Vietnamlawmagazine

LL.M. Le Nguyen Thanh

Criminal Law Faculty

Ho Chi Minh City Law University

Private prosecution means prosecution by a private individual and the right of private prosecution belongs first of all to crime victims and their relatives. Today, private prosecution coexists with public prosecution though its role and scope are limited only to the institution of criminal cases against certain crimes and it has become secondary to public prosecution.

Any action showing the following features is considered private prosecution:

 Accusation made by an individual.

 Accusation of a crime against a criminal and claim for compensations for damage caused by this crime.

 Direct institution of a criminal case against the accused before an adjudicative body (court). In modern criminal procedure law, a victim no longer directly institutes a case but requests the institution of a case (victim initiative).

 Person exercising the right of private prosecution is the victim and his/her relatives or a person hired by the victim to make accusation. In modern criminal procedure law, the right of private prosecution may be exercised by (i) the victim, (ii) the civil plaintiff, (iii) the lawful representative of the victim or civil plaintiff, or (iv) the defense counsel of the victim or civil plaintiff.

Under Vietnam’s criminal procedure law, public prosecution applies to almost all criminal cases while private prosecution is still possible depending on the type of criminal case and the initiative of victims in the course of prosecution. Private prosecutions can be brought by victims and civil plaintiffs together with their lawful representatives and defense counsels (if any).

For criminal cases instituted not at the request of victims, the right of public prosecution prevails and is independent from victims’ will. In these cases, private prosecutions are only for “reference” in the proving process (burden of proof) and usually accompanied with compensation claims. However, views of victims are still considered by the court during the settlement of a case. Article 19 of the 2003 Criminal Procedure Code (the Code) stipulates:

“Procurators, defendants, defense counsels, victims, civil plaintiffs, civil respondents, persons with related interests and obligations and their lawful representatives and defense counsels of the involved parties all have equal rights to present evidence, documents and objects, make claims and argue democratically before court. Courts shall create conditions for them to exercise these rights with a view to clarifying the facts of the cases.”

Article 28 of the Code also provides for the first time the principle of settlement of civil matters in criminal cases to guarantee compensation for damage caused to individuals and organizations, a manifestation of the right of private prosecution in the criminal procedures.

The legal ground for victims to bring private prosecutions is largely provided in Article 51 of the Code. In the stage of investigation, victims have the right to present documents, objects and claims to help procedure-conducting bodies collect and evaluate evidence and to file claims for compensations. In the stage of trial, victims may attend court hearings to present their opinions and arguments to protect their rights and interests. Article 218 provides:

“Defendants, their defense counsels and other procedure participants (including also victims and civil plaintiffs) have the right to present their opinions on arraignments made by procurators and make their requests; procurators shall present their arguments on each opinion.”

Likewise, victims have the right to appeal against court judgments and rulings regarding compensations to be paid by and penalties imposed on defendants (Point f, Clause 2, Article 51). Procedural acts of victims are taken totally on their behalf and for personal interests and are independent from procedural acts of procurators at court hearings. It can be said that victims, who suffer from damage caused by crimes, have the rights of an adversary. However, their rights are often not fully guaranteed in reality and victims usually passively participate in the criminal proceedings. Therefore, their role at court hearings is very limited[1].

For criminal cases which can be instituted at the request of victims, private prosecution prevails over public prosecution in three aspects. First, bodies competent to institute criminal cases may do so only at the request of victims. Second, if victims withdraw their requests for institution of a case before a first-instance court hearing opens, the case must be ceased (in these two aspects, whether competent bodies make accusations on behalf of the State depends on victims’ will). Last, victims have the right to present their accusations at court hearings. However, due to the difference between “accusation” and “arraignment” as well as the unclear procedures for making them, this accusing right of victims has been improperly enforced or even ignored in reality. It should be better to provide that victims present “arraignments” since this procedure allows victims to make arraignments together with procurators. We agree with the opinion that “in fact, victims participate in performing the prosecution not only in criminal cases instituted at their request but also in all other criminal cases. Before court, victims have all the rights of an adversary.”[2]

