Ensuring human rights of the accused in the activities of proving the accusation of the Procuracy during the stages of initiating, investigating, prosecuting and trying criminal cases

One or more issues specified in Article 85 and Article 441 of the 2015 Criminal Procedure Code, without which the case cannot be resolved objectively, comprehensively, and in accordance with the law.

Procedural accusation is "The synthesis of procedural activities of the subject with the function of accusing according to the provisions of criminal procedure law to detect the offender, prove his/her fault, ensure judgment and punishment for that person" [89, page 74]. In other words, procedural accusation is a synthesis of specific procedural actions and decisions of the subject with the function of accusing in order to collect, examine, evaluate and use evidence to prove the correctness of the accusation on the content given to the accused person, specifically, to collect evidence to determine property damage, health, it is mandatory to have a decision to request a financial-accounting appraisal to determine the value of damaged property, the percentage of disability for health, etc. The accusation on content and the accusation on procedure have a close, organic relationship with each other dialectically as the expression of content and form, accordingly, the accusation on content is the basis for the orientation of the accusation on procedure to progress and vice versa, the accusation on procedure helps the accusation on content have full legal and practical bases to affirm the correctness of the accusation on content.

Currently, there is a view that: Accusation on content is understood as the content of the accusation, while accusation on procedure is the accusation procedure . The author of the thesis believes that if we understand accusation on content as the content of the accusation, it is too narrow; because accusation on content to perform the accusation function is understood in a broad sense as all accusation activities including issues that need to be proven in criminal cases against individuals, against legal entities and against people under 18 years old as prescribed in Article 85, Article 416, Article 441 of the Criminal Procedure Code 2015. The limits and scope of proving accusation arise from the time of receiving denunciations, crime reports, conducting investigation activities, verifying and collecting evidence, checking, evaluating, using evidence until making decisions to accuse or not accuse such as suspending, withdrawing prosecution or issuing a legally effective judgment of conviction or declaring innocence. In another aspect, the content of the accusation is also understood in a narrow scope, that is, the content of the accusation against a specific criminal or the content of the accusation according to the investigation conclusion of the Investigation Agency or the content of the accusation according to the Indictment of the Procuracy; The accusation procedure in a narrow sense is understood as the procedure for initiating, investigating, prosecuting, and trying.

for a specific criminal, which in practice is called the procedural process for a specific criminal. The author of the thesis considers that accusation in litigation is a synthesis of the acts and decisions of the subject with the function of accusation, expressed through the collection, examination, evaluation and use of evidence to prove the correctness of the content of the accusation against the accused; That is, it is necessary to reveal the circumstances of conviction, the circumstances of determining the penalty, the circumstances that are meaningful for deciding the penalty, the circumstances related to resolving the issue of civil liability in criminal cases, handling evidence, determining the causes and conditions of committing the crime.

The principle of presumption of innocence to prove a subject guilty must follow the correct procedures and rules prescribed by law and must have a Court's verdict (with legal effect). Any doubt about the guilt of the accused, if it cannot be eliminated according to the procedures and rules prescribed by law and when there is no consensus in the interpretation and application of legal norms, must be resolved in their favor (Article 11 of the 1948 United Nations Declaration of Human Rights and Article 14 of the 1966 United Nations International Covenant on Civil and Political Rights both stipulate).

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Ensuring the right to be presumed innocent means: The accused must be considered innocent until their guilt and fault are proven according to the legal procedure, in accordance with the principle "Unproven guilt means proven innocence" . This principle not only helps to distinguish one crime from another, but also helps the Prosecutor detect "errors in formal logical thinking" when declaring the criminal acts of the accused, to refute and refute wrong thoughts according to fallacious thinking aimed at concealing the crime and fault of the accused, to refute and refute wrong thoughts according to fallacious thinking aimed at concealing the crime and fault of the accused.

