VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES NGUYEN THANH LONG LEGAL STATUS OF LAWERS IN THE PERIOD OF CRIMINAL CASE INVESTIGATION ACCORDING TO VIETNAMESE CRI
Trang 1VIETNAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES
NGUYEN THANH LONG
LEGAL STATUS OF LAWERS IN THE PERIOD OF CRIMINAL CASE INVESTIGATION ACCORDING TO VIETNAMESE CRIMINAL PROCEDURE CODE FROM HO CHI MINH CITY PRACTICE
Major: Criminal Code and Criminal Procedure Code Major code: 9.38.01.04
SUMMARY OF THE PHD THESIS IN LAWS
Hanoi - 2019
Trang 2The Thesis is completed at:
GRADUATE ACADEMY OF SOCIAL SCIENCES
VIETNAM ACADEMY OF SOCIAL SCIENCES
Scienctific: Assoc.Prof.PhD Nguyen Van Huyen
Reviewer 1: Prof PhD Bui Minh Thanh
Reviewer 2: Assoc Prof PhD Tran Van Do
Reviewer 3: PhD Pham Manh Hung
The Thesis defence before the Academy-level Dissertation Committee will be held at: Graduate Academy of Social Sciences, No 477 Nguyen Trai, Thanh
Xuan, Hanoi
At ……., ……… June,2019
Thesis might found in:
- National Library of Vietnam
- Graduate Academy of Social Sciences Library
Trang 3INTRODUCTION
1 The necessity of the thesis
In order to ensure human rights, citizenship rights and defense rights
of the accused, our country has signed most of the international conventions on human rights, including the right to defend the accused under the Criminal Procedure Code Along with that, Resolution 08 - NQ/TW dated January 2,
2002 [4], Resolution 48-NQ/TW dated May 24, 2005 [5], Resolution NQ/TW dated June 02, 2005 [6] guided the strategy to build and perfect the Criminal Procedure Code system in terms of judicial reforms, attaching importance to ensuring the defense of the accused, protecting the legitimate rights and interests of the victim, litigant The 2013 Constitution recognizes new regulations to ensure human rights, civil rights and defense rights of the accused The policy of assuring the right to defend the accused, enhancing the position, the role of defense counsel, and the mechanism of assuring defenders' rights is the foundation for ensuring democratization of criminal legal proceedings, creating an independent and equal position among actors with incriminating functions This means that where there is accusation, the defense right shall be respected; ensure that the Court is truly the embodiment of justice, objectivity and impartiality in the trial process so that people can really live in the
49-“protection of citizens” of law [34] On the other hand, the Constitution has strict and specific regulations to protect the legitimate rights and interests of the accused, and the principles applied to protect people from the “whirlpool” of criminal legal proceedings that agencies and people have jurisdiction to conduct legal proceedings
when prosecuting, investigating, suing and adjudicating One of these rights is: “A person who is arrested, detained, detained, prosecuted, investigated, sued, adjucated, have the right to defend themselves, to seek defense by a lawyer or other person” [84, p 24] The right to defense is a necessary legal basis for the defender
to defend and protect legitimate rights and interests for the accused Ensuring the accused's defense rights is not only an important principle of the Criminal Procedure Code but also a regulation recorded in the 5 Constitutional Versions from the Constitution 1946, 1959, 1980, 1992 to 2013 One of the actors that can exercise the right to defend the accused, protect legitimate rights and interests for the victims, the litigants according to the Criminal Procedure Code, is the Lawyer
The investigation period is the decisive stage in the process of conducting legal legal proceedings, because the person temporarily kept in
custody, who is called the accused, is only the subject of “suspicion of criminal offense”, if not being careful, the gap between not guilty and committing a
Trang 4crime or a mistake and a crime can be easily erased [137] The outstanding feature in the investigation period is that i) the competent proceeding authority (Investigator) is the person to take the lead; they tend to “condemn, accuse”; ii) those who are suspected to commit crimes, are weak and passive, often have psychological confusion, fluctuation, instability in the testimony (easy to have different testimonies); iii) A lawyer at this stage is the “legal doctor” who approaches the accused as the defender for the accused, the person protects legal rights and interests for the victim, the litigant
This situation requires that the participation of Lawyers during the criminal case investigation period is very important, in order to seek evidence
