The Standing Committee of the National Assembly issued Resolution No. 388/2003/NQ-UBTVQH11 dated March 17, 2003, specifically defining the order, procedures, forms, and responsibilities of agencies and persons conducting the proceedings for wrongful convictions and errors in criminal proceedings, as well as stipulating measures to restore the legitimate rights and interests of those wronged in criminal proceedings. Summary of the practice of 4 years of implementing Resolution No. 388 has identified many cases of wrongful conviction of citizens, requiring compensation and handling of responsibilities for those conducting the proceedings, specifically: (1- 27 compensation cases under the responsibility of the Investigation Agency, of which 19 cases have been resolved with compensation amount of 1,248,800,000 VND, 8 cases are being negotiated; 2- 57 compensation cases under the responsibility of the Procuracy with compensation amount of 3,200,000,000 VND; 3- 101 compensation cases under the responsibility of the Court, of which 89 cases have been negotiated with compensation amount of 10,354,000,000 VND) [5]. In order to create a synchronous and specific legal mechanism to effectively implement the State's responsibility to citizens, on June 18, 2009, the National Assembly passed the Law on State Compensation Liability (replacing previous documents regulating this field). Thus, it can be seen that nearly 10 years of implementing the 2003 Criminal Procedure Code is also the time when important steps have been taken to perfect the mechanism of compensation for wrongful convictions of our country's criminal justice system.
Fifth , the litigation time limits and procedural formalities are significantly shortened.
One of the important requirements of criminal justice reform is to speed up the progress of resolving criminal cases, and criminal procedure activities must ensure the principles of timeliness, accuracy, and economy. These criteria are the measure of the effectiveness of a judicial system. On that basis, the completion of the criminal procedure model in our country has achieved the following results: 1) Supplementing the simplified procedure (which significantly shortens both the time limit and the procedure) for cases that meet the following 4 conditions: the person committing the crime is caught red-handed; the crime is simple, the evidence is clear; the crime committed is a less serious crime; the offender has a clear identity and background. 2) Shortening some procedural time limits during the investigation, prosecution, and trial stages
3) Supplementing procedural time limits that were not previously regulated by law to ensure that all procedural activities of procedural agencies must be strictly bound by procedural time limits; on that basis, the 2003 Criminal Procedure Code has 28 articles supplementing procedural time limits that were left blank in the 1988 Criminal Procedure Code.
Sixth , mechanisms for supervising litigation activities are supplemented and improved . Maybe you are interested!
Determining the price of residential land for compensation when the State recovers land according to current Vietnamese law - 2
Prohibition of discrimination in Vietnamese labor law - Current situation and some recommendations - 2
Current Status of Credit Quality at Vietnamese Joint Stock Commercial Banks
Current Status of Foreign Currency Business Development in the International Market of Vietnamese Commercial Banks
Crimes of Violating the Duties and Responsibilities of Military Personnel According to the Provisions of Vietnamese Criminal Law from 1945 to Before the Promulgation of the Criminal Code
The participation of the Procuracy at all stages of the proceedings with the constitutional function of supervising compliance with the law in judicial activities has contributed to ensuring that the proceedings comply with the provisions of the law, ensuring human rights in the process of resolving criminal cases in the context of many socio-economic difficulties, low educational level, and a lack of quantity and quality of lawyers. Along with that, the specific regulations on the supervisory responsibilities of state agencies, the Vietnam Fatherland Front Committee, member organizations of the Front, and elected representatives for the activities of the proceedings agencies and the litigants; as well as the expansion of the scope of participation of defense counsels, the addition of a number of important rights for defense counsels in the Criminal Procedure Code have created an important monitoring channel for criminal procedure activities.
3.1.3. Limitations of the current Vietnamese criminal procedure model
Besides the above advantages, the current TTHS model in our country also reveals the following basic limitations:
Firstly, there is a lack of fundamental principles to ensure fairness, equality, better guarantee of human rights and civil rights in the process of resolving criminal cases, and to promote the responsibility of prosecution agencies in the process of resolving cases.
