reconsideration. Therefore, when the Procuracy has appealed and withdraws the entire appeal, the appeal trial must be suspended. If the appeal is withdrawn before the opening of the trial, the presiding judge of the trial shall issue a decision to suspend the appeal trial. At the trial, if the prosecutor withdraws the appeal, the Appellate Trial Panel shall issue a decision to suspend the appeal trial. In Resolution No. 05/NQ-HDTP, the Supreme People's Court's Judicial Council determined that the first-instance judgment takes legal effect from the time the judge assigned to preside over the trial issues a decision to suspend the appeal trial. This assessment is correct but not complete because it is only correct when the judge makes the decision at a time when the appeal period has expired. If the Procuracy has withdrawn part or all of the appeal before the opening of the appeal trial but the appeal period is still valid, the Procuracy still has the right to appeal again. In this case, if the presiding judge decides to suspend the appeal trial immediately after the Procuracy withdraws the entire appeal while the time limit is still valid, the decision to suspend the trial cannot be issued because, according to the principle, if the appeal period is still valid, the judgment has not yet become legally effective and can still be appealed. In the case of withdrawing part of the appeal before or at the beginning of the appeal trial, the Appellate Trial Panel will only consider the part of the appeal that is not withdrawn, except in necessary cases where it can consider other parts of the judgment that are not appealed (including the parts that the Procuracy has withdrawn).
2.2. Practical application of legal regulations in the appeal of criminal cases in Ha Giang province (2010 - 2014)
2.2.1. Current status of criminal appeals in Ha Giang province
In conjunction with the requirement to practice the right to prosecute against wrongful conviction of innocent people, against letting criminals and criminals escape, along with thoroughly grasping and implementing Directive No. 03/2008/CT-VKSTC-VPT1 dated June 19, 2008 on " Strengthening the work of criminal appeals " of the Chief Justice of the Supreme People's Procuracy.
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In the past time, the People's Procuracy at two levels of Ha Giang province has done a good job of supervising first-instance criminal trials, in order to ensure compliance with the law in the trial of the Court. Through the work of supervising trials, every year, the People's Procuracy at two levels in Ha Giang province has discovered serious violations of criminal law and the law on criminal procedure and has exercised the right to appeal the VAHS. Based on the statistics of the People's Procuracy of Ha Giang province in the years 2010 - 2014, it shows that the number of appeals to the VAHS has increasingly changed positively. The appeals of the VAHS have demonstrated the spirit of determination to strictly handle all types of crimes, such as drug crimes, corruption crimes, many first-instance judgments (decisions) determining the crime, deciding on the level of punishment and civil liability are not accurate, because the Court of First Instance has not properly assessed the nature, extent, consequences of the crime, the stage of the crime, the defendant's personality and the aggravating and mitigating circumstances of criminal liability, so the sentence was too light or too heavy. The People's Procuracy at two levels of Ha Giang province has appealed to the Court of Appeal to handle the case in accordance with the law, including cases requesting an increase in the penalty, cases requesting to maintain the prison sentence but not allowing the defendant to receive a suspended sentence, and cases requesting to increase the level of civil compensation.
In 05 years, from 2010 - 2014, the People's Court and the People's Procuracy of Ha Giang province resolved according to the VAHS appeal procedure for 186 defendants, of which 17 defendants were appealed. Practice shows that 100% of the VAHS appeal decisions of the Procuracy are of good quality, no appeal was withdrawn by the appellate Procuracy, but the rate of defending the appeal reached 100%, and the appeal was accepted by the Court of Appeal 100%. The number of appeals at one level also increased significantly compared to before the implementation of Directive 03. The 05-year statistics on VAHS appeals show that the number of appeals at two levels of the Procuracy has increased significantly, especially appeals at one level. In addition, the quality of appeals has changed significantly, the form and layout of the appeals basically comply with the
As prescribed in Form 138 issued with Decision No. 960/2007/QD-VKSTC dated September 17, 2007 of the Supreme People's Procuracy, basically, the appeals have made correct findings, cited the legal basis accurately, the appeal writing style has been better, the arguments are clearer and more coherent, there are no shortcomings, limitations in form or unfounded citations in the appeals.
Statistics on the number of VAHS cases appealed/ the number of VAHS cases accepted for settlement under appeal procedures (period 2010 - 2014).
