The trial of the Court must ensure objectivity, comprehensiveness and completeness in order to determine the truth of the case, clarify the evidence confirming guilt and innocence, and determine the circumstances aggravating and mitigating the defendant's responsibility.
Determining the truth of a case objectively means judging impartially, without prejudice or inference, but based on convincing evidence and evaluation and comparison according to the provisions of law.
The Court's trial includes re-examining the accuracy and legality of documents and evidence collected by the investigation agency and the Procuracy to determine the truth of the case, prove whether the defendant committed a crime or not, and the defendant's level of responsibility.
Determining the truth of a case comprehensively means examining the criminal act in all aspects, the elements of the crime as a whole, and examining all details related to the case.
Determining the truth of a case fully means clarifying all the meaningful and necessary details for confirming guilt or innocence, which article or clause of the Penal Code the crime is regulated in, determining the aggravating and mitigating circumstances of criminal responsibility. That means the Court must carry out the proof, specifically "collecting, examining, evaluating evidence and the basis for the conclusion in the criminal case" [13,61]. To do that: "Requires the Court to be fair in treating (relating) to the opposing parties, and in which completely eliminates things that can be commented on as accusations" [56,63]. If the investigation is not complete, the Court must return the file, requesting the responsible agencies to conduct additional investigation.
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The requirements for an objective, comprehensive and complete review of a case are extremely important and necessary for the resolution of the case. These requirements ensure that no criminals are left behind, and especially that innocent people are not wrongly convicted.
- One of the important legal guarantees for protecting the legitimate rights and interests of the defendant is that those conducting the proceedings must be impartial while performing their duties. Article 14 of the Criminal Procedure Code stipulates: "Judges, People's Jurors, prosecutors, investigators, court clerks, interpreters, and experts shall not conduct or participate in
"litigation, if there is good reason to believe that they may not be impartial in the performance of their duties". This is also to facilitate the determination of the truth of the case, avoiding bias and lack of objectivity in the trial.
To prevent the above-mentioned persons from being impartial while performing their duties, the law stipulates cases requiring them to refuse to participate in the proceedings. These cases are stipulated in Articles 28, 29, 30, 31, 32, 33 and 44, 45 of the Criminal Procedure Code. In addition, the defendant has the right to request a change of the person conducting the proceedings.
- In order to ensure the legitimate rights and interests of the defendant and related parties, the law stipulates the order and procedures of trials at different levels . This is also an important legal guarantee for the uniform application of the law in trials, and at the same time, the strict implementation of the defendant's right to appeal and complain.
After the case is tried in the first instance procedure, if the defendant finds that his/her legitimate rights and interests have not been guaranteed, he/she has the right to appeal and request a review of the case in the appellate procedure. And when there is an appeal (or protest), the higher court will directly review the judgments and decisions of the first instance court. Through the appellate trial, the court has the duty to examine the legality and basis of the first instance judgment and decision and to correct and amend the errors of the first instance court.
In addition to first instance and appeal trials, the law also provides for trials according to the procedures of cassation, retrial, etc. These are special procedures to correct errors and shortcomings in the trial process that cause damage to the rights and legitimate interests of the defendant and other participants in the proceedings.
Chief Justice is the review of a judgment or decision that has come into legal effect but is protested because of violations of the law in the settlement of the case.
Retrial is applied to a judgment or decision that has come into legal effect but is protested because the Court has handled the judgment or decision incorrectly due to newly discovered circumstances that could fundamentally change the content of the judgment or decision.
Through the first instance, appeal, review, and retrial, if it is found that there are shortcomings in determining the crime, applying aggravating and mitigating circumstances, and deciding on incorrect punishment, the Court must remedy and correct them according to the provisions of law; the rights and interests of the defendant that have been violated are restored, including reducing the level of punishment and declaring the defendant (or convict) innocent.
The law stipulates that the agency that wrongfully convicted must restore the honor, rights and compensate the wrongly convicted person (Article 24 of the Criminal Procedure Code).
However, the responsibility for the individual or agency that committed the injustice has not been specifically set out. However, the criminal responsibility for crimes against judicial activities as stipulated in the new Penal Code is much clearer and more severe than that of the previous Penal Code.
In addition to the above principles, the law also stipulates a number of other principles such as: ensuring the participation of social organizations and citizens in the proceedings, detecting and overcoming the causes and conditions of crimes, supervising compliance with the law in criminal proceedings, and supervising the State's authority over the trial activities of the Court.
