Practical Application of Criminal Procedure Law Regulations on the Rights of the Accused During the Prosecution and Investigation Stages From the Practice of Binh Duong Province

responsibility to respect and ensure the rights of the accused during the prosecution and investigation of criminal cases

Clarifying the significance of regulating the rights of the accused during the stage of prosecution and investigation of criminal cases. Accordingly, regulating the rights of the accused during the stage of prosecution and investigation of criminal cases contributes to ensuring human rights and civil rights in the field of criminal proceedings. On the other hand, regulating the rights of the accused during the stage of prosecution and investigation of criminal cases contributes to determining the truth of the case.

Clarifying the basis for regulating the rights of the accused during the stage of prosecution and investigation of criminal cases. Accordingly, the regulation of the rights of the accused during the stage of prosecution and investigation of criminal cases comes from international legal standards on human rights of which Vietnam is a member. It comes from the requirement to ensure human rights and civil rights as expressed in the Resolutions of the Party and the 2013 Constitution. In addition, the thesis also studies the relationship between the rights of the accused during the stage of prosecution and investigation of criminal cases and some basic principles of criminal procedure law.

Finally, the thesis analyzed the provisions of the 2015 Criminal Procedure Code on the rights of the accused during the prosecution and investigation stages. It clarified the groups of rights of the accused, which are: the group of basic general rights of the accused that are recognized and guaranteed like other subjects participating in the proceedings, such as the right to respect and protection of human rights, the rights and legitimate interests of individuals, the right to equality before the law, the right to inviolability of the human body, the right to protection of life, health, honor, dignity and property of individuals; the group of general procedural rights of the accused that all the positions of the arrested, the detained and the accused have. These procedural rights are generally prescribed by the Criminal Procedure Code for both the arrested, the detained and the accused in all stages of the proceedings; the group of specific rights of the accused as a detained or accused are only suitable for the procedural status and the stage of the proceedings in which they participate; group of special procedural rights of the accused who is under 18 years old during the stage of prosecution and investigation of a criminal case.

Chapter 2

PRACTICAL APPLICATION OF THE PROVISIONS OF CRIMINAL PROCEDURE LAW ON THE RIGHTS OF THE ACCUSED IN THE PROSECUTION STAGE,

INVESTIGATION OF CRIMINAL CASES FROM PRACTICE IN BINH DUONG PROVINCE AND ADVANCED SOLUTIONS

Overview of Binh Duong

Figure 2 1: Administrative map of Binh Duong province

Source: https://www.binhduong.gov.vn/gioi-thieu/ban-do (accessed 1, 2020)

Binh Duong is a province in the Southeast region, located in the Southern key economic region. The East borders Dong Nai province, the North borders Binh Phuoc province, the West borders Tay Ninh province and part of Ho Chi Minh City, the South borders Ho Chi Minh City and part of Dong Nai province. According to the latest statistics, Binh Duong province has a natural area of 2,694.43 km2 (accounting for about 0.83% of the country's area, about 12% of the Southeast region's area); population of 2,426,561, population density of 900.58 people/km2 (General Population and Housing Census April 1, 2019); 09 district-level administrative units (including: Thu Dau Mot city, Di An town,

Thuan An, Ben Cat town, Tan Uyen town and Bau Bang, Bac Tan Uyen, Dau Tieng, Phu Giao districts) and 91 commune-level administrative units (46 communes, 41 wards, 04 towns).

In the early days of the Southern land opening, Binh Duong was the name of a canton belonging to Tan Binh district, Gia Dinh prefecture. In 1808, when Tan Binh district was changed to a prefecture, Binh Duong was elevated to one of the four districts of this prefecture. In 1956, Binh Duong province was established but it did not overlap with the area of the former Binh Duong district. In 1997, Binh Duong province was re-established, but it was not entirely the territory of Binh Duong province before 1975. Thus, in history, Binh Duong was the name of administrative units at different levels (canton, district, province) with different territories. Originally associated with Gia Dinh, Dong Nai in the past, that is, the Southeast region today, Binh Duong residents are a part of the Southeast region residents, but at the same time, Binh Duong is a land surrounded by the Dong Nai and Saigon rivers, with special ecological conditions, so Binh Duong residents have their own characteristics from the history of formation to professional skills. Binh Duong has long been known for its bustling image of trade and convergence from many regions across the country.

