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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 - 1

ACADEMY

VIETNAMESE SOCIAL SCIENCES

Academy of Social Sciences


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NGUYEN HUU HAU


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 - 1

“GUARANTEEING THE HUMAN RIGHTS OF THE ACCUSED IN THE PROSECUTION ACTIVITIES OF THE PROSECUTION IN THE STAGES OF PROSECUTION, INVESTIGATION, PROSECUTION,

"TRIAL OF CRIMINAL CASES"


Industry: Criminal law - criminal procedure Code: 9 38 01 04


DOCTORAL THESIS IN LAW


Scientific supervisor: Associate Professor, Dr. TRAN DINH NHA


Hanoi, 2019


COMMITMENT


I hereby declare that this is my own scientific research work.

The statistics in the thesis are completely honest and done by me.

The research topic and scientific conclusions of the thesis have never been published in any other work. All cited information and references in this thesis are clearly indicated.

The author of the thesis would like to sincerely thank the sincere help of teachers, scientists of the Vietnam Academy of Social Sciences and scientists outside the Academy who have imparted and provided knowledge for the PhD student to successfully complete this thesis.


Thesis author


NGUYEN HUU HAU


INDEX

INTRODUCTION 1

Chapter 1: OVERVIEW OF RESEARCH SITUATION AND ISSUES THAT NEED FURTHER RESEARCH 13

1.1. Overview of research situation 13

1.2. Overview of research situation abroad 27

1.3. General assessment of the research situation related to the thesis and issues that need further research 33

Chapter 2: THEORETICAL ISSUES ON PROTECTING HUMAN RIGHTS OF ACCUSED PERSONS IN PROOFING ACTIVITIES

PROSECUTOR'S CHARGES 40

2.1. Concept, characteristics, content, and significance of ensuring human rights of the accused in the prosecution's activities of proving the accusation 40

2.2. Basis, elements, requirements, and methods of ensuring human rights of the accused in the prosecution's activities of proving the accusation 69

2.3. Criteria for evaluating (or determining) the effectiveness of ensuring the human rights of the accused in the prosecution's activities of proving the accusation 90

2.4. A brief review of the formation and development of the institution to ensure human rights of the accused in the activities of proving the accusation of the Procuracy 94

Chapter 3: PRACTICE OF ENSURING HUMAN RIGHTS OF ACCUSED PERSONS IN THE PROSECUTION ACTIVITIES OF THE PROSECUTION 101

3.1. Practices in ensuring human rights of accused persons at the initial stages

criminal case 101

3.2. Shortcomings and shortcomings in ensuring human rights of accused persons at the stages of prosecution, investigation, indictment and trial in the past 112

3.3. Causes of limitations and difficulties 118

Chapter 4: VIEWPOINTS AND SOLUTIONS TO STRENGTHEN THE GUARANTEE OF HUMAN RIGHTS OF ACCUSED PERSONS IN THE ACTIVITIES OF THE PROSECUTORATE AT THE STAGES OF PROSECUTION, INVESTIGATION, AND PROSECUTION

PROSECUTION, TRIAL 122

4.1. Orientation viewpoint to continue ensuring human rights of accused persons in the activities of proving accusations of the Procuracy 122

4.2. Solutions to continue perfecting criminal procedure law and documents guiding, explaining the law, directing professional activities, perfecting professional theory textbook 124

4.3. Solutions to strengthen the activities of the Procuracy to ensure human rights

of the accused 129

4.4. Other solutions 146

CONCLUSION 150

LIST OF TABLES


[TABLE 3.1 a] PROSECUTION PROTECTS HUMAN RIGHTS THROUGH APPROVAL OF ARREST, DETENTION, AND PROSECUTION FOR 10 YEARS (2009-2018)

[TABLE 3.1 b] PROTECTING HUMAN RIGHTS THROUGH NOT APPROVING AND CANCELLING ILLEGAL PRESS DECISIONS

[TABLE 3.2] - PROSECUTION PROTECTION GUARANTEE HUMAN RIGHTS DURING INVESTIGATION PHASE [TABLE 3.3] - PROSECUTION PROTECTION GUARANTEE HUMAN RIGHTS DURING PROSECUTION PHASE [TABLE 3.4] - PROSECUTION PROSECUTION GUARANTEE HUMAN RIGHTS FIRST INSTANCE TRIAL OF 10 YEARS (2009-2018)

[Table 3.5] PROSECUTION PROTECTS HUMAN RIGHTS THROUGH LIMITING SENTENCES FOR ADDITIONAL INVESTIGATION FOR 10 YEARS

INTRODUCTION

1. Urgency of the thesis topic

Ensuring the human rights of the accused in the activities of proving the accusation of the Procuracy at the stages of initiating, investigating, prosecuting and trying criminal cases is an important content in practice and scientific research. However, for a long time, this topic has not received much attention and research due to many objective and subjective reasons, shown in the following aspects:

In terms of theory: In addition to the generally accepted theoretical issues related to the thesis topic such as the human rights of the accused in the Vietnamese Criminal Procedure Code are compatible with the International Declaration of Human Rights as well as international conventions on human rights at each level, there are a number of topics that study the guarantee and protection of human rights through the trial activities of the Court or only study the guarantee and protection of human rights through the implementation of the function of practicing the right to prosecute and supervise judicial activities of the Procuracy. In addition, there are still many concepts with related content that are still open in theory or have been studied but not deeply, specifically the content of the concept of the activity of proving the accusation of the subject of the accusation (especially the subject of the accusation is the Procuracy), especially the guarantee of human rights of the accused in the activity of proving the accusation of the Procuracy in relation to the implementation of the right to be presumed innocent, the right to prove innocence, the right not to incriminate oneself, the right to defend, litigate to determine the truth of the case, there is no research work, etc.