The activities of the Procuracy to prove the accusation at the stages of investigation, prosecution and trial against the accused must be carried out according to a procedure prescribed by law, which requires compliance with legal procedures to combat arbitrary persecution as defined in Article 7 of the 2015 Criminal Procedure Code: "All criminal proceedings must be carried out according to the provisions of this Code. It is not allowed to handle information about crimes, initiate prosecution, investigate, prosecute and try cases outside the grounds and procedures prescribed by this Code". Failure to comply with legal regulations is a serious violation of the principle of legality, so all evidence will be invalid. Requirements for proving the guilt and fault of the accused and the accused

The issue of the responsibility to prove the crime is stipulated in Article 15 of the 2015 Criminal Procedure Code: “The responsibility to prove the crime belongs to the competent authority conducting the proceedings. The accused has the right but is not required to prove his innocence”. This principle places the responsibility to prove the accusation on the prosecuting agency and the subject of the accusation. To ensure this requirement, Article 10 of the Criminal Procedure Code of our country has set forth the principle of prohibiting torture, forced confession, corporal punishment or any other form of treatment that violates the body, life, health of a person or other illegal forms in the process of collecting evidence and carrying out other procedural activities. The accused has the right but is not obliged to prove his innocence, which means: the accused always has the right to defend himself or to have someone else defend him, the right to present evidence to prove his innocence or not to incriminate himself (also known as the “right to remain silent”) in accordance with the 1966 International Convention: “…not to be compelled to testify against himself or to confess guilt” (Article 14.3 of the Convention). The verdict of conviction must be based on evidence that has been examined and evaluated at the trial, proving the defendant’s guilt. Circumstances brought up by witnesses and other participants in the proceedings cannot be used as evidence if they cannot clearly explain how they know that circumstance. Article 13 of the 2015 Criminal Procedure Code stipulates: "When there is insufficient and it is impossible to clarify the basis for charging and convicting according to the procedures prescribed by this Code, the competent authority or person conducting the proceedings must conclude that the accused is not guilty" and this content is also consistent with the principle of "speculating on the legality of the act".

Criminal procedural law is a means of concretizing the rights and obligations of citizens and people in the Constitution in the field of criminal proceedings; it is a means to limit the power of competent agencies and persons conducting proceedings and through that to ensure and protect the human rights of the accused, at the same time prevent and stop acts of infringement by any agency, organization or individual on their rights, it is a legal means, by different methods, ways and measures, to protect and ensure human rights and citizens' rights when they are illegally violated during the process of proving the accusation.

During the process of conducting proceedings, the practice of the right to prosecute and the act of accusing have a strong impact on the accused and must be limited.

limited by the order and procedures of criminal procedural law when conducting investigative measures to collect evidence, but must be based on ensuring human rights and their procedural rights to have legal value (including special investigative procedures), because the limit of the impact of criminal law adjustments is the limit of criminal behavior. Therefore, it is impossible to arbitrarily arrest, prosecute, and investigate someone if their behavior does not have enough elements to constitute a crime. On the contrary, the human rights and procedural rights of the accused must be limited by the accusation activity for the reason of maintaining public order, protecting society from acts of taking advantage of human rights, democratic freedoms to commit crimes that destroy public order and the personal security of others, so they must be handled according to the law.

The history of human criminal proceedings is the process of seeking justice, implementing justice to protect justice, so justice is considered a mandatory requirement to ensure people's rights. In ancient times, people believed that justice was a right given to people by nature and that justice could only be achieved through the rule of law. Therefore, the basic rights of the accused individual can be nullified or denied enforcement by the prosecuting agencies and the litigation mechanism so that the subject conducting the proceedings intentionally fails to properly perform their roles and responsibilities, thus failing to fully and promptly meet the basic rights of the accused according to the procedural principles set forth, so there must be an agency to inspect, supervise the implementation and handle violations; in our country, that is the People's Procuracy.

Accusation activities are activities of the subject of accusation, including activities such as decisions to arrest, detain, decide to prosecute the accused, decisions to apply preventive and coercive procedural measures, activities to conduct investigative measures to collect evidence such as crime scene examination, autopsy, investigative experiments, expert conclusions, questioning of the accused, confrontation, identification, issuing investigation conclusions to propose prosecution, decisions to prosecute by indictment (or decisions to prosecute according to the simplified procedure), announcing the indictment and impeachment to charge the accused at the trial. These procedural acts are all carried out by the Procuracy or by the Investigation Agency, but the procedural acts carried out by the Investigation Agency are all approved by the Procuracy. Thus, in our country, the People's Procuracy

The People's Procuracy is the constitutional body assigned by the State with the power to prosecute on behalf of the State by stipulating that the People's Procuracy has the function of exercising the State's right to prosecute and supervise judicial activities as shown in Article 107 of the 2013 Constitution and in Articles 1, 3 and 18 of the Law on Organization of the People's Procuracy 2014.

