Practical Implementation of Regulations on Duties, Powers and Responsibilities of People's Jurors in Criminal Proceedings

This makes the principles of adjudication often become formal and not respected, reduces the role of the jury, and breaks the principle of people's representation in adjudication. The role of people's representatives in adjudication is still not guaranteed, and doubts about the formality and weak capacity of the People's Court in adjudication still exist very much.

The causes of these limitations and weaknesses can be summarized as follows:

Firstly, while the regulations stipulate that the People's Court with more members participating in the Trial Panel than judges (2/1 or 3/2), equal in power to judges, and decisions by majority, in reality, the skills, conditions, and capacity to participate in trials of the People's Court and judges are different, the law also does not specifically stipulate how the People's Court must study the case files, and the reward and discipline mechanisms as at present will make it difficult to ensure the capacity of the People's Court in criminal proceedings. The "Survey report on the current status of administrative management of people's courts in Vietnam" in the project "Enhancing access to justice and protection of rights in Vietnam" implemented by the Government of Vietnam in coordination with the United Nations Development Program in 2012, reflects that "Some judges believe that they have a certain role in the trial work with the court, but this role has not been really respected. The jurors also acknowledged a number of reasons such as: the jurors' legal knowledge is not equal to that of judges, the work of the jurors is a part-time job so the jurors cannot invest much time in studying the case files. The jurors also said that the time spent studying the case files is not enough to understand

9 The survey was conducted by the thesis author nationwide from March 31, 2020 to April 6, 2020 using the sociological survey method by answering 7 questions according to the prepared questionnaire. The survey was conducted with 100 people who are working and all have a bachelor's degree or higher; of which: master's and doctoral degrees (different majors): 45 people (45%); bachelor of law, master of law, doctor of law: 90 people (90%); teachers, civil servants, public employees: 40 people (40%).

The leaking of case details has led to some jurors being influenced by the judge's opinion. This practice has existed for many years” [16, p.71].

Second, “when trying a case, judges and jurors are independent and only obey the law”, is considered a basic principle of judicial activities, but in reality, most of the People's Courts have held part-time positions, the criteria to become People's Courts are still general, they have very few conditions to study the case files and learn about the case compared to judges; due to practical conditions, they are very likely to be influenced by external factors, such as: subjective emotional factors, the judge's viewpoint, external influence, etc. They are almost not responsible for their decisions, except in cases of specific and obvious violations during the performance of their duties as jurors.

Third, in principle, the court conducts collective trials and decides by majority vote. In the first instance trial of a criminal case, the number of jurors in the panel of judges is always greater than that of judges, and the decision of the panel of judges depends largely on the jurors. However, while judges are trained and professionally fostered, have very clear regulations on responsibilities and are professional judges, the People's Court only participates in trials of cases assigned by the chief judge. Due to limited legal knowledge, the capacity, conditions for participating in trials and the responsibilities of the People's Court are not strictly regulated, so the jurors cannot always and in each specific case have the most appropriate and correct judgments and decisions. Not to mention, there are complicated criminal cases with a large number of defendants, victims, people with related rights and obligations, thousands of thick case files, and long trial times, which are great challenges for the People's Court.

Fourth, the time and conditions for studying the case file of the jury as it is now are too short (maximum 15 days) compared to the judge, but together with the judge in the panel of judges, they resolve the case from beginning to end. According to the provisions of the 2015 Criminal Procedure Code, "Within thirty days for less serious crimes, forty-five days for serious crimes, two months for very serious crimes, three months for especially serious crimes, from the date of receiving the case file...", this means that the judge assigned to try the case has a fairly long time to study the case file. However, even the judge directly assigned to try the criminal case, in reality, is not given much attention. The survey report on the current state of administrative management of the People's Court in Vietnam shows that the rate of reviewing criminal case files is "About

“less than an hour before the trial” for provincial court judges was 15.1%, district court judges was 12.1%; “a few hours on the day of the trial” for provincial court judges was 10.5%, district court judges was 17.3%; “more than a day” for acute court judges was 44.3%, district court judges was 56.0%; “more than a week” for provincial court judges was 30.1%, district court judges was 14.5%. Thus, the time to review the file was less than an hour or just a few hours before the trial of a criminal case by provincial court judges was 25.6%, district court judges was 29.4%; The time spent reviewing case files more than a week before the criminal trial by provincial judges only accounts for 30.1% and by district court judges only accounts for 14.5% (See: Table 3.6, Appendix, p.5 ). For judges who directly handle and try criminal cases, this is already the case, for the People's Court, which is limited in time and conditions, the time spent studying case files is certainly much less. Meanwhile, the People's Court basically has to participate in the trial of all types of criminal cases,... the short time to study the case file combined with limited skills and legal knowledge makes it difficult for the jury to fully evaluate the evidence and content in the case file to make the right decision on the case, especially for complicated cases, cases with many defendants participating, cases with thousands or tens of thousands of records... Most of the jurors said that the time to study the case file for them was quite short, and some even answered in-depth interviews saying that they had been assigned to participate in the panel of judges right before the trial took place. Because they did not grasp all the information about the case, the jurors' opinions were not close to reality and were not respected, so they mainly relied on the judge in charge of the main trial [16, p.28].