In terms of positive law: The provisions of the 2003 Criminal Procedure Code, through practical application, are still found to have many contradictions and inadequacies, significantly affecting the failure to ensure the human rights of the accused, specifically in Article 79 on the basis for applying preventive measures of temporary detention, which are very general and subjective in nature : In order to promptly prevent crimes or when there is evidence that the accused will cause difficulties for the investigation, prosecution, trial or will continue to commit crimes... one of the preventive measures can be applied: arrest, temporary detention, temporary detention... The implicit recognition of the "Right to remain silent" of the accused by the provisions of Clause 4, Article 209: If the accused does not answer the questions, the Trial Panel, the Prosecutor, the defense attorney, the person protecting human rights

The interests of the litigant continue to question other people and examine evidence and documents related to the case. Currently, the 2015 Criminal Procedure Code has overcome this by recognizing the right not to self-incriminate the accused such as: "Present statements, present opinions, not be forced to give statements against oneself or be forced to admit guilt" (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 all stages: prosecution, investigation, indictment, trial, and also needs to be explained clearly in theory;

In terms of practice: The mechanism to ensure the human rights of the accused is not feasible, and the role and responsibility of the Procuracy, which is both the prosecution agency and the prosecution agency, but at the same time is the agency responsible for ensuring the human rights of the accused throughout all stages of criminal proceedings, has not been seen.

In fact, for a long time, many injustices and mistakes have occurred due to forced confessions and torture. The basic reason is the lack of proper and complete awareness of the human rights of the accused, violating the classic principle of "presumption of innocence", not distinguishing between the concepts: person suspected of committing a crime, person guilty, person committing an act dangerous to society, person being prosecuted for criminal liability, not clearly distinguishing between the functions of criminal proceedings, etc.

In practice, the activities of proving crimes and criminals in general and the activities of proving accusations by the Procuracy in particular in the stages of initiating, investigating, prosecuting and trying criminal cases in the past (from 2009-2018) still have many violations, shortcomings and infringements on human rights as assessed in the Resolutions of the Party such as Resolution No. 08-NQ/TW dated January 2, 2002 of the Politburo on "Some key tasks of judicial work in the coming time" stated: "..the quality of judicial work in general is not on par with the requirements and demands of the people; there are still many cases of letting criminals escape, wrongly convicting innocent people, violating the freedoms and democracy of citizens, reducing the people's trust in the Party, the State and judicial agencies...". Resolution 49-NQ/TW dated June 2, 2005 of the Politburo on “Judicial Reform Strategy to 2020” also assessed: “.. there are still cases of injustice and mistakes in investigation, arrest, detention, imprisonment, prosecution, and trial…”..

In report No. 870/BC-UBTVQH13 dated May 20, 2015 of the National Assembly Standing Committee on the results of monitoring the situation of injustice and wrongful convictions, it was clearly stated: “…the situation of prosecution, investigation, suspension of investigation, suspension of cases due to acts that do not constitute a crime, due to exemption from criminal liability has signs of wrongful conviction of innocent people. The cases of wrongful convictions are all serious, greatly affecting the honor, dignity, health, and property of the wronged people; there are a number of particularly serious cases that have caused public outrage, loss of people's trust in justice, and reduced the prestige of law enforcement agencies. Many cases of incorrect arrest, temporary detention, and temporary detention have to be transferred for administrative handling; the number of defendants for less serious crimes who are temporarily detained is still high, showing signs of abuse. There have been a number of cases of torture, some of which have resulted in death, causing public outrage... The main causes of these wrongful convictions are mainly due to the subjective faults of some people conducting the proceedings (poor qualifications, capacity, limited responsibility and professional ethics) and due to many shortcomings in legal regulations such as the grounds for emergency arrest, temporary detention, and temporary detention are not strict, in some cases, due to too much trust in the defendant's confession and not paying attention to detecting, collecting, and consolidating other evidence from the beginning (taking witness statements, identifying, confronting...), so when the defendant changes his testimony or the victim changes his testimony, he is confused and passive; The re-investigation process encountered many difficulties, the number of cases that had to return the investigation file for additional investigation was still high, prolonging the settlement of the case, especially allowing some serious violations of the law, infringing on human rights, civil rights of the suspect of committing the crime ... The quality of the appraisal also revealed many limitations and inadequacies such as not being able to appraise traces of blood, hair, and fur at the scene to trace individuals, establish evidence to see who it belonged to (victim or perpetrator); many cases had to be appraised multiple times and the appraisal results were very different, leading to difficulties in handling the case; the appraisal conclusions in some cases showed signs of being not objective...

In Report No. 11/VKSTC dated January 19, 2015 of the Supreme People's Procuracy on the summary of 10 years of implementing the Criminal Procedure Code, it was assessed: "...The rate of people arrested and detained without sufficient grounds for criminal prosecution has decreased but remains high; the application of temporary detention measures still shows signs of abuse, not promptly canceling temporary detention measures when no longer necessary; allowing a number of cases to exceed the time limit for temporary detention without timely issuance of temporary detention orders or extension of temporary detention.

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