The exercise of the right to prosecute is the State's accusation of a criminal, so the "subject of the accusation" is the criminal, that is, the person who actually committed the crime; The accusation includes a series of procedural activities right from the time of receiving the denunciation, crime report, petition for prosecution and throughout the process of prosecution, investigation, prosecution and trial of the criminal case. If the accusation is not clearly and fully proven, there is still reasonable doubt, the purpose of the accusation is not achieved and is rejected, the accused person will enjoy the right to be vindicated and compensated for damages caused by the injustice.

The activities of the Procuracy in proving crimes and criminals are always linked to the activities of accusation, so it is called the activity of proving accusation . In the process of resolving criminal cases, it is in contrast to the right not to self-incriminate of the accused, so the scope of exercising the right not to self-incriminate of the accused should not be understood as being limited to the scope of affecting the testimony, which is not completely complete and comprehensive. Because, the right not to self-incriminate of the accused can also be understood through the following four (04) contents:

Firstly , the right not to incriminate oneself of the accused means “not being forced to testify against oneself or being forced to admit guilt” as stipulated in Point d, Clause 1, Article 58, Point c, Clause 2, Article 59, Point d, Clause 2, Article 60, Point h, Clause 2, Article 61 of the 2015 Criminal Procedure Code and this right is expressed at the stages of prosecution, investigation, prosecution, and trial;

Second, the accused person can perform acts of self-incrimination voluntarily expressing his/her will (confessing guilt) or the accused person can perform acts of self-incrimination due to performing obligations as prescribed by the Criminal Procedure Code;

Third, the accused person may commit acts of self-incrimination due to coercion or compulsion by the accuser;

Fourthly, the nature of the accused's right not to self-incriminate must be reflected in their free will regarding self-incrimination; that is, self-incrimination can be accepted if it is done voluntarily. If they are influenced by any illegal factors leading to self-incrimination against their free will, this must be considered a self-incrimination that has no legal value and therefore cannot be used as evidence to charge them (because it violates many procedural principles such as: the principle of legality, the principle of presumption of innocence, the principle of determining the objective truth of the case, the principle of defense, litigation, etc.) because the purpose of the accused's right not to self-incriminate is to prevent self-incrimination against their free will and according to the 2015 Criminal Procedure Code, in addition to the confession or not guilty statement; must also be considered and evaluated based on other evidence of the case in an objective, comprehensive and complete manner.

According to Articles 189, 190, 191, and 204 of the 2015 Criminal Procedure Code, the accused may or must perform acts that are obligatory to perform in order to create evidence - namely: confrontation, identification, voice recognition, and conduct during investigative experiments. These are activities to prove the accusation that require the full participation of the Prosecutor (Point d, Clause 1, Article 42 of the 2015 Criminal Procedure Code). According to the above provisions, the accused may be requested by the Investigation Agency or the Procuracy to participate in these activities and the accused is obligated to perform them. These acts of the accused are performed through the request of the Investigation Agency or the Procuracy and end with a procedural record for each act and according to the provisions of the 2015 Criminal Procedure Code, these records can be used as evidence to charge the accused. In addition, in criminal proceedings, the accused can comply with the requests of the prosecuting agency and the prosecutor such as: requesting to provide handwriting, signature, DNA sample (gene), fingerprint sample, blood sample, urine sample, tooth sample, hair, password to access electronic devices... to serve the investigation, prosecution, and trial, so the accused has the obligation to comply with the request of the competent prosecutor and thus it is shown that the accused has indirectly proven the self-incrimination against himself, because "...the person performing the act must use their skills, knowledge or memory" [59, page 30]. In case the accused abuses the right not to self-incriminate, the right to prove innocence to claim injustice or when admitting

