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Official Gazette

Tuesday, January 25, 2022

Perfecting the criminal procedure model in Vietnam

Updated: 15:30’ - 10/06/2011

Le Huu The & Nguyen Thi Thuy
Supreme People’s Procuracy

Vietnam’s criminal procedure system officially came into existence following the enactment of the first Criminal Procedure Code in 1988. Having assimilated some advanced ideas of an adversary proceeding system suitable to the country’s practical conditions, it still has typical characteristics of an inquisitorial one:

First, a criminal case is not regarded as a legal dispute or clash between opposing parties.

In this system, any criminal case is considered an infringement upon the public order and common interests of the society which the State is responsible for handling. The handling of criminal cases totally depends on the State’s will.

Therefore, parties involved in a criminal case are not “equally armed” to contend against each other but the case must be handled by procedure-conducting agencies and persons that are assigned with all powers to actively act as fact finders. The accused play a passive role and are subject to inquisition by these agencies and persons. Victims have no right to choose case-handling methods. Whether or not to institute a criminal lawsuit will be decided by procedure-conducting agencies (except a few cases otherwise provided for by law), without depending on the will of victims.

Second, the goal of finding the facts is set.

This goal, which is influential in all processes, procedures and rights of all participants in criminal proceedings, is achieved by assigning the duty to bear the burden of proof and find the facts of cases to procedure-conducting agencies and persons. The accused may not make a plea bargain. The detection and handling of crimes are mandatory.

Third, the investigative and inquisitive method is employed in the course of handling cases.

In the stage of investigation, investigators may use all law-stipulated measures to collect proof. Then the case file is forwarded to the procuracy which will further examine the file before deciding whether to prosecute the offender. At court hearings, the investigative and inquisitive method is still largely used by the trial panel through questioning about each circumstance of the case in order to verify the truthfulness and accuracy of proof furnished in the case file, interrogating witnesses and examining relevant material evidence. The right of procurators, defense counsels and protectors of litigants’ interests to raise questions at court hearings is also provided by law.

The 2003 Criminal Procedure Code additionally provides for adversary arguments at court hearings. As a result, the procedural method used in this stage is an argumentative one which allows the prosecutor, defense counsel and other litigants to put forward their adversary arguments fully and timelessly. A prosecutor must respond to each argument. 

Fourth, the process of handling a case is divided into procedural stages.

These procedural stages include institution of a lawsuit, investigation, prosecution and adjudication, which are sequential and all aim at finding the facts of a case. In each stage, the rights, obligations and responsibilities of different procedure-conducting agencies are clearly defined and the time limit for performance of each procedural activity or application of each procedural coercive measure is specified, thereby enhancing the professionalism of procedure-conducting agencies and persons and the effectiveness of procedural processes and limiting infringement upon the rights of the accused and other litigants.

Especially, the participation of the procuracy in all procedural stages to exercise the prosecution right and supervise judicial activities guarantees that these stages are lawful and human rights are protected.

Fifth, the positions and roles of different participants in criminal procedures are clearly distinguished.

An adversary system classifies participants in criminal procedures into the prosecution, defense and independent (neutral) magistrate, while Vietnam’s criminal procedure system divides criminal procedure participants into two groups: (i) procedure-conducting agencies, including investigative agencies, procuracies and courts, and (ii) parties involved in the procedures, including temporarily detained persons, accused persons, defendants, victims, civil plaintiffs and defendants, persons with related interests and obligations, defense counsels, witnesses, assessors and interpreters. Those of the first group are authorized to collect proof and make decisions related to the handling of cases while those of the second group are only allowed to provide documents and material evidence and make claims.

Proceedings at a court hearing are in essence the continuation of investigative activities to find the facts of a case.

Some recently promulgated provisions on the rights of defense counsels are that they can defend not only the accused but also persons temporarily held in custody. In other words, they may participate in criminal procedures earlier at the time of prosecution against the accused or issuance of temporary custody decisions. They may also be present in interrogation and other investigative activities and get access to minutes of procedural activities they have participated in and to decisions relevant to their clients.

Sixth, the three basic functions of prosecution, defense and adjudication are fully performed.

Specifically, prosecution is performed by investigative agencies and procuracies, defense by defendants, accused persons, persons temporarily held of custody and their defense counsels, and adjudication by courts. However, at present in Vietnam, the equity among these parties, especially between the prosecution and defense, in performing their procedural functions is not yet fully guaranteed, and courts, principally functioning to rule on cases in the name of justice, are also vested with some other powers of prosecution and defense.

Finally, criminal case files always exist.

In an adversary system, there exists no “official” case file because the prosecution and the defense make their own case files. In Vietnam’s criminal procedure system, there is always a sole “official” file for a criminal case made in the investigation stage and supplemented jointly by procedure-conducting agencies through all procedural stages. Such a file contains all proof of the offense and information on the offender, serving as a basis for these agencies to perform their procedural duties.

