including: Investigation agencies, Procuracy, Court, Border Guard, Customs, Forestry, Coast Guard and other agencies of the People's Public Security, People's Army assigned to conduct a number of investigation activities... are allowed to apply a number of initial investigation measures prescribed by the Criminal Procedure Code to check and verify the authenticity of the received denunciations and reports of crimes and recommendations for prosecution. The checking and verification of denunciations and reports of crimes can be carried out by many different measures depending on the nature of the incident. Such measures can be: Requesting state agencies, social organizations or citizens to provide necessary documents and information related to the denunciations and reports of crimes; requesting the provision of inspection and examination conclusions related to information about crimes to reveal the incident; examining the scene to collect traces of crimes; applying temporary detention measures; taking statements from detainees; take statements from whistleblowers etc.
The main task of this stage is only to determine whether the reported incident has signs of a crime or not, to confirm legally whether or not a crime has occurred, to make a decision to initiate a criminal case or not to initiate a criminal case related to that information. Therefore, at the stage of initiating a criminal case, the prosecuting agencies cannot immediately make an accurate conclusion about the crime and the perpetrator, but only create legal premises on the content and legal provisions on the form of the criminal investigation.
With the above analysis, it can be affirmed that: The stage of criminal prosecution is the first stage of criminal proceedings, starting from when the competent prosecution agencies receive denunciations, reports of crimes and recommendations for prosecution from individuals, agencies and organizations and ending when the competent agency issues one of two decisions: Decision to prosecute a criminal case or Decision not to prosecute a criminal case, in order to serve as a basis for the following procedural activities of the criminal case settlement process.
The criminal investigation stage is the second stage of the criminal proceedings, which begins when there is a decision to initiate criminal proceedings and ends when the Investigation Agency issues an investigation conclusion, transfers the file and documents to the Procuracy to request prosecution; or issues an investigation conclusion and a decision to suspend the investigation.
The investigation phase is regulated by the Criminal Procedure Code in 6 chapters, from Chapter VIII to Chapter XIII. The task of the investigation phase is very important in the process of resolving criminal cases, because the results of the investigation are to serve the purpose of prosecuting the criminal responsibility of the person who committed the socially dangerous act and serving the trial activities of the Court. The decision to prosecute by the Procuracy as well as all decisions of the Court on the crime and the person who committed the crime must be based on the evidence collected during the investigation phase.
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Requirements of Administrative Law in Ensuring Human Rights
During this stage, depending on the nature and extent of each case, the Investigation Agency and other agencies assigned to conduct a number of investigative activities shall apply all measures prescribed by the Criminal Procedure Code to prove the crime and the perpetrator, other circumstances related to the case, determine the cause and conditions of the crime to recommend to all levels and sectors to implement crime prevention measures, ensuring that the investigation is accurate and objective, creating favorable conditions for the performance of the functions and tasks of the People's Procuracy and the People's Court. These measures are: Questioning the accused; taking statements from witnesses; taking statements from victims; temporary detention; prohibiting leaving the place of residence; emergency searches; temporary detention, etc. The application of the above measures must comply with the order and procedures prescribed by the Criminal Procedure Code.
Thus, the criminal investigation stage is understood as the criminal proceedings stage in which the Investigation Agency and other agencies are assigned a
The number of investigative activities using measures prescribed by law to collect evidence to prove crimes, criminals and other issues related to determining the truth of the case.
The investigation stage of a criminal case is an important stage in criminal proceedings aimed at directly proving the crime and the person at fault in committing the crime through the collected evidence.
