Adversarial process in criminal proceedings: Shortcomings and solutions
The current criminal procedural model in Vietnam is basically inquisitorial and the adversarial approach has neither received due attention nor been recognized as a basic principle in all proceeding stages. This approach is currently modestly employed at court hearings only.

Nguyen Quang Hien, LL.D

People’s Court of Thu Duc district, Ho Chi Minh City

The current criminal procedural model in Vietnam is basically inquisitorial and the adversarial approach has neither received due attention nor been recognized as a basic principle in all proceeding stages. This approach is currently modestly employed at court hearings only.

At court hearings, procurators are not likely to actively participate in the inquiry, exchange arguments and counter-arguments with defense counsels to defend their accusations, and usually make a simple statement that they hold up their indictments. Meanwhile, the trial panel often spends more time on inquiry than on listening to the arguments of the adversaries and conducts the hearings according to the inquisitorial approach, making judgments mostly based on case files. Judges even act like procurators when actively exchanging arguments with defense counsels.

That the procedural law regards the court as a procedure-conducting agency like the investigative office and procuracy, and judges, jurors and court clerks as procedure-conducting persons like investigators and procurators is unreasonable, leading to a misconception that these procedure-conducting agencies play the “primary role” in the procedure, having the power to collect and weigh evidence and conduct procedural activities while other procedure participants are merely “secondary players”.

The positions, roles and functions of procedure-conducting agencies are still overlapping.


Duong Tu Trong and other defendants are convicted by Hanoi’s People’s

Court for organizing others to flee abroad__Photo: Doan Tan/VNA

According to Articles 13, 63, 65, 104 and 179 of the Criminal Procedure Code, the court has the duty to bear the burden of proof and the right to collect evidence which is similar to that of the investigative office and procuracy, the parties in charge of accusation. The court even has to conduct trial when it returns the case file to the procuracy and investigative office for additional investigation but the procuracy refuses to withdraw its prosecution decision. These provisions have affected the impartiality and objectiveness of court trial and the rights and legitimate interests of the accused.

Articles 207 (inquiring order), 221 (withdrawal of prosecution decisions or conclusions on lesser offenses) and 222 (deliberation of judgments) of the Criminal Procedure Code stipulate that the court (judges and jurors) is the first to inquire defendants, followed by prosecutors and defense counsels and it can continue adjudicating the case when the procuracy drops its accusation and the defense is no longer necessary (the adversarial relation no longer exists).

The Supreme People’s Court guides in its Conclusion No. 290 that “adversarial approach is to make arguments to determine the truth of all circumstances of the case and properly apply the law to settle the case.” This guidance fails to correctly reflect the nature of this approach, misleading procedure-conducting agencies and persons to think that the adversarial approach is just argument. Adversarial approach should have been otherwise applied at all procedural stages, including collection and weighing of evidence, summoning of procedure participants, change of procedure-conducting persons, etc.

Proposals to improve the application of adversarial principles

The objective of the judicial reform is to better guarantee human rights and ensure that judicial agencies effectively protect justice, equality, order and democracy not only in social life but also in judicial activities.

The application of the adversarial process in criminal proceedings must create specific legal grounds for “disadvantaged” parties to fully exercise their legally established rights in all procedural stages. The adversarial principles must be harmonized with other basic principles of criminal proceedings to meet the requirements of democracy, impartiality and equality and help create a just and effective procedural mechanism.

Adversarial approach should be recognized as a fundamental principle in criminal proceedings, requiring all proceedings to be conducted on the basis of litigation between the adversaries. The functions of making accusations or claims, making defense or counterclaims, and adjudication must be independent from one another. The accusing or claiming party and the defending or counterclaiming party must have equal right to collect documents, objects and evidence and to make claims and arguments in an open and democratic manner throughout the proceedings, especially before the court. The court is responsible for creating necessary conditions for the adversaries to exercise their rights and perform their obligations as provided by law. Court judgments and rulings must be based on results of an equal, democratic and open adversarial process.

