In the continuous development of society, the democratic freedom of citizens is increasingly respected and promoted in all areas of life. The issue of democracy, equality and protection of human rights in criminal proceedings is always the driving force and measure of social progress of the country, requiring the law to be adjusted to suit that development. Analyzing the provisions of our country's criminal procedural law on the protection of human rights of witnesses, especially the limitations; comprehensively assessing the advantages and limitations of protecting human rights of witnesses in the practice of applying criminal procedural law in our country in recent years; clarifying the necessity, objectivity and basis for building the legal basis, principles and content of the institution to protect witnesses in accordance with their legal position in criminal proceedings. From there, recommendations and proposals for solutions to further ensure the rights of witnesses in criminal proceedings, meeting the practical requirements of the fight against crime as well as the judicial reform in Vietnam in the current period is a special work of significance both in theory and practice.
3.1.3. Perfecting regulations on responsibility for violations of human rights of witnesses
Protecting witnesses and their relatives contributes to clarifying the objective truth of the case, creating conditions for competent authorities to resolve the case quickly, accurately, and correctly, punishing the right person, the right crime, and the right law. This is not only the responsibility of the prosecuting agencies but also the responsibility of witnesses and those who abuse witnesses.
First of all, it is the responsibility of the prosecution agencies to coordinate with each other in applying measures to protect witnesses and their relatives from the risk of being attacked or harmed by criminals. The prosecution agencies have the responsibility to ensure that
Witnesses participate in the proceedings as witnesses in the case and that is also a guarantee of the human rights of witnesses, and specific mechanisms and measures must be developed to protect them. However, if a witness's human rights have been violated, the responsibility first belongs to the agencies conducting the proceedings. In our opinion, it is necessary to specify the responsibilities and obligations of the agencies conducting the proceedings and other regulations on the organizational mechanism to ensure that such regulations are strictly implemented in practice and that procedural and disciplinary sanctions are applied in cases where the regulations on the rights of witnesses are violated. Maybe you are interested!
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Witnesses also have a part of their responsibility when their human rights are violated. In addition to the mechanisms and measures to protect them implemented by the prosecution agencies, witnesses themselves as well as their relatives must always be aware of and be vigilant against acts of intimidation and retaliation against them. In the criminal procedure law, there should also be specific provisions on sanctions for the responsibility of witnesses when they know about acts of intimidation and retaliation against them but do not report them to the authorities, especially the prosecution agencies, so that they can take measures to protect the witnesses. Such provisions both ensure the rights and responsibilities of witnesses and reduce the heavy responsibility of the prosecution agencies when the consequences occur to witnesses due to their failure to promptly report acts of intimidation and retaliation to these agencies so that they can take timely protective measures.
Regarding the responsibility for the violation of human rights of witnesses, it does not only belong to the agencies conducting the proceedings and the witnesses, but also to the subjects who violate the witnesses. Currently, in our positive law, there are no specific regulations on sanctions for acts of violating witnesses, although in reality, if acts of violating the life, health, and property of people are committed, they will be punished.
All people are strictly handled according to the Penal Code corresponding to the acts they have committed. However, in order to minimize the threat and retaliation against witnesses, to ensure the solemnity of judicial activities, is it necessary to stipulate a separate crime of seducing, controlling, and threatening witnesses in the chapter on crimes against judicial activities? The responsibility of the subject who violates the human rights of witnesses may be to compensate for the damage caused by their actions or may also be responsible for compensating for mental damage caused by threatening witnesses, administrative responsibility or criminal responsibility. These specific provisions will partly limit the ability of subjects to threaten or retaliate against witnesses.
litigation
3.2. IMPROVING THE WITNESS PROTECTION MECHANISM
3.2.1. Enhance the operational efficiency of implementing agencies
Enhance the State's responsibility towards citizens; ensure effectiveness
The effectiveness of operations and independence of judicial agencies; protection of State interests, rights and legitimate interests of organizations and citizens... are important requirements for building a rule of law state in the current renovation process in our country.
