>>Development of criminal procedures in Vietnam
Pham Diem
State and Law Institute of Vietnam
In Vietnam, the basic principles of criminal-procedure law are understood as certain ideologies and guidelines for procedural forms and modes, aiming to detect in time and properly handle law offenders and to protect citizens legitimate rights and interests.
They demonstrate the Vietnamese State’s criminal policies. If these principles are ignored, much attention will probably be paid only to the fast adjudication of cases but not to people’s legitimate rights and interests, thus leading to unfair and undemocratic trials.
Being prescribed in the Criminal Procedure Code, these basic principles constitute legal provisions, expressing the nature and characteristics of the criminal-procedure law and playing the leading role governing all norms of the Code. They include:
The guarantee of the socialist legislation in criminal procedures
This is a constitutional principle, requiring that the State and social organizations are organized and operate and citizens live and work according to the Constitution and law. It is concretized in the establishment of criminal-case- handling order, as clearly stated in Article 2 of the Criminal Procedure Code: “All criminal proceedings of procedure-conducting bodies and persons and participants in the procedures must be carried out in accordance with the provisions of this Code.
This principle constitutes the prevailing ideology in the process of criminal-law formulation and application.
Legislatively, it means that all criminal-proceedings, the order and procedures for institution, investigation, prosecution and trial of criminal cases, the functions and jurisdiction of criminal procedure-conducting bodies and persons as well as the rights and obligations of participants in the criminal proceedings must be provided for by the State in the criminal-procedure law.
Executively, it requires that the criminal procedure-conducting bodies and persons as well as participants in the criminal proceedings strictly observe the criminal-procedure law. In case of law offenses, responsible bodies shall apply measures to redress such offenses.
An important guarantee for the enforcement of this principle is the control of law observance in criminal proceedings and the supervision of criminal adjudication.
In criminal proceedings in Vietnam, the control of law observance falls under the jurisdiction of people’s procuracies, which exercise the rights to prosecution in criminal procedure and decide to prosecute law offenders before courts. The procuracies also function to detect in time law violations by procedure-conducting bodies or persons as well as participants in criminal proceedings and to apply measures prescribed by criminal-procedure law to ward off law offenses, aiming to ensure the right and lawful prosecution, investigation, adjudication and judgment enforcement. They control the law observance in criminal proceedings by applying such law-prescribed measures as approving or cancelling decisions of procedure-conducting bodies, conducting by themselves a number of procedural activities or issuing necessary decisions in handling cases or protesting against courts’ judgments or decisions.
Meanwhile, the supervision of criminal adjudication falls under the jurisdiction of superior courts. According to the Criminal Procedure Code, superior courts supervise the adjudication by subordinate courts; the Supreme People’s Court supervises the adjudication by People’s Courts and military courts of all levels. The superior courts supervise the adjudication by way of reviewing judgments or decisions of subordinate courts through such activities as examining and detecting the latter’s errors or shortcomings, protesting against effective judgments or decisions according to cassation procedures, settling complaints and denunciations of state bodies, social organizations and citizens against effective judgments or decisions of courts, drawing up adjudication experiences and guiding subordinate courts in the unified application of law.
Respect for, and defense of, fundamental rights of citizens
This principle is also clearly defined in Vietnam’s Constitution.
Criminal proceedings are directly related to human rights, civic rights, especially such fundamental rights as the right to body inviolability, the rights to protection of life, health, property, honor, dignity, the right to residence inviolability, to safety and confidentiality of correspondence, telephone conversations and telegraphs of citizens.
The formulation and application of criminal-procedure law must fully comply with this principle. Under the Criminal Procedure Code, the procedure-conducting bodies and persons must, within the scope of their respective responsibilities, respect the legitimate rights and interests of citizens, regularly examine the validity and necessity of the applied measures, promptly cancelled or changed them when finding that those measures are contrary to law or no longer necessary.
This constitutional principle is clearly expressed in that when conducting legal proceedings, the procedural bodies and persons must respect and guarantee citizens’ right to body inviolability, to protection of life, property, honor and dignity, right to residence inviolability, safety and confidentiality of correspondence, telephone conversations and telegraphs. These rights can only be restricted on the basis and in accordance with law. Procedure-conducting bodies and persons can apply preventive or coercive measures only when they have adequate grounds and so permitted by criminal-procedure law. When such grounds no longer exist or are unnecessary, they must promptly annul decisions to apply such measures. They must regularly examine and control the validity and reasonability of the application of preventive or coercive measures in order to immediately abolish them when finding that they are contrary to law.
