tiếng anh tóm tắt bảo đảm quyền có người bào chữa của người bị buộc tội so sánh giữa luật tố tụng hình sự việt nam đức và mỹ

LUND UNIVERSITY HO CHI MINH CITY FACULTY OF LAW UNIVERSITY OF LAW LUONG THI MY QUYNH GUARANTEE OF THE ACCUSED PERSON’S RIGHT TO DEFENSE COUNSEL - A COMPARATIVE OF VIETNAMESE, GERMAN

LUND UNIVERSITY HO CHI MINH CITY

FACULTY OF LAW UNIVERSITY OF LAW

LUONG THI MY QUYNH

GUARANTEE OF THE ACCUSED PERSON’S RIGHT

TO DEFENSE COUNSEL - A COMPARATIVE OF

VIETNAMESE, GERMAN AND AMERICAN LAWS

Field of Study: International and Comparative Law

Code: 62.38.60.01

A SUMMARY OF THE DOCTORAL

DISSERTATION OF LAW

HO CHI MINH CITY - 2011

This research was done at:

LUND UNIVERSITY, FACULTY OF LAW

HO CHI MINH CITY UNIVERSITY OF LAW

Discussant 3: Prof Dr Terttu Utriainen

This dissertation will be defended at the Ho Chi Minh City University of Law

Date and time: Friday November 25, 2011 at 13.30 PM

This dissertation may be found at following libraries:

- Vietnam National Library

- Library of Ho Chi Minh City University of Law

- Library of Lund University Faculty of Law

PUBLISHED ACADEMIC ARTICLES RELATED TO

THE THE DISSERTATION

1 Luong Thi My Quynh (2010), “Study of inquisitorial procedure

model and recommendations for improving criminal procedure

models of Vietnam” (“Tìm hiểu mô hình tố tụng thẩm vấn và

những kiến nghị hoàn thiện mô hình tố tụng hình sự Việt

Nam”), Legislative Science Journal (No.6/2010)

2 Luong Thi My Quynh (2011), “Guarantee of the right to defense

counsel under the American criminal procedure (“Bảo đảm quyền

có người bào chữa trong tố tụng hình sự Mỹ”), Legislative

Science Journal (No.4/2011)

3 Luong Thi My Quynh (2011), “Recommendations for improving

the Criminal Procedure Code of Vietnam regarding the right to

defense counsel (“Những kiến nghị hoàn thiện pháp luật Tố

tụng hình sự Việt Nam về bảo đảm quyền có người bào

chữa”), Legislative Study Journal (No.23/2011)

INTRODUCTION

1 Background

The tasks of guaranteeing human rights and improving the laws of criminal procedure have been currently attracting much attention of many nations However, one of the difficulties that such nations face in improvement of the laws is the assurance

of the balance between objectives of criminal procedure laws that is the balance between the task of handling crimes and maintaining the strictness of laws and the guarantee and non-violation of the procedural rights of the accused Practically, in

a few nations, the procedural rights of the accused, including the right to defense counsel, are not fully guaranteed, and are even violated

In Vietnam, practical settlement of criminal cases tends to indicate that incorrect judgments still exist that naturally prejudices the legitimate rights and interests of citizens, including the right to have defense counsel in criminal cases This results from various causes, of which the overlapping and contradictory nature of the laws is one Even though the Vietnamese Criminal Procedure Code has undergone several amendments and supplements, it has only partly overcome its existing shortcomings As such, the legal rights and interests of the accused have not been fully guaranteed and are even violated Under these circumstances, the State has taken initiatives showing its decisiveness to speedily improve the legal system in general and the Criminal Procedure Code in particular Like many other nations around the world, Vietnam has been carrying out a comprehensive reform of criminal

justice Resolution No 08/NQ/TW dated 2 January 2002 and

Resolution No 49/NQ/TW dated 2 June 2005 of the Politburo prescribe one of key tasks of judicial reform is to expand the proceedings at criminal trials, in which the need for further expansion of the rights of defense counsel and the accused is

emphasized This is a firm basis to improve the fairness of the legislation in general and the guarantee of the accused’s right to defense counsel in particular

