the investigation and prosecution of criminal cases by the People's Procuracy
The application of law in criminal investigation of the People's Procuracy has the role and task of contributing to the protection of socialist legality; protection of the socialist regime and protection of the people's right to mastery; protection of state and collective property; protection of the life, health, property, freedom, honor and dignity of citizens; ensuring that all acts of violation of the interests of the state, collectives, and the legitimate rights and interests of citizens must be handled according to the law.
The application of law in criminal investigation of the People's Procuracy plays an important role in building and perfecting the law; stimulating new legal thinking; creating a habit of obeying the law. In reality, legal norms in general and legal norms in the field of criminal investigation in particular are all tested through criminal investigation work, tested for suitability or unsuitability, basis or groundlessness... Is it necessary to have new regulations or to amend and supplement specific regulations... Only through criminal investigation work can we detect
Through the work of KSĐT, new forms of law violations and new forms of social relations are discovered that require timely legal regulations, outdated and overlapping regulations need to be replaced and revised.
The fundamental role of law enforcement in criminal investigation of the People's Procuracy is to ensure the socialist regime, protect the democratic rights of citizens; protect the life, health, honor and dignity of people under the socialist regime. Law enforcement in criminal investigation of criminal cases contributes to ensuring political security, social order and safety, and maintaining national discipline and law. All violations and crimes must be detected, handled strictly and promptly; ensuring the socialist legal system.
The application of law in criminal investigation also plays an important role in guiding the subjects of legal relations in criminal investigation to perform acts in accordance with the provisions of law: Correctly and fully perform their assigned duties when conducting proceedings; ensure the rights and legitimate interests of participants in the proceedings; Prevent and limit new violations during the investigation of criminal cases by those conducting the proceedings and those participating in the proceedings.
The application of law in criminal investigation also plays a prominent role: Through the investigation, the People's Procuracy often has measures and methods to propagate and popularize the law; measures to recommend prevention of violations in the area of operation. The propaganda work of the People's Procuracy is not only for violators and criminals but also has a wide impact on the community and relevant agencies.
1.3.2. Basic requirements for law enforcement in criminal investigation and prosecution
The requirement for the application of law in the People's Procuracy's investigation is to ensure that all violations and crimes are detected and handled promptly and accurately in accordance with current legal provisions; to ensure that innocent people are not wrongly convicted, and to ensure that criminals are not left out. Specifically: To ensure that investigation and prosecution of criminal cases comply with legal provisions.
To achieve these goals, those requirements depend on many factors; especially the quality of law enforcement in criminal cases. In the context of improving
In the current judicial system, the issue of ensuring and improving the quality of law application in criminal investigation is even more important, requiring meeting theoretical and practical requirements.
From the practice of applying the law in the investigation of criminal cases; from the requirements of the current judicial reform; on the basis of the Party's guiding viewpoint in Resolution 08/NQ-TW dated January 2, 2002 of the Politburo on a number of key tasks of judicial work in the coming time; on the basis of legal provisions, it can be determined that the basic requirements for the application of the law in the investigation of criminal cases by the People's Procuracy are legality, accuracy, objectivity, and feasibility .
* Legal requirements:
This is a basic requirement of the process of law application in criminal investigation of the People's Procuracy. This requirement requires that the law must be applied appropriately, with the correct authority, correct order, procedures, and in accordance with the provisions of the 2003 Criminal Procedure Code.
The current Law on Criminal Procedure strictly regulates the duties and powers of the People's Procuracy in general and the legal functions of the People's Procuracy in particular. The process of implementing these measures by the People's Procuracy must be appropriate and in accordance with the provisions of procedural law, the Law on Organization of the People's Procuracy of 2002, which has been amended and supplemented. While performing its functions, it is necessary to clearly identify the agency conducting the proceedings; the person conducting the proceedings has specific duties and powers. For example, the Chief Prosecutor, Deputy Chief Prosecutor, and Prosecutor of the People's Procuracy are allowed to sign what types of documents when exercising the right to prosecute and supervise judicial activities.
The legality of the application of law in criminal investigation of the People's Procuracy is reflected in whether it is carried out in accordance with the authority prescribed by law or not. The authority to apply the law of the People's Procuracy according to the territory and the level of decision-making is strictly regulated. The district level is allowed to handle cases with a penalty of up to fifteen years in prison (to date, in order to be consistent with the judicial reform roadmap, this authority is applied to a number of district-level units - districts - towns - cities under the province that apply the above authority). The provincial level is allowed to handle these types of cases; if there is a dispute over authority, in what order will it be resolved; authority to resolve
The decision is determined according to the place where the crime is discovered or where the investigation of criminal cases ends: …. is also strictly regulated by law.
