The Chief Prosecutor, Deputy Chief Prosecutor, Prosecutor, Chief Justice, Deputy Chief Justice of the People's Court, Judges, and People's Assessors, within the scope of their responsibilities, must respect the legitimate rights and interests of citizens, regularly examine the legality and necessity of the measures applied, and promptly cancel or change such measures if they are found to be in violation or no longer necessary [43].
This principle reflects the nature of socialist democracy: Always for the people, protecting human interests, respecting and promoting human rights. The principle reflects the equality before the law of citizens, the inviolability of the body of citizens as stipulated in the Constitution. The law also specifies the personal responsibility of those conducting the proceedings such as investigators, prosecutors, judges, and people's assessors, which means:
- When conducting investigations, prosecutions, trials and execution of sentences, officers working in investigation, prosecution, trials and prison management must treat suspects, defendants and convicted persons as human beings in society, strictly prohibiting persecution, torture...
- When necessary, the Investigation Agency, the Procuracy, and the Court have the right to decide on the measures to be taken against the suspect or defendant. Determining the necessity must be based on the provisions of the law and the specific requirements of the case, not on the subjective consciousness of the person. The measures applied are of a temporary nature, so if it is clearly no longer necessary, it is necessary to consider canceling those measures, such as changing the measures to be taken against the suspect or defendant, releasing them, etc.
+ Principle of ensuring the right to physical inviolability of citizens Article 6 of the Criminal Procedure Code stipulates: "No one may be arrested without a decision."
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"The arrest and detention of persons must comply with the provisions of this law. All forms of persecution and torture are strictly prohibited" [43].
This principle is stipulated in the Constitution of the Socialist Republic of Vietnam, and is the central principle throughout the implementation of the application of BPNC. The content of this principle reflects the right to inviolability of the body of citizens, which is one of the most important personal freedoms of human beings. The guarantee of this right is stipulated in the Criminal Procedure Code and is considered a basic principle of criminal procedure activities. This principle requires that the provisions on the basis, order, and procedures for applying BPNC must be strictly followed in practice.
All cases of arrest, temporary detention, and temporary imprisonment must comply with relevant provisions of the Criminal Procedure Code on authority, basis, and enforcement procedures. All cases of applying BPNC that do not comply with the provisions of the Criminal Procedure Code are violations of the law, infringing on citizens' democratic rights. Those who commit such illegal acts must be strictly handled depending on the nature and specific level to be considered as administrative violations or criminal offenses.
The right to physical inviolability of citizens is also protected by the Criminal Procedure Code in that corporal punishment cannot be pursued, even when arresting, detaining, or temporarily imprisoning people. People subjected to corporal punishment have some of their freedoms restricted, but the person with the authority to apply it must not violate the body or offend the honor or dignity of the person subjected to it.
+ Principles of protecting the life, health, honor, dignity and property of citizens (Article 7)
Life, health, honor, dignity, and property are sacred personal rights that are absolutely protected in a democratic and progressive society. In the national legal system, citizens' lives, health, honor, dignity, and property are always absolutely protected. Citizens' rights to have their lives, health, honor, dignity, and property protected are recognized in our country's Constitution. This is a constitutional principle reflected in the Law on Criminal Procedure. The principle stipulates:
- Citizens have the right to be protected by law regarding their life, health, honor, dignity, and property. These are the most basic and important human rights of citizens protected by law;
- It is strictly forbidden to infringe upon the life, health, property, honor and dignity of citizens in general criminal proceedings and in particular in the adjudication activities of competent agencies and persons; all violations shall be handled according to the law by measures such as disciplinary action, forced compensation or criminal prosecution;
- The 2003 Criminal Procedure Code has an important supplement that stipulates the responsibility of the prosecution agency to apply necessary measures to protect the participants in the proceedings and their relatives when their lives, health, honor, dignity, and property are threatened due to their participation in the proceedings. This not only stems from the need to protect the lives, health, honor, dignity, and property of citizens when participating in the proceedings, but also stems from the fact that recently, revenge against participants in the proceedings in general and criminal cases in particular has been relatively common, many cases are particularly serious.
+ The principle that no one can be considered guilty without a legally effective verdict of conviction by a court.