Since 1997, with the policy of innovation, open policies, improving the investment environment, creating favorable conditions for production and business enterprises, paving the way for the industrialization and modernization of the locality. Binh Duong has attracted domestic and foreign investment capital, factories have sprung up everywhere, Binh Duong's socio-economy has initially achieved remarkable achievements, the economic structure has shifted strongly towards industry - services - agriculture, the urbanization has been clearly formed, turning purely agricultural, arid, inefficient land into key industrial zones and clusters of the whole country. ( Source: Department of Information and Communications of Binh Duong province, 2018)

2.1. Practical application of criminal procedural law provisions on the rights of the accused during the prosecution and investigation stages from the practice of Binh Duong province

2.1.1 Achievements

The process of applying the provisions of the 2015 Criminal Procedure Code has actively contributed to the innovation of the organization and operation of judicial agencies; raising the responsibility of the judiciary.

responsibility, initiative of agencies and competent persons; improve the quality and effectiveness of investigation, prosecution, trial and execution of criminal sentences. Defense, appraisal and other judicial support activities have also seen many positive changes. The Criminal Procedure Code has helped agencies conducting proceedings resolve criminal cases to ensure the right person, the right crime, and compliance with Vietnamese law. The application of arrest, temporary detention and temporary detention measures has been carried out carefully, overcoming an important step in overcoming the abuse of emergency arrest and unnecessary temporary detention, the rate of arrest, temporary detention and transfer to criminal prosecution has reached a high rate; ensuring the rights and legitimate interests of participants in the proceedings has been focused on; ensuring the right to have a defense counsel for subjects eligible for legal aid, gradually creating favorable conditions for defense counsel to participate in the proceedings; lawyers participating in defense basically comply with the provisions of the law. In recent years, the crime situation in Binh Duong province has been quite complicated. Crimes against social order tend to decrease, but many cases are serious in nature and level, some cases are especially serious. Economic crimes are mainly property theft crimes, especially in recent years in Binh Duong, property theft crimes have occurred a lot, besides criminal cases. Especially drug crimes have become very complicated. According to the annual work summary report of the People's Procuracy of Binh Duong province

Table 2 1: Number of people arrested, detained, accused and defendants in Binh Duong province from 2014 to 2018

Year

The person arrested	Detainee	Defendant	Accused
2014	14,782	14,734	17,592	17,397
2015	14,593	14,558	17,370	17,173
2016	13,952	13,894	16,932	16,852
2017	13,286	13,238	16,873	16,694
2018	12,870	12,732	16,420	16,235
Total	69,483	69,156	85,187	84,351

Maybe you are interested!

(Source: Annual work summary report of Binh Duong Provincial People's Procuracy)

Statistics show that the number of people arrested, detained, accused and defendants in Binh Duong province is decreasing every year.

If in 2014 the number of people arrested was 14,782, then in 2015 it was 14,693, in 2016 it was 13,952, in 2017 it was 13,286 and in 2018 it was 12,870. Thus, after 5 years the number of people arrested decreased by 2,922, corresponding to a decrease rate of 19.8%.

According to statistics, the number of people detained also decreases every year. If in 2014 the number of people detained was 14,734 people, in 2015 it was 11,4558 people, in 2016 it was 13,894 people, in 2017 it was 13,238 people and in 2018 it was 11,832 people. Thus, after 5 years the number of people arrested decreased by 2,902 people, corresponding to a decrease of 19.7%.

Similarly, the number of people prosecuted for criminal offenses also tends to decrease each year. If in 2014 there were 17,592 people prosecuted, in 2015 there were 17,370 defendants, in 2016 there were 16,932 defendants, in 2017 there were 16,387 defendants and in 2018 there were 15,482 defendants. Thus, after 5 years the number of defendants decreased by 2,110 defendants with a decrease rate of 12%.

The number of defendants brought to trial also tends to decrease over the years. Specifically, in 2014 there were 17,397 defendants, in 2015 there were 17,173 defendants, in 2016 there were 16,852 defendants, in 2017 there were 16,283 defendants and in 2018 there were 15,376 defendants. After 5 years, the number of defendants decreased by 2,021 defendants, accounting for a corresponding decrease of 11.6%.

According to statistics from the People's Procuracy of Binh Duong province, the number of people arrested, detained, accused and defendants has decreased year by year. This is a positive and encouraging sign because it proves that the fight against crime by the prosecution agencies and prosecutors is effective.

In addition, basically, the investigation, prosecution and trial of criminal cases in Binh Duong province have ensured the right person, the right crime and the right law. According to the above statistics, it can be said that the prosecution agencies have promptly detected and handled all criminal acts, prevented and stopped crimes, not let criminals escape, not wrongfully convicted innocent people; contributed to protecting justice according to the Constitution and the law; protected human rights, civil rights, rights and legitimate interests of organizations, individuals, and the interests of the State.

Statistics also show that the investigation, questioning and prosecution of cases in recent years in Binh Duong province are quite good. Especially in 2018, the number of cases

The number of appeals and protests has decreased significantly compared to other years. This proves that the investigation and prosecution work is going quite well. Specifically, the number of appeals in 2018 was 79 cases, down 158 cases, equivalent to 33% compared to 2016. The number of protests was 14 cases compared to 31 cases, equivalent to 45% compared to 2016.