The principles of TTHS are specific requirements and guidelines.
ensure that the content of the TTHS model becomes legal reality through legal institutions and norms and through the organization and operation of the subjects participating in the proceedings. Each TTHS model has its own system of specific principles. The principles of TTHS are the conditions for achieving the purpose of TTHS. If the purpose of the proceedings is what the TTHS activities need to achieve, the principles of TTHS show us how to achieve that result. That means that the principles have a supporting role in implementing the goals of TTHS.
Efforts to reform the judiciary in recent times in our country have achieved many important results, including the contribution of identifying appropriate procedural principles. However, the process of conducting proceedings and resolving criminal cases still has limitations and difficulties, including the cause of not recognizing progressive and meaningful principles as objective requirements for criminal procedure activities.
If we talk about the number of basic principles of criminal procedure recorded in the law, we can see that our country's criminal procedure law records a fairly large number of principles compared to many countries in the world (30 principles, expressed from Article 3 to Article 32 of the 2003 Criminal Procedure Code). However, in this system of principles, there is a lack of basic principles that serve as the basis for ensuring fairness, equality, ensuring human rights, civil rights and promoting the responsibility of the prosecution agencies in resolving criminal cases.
The current Criminal Procedure Code does not recognize litigation as a principle of criminal procedure, and only recognizes the principle of ensuring equality before the Court (Article 19 of the 2003 Criminal Procedure Code), which means only ensuring equality at the trial stage and not throughout the process of resolving the case. The failure to recognize litigation as a principle of criminal procedure, along with the recognition and assurance of fairness at the trial stage, has clearly demonstrated the limitations of our country's criminal procedure model. This limitation is a manifestation of the failure to fully recognize the objective needs of litigation.
in the criminal procedure and will not create a basis for ensuring the principle of presumption of innocence, the principle of ensuring the right to defense of the accused is fully reflected in the provisions of law and effectively enforced in practice.
Presumption of innocence is an important principle of criminal procedure, which has great significance for the practice of fighting and preventing crime, governing the attitudes and activities of the prosecution agencies in the entire process of resolving cases. In our country, presumption of innocence was first recognized in the 1988 Criminal Procedure Code (Article 10); was enshrined in the 1992 Constitution (Article 72) and continued to be affirmed in the 2003 Criminal Procedure Code. However, the recognition as in the current Criminal Procedure Code has some limitations: First , it has not clearly defined who is presumed innocent. The Criminal Procedure Code (Article 9) uses the phrase "no one", meaning that both the accused, the unaccused, and the person who has no legal problems can be presumed innocent, which is not accurate. Second , there is a lack of provisions on procedures and determining the responsibility to prove the guilt of the person presumed innocent. Third , the very important requirement of the presumption of innocence is lacking, which is that in cases where assumptions and doubts are raised during the criminal procedure that cannot be proven or disclosed by legal means, the accused must be presumed guilty.
If a person is charged, he/she must be defended and exonerated, that is the requirement of civilized justice. The model of criminal procedure also recognizes the principle of ensuring the right to defense, but only for the subjects who are detainees, suspects, and defendants (Article 11), and does not recognize the right to defense of the arrested person. This is a limitation of the criminal procedure model in our country, therefore, throughout the provisions of the Criminal Procedure Code, the arrested person is not given any mechanism to defend himself/herself. In addition, in the stage of receiving and handling denunciations, reports of crimes and recommendations for prosecution, the investigating agency is assigned the responsibility of verifying denunciations, reports of crimes and recommendations for prosecution and has the right to call and question the person suspected of committing the crime, but in the entire system of basic principles as well as specific provisions of the Criminal Procedure Code, there are no provisions related to ensuring
the right to legal aid of this subject.
