Third is the defender, the person protecting the rights of the victim, the civil plaintiff, the civil defendant. As mentioned above, the defender and the person protecting the rights of the litigant are the mediators to help the mediators whose interests are affected by the decisions of the mediators in legal aspects as well as contribute to ensuring fairness in the activities of the criminal procedure. They are people with certain legal knowledge, so when mediating, they can see the impartial grounds of the mediators. Therefore, to ensure the rights of the person they are defending as well as to ensure the objective resolution of the case, the Law on Criminal Procedure stipulates that the defender and the person protecting the rights of the victim, the civil plaintiff, the civil defendant have the right to request a change of the mediator when there are grounds prescribed in the Law on Criminal Procedure. This right is once again affirmed in Point c, Clause 2, Article 58, which stipulates the rights of the defense counsel and in Paragraph 2, Point d, Clause 3, Article 59, which stipulates the rights of the person protecting the interests of the litigant. However, just as the second group of people does not stipulate that the person with rights and obligations related to the case and the legal representative has the right to request a change of the arbitrator, in this third group of people, the person protecting their interests also does not have the right to request a change of the arbitrator. At the same time, among the arbitrators, there is one person whose interests are also affected by the decisions of the arbitrator but does not have the right to request a change of the arbitrator, that is the detainee. However, according to the provisions of the 2003 Criminal Procedure Code, the detainee has the right to defend himself or invite another person to defend him. Thus, the detainee can have a defender. So according to current regulations, the defense attorney of the detainee has the right to request a change of the trial judge, but the detainee himself does not have this right.
In addition to the three groups of people above who have the right to propose and request a change of the trial judge, in paragraph 2, clause 3, Article 306 of the Criminal Procedure Code, it is stipulated that at the trial of a defendant who is a minor, a representative of a participating school or organization has the right to request and propose a change of the trial judge. Thus, there appears another entity with the right to propose and request a change of the trial judge. However, this entity can only exercise that right when the trial is in progress. In previous stages, this entity does not have the right to propose and request a change of the trial judge. And thus, this entity only has the right to propose and request changes to the Judge, Jury, Prosecutor and Court Clerk at the trial.
The right to request a change of interpreter and expert is stipulated in Point d, Clause 2, Article 49, which stipulates the rights of the accused, Point d, Clause 2, Article 50, which stipulates the rights of the defendant, Point c, Clause 2, Article 51, which stipulates the rights of the victim, Point c, Clause 2, Article 52, which stipulates the rights of the civil plaintiff, Point d, Clause 2, Article 53, which stipulates the rights of the civil defendant, Point c, Clause 2, Article 58, which stipulates the rights of the defense counsel, and in Paragraph 2, Point d, Clause 3, Article 59, which stipulates the rights of the person protecting the interests of the litigant. According to these provisions, in addition to the right to request a change of the interpreter, they also have the right to request a change of the expert and interpreter. However, if compared to the subject who has the right to request a change of the expert, in the Criminal Procedure Law there is no provision that stipulates that the Prosecutor has the right to request a change of the expert and interpreter, even in the provision that stipulates the powers and responsibilities of the Chief Prosecutor and the powers and responsibilities of the Prosecutor. However, at the trial, in the procedure for starting the trial, there is a provision that the Prosecutor and the arbitrators are asked by the presiding judge whether they request a change of the expert, expert and interpreter. Thus, it can be understood that when performing their functions, the Prosecutor also has the right to request a change of the expert and interpreter.
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In addition to the subjects who have the right to propose or request a change of the prosecutor, in Joint Circular No. 05/2005 of the Supreme People's Procuracy, the Ministry of Public Security, and the Ministry of National Defense on the coordination between the Investigation Agency and the Procuracy in implementing a number of provisions of the 2003 Criminal Procedure Code dated September 7, 2005, it is stipulated that when discovering that a Prosecutor falls into one of the cases that must be changed or must refuse to conduct a criminal procedure as prescribed in Article 45 of the Criminal Procedure Code, the Investigation Agency shall propose to state the reasons for the Procuracy at the same level to consider changing the Prosecutor. Thus, in addition to the prosecutors who have the right to propose a change of the Prosecutor, the Investigation Agency also has the right to propose a change of the Prosecutor when there is a basis according to the provisions of law.
c. Authority and procedures for changing the person in charge of the administrative procedure and the person in charge of the administrative procedure
When there are grounds to believe that the settlement of the case may not be impartial, the arbitrators, interpreters, and experts may refuse or be replaced. At different stages of the criminal procedure, the persons with the right to change as well as the procedures for changing them are also different.
