>>Conducting criminal procedures
>>Basic principles of criminal procedure law
Pham Diem
State and Law Institute of Vietnam
Participants in criminal procedures constitute a basic and important institution of Vietnam’s criminal procedure law. Correct definition of their positions, obligations and rights is decisive to ensuring transparency and objectivity of criminal procedures and democracy in the judicial life.
Under the Criminal Procedure Code, participants include persons held in custody; accused; defendants; victims; civil plaintiffs; civil defendants; persons with interests and obligations related to criminal cases; witnesses; defense counsels; defense counsels of interests of involved parties; experts and interpreters.
These persons have different roles, positions, duties and interests but share common basic legal characteristics which bind them together into a group and distinguish them from other groups in legal proceedings. Their common legal characteristics include:
- Having own interests in criminal procedures and concerns about certain results of criminal cases with a view to satisfying their own interests;
- Having their rights prescribed by the Criminal Procedure Code, which enable them to actively defend their interests, exerting impacts or influences on the legal proceedings and outcomes of criminal cases;
- Being obliged to strictly abide by the order of investigation, prosecution and trial defined by the Criminal Procedure Code.
The legal position of each participant is demonstrated that from the time of participating in legal proceedings, such participant has legal relations with state bodies in criminal procedures (procedure-conducting bodies and persons). Through such relations, procedure-conducting bodies and persons are obliged to explain to participants their rights and to ensure the exercise of such rights.
Based on their different roles, positions, rights, obligations and legal positions in criminal procedures, the participants can be classified into three groups below:
They include persons held in custody, the accused, the defendants, victims, civil plaintiffs, civil defendants and persons with rights and obligations related to criminal cases.
Persons held in custody are persons arrested in urgent cases; offenders caught red-handed; persons arrested under ‘wanted person’ decisions; or confessing or self-surrendering offenders against whom custody decisions have been issued.
Unlike the accused or defendants, persons held in custody are those against whom decisions to initiate criminal cases are not yet issued. They have certain problems (suspected personal records or acts) which procedure-conducting bodies want to clarify and for which they are held in custody. Upon the end of the custody duration, if no grounds are found for taking legal actions against them, they must be set free.
Under the Criminal Procedure Code, these persons have the following rights and obligations:
- To be informed of the reasons for their custody by agencies having issued the custody decisions;
- To be explained about their rights and obligations by agencies having issued the custody decisions, which also request them to perform such rights and obligations in the custody duration;
- To present their statements and circumstances related to the custody in order to protect their interests;
- To defend by themselves or ask other persons to defend them;
- To present evidence, documents, objects and requests to competent bodies in order to protect their interests;
- To enjoy the meal, lodging, daily-life activity and medical treatment regimes at custody homes;
- To complain about their custody, procedural decisions or acts of procedure-conducting bodies and persons;
If believing that their custody is illegal or their rights have been violated by procedure-conducting bodies and persons, persons held in custody may lodge complaints with competent bodies for protection of their interests.
- To observe custody regulations.
The accused are persons against whom decisions to initiate criminal cases are issued at the stage of investigation or prosecution.
The accused have the following rights and obligations:
- To be informed of the offenses which they have been accused of;
This right is closely associated with the investigating bodies’ responsibilities to hand over the decisions to initiate criminal cases to the accused and explain to them the offenses of which they have been accused under which articles of the Penal Code.
- To be explained about their rights and obligations by investigating bodies having issued the decisions to initiate criminal cases;
- To present their statements related to criminal cases;
- To produce evidence, documents and objects proving that they are innocent or to present circumstances extenuating their penal liability, to request investigating bodies or procuracies to solicit expert assessment, take witnesses’ statements and gather more evidence;
They have the right to but are not compelled to prove their innocence. The responsibility to prove offenses rests with procedure-conducting bodies.
- To request change of procedure-conducting persons, experts or interpreters in accordance with the Criminal Procedure Code, if they believe that such persons are not objective and impartial in the settlement of cases;
- To defend by themselves or ask other persons to defend them.
In case the accused are prosecuted for offenses subject to the highest penalty of death or they are minors, physically or mentally handicapped persons, their defense by counsels is compulsory. If the accused do not ask for counsels’ defense, procedure-conducting bodies must request bar associations to appoint lawyers to defend the accused.
- To complain about procedural decisions or procedural acts of procedure-conducting bodies or persons;
- To appear under summonses of investigating bodies or procuracies. In case of non-appearance without a plausible reason, they may be escorted; if they escape, they shall be hunted for.
Defendant is the common name given to persons brought to trial under court rulings at the trial stage.
Defendants have the following rights and obligations:
- To receive decisions to bring their cases for trial and other court rulings related to them;
- To participate in court hearings. If defendants are not present at court hearings, such court hearings must be postponed, unless otherwise provided for by the Criminal Procedure Code;
- To be explained about their rights and obligations;
- To request change of procedure-conducting persons, experts or interpreters in accordance with the Criminal Procedure Code;
- To present evidence, documents, objects and their claims;
- To defend by themselves or ask other persons to defend them;
- To present their opinions and arguments at court hearings;
- To have their final say before the judgment deliberation;
- To appeal against court judgments and rulings;
- To complain about procedural decisions and acts of procedure-conducting bodies and persons;
- To appear under courts’ subpoenas; in case of non-appearance without a plausible reason, they may be escorted; if they escape, they shall be hunted for.
Victims are persons suffering from physical, spiritual and/or property damage caused directly by criminal acts of offenders. Physical damage means loss of life or damage to health. Spiritual damage means damage caused to a person’s honor and dignity. Property damage means assets lost, appropriated, destroyed or damaged.
