awareness in the process of law application of the prosecution agencies to ensure proper implementation of the provisions of the 2015 Criminal Procedure Code.
On November 26, 2018, the Supreme People's Court issued Official Dispatch No. 254/TANDTC providing guidance on cases where a case has been initiated at the request of the victim but the person who requested the criminal case to be initiated withdraws the request: " In case there is an appeal and at the appellate stage the person who requested the criminal case to be initiated withdraws the request, the Trial Panel or the Judge presiding over the trial under the simplified procedure shall, based on Clause 2, Article 155 and Article 359 of the Criminal Procedure Code, annul the first instance judgment and suspend the case. In the appellate judgment, the Court must clearly determine that the reason for annulment of the first instance judgment and suspension of the case is because the person who requested the criminal case to be initiated withdrew the request, not due to the fault of the Court of First Instance " [20]; From there, difficulties were resolved at the appellate court, especially for cases that were being appealed to the Chief Justice, requesting the cancellation of the appellate judgment on the crime of intentional infliction of injury for retrial according to the appellate procedure, because it was believed that there were serious mistakes in the application of the law.
However, the above guidance is only a temporary solution and is not really convincing. Article 358 stipulates the annulment of the first instance judgment for re-investigation or re-trial due to grounds to believe that the first instance court has overlooked a crime, a criminal, or to prosecute or investigate a crime more serious than the one declared; there is a serious violation of procedural law; Article 359 stipulates the annulment of the first instance judgment and suspension of the case when there is one of the grounds specified in Clause 1 or Clause 2, Article 157 of the 2015 Criminal Procedure Code (i.e. there is no crime or the act does not constitute a crime), the Appellate Court shall annul the first instance judgment, declare the defendant not guilty and suspend the case. When there is one of the grounds specified in Clauses 3, 4, 5, 6 and 7, Article 157, the Appellate Court shall annul the first instance judgment and suspend the case. In addition, Article 359 does not list Clause 8, Article 157 as the basis for the Appellate Trial Panel to annul the first instance judgment and suspend the case (crimes specified in Clause 1 of Articles 134, 135, 136, 138, 139, 141, 143, 155, 156 and Article 226 of the 2015 Penal Code where the victim or the victim's representative does not request prosecution). On the other hand, if the victim withdraws the request for prosecution at the appeal trial stage and the case is suspended and the first instance judgment is revoked, the case shall be suspended and the first instance judgment shall be revoked.
If the case is canceled, there will be problems in resolving civil liability and handling physical evidence. In addition, Official Dispatch No. 254 to guide the application of the law is not in accordance with the provisions of Article 21 of the Law on Promulgation of Legal Documents 2015 and the Law on Organization of People's Courts 2015. Accordingly, the Council of Judges of the Supreme People's Court issued a Resolution to guide the unified application of the law in adjudication through summarizing the application of the law and supervising the adjudication. The Supreme People's Court cannot issue an Official Dispatch guiding the application of the law.
The Criminal Procedure Code and its implementing documents only stipulate the right to request prosecution and withdraw the request for prosecution without mentioning the content and form of the withdrawal of the request for prosecution. Therefore, in practice, the withdrawal of the request for prosecution is expressed in many different forms. In some cases, the request for withdrawal of the request for prosecution is written in the form of a complaint withdrawal, which includes the content of the withdrawal of the request for prosecution. This form of complaint is accepted by the prosecution agencies. In cases of prosecution at the request of the victim, the withdrawal of the complaint and the non-request for criminal liability of the offender is considered a withdrawal of the request for prosecution. If the complaint is only withdrawn and compensation is not requested (without mentioning whether or not the criminal liability of the offender is handled), it is not a withdrawal of the request for prosecution.
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The right to request prosecution and withdraw the request for prosecution still has many problems in the practical application of the Criminal Procedure Law regarding the victim withdrawing the request for prosecution. In cases where there are many victims but only a few victims request prosecution, the prosecution agencies do not agree in determining the victim. Some prosecution agencies consider all the victims as victims and handle the crime against many people. However, there are also places that apply that if only one victim is the one who files the request for prosecution, the others are not victims, so the person causing the injury is not criminally responsible for the crime against many people. And when withdrawing the request for prosecution, if all victims withdraw the request for prosecution, the case is suspended. There is no guidance on the withdrawal of the request for prosecution of a case by one victim among many victims, causing difficulties in the application process.
2.2. The current situation of victims in Dong Nai province through the trial work of the Court
Through the analysis of the provisions of the Criminal Procedure Law on victims above, we can see that the provisions of the law on victims have gradually been improved through the stages. However, the above provisions still have many shortcomings, leading to many difficulties in their practical application, leading to the rights of victims not being protected in a timely manner. In the above sections, when studying and analyzing the provisions of current laws, students have pointed out the legal limitations and difficulties in applying these provisions in the trial activities of the Court.