However, in order to obtain the effectiveness of judicial reform in criminal procedure, the expansion of international cooperation in the fight against crimes in general and criminal procedure activities in particular is an objective necessity in line with the general trend towards legal harmonization Wishing to contribute to the enhancement of the effectiveness

of improving the law regarding the right to defense counsel, the author chose to undertake the research at PhD level on the

theme: “Guarantee of the accused person’s right to defense counsel - A comparative study of Vietnamese, German and American Criminal Procedure Laws” In the author’s opinion,

the research should be based on the following theoretical and practical foundations:

First, like Germany, the US and many other nations in the

world, Vietnam pays considerable attention to the setting up and improving of legal instruments in the field of criminal procedure which relate to the guarantee of the procedural rights

of the accused, of which the guarantee of the right to defense counsel is one of the most important As a result, studying and comparing the legal mechanisms guaranteeing the right to defense counsel in these three nations will be necessary for establishing its foundations

Secondly, Vietnamese, German and US criminal procedure

law have all recognized that the right to defense counsel is a fundamental procedural right of the accused that needs to be fully guaranteed Despite key successes in legislative aspect, there are a number of shortcomings in the regulations that need

to be analyzed, clarified and improved As to Vietnam, difficulties and problems regarding both the awareness and the practical application of these regulations have not been resolved My theme may lead me to explore the contents of a

number of laws that need to be improved

Thirdly, the practical application of Vietnamese criminal

procedure laws is poorer than the statutory regulations would anticipate The knowledge and professional conduct of persons conducting proceedings and of counsel still contain shortcomings and mismatches This may affect or even damage the rights and interests of accused persons involved in proceedings As such, it is advisable to study measures to remedy such circumstances

Fourthly, researching and comparing the criminal

procedure laws of Vietnam and those of certain nations other regarding the guarantee of the right to defense counsel is a sound requirement in line with the general trend towards legal harmonization This will give Vietnam opportunities to study and learn from experience, in a selective manner, when making, amending, supplementing and applying criminal procedure laws on the guarantee of the right to defense counsel On such a basis, Vietnam can improve the statutory regulations on the right to counsel, and enhance the effectiveness of the investigation, prosecution and judgment of criminal cases

2 Purposes and duties of the research

This dissertation has two aims The first is to study the laws of Vietnam, Germany and the US regarding the guarantee

of the accused’s right to defense counsel To serve this purpose, the dissertation focuses on clarifying scientific perspectives, provisions of the applicable criminal procedure laws and materials reflecting the practical context of the guarantee of the right to defense counsel in the selected countries, Vietnam, Germany and the United States The foregoing researches have been conducted to answer the question of how the accused’s right to defense counsel is guaranteed in criminal procedure in Vietnam, Germany and the United States

The second aim of this dissertation is to propose suitable and practicable solutions to improve the applicable criminal

procedure laws of Vietnam in terms of the guarantee of the right to defense counsel and then to contribute to the improvement of the effectiveness of handling criminal cases to the satisfaction of the duty of handling crimes while still guaranteeing human rights in criminal procedure

In line with these two aims, this dissertation will solve the following duties:

First, giving a comparison between the scientific and

historical views of the guarantee of the right to defense counsel and clarifying the common theoretical bases concerning the guarantee of this right in criminal procedure

Secondly, clarifying the contents of the applicable

provisions of international law and the laws of Vietnam, Germany and the United States on guaranteeing the right to defense counsel This will be affected by the comparative method with a view to find out similarities and differences, and then explain such similarities and differences Concurrently, analyzing and pointing out the advantages and limitations of the applicable criminal procedure laws on guaranteeing the right to defense counsel

Thirdly, learning about and giving assessments on the

actual status of the guarantee of the right to defense counsel in Vietnam, Germany and the United States, again by the comparative method, for the purpose of acknowledging the strengths and weaknesses of applying laws in each nation

Finally, on the basis of studying theoretical foundations

and applicable laws as well as the practical application of the laws of Germany and the United States on the guarantee of the right to defense counsel, the dissertation proposes a number of recommendations for improving the applicable laws of Vietnam for the purpose of improving the effectiveness of the guarantee

of this right in criminal procedure

3 Delimitation

The present research project lies in the field of criminal procedure law and uses a comparative approach However, it explores questions concerning the right to defense counsel from

a legal perspective rather than other aspects such as economic

or social management mechanism, etc Therefore, subjects to be researches herein will be scientific standpoints and provisions

of the applicable criminal procedure laws of Vietnam, Germany and the United States which regulate the right to defense counsel as well as the practical materials of competent authorities and courts’ judgments In addition, international legal instruments directly related to the research topic will also

be analyzed to clarify the conformity of these national laws to international standards