In particular, in criminal justice activities, where the activities of the prosecution agencies (Investigation agencies, Procuracy, Court) have a very high state power, where all main activities are closely related to the rights and interests of citizens, clearly defining the powers and on that basis specifically determining the responsibilities of the person conducting the proceedings is very important not only in improving the effectiveness of the proceedings, but also in protecting the legitimate rights and interests of citizens, including the legitimate rights and interests of witnesses as well as their relatives.
Therefore, to perfect the witness protection mechanism and meet the current requirements of judicial reform, it is necessary to first of all enhance the operational efficiency of the prosecution agencies.
The prosecution agencies are agencies with their own functions, duties and powers, but operate in a close and unified relationship with the entire criminal proceedings, and are responsible for applying all measures prescribed by law to verify the truth of the case, prove the crime and handle the offender. Therefore, enhancing the effectiveness of these agencies is very important in protecting the participants in the proceedings in general and witnesses in particular. First of all, it is necessary to raise the sense of responsibility and working capacity of the staff of the prosecution agencies; organize well the training and professional development and annually organize exams and tests on the quality of the staff performing the prosecution work; create better conditions for facilities and equip working means for the prosecution agencies to improve the effectiveness of their operations. Improving professional qualifications and providing good material facilities for the prosecution agencies is very important and has great significance in resolving cases, while implementing measures to protect witnesses. Reality shows that in the current conditions, the material facilities and remuneration regimes supporting this professional work of the prosecution agencies are still modest and ineffective, the provisions of the law on witness protection are only formal and not implemented in practice. And to increase the effectiveness of this work, the prosecution agencies have the responsibility to coordinate with the police in applying measures to protect witnesses as well as their relatives from the risk of being attacked or harmed by criminals, only then will the rights and interests of witnesses be guaranteed and they can feel secure to participate in the proceedings as individuals.
Witness testimony in a case helps the prosecution agencies resolve the case quickly, fairly and legally because the testimony of witnesses is a source of authentic and very important evidence.
3.2.2. Perfecting the organization and operation of judicial support agencies
The Resolution on the strategy for building and perfecting the Vietnamese legal system until 2010, with a vision to 2020, has pointed out that after nearly twenty years of implementing the renovation cause, under the leadership of the Party, the work of building and perfecting the legal system has made important progress. However, in general, our country's legal system is still not synchronous, inconsistent, has low feasibility, and is slow to come into life. The mechanism for building and amending laws still has many unreasonable issues and has not been given due attention for innovation and perfection. Therefore, building and perfecting laws on the organization and operation of judicial agencies as well as judicial support agencies is consistent with the goals and orientations of the Judicial Reform Strategy; Correctly and fully defining the powers and legal responsibilities of each judicial agency and position is the top priority task of our Party and State from now until 2020. In addition to the focus on perfecting the law on the organization and operation of the People's Court, the People's Procuracy, and investigation agencies, etc., the development and perfection of the law on judicial support agencies is also very important in the judicial reform strategy. Perfecting the organization and operation of judicial support agencies means perfecting the team of lawyers, notaries, appraisers, judicial police, etc. Practice in litigation shows that although the activities of judicial support agencies do not directly decide on the resolution of cases, the objectivity, timeliness, and accuracy of judicial support activities will contribute to ensuring the quality of operations of litigation agencies. At the same time, the implementation of measures to ensure the safety of litigants in general and witnesses in particular requires judicial support activities, especially the participation and support of the police force for protection and judicial support.
law. The main task of this force is to protect criminal trials and because of clearly identifying the importance of the task, the police force for protection and judicial support always upholds the sense of responsibility, correctly implements working procedures, does not allow errors or subjects to escape during the escort process; does not cause disorder and insecurity, contributing to the success of the trial. Therefore, in order for judicial support activities in general and the activities of the judicial support police force in particular to be effective, it is necessary to continue to perfect the state management mechanism for judicial support activities; gradually socialize a number of judicial support institutions such as: Strengthening inspection, examination and strict handling of negative behaviors in judicial activities, strengthening monitoring mechanisms, ensuring people's participation in monitoring judicial activities, proposing mechanisms for handling violations, enhancing the role of state management in these areas; Support in terms of facilities, working equipment and training, improving the professional qualifications, skills and ethics of the judicial and judicial support staff, to meet the requirements of litigation activities.
