Some Provisions of International Human Rights Law on Ensuring Human Rights in Criminal Trials

- First , about the procedural proceedings at the trial.

The provisions on the composition of the trial in Article 185 of the Criminal Procedure Code are the concretization of the principle of collective trial by the Court.

The provision on the defendant's presence at the trial in Article 187 of the Criminal Procedure Code is the defendant's right to participate in the trial.

The provision on the presence of a defense attorney in Article 190 of the Criminal Procedure Code is the concretization of the principle of ensuring the right to defense for the accused, and is also a legal guarantee for the defendant to exercise his right to defense.

The regulations on the presence of participants in the trial and the regulations on adjournment of the trial aim to try the case fairly and objectively, giving a verdict that is correct for the person, the crime, and the law.

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- Second , about the procedure for starting the trial.

The procedure for starting a trial is an activity to check the necessary conditions for the trial, creating the premise for the next parts of the trial. Through this activity, the panel of judges will determine the necessary conditions to decide whether to continue the trial or to postpone the trial.

The procedure for starting a trial also has provisions to ensure human rights for the defendant. That is the provision that the presiding judge must explain the rights and obligations to the defendant at the trial (Article 201 of the Criminal Procedure Code). At the same time, the panel of judges must accept the defendant's requests for consideration when the defendant exercises his rights at the trial: the right to change the prosecutor, the right to request the summoning of additional witnesses, the right to submit additional documents and evidence for examination... (Articles 202, 205 of the Criminal Procedure Code).

- Third , about the questioning procedure at the trial.

This is an important step in the trial process. This is an official public investigation conducted through questioning the defendant and the participants in the proceedings, examining all issues to determine whether there is a crime or not, if so, what the crime is, as well as the cause, motive, purpose, consequences of the crime and aggravating and mitigating circumstances for the defendant...

The provision that the Prosecutor reads the Indictment in Article 206 of the Criminal Procedure Code is a

The regulation allows the defendant to verify for himself whether the Indictment he has received has the same content as the Indictment that the Court received in the case file. This is essentially a re-examination of whether the defendant's right to receive procedural documents is guaranteed or not. On the other hand, the regulation that if the Prosecutor has additional opinions, they must be presented immediately is to create conditions for the defendant to clearly understand the prosecution's accusation viewpoint so that he can plan his defense.

The provisions on examination of evidence (Article 212 of the Criminal Procedure Code) and on-site examination (Article 213 of the Criminal Procedure Code) create conditions for cases to be assessed objectively and publicly.

- Fourth , about the debate in court.

Debate at the trial is the stage where the panel of judges listens to the opinions of the representative of the Procuracy and the participants in the proceedings to express their views on resolving the case and protecting their rights in the most comprehensive way. This is considered the last opportunity for the participants in the proceedings to analyze and argue so that the panel of judges accepts their opinions. This debate is conducted as follows:

+ The prosecutor presents the indictment, proposing to convict the defendant according to all or part of the content of the indictment or conclude on a lesser charge. If there is no basis for conviction, the prosecutor withdraws the entire decision to prosecute and proposes that the panel of judges declare the defendant not guilty.

+ The defendant presents his defense (if the defendant has a defense attorney, the defense attorney will defend the defendant first, then the defendant has the right to add his opinion)

+ The victim and other participants in the proceedings have the right to present their opinions on the prosecutor's indictment. If the participants in the proceedings have different opinions, they have the right to participate in refuting the opinions with which they disagree.

During the debate, the presiding judge may only cut off opinions that are not relevant to the case and may not limit the debate time. On the other hand, the presiding judge has the right to request the prosecutor to respond to opinions that are relevant to the case from the defense attorney and other participants in the proceedings.

- Fifth , about the deliberation and sentencing.

The provisions on deliberation in Article 222 of the Criminal Procedure Code ensure the implementation of the principle of "Judges and Jurors try cases independently and only obey the law" and the principle of "The Court tries cases collectively". During the deliberation phase, if these two principles are ensured, a verdict will be issued that is correct for the person, the crime, and the law.