4 Status of study

The right to defense counsel of the accused has been early recognized in the history of international criminal procedure laws as well as of Vietnamese criminal procedure laws Under the Vietnamese laws, the right to defense counsel has been recognized in the Constitution and the Criminal Procedure Code as a fundamental principle orienting procedural activities

of competent authorities Nevertheless, the guarantee of this right in practice still has many limitations, not only in Vietnam but also in many other nations in the world In practice, researches to find out solutions to further guarantee rights and interests of the accused in criminal procedure have been conducted by many scientists However, most researches have mentioned the guarantee of the accused’s fundamental rights only Direct researches on the guarantee of the right to defense counsel are still in few crumbs, especially, no research has been conducted by way of a comparative approach

In Vietnam, researches relating to the guarantee of the right

to defense counsel are still very limited Most researches have been conducted under the form of academic articles or papers at Seminars and they are narrowed at the level of interpreting

legal positivism Generally, contents mentioned in such articles have focused on three aspects: first, researches on provisions of the Criminal Procedure Code in terms of guaranteeing human rights (including the accused’s rights); secondly, researches on criminal procedure principle of guaranteeing the right to defend

of the accused in general; thirdly, researches on the role of defense counsel in criminal procedure In addition, few academic articles mention the guarantee of the right to defence

in general in the context of judicial reform A number of researches in the form of books and dissertations (at LL.M and Ph.D level) have become out-of-fashionable without documentary nature In a larger range, some groups of experts have carried out researches on the actual activities of lawyers in criminal procedure; however, such researches have been halted

at the level of surveyed statistics

Nevertheless, results of the aforesaid researches have helped clarify provisions of criminal procedure laws on guaranteeing the right to defend in general and point out the existing weaknesses in a relative manner However, such researches have not been conducted by a direct and comprehensive approach to the guarantee of the right to defense counsel; especially they have hardly mentioned the guarantee

of this right in an international perspective

In foreign scientific research forums, a few articles and research projects have mentioned the right to defense counsel Most of the aforesaid researches are conducted within the scope

of national laws only Additionally, certain researches have been written by way of a comparative approach and most of them are likely a description of nations’ criminal procedure laws Furthermore, few researches relating to procedural rights

of the accused have been approached in the aspect of international laws on guaranteeing human rights

Generally, the foregoing researches have provided the author with a large range of basic knowledge about the

international criminal procedure, and of other countries, especially Germany and the United States As a result, a comprehensive research on the right to defense counsel of the accused as well as legal mechanisms guaranteeing rights in comparison and contrast with international laws is greatly requisite and meaningful

5 Research methods

On the basis of the method of dialectical materialism and for the purpose of well performing given duties of the theme, the following common methods have been used to carry out researches hereof: analysis and synthesis

The universal tasks of sciences in general and legal science

in particular are description, explanation, evaluation and prediction The theme is orienting to study provisions of laws,

as such, particular methods in the field of law academy have been employed by the author while writing the dissertation Analysis can be mentioned as the first method based on legal dogmatics This method is used to interpret, analyze and assess contents and effectiveness of statutory provisions and concurrently systemize them according to unified criteria and based on that predict and recommend the developmental path of such statutory provisions Moreover, this method has also been used in interpreting and comprehending correctly arguments of courts and competent authorities, state policies as well as relevant legal doctrines in international laws and laws of three selected countries (Vietnam, Germany and the United States) regarding the guarantee of the right to defense counsel Applying this method in doing researches, I do wish to give a comprehensive view of provisions of certain typical legal systems regarding the guarantee of the right to defense counsel and at the same time to propose appropriate recommendations for improving the Vietnamese laws

Legal comparison is also a particular method of the dissertation Comparison between different legal systems aims

at not only finding out similarities and differences but also making a comprehensive understanding and assessment of a legal system In addition, comparison is an effective method to help point out strengths and weaknesses in each legal system The result thereof has also shown that there is no absolute perfect in the criminal procedure laws of each country regarding the guarantee of the right to defense counsel and the study of experience of each other from legal practices of the countries needs a selection Taking advantage of the results of comparison and contrast with the German and American criminal procedure laws, the author has proposed recommendations on improving the Vietnamese criminal procedure laws regarding the guarantee of the right to defense counsel on the basis of contrast, selection and consideration the suitability to the conditions of Vietnamese laws

