MINISTRY OF JUSTICE MINISTRY OF EDUCATION AND TRAININGHANOI LAW UNIVERSITY NGUYEN LAM KHOA 462816 GRADUATION THESIS Major: Comparative Law CRIMINAL ADJUDICATING PROCEDURES UNDER VIETNAME
Criminal Adjudicating Procedures under American Law
The American criminal procedural HO đCẽ, eecôeeeôseesseeksseesseesseesssee 22 2.1.2 The American legal framework on criminal adjudicating procedures 23 2.1.3 Principles of criminal adjudication under American ẽAW ôôceôôeeeôsee 25 2.1.4 Parties to criminal adjudication under American law
The American criminal procedural model is based on the adversarial system inherited from English common law and refined by the U.S constitutional framework The system relies on a structured contest between two parties—the prosecution and the defense—before an impartial judge or jury.
The model emerged from colonial ties to England and was later shaped by the Bill of Rights, especially the Fourth, Fifth, Sixth, and Fourteenth Amendments These amendments secure essential procedural rights, such as a speedy and public trial, the right to counsel, and protection against unreasonable searches and seizures A key element is the presumption of innocence, which requires the state to overcome a high evidentiary threshold before depriving an individual of liberty The right to a jury trial for serious offenses further reinforces this framework by allowing peer judgment as a check on governmental power.
In practice, the judge acts as a neutral arbiter, ensuring that legal procedures are followed and guiding the jury on the law without engaging in fact-finding The prosecution carries the burden of proving the accused’s guilt beyond a reasonable doubt, while the defense challenges the evidence and works to safeguard the rights of the accused Oral testimony and cross-examination remain central to testing the validity of the evidence presented”*.
Despite its theoretical strengths, the model faces practical challenges in contemporary criminal justice A significant issue is the widespread reliance on plea bargaining, which resolves the majority of federal felony cases without a trial This practice may weaken the intended balance between prosecution and defense, as
*4 UNODC (2018), “Adversarial vs Inquisitorial Legal Systems”, https://www.unodc.org/e4j/en/organized- crime/module-9/key-issues/adversarial-vs-inquisitorial-legal-systems.html prosecutors gain broad discretion over charges and plea ofers” Additionally, disparities In resources—especially affecting public defenders—traise concerns about whether all defendants receive an equal opportunity to challenge the state's case. Addressing these issues requires ongoing efforts to ensure that the system consistently upholds both procedural rigor and fairness for all parties involved.
2.1.2 The American legal framework on criminal adjudicating procedures The American legal framework for criminal adjudication is anchored in the U.S Constitution, with the Bill of Rights serving as its foundation The Fourth Amendment restricts unreasonable searches and seizures Through the exclusionary rule, as applied to the states in Mapp v Ohio (1961), both illegally obtained evidence °26— are and any evidence derived from it—known as the “fruit of the poisonous tree barred from being used in court The Fifth Amendment guarantees due process, protection against self-incrimination The Sixth Amendment secures a speedy, public trial by an impartial jury, along with the right to confront witnesses and obtain counsel—a protection expanded for indigent defendants in Gideon v Wainwright
(1963) The Eighth Amendment limits excessive bail and prohibits cruel or unusual punishment, while the Fourteenth Amendment extends these protections to state actions.
Federal criminal cases are guided by the Federal Rules of Criminal Procedure (FRCP), which outline processes from the initial appearance to appeals States maintain their own procedural rules, often modeled after the FRCP or rooted in common law, provided they adhere to constitutional standards Statutes such as the °5 Epps, Daniel (2016), “Adversarial Asymmetry in the Criminal Process” New York University Law Review,
Vol 91, No 4, p 762, 2016, Washington University in St Louis Legal Studies Research Paper No 2877348,
26 Vo Minh Ky (2023), “The "fruit of the poisonous tree" doctrine in the U.S criminal justice system and recommendations for Vietnam”,
Speedy Trial Act of 19747” enforce the Sixth Amendment by mandating federal trials to begin within 70 days of indictment or initial appearance Addressing resource disparities, proposals include increased funding for public defender systems to ensure equal protection for all defendants.
Case laws continuously refine the framework Miranda v Arizona (1966) requires that suspects be informed of their rights, directly affecting evidence admissibility Batson v Kentucky (1986) prohibits racial discrimination in jury selection to maintain impartiality, while Apprendi v New Jersey (2000) requires juries to determine facts that could increase penalties beyond statutory limits These rulings balance individual rights with law enforcement needs and invite ongoing adjustments to enhance fairness and efficiency.
