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| A court hearing at the People’s Court of Khanh Hoa province__Photo: VNA |
Nong Duc Tai[1] and Nguyen Hong Son[2]
The presumption of innocence is universally recognized as a cornerstone of criminal procedure law, representing a significant achievement in the protection of human rights within legal systems worldwide. Both the 2013 Constitution of Vietnam and the 2015 Criminal Procedure Code of Vietnam (revised in 2021) (CPC), enshrining this principle, reflect Vietnam’s commitment to addressing criminal cases in a manner that upholds principles of fairness while protecting fundamental human rights in the context of contemporary society
The principle of presumption of innocence under the current Criminal Procedure Code of Vietnam
Aligned with the legal advancements of many advanced countries, Vietnam has demonstrated its commitment to the principle of presumption of innocence by acceding to the International Covenant on Civil and Political Rights on September 24, 1982. From the 1992 Constitution to the 1988 and 2003 CPCs, and subsequent legal texts, the presumption of innocence has been explicitly or implicitly recognized. Most notably, the 2013 Constitution of Vietnam articulates this principle with greater clarity: “An accused person is presumed innocent until proven guilty according to the procedures specified by law and convicted by a legally effective court judgment.”[3]
Building upon this constitutional foundation, the 2015 CPC became the first legal instrument in Vietnam to formally name the principle of presumption of innocence. It states: “An accused person is presumed innocent until proven guilty following the procedures and processes specified by this Code and convicted by a legally effective court judgment. When there is insufficient evidence or uncertainty regarding the grounds for prosecution and conviction, the competent procedural authorities must conclude that the accused is not guilty.”[4]
Compared to similar provisions in other countries, the CPC provides a more comprehensive and detailed framework for the presumption of innocence. Article 13 of the CPC explicitly outlines two fundamental aspects of this principle, which align with the universal spirit of Article 11 of the Universal Declaration of Human Rights (1948). These aspects include:
(i) The presumption of innocence until guilt is proven through proper legal procedures and confirmed by a final court judgment;
(ii) The prohibition of convicting an individual without sufficient evidence and procedural clarity.
Beyond this principle, the CPC incorporates relevant provisions to safeguard the rights of the accused and ensure procedural fairness. For example:
· Burden of proof: The responsibility to prove guilt lies with the competent procedural authorities. The accused has the right but is not obliged to prove their innocence.
· Evidence-based judgments: Court judgments and rulings must rely on the examination and evaluation of evidence, as well as the results of courtroom arguments. Each piece of evidence must be assessed in terms of legality, authenticity, and relevance to the case, ensuring a sufficient evidentiary basis for resolving criminal matters.
· Protection against self-incrimination: The CPC grants the accused the right to present testimony and opinions but explicitly prohibits compelling them to provide self-incriminating statements or admit guilt (Articles 58, 59, 60, and 61);
· Limits on confessions: A confession by the accused can only be treated as evidence if corroborated by other case evidence. Confessions cannot serve as the sole basis for prosecution or conviction (Article 98).
These provisions collectively reflect Vietnam’s commitment to upholding the presumption of innocence as a cornerstone of its criminal justice system, ensuring fairness and the protection of human rights throughout criminal proceedings.
Based on the current legal provisions, several key aspects and significances of the principle of presumption of innocence can be drawn.
First of all, as for judicial authority and procedural requirements, the principle of presumption of innocence underscores that only a legally effective court judgment has the authority to declare an individual guilty. This principle ensures that a criminal case must go through the procedural stages specified by the CPC, including investigation, prosecution, and trial. Until a court judgment becomes legally effective, individuals suspected of crimes retain their status as accused, not as convicts.
This presumption must be maintained at every stage of the criminal proceedings - initiation, investigation, prosecution, and trial. Authorities must treat the accused as innocent, free from bias or prejudice. Even when preventive measures or coercive measures are applied, procedural fairness and the human rights of the accused must be respected. Interestingly, even when an accused person confesses or fully cooperates, the procedural authorities are obliged to uphold the presumption of innocence and treat him/her as though he/she is not guilty. Additionally, authorities are required to facilitate the accused’s ability to fully exercise their defense rights and other procedural entitlements.
