Strengthening the guarantee of human rights of the accused as stipulated in the 2013 Constitution of our country such as: the right to be presumed innocent, the right not to self-incriminate, regulating more and clearer procedural rights such as the right to collect evidence, earlier time for defense, more number of defense counsel, designation of defense counsel, litigation, etc. for the accused, at the same time promoting the role and responsibility of ensuring human rights and procedural rights of the accused for competent agencies and persons conducting the proceedings, setting new requirements to strengthen the role and responsibility of the Procuracy in making accusations from the time of receiving denunciations, crime reports, recommendations for prosecution, participating in the prosecution of some investigation measures, participating in questioning at the trial to leak evidence of accusation, exoneration, and argument of accusation in the indictment to prove and clarify the defendant's crime, protect the prosecution's viewpoint and strengthen litigation, determine the mechanism to ensure and handle violations.
Based on theory and law (the provisions of the Constitution, the Law on Organization of the People's Procuracy in 2014 and the Criminal Procedure Code in 2015), it has been shown that the role and responsibility of the Procuracy is very important in the mechanism of ensuring human rights and procedural rights of the accused. No agency can replace the Procuracy to ensure human rights of the accused throughout the stages of initiating, investigating, prosecuting and trying criminal cases.
The Procuracy exercises legal powers to ensure human rights and procedural rights of the accused such as the right to prosecute, not to prosecute, the right to charge, not to charge, the right to approve, not to approve procedural orders and decisions of the competent Investigation Agency, the decision to change, terminate procedural activities, terminate criminal prosecution activities (suspend investigation of the case, suspend investigation of the accused, suspend the case, suspend the accused), decide to prosecute, not to prosecute, etc.
Chapter 3
PRACTICE OF ENSURING HUMAN RIGHTS OF ACCUSED PERSONS IN THE PROSECUTION ACTIVITIES OF THE PROSECUTION
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Ensuring human rights of the accused under the Criminal Procedure Law of Vietnam from the practice of the Military Court of Military Region 5 - 1 -
Ensuring human rights of the accused in the activities of proving the accusation of the Procuracy during the stages of initiating, investigating, prosecuting and trying criminal cases - 8 -
Ensuring human rights of the accused in the activities of proving the accusation of the Procuracy during the stages of initiating, investigating, prosecuting and trying criminal cases - 1 -
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 -
Ensuring human rights for people arrested during the investigation phase of criminal cases - 13
3.1. Practices in ensuring human rights of accused persons at the stages of initiating, investigating, prosecuting and trying criminal cases
*At the stage of criminal prosecution and investigation: In the past 10 years (2009-2018), Investigation Agencies nationwide have arrested 659,857 subjects with signs of criminal offenses, the People's Procuracy at all levels has approved the arrest, temporary detention and prosecution: 625,650/629,122 subjects were resolved (accounting for 99.44%); 10,877 subjects were administratively handled (accounting for 1.67%) [Table 3.1a ].
Practices to ensure the human rights of accused persons not to be arbitrarily detained, not to have their legitimate rights and interests violated
According to the annual report of the Supreme People's Procuracy, in the past 10 years (from 2009 to 2018), the Procuracy at all levels has ensured the human rights of detainees, so it has canceled detention or not approved detention, extended detention, or released 24,534 people; not approved emergency arrest warrants for 866 people, not approved detention or temporary detention orders for 1,980 people, not extended detention or temporary detention: 3,383 people; canceled decisions to prosecute defendants or decisions to supplement or change decisions to prosecute defendants against 1,170 defendants, canceled 54 decisions to resolve complaints about illegal behavior, decisions to resolve complaints against illegal behavior to re-settle them in accordance with the law.
Regarding the form of arrest and detention, it is found that: Nationwide, there were 904,801 criminally arrested subjects, of which: 186,469 people were arrested urgently, accounting for 20.60%; 397,239 people were arrested for crimes caught red-handed, accounting for 43.90%; 38,689 people were arrested for wanted persons, accounting for 4.27%; 282,404 people were arrested for temporary detention, accounting for 31.21%. Through the inspection of the above forms of arrest, it can be seen that arresting people caught red-handed always accounts for the highest rate, accounting for 43.90%; if not classified and handled, it is very easy for injustice and mistakes to occur from the beginning because everyone has the right to arrest. The form of arresting suspects and defendants for temporary detention is second, accounting for 31.21%, so it requires the Procuracy to enhance its responsibility in approving temporary detention and arrest orders.
Detention. Implementing the new law, the Prosecutor directly took statements from 31,618 detainees before approval to limit wrongful convictions or omissions.