In case of a defendant being prosecuted for a crime, when denying the crime or showing signs of coercion, prompting, luring, or torturing, or in case the defendant is prosecuted for a crime for which the Penal Code stipulates a penalty of 20 years, life imprisonment, or death, the prosecutor must directly question the defendant, focusing mainly on uncovering contradictions in order to uncover issues that need to be proven. For the accused who is a foreigner or an ethnic minority, a mute or deaf person, it is necessary to request an interpreter or a defense attorney from the beginning, or for the accused who is under 18 years of age, a guardian is required, and the prosecutor must pay attention to participating in the initial interrogation immediately after the record of the crime is drawn up, when the subject has just been arrested, evaluating the confession and revealing accomplices of first-time offenders. In cases where it is difficult to distinguish subjective consciousness, signs of conviction, framing, aggravating circumstances, mitigating circumstances between serious and minor crimes, it is necessary to grasp the specific legal signs of each crime and rely on the classification of evidence to use evidence to prove it. In addition, the right not to self-incriminate of the accused is also clearly demonstrated in the exercise of the right to remain silent when being "questioned" during the investigation, prosecution and trial stages. In these cases, it is necessary to pay attention to the personal characteristics, criminal records and previous convictions of the accused and have appropriate behavior. Resolutely do not let professional criminals take advantage of this right to cause difficulties for the investigation, prosecution and trial process. According to the thesis author's point of view: To ensure the right not to self-incriminate of the accused when performing the responsibility to prove the accusation, the Procuracy/Procurator must assess the legality or illegality of the act of self-incrimination, whether it is voluntary or forced; Whether the accused's act of providing evidence reveals their thoughts or not; or if it is a confession, it is necessary to consider whether the confession is completely voluntarily confessed by the accused and whether it is consistent with other evidence or not?; or it is necessary to check the authenticity of the confession to see if it is consistent with other evidence or not to recognize or reject it in order to avoid the abuse of their right not to self-incriminate to cause difficulties for the investigation, prosecution and trial process; at the same time, it will limit violations of the law by the subjects of accusation and conviction during the proceedings of the case, then only then can the objective truth of the case be reached, that is, to prove the accusation and conviction of the right person, the right crime, and the law; not to wrongly accuse the innocent, not to let criminals and criminals escape.

The assessment of whether a testimony is reliable and has evidentiary value to be used as evidence (to convict or exonerate) must fully possess the three attributes of evidence: objectivity, relevance and legality according to Article 86 and Clause 2, Article 87 of the 2015 Criminal Procedure Code.

Research on the activity of proving accusation through questioning or taking statements from the accused to collect evidence shows that there are four common situations: First, the accused honestly confesses his guilt; second, the accused denies the accusation; third, the accused makes false statements; and fourth, the accused refuses to testify.

Therefore, excluding the accused person's honest confession, the prosecutor only needs to check, evaluate, and determine the consistency with other evidence of the case. Because, "The statement of the arrested person, the detained person, the accused person, the defendant affirming the correctness of the accusation is called a confession. The confession can be of a complete nature, that is, admitting the correctness of the entire accusation, or it can be of a partial nature, that is, admitting the correctness of only a part of the accusation" [63, page 110]. For example, the accused may admit to murder but not admit to murder for many different motives and purposes such as: despicable motives, the purpose of opposing the people's government, robbery, rape... In the situation where the accused person has a statement denying the accusation, that is, not admitting guilt, the prosecutor must use the evidence available in the evidence source to fight against leaks during the interrogation by asking questions to check, recall, and detail the statement, because "The accused person's statement denying the accusation, that is, not admitting guilt, can also be of a total nature, that is, not admitting the entire content of the accusation, or can be of a partial nature, that is, admitting that he/she has committed some acts but not admitting the criminal nature of those acts" [63, page 111], so we must be extremely careful and objective in this situation. In the case of a person accused of lying, it is a complicated situation that requires the prosecutor to find out the reasons, such as the defendant is afraid that if he tells the truth, he will be severely punished, or it will affect his family, reputation, or he is afraid of revenge from his accomplices, or because of backward superstition, or because of hostile thoughts, or because he thinks that the investigator does not have evidence of his crime, so he makes a false statement or makes a small statement...so the prosecutor must have tactics and techniques to fight so that the defendant voluntarily confesses.

Ensuring human rights of the accused in the activities of proving the accusation of the Procuracy during the stages of initiating, investigating, prosecuting and trying criminal cases - 8

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