2.2.1. On statistics of data on handling and adjudicating cases of victims
In practice, the data on trials are reported monthly, quarterly and annually on the number of cases and defendants, and the personal characteristics of the defendants to understand the crime situation and propose preventive measures. However, the position of the victim in criminal proceedings is not considered important, so the data and information about the victim in general in each criminal case are not recorded. For minors, the victim is a special subject of the victim, so it should be of interest to competent authorities and the whole society. In addition, agencies and organizations are new subjects of the victim, so they should be recorded and reported.
Although the Criminal Procedure Law on victims is not really perfect, when the Court applies it in practice, it has achieved certain results. According to statistics of the People's Court of Dong Nai province, the parameters on victims in the acceptance and settlement of criminal cases are as follows:
In the 5 years from 2016 to 2020, the total number of cases prosecuted at the request of victims was 46 cases with 47 victims, of which in 2016 there were 8 cases with 8 victims, in 2017 there were 10 cases with 11 victims, in 2018 there were 9 cases with 9 victims, in 2019 there were 10 cases with 10 victims, in 2020 there were 9 cases with 9 victims [13]. The number of cases prosecuted at the request of victims has not fluctuated over the years.
For minor victims in the 5 years from 2016 to 2020, the total number of cases prosecuted was 144 with 150 victims, of which in 2016 there were 19 cases with 20 victims, in 2017 there were 24 cases with 24 victims, in 2018 there were 48 cases with 51 victims, in 2019 there were 22 cases with 22 victims, in 2020 there were 40 cases with 41 victims [13]. The number of minor victims increased significantly in 2018 (the year the 2015 Criminal Procedure Code took effect).
The victims were agencies and organizations from 2016 to 2020, there was only 1 case with 1 victim. This is a new victim recognized in the 2015 Criminal Procedure Code, and in reality, crimes against agencies and organizations as victims are not many [13].
The Criminal Procedure Code provides for two levels of trial of criminal cases: first instance and appeal, and can be reviewed according to the supervisory review procedure. However, in the past 5 years, there has not been any case of the victim appealing and no first instance judgment has been overturned due to incorrect identification of the victim's status. This demonstrates the correct awareness and solid professional and technical qualifications of the litigants.
Regarding the procedure for protecting the legal rights and interests of victims by lawyers, although there are no clear regulations, with the intention of ensuring the best rights and interests of victims, litigants in Dong Nai province carry out the registration of protection of victims quickly and promptly. In the past 5 years, there have been no cases of complaints about procedural conduct regarding the protection of rights and interests of victims.
However, the work of statistics on victims at the two-level Court of Dong Nai province has not really paid attention to data and information about victims, leading to difficulties in assessing the effectiveness of the application of laws on victims in practice. On the other hand, without complete information about victims, it will be difficult for competent authorities to research and assess the impact of victims' personal background on the crime situation, in order to propose measures to prevent crimes.
The results of applying legal regulations on victims in practice are not only affected by legal norms but also by other factors. Therefore, in addition to the limitations of the law on victims affecting the quality of protecting the rights of victims in practice, this work is also influenced by the legal level of legal entities, the legal awareness of litigants and the entire population, the activities of litigation agencies and facilities. The legal level of litigants in general and in the trial stage in particular is stipulated in the Criminal Procedure Code. Accordingly, litigants in Dong Nai province all have university degrees, majoring in law (including doctoral, master's and postgraduate degrees), so they must have a good understanding of the law in order to accurately apply legal regulations. In addition to the requirement of university degrees, litigants must have
undergo serious and fair training and examinations. Therefore, the legal level of those who apply criminal law on victims is guaranteed. In addition, those who conduct proceedings always seriously comply with the law of the State to set an example for the people. The level and legal awareness of the people are not really uniform and not high, they still do not fully understand their rights and sometimes behave inappropriately but do not know that this behavior is a violation of the law. Regarding the facilities in Dong Nai, in 2020, Dong Nai Provincial People's Court repaired and renovated the headquarters to arrange a good working environment for civil servants of the Court sector. In the districts, the facilities of the district-level People's Court are still limited, working facilities are insufficient, personnel are lacking, and salaries are low [12]. All of the above factors affect the quality of the application of legal provisions on victims in practice, affecting the rights of victims.
2.2.2. Practical application of regulations on victims in trials
Regarding identification of victims:
There are many issues in determining the victim's legal status that require awareness in accordance with the provisions of the Law on Criminal Procedure. The determination of the victim's status and the subjects at the trial stage of the Court is mainly expressed in relevant decisions and orders; in which, the decision to bring the case to trial and the verdict are the most complete forms of expression.
The decision to bring the case to trial reflects all the participants in the proceedings, while the judgment only refers to those whose rights and obligations are affected by the judgment, or those who protect their legitimate rights and interests. There are cases where the participants in the proceedings according to the decision to bring the case to trial are different from the judgment. However, determining the status of the victim before the opening of the trial incorrectly will affect the rights of the victim because the victim receives the summons and the decision to bring the case to trial, but if one of these people is determined to be a witness, they will only receive the summons and determining their rights and obligations will not be in accordance with the provisions of the Criminal Procedure Code.