Article 9 of the Criminal Procedure Code stipulates that “No one shall be considered guilty and punished without a court verdict that has come into legal effect.” This is a basic and important principle not only in our country’s criminal procedure but also in international criminal procedure. A person is only considered guilty when there is a court verdict that has come into legal effect against that person. Or to put it more precisely, when there is no court verdict that has come into legal effect against a person, that person is considered innocent. The court is the only competent authority that has the right to judge a person guilty by a verdict of guilt in accordance with the procedures and order.
procedures prescribed by the Criminal Procedure Code. Offenders are only subject to punishment and other legal consequences when the court's judgment comes into legal effect. This principle demonstrates the central and especially important role of the court in ensuring human rights.
+ Principle of ensuring the right to defense of detainees, suspects and defendants (Article 11)
Some subjects participating in the proceedings, whose human rights such as the right to inviolability of the body, the right to freedom of residence and movement are detainees, suspects and defendants, are restricted. These people have the right to defend themselves or have others defend them. Proceeding agencies such as the Investigation Agency, the People's Procuracy, and the Court have the duty to ensure that detainees, suspects and defendants exercise their right to defense according to the provisions of the Criminal Procedure Code. From the provisions on the right to defense of the 1988 Criminal Procedure Code, the 2003 Criminal Procedure Code has stipulated an additional subject with the right to defend themselves or have others defend them, which is the detainee. At the same time, with the introduction of a new subject with the right to defense, the 2003 Criminal Procedure Code has also stipulated that the time for the defense counsel to participate in the proceedings is earlier than in the 1988 Criminal Procedure Code, that is, the defense counsel can participate in the proceedings right from the time of the detention decision. This is a very progressive regulation, ensuring that people arrested in emergency cases, people arrested in flagrante delicto or wanted while in detention can immediately exercise these basic democratic rights to protect themselves.
+ Principle of ensuring the right to compensation for damages and restoration of honor and rights of the wrongly accused (Article 29) and principle of ensuring the right to compensation of the person suffering damages caused by the competent authority or person conducting the proceedings (Article 30)
These are two very important basic principles newly added to the Criminal Procedure Code. The addition of these two principles has institutionalized the policy of uniformity.
The Party and State's consistent policy in implementing judicial reform in our country is to resolutely overcome cases of injustice and mistakes in criminal proceedings and ensure the right to compensation for damages caused by the prosecuting agencies and competent persons in the prosecuting agencies. It is from the provisions of these principles that arrest, detention and temporary detention must be even more careful, only in cases where arrest, temporary detention and temporary detention are really necessary, because most serious cases of injustice and mistakes start from the application of these strict preventive measures.
- Principle of ensuring the right to complain and denounce in criminal proceedings (Article 31)
Ensuring the right to complain and denounce is one of the important measures to detect and correct shortcomings and mistakes in the activities of individuals and agencies conducting proceedings, and is also an effective measure for citizens, agencies and organizations to use to protect their legitimate rights and interests in criminal proceedings. Therefore, the Criminal Procedure Code stipulates that ensuring the right to complain and denounce in criminal proceedings is a basic principle of criminal proceedings. The principle stipulates:
- Citizens, agencies and organizations have the right to complain, citizens have the right to denounce illegal acts in criminal proceedings by agencies and persons with authority to conduct criminal proceedings or by any individual belonging to those agencies;
- Competent authorities are responsible for receiving, considering and resolving complaints and denunciations promptly and legally in accordance with the order, procedures and authority prescribed by the Criminal Procedure Code; notifying the complainant or denouncer in writing of the settlement results and taking remedial measures. Unlike this principle stipulated in the 1988 Criminal Procedure Code, the principle of ensuring the right to make complaints and denunciations in criminal proceedings is stipulated in the 2003 Criminal Procedure Code more specifically and accurately. The 2003 Criminal Procedure Code has devoted a separate chapter to concretize this principle, specifically regulating the authority, order and procedures for resolving complaints and denunciations in criminal proceedings.
Second, regulations on the legal status of the litigant and the detainee, the accused and the defendant.
The 2003 Criminal Procedure Code clearly and specifically stipulates the duties, powers and responsibilities of those conducting the proceedings such as the Chief, Deputy Chief of the Investigation Agency, Investigator, Chief, Deputy Chief of the Procuracy, Prosecutor, Chief Justice, Deputy Chief Justice of the Court, Judge, Juror and Court Secretary.