These principles are a whole to create a trial of the right person, the right crime, and the right law, and also to ensure that the human rights and civil rights of the defendant are not illegally deprived by any individual, agency or organization.
As Gorelic AX said: "In a state of law, there are still crimes committed by citizens against other citizens or by citizens against the State, but a State cannot be considered a state of law when it itself or through its authorized representatives commits crimes that violate fundamental human rights" [23, 77].
2.2.2 Principles for deciding on the application of penalties (decision on penalties)
Ensuring human rights and civil rights of defendants is not only consistent in legislative activities with the regulation of crimes, penalties, procedures for conducting proceedings, functions, tasks, and powers of the parties conducting and participating in the proceedings, but also consistent in the process of law application, clearly reflected in the decision to apply penalties.
If the trial is the central stage of the litigation process, then the decision on the penalty is the central stage of the trial process. The decision on the penalty has a direct impact on the rights and interests of the defendant. Therefore, the correct decision on the penalty has a general preventive effect. On the contrary, the wrong decision on the penalty will make the defendant feel dissatisfied in mind and mouth, and the society will condemn and distrust the law enforcement agency. Therefore, in order to create a basis for the correct decision on the penalty, the Court must follow certain principles as prescribed by law.
2.2.2.1. Legal principles.
When applying punishment, the Court must strictly comply with the provisions of the law. These provisions are a system of legal guarantees to protect the rights and legitimate interests of the defendant.
To have the right punishment, the Court must first determine the correct crime. To determine the correct crime, it is necessary to correctly and objectively determine the circumstances of the case that occurred in reality, grasp the content of legal norms, accurately and fully compare the signs of the criminal behavior that occurred with the signs prescribed in legal norms, and verify during the trial to conclude that the defendant committed this crime or another crime. Thus, without the signs prescribed in the criminal law, any act, no matter how dangerous to society it may be in reality, is not considered a crime. For example, in the past, the act of infringing on industrial property rights was not considered a crime. Strict compliance with criminal law when determining the crime is a basic condition to protect the rights and interests of the defendant. Because "correctly identifying crimes will eliminate groundless convictions of people whose acts are not dangerous to society, not contrary to criminal law, and create a legal premise for deciding fair punishments for criminals" [73,147].
If the crime is wrongly determined, it will inevitably lead to the wrong decision on punishment, the wrong application of exemption from criminal liability, amnesty, reduction of sentence term, and deletion of criminal record, causing the defendant to suffer consequences that are not worth bearing and are not in accordance with the actions they have committed. Or it is also possible that the wrong crime is determined, causing the person who should have been punished to suffer consequences.
punishing more severely but receiving a lighter punishment. This violates the principle of fairness and harms the interests protected by criminal law.
When considering the decision on punishment, the provisions of the law must be strictly complied with. For example, based on the provisions on: crime composition, scope of application of the Penal Code, sudden lawsuits, legitimate defense, state of no criminal responsibility, provisions on minors who commit crimes, summary, punishment, ... and based on the sanctions of the law stipulating the crime that the defendant has committed.
When applying punishment to a defendant, the Court must base itself on the law to determine the crime, determine the type of punishment that needs to be applied, and then decide on the specific level of punishment based on the nature and level of danger of the crime committed, the personal characteristics of the offender, and aggravating and mitigating circumstances. The decision on punishment must be cited by specific provisions and laws. That is, the Court can only impose punishments prescribed in the Penal Code.
The decision on punishment requires full grounds and reasons. Those grounds and reasons are socially dangerous acts that have occurred in reality, in accordance with the provisions of the law, bearing full signs of constituting a specific crime and other circumstances that have been examined, evaluated and commented on by the Trial Panel at the trial.
The principle of legality is also reflected in the fact that, among the different solutions allowed by law, the Court must consider choosing a reasonable type and level of punishment, meaning one that is legal, appropriate to the specific circumstances of the case, and the personal characteristics of the offender. Because different people, even if they commit the same crime, cannot have the same level of punishment applied to them.
2.2.2.2. Humanitarian principles.
Punishment reflects the reaction of the State and society towards crime and criminals. The decision on punishment requires the Court to consider and have the right attitude towards the rights and interests of the criminal and the State and society in a unified, harmonious and dialectical whole. Because the law will lose its humanity if it is too
high punishment, overemphasizing the interests of the State and society while disregarding the human rights of the defendant.
Affirming the importance of this issue, the Code stipulates that only 14 circumstances prescribed by law can be considered aggravating circumstances. At the same time, among those circumstances, circumstances that are factors in determining a crime or determining the penalty are not considered aggravating circumstances.