During the investigation phase, Article 44 of the 2003 Criminal Procedure Code stipulates that if the Investigator has grounds to refuse or is changed, the change will be decided by the Head of the Investigation Agency. If the Investigator is the Head of the Investigation Agency, the investigation will be directly conducted by the superior Investigation Agency. According to Joint Circular No. 05/2005 of the Supreme People's Procuracy, the Ministry of Public Security, and the Ministry of National Defense on the coordination relationship between the Investigation Agency and the Procuracy in implementing a number of provisions of the 2003 Criminal Procedure Code, dated September 7, 2005, it is stipulated that: When there is a basis to change the investigator of the Investigation Agency, the Prosecutor has the right to request the Head of the Investigation Agency or request the Chief of the Procuracy at his/her level to consider and request the Head of the Investigation Agency to change the Investigator. Within three days from the date of receipt of the request of the Prosecutor or the request of the Chief Prosecutor of the same level, if it is deemed to have grounds, the Head of the Investigation Agency shall issue a decision to change the Investigator. If it is deemed to have no grounds, a written notice stating the reasons shall be sent to the Procuracy. The person whose request for change or refusal to conduct the investigation is the Head of the Investigation Agency at the provincial, centrally-run city, district, provincial city, or military level of the military zone or region shall be requested by the Investigation Agency at the same level to issue a decision to transfer the case to the Investigation Agency at the next higher level to directly conduct the investigation and the Procuracy shall report in writing on the transfer of the case to the Chief Prosecutor of the next higher level to direct the exercise of the right to prosecute and supervise the investigation of the case. The person whose investigation is changed or refused is the Head of the Central Investigation Agency, then the leader of the Ministry or branch (Ministry of Public Security, Ministry of National Defense, Chief of the Supreme People's Procuracy, Chief of the Central Military Procuracy) decides to have a Deputy Head of the Investigation Agency conduct the investigation for the case. The decision to change the Investigator, Deputy Head, or Head of the Investigation Agency must be sent to the Procuracy of the same level and included in the case file.
In the process of performing the functions of the Procuracy, according to Section 5, Part I of Resolution No. 03/2004/NQĐTP dated November 5, 2004, the change of the Prosecutor before the opening of the trial shall be decided by the Chief Prosecutor of the Procuracy at the same level. If the Prosecutor to be changed is the Chief Prosecutor of the Procuracy, the Chief Prosecutor of the immediate superior Procuracy shall decide directly. In case the Prosecutor must be changed at the trial, the Trial Panel shall decide to postpone the trial. The assignment of another Prosecutor shall be
The Chief Prosecutor of the same-level People's Procuracy or the Chief Prosecutor of the immediately higher-level People's Procuracy shall make the decision directly. However, in the event that at the trial, the Prosecutor refuses to conduct an investigation or requests a change of Prosecutor, the Trial Panel must listen to the Prosecutor present his/her opinion on the reasons for refusing to conduct an investigation or requesting a change of Prosecutor. The Trial Panel shall then enter the deliberation room to discuss. If it is deemed that the refusal to conduct an investigation or request a change of Prosecutor is justified in accordance with the provisions of the Law on Criminal Procedure in the event that there is no reserve Prosecutor, the Trial Panel shall decide to adjourn the trial and immediately notify the People's Procuracy of the same level. The discussion and decision to adjourn the trial and notify the People's Procuracy of the same level of the change of Prosecutor must be made in writing and announced at the trial. The written notice must be immediately sent to the People's Procuracy of the same level and request the People's Procuracy of the same level to decide on the appointment of another Prosecutor to replace him/her. The notice must clearly state that within three days from the date of receipt of the notice from the Trial Panel, the Procuracy is requested to appoint another Prosecutor to replace it so that the Court can reopen the trial within the time limit prescribed by law.
In case the Investigation Agency has a recommendation to change the Prosecutor, within three days from the date of receipt of the Investigation Agency's recommendation, if there is a basis, the Chief Prosecutor or Deputy Chief Prosecutor must issue a decision to change the Prosecutor; if there is no basis to change the Prosecutor, a written notice stating the reasons must be sent to the Investigation Agency. In case of changing the Deputy Chief Prosecutor, the Chief Prosecutor shall decide to assign another Deputy Chief Prosecutor or the Chief Prosecutor to directly handle the case; and at the same time notify the Investigation Agency of the same level of such change or assignment. When the person being changed is the Chief Prosecutor, if it has been done, the Procuracy shall report to the Chief Prosecutor of the immediate superior Procuracy to issue a decision to assign a Deputy Chief Prosecutor of the Procuracy where the Chief Prosecutor is being changed to handle the case and notify the Investigation Agency handling the case. In this case, the immediate superior Procuracy is responsible for inspecting and directing the local Procuracy to exercise the right to prosecute and supervise the investigation of the case. The decision to change and assign the Procurator, Deputy Chief Procurator, and Chief Procurator must be sent to the Investigation Agency handling the case to be included in the case file (Joint Circular No. 05/2005/TTLT-VKSNDTV-BCA-BQP dated September 7, 2005).
