THE ROLE OF THE COURT IN PROTECTING HUMAN RIGHTS IN PRESENT VIETNAM

Research methods 1 The indirect research method by summarizing and analysising documents, especially primary documents, comparing research issues among selected objects; 2 The direct r

HANOI LAW UNIVERSITY

DANG CONG CUONG

THE ROLE OF THE COURT IN PROTECTING HUMAN RIGHTS IN PRESENT VIETNAM

Speciality: Constitutional law Code: 62 38 10 01

SUMMARY OF LAWSTUDY DOCTORAL THESIS

HANOI - 2014 MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE

The thesis was completed at Hanoi Law University

Supervisors: 1 Prof Dr Thai Vinh Thang

2 Dr To Van Hoa

Reviewer 1: Assoc Prof Dr Nguyen Tat Vien

Reviewer 2: Dr Ngo Duc Manh

Reviewer 3: Dr Hoang Thi Ngan

The thesis is protected at the Council level thesis dot School Meeting at

Hanoi Law University

The last… hours, day… month, 2014

Thesis can be found at the National Library And the Library of Hanoi Law University

LIST OF RELATED PUBLISHED RESEARCHES

1 The role of the Court in protecting human rights, Legal Scientific Journal, No 01/2014, pages 6-11;

2 Improving the effectiveness of the protecting human rights of Vietnamese Court, the Journal on Law and Development, No 01/2014, pages 46-53;

3 Ensuring the independence of the Court by the Constitution, Magazine on Law and Development, No 5 + 6/2013, pages 65-72;

4 The role of the Court in protecting civil rights, Journal on People’s Court,

No 22/2013, pages 7-11;

5 Completing the institution on human rights in criminal proceedings through the judicial activities of the Court, the Procurator Journal, No 23/2013, pages 46-51

6 The position, role and function of the court in Thailand today, Legal Information, No 13/2012, pages 2-5;

7 The authority relationship between the state with political parties in the state, Legal Information, No 10/2012, pages 14-20;

1

INTRODUCTION

1 The urgency of the topic

Protecting human rights is one of important legal responsibility of the State In the tendency of international integration, protecting human rights

is not only the obligation of the state to the people but also the obligation of

a country to the international community This legal obligation is tightly bound by international conventions on human rights, and the direct obligation is Article 8 relating about the international Declaration on human rights: "Everyone has the right of being protected by competent national courts with effective measures against the violation of their basic rights which have been regulated by constitution or law" [34 ] Vietnam is one of a member of international conventions on human rights and the government belongs to the people, by the people, for the people so protecting human rights become an important political task and legal duty

of the state agencies

On the basis of the Party's viewpoints on ensuring and protecting human rights, the State makes into law and implementing law to meet the demand of human rights beneficiary of individuals in life In recent years, implementing and protecting human rights in Vietnam has achieved a lot of achievements, such as: civil rights and political rights of Vietnamese people have always been secured, the beneficiary of these rights of people is more and more comprehensive and complete; economic, cultural and social rights of people have been recorded in the Constitution and the law, is shown in the country development policies of the Government and are implemented in reality, especially since Vietnam reforms the country comprehensively Rights of vulnerable groups is codified fully in the Constitution and relevant legal documents being applicable to each specific groups according to international legal standards that Vietnam commits, such as Children's rights, irrespective rights of gender, the disable’s rights, equal rights of ethnic minorities [3]

In spite of gaining a lot of archivements, judicial activities of People’s Courts over the years still have many limitations, such as: "Some courts have not completely overcome the overdue civil cases in accordance with

law; the rate of solving administrative cases did not meet the requirements and the rate of the judgment, administrative decision being canceled or modified is still high; there are also many cases of which the court applied the suspended sentence are not in accordance with the regulation of law and guidelines of the Supreme People's Court; there are still unclear, infeasible judgments of the court The effectiveness of checking, judging in some localities are still not high, provincial people’s courts have not appealed to repair and overcome mistakes of the lower Court "[95, page16] ; "There are still some officials, judges who lack of responsibility and quality, lack of the awareness of training, do not complete tasks, violate discipline, even violate criminal law " [96, page 3] These limitations influence significantly

to the ability of protecting the human rights of the People’s Courts, people's faith in justice is eroded and sometimes, the limitations of the People’s Courts have been used to distort and defame guidelines, policies and leadership capacity of the Party and the State In addition, in the international integration trend today, legal inadequacies of the Vietnamese court have created legal barriers leading to the limitation of capacity to protect human rights of Vietnamese Court foreigners as well as Vietnamese citizens having relationship with foreigners