3.2.3. Strengthening supervision of criminal proceedings
State power, regardless of the principle of organization, division of labor or decentralization, must always be subject to strict and comprehensive supervision to ensure that there is no abuse of power. And along with the recognition of state power, supervision of state power must be established. Supervision of the implementation of state power is an objective necessity; wherever there is state power, there must be supervision. The activity of conducting litigation is also an activity of implementing state power, so this activity must be subject to inspection and supervision by many different mechanisms.
In another aspect, from the specific goals and tasks of criminal justice activities, it is necessary to consider and make accurate, objective, and fair judgments on the correctness and legality of human actions.
Therefore, the law grants the agencies conducting the proceedings to exercise strong procedural powers, even powers that can affect the most basic human rights such as the power to apply procedural coercive measures (measures of arrest, temporary detention, temporary detention, etc.). The results of the activities of these agencies have a direct impact on the most important human rights such as the right to life, the right to freedom, etc., greatly affecting the subjects, especially the subjects participating in the proceedings, including witnesses. From these characteristics, the activities of the agencies conducting the proceedings need and must be subject to close inspection and supervision by many different inspection and supervision mechanisms.
The current mechanism for monitoring the implementation of litigation activities in our country can be divided into two groups: the self-inspection mechanism from within each system of litigation agencies and the monitoring mechanism from outside the system of litigation agencies.
The internal self-inspection mechanism of each system is the inspection and monitoring system set up by the subject to inspect and monitor the parts of its system in the process of exercising judicial authority. These are the inspection activities of the central-level prosecution agency with the local prosecution agency, the inspection activities of the superior prosecution agency with the subordinate prosecution agency... The internal self-inspection activities of each system aim to ensure that the subjects of its system perform their functions and tasks in accordance with the provisions of law. The external supervision mechanism includes the supervision of state agencies over the prosecution agency, also known as state supervision (in our country, it is the supervision of the National Assembly, People's Councils and is supervised by the prosecution agency itself, the Procuracy) and supervision directly carried out by political organizations, socio-political organizations, social organizations and citizens, also known as social supervision.
Thus, supervising the implementation of state power is an inevitable issue. In the specific conditions of our country, based on the goals, tasks, and specific characteristics of the prosecution agencies, it is necessary to strengthen the inspection and supervision of the activities of these agencies through various strict inspection and supervision mechanisms, especially the need to establish a direct, regular, and effective supervision mechanism. Supervision of prosecution activities aims to ensure that these agencies properly perform their functions and tasks; ensure that cases are resolved accurately and objectively; ensure compliance with the law by prosecution agencies and prosecutors; and ensure that human rights in criminal proceedings as prescribed by law are thoroughly implemented. Strengthening supervision of prosecution agencies is of great significance for protecting participants in the proceedings in general and witnesses in particular. If there is a mechanism to closely monitor the conduct of proceedings along with truly effective measures to protect witnesses, the issue of protecting the human rights of witnesses will be applied in practice and not just be a general and formal regulation as it is now.
Thus, monitoring the criminal justice activities of the agencies conducting the proceedings is extremely necessary because without it, there will be abuse of state power and more dangerously, abuse of state power in this case will cause social disorder, affect basic human rights, affect justice and social equity. In the condition that we are striving to build and perfect the socialist rule of law state of Vietnam - a state in which the Constitution and the law are promoted, ensuring that the Constitution and the law are absolutely respected and complied with, increasingly ensuring human rights, eliminating all violations of human rights in the activities of exercising state power...; in the condition that we are implementing the Judicial Reform Strategy with the aim of