The criminal-procedure law not only prescribes the responsibility of procedure-conducting bodies and persons to respect and protect human rights and civic rights but also allows participants in criminal proceedings to demand procedure-conducting bodies and persons respect and assure their fundamental rights and liberties.
Guarantee of all citizens’ right to equality before law
In a regime where the State is ruled by law, citizens’ right to equality before law and before courts acts as a foundation in all aspects of the social life. This is also a constitutional principle.
Under the Criminal Procedure Code, criminal proceedings are carried out on the principle that all citizens are equal before law, regardless of their nationality, sex, belief, religion, social strata, social position. Any person who commits crimes shall be handled according to law. The prosecutors, accused persons, defendants, defense counsels, victims, civil plaintiffs, civil defendants, persons with relevant interests and obligations in cases, their lawful representatives, defenders of involved parties’ interests are all equal in producing evidences, documents or objects, in putting forth their demands and democratically arguing before courts. The courts are liable to create conditions for them to exercise such rights, aiming to clarify the truth of cases.
This principle is guaranteed by a uniform system of State law and the consistent application of law to all people in legal proceedings without any discrimination, priority or privilege. In the same capacity as the accused, defendant, victim, civil plaintiff or civil defendant, the participants in criminal proceedings enjoy the same rights and obligations prescribed by the criminal- procedure law. Any person who commits criminal acts shall bear penal liability as provided for by the Criminal Procedure Code.
Criminal cases are all handled according to a compulsory order and uniform procedures prescribed by the criminal-procedure law. The accusers and the defenders are equal before courts in producing evidences, raising their demands and arguing at court sessions.
Implementation of the two-tier trial regime
This is also a constitutional principle. Under the Criminal Procedure Code, courts shall follow the regime of two-tier trials: the first-instance trial and the appellate trial.
First-instance judgments and decisions, if not being appealed or protested against, will be legally valid. For first-instance judgments or decisions which are appealed or protested against, the cases must be brought to appellate trial and the appellate judgments and decisions shall be legally valid. For legally valid court judgments and decisions, if law violations are detected or new circumstances emerge, they will be reviewed according to the cassation or re-opening procedures.
The first-instance trial of criminal cases means the adjudication of such cases at the first and most fundamental level, which is compulsory for any criminal case.
The appellate trial of criminal cases is the second tier of trial by superior courts which directly re-adjudicate first-instance judgments and decisions, which are yet legally valid and appealed or protested against.
The implementation of two-tier trial regime aims to the lawfulness and groundedness of court judgments and decisions, ensuring that wrong judgments or decisions will not be enforced. This also constitutes a mode of supervision by superior courts over adjudicating activities of subordinate courts, protecting the legitimate rights and interests of the accused, victims, civil plaintiffs and civil defendants.
Public trial
Publicity is a property of a democratic regime. In general justice and criminal justice, publicity is expressed as a guiding principle, which is acknowledged by the Constitution.
It is concretized by the Criminal Procedure Code as follows: “Courts shall conduct trial in public, everybody have the right to attend such trial, unless otherwise prescribed by this Code. In special cases where state secrets should be kept or the fine national customs and practices should be preserved or the involved parties’ secrets must be kept at their legitimate requests, courts shall conduct trial behind closed door but must pronounce the judgments publicly.”
Public trials may be carried out in the adjudication rooms at courts’ headquarters or in an itinerant manner at places where crimes are committed or the accused’s places of residence, if it is deemed necessary. Contents, time and venues of such court sessions must be publicly posted up before adjudication and the adjudication procedures and results can be publicized to people on the mass media.
The public-trial principle is applied not only to first-instance trials but also to appellate trials.
The public trial constitutes a guarantee, enabling people to inspect and supervise adjudicating activities of courts, and at the same time promote the effect of education and crime prevention. It also aims to heighten the responsibilities of judges, prosecutors, people’s jurors and counsels to perform their respective tasks and strictly comply with law.
Trial with jurors’ participation on an equal footing with judges
The court’s trial with jurors’ participation is provided for by the Constitution. This constitutional principle is concretized in the Criminal Procedure Code: “The trial by people’s courts or military courts shall be participated by people’s jurors or military jurors respectively…. In the course of trial, jurors are equal in rights to judges.”