In practice, the incorrect identification of the victim's status may or may not infringe upon their legitimate rights and interests. In cases where the victim's status is incorrectly identified, it will affect the legitimate rights and interests of that person or other civil servants. For example, in a case of public order disturbance, if they are identified as the victim, they have the right to appeal against the verdict to increase the sentence for the defendant, while if they are correctly identified as the civil plaintiff in the case, they do not have this right and the incorrect identification will affect the legitimate rights and interests of the defendant.
Incorrect determination of the victim's status seriously infringes upon the legitimate rights and interests of the litigant in the case and may be annulled by the appellate court for retrial or remanded to the supervisory court for retrial.
From 2016 to 2020, the People's Courts at two levels of Dong Nai province have complied with the provisions of the Criminal Procedure Code on participants in the proceedings, thus correctly determining the status of the victim, ensuring the rights and obligations of each subject when participating in the proceedings; no case was complained, denounced, or appealed after the judgment on their procedural status and there were no cases of serious violations of procedural law due to incorrect identification of the victim's status with other participants in the proceedings.
On the right to denounce crimes:
The right to denounce crimes is for all victims and the right to request prosecution, the right to withdraw the request for prosecution of VAHS is only for some victims in certain cases. When the victim actively exercises this procedural power, it gives rise to the rights and obligations of the victim in the criminal procedure. In case the victim does not denounce or request prosecution, but the prosecution agency still initiates the case, the victim is still entitled to his procedural rights. However, the exercise of the right to denounce crimes and the right to request prosecution reflects the proactive exercise of the rights of the victim. In fact, the victim has not actively exercised the right to denounce crimes. Compared to the number of criminal cases, the percentage of victims reporting crimes is very small, mainly in groups of
Crimes against life, health, property crimes and sexual crimes.
Regarding the right to claim compensation for damages:
The victim has the right to claim compensation for damages. The damage to be compensated by the victim is the damage directly caused by the crime, which is different from the damage of the civil plaintiff. In fact, during the investigation process, the Investigation Agency pays little attention to determining the civil issues in VAHS, but only resolves civil issues related to proving the crime. At the trial stage, the judge almost only focuses on researching and resolving criminal issues without paying due attention to civil issues in VAHS.
Regarding the right to complain, the right to appeal, the right to request a change of the person conducting the proceedings:
The victim or the victim's legal representative has the right to complain about the decisions and procedural actions of the competent authority or person. If the complaint about the decisions and procedural actions of the competent authority or person is well-founded, the prosecuting authority shall decide to change it depending on the stage of the proceedings. The right to request a change in the person conducting the proceedings is a right that demonstrates the people's right to supervise the activities of the prosecuting authority. The victim has the right to request a change in the person conducting the proceedings, the expert, or the interpreter when there is reason to believe that they may not be impartial or objective in the process of resolving the case.
In the files that students accessed for research, there were no cases where the victim complained about the decision or procedural actions of the competent authority or exercised the right to request a change of the prosecutor. This result partly shows that the assignment of prosecutors in reality is basically objective, so the victim did not have to use the right to request a change of the prosecutor; it is also possible that the victim did not know about this right to exercise or due to objective reasons regarding the procedural procedures and the mechanism for exercising the right, the victim could not commonly exercise this right in reality.
The right to appeal of the victim is actually expanded. The victim has an expanded right, they can appeal any issue in the first instance judgment that the victim or their legal representative disagrees with the Court of First Instance, including appealing the determination of their procedural status. The victim has the right to appeal the entire first instance judgment, from the crime to the penalty, the level of compensation for damages. However, the victim mainly appeals the penalty and civil liability; there has been no case of appeal regarding the determination of the defendant's procedural status.
On the status of the victim's performance of obligations:
The victim has fully performed his/her reporting obligation. According to the study of the records, the trainees found that in reality, there has not been any case where the victim refused to report or obstructed this. This can confirm that the victim has complied well with his/her reporting obligation. However, the law does not have any practical mechanism to protect the victim when they are threatened if they report the criminal acts of the suspect or defendant, leading to psychological difficulties for the victim. In fact, when there is a summons from the Investigation Police and the Procuracy, the defendant is present to serve the investigation, but the rate of victims present to participate in the trial is low.
Regarding the withdrawal of the request for prosecution at the appellate level:
The biggest problem in the rights of the victim is the right to request and withdraw the request for prosecution. In fact, in other localities, there have been cases of withdrawal of the request for prosecution at the appellate level, leading to confusion in the handling of the case, or there have been cases where the appellate judgment was overturned by the final judgment decision due to improper handling when the victim withdrew the request. However, in Dong Nai, there have been no cases of withdrawal of the request for prosecution at the appellate level because in other stages of the proceedings, the victim has been clearly explained by the litigant about the right to withdraw the request for prosecution, so the victim has made firm decisions in the previous stages of the proceedings. However, in practice, the Court has been inconsistent in handling cases of withdrawal of the request for prosecution at the appellate level.
For example, in the case of Bui Duc L committing the crime of "Intentionally causing injury" to the victim Nguyen D with a glass cup, causing the victim to injure 5%. The defendant's behavior