Fifth, the majority of the People's Jury are part-time, retired or representatives of mass organizations, but this representation is not really comprehensive. They may have life experience and social understanding, but not everyone always knows about professional issues related to the content of the case and is trained and has legal knowledge as required. According to statistics, in the current composition of the Jury, 99.95% of the Jury represents 7% of the Vietnamese population, including officials, civil servants, public employees and retirees, but only 0.03% of the Jury represents

The remaining 93% of the population participates in court proceedings [4]. In the economic context

- As society develops, many new types of crimes appear with increasingly sophisticated nature and level, but the number of People's Councils is determined and elected according to the term of the People's Council (district or provincial level), while the treatment regime and working conditions are still not satisfactory, so the ability to select and assign People's Councils to participate in trials does not always meet the requirements. Currently, although there are regulations on the Jury, due to practical conditions, the organization and operation methods in many places are still not unified and effective.

3.2.2. Practical implementation of regulations on duties, powers and responsibilities of people's assessors in criminal proceedings

The People's Court in Vietnam is a judicial title, responsible for adjudicating cases under the jurisdiction of the court. Therefore, the People's Court has specific duties and powers, which are different from the regulations on the jury system. Along with that, the law also stipulates that the jurors have the duty to study the case file, directly participate in the trial of the case, and must not refuse without a legitimate reason when assigned to try the case, and must be responsible before the law for their actions and decisions. The jurors must refuse to participate in the trial or be replaced, must keep state secrets and work secrets according to the provisions of the law; must participate in training in law and trial skills; maintain relationships with the people; be under the management of relevant organizations and agencies; be exemplary in their activities and be supervised by the people... On the other hand, the jurors must also implement the regulations of the Jury, report on their personal work to the organization and management agency. In practice, the legal provisions on the duties and powers of the People's Court are quite broad and increasingly specific. Over the past decades, most People's Courts have made great efforts in performing their duties, making important contributions to the trial activities in general and the fight against all types of crimes in our country.

If the People's Court commits a violation of the law, depending on the nature and severity of the violation, it shall be subject to disciplinary action or criminal prosecution in accordance with the provisions of law; if it causes damage while performing its duties and powers, it shall be responsible for compensating the court in accordance with the provisions of law [67], [125]. Practice

shows that only in cases that are too obvious due to violations of the law, the rest are very rare for jurors to be disciplined and held responsible for their own mistakes. In cases where jurors are irresponsible and find ways to not properly implement the requirements, it is very difficult, and if the violation is serious enough to be handled, it must also go through many procedures and processes with the participation of many organizations and agencies. There are many jurors who, for various reasons, refuse to accept the assigned task when assigned to judge, in some cases participate perfunctorily or do not seriously and properly perform their duties, etc. Not to mention, due to being influenced from outside or due to weak capacity and fear of conflict, the People's Court also directly or indirectly contributes to the situation of prolonged criminal cases, causing injustice, but assigning responsibility and handling is very difficult. For example, one of the cases that has been widely reported by the press is the case of Dao Xuan Phuong “intentionally causing injury” tried by two-level courts in Thai Nguyen province for 10 years but still causing controversy. In this case, not counting nearly 20 adjournments, the two-level courts of Thai Nguyen City and Thai Nguyen Province tried the case four times, of which four first-instance trials of Thai Nguyen City found Dao Xuan Phuong guilty based on the opinions of the jurors, even though the presiding judge affirmed that there was not enough evidence to charge him [110]. To be more specific, in the first-instance trials, although the presiding judges all voted not guilty, the panel of judges still declared him guilty based on the votes of the jurors .

In the history of litigation activities in Vietnam, up to now, no juror has been held legally responsible for the trial activities. In fact, there have been cases where the violations caused by the trial work were very serious, but only the judge had to bear responsibility. A typical example is the wrongful conviction of Mr. Nguyen Thanh Chan.

10 Dao Xuan Phuong was prosecuted by the Investigation Police Agency of Thai Nguyen City Police for the crime of "Disturbing public order" on August 31, 2009 at the request of the victim related to the incident that occurred at Group 14, Phu Xa Ward, Thai Nguyen City on April 9, 2008. On September 10, 2009, the Investigation Police Agency decided to change the charge to "Intentionally causing injury". During his continuous detention for 5 years (2009-2014), Phuong continuously claimed his innocence, could not find physical evidence, the case file was altered, the victim and witnesses continuously changed their statements, etc. During that process, the Thai Nguyen People's Court had to convene three judicial agencies of the province, then petition the Supreme People's Procuracy and the Supreme People's Court. Thus, after nearly 20 times of returning the case file for further investigation, more than 10 court sessions were opened at 2 levels, going through 4 rounds of trials lasting 10 years, the final appeal court sentenced Phuong to 5 years in prison, the same as the previous detention period, but the verdict still did not convince public opinion.