Over the past time, the criminal procedure system has worked effectively and importantly contributed to preventing and combating crimes and illegal acts, maintaining social order and safety and somehow guaranteeing democracy and legitimate rights and interests of citizens.

However, this system has revealed some limitations and shortcomings:

(i) The contradiction and overlap of its basic functions has affected its impartiality in making decisions (for example, courts may return case files to procuracies for additional investigation whenever finding that key proof is insufficient or having grounds to believe that defendants have committed another crime or have accomplices; or the trial panel may itself institute a lawsuit or try a case beyond the scope of prosecution by the procuracy or continue trying a case after the procuracy revokes the whole of its prosecution decision at a court hearing);

(ii) The responsibility to prove the crime is transferred from the procuracy to the court at a first-instance court hearing, affecting the initiative, activeness and responsibility of the procuracy (the prosecuting party) in performing its procedural function;

(iii) The passiveness and dependence of defense counsels on procedure-conducting agencies (the law provides no mechanism for them to defend their clients against infringement of other parties, especially procedure-conducting agencies, and to become a party equal to the prosecuting party);

(iv) The collaborative and restrictive relationship between procuracies and investigative agencies remain unclear and ineffective. Not a few requests of procuracies are not responded by investigative agencies but there is no measure to coerce the response. As a result, many case files have been returned, prolonging the procedural duration;

(v) Adversary arguments at court hearings, especially those of defense counsels, have not yet been adequately listened to and recognized as an important ground for judging the case; and

(vi) An overemphasis on the method of inquisition, especially in the trial stage, with the trial panel being the main and first questioner and questioning all circumstances of the case has resulted in the procuracy’s passiveness in proving its prosecution and restricted defending parties in making defensive arguments and objections to the prosecution.

Some proposals

Reforming the criminal procedure system in the context of fast socio-economic development requires procedure-conducting agencies to become the best resort for the people in pursuit of justice and an effective tool for enforcing law and socialist legality.

In order to achieve democracy, transparency, fairness and objectivity of the handling of criminal cases and better protect human rights, adversary arguments at court hearings should be further encouraged within the existing inquisitorial system to suit Vietnam’s practical conditions. Meanwhile, the positive characteristics of an inquisitorial system should be preserved. Following are some of our proposals:

· Further affirming the fact-finding role of courts. Courts should continue examining case files before opening hearings. At a court hearing, if finding the inquisition (questioning) by the procurator and defense counsel is inadequate to clarify the circumstances of the case, the judge may request the procurator or defense counsel to additionally question or personally question the defendant, witnesses and other parties before ruling on the case;

· Further affirming the duty of investigative agencies and procuracies to bear the burden of proof (for both prosecution and defense purposes);

· Further affirming and enhancing the role of procuracies in criminal procedures, especially in the investigation stage. Procuracies should act not only as the procuration in an adversary system but also as the party to guarantee that no crimes and criminals are omitted, no injustice against the innocent and law observance by procedure-conducting agencies and persons throughout the course of case handling; and,

· Further recognizing the testifying value of written evidences which are objective, relevant and lawful.

At the same time, in order to further institutionalize the policy on intensifying adversary arguments, it is necessary to continue studying and absorbing the following sound ideas of an adversary system for application to Vietnam’s criminal procedure system:

· Adopting a mechanism to guarantee the real equity between the prosecution and defense in performing their own functions; heightening the role of defense counsels in the procedural stages;

· Sufficiently providing for the rights of persons temporarily held in custody, the accused and defendants in criminal procedures as well as mechanisms for them to exercise these rights; creating legal and practical conditions for these persons and their defense counsels to prove their innocence or plead for commutation; and meting out penalties against infringements upon these rights, especially those committed by procedure-conducting agencies and persons;

· Clearly defining the basic functions of criminal procedures: prosecution, defense and adjudication; putting procedure participants in their appropriate procedural positions and roles;

· Reforming procedures at court hearings in order to ensure democratic and equal litigation while heightening the role and responsibility of procuracies and procurators to perform their prosecution function by affirming that proving crimes rests with them; giving to defense counsels equal opportunities as procuracies to disprove crimes and plead for commutation;

· Guaranteeing that courts perform only the adjudication function and refrain from participating in the accusing process. Any power of courts which is contrary to the adjudication function and likely to affect their impartiality should be removed, and courts should facilitate and base their judgments on conclusive results of adversary arguments at court hearings;                         

· Absorbing some typical principles of an adversary system, such as litigation and presumption of innocence, in order to better protect human rights and further democratize criminal procedure activities in Vietnam.-


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