People’s jurors and military jurors are those who live, work or participate in daily social activities within population communities and are elected or appointed to participate in trial activities. They bring to court sessions people’s opinions on cases, helping courts handle them in an accurate and just manner. With their rich experience in life and professional knowledge, jurors make important contributions to clarifying and affirming the truth of cases.
In criminal trial, jurors are equal in rights to judges. All matters related to cases must be jointly discussed and approved by judges and jurors in deliberation rooms. Jurors are equal to judges in examining circumstances as well as in deciding on judgments.
In order to ensure jurors’ effective participation in trial, the law provides that state bodies, social organizations and localities where jurors work or reside must create favorable conditions for them to properly perform their tasks while jurors must raise their legal knowledge and sense of responsibility in adjudication at court.
This is an extremely important principle contributing to the consolidation of the relationship between courts and people, the guarantee of accuracy and justice in trial activities, the education in the sense of law and the prevention of crimes.
Judges and jurors conduct trial independently and abide by law only
Within the system of state bodies, only courts have the power to conduct criminal trial. They perform the function of trial in the name of the Socialist Republic of Vietnam. Therefore, besides courts, no agency can undertake the function of adjudication and is allowed to interfere in trial activities.
In order to ensure the objectiveness and impartiality in trial activities, the Constitution and the Criminal Procedure Code prescribe the principle that judges and jurors conduct trial independently and abide by law only.
The provision on judges’ and jurors’ independence in trial aims to ensure the objectiveness and fairness of decisions handed down by courts, heighten the responsibility and independence of judges and jurors, and ensure the quality of trial activities. In the course of trial, judges and jurors are not dependent on opinions and influences of other agencies, organizations and persons with powers and on viewpoints and conclusions of procedure-conducting agencies and persons or procedure participants. Nobody, no agency and no organization has the right to interfere or pressure judges and jurors in the course of handling criminal cases.
Such independence is also manifest in the independence among trial panel members (including judges and jurors) in the study of case files, examination and assessment of evidences as well as in the making of conclusions. Jurors, when exercising their rights, are independent from judges in all steps of trial. To guarantee this, the criminal procedure law provides that judges must be the last to present their opinions in order not to influence jurors’ independence. Matters related to cases must be voted and decided by majority. Persons holding minority opinions are entitled to present their ideas in writing, which will be included in case files. Judges’ and jurors’ independence is also guaranteed by the difference between the regime of appointment of judges and the regime of election of jurors.
Judges’ and jurors’ independence in trial is also manifest in the relationship between trial levels. Higher courts may not make decisions or suggestions to lower courts before a specific case is brought to trial. Moreover, in appellate, cassation or reopening trials, judges and jurors are also not dependent on the assessments or verdicts of lower courts.
In the course of trial, judges and jurors abide by law only. They must rely on law to handle cases and are not allowed to apply law in a casual and subjective manner. Criminal law and criminal procedure law provide standards and grounds for judges and jurors to consider circumstances of cases. The trial panel passes verdicts based on law. Apart from observing law, judges and jurors are not bound by any other conditions during trial.
So, judges and jurors are independent in trial, but within the legal framework and in compliance with law. Their independence in trial and abidance by law are interrelated in an inherent and complementary manner.
Courts conduct trials collectively and make decisions by majority
This is also a constitutional principle clearly stated in the Criminal Procedure Code.
Court trials are conducted by trial panels set up under law. A trial panel is composed of one judge and two jurors or two judges and three jurors if a case is serious and involves complicated circumstances. An appellate trial panel is composed of three judges and possibly two jurors when necessary. A cassation or re-opening trial panel is composed of at least three judges.
Upon trial, the trial panel members will settle all matters related to the case one by one by majority vote, with judges making their votes finally. Persons holding minority opinions may reserve their opinions in case files.
The principle of collective trial and decision by majority aims to ensure the all-sidedness and objectiveness in examining and assessing circumstances of cases, thus passing just and correct verdicts while avoiding subjectivity, arbitrariness and casualness in trial activities.
No person is considered guilty until a court judgment on his/her criminality takes legal effect
This is also a constitutional principle typical of the criminal procedure law. The Criminal Procedure Code clearly states in Article 9: “No person is considered guilty and is punished until a court judgment on his/her criminality takes legal effect.”
The court is the only body entitled to condemn a person and to decide on penalty against a criminal, based on the examination and assessment of physical evidences in an objective, comprehensive and official manner at court hearings.