In case victims are deceased, their lawful representatives have the right to participate in the criminal procedure to exercise the right of private prosecution so as to protect the interests and honor of victims and the interests of their dependants. Lawful representatives have all the rights of victims (Clause 5, Article 51 of the Code). However, we find the Code’s provisions on lawful representatives inconsistent and difficult to understand and apply. First, a lawful representative is not regarded as a procedure participant and there is no definition of those who can act as lawful representatives. Second, it is insufficient to provide that lawful representatives participating in the criminal procedure have all the rights of victims in case these victims are deceased because in many other cases, victims are unable to personally exercise their rights and to hire others to protect their interests (for example, victims are missing or minors or have physical or mental defects). The participation of lawful representatives of victims in the criminal procedure to exercise all the rights of these victims has been recognized in reality.

Civil plaintiffs who suffer from damage caused by crimes play their accusing role indirectly for the purpose of receiving compensations. Their right of private prosecution is mainly provided in Article 52 of the Code. To be compensated for damage, civil plaintiffs need to present documentary evidence of damage, proving the cause-effect relationship between crimes and their damage and identifying persons responsible for compensations. In the stage of trial, civil plaintiffs also have the right to present their opinions and arguments in the argument procedure like victims and other procedure participants (Articles 217 and 218 of the Code). They also enjoy the right to present evidence, documents and objects, make claims and arguments democratically before court (Article 19 of the Code). However, in the theory and reality of Vietnam’s criminal procedure law, the role of civil plaintiffs in private prosecution is even more limited than that of victims. They are not even regarded as a party with the right of accusation and belonging to the accusing side though they have the rights like victims, except the right to appeal against judgments or rulings regarding penalties. Their participation in the criminal procedure is also for personal interests.

When exercising the right of private prosecution, victims and other involved parties may ask others to protect their interests. Article 59 of the Code stipulates:

“Victims, civil plaintiffs,… have the right to ask lawyers, people’s advocates or other persons who are accepted by investigative bodies, procuracies or courts to protect their interests.”

However, victims who are minors or have physical or mental defects are not assured of the right to have defense counsels invited by procedure-conducting bodies like the accused or defendants in case they or their lawful representatives cannot afford defense counsels.

In Vietnam’s criminal procedure, private prosecution and public prosecution are complementary to each other as both of them perform the accusing function. Yet, in some cases, conflicts can inevitably arise among the accusing parties. In these cases, the law and legal practices provide the following solutions:

 In the criminal procedure, the parties exercising the right of private prosecution may present their views independently even if their views are contrary to those of public prosecution bodies, especially in the stage of trial. Accusations made by victims are regarded as a channel of information supporting the burden of proof and as a ground for the settlement of the case. This demonstrates the principle of equality between participants in the criminal procedure (Article 19 of the Code).

 If there are signs of violation shown by the investigative body or procuracy that affect the objectivity and correctness of the prosecution, the private prosecution party may file complaints about decisions and acts of these bodies. This mechanism is guaranteed with the right to complain and denounce in the criminal procedure provided in Article 31; Point f, Clause 2, Article 51; Point f, Clause 2, Article 52; and Chapter XXXV of the Code.

 If the private prosecution party and the public prosecution bodies hold different views due to the partiality of these bodies, the private prosecution party has the right to request the change of procedure-conducting persons.

 If the procurator withdraws the whole prosecution decision, the trial panel shall, before deliberating the judgment, request procedure participants at the court hearing to give their opinions on such withdrawal (Clause 2, Article 221 of the Code). In this case, victims and civil plaintiffs may request the court to try the case according to the indictment which still has private accusations (private prosecution). In other words, the accusing function still remains in the proceeding process. The continued trial by the court according to accusations in the procuracy’s indictment will not affect the defense right of defendants. The continued trial of the whole case by the trial panel complies with Article 195 of the Code.