Victims have the following rights and obligations:
- To present evidence, documents, objects and/or claims;
- To be informed of investigation results. Upon conclusion of investigations, investigating bodies are obliged to notify victims of investigation results;
- To request change of procedure-conducting persons, experts or interpreters in accordance with the Criminal Procedure Code;
- To suggest compensation levels and measures to secure such compensation;
- To participate in court hearings; to present their opinions and arguments at court hearings in order to protect their legitimate rights and interests;
- To complain about procedural decisions or acts of procedure-conducting bodies or persons; to appeal against court judgments and rulings regarding the compensation to be paid by, as well as penalties imposed on, the defendants;
- To appear under summonses of procedure-conducting bodies; to make truthful statements.
Civil plaintiffs include individuals, agencies or organizations suffering from material damage caused by offenses and filing their claims for damages. They also have the rights and obligations similar to victims’.
Civil defendants are individuals, agencies or organizations that are obliged under law to pay compensation for damage caused by their offenses.
Civil defendants being individuals can be the accused or adult defendants who commit offenses not related to the tasks assigned to them by agencies or organizations, or be parents or sponsors of the minor accused or defendants.
Agencies or organizations will be civil defendants when they commit acts causing damage to civil plaintiffs.
Civil defendants have the following rights and obligations:
- To complain about civil plaintiffs’ claims for damages;
- To present evidence, documents, objects as well as claims;
- To be informed of results of investigation;
- To request change of procedure-conducting persons, experts or interpreters in accordance with the Criminal Procedure Code;
- To participate in court hearings; to present their opinions and arguments at court hearings in order to protect their legitimate rights and interests;
- To complain about procedural decisions or acts of procedure-conducting bodies or persons; to appeal against court judgments or rulings regarding damage compensation;
- To supply evidence at the request of procedure-conducting bodies; to appear under summonses of procedure-conducting bodies; to honestly present details related to the damage compensation.
Persons with interests and obligations related to criminal cases are those other than the above persons, who are not involved in criminal activities or are involved in criminal activities but not examined for penal liability or exempt from penal liability examination, and whose interests and/or property related to offenses must be handled by courts, for example, persons who are given assets acquired from crime commission; persons who lend means not for the purpose of crime commission, but later such means have been used for crime commission and seized by procedure-conducting bodies.
They have the following rights and obligations:
- To present evidence, documents, objects as well as claims;
- To participate in court hearings; to present their opinions and arguments at court hearings in order to protect their interests;
- To complain about procedural decisions or acts of procedure-conducting bodies or persons;
- To appeal against court judgments or rulings regarding matters directly related to their interests and obligations;
- To supply evidence at the request of procedure-conducting bodies; to appear under summonses of procedure-conducting bodies.
Protecting justice
Defense counsels of persons held in custody, the accused and defendants have the following rights and obligations:
- To participate in criminal procedures from the time the decisions to initiate criminal cases against the accused are issued or from the time the custody decisions are issued against persons held in custody;
- To be present when testimonies are taken from persons held in custody or when the accused are interrogated;
- To collect and produce evidence related to their defense; to meet their clients being detained;
- To request change of procedure-conducting persons, experts or interpreters in accordance with the Criminal Procedure Code;
- To participate in questioning and arguing at court hearing to clarify details of criminal cases;
- To complain about procedural decisions or acts of procedure-conducting bodies or persons;
- To apply every measure prescribed by law to clarify details of criminal cases, to protect the legitimate rights and interests of their clients; to provide legal assistance to their clients with a view to protecting their legitimate rights and interests;
- To respect the truth and law.
Defense counsels of interests of involved parties are persons asked by victims, civil plaintiffs, civil defendants or persons with interests and obligations related to criminal cases to protect the latter’s interests. They may be lawyers, people’s advocates or other persons who are accepted by procedure-conducting bodies.
Their rights and obligations include:
- To participate in procedures from the time the criminal cases are initiated against the accused;
- To present evidence and claims;
- To request change of procedure-conducting persons, experts or interpreters in accordance with the Criminal Procedure Code;
- To participate in questioning and argument at court hearings;
- To complain about procedural decisions or acts of procedure-conducting bodies or persons; to appeal against court judgments or decisions regarding the rights and obligations which they protect;
- To apply every measure prescribed by law to contribute to clarifying the truths of the cases; to provide legal assistance to involved parties in order to protect their legitimate rights and interests.
They are persons compelled to participate in criminal procedures at the request of procedure-conducting bodies. If refusing to comply with such request, they will be subject to coercion or examined for penal liability according to law.
These persons include witnesses, experts and interpreters.
Witnesses are persons who know details pertaining to criminal cases, which are significant to the investigation and adjudication of cases, and are summoned by procedure-conducting bodies to clarify these details.
Witnesses are irreplaceable in criminal procedures as they participate in procedures without depending on their own will or the will of procedure-conducting bodies, but because they know details of cases.
To ensure the objectivity of cases, persons who defend the accused and defendants or persons with physical or spiritual handicaps must not act as witnesses.
Experts are persons having necessary knowledge in the fields to be assessed, who are summoned by procedure-conducting bodies under law.
Interpreters are persons who are proficient in Vietnamese and foreign language(s) or languages of ethnic minority Vietnamese or know the signs of deaf mutes, who need interpretation. They will participate in criminal procedures under summonses of procedure-conducting bodies according to law in order to ensure that speeches and scripts comply with criminal procedure law.
The rights and obligations of witnesses, experts and interpreters and specified in the Criminal Procedure Code.-