Legal historical researching method has been also used by the author to demonstrate linkages and continuance of legal provisions and legal making perspectives concerning the guarantee of the right to defense counsel Additionally, interviews have been used to exchange information by way of discussions with legal experts, lawyers and legal scholars in the field of criminal procedure laws Such interviews have been very helpful in providing the author with an accurate and multi-dimensional view of legal systems at work

6 New research results of the dissertation

This is one of scientific researches at Ph.D level approaching,

in a comprehensive manner, the guarantee of the right to defense counsel of the accused by way of comparison of different criminal procedure laws The research theme has given a number of fresh

contributions as follows:

1 Giving an overview of historical perspectives of the formation of the right to defense counsel Clarifying of the objective relationship between the guarantee of the right to

defense counsel and the concept of Due process of law and the

foundation principle of the Right to fair trial in criminal

procedure Pointing out the connection between the guarantee

of the right to defense counsel and the guarantee of the fairness and unbiased in criminal procedure

2 Generalizing views and conceptions of international laws and Vietnamese laws concerning the right to defense counsel

by which summarizing and affirming fundamental contents of guaranteeing of the right to defense counsel in both international aspect and national one

3 Systemize provisions of Vietnamese, German and US criminal procedure laws concerning the guarantee of the right

to defense counsel by way of contrast and comparison Especially, it is hereby to point out similarities and differences

as well as appropriate aspects and limitations in each legal system

4 Giving a number of recommendations on improving the Vietnamese criminal procedure laws concerning crimes and the right to defense counsel on the basis of selectively absorbing experience of Germany and the United States Concurrently, it

is hereby to propose a number of recommendations on enhancing the effectiveness of applying laws on guaranteeing the right to defense counsel in Vietnam

7 Outline of the dissertation

The dissertation is outlined according to its objectives, subjects and scope of researches The dissertation is composed

of the Introduction, List of Abbreviations, List of Reference Materials and Five Chapters

BASIC CONTENTS OF THE DISSERTATION

Chapter 1 BASIC ISSUES ON GUARANTEEING THE ACCUSED PERSON’S RIGHT TO DEFENSE COUNSEL 1.1 Basic theoretical issues on the guarantee of the accused person’s right to defense counsel

1.1.1 Historical views of the guarantee of the right to defense counsel

It is found from the research’s results that the right to defense counsel was recognized since a very early time Initial manifestations of this right have been found in the Middle Ages and this right was strongly developed in common law-based countries Afterwards, advanced effects of the right to defense counsel have spread to continental European nations Historical views have acknowledged the right to defense counsel as a fundamental right and requires to be guaranteed on the basis of the following theoretical and practical foundations:

- The participation of the defense counsel is recognized upon objective demands in terms of fairness in treating the offender

- The participation of the defense counsel is to resist the severity of judgment procedures against the offender;

- The participation of the defense counsel closely attaches

to the history of formation of a fair adversariality (a particular

of the adversarial model) The defense counsel plays the role of assisting the accused at the court to oppose the accusations of the King This model appeared since early 12th century in England and was drastically expanded in 16th and 17thcenturies These historical factors have indicated that the right

to defense counsel is a development of the right to self-defense

- Upholding the perspective of fairness and humanitarism

of laws, the right to defense counsel has been guaranteed in serious cases The policy of guaranteeing the right to defense counsel without charge for the indigents even was first

objective relationship between the concept of Due process of

Law, the principle of Right to fair trial and the guarantee of the

right to defense counsel Due process of law is a historical concept closely connecting with people’s struggles for finding the equality under severe regulations and procedures stipulated

by the Kings In treating offenders, the requirement of a due process is a legal basis guaranteeing rights and interests of the accused towards accusations of the State

The concept of a due process of law has formed a foundation for the formation and development of the principle

of the right to a fair trial This is a fundamental principle in guaranteeing procedural rights of the accused and has been recognized in most international and national legal instruments

In criminal cases, the principle of the right to a fair trial

contains one sole content, that is the guarantee of the ‘equality

of arms’ Accordingly, the accused is guaranteed to be judged

by a fair trial without bias and is granted with equal opportunities as to the accusing party in a case in terms of collecting and presenting evidences for defending and is entitled to argue equally at the trial court, etc