The Federal Rules of Evidence (FRE) are a set of rules that guide how evidence is handled in American federal criminal trials They were established in
1975 to make sure only relevant and trustworthy evidence is presented in court, helping to protect the defendant's right to a fair trial For example, the FRE include rules that limit using a person's past behavior to suggest guilt and set standards for when out-of-court statements, like hearsay, can be used They also cover how expert witnesses, like forensic scientists, are qualified and how documents are verified An unexpected detail is how these rules, updated over time, adapt to modern issues like digital evidence, ensuring they stay relevant for today's trials.
The system integrates constitutional rights, detailed procedural rules, and active judicial oversight The right to counsel, for example, is supported by public defender systems and court-appointed attorneys; however, discrepancies in available resources remain a challenge Recent updates to the FRCP in 2024 address modern issues such as technology in trials, indicating continued efforts to streamline procedures while respecting constitutional mandates Proposals include further technological integration and process reforms to reduce delays and improve case management.
2.1.3 Principles of criminal adjudication under American law
The American criminal adjudication system is grounded in constitutional principles that ensure justice and protect individual rights.
The right to a trial by jury is a comerstone of American law, guaranteed by the Sixth Amendment for all criminal prosecutions This right applies to serious offenses—those carrying potential sentences over six months—as established in Baldwin v New York, 399 U.S 66 (1970) It ensures community participation through a jury of peers, acting as a democratic check on state power Defendants can waive this right for a bench trial, offering procedural flexibility while maintaining the option for citizen judgment.
Due process, protected by the Fifth and Fourteenth Amendments, prevents deprivation of life, liberty, or property without fair legal procedures It includes both procedural fairness—like notice and a hearing—and substantive safeguards against arbitrary action In criminal adjudication, due process ensures trials follow established rules, with Mathews v Eldridge, 424 U.S 319 (1976), illustrating its broader application, though primarily in administrative contexts.
The presumption of innocence requires the prosecution to prove guilt beyond a reasonable doubt, a standard rooted in due process (1% re Winship, 397 U.S 358 (1970)) Though not explicitly stated in the Constitution, it is fundamental, placing the burden on the state and protecting against wrongful convictions This principle shapes jury instructions and evidence evaluation, ensuring fairness throughout the trial.
Procedures of criminal adjudication under American ÍŒW ô ô ôôee 28 2.2 Criminal Adjudicating Procedures under French Law ôô <<<<< 30 2.2.1 The French criminal procedural HIOđẽ€ẽ, .-e<<e<<se<ssesseeseesseesee 30 2.2.2 The French legal framework on criminal adjudicating procedures
During this stage, the court reviews the indictment, advises the defendant on plea agreements, and ensures that the defendant understands the implications of a plea deal, including the waiver of certain constitutional rights.
Although defendants are generally entitled to a trial by jury, American law permits bench trials (trials without a jury) if the defendant waives that right Thus, criminal cases in America are tried under one of two procedures: full trial (typically a trial with a jury or a summary trial (without a jury).
Full trial procedures are generally reserved for serious offenses, such as felonies, and usually involve a jury trial with stages including jury selection, presentation of evidence, and final arguments In a jury trial, during the trial phase, the judge supervises the selection of jurors, evaluates evidence, and manages other aspects of the adversarial procedure The judge instructs the jury on the applicable legal rules, assigns their duties, and receives their verdict The jury selection process is conducted in steps, under conditions similar to those used in civil trials Federal criminal trials require a 12-member jury, and a guilty verdict must be unanimous If the defendant pleads guilty, the judge continues with the sentencing procedure.
3Š Douglas Beloof, Paul Cassell, Meg Garvin (2018), “Victims in Criminal Procedure”, Carolina AcademicPress, 4th Edition.
Summary trial procedures in the American criminal justice system are typically applied to minor offenses, such as administrative violations or misdemeanors, and are conducted with a simple and rapid process as part of bench trials In bench trials, the procedure is similar except that the judge alone determines the defendant's guilt The trial process follows the adversarial model, where direct examination, cross-examination, and re-examination are conducted with great intensity and rigor, and with tightly controlled time limits Throughout the trial, the judge acts as a neutral intermediary, managing the negotiations and debates between the prosecution and the defense In this process, the judge also functions as an arbitrator, ensuring that both sides adhere to legal procedures, and sometimes takes a more proactive role in negotiating between the parties by suggesting terms for a plea agreement*® Ultimately, the court decides on the sentence based on an evaluation of the pre-sentencing report and by listening to the defense's recommendations regarding sentencing.
In America, the appellate process is based on appeals regarding one or more errors in the application of law or in trial procedures—not on the issue of the defendant's guilt Appeals must demonstrate that the trial judge erred in applying procedural rules or admitted evidence that was obtained in violation of constitutional rights Appeals may also be based on the trial judge's failure to properly instruct the jury or that the plea agreement was not entered into voluntarily*’.