On the basis of the Party's viewpoints on the target and the strategic dynamic of socialist law-governed State and the state of capacity to protect human rights of the Courts today We found that further study rationale, interpretation of existance, limitation influencing the capacity of protecting human rights of the People's Court, and building science solutions being consistent with economic, political and culture conditions of Vietnam to overcome above shortcomings and limitations are meaningful contributing

to promoting the process of building a socialist law-governed State of the people, by the people and for the people That is the reason why the author chose the topic "The role of the Court in protecting human rights in present Vietnam" as a doctoral thesis on law

2 Research purpose and mission

2.1 Research purpose

The thesis analyzes and demonstrates theoretical aspects showing the role of Courts in protecting human rights On the basis of theories being proven, the thesis assesses the situation of protecting human rights by judgment in Vietnam today and proposes a number of scientific solutions

aiming at improving science the role of courts in protecting human rights in Vietnam

- Researching and clarifying reasons influencing negatively to the role

of Court in protecting human rights in Vietnam today;

- Building the orientation and proposing solutions on enhancing the role of Vietnamese Court in protecting human rights

3 Research methods

(1) The indirect research method by summarizing and analysising documents, especially primary documents, comparing research issues among selected objects;

(2) The direct research method by contacting and exchanging directly with researchers, officers in charge and investigate politics and law;

(3) Using the systematic approach method, social sciences and humanities, especially paying attention to law (mainly the approach method

of constitutional law, state theory and law, criminal procedure law, civil procedure code);

To solve the research object and task of the topic, the author uses specific research methods such as:

- Methods of analysising, summarizing, comparing and abstracting used in the process of establishing the concept of protecting human rights

by Court; analysising, demonstrating and explaining characteristics, advantages and roles of protecting human rights by the Court;

- The method of legal comparison is used in the process of proving the popularity of "the role of courts in protecting human rights" (mainly compare the regulation on constitutional of some countries and some international conventions on human rights); this method is also used in justifying scientific basis of solutions on enhancing the role of Courts in protecting human rights

- The method describing and analysising rules is mainly used in the process of clarifying legal limitations on the position, role, function, authority, order and proceedings of the Court; legal limitations ensure the

independence of judicial activities, legal systematic organization, and the process of selecting and appointing judges;

- The method of analysising and summarizing statistic figures is used

to demonstrate limitations in the judgment of the court (mainly used in chapter 3) In addition, to ensure the practical basis, the urgency of scientific problems need to be solved, especially to enhance the persuasiveness of scientific solutions, the method of analysising and summarizing statistic figures is used in the thesis showing aspects of the proposed solution

- The method of scientific analysis and forecast forecasts the development trend of social demand on the position and role of courts in protecting human rights and requirements of the socialist law-governed State for the Court in a near future

4 Research object and scope

4.1 Research object

The thesis studies the scientific issues relating to the position and role

of the Court in protecting human rights in Vietnam nowadays It mainly focuses on the following basic content:

- The theoretical and legal basis about the Court's role in protecting human rights;

- Law status and practical judgment of Vietnamese Court today;

- The current direction of judicial reform and the solution on enhancing the role of Courts in protecting human rights in Vietnam

4.2 Research scope

- Scope of space: Theory and practice in Vietnam

- Scope of time: From 1945 to the present

5 New contributions of the Thesis

The thesis is a comprehensive study about the role of Courts in protecting human rights in the context of building socialist law-governed State in Vietnam

Firstly, the thesis has established basic theoretical aspects in order to supplement on the argument system about the role of Courts in protecting human rights, including:

- The concept of "protecting human rights by the Court";

- Analyzing and demonstrating basic characteristics of protecting human rights by the Court;

- Justifying basic dimensions showing the important role of Courts in protecting human rights;

