Pham Diem
State and Law Institute of Vietnam
Similar to other countries’, the Vietnamese criminal procedure law prescribes the order and procedures for institution of criminal cases, investigation, prosecution, trial and judgment execution; the functions, tasks and powers of procedural bodies (investigative bodies, courts, procuracies) as well as their inter-relations; the rights and obligations of people involved in criminal procedures and of state agencies, social organizations as well as citizens.
It aims to detect in an accurate and swift manner and to fairly and promptly deal with every criminal act, not missing any offender nor doing injustice on innocent people, contributing to the protection of the political regime, legitimate rights and interests of citizens and to the education of citizens in strict observance of law.
Being the oldest law branch in Vietnam, the criminal procedure law has strongly developed through two periods since its emergence immediately after the victorious August 1945 Revolution:
The 1945-1988 period
Despite numerous difficulties, including heavy war consequences, after the August 1945 Revolution, which overthrew the colonial regime and gave birth to a people’s democratic republic, the young revolutionary administration, though having to concentrate efforts on combating domestic hostile forces and foreign enemies, quickly attached importance to the formulation of procedural law.
To promptly serve the crime prevention and combat and defend the national independence and security as well as social order and safety, the Democratic Republic of Vietnam State promulgated a series of decrees, including Decree No. 40 of March 29, 1946, on the right to body freedom; Decree No. 51 of April 17, 1946, defining the tasks of investigating magistrates, prosecutors and chief judges and a number of criminal procedures; Decree No. 11 of January 20, 1947, prescribing the tasks and powers of judicial police; Decree No. 13 of January 24, 1947, providing for the regime of people’s associate judges in adjudication of criminal cases; Decree No. 85 of May 22, 1950, providing for the regime of people’s associate judges in replacement of the regime of people’s jurors who were equal to judges in rights during trial.
As at the initial stage after the August Revolution, the Democratic Republic of Vietnam State was unable to promulgate adequate legal documents to regulate various aspects of social life, it permitted the temporary application of the old regime’s regulations, including criminal procedures, but on the principle that they did not contravene the independence of the Democratic Republic of Vietnam.
During this period, Vietnamese courts were organized into first-instance courts, second-instance courts and courts of appeal.
At the first-instance court, judges concurrently performed the function of trial and the function of prosecution at court sessions.
At the second-instance court, there were adjudicating judges and accusing judges performing the function of prosecution under the direction of prosecutors.
Meanwhile, the court of appeal was structured with judges in charge of adjudication, attorneys and prosecutors.
The function of criminal investigations was performed by the judicial police.
Following the historic Dien Bien Phu victory in 1954, northern Vietnam was liberated and embarked upon the period of socialist construction and struggle for national reunification.
In this period, the Democratic Republic of Vietnam State promulgated a number of legal documents on criminal procedures, the most noteworthy of which were the May 20, 1957 Law on citizens’ rights to freedom of body and inviolable rights to residential houses and personal belongings and mails and the June 18, 1957 Law providing for the arrest of people in case of emergency and flagrante delicto. These documents detailed the order and procedures for settlement of criminal cases, aiming to guarantee legitimate rights and interests of citizens.
After the emergence of the country’s new Constitution in 1959, the Law on Organization of the People’s Courts and the Law on Organization of the People’s Procuracies were promulgated, serving as legal grounds for the organization and operation of investigative bodies, courts and procuracies in the course of settlement of criminal cases.
Due to the absence of a criminal procedure code, the Supreme People’s Court, the Supreme People’s Procuracy and the Public Security Ministry based themselves on these two newly promulgated laws to issue various circulars detailing criminal procedures. Worthy of note were the September 27, 1974 Circular guiding the order of first-instance trial of criminal cases, the October 2, 1974 Circular guiding the order of appellate trial of criminal cases and the June 10, 1978 Circular guiding the order of cassation trial of criminal cases.