The right of private prosecution still exists in the criminal procedure systems of many countries, including Vietnam, with its role having diminished and its scope shrunk. The primary reason for the limited role of this right in the criminal procedure is that the law does not regard victims and civil plaintiffs as an adversary in criminal proceedings. At present, in light of protecting the human rights of involved parties in the criminal procedure, the interests of victims have received greater attention. Therefore, the relationship between private prosecution and public prosecution should be handled like that between the State’s interests (public interests) and citizen interests. It is a common trend to seek a balance in guaranteeing these interests in the criminal procedure. Therefore, existing models of criminal procedure have been re-evaluated while new ones have been suggested in line with this trend.

Improvement of provisions concerning private prosecution in Vietnam

One of the important tasks of the judicial reform set forth in the Political Bureau’s Resolution No. 08-NQ/TW of January 2, 2002, is to raise the quality of prosecution by procurators at court hearings and assure democratic arguments between procurators and lawyers, defense counsels or other procedure participants. Courts must base their judgments and rulings primarily on results of the arguments at court hearings and the comprehensive examination of all evidence and opinions of procurators, defense counsels, defendants, witnesses, plaintiffs and persons with related rights and interests.

This judicial reform orientation was reaffirmed in the Political Bureau’s Resolution No. 49-NQ/TW of June 2, 2005, on the judicial reform strategy through 2020.

Today, the criminal procedure’s three basic functions of accusation, defense and trial are universally recognized.

Since Vietnam’s criminal procedure system is an inquisitorial one adopting some elements of an adversarial system, the three procedural functions have not yet been clearly distinguished. Procedure participants, including victims and civil plaintiffs, are usually obliged to participate in the criminal procedure in a passive manner for procedure-conducting bodies to collect evidence rather than in the capacity as a true adversary. Moreover, because personal interests can easily be infringed upon on the grounds of crime control requirements, the role of private prosecution remains humble. As the ongoing judicial reform aims to raise the quality of the argument process at court hearings, considering it a breakthrough in judicial activities, the study and improvement of provisions on private prosecution would contribute to assuring the proper performance of the accusing function, raising the quality of the argument process, protecting the interests of the State and individuals and meeting the judicial reform requirements.

From the above analyses, we recommend:

1. A new way of classifying subjects participating in the criminal procedure:

The present classification of subjects in the criminal procedure into procedure-conducting persons and procedure participants fails to exhibit the adversarial idea in the criminal procedure and, therefore, these subjects are not mentally prepared for the procedural function they are about to perform in the course of settling cases. We totally agree with the recommendation on classification of these subjects based on the functions they perform. Accordingly, there should be four groups of subjects: those performing trial work (belonging to the court), those belonging to the accusing side (including procurators, investigators, victims and civil plaintiffs), those belong to the defending side, and other procedure participants (who have no interest associated with the settlement of cases). In this way of classification, criminal procedure participants would be furnished with different systems of rights and obligations corresponding to their respective procedural functions and, at the same time, be clearly aware of their role and duties in the criminal procedure. Particularly, victims, civil plaintiffs and their lawful representatives or defense counsels would participate in the procedure not only as those obliged to furnish information and evidence but also in the capacity as an active adversary to clarify the facts of the case and protect their interests.

2. Addition of some rights of victims and civil plaintiffs in Articles 51 and 52 of the Code:

a/ To amend and supplement Point b, Clause 2, Article 51 and Point b, Clause 2, Article 52 of the Code as follows:

“To receive investigation conclusions and results of other investigative activities; copies of decisions of procuracies on: institution of the case, institution of criminal proceedings against the accused, non-institution of a criminal case, cessation of investigation, suspension of investigation against the accused, joinder of cases or separation of a case for investigation, cessation or suspension of the case.”

This revision aims to assure that victims and civil plaintiffs are kept informed of major developments of the investigation process so that they can promptly provide documents and evidence and file claims for examining the penal liability of the accused as well as complaints about decisions of investigative bodies and procuracies. It would help exercise the right of private prosecution in the criminal procedure.

b/ To amend Point c, Clause 2, Article 51 and Point c, Clause 2, Article 52 as follows:

“To be informed of procedure-conducting persons, experts and interpreters and to request the change of these persons in accordance with this Code.”