The appellate court reviews the case solely on the basis of the record established at the first-instance trial, without receiving new evidence or additional testimony The court may consider the circumstances of the case, but will only overturn the first-instance judgment on those grounds if "clear errors” are found. Federal appellate trials are conducted by a panel of three judges The appellate court
3 George F Cole, Christopher E Smith, Christina Dejong (2017), “The American System of Criminal Justice”, CENGAGE Learning.
SẼ Cornell Law School (2022), “Appellate Procedure’,
has the authority to decide whether to uphold the first-instance judgment, to reverse it Gf significant errors in the trial are found), or to remand the case to the lower court for additional proceedings”Š.
If the appellant fails in the federal appellate court or in the highest state appellate court, they may petition the U.S Supreme Court for review via certiorari. The U.S Supreme Court has discretion over whether to review the case and typically does so only when the case involves a new and important legal principle or when two or more federal appellate courts have interpreted the law differently The Supreme Court will decide the case in a full conference of the justices Under Supreme Court rules, only the justices may participate in the conference; no clerks, legal advisors, or court secretaries are allowed The Chief Justice speaks first, followed by the other Justices in order of seniority Then a vote is taken, with the Chief Justice voting first and the other justices following in seniority order Finally, the Chief Justice or the most senior justice in the majority writes the majority opinion Justices who disagree with the majority may write dissenting opinions If there is a tie vote, the lower court's decision stands This scenario occurs only if one of the nine justices is unable to participate in the review due to, for example, death, retirement, or suspension from judicial duties*’.
2.2 Criminal Adjudicating Procedures under French Law
2.2.1 The French criminal procedural model
The French criminal procedural model exemplifies the inquisitorial system, contrasting with the adversarial framework of the United States Rooted in civil law traditions, it prioritizes judicial investigation over party-driven contestation This section explores its structure and defining features within the thesis’s comparative analysis.
Historically, the model traces its roots to customary law under the Ancien Régime, notably during Louis XIV’s reign, and was first codified in the Code
38 Spolin Law, “Federal Appellate Procedure”,
9 Federal Rules of Appellate Procedure; Justin Pidot (2016), “Tie Votes in the Supreme Court”, MinnesotaLaw Review, Vol.101, p.245-299 đÌnstruction Criminelle of 1808 A key feature is the separation of investigation and judgment phases, with the juge d ‘instruction compiling a written dossier of evidence and witness statements Judges actively gather facts, question suspects, and direct police efforts, aiming for an objective truth.
The inquisitorial approach positions the judge as a central figure, leading trial questioning and evidence review Prosecutors and defense counsel participate, but their roles are secondary to judicial authority Trials rely on pre-assembled dossiers, with less emphasis on cross-examination, reflecting a belief in judicial expertise over lay judgment Assize courts for serious crimes include citizen juries, though guided by the judge, unlike independent U.S juries.
Operationally, courts split into investigative and trial bodies, with the juge d instruction handling complex cases—about 5% of proceedings—while prosecutors and police manage preliminary inquiries for most This division ensures specialized focus but can lead to delays”.
2.2.2 The French legal framework on criminal adjudicating procedures The French legal framework for criminal adjudicating procedures is rooted in a structured statutory system, reflecting its civil law tradition This section examines the primary legal sources and their integration with constitutional and international norms It focuses on the legal mechanisms governing criminal proceedings and their adaptation to modern justice requirements.
The Code de Procédure Pénale (CPP), enacted in 1959, serves as the central legal instrument, detailing rules for investigations, prosecutions, trials, and appeals.
It works alongside the Code Pénal, which defines offenses and penalties, forming the core of French criminal justice.
Constitutional oversight comes from the Conseil Constitutionnel, enforcing principles in the 1958 Constitution, including equality before the law from the Declaration of the Rights of Man and Citizen The Conseil has reinforced procedural safeguards, elevating the presumption of innocence to constitutional status in 198911,
4 Serge Guinchard (2019), “Droit Processuel - Droits Fondamentaux Du Procés’, Dalloz, 10th Edition.4! Decision No 89-260 DC of July 28, 1989
This ensures statutory laws align with fundamental rights, strengthening procedural integrity.
International norms significantly shape the framework, driven by France’s European Union membership and the European Convention on Human Rights (ECHR) The ECHR mandates rights like public trials and fair hearings” Rulings from the European Court of Human Rights, such as Medvedyev v France (2010), have prompted refinements, particularly in detention safeguards EU directives further integrate supranational standards, harmonizing aspects of criminal procedure.