During the stage of prosecution and investigation of criminal cases in Binh Duong province in the past, competent authorities have ensured the good implementation of the rights of the accused. The general universal rights of the accused, like those of other citizens, such as the inviolability of life, health, honor, dignity, property; the inviolability of residence, safety of letters, telegrams, parcels, postal items, the right to equality before the law, the right to use the language and writing of one's own ethnic group, etc. have been well ensured during the stage of prosecution and investigation of criminal cases. The acts of competent authorities violating the law and infringing on the common basic rights of the accused in Binh Duong province in the past have been limited and overcome to the maximum extent. The issuance of groundless and illegal procedural decisions during the stage of prosecution and investigation, infringing on the basic rights of the accused, has been gradually overcome.

Regarding the procedural rights of the accused during the prosecution and investigation stages, the competent prosecution authorities in Binh Duong province have ensured full implementation in accordance with the provisions of law. During the process of handling the case, the arrested, detained and accused have been informed and explained their rights and obligations by the competent authorities; known the reasons for their arrest, detention and temporary detention; received procedural decisions in accordance with the provisions of law... In particular, the competent authorities have ensured the right to defense for the accused during the prosecution and investigation stages. The competent authorities have respected and created favorable conditions for the defense counsel to participate in the case; ensured the appointment of defense counsel for the accused. The cases with the participation of defense counsel and the quality of defense have been continuously improved. This has contributed significantly to ensuring the effectiveness of the prosecution and investigation of criminal cases in Binh Duong province in recent times.

2.1.2. Limitations and shortcomings in the application of criminal procedure law provisions on the rights of the accused during the prosecution and investigation stages of cases in Binh Duong province and the causes

- General limitations and shortcomings in ensuring the rights of the accused during the prosecution and investigation of criminal cases in Binh Duong province in recent times.

In the stage of initiating and investigating criminal cases in Binh Duong province, there have been certain limitations and problems that have affected the legitimate rights and interests of the accused. In recent years, the number of denunciations and reports of crimes has increased, but the resolution rate at some points has not met the requirements (target 90%). In the first 6 months of 2019 alone, the resolution rate of crime information sources by the Investigation Agency of Binh Duong Provincial Police only reached 79%. In some cases, the competent Investigation Agency has been slow in delivering procedural decisions to the participants in the proceedings in general and the accused in particular, leading to the People's Procuracy having to issue recommendations and requests for the Investigation Agency to remedy the violations. Some units (Di An, Ben Cat, Tan Uyen, Dau Tieng) have not performed their functions and tasks well during the prosecution and investigation stages, and have not fully ensured the rights of the accused, leading to some cases being returned by the Court of First Instance for further investigation or the Court of Appeal annulling the first instance judgment for reinvestigation because there were serious violations of procedural law affecting the determination of the objective truth of the case, infringing upon the rights and legitimate interests of the accused.

- In the process of conducting criminal prosecution and investigation activities, the Investigation Police in some localities in Binh Duong province have not properly and fully implemented the provisions of the law. According to the report of the People's Procuracy of Binh Duong province, in the past, there were violations and shortcomings in the prosecution and investigation stages of competent agencies conducting proceedings in the province such as: No medical records; accident emergency records of the victim, therefore, no contradictions were detected between the conclusion of the injury assessment and the injury treatment process, leading to the issuance of related procedural decisions that did not ensure accuracy, affecting the legitimate rights and interests of the accused, leading to injustice.

Errors in criminal proceedings; when conducting the crime scene investigation, some investigating agencies did not fully and comprehensively record traces of the scene, vehicles, and traces on the bodies of related subjects to evaluate appropriate and complete evidence according to the provisions of law; The investigation of traffic accident cases was still sketchy, did not determine the point of collision; the point of collision, the direction of traffic, and did not follow the correct procedures and order as prescribed by law; The valuation of assets in criminal cases was sometimes not timely, affecting the time limit for issuing procedural decisions during the stage of initiating and investigating criminal cases... In the past, in many cases, the investigating agencies did not comply with the provisions of the Criminal Procedure Code, leading to serious violations of criminal procedure, and the evidence collected did not ensure evidentiary value. This has affected the quality of case resolution, infringing on the rights and legitimate interests of participants in the proceedings (including the accused).

- Regarding the right to be informed and explained the rights and obligations of the accused, it is still sketchy, superficial and formal. According to the provisions of the 2015 Criminal Procedure Code, the competent authorities and individuals conducting the proceedings are responsible for informing and explaining to the accused. In practice, the competent authorities have exercised this right well. This is reflected in the minutes of the proceedings with the participation of the arrested, detained and accused, all of which specify the content that the competent authority conducting the proceedings has explained to the accused about the rights and obligations when participating in the proceedings and at the end of the minutes of the proceedings, the arrested, detained and accused all sign to confirm. Practice shows that in some cases, the competent person conducting the proceedings notifies and explains the rights and obligations of the accused person incompletely and in a formal manner, while the accused person has limited knowledge and awareness of the law, they do not fully understand their rights and obligations during the proceedings, leading to confusion and anxiety.

- Ensuring the right to defense for the accused still has some limitations such as competent authorities have not properly implemented regulations on defense registration, causing difficulties for defense attorneys to exercise their rights as prescribed by law.

Comment