>>Conducting criminal procedures
>>Basic principles of criminal procedure law
Pham Diem
State and Law Institute of Vietnam
International cooperation in criminal procedures is always considered an important content of the criminal policies of the Vietnamese State.
Since Vietnam upheld the cause of “doi moi dat nuoc” (national renewal), the open-door policy and international integration, the international cooperation in criminal justice has been of greater important political, social and legal significance. International cooperation in criminal procedures demonstrates Vietnam’s foreign policies of multilateration and diversification. If international cooperation is absent, the activities of investigation, prosecution, adjudication and judgment enforcement related to criminal cases involving foreign elements cannot be carried out in an effective manner.
In Vietnam, the international cooperation in the judicial domain in general and criminal justice in particular has been implemented for long. So far, Vietnam has signed judicial assistance agreements with nearly 20 countries, has acceded to the United Nations conventions on drug control, on the fight against organized crimes and transnational crimes, has joined the international and regional police organizations (INTERPOL and ASEANPOL).
Principles for international cooperation in criminal proceedings
International cooperation principles constitute prerequisite legal bases for international cooperation in criminal proceedings. They include:
- The principle of respect for each other’s national independence, sovereignty and territorial integrity. This is one of the fundamental principles of international law, which has been defined in the United Nations’ Charter. It governs all bilateral as well as multilateral international relations, including the international judicial relations in general and criminal justice relations in particular. The contents of this principle lie in that the procedure-conducting bodies of countries are obliged to respect each other’s national independence, sovereignty and territorial integrity, not to interfere in each other’s internal affairs when they coordinate in, or are entrusted to carry out criminal proceedings, and not to conduct legal proceedings if such activities infringe upon the independence, sovereignty and territorial integrity of other nations.
- The principle of equality and mutual benefit. In international relations, all nations, regardless of their political regimes and sizes, have the same international rights and obligations. In criminal procedure cooperation, this principle demonstrates in that all nations are equal in conducting criminal proceedings, have equal rights and obligations, and that not any nation resorts to economic, political, diplomatic or military measures to impose its own will on other nations in international cooperation. International cooperation in criminal procedures must also ensure the mutual benefits for all contracting parties. Any criminal proceeding which is harmful or unfavorable to any party may not be carried out.
- The principle of compliance with the Constitution and law of the Socialist Republic of Vietnam as well as basic principles of international law.
- The principle of respect for international commitments. International cooperation in criminal procedures shall be effected on the basis of multilateral or bilateral treaties to which Vietnam has signed or acceded. Usually, the treaties to which Vietnam has signed or acceded are international conventions and mutual judicial assistance agreements between Vietnam and a number of other countries.
- The principle of reciprocity. This principle aims to ensure the equality and benefits of parties in international cooperation. It will apply to the settlement of specific cases or matters if Vietnam and its partners have not yet signed or acceded to international treaties related to international cooperation. However, in all circumstances, international cooperation under this principle must not contravene the provisions of national laws, international laws and practices.
Mutual judicial assistance in criminal procedures
The mutual judicial assistance in criminal procedures shall be construed as that the procedure-conducting bodies of a country perform procedural acts at request of procedure-conducting bodies of another country on the basis of agreements between nations.
Mutual judicial assistance in criminal procedures usually covers:
- Examination of penal liability.
- Investigating activities such as collection of evidences, taking of testimonies, searches, etc.
- Serving of procedural papers, documents.
- Supply of information, exhibits, expertising conclusions.
- Extradition for trial or judgment enforcement.
The legal bases for mutual judicial assistance comprise:
- Mutual judicial assistance agreements, which will apply to countries Vietnam has signed such agreements with.
- Relevant treaties which have been signed or acceded to by Vietnam and its partner countries but such partner countries and Vietnam have not yet signed mutual judicial assistance agreements, will apply.
- The principle of reciprocity, which will apply to cases where Vietnam and its partner countries have not yet signed judicial assistance agreements as well as relevant treaties. However, the application thereof must not be contrary to Vietnamese law, international laws and practices.
Under the Criminal Procedure Code, Vietnam may refuse to implement requests for mutual judicial assistance in the following cases:
- The judicial assistance requests fail to comply with treaties to which Vietnam has signed or acceded.
- The judicial assistance requests fail to comply with Vietnamese law.
- The implementation of judicial assistance requests is detrimental to the national sovereignty, security or important interests of Vietnam.
Extradition and transfer of dossiers, documents and exhibits of cases
Extradition in criminal procedures is construed as the arrest and transfer of any person from one country to another for penal liability examination or judgment enforcement. The extradition shall be implemented on the following grounds:
- The legal ground for extradition will be international treaties, which Vietnam has signed or acceded to.
- The practical ground for extradition will be that the persons requested to-be-extradited have committed criminal acts or have already been convicted by Vietnamese courts with criminal judgments which have taken legal effect.
According to Vietnam’s Criminal Procedure Code, the criminal procedure-conducting bodies of Vietnam may refuse to implement extradition in the following cases:
- The persons requested to be extradited are Vietnamese citizens as the extradition of Vietnamese nationals by procedure-conducting bodies of Vietnam is contrary to the principle of national sovereignty.
- The persons requested to be extradited cannot be examined for penal liability or serve the penalties due the expiration of statute of limitations or for other reasons (they are minors, do not commit criminal acts, the statute of limitations for penal liability examination or for penalty service have expired under provisions of Vietnamese law).
- The persons requested to be extradited for penal liability examination have been convicted by Vietnamese courts with effective judgments for their criminal acts stated in the extradition requests or the cases have been ceased under provisions of Vietnam’s Criminal Procedure Code.
- The persons requested to be extradited are residing in Vietnam for reasons of being possibly ill-treated in the extradition-requesting countries on the grounds of racial discrimination, religion, nationality, ethnicity, social status or political views.
The procedure-conducting bodies of Vietnam may implement or refuse to implement extradition in case acts taken by the persons requested to be extradited do not constitute crimes under Vietnam’s Penal Code, or where the persons requested to be extradited are being examined for penal liability in Vietnam for their acts stated in the extradition requests.
The transfer of dossiers, documents and exhibits related to cases will be carried out in case foreigners commit crimes in the Vietnamese territory but the procedures cannot be conducted in Vietnam as such persons have left the country. Such transfer aims for the prosecution, investigation, adjudication and judgment enforcement by procedure-conducting bodies of foreign countries.-