Principles of criminal adjudication under Frenchi law
The Preliminary Article of the French Code of Criminal Procedure, introduced by Law no 2000-516 of 15 June 2000, establishes the fundamental principles of fair trial and adversarial procedure This principle ensures procedural fairness through the separation of prosecutorial and judicial functions Within this framework,
"adversarial" denotes that parties share equal rights in criminal proceedings, thereby affording defendants the opportunity to address charges comprehensively and without delay**.
The principle of public trial is a fundamental component of French criminal procedure, enshrined in both domestic law and international conventions Article 400
46 Richard J Terrill (2016), “World Criminal Justice System - A Comparative Survey”, 9th Ed, Routledge, p.180. of the CPP establishes that "Hearings are public”, although exceptions exist for cases where publicity might endanger public order or morality While the principle applies broadly, French law recognizes limited exceptions where hearings may be conducted in private, particularly in sensitive cases involving minors, sexual offenses, or matters affecting national security*’.
The presumption of innocence establishes that accused persons must be considered innocent until proven guilty.** The principle has been "elevated to a principle of constitutional force (principe 4 valeur constitutionnelle) by the Constitutional Council in 1989”, indicating its fundamental importance in the French legal system The presumption of innocence influences numerous procedural rules, including pretrial detention decisions, allocation of the burden of proof, and standards for conviction.
A core tenet of French criminal law is the principle of legality of crimes and penalties (légalité des délits et des peines) Explicitly stated in Article 111-3 of the Criminal Code, this principle enforces the maxim nullum crimen, nulla poena sine lege (no crime, no punishment without law) It requires that both criminal offenses and their corresponding punishments be clearly defined by statute, providing individuals with clear notice of prohibited conduct and its consequences”.
The principle of culpability (culpabilité) requires that criminal liability be based on personal fault, whether intentional or negligent.*° This approach dismisses objective forms of liability that do not consider an individual’s mental state, thereby ensuring that criminal responsibility is directly tied to personal conduct*!.
47 Marina Brillé-Champaux (2020), “Secret or public? On the publicity of debates”, Dalloz Actu Etudiant.
48 Article 1-P-III of the French Code of Criminal Procedure
“9 David Motte-Suraniti, “General Criminal Law”,
*° Article 121-1 of the French Penal Code
5! Article 121-3 of the French Penal Code
Closely related is the principle of personality of crimes and penalties (personnalité des délits et des peines), which maintains that only the actual perpetrator of a crime can be prosecuted Traditionally, this principle applies to natural persons, though recent legislative reforms have extended criminal liability to legal entities in cases where actions are committed by their representatives This individualistic approach restricts criminal sanctions solely to those directly involved in the offense, preventing the imposition of penalties on family members or associates.
The principle of freedom of proof (liberté de la preuve) is also a key element of French criminal procedure As set out in Article 427 of the CPP, evidence can be admitted in various forms unless otherwise provided by law This flexible stance allows judges to consider a wide range of evidence types in determining the truth,avoiding overly rigid formal requirements that might otherwise impede the fact- finding process.°Z
Parties to criminal adjudication under French law . ôôô-eô 34 2.2.5 Procedures of criminal adjudication under French law
The French criminal justice system involves several distinct judicial authorities, each with specific roles and responsibilities throughout the adjudication process Trial courts are organized hierarchically based on offense severity, with police courts (tribunaux de police) handling minor infractions, correctional courts (tribunaux correctionnels) addressing intermediate offenses (délits), and assize courts (cours đ'assises) trying the most serious crimes These first-instance courts typically feature multiple judges, with correctional courts generally ruling "with three judges” though "they occasionally rule with a single judge" Assize courts have a particularly distinctive composition, combining “professional judges (three) and a jury (nine citizens chosen by drawing lots)".