This principle is understood as an aggregate of all the following aspects:
- An innocent person must neither be examined for penal liability nor be condemned.
- Nobody can be examined for penal liability without grounds and without procedures prescribed by law. All circumstances of a case must be fully, comprehensively and objectively considered. Accusing or defending circumstances as well as aggravating and extenuating factors must all be clarified in the course of handling cases.
- The burden of proof rests with criminal procedure-conducting bodies. The pleading of guilty by a person subject to penal liability examination can only constitute a basis for accusation if all evidences of his/her case testify to their guilt.
- It is strictly forbidden to gather evidences from persons subject to penal liability examination and from procedure participants by force, threat to use force or by other illegal measures.
- All doubts about circumstances of cases must be explained in favor of persons subject to penal liability examination.
The acknowledgement of this principle in the criminal procedure law constitutes a major step of development in legal thinking, which is of important theoretical and practical significance. First, such acknowledgement will help remove the prejudice of procedure- conducting bodies and persons that the accused and defendants are offenders, thereby in the course of handling cases they only gather accusing evidences and aggravating evidences while ignoring defending details and extenuating factors. Such prejudice is also manifest in treating the accused and defendants as criminals even though they may be not guilty.
Therefore, this principle will serve as a basis for carrying out procedural activities in an objective manner, warding off incorrect presumptions in criminal procedures and ensuring correct and lawful trial. It also demonstrates the humane nature of law.
Guarantee of the right to defense of detainees, accused and defendants
This is also a constitutional principle, which is clearly stated in Article 11 of the Criminal Procedure Code: “The detainees, accused and defendants have the right to defend by themselves or ask other persons to defend them. Investigating bodies, procuracies and courts have the duty to ensure that the detainees, accused and defendants exercise their right to defense under this Code.”
So, this principle is understood to embrace two contents which are inherently inter-related, that is the right to defense and guarantee for the exercise of such right.
The right to defense can be exercised by the detainees, accused or defendants themselves or by other persons asked by the former. The right to defense can be exercised at all steps of the procedural process. This is a crucial right in criminal proceedings, enabling the detainees, accused and defendants to defend their acts and protect their legitimate rights and interests. To exercise this right, the detainees, accused and defendants or other persons asked to defend the former have to right to know the offenses the former are charged with, the right to access documents of their cases, the right to produce evidences, the right to request replacement of procedure-conducting persons, the right to complain about decisions of investigating bodies and procuracies, the right to debate at court sessions, and the right to protest against court judgments or rulings.
The right to defense must be closely associated with guarantee for the exercise of such right. Investigating bodies, procuracies, courts and procedure-conducting persons have the duty to create conditions for such persons to exercise the right to defense. Lawyer’s organizations will be set up to assist the detainees, accused and defendants in protecting their legitimate rights and interests while contributing to the protection of legality.
The right to defense of the detainees, accused and defendants is an important guarantee for procedure activities be carried out in an objective and just manner, and also the manifestation of democracy and humanity of law.
Spoken and written language used in criminal procedure
This constitutional principle is clearly stated in Article 24 of the Criminal Procedure Code: “Spoken and written language used in criminal procedure is Vietnamese. Participants in the criminal procedure may use spoken and written languages of their own nationalities; in this case, interpreters are required.”
Being the national and universal language in Vietnam, spoken and written Vietnamese is used in criminal proceedings with a view to ensuring that criminal procedures are carried out in a convenient and unified manner throughout the country. Such a provision demonstrates that Vietnam is a unified nation having a uniform legal system and applying law in a uniform manner.
Since Vietnam is a multi-nationality nation, participants in criminal proceedings have the right to use the spoken and written languages of their own ethnic groups. With this provision, participants in criminal procedures are given favorable conditions to exercise their rights and perform their duties prescribed by law, who will feel easy to present matters and circumstances related to their cases and be able to resort to any means to defend themselves, through which the procedure-conducting bodies and persons can affirm the truth of cases.
The use of one’s own spoken and written language applies not only to ethnic minority people living on Vietnamese soil but also to foreign offenders when they participate in legal proceedings. In a multi-nationality country like Vietnam, the principle on the use of spoken and written language in criminal proceedings is of not only technical significance but also profound political and legal significance. It, on the one hand, demonstrates the equality among various ethnic groups and among procedure participants, and, on the other hand, constitutes a guarantee for accurate, fair and just trial.-