Protecting human rights during the prosecution and investigation of criminal cases

HANOI NATIONAL UNIVERSITY FACULTY OF LAW

PHAN QUOC VIET

PROTECTING HUMAN RIGHTS IN

CRIMINAL PROSECUTION AND INVESTIGATION STAGE

Major: Criminal law and criminal procedure Code: 6038.01.04

MASTER'S THESIS IN LAW

Scientific supervisor: Prof. Dr. Do Ngoc Quang

Hanoi – 2015

COMMITMENT

I hereby certify that this is my own scientific research work. The figures, examples and quotations in the Thesis ensure reliability, accuracy and honesty. The scientific conclusions of the Thesis have never been published in any other work.

Thesis author

Phan Quoc Viet

INDEX

INTRODUCTION 1

Chapter 1 : GENERAL ISSUES ON PROTECTING HUMAN RIGHTS IN THE PROSECUTION AND INVESTIGATION STAGE OF CRIMINAL CASES 10

1.1. Concepts related to human rights and human rights protection in TTHS 10

1.1.1. Concept of human rights 10

1.1.2. International standards on human rights protection in TTHS 15

1.1.3. General awareness of human rights protection in Vietnam's criminal justice system 22

1.2. General awareness of human rights protection during the stage of prosecution and investigation of criminal cases 28

1.2.1. Contents of human rights protection for accused persons and other participants in the proceedings during the prosecution and investigation stages of criminal cases 31

1.2.2. Subjects protecting human rights during the stage of prosecution and investigation of criminal cases

................................................................ ................................................................ ................................ 38

1.3. The process of developing legal regulations of Vietnam's TTHS related to protecting human rights in the stage of initiating and investigating criminal cases 41

1.3.1. Period from 1945 to 1975 41

1.3.2. The period from 1976 to before the 2003 Criminal Procedure Code 42

1.4. Provisions of the current Criminal Procedure Code on prosecution and investigation measures related to human rights protection 46

1.4.1. Provisions of the Criminal Procedure Code on the powers and responsibilities of the subjects conducting the proceedings during the prosecution and investigation stages related to the protection of human rights 46

1.4.2. Provisions of the Criminal Procedure Code on the application of preventive measures related to human rights 50

1.4.3. Some provisions of the Criminal Procedure Code on the application of prosecution and investigation measures related to the protection of human rights 53

Chapter 2 : PRACTICE OF PROTECTING HUMAN RIGHTS IN THE PROSECUTION AND INVESTIGATION STAGES AND SUGGESTIONS AND RECOMMENDATIONS 59

2.1.1. General situation of criminal prosecution and investigation nationwide from 2010 to 2014 59

2.1.2. Problems and difficulties in the activities of the Investigation Agency and the Procuracy related to the issue of protecting human rights during the stage of initiating and investigating criminal cases 62

2.1.3. Causes leading to the situation where human rights are not best protected during the stage of prosecution and investigation of criminal cases 71

2.2. Recommendations and proposals to improve the effectiveness of human rights protection during the prosecution and investigation stages 89

2.2.1. Requirements of judicial reform on protecting human rights in criminal proceedings in general and in the stage of prosecution and investigation of criminal cases in particular 89

2.2.2. Proposals and recommendations for improving the provisions of the Criminal Procedure Code on prosecution and investigation of criminal cases 92

2.2.3. Proposals and recommendations on improving the qualifications and capacity of investigators and inspectors 103

2.2.4. Proposals and recommendations on inspection, examination and supervision of the activities of the Investigation Agency, Procuracy, Investigation Agency and Procuracy during the stage of prosecution and investigation of criminal cases 106

2.2.5. Other suggestions and recommendations 107

CONCLUSION 118

REFERENCES 122

LIST OF ABBREVIATIONS

Investigation Police Agency: Investigation Agency: Panel of Judges: Prosecutor: Prosecutor: Trial Panel: Trial Panel: Trial Panel: Trial Panel: Deputy Prosecutor: Prosecutor: People's Procuracy:

Supreme People's Procuracy:

VT: QĐND:

CAND: Socialist Republic of Vietnam: CQTHTT: CQĐT:

People's Police

Socialist Republic of Vietnam Prosecution Agency Investigation Agency

Police Investigation Agency Investigator

Trial Panel Prosecutor

Litigant Litigant Court

People's Court

Supreme People's Court Chief

Criminal Procedure Deputy Chief Deputy Chief Prosecutor

People's Procuracy

Supreme People's Procuracy Chief Prosecutor

People's Army

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INTRODUCTION

1. Urgency of the topic

Human rights are a sacred, inviolable value, existing in all areas of social life. Establishing, ensuring and protecting human rights is the goal and basic driving force of every social revolution, and is also a particularly important political and social basis, deciding the choice of political institutions, planning social guidelines and policies, and building laws. Recognizing, respecting, ensuring and protecting human rights is one of the highest political goals of our Party, State and people. Article 14 of the 2013 Constitution affirms: “In the Socialist Republic of Vietnam, human rights and citizens' rights in the political, civil, economic, cultural and social fields are recognized, respected, protected and guaranteed in accordance with the Constitution and laws. Human rights and civil rights may only be restricted as prescribed by law in cases of necessity for reasons of national defense, national security, social order and safety, social morality, and public health” [42. p. 8].