The right to be informed of these persons would make the right to request the change of these persons more feasible and ensure that victims and civil plaintiffs exercise the right of private prosecution in an impartial and objective procedural condition.

c/ To amend Point e, Clause 2, Article 51 as follows:

“To participate in court hearings, present their opinions, accusations and arguments on the examination of the penal liability of defendants at court hearings in order to protect their legitimate rights and interests.”

This revision would assure victims of the chance to express their views on the settlement of the case, including their accusations, because in some cases accusations made by procurators are inconsistent with those of victims.

d/ In Clause 3, Article 51, to replace the word “accusation” with “arraignment” at court hearings. Arraignment is not only accusation but also constitutes a compulsory step in the criminal procedure following the inquiry. Because cases instituted at the request of victims are subject to both private and public prosecution, these victims should have the right to present arraignments together with those of procurators who exercise public prosecution and concurrently protect their accusations in the step of argument. This would help distinguish these cases from those which are instituted not at the request of victims.

3. The first paragraph, Clause 2, Article 105 of the Code should be amended as follows:

“In case the criminal case institution requesters withdraw their requests, the cases must be ceased. If they withdraw their requests at first-instance court hearings, they shall bear the prescribed criminal court fee.”

Cases instituted at the request of victims are subject to both private and public prosecution, so these victims’ will (to withdraw requests, leading to cessation of the case settlement) must be fully respected even after court hearings are opened.

4. Clause 2, Article 207 of the Code regarding the inquiring order should be amended as follows:

“When inquiring each person, the procurator shall ask questions first, then defense counsels of interests of the accusing side. Procedure participants on the accusing side may request the presiding judge to ask more questions about circumstances of the case. Subsequently, defense counsels of defendants may ask questions and procedure participants on the defending side may request the presiding judge to ask more questions about circumstances of the case. Experts may ask questions about matters related to the expert examination. Judges and jurors may participate in the inquiry when finding it necessary.”

The change of the inquiring order aims to improve the effectiveness of the argument process at court hearings because “inquiry is a method of testifying to the existence (or non-existence) of specific events or circumstances of a case”[3]. So, inquiry can be considered a method of accusation. Logically, the accusing side may ask questions first to clarify accusative evidence, then the defending side. Victims, civil plaintiffs and their lawful representatives are not necessarily required to directly put questions but may only request the presiding judge to ask about circumstances of the case to clarify accusative evidence. In order to promote the role of adversaries and guarantee impartial trial, judges and jurors should not ask first but should ask following questions about unclear matters when necessary. This inquiring order characterizes the adversarial legal procedure.

5. Article 217 of the Code regarding the order of presentation of arguments should be amended and supplemented as follows:

“1. At the end of the inquiry at a court hearing, the procurator shall present arraignments, proposing charge(s) against the defendant,… or propose the trial panel to pronounce the defendant not guilty.

In a case instituted at the request of victims, victims shall present their arraignments first and the procurator shall present their arraignments later.

2. Victims, civil plaintiffs or lawful representatives shall present their opinions and additional arraignments. If they have defense counsels of their interests, these persons shall present opinions first.

3. Defendants shall present their defenses…

4. Persons with interests and obligations related to the case or their lawful representatives may present their opinions to protect their rights and interests.”

6. It should be provided that institutions and legal persons directly suffering from damage caused by crimes are victims, or to add the right to appeal against penalties for these subjects if they still participate in the criminal procedure as civil plaintiffs, because their damage is in essence identical to the damage suffered by victims. This recommendation aims to create conditions for these victims to best exercise the right of private prosecution.

7. Addition of provisions on lawful representatives who have the rights of victims in case the victims they represent are missing or minors or have mental or physical defects. At present, the Code only provides in Clause 5, Article 51 that in case victims are deceased, their lawful representatives have their rights. Victims falling in the above-said cases are unable to personally exercise their rights or cannot afford defense counsels. This addition would better assure the right of private prosecution of victims.

8. Study of the right of adversaries, including victims, civil plaintiffs, defense counsels of defendants, defense counsels of interests of involved parties, the accused and defendants, to collect and present evidence before court, and recognition of such evidence.

If evidence is only collected by procedure-conducting bodies according to the order and procedures provided in the Code, parties other than procedure-conducting persons can hardly participate in the argument process.-