Table 2.1. Statistical table of the number of appeal cases/ number of cases accepted for appeal trial
Year
Number of appeal cases/ Number of cases accepted for settlement under appeal procedure | Percentage of cases appealed (%) | Rate of defendants appealed (%) | ||
The case | Accused | |||
2010 | 1/22 | 1/28 | 4.5 | 3.5 |
2011 | 1/12 | 1/18 | 8.3 | 5.5 |
2012 | 1/16 | 1/31 | 6.25 | 12.90 |
2013 | 3/28 | 4/48 | 10.7 | 8.33 |
2014 | 4/39 | 7/61 | 10.25 | 11.47 |
Total | 10/117 | 17/186 | 8.54 | 9.13 |
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(Source: Ha Giang Provincial People's Procuracy)
From the above table, it can be seen that the appeal work of the People's Procuracy of Ha Giang province in 2010 shows that the rate of appeal of the People's Procuracy compared to the total number of appeals in the year was 4.5%, and by 2014 it had increased to 10.25%. Compared to the time before Directive 03, the number of appeals each year has increased significantly. The number of defendants appealed compared to the number of defendants brought to trial under the appeal procedure in 2010 was 3.5%, in 2011 it was 5.5%, in 2012 it was 12.90%, in 2013 it was 8.33%, in 2014 it was 11.47%; while the average percentage in the years before Directive 03/2008/CT-VKSTC-VPT1 between the number of defendants appealed and brought to trial compared to the total number of defendants tried at appeal was approximately 7.2%.
Statistics on the number of defendants resolved under appeal procedures (2010 - 2014 period)
Table 2.2. Statistics on the number of defendants resolved under appeal procedures
Year
Number of defendants accepted for settlement under appeal procedure | Resolved | In there | ||||
Suspension of trial | Number of defendants brought to trial | Y sentence | Correction | Cancel the sentence for re-investigation and retrial | ||
2010 | 28 | 5 | 22 | 11 | 7 | 4 |
2011 | 18 | 2 | 16 | 12 | 3 | 1 |
2012 | 31 | 9 | 24 | 9 | 14 | 1 |
2013 | 48 | 12 | 36 | 12 | 23 | 1 |
2014 | 61 | 8 | 51 | 7 | 40 | 4 |
Total | 186 | 36 | 149 | 51 | 87 | 11 |
Source: Ha Giang Provincial People's Procuracy
Statistics on appeal decisions of criminal cases at two levels and the settlement of the Court (period 2010 - 2014).
Table 2.3. Statistics on 2-level appeal decisions and court settlement
Year
Decision on Appeal | In which (number of cases/defendants) | |||||||
The case | Accused | KN above provincial level | Same level of provincial level | Court judgment appeal direct subordinate | VKS withdraw appeal | Court accepts the complaint | The Court of Appeal rejected the complaint. | |
2010 | 1 | 1 | 0 | 0 | 1/1 | 1/1 | 0 | |
2011 | 1 | 1 | 0 | 0 | 1/1 | 1/1 | 0 | |
2012 | 1 | 4 | 0 | 0 | 1/4 | 1/4 | 0 | |
2013 | 3 | 4 | 0 | 0 | 3/4 | 3/4 | 0 | |
2014 | 4 | 7 | 0 | 0 | 4/7 | 4/7 | 0 | |
Total | 10 | 17 | 0 | 0 | 10/17 | 10/17 | 0 | |
(Source: Ha Giang Provincial People's Procuracy)
Based on statistics, the synthesis shows that from 2010 to 2014, the entire Ha Giang Procuracy had no cross-level appeals, 11 (eleven) districts and cities (collectively referred to as district level) did not appeal against the judgment (decision) of the Court at the same level, while the number of defendants brought to the appellate court for revision or correction accounted for 47.8%, the number of defendants whose judgments had to be annulled for investigation or retrial due to serious violations of the criminal procedure and the Criminal Code through appeals still accounted for a low percentage. From the above statistical tables, based on the practice of VAHS appeals, we see that VAHS appeals in Ha Giang province have achieved the following results and shortcomings:
2.2.2. Results achieved
The results achieved by the VAHS appeal of the Ha Giang Provincial People's Procuracy were shown on the following issues:
Firstly , the prosecutor at the criminal trial closely supervised the proceedings at the trial, the People's Procuracy at two levels strengthened the supervision work, discovered the judgments (decisions) of the Court at the same level (or the directly lower level) that had violations and basically did a good job of protesting the appellate court of the criminal case to overcome serious violations of the Court at the same level (or the directly lower level) when issuing the first-instance criminal judgment (decision) in the process of applying the articles and provisions of the Penal Code, applying the penalty and the compensation for civil damages in criminal cases, most of these protests were accepted by the appellate court of the People's Procuracy's viewpoint. In the 5 years from 2010 to 2014 in Ha Giang alone, through the VAHS appeal, the People's Procuracy appealed 10 cases/17 defendants, 100% of which were accepted by the Court of Appeal, of which, the penalty was increased in 03 cases/08 defendants, accounting for 30% of the cases; the penalty was reduced in 01 case/01 defendant, accounting for 10% of the cases; the crime was amended in 01 case/02 defendants, accounting for 10% of the cases; the prison sentence was kept the same but no suspended sentence was granted in 01 case/02 defendants, accounting for 10% of the cases; the first instance judgment was annulled for re-investigation and re-trial in 02 cases/02 defendants, accounting for 12% of the cases.