2.2. Some provisions of International Human Rights Law on ensuring human rights in criminal trial activities

International Human Rights Law is one of the new branches of the International Law system, officially formed and developed after the United Nations was founded (1945). It is a system of international legal rules, standards and practices that establish, protect and promote basic rights and freedoms for all members of the human community. Its subject of regulation is the relationship between states and international organizations in protecting and promoting human rights. On the other hand, it also regulates the relationship between states and citizens related to ensuring the implementation of international standards on human rights [25]

International Human Rights Law has a system of documents that serve as the basis for ensuring human rights in criminal proceedings, especially at the stage of criminal proceedings. First of all, the Universal Declaration of Human Rights, 1948 (UDHR) and the International Covenant on Civil and Political Rights, 1966 (ICCPR) are the core. Then there are other basic international documents on human rights in judicial activities such as: Convention against torture and other cruel, inhuman or degrading treatment or punishment, 1984; Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, 1988; Rules of Conduct for Law Enforcement Officials, 1979; The Basic Principles on the Independence of the Court, 1985… These documents are presented in a rather brief and concise manner (UDHR has only 30 articles, ICCPR has 53 articles, Beijing Rules have 40 articles).

…) but there has been effective adjustment in practice.

International Human Rights Law is not directly applied by the Courts of member states but is internalized into the national legal system (i.e. amending and supplementing the domestic legal system to harmonize with the Human Rights Law).

International). However, the issue of internalization is not complete, and there is always a certain "gap" between International Human Rights Law and National Law. In addition, when comparing some specific Conventions on human rights with the law of a country that is not a member of that Convention, the "gap" is even higher. The provisions of International Human Rights Law on ensuring human rights in criminal proceedings and Vietnamese Criminal Law are the same.

Currently, Vietnam is a member of a number of international conventions such as: ICCPR (joined in 1982); CRC (joined in 1990); Convention on the Non-Applicability of Statutes for War Crimes and Crimes against Humanity, 1968 (joined in 1983) ... Besides, due to the economic, social and political situation, Vietnam has not been able to join documents such as: ICCPR's First and Second Optional Protocols; Minimum Rules for the Treatment of Prisoners, 1955; Guarantees to Protect the Rights of Persons Faced with the Death Penalty, 1984 ... However, we believe that in the future, when the time is right, Vietnam will join the remaining international conventions on human rights. Therefore, in this section, in addition to the conventions that Vietnam has joined, we still mention some provisions of other documents that Vietnam is not yet a member of.

2.2.1. Provisions on the rights of criminal defendants

The rights of a criminal defendant are the concretization of the right to life, the right to freedom, the right to non-discrimination... of a person suspected of committing a crime in the field of criminal procedure.

These are the following rights:

- The right not to be tortured and the right to humane treatment (Article 5 UDHR; Articles 7, 10 ICCPR; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment)

- The right to liberty and security of person, also known as the right not to be subjected to arbitrary arrest or detention (Article 9UDHR, Article 9 ICCPR)

- The right to non-discrimination, recognition and equality before the law (Articles 1, 2, 6, 7, 8 UDHR; Articles 2, 3, 16, 26 ICCPR)

- The right to privacy or the right to life (Article 12 UDHR; Article 17 ICCPR)

- Right to a fair trial (Articles 10, 11UDHR; Articles 11, 14, 15 ICCPR).

This right was first mentioned in Articles 10 and 11 of the UDHR, then reaffirmed and specified in Articles 11, 14 and 15 of the ICCPR, of which Article 14 of the ICCPR plays an important role. Article 14 of the ICCPR specifies the rights to equality before the Court; the right to be presumed innocent; the right to special procedures for minors; the right to appeal; the right to compensation for wrongful convictions... and a series of other minimum procedural guarantees for criminal defendants during the trial process such as:

+ The right to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.

+ The right to have sufficient time and favorable conditions to prepare a defense and to contact a defense attorney of one's own choosing.

+ The right to be tried without undue delay.

+ The right to participate in court, the right to defend oneself and to have someone else defend one.

+ The right to question or request the questioning of witnesses against him; to invite witnesses who testify against him to court and to question them in court under the same conditions as witnesses who testify against him.

+ The right to have a free interpreter if you do not understand or speak the language used in court.

+ The right not to be forced to testify against oneself or to admit guilt (also known as the right to remain silent)

Thus, it must be affirmed that international human rights law has many more progressive points than Vietnamese law in regulating human rights in criminal proceedings in general and human rights at the trial stage in particular. International human rights law provides a more complete set of procedural rights for criminal defendants. The most obvious thing is that Vietnamese law has not recognized the right to

speedy trial, the right to remain silent for detainees, suspects and defendants. There are also opinions that these rights have been indirectly recognized through a series of other regulations. However, we believe that the fact that Vietnamese law has not yet fully internalized the provisions of the International Human Rights Law is a limitation that needs to be promptly overcome. The provisions in the international documents that we participate in or recognize need to be promptly internalized in a reasonable manner.