52 Navacelle (2024), “A flexible approach of the principle of loyalty regarding the evidence in civil matters — Analysis of the judgment of the Plenary Assembly of 22 December 2023”,
3 Article 521, Article 381, Article 398, Article 240 of the French Criminal Procedure Code; Antoine J Bullier
(2001), “How The French Understand The Inguisitorial System”
The Public Ministry (Ministére public or le parquet) serves as the prosecutorial authority, representing society's interests throughout criminal proceedings This institution is "charged with defending the interests of society and of the application of law" and is "primarily made up of magistrates, but is sometimes represented by other persons such as police officials" Public prosecutors (procureurs) exercise significant discretion in initiating and conducting criminal cases, determining whether to prosecute, dismiss charges, or pursue alternative resolutions.**
The judicial police (police judiciaire) play a crucial role in criminal investigations, operating under prosecutorial supervision to gather evidence and identify suspects As procedural sources explain, the judicial police "are responsible for the investigation of criminal offenses and identification of perpetrators," distinct from the administrative police whose primary function is maintaining public order These specialized officers conduct preliminary investigations following reported offenses, with their findings forming the basis for prosecutorial decisions regarding case disposition.>°
Defense attorneys (avocats de la défense) represent accused persons throughout criminal proceedings, protecting their procedural rights and presenting favorable evidence and arguments Unlike the American system, where defense counsel typically plays a more adversarial role from the outset, French defense attorneys historically had more limited involvement during the investigative phase. However, reforms have progressively strengthened defense rights, including
* Article 31, Article 40-1 of The French Criminal Procedure Code; Britannica, “ministére public”
3 Article 12, Article 14, Article 16 of the French Criminal Procedure Code; Jacqueline Hodgson (2001),
“Police, the Prosecutor and the Juge D'Instruction: Judicial Supervision in France, Theory and Practice”,British Journal of Criminology, Vol.41, Issue 2, expanded access to counsel during police questioning and greater participation in investigative proceedings.”°
Victims occupy a distinctive position in French criminal procedure through the partie civile mechanism, which allows them to participate actively in proceedings rather than merely serving as witnesses By constituting themselves as civil parties (parties civiles), victims may join the criminal case to seek damages while simultaneously contributing to the prosecution This dual role gives victims significant procedural rights, including representation by counsel, access to the investigative file, and the ability to request investigative measures "7
Defendants (prévenus or accusés, depending on the court) stand at the center of criminal proceedings while enjoying substantial procedural rights designed to ensure fair treatment These rights include the presumption of innocence, access to legal representation, knowledge of charges, ability to challenge evidence, and protection against self-incrimination However, French procedure traditionally expected greater participation from defendants than common law systems, with defendants typically questioned during proceedings and their statements forming important evidence.°Š
2.2.5 Procedures of criminal adjudication under French law
French criminal procedure encompasses several distinct stages, from initial offense reporting through trial and appeals The system is characterized by its inquisitorial nature, with judges actively seeking truth rather than merely evaluating evidence presented by opposing parties.
3 Article 63-3-1, Article 115 of the FCPR; Article 6-3 of the ECHR; Fair Trials International (2013), “Criminal Proceedings And Defence Rights In France”,
37 Article 2, Article 3, Article l6 of the French Criminal Procedure; hitps://escholarship.mcgill.ca/concern/theses/g 158bk26j
8 Preliminary Article, Article 63-3-1, Article 116: “The investigating judge then informs the person of his choice to remain silent, to make a statement, or to be interrogated.”, Article 63-4-4 of the French CriminalProcedure Code
The process begins with offense reporting through complaints (plainte) or denunciations (dénonciation), followed by preliminary police investigation (enquéte) During this phase, police collect evidence and interview witnesses under prosecutorial supervision, establishing whether sufficient evidence exists to justify further proceedings Police possess significant investigative powers, including the authority to detain suspects for questioning (garde a vue) for up to 48 hours, with possible extensions in complex cases.
Following the preliminary investigation, prosecutors must decide how to proceed Traditionally, options included either prosecution or dismissal (classement sans suite), but recent reforms have introduced “third way" (troisiéme voie) alternatives for less serious offenses, allowing resolution through community service, fines, or treatment programs without full trial proceedings.
For serious or complex cases, a judicial investigation (instruction) may be conducted by an investigating judge (uge d'instruction), who assembles a comprehensive written dossier documenting all evidence Though only a small percentage of cases undergo full judicial investigation, this process remains crucial for complex matters.
Firstly, Tribunal de Police Trial:
The trial in the Tribunal de police is relatively simple and informal The tribunal comprises one judge, one public prosecutor, and one court clerk>’ Cases are generally resolved through an unprepared exchange between the judge and the defendant The judge is responsible for questioning both witnesses and the defendant. Instead of a rigid question-and-answer format, the defendant is usually allowed to present a narrative of the events relevant to the case and may be interrupted by the judge's questions The same method is applied when questioning witnesses. Furthermore, the trial may be conducted in a summary manner when the evidence of the offense is clear and uncontested®?.
6 From Article 524 to Article 528 of the FCPR
In a Tribunal correctionnel trial, the procedural steps are similar to those in the Cour d'assises, with the composition typically consisting of three judges without a jury However, in some trials for low-risk offenses—such as traffic safety violations, illegal hunting, or unauthorized fishing—the trial is conducted by a single judge®!. The Tribunal correctionnel may also conduct a summary trial when the defendant's criminal conduct is clear Under the French Code of Criminal Procedure, there is no formal plea agreement procedure; however, a similar arrangement is accepted if the offense is of low risk and the only possible penalty is a fine.
