>>Parties in crime: who’s who in criminal procedure
>>Conducting criminal procedures
Pham Diem
Law and State Institute of Vietnam
Under Vietnam’s Constitution, lodging complaints and denunciations is a basic right of citizens.
Complaints and denunciations in criminal procedures bear, on the one hand, the nature and principle of citizens’ rights to complaints and denunciations in general, and, on the other hand, the particularities of criminal procedures, constituting a guarantee for justice and transparency.
The law on complaints and denunciations and the exercise of the right to lodge complaints and denunciations ensure democracy in criminal procedures, through which institution, investigation, prosecution and trial of criminal cases are carried out with the participation and close super-vision of agencies, organizations and citizens.
Complaints and denunciations contribute to proper realization of criminal pro-cedures, enhancing the effectiveness of criminal procedure activities and raising the prestige of procedure-conducting bodies.
Complaints and denunciations in criminal procedures also help detect and address violations of law by procedure-conducting bodies and persons, thus protecting and restoring the interests of the State and legitimate rights and interests of citizens.
Complaint and denunciation are two different concepts though they form an institution in criminal procedure law. Such difference can be seen in the subjects exercising the right to lodge complaints or denunciations, in the objects of complaint and denunciation, the statute of limitations and time limits of complaint and denunciation, and in the complaint- and denunciation- settling order and procedures established by the Criminal Procedure Code.
Complaints
Subjects with the right to complain
The right to complain in criminal procedures means the right to request or demand competent bodies or persons to receive, examine and alter procedural decisions or acts of procedure-conducting agencies or persons when having grounds to believe that such decisions or acts are unlawful and infringe upon one’s legitimate rights and interests.
So, subjects with the right to complain in criminal procedures can be individuals, organizations or agencies, whose legitimate rights and interests are infringed upon by procedural decisions or acts of procedure-conducting bodies or persons. Individuals here include persons bearing Vietnamese nationality or foreigners, those who have or do not have criminal-procedure act capacity. Persons without criminal-procedure act capacity or with restricted criminal-procedure act capacity may exercise their right to complain through their lawful representatives.
Complainants have the following rights:
- To lodge complaints in written or verbal form by themselves or through their lawful representatives;
- To lodge complaints at any stage of the process of settling criminal cases, from the time a criminal case is instituted to the time the court judgment or ruling is executed;
- To withdraw their complaints at any stage of the process of settling criminal cases.
Complainants can withdraw their complaints if they see that the grounds for complaint no longer exist, or the comp-lained persons have remedied their illegal decisions or acts, or the reconciliation between the complainants and the complained persons has succeeded;
- To receive written replies on the settlement of their complaints.
Competent bodies or persons must examine, settle the complaints and reply complainants in writing. This is an important guarantee for the exercise of the right to complain;
- To have their infringed legitimate rights and interests restored and to receive damages in accordance with law.
Meanwhile, complainants are obliged to truthfully present facts and supply information and documents to complaint settlers; take responsibility before law for such presentation and supplied information and documents; and abide by complaint settlement results.
Unlike other complainants, if disagreeing with the first-time settlement results. complainants in criminal procedures may only lodge second-time complaints The results of second-time settlement are final.
Objects of complaints and complained persons
The objects of complaint are illegal decisions or acts of procedure-conducting bodies or persons. First-instance judgments or rulings and legally effective judgments or rulings are not objects of complaint. If these judgments or rulings are unlawful, they will be settled through appellate, cassation or re-opening trials.
Complained persons are those who issue decisions on criminal procedures or personally conduct criminal procedures in violation of law. They can be officials of investigating bodies, procuracies or courts.
Complained persons have the rights to invoke evidence of the lawfulness of their procedural decisions or acts which are complained about and to receive documents on the settlement of complaints about their procedural decisions or acts.
They also have the following obligations:
- To explain the complained procedural decisions or acts, supply relevant information and documents when so requested by competent bodies, organizations or individuals;
- To abide by complaint settlement results; and,
- To pay damages and remedy consequences caused by their illegal procedural decisions or acts according to law.
Competence to settle complaints
Heads of investigating bodies will settle complaints about procedural decisions or acts of their investigators or deputies.
If disagreeing with complaint settlement results, complainants may further lodge their complaints with procuracies of the same level. Procuracies will settle complaints about procedural decisions or acts of the heads of investigating bodies of the same level.
Directors of procuracies will settle complaints about procedural decisions or acts of their prosecutors or deputies.
If disagreeing with complaint settlement results, complainants may further lodge their complaints with immediate superior procuracies. Their complaint settlement results are unique and final.
Presidents of courts will settle complaints about procedural decisions or acts of their judges or vice-presidents. If disagreeing with complaint settlement results, complainants may further lodge their complaints with immediate superior courts. Their settlement results are unique and final.
Complaints related to the application of measures of arrest, custody or temporary detention in the course of investigation or prosecution will fall under the jurisdiction of the procuracies which have approved the decisions on arrest, custody or temporary detention.
Denunciations
Subjects to lodge denunciations
Under the Criminal Procedure Law, any citizen can denounce illegal acts of persons competent to conduct criminal procedures.
Compared to subjects of complaint, subjects of denunciation are different.
First, only individuals, but not agencies and organizations, are entitled to denounce.
Second, individuals have the right to denounce illegal acts of persons competent to conduct criminal procedures, which cause damage or threaten to cause damage to legitimate rights of any individual, organization, the State or society. Meanwhile, subjects of complaint can only be persons who lodge their complaints to protect their own legitimate rights and interests.
Denouncers have the following rights:
- To send written denunciations or denounce in person to competent bodies or individuals;
- To request confidentiality of their full names, addresses and autographs in order to avoid intimidation, retaliation or revenge;
- To request procedural bodies to protect them when they are intimidated, retaliated or revenged; and
- To request to be notified of denunciation settlement results. Agencies or individuals competent to settle denunciations must notify the denouncers in writing of the results of settlement of their denunciations.
Concurrently, they are obliged to truthfully present the denunciation contents and take responsibility before law for untruthful denunciations, and state their full names and addresses in their written denunciations.
In order to prevent untruthful denunciations and abuse of the right to denunciations to commit illegal acts, Vietnamese law does not recognize anonymous denunciations and denunciations without clear addresses of denouncers.
Denounced persons
Denounced persons are those with competence to conduct criminal procedures who commit illegal acts causing or threatening to cause damage to legitimate rights and interests of individuals, organizations, the State or society.
They have the following rights:
- To be informed of denunciation contents;
- To invoke evidence to prove that denunciation contents are untruthful;
- To have their infringed legitimate rights and interests and their honor restored and to receive compensation for damage caused by untruthful denunciations according to law; and
- To request competent bodies, organizations or individuals to handle persons who make untruthful denunciations.
They also have the following obligations:
- To explain their denounced acts; to supply relevant information and documents when so requested by competent bodies or individuals;
- To abide by denunciation-handling results of competent bodies or individuals; and
- To pay damages and remedy consequences caused by their illegal acts.
Competence to settle denunciations
The head of an agency will settle denunciations on illegal acts of his/her officials conducting criminal procedures. If a denounced person is the head of the investigating body or a procuracy or the president of a court, the immediate superior investigating body, procuracy or court will settle the denunciation related to them. Denunciations related to arrest, custody or temporary detention will be settled by procuracies.-