With the foregoing theoretical point of view, the author has clarified the relationship between the guarantee of the right to defense counsel with the principle of due process of law and principle of the right to a fair trial This is the relationship between foundation issues and practical results The right to defense counsel of the accused may be difficult to be completely guaranteed if there is any violation of the two

aforesaid principles On the contrary, the equality of arms in criminal procedure can be only complied with once the right to defense counsel is respected and guaranteed

1.1.3 Purpose of the right to defense counsel

In order to determine the importance of the guarantee of the right to defense counsel in criminal procedure, it is advisable to explain the objectives of studying this right Many scientists’ opinions have shown that the right to defense counsel should be guaranteed to:

- Give the accused equal opportunities as their procedural status itself expresses non-equality towards the accusations of the competent authorities;

- Provide the defense counsel to guarantee human rights when the accused has to incur sanctions in criminal procedure such as arrest, provisional custody, detention, etc

1.2 Guarantee of the right to defense counsel in international legal documents

1.2.1 Overview of international legal documents in connection with the guarantee of the right to defense counsel

This content is an overview and systemization of international legal instruments relating to the right to defense counsel Legal instruments referred herein include: International Convention on Civil and Political Rights; European Convention on Human Rights; American Convention

on Human Rights; African Charter on Human and People’s Rights Additionally, documents and conclusions of the Organizations and Courts enforcing Conventions have been taken into consideration to clarify the contents of guaranteeing the right to defense counsel within the scope of international laws

1.2.2 Guarantee of the right to defense counsel under international legal documents

Results of researches have shown that the right to defense counsel under international legal instruments has been

guaranteed in the following aspects:

- The right to adequate time and facilities for the defense;

- The right to defense counsel: this right appears after a person is arrested and it is guaranteed in pre-trial stage and trial stage;

- The right to free defense counsel if the accused cannot afford to pay counsel’s fee or in case for public interests;

- The right to communicate with the defense counsel without being overseen by a third party unless there is any other exception to ensure public security;

- The right to collect evidence and summon witnesses The above are fundamental contents consistently recognized in international legal instruments In practice, aspects of the guarantee of such rights have been explained in more details in the awards of the Courts judging the exercise of regulations of Conventions Nevertheless, the foregoing contents would be considered as a criterion to contrast, compare and assess selected legal systems

Chapter 2 GUARANTEE OF THE RIGHT TO DEFENSE COUNSEL UNDER VIETNAMESE CRIMINAL PROCEDURE

LAWS 2.1 Overview

2.1.1 Background on Vietnamese criminal procedure

One of factors making differences in mechanizms of guaranteeing the right to defense counsel among legal systems

is the particular characteristic of criminal procedure models In this content, the author has described and given demonstrations

of specific characteristics in the procedures for handling criminal cases under the Vietnamese criminal procedure laws Vietnamese laws are affected by continental European legal systems and written laws Court awards are only valid and enforceable against each specific cases without being referred

as precedents As such, the Vietnamese criminal procedure has been much affected and bears characteristics of inquisitorial procedure system Accordingly, the Vietnamese criminal procedure has the following characteristics:

- Procedural activities are conducted by way of interrogation Results of evidencing crimes are expressed by decisions which are concluded from results of the investigation

by investigation bodies and indictments of the procuracy bodies

- A court trial is regarded as a public investigation Collected evidence must be investigated at the trial court, and the burden of proof will be undertaken by the court The judges take the initiative role in judging Awards of the jury are given

on the basis of belief of the court about objective truth of the case which is not merely the result of a fair adversariality between the parties (the accusing party and the defending party)

as it is in an adversarial procedure model

- The defense counsel plays a vague role during the proceedings Provisions on the right to defend of the accused as well as rights and obligations of the defense counsel have remained many limitations This is one of causes leading to the fact that the right to defense counsel is not guaranteed

2.1.2 History and development of the right to defense counsel

of the accused under Vietnamese criminal procedure laws

Studying the formation and development of the right to defense counsel has given an indication that policies of the State

of Vietnam are consistent and always heighten the guarantee of fundamental procedural rights of the accused This process has been recognized in three stages:

2.1.2.1 Period from 1945 to 1954

This period marks the founding of the Democratic Republic of Vietnam In this period, the right to defense counsel was already recognized; however, this right was only applied at the trial court A defense counsel might be a lawyer