Next, if there is insufficient evidence to establish guilt following procedural requirements, the authorities must conclude that the accused is not guilty. In criminal proceedings, there are only two possible outcomes: guilty or not guilty - no intermediate status. If guilt cannot be proven, innocence is presumed.
The burden of proof lies entirely with the competent procedural authorities. They must substantiate, with sufficient evidence and materials, that the accused’s actions constitute a specific offense under the current Penal Code. If such evidence is lacking or inconclusive, the legal system must unequivocally declare the individual not guilty. This approach ensures that any uncertainty or doubt is interpreted in favor of the accused, reinforcing the principle as a robust safeguard for legal safety and fairness.
Last but not least, regarding broader significance, the presumption of innocence holds profound importance in shaping societal and governmental attitudes towards individuals and in guiding the application of criminal procedure law. Its key implications include:
· Accuracy and objectivity: It guarantees accurate and impartial criminal investigations, protecting justice and fairness while upholding human rights.
· Legal framework guidance: This principle directs the drafting and enforcement of procedural laws, establishing a balanced legal framework for interactions among procedural parties.
· Humanitarian considerations: Reflecting the humanitarian spirit of the CPC, it ensures the protection of the accused as the weaker party in relation to the state’s powerful machinery of investigation, prosecution, and trial.
By prioritizing fairness, objectivity, and human rights, the principle of presumption of innocence serves as a cornerstone for justice, maintaining legal order and protecting individual rights within Vietnam’s criminal justice system.
Recommendations
The principle of presumption of innocence is a cornerstone of criminal justice systems worldwide, ensuring fairness and safeguarding individual rights throughout legal proceedings. In Vietnam, despite significant strides in incorporating this principle into the legal framework, challenges remain in its implementation and interpretation. Addressing these challenges requires a holistic approach that improves procedural clarity, enhances legal protections, and aligns domestic laws with international standards. Below are specific recommendations to further refine and effectively enforce the presumption of innocence in Vietnam.
Firstly, broadening the range of subjects of the presumption of innocence
The principle of presumption of innocence currently applies to individuals formally accused of crimes, as defined by the CPC. However, to fully align with the protective essence of this principle, it should be extended to encompass a broader range of individuals involved in the criminal justice process. These include persons detained under emergency circumstances, those reported for alleged criminal conduct, or individuals recommended for prosecution. Such persons, while not formally accused, often face significant procedural obligations, such as providing statements and opinions, and are subject to measures that can substantially impact their rights and freedoms. Consequently, they too should benefit from the protections guaranteed by the presumption of innocence.
Procedural authorities must also ensure that these individuals are treated as innocent in the stage of investigation, regardless of any preliminary evidence or allegations. This requires adopting an unbiased approach, wherein all actions taken - whether detentions, interrogations, or other coercive measures - uphold fairness, transparency, and the inherent dignity of individuals. Legal relationships established through such measures should prioritize human rights, reflecting the principle’s role in preventing undue harm to those not yet proven guilty.
Intensifying the application of this principle would serve as a robust safeguard against wrongful assumptions of guilt and premature stigmatization. By embedding this broader scope into legal and procedural frameworks, Vietnam can reinforce its commitment to fairness, enhance public confidence in the justice system, and ensure compliance with international human rights standards.
Secondly, strengthening the evidence-based nature of convictions
Convictions must unequivocally rely on evidence gathered and evaluated during procedural stages and presented in public, adversarial trials. To fortify the clarity and enforceability of this principle, Article 13 of the CPC should be revised to explicitly require that court rulings are based solely on verified and legally obtained evidence. This would align Vietnam’s legal framework with international standards, such as Article 11 of the Universal Declaration of Human Rights (1948) and Article 14(2) of the International Covenant on Civil and Political Rights (1966).