- Clarifying basic elements ensuring the role of Courts in protecting human rights in the context of building socialist law-governed State in Vietnam

Secondly, the thesis comprehensively assesses the limitations of

Vietnam Court in protecting human rights on the basis of the aspects showing the role of the Court in this field In addition, it points out basic reasons of those shortcomings and existance

Thirdly, the thesis has developed a system of scientific solutions

which are in accordance with conditions and directions of socialist governed State in order to enhance the role of Courts in protecting human rights, including the following solutions:

law Perfecting the law on recognizing the role of Courts in protecting human rights, including: constitutional right of judging acts on violating human rights made by the legislative power, executive power; entrusting the right of explaining the Constitution and laws to the Court

- Improving the independence of judgment activities by broadening constitutional content of judiciary independence in the Constitution; building act to ensure the judicial independence; renovating leadership methods of the Vietnamese Communist Party for the judgment activity; building ethnic standard code on Judge; and removing the right of controlling the judgement activity of the People's Procuracy during the criminal trial

- Developing the order and procedure of scientific justice comprehensively and suitably with international law on human rights such

as amending and supplementing the criminal law; amending and supplementing the civil procedure law; amending and supplementing the administrative procedure law

- Improving the quality of judges, including: Establishing the process

of recruiting and appointing new judges; reforming the curriculum of training bachelor on law

- Improving the awareness of the Party, State and people about the role of Courts in protecting human rights

- Improving the quality of civil enforcement

6 The structure of the Thesis

Introduction;

Chapter 1 General view about thesis research

Chapter 2 Theoretical basic on role of courts in protecting hman rights

Chapter 3 Evaluating the roles off the court in protecting human rights in Vietnam today

Chapter 4 Direction and Advanced solutions role in the court of human rights protection in Vietnam

Conclusions and next research recommendations

Chapter 1 GENERAL VIEW ABOUT THESIS RESEARCH

1.1 The overseas research

Through some examined research works, it is confirmed that the roles

of court in human rights protection are researched in many countries in the world Some research works have made the remarkable contributions in clarifying the position, role of court in protecting human rights and basic elements to ensure this judicial position of court These research results are considered as the important theoretical and practical basis as scientific foundation for the author to build theoretical basis and evaluate the roles of court in human rights protection in Vietnam In the scientific values inherited by the thesis, ensuring judicial independence and legal judging right of legislative and excutive power are concerned specially

1.2 The research in Vietnam

The examined research works mainly mention the requirements of jurisdiction state for the judicial power, the position and role of the court in the control of state power and the protection of justice for the people Besides, they are analyzed the limitations of law, organization status and operation reality of current court In the articles, the authors proposed scientific solutions to enhance the independence of courts and judges, as well as the reform of the the system of court of the different judging levels oriented in the Resolution No 49/NQ-TW dated June 2nd, 2005 from Ministry of Politics for judicial reform strategy up to 2020

1.3 The evaluation of thesis research

1.3.1 The advantages and research results in which the thesis will inherit and continue to develop

The research works (domestically) mentioned and analyzed theoretical basis of ensuring human rights in judicial proceedings, firstly came from the relationship between human rights and ensuring human rights in the legal relations arising in judicial proceedings Judging activity has jurisdictional characteristic and is secured by coercive power of the state, together with judging activities they are arising, restriction or termination

of some individual’s authorities In court proceedings, the legal measures to guarantee the rights of the participants in the proceedings, including the basic principles of criminal procedures, civil and administrative proceedings; the rules of procedures, the proceedings, the stages of criminal proceedings, the prosecution activities to comply with the law and the responsibilities of proceedings authorities This is a very important beginning, the theoretical basis as the premise for the author to analyze more deeply theoretical basis about the role of court in protecting human rights

The research works in Vietnam and in overseas provided a comprehensive overview of the concept of ensuring human rights, protecting human rights and the effect of protecting human rights by judging activities The knowledge (mainly from the overseas research works) is the basis for the author to explain, analyse the advantages of protecting human rights by the court under the comparative law aspect and constitutional law science