CRIMINAL ADJUDICATING PROCEDURES UNDER
The Vietnamese criminal procedural H1OđlGẽ, eôô ô<ee<seeeeeeese 42 3.1.2 The Vietnamese legal framework on criminal adjudicating procedures Sšt6XS5E55X58Ei/56ãE63403 368455 GiS0SESS4i8GS6E8130230001G8118ã3880615353385E8305048685vA0100390386L4839138118854048058830 43 3.1.3 Principles of criminal adjudication under Vietnamese Íaw
The Vietnamese criminal procedure model has evolved through distinct historical periods, reflecting the nation’s socio-political development and legal reforms The foundation of Vietnam's current criminal procedural system can be traced back to the period following the August 1945 Revolution, when the country developed its criminal procedures through a series of decrees A significant milestone was reached in 1988 when Vietnam adopted its first Criminal Procedure Code, which was later replaced by a more comprehensive code in 2003, and subsequently by the
2015 Criminal Procedure Code that came into effect in July 201679.
Vietnam's criminal procedural model is primarily inquisitorial in nature, a characteristic inherited from the civil law system This reflects historical influences, particularly from the French legal tradition during the colonial period, and later from socialist legal systems However, a defining feature of Vietnam's contemporary approach is its incremental absorption of adversarial elements through ongoing judicial reforms This evolution represents Vietnam's responsive adaptation to changing societal needs and international legal standards.
Key characteristics of the Vietnamese criminal procedural model include: (1) sequential procedural stages (filing, investigation, prosecution, adjudication), with clear demarcation between phases; (2) distinct separation between procedure- conducting agencies (investigative bodies, procuracy, courts) and parties involved in the proceedings (the accused, victims, witnesses); (3) predominant use of investigative and inquisitive methods during trials, where judges play an active role in questioning and examining evidence; and (4) ongoing reforms that aim to balance the system's inquisitorial foundations with appropriate adversarial elements.
7 Hanoi Law University (2022), "Vietnamese Criminal Procedure Law Textbook", People’s Public SecurityPublishing House, p 15-29.
This model reflects Vietnam's commitment to finding objective truth in criminal cases while protecting the legitimate rights and interests of citizens The sequential nature of proceedings ensures a thorough investigation and evaluation of evidence before a case reaches trial, while the active role of judges serves to uncover facts rather than merely adjudicating between competing narratives presented by the prosecution and defense.
3.1.2 The Vietnamese legal framework on criminal adjudicating procedures Vietnam's legal framework for criminal adjudication is primarily governed by the 2015 Criminal Procedure Code (CPC), which took effect in July 2016 This comprehensive legislation marked a significant advancement from its predecessors by enhancing defendants’ rights and introducing more adversarial principles into what remains fundamentally an inquisitorial system The 2015 CPC comprises 510 articles organized into nine parts, establishing detailed procedures for each stage of criminal proceedings from the initiation of criminal cases through investigation, prosecution, trial, and appeal.
Complementing the CPC is the 2015 Criminal Code (Law No. 100/2015/QH13) and its 2017 amendments, which establish the bases for criminal liability and sentencing rules Together, these codes form the substantive and procedural pillars of Vietnam's criminal justice system The Criminal Code classifies crimes into four categories based on severity: less serious crimes, serious crimes, very serious crimes, and especially serious crimes This classification directly impacts procedural aspects, including detention periods, trial composition, and applicable sentences.
Vietnam's court system is hierarchically organized with the Supreme People’s Court at the apex, followed by Superior, Provincial, and District People's Courts. Criminal adjudication occurs at all levels, with jurisdiction determined by the severity of the alleged offense The 2014 Law on Organization of People’s Courts (amended in 2023) established the structural framework for these courts, while the 2024 amendment to this law has officially recognized precedents as a source of law in
Vietnam's criminal system—a significant development that incorporates elements typically associated with common law traditions’!.
Further enhancing this framework are numerous resolutions, circulars, and joint circulars issued by the Supreme People’s Court, the Supreme People’s Procuracy, and the Ministry of Public Security These instruments provide detailed guidance on implementing the CPC's provisions and standardizing judicial practices across the country Additionally, Vietnam's legal framework for criminal adjudication must conform to the 2013 Constitution, which establishes fundamental principles of justice, including judicial independence, the right to defense, and the presumption of innocence.
3.1.3 Principles of criminal adjudication under Vietnamese law
Vietnam's criminal adjudication system is governed by several fundamental principles established in Chapter II of the 2015 Criminal Procedure Code and the Constitution These principles provide the philosophical and procedural foundation for ensuring justice in criminal proceedings.