Implementing the Law on Organization of the Procuracy in 2014, from 2014 to present (2018), the Procuracy at all levels has issued 243,208 investigation requests to guide the investigation and correct injustice and mistakes right from the beginning.
The Procuracy at all levels has accepted to prosecute and investigate: 902,754 cases.
1,382,414 defendants; Investigation agencies have completed investigations and proposed prosecutions: 622,306 cases - 1,087,876 defendants (reaching a rate of 97.90% in terms of cases); suspended investigations: 21,366 cases with
23,267 defendants (2.09% rate). [Table 3.2 ]. It is noteworthy that according to the Annual Report of the Supreme People's Procuracy in the past 10 years (from 2009 to 2018), the Investigation Agency of the Supreme People's Procuracy has initiated investigations into 39 cases/58 defendants for crimes of violating judicial activities related to human rights violations such as: using torture, falsifying case files, making illegal decisions, not prosecuting criminal liability of criminals, specifically: In 2008: 02 cases/02 defendants were prosecuted; in 2009: no cases were prosecuted; in 2010: 01 case/05 defendants were prosecuted; in 2011: 04 cases/08 defendants were prosecuted; in 2012: 05 cases/08 defendants were prosecuted; 2013: prosecuted 04 cases/10 defendants; 2014: prosecuted 02 cases/06 defendants, 2015: no cases. 2016: 08 cases-04 defendants; 2017: 13 cases-15 defendants. 2018: 13 cases-15 defendants. There have been many wrongful convictions and violations of human rights of the accused due to forced confessions and torture, such as: Nguyen Thanh Chan, sentenced to life in prison for murder in Bac Giang province, was wrongly convicted and sentenced to life in prison because the investigator threatened him with a knife, then beat him and forced him to practice the movements over and over again at the detention center to conduct an investigation experiment at the scene. Forced to write a confession on August 28, 2003. On October 25, 2013, Ly Nguyen Chung confessed to the murder of Ms. Nguyen Thi Hoan on the evening of August 15, 2003 to rob her of 2 gold rings and 59,000 VND. This is the most typical case of forced confession and torture leading to the wrongful conviction of an innocent person, mainly due to the violation of human rights and basic procedural rights of the accused, such as the right to prove innocence, not to incriminate oneself, the right to defense, litigation, the right to be presumed innocent... The case of Huynh Van Nen being imprisoned for life for murder, robbery and many other wrongful convictions also has the same cause as mentioned above.
During the National Assembly's supervision period (from October 2011 to September 2014), there were 46 complaints about forced confessions and torture during investigation activities, of which 40 were resolved. There were 26
40 cases/40 defendants who were former police officers were prosecuted for crimes against judicial activities, including 12 cases/24 defendants for the crime of using torture. Through the above data, it can be seen that although the crime of using torture in recent years is rare, there has not been a downward trend. And although a number of cases have been reviewed, prosecuted, and investigated, the number of cases prosecuted and investigated has not fully reflected the actual situation. Therefore, in order to have a legal basis to fight against acts of abuse of position and power, use of torture, and forced confessions during the performance of official duties by investigators, it is necessary to properly implement the roadmap for audio and video recording, promote the role of prosecutors in the work of investigating prosecution, supervising the interrogation of defendants, witnessing the taking of statements of detainees, and lawyers witnessing and supervising the interrogation of defendants, taking statements of detainees [ 105 ].
Results of the activities of the Procuracy to ensure human rights of the accused during the prosecution and investigation stages
Implementing the National Assembly Resolution on strengthening the supervision of law enforcement in criminal justice activities starting from September 2013 onwards. Results in 05 years (2014-2018); The Procuracy at all levels has detected and handled violations in the investigation phase, specifically as follows:
In 2014, the Procuracy at all levels issued 770 recommendations requesting to correct violations of the law in investigation activities; there were 1,461 protests and recommendations requesting to correct violations of the law in temporary detention and temporary imprisonment; identified 115 cases of violations of investigation time limits; 345 violations in evidence collection;
In 2015, the Procuracy at all levels issued 813 recommendations requesting to correct violations of the law in investigation activities (an increase of 43); issued 1,384 protests and recommendations requesting to correct violations of the law in temporary detention and temporary imprisonment (a decrease of 77); identified 74 cases of violations of the investigation period; 283 violations in evidence collection; 688 cases of violations leading to overdue detention and temporary imprisonment;
In 2016, the Procuracy at all levels issued 1,650 recommendations requesting the investigation agencies to remedy violations of the law, such as: 153 orders and decisions in prosecution and investigation that violated the law; 262 violations in collecting documents and evidence, including: 160 violations in questioning suspects and taking witness statements; 33 violations in experimental investigation, identification, and requesting expert opinions; 69 violations in examining crime scenes and corpses, and violations of time limits.
investigated 69 cases, re-investigated 07 cases; violations of regulations on management and handling of evidence, on defense during the investigation and wanted stages; violations in issuing procedural decisions during the investigation stage. The Procuracy issued 808 recommendations requesting the Investigation Agency to remedy violations of the law;
In 2017, the People's Procuracy at all levels issued 854 recommendations requesting the investigation agencies to remedy violations of the law in the above forms.