During the trial, the change of Judges and Assessors before the opening of the trial is decided by the Chief Justice of the Court. If the Judge to be changed is the Chief Justice, the decision is made directly by the Chief Justice of the immediate higher Court. The change of Judges and Assessors at the trial is decided by the Trial Panel before the beginning of the questioning by voting in the deliberation room. When considering a member, that member is allowed to present his/her opinion, and the Council decides by majority. In case the Judge or Assessor must be changed at the trial, the Trial Panel shall decide to postpone the trial. The appointment of new members of the Trial Panel shall be decided by the Chief Justice of the Court. The change of the Court Secretary before the opening of the trial is decided by the Chief Justice of the Court. The change of the Court Secretary at the trial is decided by the Trial Panel. In case the Court Secretary must be changed at the trial, the Trial Panel shall decide to postpone the trial. The appointment of another Court Secretary shall be decided by the Chief Justice of the Court.
At the same time, the Chief Justice and Deputy Chief Justice of the Court of Criminal Procedure, as Judges in the role of presiding judges or members of the Trial Panel with the duties, powers and responsibilities of Judges as prescribed in Article 39 of the Criminal Procedure Code, must refuse or be changed according to the grounds for refusal and change of Judges as prescribed in Article 46 of the Criminal Procedure Code (Resolution No. 03/2004/NQ-HDTP dated October 2, 2004).
The procedure for refusing and changing an expert or interpreter in criminal proceedings is stipulated in Articles 60 and 61 of the Criminal Procedure Code. When there are grounds for refusing or changing the status of an expert or interpreter, the agency that requests the expert or interpreter will have the right to decide.
d. Consequences of refusing or changing the arbitrator, interpreter, expert and of not refusing or changing the arbitrator, interpreter, expert
According to the provisions of the 2003 Criminal Procedure Code, the refusal or change of the investigator, interpreter, or expert during the investigation, prosecution, or trial preparation stages does not result in the competent criminal procedure agencies issuing a decision to temporarily suspend or discontinue the investigation; temporarily suspend or discontinue the case or postpone the proceedings during these stages of the case settlement process. The refusal
Refusing or changing the person conducting the investigation, the interpreter, the expert only needs to decide to replace these people by the competent criminal investigation agency and the decision to change does not affect the time limit for resolving the criminal case. At the trial of a criminal case, in the procedure to start the trial, the 2003 Criminal Procedure Code clearly stipulates that the Judge must ask the Prosecutor and the people conducting the investigation if they request to change the person conducting the investigation, the expert and the interpreter. Article 202 stipulates : “The Prosecutor and the people conducting the investigation must be asked by the presiding judge whether they request to change the Judge, the Jury, the Prosecutor, the Court Secretary, the expert, the interpreter or not. If there is a request, the Trial Panel shall consider and decide”. In this case, if the Trial Panel finds that the request to change the judge, expert, or interpreter of those entitled to make the request is well-founded, the trial must be adjourned. Article 194 of the Criminal Procedure Code, when regulating the period of adjournment of the trial, stipulates: “In cases where the trial must be adjourned as prescribed in Articles 45, 46, 47, 187, 189, 190, 191, and 193 of this Code, the period of adjournment of the first instance trial shall not exceed thirty days from the date of the decision to adjourn the trial.”
During the process of resolving a criminal case, if there is a basis for refusing or changing the person conducting the investigation, the expert and the interpreter, at any stage of the proceedings, the persons with the authority to perform the duties of that stage will carry out the change of the person conducting the investigation, the expert and the interpreter without affecting the progress of the performance of the duties of that stage of the proceedings, except in cases where the person conducting the investigation, the expert and the interpreter are changed at the trial. However, if there is a basis for refusing or changing the person conducting the investigation, the expert and the interpreter, but these persons do not refuse or are not changed, this is considered a basis for the case to be returned for further investigation, re-investigation or retrial, depending on the different stages of the proceedings.