The presumption of innocence, codified in Article 13 of the 2015 CPC, stands as a cornerstone principle stipulating that "a person shall be deemed innocent until proven guilty according to the procedures specified by this Code and until a conviction of the court has taken legal effect." This principle shifts the burden of proof to the prosecution and protects defendants from being compelled to prove their innocence The inclusion of this principle represents a significant advancement in Vietnam's criminal justice system, aligning it with international standards.
Judicial independence, enshrined in Clause 2, Article 103 of the 2013 Constitution and Article 23 of the 2015 CPC, requires that "judges and assessors shall conduct trials independently and shall only obey the law.” This principle aims to ensure that decisions are rendered based solely on legal provisions and case facts, free from external influence or intervention.
The principle of fair and public trials, articulated in Article 25 of the 2015 CPC, mandates that "trials shall be conducted publicly, except in cases where it is
7! Article 32 of the Law on Organization of People’s Courts 2024 necessary to protect state secrets, preserve national customs and practices, protect persons under lề years of age, or keep confidential the private lives of individuals at their legitimate request." This principle enhances transparency in judicial proceedings and subjects them to public scrutiny, thereby fostering accountability.
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Other significant principles include socialist legality (requiring strict adherence to prescribed legal procedures), equality before the law (prohibiting discrimination based on gender, nationality, beliefs, religion, or social status), and individual responsibility (establishing that individuals are responsible only for their own actions).’”
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The Vietnamese criminal justice system involves various parties with distinct roles, rights, and responsibilities during proceedings These parties are divided into two main categories: procedure-conducting agencies and persons, and procedure- participating persons.
Procedure-conducting agencies include investigating bodies, the People's Procuracy, and the People's Courts Investigating bodies are organized hierarchically (district, provincial, and central levels) and have specified territorial jurisdiction.
” Hanoi Law University (2022), "Vietnamese Criminal Procedure Law Textbook", People’s Public SecurityPublishing House, p 44-92.
They are responsible for gathering evidence, questioning suspects, and building the initial case file?3 The People's Procuracy serves as the public prosecution agency and exercises supervisory control over judicial activities Procurators represent the state in prosecuting cases, deciding whether to approve arrest warrants, and determining if sufficient evidence exists to proceed to trial They also monitor the legality of investigative activities and court proceedings” Judges in the People’s Courts examine case files, hear cases, and make procedural decisions They play an active role during trials by questioning defendants, victims, and witnesses, unlike the more passive role of judges in purely adversarial systems A trial panel typically consists of one judge and two lay assessors for less serious cases, or a panel of three judges for more serious offenses ”.
Procedure-participating persons include the accused (persons held in custody, the accused, defendants), victims, civil plaintiffs, civil defendants, witnesses, defense counsels, experts, and interpreters Defense counsels have gained expanded rights under the 2015 CPC, including earlier participation in proceedings (from the time of detention rather than only after formal charges), increased access to case files, and the right to collect evidence These reforms strengthen the adversarial elements in Vietnam's criminal procedure system Defense counsels may be lawyers, legal aid providers, or representatives of organizations where the accused is a member”. Victims are entitled to present evidence, attend trials, appeal judgments, and request compensation Their involvement in proceedings has been strengthened to better protect their interests, reflecting a victim-centered approach to criminal justice The
2015 CPC expanded victims’ procedural rights, including the right to request specific investigative measures and to participate more actively during trials”’.
73 Their activities are governed by Articles 35-40 of the 2015 CPC
TM Their role is defined in Articles 41-43 of the 2015 CPC.
Their functions are outlined in Articles 44-45 of the 2015 CPC. © Their rights and responsibilities are detailed in Articles 72-82 of the 2015 CPC.
3.1.5 Procedures of criminal adjudication under Vietnamese law
Vietnam's criminal procedure follows a structured process with clearly defined stages, each with specific procedural requirements and timeframes, with criminal adjudication being the center stage The process begins with the initiation of a criminal case, which can result from reports by citizens, detection by investigating bodies, denunciations, or press reports of criminal activity Once a case is initiated, the investigation phase commences.
During the investigation phase, authorized bodies collect evidence to establish whether a crime has occurred and identify the perpetrator The Criminal Procedure Code establishes different investigation periods based on the severity of the alleged offense: two months for less serious crimes, three months for serious crimes, four months for very serious crimes, and four months for especially serious crimes These periods may be extended in complex cases, but the CPC places strict limits on the total investigation duration.