Under these laws and circulars, the Vietnamese courts were then organized at three levels: district-level courts, provincial-level courts and the Supreme People’s Court, with district- and provincial-level People’s courts empowered to conduct first-instance trial of criminal cases. The appellate, cassation and reopening trials of criminal cases fell under the jurisdiction of provincial-level People’s Courts and the Supreme People’s Court. In addition, the court martial was attached to the Supreme People’s Court to adjudicate offenders being armymen. Judges and people’s jurors were elected by state power bodies (the National Assembly and People’s Councils) of the same level in accordance with their respective tenures. The function of prosecution was performed by the procuracies while the function of criminal investigation was assigned to some agencies of the Ministry of Public Security and the Ministry of Defense, which had to make indictments upon conclusion of investigation.
So, it can be said that with their fairly comprehensive and specific provisions on criminal procedures, the above-said legal documents were of important significance in the process of formulating the criminal procedure law in Vietnam, creating legal grounds for the settlement of criminal cases and contributing to the fight against crimes and the protection of legitimate interests of citizens.
After the country was reunified following the victory of the anti-US imperialist struggle, the National Assembly passed the 1980 Constitution of the Socialist Republic of Vietnam, then two new laws on the organization of the People’s Courts and the People’s Procuracies in 1981, based on the new Constitution.
With these two new laws, the courts’ jurisdiction to adjudicate criminal cases was broadened with the competence to conduct cassation trial of effective judgments of district-level People’s Courts additionally given to provincial-level People’s Courts. These laws also specified the order and procedures for reopening trials of judgments which fell under the jurisdiction of provincial-level people’s courts and the Supreme People’s Court.
Based on the Law on Organization of the People’s Courts and the Law on Organization of the People’s Procuracies, the Supreme People’s Court, the Supreme People’s Procuracy and the Ministry of Justice issued a joint circular in February 1, 1982, guiding in detail cassation procedures and another joint circular of the same date, specifying the procedures for reopening trial of criminal cases.
Panoramically, in this period, the criminal procedures were not yet codified, but were prescribed in various legal documents, most of which were only regulatory documents, especially guiding circulars of judicial bodies. Hence, these legal documents contained overlapping provisions, failing to prescribe the criminal procedure in a systematic and specific manner. However, they greatly contributed to the combat against crimes and the protection of legitimate rights and interests of citizens.
The period from 1988 up to now
Since Vietnam embarked upon the cause of “doi moi dat nuoc” (national renewal), building a market economy and opening its door for international integration, the criminal situation and nature have seen great changes. Therefore, many provisions of the current criminal procedure law appeared no longer suitable to the crime prevention and combat.
After the passage of the country’s first Penal Code in 1985, the National Assembly adopted the Criminal Procedure Code on June 28, 1988, which took effect on January 1, 1989.
The first Criminal Procedure Code prescribed in a comprehensive, systematic and specific manner criminal procedural institutions, including the principles on criminal procedures, procedure-conducting bodies and persons, procedure participants, the proceeding order and procedures (institution of criminal cases, investigation, prosecution, first-instance and appellate trials), the execution of criminal judgments and rulings, and reopening trial procedures, cassation, and review adjudication procedures, etc.
Perpetuating the previous criminal procedure law and applying good and appropriate experiences of foreign criminal procedure laws, the 1988 Criminal Procedure Code was a substantial step of development in the formulation of criminal procedure law in Vietnam. It made positive and important contributions to crime prevention and combat.
However, after ten years’ enforcement, the 1988 Criminal Code revealed numerous limitations and loopholes, failing to meet the requirements of comprehensive national renewal, judicial reform and international integration, even though it was revised time and again in 1990, 1992 and 2000.
Prompted by the need for its substantial and comprehensive revision, the Vietnamese National Assembly adopted the new Criminal Procedure Code on November 26, 2003, which came into force on July 1, 2004.
With 346 articles arranged in eight parts and 37 chapters, the 2003 Criminal Procedure Code has marked a progress in terms of ideology, contents and legislative techniques, meeting the requirements of crime prevention and combat in the period of building a law-ruled state in Vietnam. It aims to settle criminal cases in an objective, swift and fair manner, protecting community interests, the legitimate rights and interests of citizens as well as law and order.-