In addition, in addition to the 18 mitigating circumstances prescribed by the Penal Code, when deciding on the penalty, the Court may consider other circumstances as mitigating circumstances. When there are at least 2 mitigating circumstances, the Court may decide on a penalty below the lowest level of the penalty range prescribed by law or change to another penalty of a lighter type.
Humanitarian policy is expressed in the principle of handling (Article 3 of the Penal Code), which is the principle that governs the entire process of considering crimes and applying the law to criminals.
The decision to punish criminals is not intended to cause physical pain or degrade their honor and dignity.
It can be affirmed that the process of building and applying in Vietnam is the process of striving to perfect the humane policies of the Party, State and people. Those policies and laws are imbued with the ideology of Marxism-Leninism: "Cruelty does not take into account any differences, making punishment completely ineffective, because cruelty abolishes punishment as a result of the law" [20,179].
2.2.2.3. Principle of individualization of punishment.
Punishment is only applied to natural persons - specific people. People have different characteristics, personalities, conditions, circumstances... so, in any case, the same punishment cannot be applied to different people. When deciding on a punishment, the Court must consider all circumstances related to the case and having significance in deciding on the punishment.
The law stipulates different stages of crime, cases of crime, subjects of crime, crimes, types and levels of punishment... to facilitate the Court in individualizing punishment. More specifically, the law stipulates types of punishment, penalty frameworks, allowing the Court to choose this or that punishment, this or that level, depending on the specific case, most appropriately to apply to the defendant.
2.2.2.4. Principle of fairness.
To ensure the human rights of the defendant, the decision on punishment must be in accordance with the law, must be proportionate to the crime committed and must be consistent with the legal characteristics of the criminal's personality. Or more concisely, the decision on punishment must ensure the principle of fairness, not too light or too heavy.
The principle of fairness requires that when deciding on a penalty, the proportion of the penalty imposed must be ensured with the nature and degree of danger to society of the crime, with the legal characteristics of the offender's personality, with the aggravating and mitigating circumstances of criminal responsibility, and with the requirements of the fight against crime.
First of all, the decision on punishment must be commensurate with the crime, that is, commensurate with the nature and level of danger of the crime committed.
The social danger of a crime depends on:
- The importance of the object - the social relationships that the crime violates.
- Factors of subject, subjective aspect, object, objective aspect of crime.
The degree of danger to society of a crime depends on the value of the social relationships violated by the crime and the extent of damage caused by the crime. The "nature" and "extent" of danger to society are two sides of the same problem, inseparable from each other. One side cannot exist without the other.
Therefore, the law stipulates that, when deciding on a penalty, the Court must consider and determine both the nature and the level of danger to society of the crime. The determination of the nature and level of danger must be based on a comprehensive analysis of the circumstances of the crime that actually occurred, and the legal characteristics of the offender's personality. For example,
For example, details about time, space, circumstances, location where the crime occurred, methods, means of committing the crime... To a certain extent, these details affect the nature and seriousness of the crime, thereby inevitably affecting the severity of the applied punishment.
As mentioned above, the level of damage or consequences caused by the crime is one of the bases for considering the decision on punishment. Regardless of whether the consequences are stipulated as mandatory signs of the crime or as aggravating or mitigating circumstances, they all have an impact on the decision on whether the punishment is heavy or light.
When deciding on punishment, to ensure fairness requires consideration of the subjective aspect of the crime. Because both theory and practice show that the types, forms, and levels of fault have different levels of danger to society.
Under the same conditions, a crime committed intentionally is more dangerous than a crime committed unintentionally (in which direct intentionality is more dangerous than indirect intentionality and unintentional confidence is more dangerous than unintentional carelessness). That is why Articles 9 and 10 of the Penal Code are divided into different sections suitable for different forms of error (the previous Penal Code, in Article 9 "Intentional crime" did not divide sections) helps to more accurately assess the nature and level, the danger to society of the crime, thereby making the decision on punishment more correct.
However, within the same type of fault, there are also different levels of danger, depending on the legal characteristics of the offender's personality, their psychological attitude, their motives and purposes of committing the crime. At the same time, the causes, circumstances and conditions of committing the crime are also factors that influence the offender's level of fault and must be considered to decide on the punishment.
Trial practice shows that assessing the nature and level of danger to society of crimes still faces many difficulties because there are no specific quantitative regulations. Therefore, there are cases where defendants commit the same crime, the circumstances of the case, as well as their personal legal characteristics are not significantly different,