Such a revied provision would improve the judicial integrity of Vietnam’s criminal justice system by establishing a clear standard for evidence-based convictions. This helps ensure that no individual is convicted due to procedural shortcomings, unsubstantiated allegations, or assumptions unsupported by concrete proof. By emphasizing the primacy of evidence, the revised provision would not only safeguard the presumption of innocence but also promote transparency and fairness of criminal proceedings.
Ultimately, this reform would enhance public trust in the legal system, foster accountability among judicial authorities, and position Vietnam as a model of procedural fairness in line with international best practices.
Thirdly, balancing the right to silence and the obligation to cooperate
The CPC appropriately upholds the accused’s right to remain silent and protects them against self-incrimination, reflecting constitutional principles and international norms. However, Article 466.3’s provision, which imposes penalties for refusal to testify, conflicts with these protections and should be repealed to fully honor the presumption of innocence.
A more balanced approach is necessary to address non-cooperation without infringing on fundamental rights. While individuals should not be compelled to self-incriminate, they can be required to provide objective information relevant to the investigation, ensuring that their role in the justice process is constructive. For those who refuse to cooperate without plausible reasons, procedural consequences, such as forfeiture of eligibility for sentence reductions, parole, or other leniencies, could be applied. This distinction between the accused and convicted individuals preserves the presumption of innocence while reinforcing a sense of accountability.
Such a framework strikes an essential balance: protecting human rights while maintaining procedural integrity and ensuring that investigations are not obstructed. By adopting this approach, Vietnam’s legal system would harmonize with international standards and strengthen its commitment to fairness and justice.
Fourthly, affirming the defense counsel’s role in safeguarding the presumption of innocense
Defense counsels play a crucial role in safeguarding the presumption of innocence by ensuring the accused’s right to a fair defense. However, ambiguities in the CPC regarding the timing, scope, and procedural specifics of defense counsel’s questioning during interrogations pose significant challenges to their effectiveness.
To address these issues, clear and comprehensive guidelines should be provided to:
· Specify procedures for questioning, includingtime, methods and scope of defense counsel’s questioning during interrogations. This should include provisions for maintaining procedural integrity and ensuring that defense counsel’s participation does not compromise the investigative process.
· Streamline notification protocols by establishing uniform procedures for notifying and coordinating the participation of multiple defense counsels. This includes utilizing standardized communication methods, such as official documents or digital platforms, to prevent inefficiencies and ensure consistent compliance.
By implementing these measures, Vietnam’s legal system can improve the fairness and transparency of criminal proceedings. Standardized protocols would not only reinforce the accused’s right to effective representation but also bolster the reliability of procedural records, contributing to establishing a more balanced and objective adversarial process
Lastly, affirming the court’s role in proving criminal charges
While investigative bodies and the procuracy assume the prime responsibility for collecting evidence, the courts play an equally vital role in ensuring that all evidence is comprehensively and objectively examined during trials. Far from contradicting the presumption of innocence, this judicial responsibility helps improve procedural fairness and uphold the principle of mutual checks and balances among judicial authorities.
Requiring courts to base their rulings on thorough evaluation of evidence, combined with results of public and adversarial arguments, aligns Vietnam’s criminal justice system with international standards. To strengthen this framework, Article 15 of the CPC should be revised to explicitly underscore the courts’ duty in this regard. Such a revision would enhance the integrity of criminal proceedings, safeguard the presumption of innocence, and reaffirm Vietnam’s commitment to ensuring justice and fairness in line with global best practices.
Realizing these recommendations will not only address existing gaps in Vietnam’s legal system but also enhance the practical enforcement of the presumption of innocence. These measures will promote fairness, protect individual rights, and ensure that Vietnam’s criminal justice framework aligns with global standards.-
[1] Nong Duc Tai, LL.M., People’s Security Academy.
[2] Nguyen Hong Son, LL.M., Vietnam Judicial Academy.
[3] Article 31.1 of the 2013 Constitution of Vietnam.
[4] Article 13 of the 2015 Ciminal Procedure Code of Vietnam.