In 2018, the People's Procuracy at all levels issued 854 recommendations requesting the investigation agency to remedy violations of the law in the above forms.
*At the prosecution stage: In the past 10 years (from 2009 to 2018), the People's Procuracy at all levels decided to prosecute: 598,111 cases with 1,042,291 defendants (reaching a rate of 99.12% in terms of the number of cases), suspending 5,221 cases (0.86%), suspending defendants: 10,041 defendants (accounting for a rate of 0.95%), the grounds for suspension all ensured compliance with the legal basis such as the victim withdrawing the request for prosecution, exempting criminal liability, not having enough evidence to prove the crime and accounting for a very low, insignificant rate [Table 3.3 ]
Results of the activities of the Procuracy to ensure the human rights of the accused at the prosecution stage
In 5 years (2014-2018), implementing Resolution 37/2012/QH13 of the National Assembly dated November 23, 2012 on the work of preventing and combating law violations and crimes, the work of the People's Procuracy in 2013; Resolution No. 63/2013/QH13 dated November 27, 2013 on strengthening measures to fight and combat crimes; Resolution No. 96/2015/QH13 dated June 26, 2015 of the National Assembly on "Strengthening measures to prevent and combat injustice and ensure compensation for victims in criminal proceedings"; Resolution No. 111/2015/QH13 dated November 27, 2015 on the work of preventing and combating law violations and crimes, the work of the People's Procuracy in 2016 and the following years has set the target of prosecuting on time at 90% and prosecuting on the right charges at 95%.
Result:
- In 2013, the rate of timely prosecution exceeded 9.30%; the rate of correct prosecution exceeded 4.72%.
- In 2014, the rate of timely prosecution exceeded 9.98%; the rate of correct prosecution exceeded 4.81%.
- In 2015, the rate of timely prosecution exceeded 9.90%; the rate of correct prosecution exceeded 4.90%.
- In 2016, the rate of timely prosecution exceeded 9.90%; the rate of correct prosecution exceeded 4.90%.
- In 2017, the rate of timely prosecution exceeded 9.90%; the rate of correct prosecution exceeded 4.90%.
- In 2018, the rate of timely prosecution exceeded 9.90%; the rate of correct prosecution exceeded 4.90%.
*At trial stage
First instance trial stage: In the past 10 years (from 2009-2018), the People's Procuracy at all levels has exercised the right to prosecute and try at first instance: 607,319 cases.
1,051,217 defendants (a rate of over 85%). Regarding the level of punishment, it is found that the proposal of the Prosecutor and the Trial Council when sentencing is relatively consistent, ensuring the rights and interests of the defendants in accordance with legal regulations such as: exemption from criminal liability, punishment for 594 defendants, and suspension of sentence or non-custodial reform for 203,847 defendants. Particularly, the number of defendants who were found not guilty by the Court was 171 defendants, mainly due to changes in criminal policy, the victim withdrew the request at the trial, the rest were appealed by the Procuracy in the direction of being guilty.
In the past 5 years (from 2014-2018), the entire Procuracy sector has implemented the target that each Procurator must conduct at least 01 trial to gain experience each year to improve the quality of the practice of prosecution rights, prosecution and trial in criminal trials; meeting the requirements of judicial reform.
District-level Procuracies in 63 provincial and municipal Procuracies have coordinated with the Court to organize experience-sharing sessions for 10,188 cases/15,173 defendants. Regarding provincial-level first-instance cases, 60/63 local Procuracies organized 1,705 cases with 3,018 defendants. Regarding provincial-level appeal cases, 60/63 local Procuracies organized 997 cases/1,434 defendants. The number of cases organized for experience-sharing sessions at local Procuracies has increased over the years. In 2011, in 63 provinces and cities at both levels, there were 2,638 cases, an average of 42 cases per locality, and in 2013, there were 3,292 cases, an average of 52 cases per locality. In recent years, some units have identified the organization of experience-sharing sessions as a breakthrough step, proposing effective implementation measures, creating positive changes in the practice of the right to prosecute, supervise trials, and indictment at court. Attention has been paid to developing an outline for questioning, a draft of charges, and developing a plan for debate and response with the defendant, defense attorney, and other participants in the proceedings. The situation of prosecutors not participating in questioning or not debating or responding to the defendant or defense attorney has decreased significantly. The quality of debate and response by prosecutors has been significantly improved . During the debate process, prosecutors have paid attention to combining accusation with propaganda and legal education for individual and general prevention. Many prosecutors
has paid attention to detecting violations in the trial activities of the Court to propose recommendations requesting the Court to remedy and correct. Based on the results of the public debate at the trial; the proposal to apply a light sentence, to give the defendant a suspended sentence, and to reform without detention ensures prudence, accuracy, and legal basis, is accepted by the Trial Council and thereby educates the defendant to see his guilt and repent.