The Criminal Procedure Code sets out many principles to determine the rights and obligations of the subjects of the proceedings. However, the determination still has many inappropriate points, showing the contradiction in handling issues related to the basic functions of the Criminal Procedure Code. The principle of determining the truth of the case (Article 10 of the 2003 Criminal Procedure Code) stipulates that in addition to the Investigation Agency and the Procuracy, the Court is also responsible for proving the crime; the principle of responsibility for initiating and handling the case (Article 13 of the 2003 Criminal Procedure Code) stipulates that the Court is also responsible for initiating the case. The principle of prosecution (Articles 13 and 23 of the 2003 Criminal Procedure Code) is thoroughly implemented, in all cases where there are sufficient elements constituting a crime, the Procuracy must decide to prosecute the offender in court, and the principle of exemption from prosecution or the so-called discretionary prosecution cannot be applied, which is a manifestation of the lack of flexibility in criminal policy.
Inspection, supervision and control of the criminal case settlement process have been recognized as a principle of the Criminal Procedure Code, but the inspection and supervision mechanisms are not strong enough and not effective. There is a lack of self-control mechanisms in the litigation activities, supervision and control of the legality of the litigation activities right between the stages and phases of the litigation.
Second , there are still some shortcomings in the division of tasks and powers of the entities performing the function of accusation.
A strong prosecution system must meet the requirements of fully and promptly grasping information about crimes, while at the same time properly defining the authority and responsibility of agencies in managing and handling information about crimes. The model of criminal procedure in our country still has limitations in meeting this requirement. The Criminal Procedure Law assigns many competent agencies to receive denunciations, reports of crimes and recommendations for prosecution. After receiving denunciations, reports of crimes and recommendations for prosecution, they must be immediately transferred to the competent investigation agency for verification. However, the law does not stipulate the responsibility of the investigation agency to notify the People's Procuracy of the results of receiving denunciations and reports of crimes (input) and does not assign a focal point to manage information about crimes.
The above-mentioned crimes. The above-mentioned solution leads to the fact that in our country, no agency has the ability to grasp all denunciations and reports of crimes (does not grasp the input of the crime situation). At the same time, the Procuracy is the agency that exercises the right to prosecute, responsible for ensuring that all crimes must be discovered and brought to justice, but with the current legal mechanisms, the Procuracy is not qualified to carry out that important responsibility, and cannot control the " input " of the crime situation. That puts the Procuracy in a passive position in carrying out the responsibility of prosecution right from the stage of initiating the case; reducing the role and impact of the Procuracy on the responsibility of the Investigation Agency in detecting and discovering crimes.
Another limitation of the current criminal procedure model is related to the division of tasks and powers of the subjects performing the function of accusation, which is the handling of the relationship between the People's Procuracy and the Investigation Agency. From the perspective of the division of roles of subjects in performing the basic functions of criminal procedure, the Investigation Agency and the People's Procuracy are the subjects assigned to perform the function of accusation. Criminal investigation is a stage of the function of accusation; in the process of performing the function of accusation, the law assigns the People's Procuracy the responsibility to decide on the accusation and defend that accusation before a public trial. From the determination of the position and role of the subjects in performing the function of accusation as above, the investigation activities of the Investigation Agency must fully meet the requirements of prosecution and accusation activities so that the People's Procuracy has enough evidence to prosecute the offender and defend the accusation before the Court. However, the amendment of the Criminal Procedure Code in 2003 on this issue was too radical, leading to a lack of initiative for the agency exercising the right to prosecute, and a lack of mechanisms to ensure that the requests and decisions of the prosecution must be implemented. It must be affirmed that the quality of investigation has an important impact on the quality of prosecution activities. Without evidence in the investigation stage, it will be very difficult for prosecutors to succeed in making accusations and arguing in court. Therefore, the investigation activities of the investigating agency must fully meet the requirements of prosecution activities and strictly implement the requirements of the People's Procuracy. When the requests and procedural decisions of the People's Procuracy are not implemented by the investigating agency or are not implemented satisfactorily,