During the prosecution and first-instance trial stages, if competent THTT agencies under Articles 168 and 179 of the 2003 Criminal Procedure Code discover “serious violations of procedural law” , they will return the case file for further investigation. In the guidance of Joint Circular 01/2010/TTLT-VKSNDTC-BCA-TANDTC dated August 27, 2010, one of the cases considered “serious violations of procedural law” is that there is a basis for refusal or replacement of the THTT person, expert, or interpreter.
translation without implementation or at point 4.4, clause 4, section I of Resolution No. 04/2004/NQ-HDTP dated November 5, 2004 stipulates:
A serious violation of procedural law is a case where the Criminal Procedure Code stipulates that it is mandatory to carry out or carry out such procedural law, but the procedural agency or the procedural person ignores or does not carry out it properly, seriously infringing upon the rights of the accused, defendant, victim, civil plaintiff, civil defendant, person with rights and obligations related to the case or causing the settlement of the case to lack comprehensive objectivity.
When the first-instance judgment or decision has not yet taken legal effect, the Procuracy has the right to appeal according to the appellate procedure. Although the Criminal Procedure Code does not specifically stipulate the grounds for appeal, according to the guidance of the Supreme People's Procuracy, one of the four grounds for appeal is "violations of the Criminal Procedure Code during the first-instance trial" [88]. Thus, if during the first-instance trial, the Procuracy discovers procedural provisions in the Criminal Procedure Code that the Court has not implemented, it has the right to appeal to review the criminal case at the appellate level. The guidance of the Supreme People's Procuracy does not require that the procedural violation be a serious violation as in the grounds for returning the case for additional investigation, so of course, violations of the grounds for refusal or change of the investigator, expert, or interpreter are also grounds for appeal. However, the Procuracy is only entitled to appeal on this basis when it discovers violations during the first-instance trial stage. If these violations are discovered during the investigation and prosecution stage, the Procuracy will appeal when the Court's judgment comes into legal effect according to the supervisory review procedure. When the Procuracy's grounds for appeal under the appeal procedure are found to be well-founded, the Appellate Trial Panel has the authority to annul the first-instance judgment according to Point a, Clause 2, Article 250: "The Court of Appeal annuls the first-instance judgment for retrial at the appeal level with a new Trial Panel in the following cases: a)….. or there are other serious violations of procedural law."
When the judgment of the Court comes into legal effect, the Procuracy and the Court discover serious violations of the law in the handling of the case, the Procuracy and the Court have the right to appeal according to the supervisory review procedure. One of the grounds for appeal according to this procedure is stipulated in Article 273 of the Criminal Procedure Code.
That is, “there is a serious violation of procedural law during the investigation, prosecution or trial”. Therefore, even when there is a judgment or decision of the Court that has come into legal effect and can be enforced, if there are grounds for refusal or change of the judge, expert, interpreter, the Procuracy, the Court still has the right to appeal against that judgment, and at the same time has the right to temporarily suspend the enforcement of that judgment or decision (Article 276). After reviewing the judgment or decision that has come into legal effect, if the grounds for appeal are found to be well-founded, the Board of Review has the right to annul the judgment or decision that has come into legal effect for re-investigation or re-trial (re-trial, depending on each specific case, can be re-tried at the first instance or at the appeal level) (Article 287).
Thus, not refusing or changing the person conducting the investigation, the expert, the interpreter when there is a basis prescribed by law will affect the process of resolving the criminal case. Unlike if discovering the basis for refusing or changing the person conducting the investigation, the expert, the interpreter, the procedural agencies only have to change without affecting the process of resolving the case, not discovering the basis for refusing or changing the person conducting the investigation, the expert, the interpreter or discovering such basis but not implementing it will lead to the activities of the following stages of the proceedings. If these grounds are discovered, the process of resolving the criminal case will be prolonged and more complicated, affecting the rights of the accused, the defendant, the victim, the civil plaintiff, the civil defendant and the people with related rights and obligations, causing people to lose trust in the procedural agencies in particular and the State in general.
3.1.4.4. Some other regulations related to the principle of ensuring the impartiality of the THTT person, interpreter, and expert
a) Conditions and standards for THTT people and TGTT people
Criminal prosecutors are those who are assigned by the State to represent the State in resolving criminal cases. Their activities directly affect the rights and interests, even the lives of people, affect the fairness of the law, and the prestige of the State. Therefore, in order to carry out this responsibility, the State, when appointing criminal prosecutors, requires them to comply with certain standards. For criminal prosecutors who directly carry out litigation activities affecting the rights of criminal prosecutors, the law requires first