On the other hand, comparing the provisions that we have internalized, we can see that the content of the provisions in national law is always narrower than that of international human rights law. However, this situation stems from the specific practices of each country, so this is acceptable. However, in our opinion, our State must always strive to expand the content of these provisions so that they correspond to the provisions of international human rights law. Only then can human rights be guaranteed at the highest level.

A final characteristic that can be drawn when comparing international human rights law and the system of regulations ensuring human rights in Vietnamese law is: The provisions of international human rights law are always humane and for the people because international human rights law was born with the aim of establishing, protecting and promoting basic rights and freedoms for all members of the human community. Meanwhile, the provisions to ensure human rights in Vietnamese criminal proceedings were formed to simultaneously achieve different goals: both to fight against crime, to punish criminals, to protect the interests of the state and the community, to protect social values, and to internalize related issues that have participated in international conventions... Therefore, the provisions to ensure human rights in Vietnamese law are more limited, and the "human rights" nature will inevitably be reduced to some extent.

2.2.2. Mechanism to ensure human rights in criminal trial activities according to international human rights law

In addition to recognizing human rights in law, there must be measures to ensure the implementation of rights in practice. Because human rights

are very rich and violations of rights are also very diverse, so the protection and promotion of rights requires the participation of many types of subjects (individuals, communities, non-governmental organizations, international organizations, state agencies...) through many measures: dissemination, education, raising awareness, monitoring, supervision, handling of violations... [25, 157]

International human rights law has three mechanisms to promote and protect human rights in general: International mechanism; National mechanism, Regional mechanism. The protection of human rights violated in criminal proceedings is also carried out according to those mechanisms.

- International human rights mechanism (United Nations human rights mechanism):

This mechanism is the apparatus of organs (General Assembly, Security Council, Trusteeship Council, Ecosoc, Secretariat, ICJ) and the rules and procedures for promoting and protecting human rights in the United Nations system. In the scope of the topic, we only mention the International Court of Justice (ICJ).

This is the main judicial body of the United Nations. In the protection and promotion of human rights, this body has the function of considering and handling disputes on human rights. In fact, there have been a number of disputes and complex issues on human rights brought before the ICJ such as: the right to residence, the rights of aliens, the rights of children, the issue of maintaining the trusteeship regime with South West Africa, the issue of arresting US diplomats and consular staff in Iran, the issue of respecting the basic principles of International Humanitarian Law. In addition, the ICJ can also advise the General Assembly and the Security Council on legal issues on human rights such as: the issue of reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, the status of the Special Rapporteur, etc.

- Regional human rights mechanism

Currently, three-quarters of the continents have established mechanisms to protect and promote human rights:

+ Mechanisms for the promotion and protection of human rights in Europe.

+ Mechanisms for the promotion and protection of human rights in the Americas.

+ Mechanisms for promoting and protecting human rights in Africa.

All three regions have recorded human rights and mechanisms for ensuring and monitoring them in the system of human rights documents, including the core documents of the European Convention on Human Rights, the American Convention on Human Rights, and the African Convention on Human Rights. The regional mechanism is ensured by the activities of the following agencies: the African Commission on Human and Peoples' Rights; the American Commission on Human Rights; and the Committee of Ministers of the Council of Europe. In addition, the regions have established human rights courts to adjudicate human rights complaints (European Court of Human Rights, American Court of Human Rights, African Court of Human Rights).

Compared to the UN mechanism, the regional human rights mechanism has the advantage of being easier to reach consensus when establishing, amending, supplementing and implementing, because countries in the region often have many things in common in terms of economy, culture, and historical traditions. On the other hand, the regional mechanism is also more accessible than the global mechanism of the United Nations. To a certain extent, some regional mechanisms have proven to be more rigorous and effective than the UN mechanism.

- National human rights mechanism

The establishment of independent or semi-independent agencies from the state apparatus to enhance the effectiveness of protecting and promoting human rights in each country is different, and can be generalized in the following forms:

+ National Commissions of Human Rights: This model includes many members representing many social groups,

profession. National human rights commissions are usually part of the executive branch, established by the Government but relatively independent from other executive bodies. Its functions are: to protect individuals from discrimination and promote human rights; to receive, investigate and resolve complaints about human rights violations in accordance with national law; to study policies and activities related to human rights of the government; to monitor the activities of state agencies in complying with human rights laws; to educate and propagate to raise people's awareness of human rights.

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