The investigation stage of a criminal case is the stage where human rights are more easily violated than other stages of criminal proceedings, for the following reasons:
- Firstly , the criminal investigation stage is the stage of finding the objective truth of the case through criminal investigation. The theory of criminal investigation shows that: the object of criminal investigation is a material object (people, animals, objects, inorganic and organic substances and compounds, or a totality of a spatial material object), which exists objectively, independent of human consciousness. Criminal investigation activities are mainly carried out by agencies and people conducting the proceedings. This process is the cognitive process aimed at finding an objective reality that has occurred. It can be said that human cognitive activities are a very complex process, depending on the correct application of criminal investigation principles, the correct application of methods in a logical sequence; the capacity and qualifications of those conducting the proceedings decide. Therefore, it is very easy to make mistakes leading to incorrect perception of the objective reality that has occurred. From there, decisions can be made to prosecute suspects, apply investigative measures, affecting or even infringing upon human rights, rights and legitimate interests of citizens.
- Second , during the investigation phase, the litigants have an independent position in terms of duties and powers when carrying out the assigned litigation activities.
assigned, the fact that they can take advantage of their authority to commit acts of violating human rights is very difficult to detect in time. In particular, the investigation agency is an agency with full conditions in terms of facilities and human resources to perform assigned tasks, and is directly allowed to use coercive measures against participants in the proceedings, to clarify and handle acts of violating the law, which to a certain extent can directly affect the life, health, honor, dignity, property, rights and other legitimate interests of citizens.
- Third, the Criminal Procedure Code stipulates investigation measures and preventive measures directly related to human rights, restricting the human rights of citizens in general and the human rights of participants in the proceedings in particular, to ensure the detection, investigation and accurate handling of crimes, avoiding letting criminals escape as well as preventing criminals from escaping and continuing to commit crimes. However, for many different reasons such as: the impact of external factors including acquaintances, pressure from local authorities, from the investigation period...; resistance, non-cooperation of litigants, even from the degradation of ethics, lifestyle and professional ethics of litigants... during the litigation process, litigants can commit illegal acts, make decisions that are not objective, comprehensive, not in accordance with regulations, do not achieve the purpose of the litigation during the investigation stage, violate human rights, rights and legitimate interests of citizens.
- Fourth, some legal provisions on investigation measures as well as preventive measures are not suitable and may lead to inconsistent application, resulting in inadequate protection of human rights of participants in the proceedings.
As analyzed above, the subject of human rights in litigation
Criminal proceedings include three main groups: Arrested persons, detainees, suspects, defendants (collectively referred to as groups of suspected criminals); Criminals who have been convicted and must serve the sentence imposed by the Court; Those who participate in criminal proceedings because they have rights and interests related to the case, such as victims, civil plaintiffs, civil defendants, witnesses, etc.
However, the prosecution and investigation stages of criminal cases are only two stages in the criminal proceedings, therefore, the subjects of human rights in the prosecution and investigation stages of criminal cases have certain differences compared to the subjects of human rights in criminal proceedings in general. Accordingly, the subjects of human rights in these two stages only include:
- Arrested person, detained person, accused;
- Participants in criminal proceedings who have rights and interests related to the case, such as victims, civil plaintiffs, civil defendants, witnesses, etc.
From the above analysis, it can be concluded that: Human rights in the stage of criminal prosecution and investigation are civil and political rights reserved for those who are arrested, detained, accused, and other participants in the proceedings who have rights and interests related to the case, when they participate in criminal proceedings in the stage of criminal prosecution and investigation, recognized by the State, and guaranteed to be implemented by criminal proceedings measures.
1.1.3. Ensuring human rights during the prosecution and investigation of criminal cases
Different from protecting human rights and civil rights, it is the determination of legal measures, organizational measures, and mechanisms to protect human rights and civil rights when they are violated by public authorities or other entities in order to restore the violated rights; then ensuring the
Human rights and civil rights are the creation of political, economic, social, legal and organizational premises and conditions for individuals, citizens and citizen organizations to exercise their rights, freedoms and legitimate interests recognized by law [52].
In the context of building a socialist rule-of-law state in our country, legal guarantees are of special importance and are the institutionalization of political, economic, social and organizational guarantees into mandatory standards that the state, state agencies and society must implement to ensure human rights and civil rights. Legal guarantees are very diverse and rich, first of all, the recognition of human rights and civil rights, to the creation of legal conditions, organizational conditions, the establishment of specialized mechanisms and apparatus to ensure human rights and civil rights.