The law must have a mechanism to ensure that those requests and decisions are implemented, which is to fulfill the purpose of the prosecution function. However, our country's criminal procedure law has not yet met this requirement. If the request for investigation and proof of crime by the Procuracy is not implemented by the Investigation Agency, there is no provision for the Procuracy to prove the issues that the Procuracy is interested in. The narrowing of the authority of the Investigation Agency under the Procuracy and the failure to organize the Investigation Agency of the Procuracy at the provincial level, only organizing it at the Supreme People's Procuracy in the 2003 amendment of the Criminal Procedure Code is a manifestation of the lack of correct awareness of the right to prosecute and the organization of the implementation of the right to prosecute. The 1988 Criminal Procedure Code was very progressive when it gave the Procuracy the authority to investigate any case when the Chief Prosecutor deemed it necessary. Through practical summaries, it can be seen that the necessary reasons here are mainly applied to cases where the People's Procuracy considers that the investigation is incomplete, not objective, has serious violations of the law, or the requests and decisions of the People's Procuracy are not implemented by the Investigation Agency. It is necessary to realize that the investigative authority of the People's Procuracy is essentially one of the measures to fully implement the responsibility of prosecution. Studying the experience of other countries, it can be seen that all countries have two independent agency systems: the Investigation Agency and the Procuracy, but most countries assign the Procuracy/People's Procuracy the authority to investigate crimes, although the scope and level of participation in the investigation are not the same. In countries following the continental European legal tradition (France, Germany, Italy), the Procuracy is assigned the authority to investigate all types of crimes; however, in reality, most investigations are conducted by the police, and the Procuracy mainly exercises the authority to direct and supervise the investigation activities of the police. In some countries (Japan, China...), the People's Procuracy/Public Prosecution Service directly investigates corruption crimes and large-scale economic cases. In some other countries, prosecutors are responsible for participating in investigations with the police...
Third , there is a lack of regulations to ensure the proper performance of the defense function.
A democratic and progressive judiciary must meet the requirement that where there is an accusation, there is a defense, correctly identifying the subject performing the defense function, the offender, and the person in charge.
The person who carries out the defense function and the subjects who carry out the defense function must be given full conditions to perform their procedural function well. The 2003 Criminal Procedure Code stipulates that detainees have 6 groups of rights (Article 48); suspects have 8 groups of rights (Article 49); defendants have 10 groups of rights (Article 50); and defenders have 10 groups of rights (Article 58). Studying the above provisions shows that the model of criminal procedure in our country has not properly resolved a number of contents of the defense function, specifically:
- Regarding the accused, the defendant is the person who has been charged by a competent state agency. In this case, the law must create conditions for them to exercise their right to defense, to fight against the accusation, to prove that they are not guilty or have committed a lesser crime, with a lighter punishment. However, the law on criminal procedure has not really focused on ensuring this important right of the accused. The law only stipulates that the accused has the right to know what crime they are being prosecuted for, but has not stipulated the right to know information related to the prosecution, as a basis for the prosecution, the right to know the evidence against them; only stipulates the right to provide documents, objects, requests, but has not yet had the right to collect evidence to refute the content of the accusation, the right to confront other participants in the proceedings; only stipulates the right to present statements, but not the right to remain silent to protect themselves...
- Regarding the defense attorney, there are some unreasonable points as follows: First , the passivity and dependence of the defense attorney on the prosecution agencies are still easily seen in our country's criminal procedure law. The law stipulates a number of rights of the defense attorney but lacks mechanisms for the defense attorney to fully exercise the procedural powers prescribed by law (Article 58 of the Criminal Procedure Code stipulates that the defense attorney has the right to be present when taking statements from the detainee and interrogating the accused, but to exercise this right, the law stipulates that the defense attorney must request the investigating agency to notify in advance the time and place of questioning the accused, which is not the responsibility of the investigating agency to notify the defense attorney, and if the investigating agency does not notify the defense attorney, the current law does not have any sanctions applicable to the investigating agency). Second , the law still lacks some