Second, in the spirit of Resolution 08/NQ-TW of the Politburo, in recent times, the work of appeals to the VAHS has actually had many positive changes, the quality of appeals has been improved. When appealing to the VAHS, the People's Procuracy has focused on both the form and content of the appeal, ensuring that the appeal is well-founded and rigorous in applying the law. On the other hand, the People's Procuracy at higher levels has also increased the notification of lessons learned from violations in the implementation of appeals to the People's Procuracy at the first instance level, in order to ensure that the quality of appeals meets the requirements of judicial reform. The People's Procuracy at two levels has focused on cases that are of public interest, especially corruption cases, ensuring that the right people, the right crimes, and the right legal provisions are tried. Many appeals of the People's Procuracy have resolved the concerns of the press and received the support of the people.
Third, appeals under the VAHS appeal procedure contribute positively to the fight against and prevention of crimes that are increasing in the new situation. Through the VAHS appeals, the Procuracy has contributed to effectively combating all types of crimes, especially those such as illegal drug trafficking, crimes against life and health, human trafficking, trafficking, swapping or appropriating children, corruption crimes, and economic crimes. Keeping up with the trend of integration and globalization in the period of building a rule-of-law state as it is today, our society has to face many negative aspects that have penetrated from abroad, such as international crimes such as fraud, human trafficking, buying and selling, appropriating children, spreading obscene cultural products, consequences of gambling from countries such as China, Cambodia leading to loan sharking crimes, mutual purges between criminal gangs have tended to increase. The strict punishment of these crimes is a necessary deterrent for criminals who intend to consider Vietnam as a " new criminal land ". Through
In the appeal of the VAHS, the People's Procuracy clearly expressed its views in the fight against these types of crimes.
2) Reason: Along with the general working requirements of the whole industry, the implementation of Directive 03/2008/CT-VKSTC-VPT1 dated June 19, 2008 of the Chief Justice of the Supreme People's Procuracy on strengthening the work of VAHS appeals has achieved encouraging progress in the work of VAHS appeals. The People's Procuracy of Ha Giang province has paid attention to this work and considered it one of the key tasks of the work of practicing the right to prosecute and supervise judicial activities. As reflected in the annual work plan and program, the targets are always set out to strengthen the detection of first-instance criminal judgments (decisions) with serious violations in the application of criminal law and criminal procedure, and to detect first-instance criminal judgments (decisions) that are not in accordance with the adjudication guidelines assigned by the Party and the State. Along with the close direction of the leaders of the People's Procuracy of Ha Giang province, the level of prosecutors doing criminal work has been gradually improved significantly. High-quality appeals are often due to the fact that in the process of inspecting and examining first-instance criminal judgments (decisions), serious violations of the Court at the same level (or directly below) have been discovered in the application of criminal law, criminal procedure law and documents guiding the implementation. The prosecutor's mastery of the legal basis is reflected in high-quality appeals, which are often protests that have correctly detected violations of the first-instance court in the application of law and documents guiding the implementation or having serious violations of the TTHS procedure. The sharpness of the professional skills to grasp the legal basis of the Prosecutor is an extremely necessary factor contributing significantly to the high quality of the appeal. The appellate People's Procuracy has paid more attention to the work of drawing experience for the first-instance People's Procuracy in the work.