The legality of the People's Procuracy's decision to apply the law in criminal investigation is also demonstrated in the fact that such decisions to apply the law are issued in accordance with the correct order, procedures, and time limits as prescribed. First of all, the law stipulates that the People's Procuracy must check the basis and order of issuance of decisions by the investigation agency such as: initiating a case, initiating a defendant, deciding on temporary detention, etc. In turn, the People's Procuracy, when issuing decisions approving decisions by the investigation agency, must also comply with the provisions of the law. For example, when the People's Procuracy approves the investigation agency's decision to prosecute the defendant, within 24 hours from the time of issuing the decision to prosecute the defendant, the investigation agency must send the decision to prosecute the defendant and documents related to the prosecution to the People's Procuracy at the same level for consideration and approval of the prosecution. "Within three days from the date of receipt of the decision to prosecute the accused, the Procuracy must decide to approve or not approve the decision to prosecute the accused and must immediately send it to the investigation agency" [25, p. 104].
Thus, appropriateness, correct authority, correct order, procedure, and time limit as prescribed by law are indispensable requirements for law application in criminal investigation of the People's Procuracy.
* Accurate and objective requirements:
The application of law in criminal investigation of the People's Procuracy is to ensure that all violations and crimes are detected and handled accurately, promptly and in accordance with the provisions of the law. To ensure the investigation, prosecution and trial of the right person for the right crime, in accordance with legal policies. Therefore, the decisions to apply the law of the People's Procuracy must always be accurate and objective; this requires that before applying the law, it is necessary to study and evaluate the documents and evidence in the criminal case file, the documents and evidence that the People's Procuracy itself collects in an objective and comprehensive manner.
When considering the decision to prosecute a case, it is necessary to consider whether the basis for prosecuting the case is guaranteed as prescribed in Article 100 of the 2003 Criminal Procedure Code; whether the signs of a crime have been determined.
When approving the decision to prosecute the accused by the investigation agency, the People's Procuracy needs to analyze, evaluate and must have a conclusion: who committed the act that is dangerous to society, has that act reached the level of criminal prosecution; especially, it is necessary to clearly determine the age, occupation, and place of residence of the criminal subject before issuing a decision to approve the decision to prosecute the accused by the investigation agency.
When approving the decision to temporarily detain a suspect, the investigation agency's detention order must clearly determine: Whether the suspect has committed an act that is dangerous to society, the suspect's age, how many days of detention, and whether or not detention is warranted.
When deciding not to approve the decisions of the investigation agency, what is the basis, what are the reasons, is the reason for not approving objective or does it depend on the subjective will of the prosecutor...
The accuracy and objectivity of the application of law in criminal investigation of the People's Procuracy is demonstrated by the correct application of the content of legal provisions. When applying, it requires the competent person to carefully evaluate and analyze the legal norms that need to be applied; the content of the legal norms that need to be adjusted. Accuracy and objectivity are also demonstrated in that when applying the law, the competent person must not impose his/her subjective will; evaluate the documents and evidence of the investigation agency in a sketchy manner or depend on the documents and evidence of the investigation agency when making decisions on the application of the law.
* Requirements to ensure feasibility:
The feasibility of law enforcement requires whether the decisions on law enforcement are effectively implemented in practice. The decisions, requests, and recommendations of the Procuracy must be complied with and implemented during the investigation of criminal cases by relevant agencies and departments. The decisions approving the prosecution of the accused and approving the detention order of the Procuracy must be implemented immediately. When the Procuracy approves the detention order of the accused, the detention order of the investigation agency will have legal effect. The decision to return the case file for further investigation by the investigation agency must be well-founded. In addition to the command element, the element of persuasion and feasibility must be given top priority. Or the approval of the detention order, the decision on how much detention
At that time, the Procuracy must take into account the complexity of the case, the ability of the investigation agency in general and the ability of the investigator in particular to complete the investigation; is that detention period sufficient to clarify the criminal details of the defendant as well as the case?
Thus, legality, accuracy, objectivity and feasibility are the basic requirements for the application of law in the investigation of criminal cases by the People's Procuracy. If these requirements are well implemented, the application of law by the People's Procuracy will be highly effective; ensuring that the investigation of criminal cases is guaranteed in accordance with the provisions of law.
Chapter 1 Conclusion
Chapter 1, Thesis focuses on analyzing theoretical issues on basic concepts and characteristics of law enforcement in general; concepts and characteristics of criminal investigation, criminal investigation of criminal cases by the People's Procuracy. Through analyzing general theoretical issues on law enforcement, the thesis focuses on clarifying the concepts and characteristics of law enforcement in criminal investigation of the People's Procuracy. From there, it analyzes the scope, authority and basic requirements, the role of law enforcement activities in criminal investigation of the People's Procuracy in the current period of judicial reform.