Practice of appeal, review, and criminal retrial of the Procuracy to ensure the rights of the defendant.
In the past 10 years (from 2009 to 2018), the People's Procuracy at all levels detected violations and issued 10,448 appeals. It tried 10,394 appeals and accepted 7,514 appeals of the People's Procuracy, reaching a rate of 72.29%; of which the highest rate was the appeal requesting not to apply aggravating circumstances of criminal liability not prescribed by the Penal Code, to apply mitigating circumstances of criminal liability, to reduce the sentence that had not been considered for application to the defendant, to change the prison sentence to a suspended sentence for the defendant who met the legal conditions, to annul the sentence due to serious violations of procedural law, etc. to ensure the rights and interests of the defendant. In addition, the People's Procuracy at all levels detected violations and issued appeals for review in 1,180 cases; Notably, the appeals to annul the verdict due to serious violations of procedural law, the appeals to reduce the sentence, reduce compensation for damages, and exempt criminal liability to ensure the rights and interests of the defendant, the rate of acceptance of the appeals by the Procuracy is from 80.7%.
Results of the activities of the Procuracy to ensure the human rights of the accused at the trial stage
The Procuracy at all levels issued 5,965 recommendations for violations in the trial activities, of which the Court allowed 2,511 cases to be overdue for trial and overdue for detention (accounting for 63.71%). In 5 years (2014-2018), implementing Resolution 37/2012/QH13 of the National Assembly dated November 23, 2012; Resolution No. 63/2013/QH13 dated November 27, 2013; Resolution No. 96/2015/QH13 dated June 26, 2015 of the National Assembly; Resolution No. 111/2015/QH13 dated November 27, 2015 on the work of preventing and combating violations of the law and crimes. The results of the Procuracy's discovery of violations by the Court are as follows:
In 2014, there were 1,306 cases where the Court overstayed the detention period.
In 2015, courts at all levels allowed 591 cases of violations due to exceeding the trial preparation period; there were 651 cases of overdue detention; there were 189 cases of violations.
reasons for adjourning the trial; 50 judgments and decisions violating the handling of evidence; 43 cases violating trial limits; 1,780 cases violating trial activities. The People's Procuracy at all levels issued 642 recommendations requesting the correction of violations of the law in trial activities;
In 2016, the People's Procuracy at all levels had 752 recommendations for violations of the law in trial activities;
In 2017, the People's Procuracy at all levels had 832 recommendations for violations of trial preparation time, adjournment of trial, violations of the composition of the trial panel; 648 criminal judgments were discovered to be in violation; The People's Procuracy at all levels issued 2,083 protests and recommendations requesting the Court to remedy violations of the law in trial activities.
In 2018, the People's Procuracy at all levels discovered 102 cases of violations of the trial preparation period, 07 cases of violations of the adjournment of the trial, 48 cases of violations of service, 24 cases of violations when considering the verdict, 2,388 judgments violating the deadline for sending to the People's Procuracy, and 684 judgments violating the deadline for issuance. The People's Procuracy at all levels issued 821 recommendations requesting the Court to remedy violations of the law in trial activities.
The above analysis shows that the situation of violations in judicial activities of judicial agencies has not been significantly improved. Therefore, in the coming time, the Procuracy needs to strengthen the inspection of law enforcement in criminal justice activities to ensure the human rights of the accused at the investigation and trial stages.
Evaluating the survey results on the protection of human rights of defendants at trial [ 97 ] The researcher found that:
Regarding the right to have the Trial Council explain the right to present documents, objects, and requests: 50.5% of the defendants surveyed said that the Trial Council explained the right to present documents, objects, and requests; 37.5% said that the Trial Council did not explain; 12% of the defendants did not know about this right.
Regarding the right to have the Trial Panel create conditions for the defendant to present opinions on evidence: 59% of defendants said that the Trial Panel created conditions for the defendant to present opinions on evidence; 28.8% of defendants said that the Trial Panel did not create conditions.
Regarding the right to have the Trial Panel explain the right to self-defense and to seek defense: 88.7% of defendants said that the Trial Panel explained the right to self-defense and to seek defense.