Resolution 49-NQ/TW dated June 2, 2005 of the Politburo on the Judicial Reform Strategy to 2020 stated the strategic guiding ideology in ensuring human rights:
Perfecting criminal and civil law policies in line with the socialist-oriented market economy, building a socialist rule-of-law state of Vietnam of the people, by the people and for the people; perfecting judicial procedures, ensuring consistency, democracy, publicity, transparency, respect and guarantee of human rights [17].
Ensuring human rights in criminal proceedings is one of the legal guarantees of a specific nature in ensuring human rights in general, stemming from the fact that criminal proceedings exercise state power, which limits or can seriously infringe upon the rights and legitimate interests of citizens. Ensuring human rights in criminal proceedings is a function of the state with an appropriate mechanism in economic conditions -
social and legal status, aiming at the combination of legal status and actual status of arrested, detained, accused, defendants and other participants in the proceedings [11, pp. 43 - 44].
In the stages of criminal proceedings, the prosecuting agencies and the prosecutors, in addition to performing their responsibility to prove the crime, must also ensure the full implementation of the human rights of the arrested, detained, accused, and other participants in the proceedings. If there are acts violating the provisions of the Criminal Procedure Code on the order and procedures for resolving cases, applying preventive measures or violations in detecting, collecting, examining and evaluating evidence to infringe upon the legitimate rights and interests of the above subjects, especially those accused, they must compensate for damages and restore the honor and rights of the wrongly convicted; in serious cases, criminal liability may be prosecuted.
Ensuring human rights in criminal proceedings must be operated by an effective mechanism, in which: it is necessary to clearly stipulate the human rights of arrested, detained, accused, defendants as well as other related participants in the proceedings, on the basis of international criteria on human rights, in accordance with the requirements of ensuring human rights in each country; At the same time, it is necessary to stipulate the order, procedures as well as the responsibilities of related subjects to ensure the implementation of human rights of these subjects in the practice of investigation, prosecution and trial of criminal cases.
Thus, ensuring human rights in criminal proceedings is the legal recognition of human rights in criminal proceedings, determining the methods and legal measures to protect human rights and enforce those rights in the practice of resolving criminal cases.
Also, ensure human rights during the prosecution and investigation of cases.
Criminal law is the legal recognition of human rights in the stage of prosecution and investigation of criminal cases, determining legal methods and measures to protect human rights and enforce those rights in the practical process of prosecution and investigation of criminal cases.
1.2. The position and role of the People's Procuracy in ensuring human rights during the stage of prosecution and investigation of criminal cases
According to Article 107 of the 2013 Constitution, the People's Procuracy is an important agency with the function of exercising the right to prosecute and supervise judicial activities. The People's Procuracy has the duty to protect the Constitution and the law, protect human rights, citizens' rights, protect the socialist regime, protect the interests of the State, protect the legitimate rights and interests of organizations and individuals, contributing to ensuring that the law is strictly and uniformly enforced. With the above functions, the People's Procuracy has a wide scope of activities and legal powers in resolving criminal cases.
According to the provisions of the Law on Organization of the Procuracy 2014 and the Criminal Procedure Code 2003, the People's Procuracy is the agency conducting proceedings participating in all stages of criminal proceedings. Based on the position, role and function of the People's Procuracy, Resolution 08/NQ-TW dated January 2, 2002 of the Politburo on the key tasks of judicial work in the coming time emphasizes: The People's Procuracy at all levels must perform well the function of exercising the right to prosecute and supervise compliance with the law in judicial activities. Prosecution activities must be carried out right from the initiation of a case and throughout the proceedings to ensure that no criminals and criminals are left out, no innocent people are wrongly convicted, and violations of the prosecutor in the performance of their duties are promptly handled... The People's Procuracy at all levels is responsible for any wrongful convictions in the arrest, detention and temporary detention within its scope of responsibility.
The People's Procuracy performs the function of exercising the right to prosecute -