For those holding leadership and management positions in prosecution agencies, the Criminal Procedure Code initially distinguishes between general duties, powers and responsibilities and duties and powers when directly carrying out prosecution activities to resolve specific criminal cases; distinguishes the duties and powers of these people from those of Investigators, Prosecutors, Judges and Jurors. Specifically:
- Clause 1, Article 34 of the Criminal Procedure Code stipulates the duties and powers of the Chief and Deputy Chief of the Investigation Agency in criminal proceedings; Clause 2, Article 34 of the Criminal Procedure Code stipulates the duties and powers of the Chief and Deputy Chief of the Investigation Agency when conducting the investigation of a specific criminal case. Article 35 of the Criminal Procedure Code stipulates the duties, powers and responsibilities of the Investigator when conducting the investigation of a criminal case;
- Clause 1, Article 36 of the Criminal Procedure Code stipulates the duties, powers and responsibilities of the Chief Prosecutor and Deputy Chief Prosecutor of the People's Procuracy in criminal proceedings; Clause 2, Article 36 of the Criminal Procedure Code stipulates the duties and powers of the Chief Prosecutor and Deputy Chief Prosecutor when exercising the right to prosecute and supervise compliance with the law in the proceedings for specific criminal cases. Article 37 of the Criminal Procedure Code stipulates the duties, powers and responsibilities of the Prosecutor when assigned to exercise the right to prosecute and supervise compliance with the law in the proceedings for specific criminal cases;
- Clause 1, Article 38 of the Criminal Procedure Code stipulates the duties, powers and responsibilities of
Responsibilities of the Chief Justice and Deputy Chief Justice in criminal proceedings; Clause 2, Article 38 of the Criminal Procedure Code stipulates the duties and powers of the Chief Justice and Deputy Chief Justice when handling specific criminal cases. Article 39 of the Criminal Procedure Code stipulates the duties, powers and responsibilities of Judges in handling criminal cases; Article 40 of the Criminal Procedure Code stipulates the duties, powers and responsibilities of Jurors in handling criminal cases; Article 41 of the Criminal Procedure Code stipulates the duties, powers and responsibilities of Court Secretaries. The specific regulation of the duties and powers of the litigants on the one hand prevents those people from abusing their powers, on the other hand ensures that citizens in general and participants in the proceedings in particular can monitor the activities of the agencies and litigants to protect their legitimate rights and interests.
In addition, the 2003 Criminal Procedure Code has many amendments and supplements to the procedural status of litigants in the direction of increasing the rights of litigants so that they have sufficient legal basis to protect their legitimate rights and interests when participating in litigation. Specifically:
- Detainees, suspects and defendants are entitled to receive procedural decisions related to their legitimate rights and interests; to know what crimes they are being detained, prosecuted or accused of; to present statements, provide evidence and make requests; to have the right to defend themselves or have someone else defend them; to complain not only about decisions but also about procedural conduct of competent authorities conducting proceedings;
- Ensuring the right to defense is one of the important issues in ensuring human rights and civil rights in criminal proceedings. In the 2003 Criminal Procedure Code, lawmakers have also made important additions when regulating the procedural status of defense counsel. The Criminal Procedure Code stipulates the responsibility of the agency conducting the proceedings to issue a defense counsel certificate to the defense counsel. If refused, the reason must be clearly stated. Defense counsel participates in the proceedings from the time of
decisions on temporary detention; to see the minutes of the proceedings in which they participated and to see the procedural decisions related to the person being defended; the defender is allowed to collect evidence, photocopy related documents; to complain about the decisions and procedural actions of the competent person conducting the proceedings (Articles 56, 58). At the same time, to enhance the responsibility of the defender towards the defendant and towards the proper and objective resolution of the case in order to protect the interests of the State, the Criminal Procedure Code stipulates that they must be present upon summons from the Court; must not bribe, incite, or force others to give false statements; must not disclose investigation secrets or use documents related to the case for other purposes that infringe upon the interests of the State, the rights and legitimate interests of agencies, organizations and individuals (Article 58).
Third, ensuring human rights through the provisions of the Criminal Procedure Code on the purpose, basis, authority, and procedures for applying preventive measures.
In the process of resolving criminal cases, the prosecuting agencies are allowed to apply preventive measures, including arrest, temporary detention, and temporary imprisonment. To avoid exploitation and abuse by the prosecuting agencies and the prosecutors when applying measures with high risk of violating human rights, the Criminal Procedure Code strictly stipulates the purpose, basis, authority, and application procedures.
Purpose of applying preventive measures
Article 79 of the Criminal Procedure Code stipulates that preventive measures are applied for two purposes: To prevent crimes from continuing to occur and causing damage to society, to prevent criminals from continuing to commit crimes or to obstruct investigation, prosecution, trial, and execution of sentences, avoiding legal punishment; To create favorable conditions for the agencies conducting the proceedings to resolve the case, such as not allowing criminals to erase traces of the crime, destroy evidence,