Human rights when participating in criminal procedural legal relations in general, and in the stage of prosecution and investigation of criminal cases in particular, are a specific manifestation (form) of human rights in the socio-legal relations of criminal proceedings, recognized in the Constitution, laws and guaranteed to be implemented in practice.

Initiating and investigating a criminal case is one of the basic stages of the criminal procedure process, always clearly demonstrating the power and coercive strength of the state, the strong antagonism of rights and interests between the participants in the proceedings, between the participants in the proceedings and the State represented by the Investigation Agency (IA), the Procuracy (PPP); the antagonism and imbalance of position and power between the prosecuting agency (CQHTT) being the IA and the Procuracy, the prosecuting person (NTHTT) being the Investigator (IA), the Procurator (PPP) with

accused person, arrested person, detained person, defendant, person in temporary detention during the process of participating in criminal proceedings.

Criminal procedure activities in the stage of criminal prosecution and investigation are essentially law enforcement activities, fighting against crime, in many cases are allowed or forced to apply the most severe state coercive measures - criminal coercion, restrictions, as a premise for restricting and depriving the most basic and important human rights: the right to life, freedom and political life of an individual, the right to privacy of personal information, ownership rights... Therefore, criminal procedure activities in the stage of criminal prosecution and investigation, in any political regime, in any country, are closely related to the issue of human rights and protection of human rights. Compared to other areas of social life, the human rights of participants in criminal procedure relations in general, in the stage of prosecution and investigation in particular, are more vulnerable to infringement but more difficult to detect and prevent. The consequences of human rights violations in criminal proceedings in general, and in the prosecution and investigation stages in particular, are always more serious, severe, and difficult to overcome than in other areas.

Compliance with and strict implementation of socialist legality is a general principle of all legal sectors. In the field of criminal procedure, prosecution and investigation activities play an important role in the entire journey to find the objective truth of a case. Practice has shown that "positive results as well as the most serious judicial errors that let criminals escape, wrongfully convict innocent people... often originate from the investigation stage. The investigation stage undertakes the substantive work of investigating the truth of crimes. The success or failure of the fight against crime to a certain extent is determined by the investigation. Only through investigation can we clearly know the situation of the case and determine whether there is a crime or not" [30, p.45]. The main task of the investigation stage is to investigate the facts of the case and determine whether there is a crime or not" [30, p.45]. The main task of the investigation stage is to investigate the facts of the case and determine whether there is a crime or not.

Prosecution and investigation are the discovery and collection of documents and evidence proving signs of crime, the basis for determining that a person has committed a specific crime, the consequences of damage, the content and development of the criminal case, other details that are significant for the resolution of the case, as a basis for prosecution and trial activities. One of the constitutional requirements, which is meaningful as a basic principle of criminal procedure activities in the stage of prosecution and investigation of criminal cases, is to protect human rights in the process of implementing procedures, measures, prosecution activities, investigation and supervision of prosecution and investigation activities.

The practice of criminal proceedings in recent years in Vietnam shows that, during the stage of prosecution and investigation of criminal cases, there are still activities and procedural acts of the investigating agencies and prosecutors that violate human rights, creating the premise for violating the rights to freedom, life, health, honor and dignity of citizens in the later stages of proceedings (prosecution, trial, execution of judgment) such as the case of Mr. Nguyen Thanh Chan in Bac Giang who was wrongly convicted and sentenced to 10 years in prison for the crimes of Murder and Robbery, Mr. Huynh Van Nen who was wrongly convicted and sentenced to 17 years in prison in the "Cashew Garden Mystery" for the crimes of Murder and Robbery... These are valuable lessons in the judicial history of our country.

The main reasons leading to the situation where human rights are not best protected in the stage of criminal prosecution and investigation include: the work of building, promulgating, perceiving, implementing, and applying the provisions of the Criminal Procedure Code (CPC) on protecting human rights in the stage of criminal prosecution and investigation still has shortcomings, limitations, inadequacies, violations are slow to be discovered, evaluated, analyzed, adjusted, and thoroughly remedied. The regulations on the responsibility regime of the State, the Criminal Procedure Authority, and the Criminal Procedure Code for the legal and social consequences of acts and activities of criminal proceedings that violate human rights are not complete, synchronous, have low practical effectiveness, the order and procedures for receiving, handling, resolving, and overcoming consequences are still cumbersome and formalistic... Perception,

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