Adversarial approach should be institutionalized into specific provisions on criminal proceedings. The criminal procedure law should clearly differentiate the function of accusation from that of defense and of adjudication. As a result, Article 10 of the Criminal Procedure Code should be revised as follows: “Investigative agencies and procuracies shall apply every lawful measure to determine facts of cases in an objective, versatile and adequate manner, to make clear evidence of crime... The responsibility to prove crimes rests with investigative agencies and procuracies...” Similarly, Articles 63 and 65 of the Criminal Procedure Code should also be revised as follows: “When investigating, prosecuting and adjudicating criminal cases, investigative agencies and procuracies shall prove whether or not criminal acts have occurred..., and who have committed criminal acts...” and “In order to collect evidence, investigative agencies and procuracies may summon...”

The criminal procedure law should clearly prescribe that investigators have the responsibility to inform accused persons of their rights to have defense counsels, refuse to make statements (the right to silence) and object the accusation. A mechanism should be created for the accused and defense counsels to collect defending evidence.

The court, rather than the investigative office and procuracy as at present, should be vested with the power to approve the application of coercive measures against the accused who do not fall in the cases of emergency or flagrant delicto.

On the other hand, Articles 13 and 104 of the Criminal Procedure Code should be revised to relieve the court and trial panel from the responsibility to institute criminal cases, as follows: “Upon detecting criminal signs, investigative agencies or procuracies shall, within the ambit of their respective tasks and powers, institute criminal cases and apply measures provided by this Code to determine crimes and handle offenders,” and “Procuracies shall institute criminal cases if they, during trials, detect new offenses or offenders that need investigation.”

Regarding the return of case files by the court to the procuracy for additional investigation, Article 179 of the Criminal Procedure Code should be revised as follows: “When deeming it necessary to further examine important evidence in the case or when there are grounds to believe that the defendant has committed another offense or there is another accomplice, the procuracy may request the trial panel to postpone the court hearing for additional investigation.”

In order to guarantee the accused’s right to defense, Article 196 of the Criminal Procedure Code should be revised to narrow the limits of trial that courts may only adjudicate defendants within the scope of the procuracy’s indictments and to permit the accused to give questions to witnesses in the proceedings, especially during trial.

Articles 217 and 218 of the Criminal Procedure Code should provide more specifically the rights and obligations of parties involved in the argument process at court hearings and require the adversaries to prove their arguments and explain unclear matters and the presiding judge to ensure a democratic and objective adversarial process and allow the adversaries to fully present their arguments and opinions.

Regarding the inquiring order, Article 207 should be revised as follows: “When inquiring each person, procurators shall be the first to ask questions, then defense counsels and other procedure participants if they wish and are permitted by the presiding judge...”

Regarding the case of withdrawal of the whole prosecution decision, Articles 221 and 222 of the Criminal Procedure Code should be revised as follows: “In case the procurator withdraws the whole prosecution decision before the deliberation of a judgment, the trial panel shall declare the defendant not guilty or terminate the case.”

Other measures to facilitate adversarial process

In addition to revision of the Criminal Procedure Code, it is also necessary to annul relevant legal documents in line with Resolution No. 49-NQ/TW of June 2, 2005, on the reform of the judicial system.

The organization and operation of procedure-conducting agencies should be comprehensively reformed toward:

Clearly differentiating the court’s function of adjudication from the procuracy’s function of accusation,

Establishing a mechanism to guarantee the court’s independence in trial, appointing judges, investigators and procurators with an indefinite term of office,

Transforming procuracies into prosecutor’s offices which will belong to the executive system and direct activities and approve conclusions of investigative offices,

Redefining the function of investigative offices and improving the capacity and quality of investigators.

Besides, there should be mechanisms to develop organizations providing pro-bono legal aid and services to the poor and diversify forms of law practice and raise the position and role of lawyers and defense counsels, national and foreign; develop the pool of judicial assessors and mobilize all social resources for the provision of the best legal services to the people.

Private detective’s offices should be permitted to help collect sufficient evidence for use in the adversarial process.

Training of procedure-conducting persons should be intensified. A regulation on their professional ethics and liability and public-duty discipline should be elaborated. The process of selection, appointment and relief from office of judicial title holders should be renewed.

Physical facilities for procedure-conducting agencies and working tools for procedure-conducting persons and legal aid institutions should be built and sufficiently provided.-

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