After the investigation concludes, the case file is transferred to the Procuracy, which has five days to make one of several decisions: to prosecute the case by issuing an indictment, to return the file for supplementary investigation, to suspend the case, or to dismiss the case If the Procuracy decides to prosecute, the case proceeds to the trial preparation stage.
Upon receiving the case file and indictment, the court has 10 days (for less serious crimes) or 15 days (for more serious crimes) to make a hearing decision. During trial preparation, the presiding judge studies the case file, decides on procedural measures, and issues summons to relevant parties The CPC stipulates that trials must commence within 30 days (for less serious crimes) or 45 days (for more serious crimes) from the acceptance of the case.
Opening Procedures: This stage, as described in the Benchbook and corroborated by legal analyses, involves the court clerk verifying attendance and announcing trial rules to maintain order The presiding judge formally opens the trial by reading the decision to bring the case to trial, ensuring all parties are aware of the legal basis The clerk then reports on attendance, noting absences and reasons, which is crucial for procedural integrity The judge verifies identities, including details like name, age, and residence for defendants, victims, and witnesses, and explains their rights and obligations, such as the right to defense or to remain silent Requests for changes in trial participants (e.g., judges, assessors, prosecutors) or for additional evidence are addressed, with decisions made by the panel Witnesses may be isolated’®,
Questioning Phase: Following the opening, the prosecutor reads the indictment, setting the stage for evidence examination The presiding judge takes an active role, leading the questioning of the defendant, victims, witnesses, and others, reflecting Vietnam's inquisitorial approach, as opposed to adversarial systems where questioning is primarily by prosecution and defense The judge decides the order, typically starting with the defendant, ensuring clarity on charges and responses Other panel members, the prosecutor, defense counsel, and participants may ask questions with permission, incorporating adversarial elements For multiple defendants, each is questioned separately, with isolation if statements might influence each other””.
Argument Phase: Post-questioning, the prosecutor presents their case for conviction, analyzing evidence and recommending a sentence, considering factors like crime severity and offender background The defense counsel counters, highlighting weaknesses in the prosecution's case and advocating for acquittal or leniency The defendant may self-defend, and victims or representatives express opinions, ensuring all perspectives are heard This phase concludes with the defendant's final statement, a critical moment for last impressions The democratic
T8 Hanoi Law University (2022), "Vietnamese Criminal Procedure Law Textbook", People's Public Security Publishing House, p.448-452; Stephen Le (2024), “zsighis Into Vietnam $s Trial & Hearing Procedures”,
”® Hanoi Law University (2022), "Vietnamese Criminal Procedure Law Textbook", People's Public SecurityPublishing House, p.452-459 nature of this stage, with equal rights to argue, is a notable aspect, aligning with CPC provisions®®,
Deliberation and Judgment: The trial panel, comprising judges and assessors, retires for private deliberation, excluding external parties like prosecutors or defense counsel, ensuring impartiality The presiding judge facilitates discussion, and decisions are made by majority vote, with procedures for resolving ties through further điscussionŠ!, as outlined in the Judge’s Benchbook The judgment, announced publicly, must clearly state guilt or innocence, the specific crime, punishment (e.g., imprisonment, fines), and compensation for damages*?.
Aside from full trial procedure as presented above, there’s also summary trial procedure stipulated in Chapter XX XI of the CPC The summary trial is designed to efficiently resolve simple criminal cases It typically applies to situations where the offender is caught in the act or confesses, the case involves straightforward evidence, the crime is minor, and the offender has a clear residence and background To expedite proceedings and alleviate judicial backlogs, the process features abbreviated timelines: 20 days for investigation, 5 days for prosecution, 17 days for the first- instance trial, and 22 days for the appellate trial However, practical challenges arise
8° Hanoi Law University (2022), "Vietnamese Criminal Procedure Law Textbook", People's Public Security
51 “Ty practice, a situation may arise where, despite multiple discussions and votes, no majority opinion is reached and therefore no verdict can be pronounced In this instance, the Court cannot postpone or suspend the trial since neither option is supported by legal provisions Although such a case is exceedingly rare, its occurrence is not impossible and the law does not specify any resolution procedure When facing this
“awkward” scenario, the presiding judge should assess which opinion appears more reasonable or accurate (even if not entirely correct) and vote accordingly to secure a majority decision.” (excerpt from: Vietnam Lawyer Journal (2022), "Some Issues Regarding the Deliberation Stipulated in Article 326 of the Criminal Procedure Code", )
82 Hanoi Law University (2022), "Vietnamese Criminal Procedure Law Textbook", People's Public SecurityPublishing House, p.463-467 from inconsistent criteria for defining "simple cases," leading to calls for legislative improvements to enhance the procedure's clarity and effectiveness*®.