One of the research results brings the importance to the author's thesis

is that the research works above have fairly complete overview of the status

of international law and the democratic jurisdiction state’s Constitution for the position and role of national courts in the protection of human rights, thus help the writer have scientific basis to study and compare with the status of position, role of Vietnam Court in protecting human rights, as well

as giving the solution to improve the position and role of courts in protecting human rights

The research works in Vietnam also initially approach and analyze some aspects (viewpoints) that demonstrate the role of courts in human rights protection This analysis continue to be evaluated and commented by the thesis writer, from then give his own assessment of the concept, characteristics and content of human rights protection by the court, as well

as the basic aspects expressing the court's role in protecting human rights

The works are explained and analyzed the basic dimensions demonstrating the position and role of the court in the relationship with other Institutions of Justice, as well as the one between the judicial power, the executive power and legislative power In terms of external relations (with legislative power and executive one) or inside ones (with other Institutions of Justice), the Court remains the most important institution in performing judicial power; plays an important role in deciding the capacity and effect of judicial power in particular and the state power in general

In addition, the research works mentioned the negative factors to the effectiveness of human rights protection of the court in particular, judicial system in general and also suggest some directions, solutions to improve the capacity and effectiveness of protecting human rights of judicial system and the court in the context of building a socialist jurisdiction state

The assessment of the reality of organization and operation of Vietnam court in the research works is important for the thesis to collect, compare and clarify the limitations of the courts in human rights protection

- The concept of human rights protection has not been studied in Vietnam thoroughly and convincingly;

- The difference between the human rights protection and guarantee has not been clarified;

- The concept of "protecting human rights by the court" has been used but the internal content is not still clear so it is necessary to analyze, demonstrate and clarify the internal content and characteristics "protecting human rights by the court";

- The analysis and demonstration the advantages of protecting human rights through judging activities on the basis of comparison with the operation of the National Assembly, the Government in this field still need

to be studied to clarify;

- The position and role of the court in the system of Institutions of Justice in protecting human rights;

- The basic factors to ensure the role of court in protecting human rights in the context of building jurisdiction state and international integration have not been clarified so they need to be studied further;

- The system of evaluation criteria the role of court in protecting human rights has not been established comprehensively;

- The reality of protecting human rights in judging activities should be studied Therefore, the assessment of rights protection from the court in Vietnam from 1945 to 2012 should be researched

Overseas studies analyzed and demonstrated the practical effectiveness of protecting human rights by judging activities of the court However, there are not any comprehensive research works in protecting the human rights of the court

1.4 Theoretical basis and research hypotheses

- The theory of Marxism - Leninism and Ho Chi Minh Ideology about the state and the law

- The viewpoints of the Party, the state about the country's comprehensive renovation, renew of the state organization and operation in accordance with the requirements of building socialist jurisdiction state of the people, by the people and for the people;

- The opinions of the Party and the state on "The work of human rights in the new situation" according to the Directive No 44 CT/TW dated July 20th, 2010 from Board of Secretary;

- The thesis also acquires selectively the human essence ideas about the law, democracy and human rights, like the theory of "power limit" of John Locke; decentralization theory of Montesquieu (1689-1715)

3 Research, analyze and clarify the limitations of the court in protecting human rights, the reasons and solutions to these limitations in order to ensure the court to be “the final protection” of human rights 1.5 The research direction of the thesis

The thesis demonstrates the research hypothesis" In socialist jurisdiction state, the court is "the final protection" of the human rights" on the basis of analyzing, explaining and demonstrating the advantages of judging activities in protecting human rights in relation to the basic characteristics of legislative power and executive one On the basis of research orientation, the thesis solves scientific thesis according to the approach, namely:

- The system approach: analyzing and evaluating the issues of the state power, judicial one, the position and role of court in the judicial system, the state machine are set in a complex of the relevant factors, interacting together to create a unity;

- Interbranch approach: There is the intellectual combination of many fields of social science and humanity, such as politics, philosophy and law (criminal law, criminal proceedings one, administrative one, state and law theoretical science, constitutional law, and human rights science)

- History approach: Historical perspective is consistently used in the research, especially in assessing the reality of protecting human rights by the court in Vietnam

- Comparative law approach is used (mainly compare the Constitution) to clarify the fundamental roles of judging activities in protecting human rights in the democratic jurisdiction society