of offense, details to extenuate criminal liability for the accused; protecting legitimate rights and interests for the victim, the litigants in making penalty proposals, collecting documents and evidence to claim damages including material, mental and financial losses or violated asset ; At the same time, it contributes to limit the violation of legal proceedings in investigation activities such as harassment, corporal punishment, clarifying the objective truths of the case, helping the investigation to be quick and accurate and not unjust the innocent, not let the criminals left behind However, through the study of the provisions of the Criminal Procedure Code and practice of procedural activities, the Criminal Procedure Code regulations on the legal status of lawyers in the period of criminal case investigation are still of formality and lack of real mechanism to ensure the participation in the legal proceedings of Lawyers In many cases, Lawyers have been prevented, made difficult, delayed in issuing written notices of defense counsels, not allowed to meet the accused, not participating in interrogation and in other investigation activities, which leads to the consequences when Lawyers seem to be excluded from legal proceedingsduring the criminal case investigation period, failing to protect the rights and legitimate interests of the accused, the victim and litigant Many competent proceeding authorities, people are not aware of the role of Lawyers, respecting Lawyers, disregarding the provisions of the Criminal Procedure Code, leading to errors, criminal omission and failure to clarify the truth of the criminal case
The correct identification of the legal status of lawyers in the Criminal Law contributes an important part to the efficiency of the Criminal Law of judicial reforms When the lawyer participates in the legal proceedings, the Criminal Law must “legalize” the rights and obligations; These regulations constitute the legal status of Lawyers in the legal proceedings On the other
Trang 5hand, Lawyers' participation in the early criminal case investigation period “ the role of Lawyers in unfair and wrong cases is at the time when the unjust person has to “ abide by the sentence”, means in the initial stages of the legal proceedings, Lawyers have not really been recognized and respected in proportion to the role of “soldiers committed to justice” as well as in the prevention and petition against errors,”[167] will contribute to with agencies and people with authority to conduct legal proceedings to find out the objective facts of criminal cases, contributing to overcoming wrongfull and false cases
Being the largest city in Vietnam and also an economic engine, with favorable natural conditions, Ho Chi Minh City is now a place to attract workers across the country, in which labor operating in the legal field in general and Lawyers in particular accounts for the largest number in the country As of November 2016, Ho Chi Minh City had a total of 8,066 Lawyers, including 5,527 Official Lawyers and 2,539 Lawyer interns The city has the largest population of 8,611,100 as of 2017 [132, p 24] so there is a scale of 1 Lawyer/1,558 people The increase in criminals, in which number of annually settled criminal cases in Ho Chi Minh City always accounts for a high proportion compared to other localities [104] in recent years, cause more and more people to participate in legal proceedingson So there is a bigger and bigger demand for Lawyers in Ho Chi Minh City
Over the past time, there are many works related to the study of the legal status of Lawyers in the stages of legal proceedings, but there has not been any separate research on the professional actor to exercise the right to defend as lawyers; separate research during the criminal case investigation phase in Ho Chi Minh City The thesis makes a comprehensive research on theoretical issues; current legal status; practical implementation of the legal status of lawyers during the criminal case investigation in accordance with Vietnam's Criminal Procedure Code in order to propose solutions to improve the legal status of lawyers during the investigation period of criminal cases according to Vietnam's Criminal Procedure Code Currently, it is meaningful not only in terms of theory and practice but also contributes to perfecting Vietnam's criminal laws; changing awareness of competent authorities and authorities about the role and position of lawyers
This is the reason that the PhD student chooses the topic “Legal status of Lawyers in the period of criminal case investigation under Vietnam's criminal procedure code from Ho Chi Minh City practice” to conduct research
Trang 62 Research Purposes and tasks of the thesis
- Scope of space: Studying the legal status of Lawyers in the period of investigation of criminal cases (except cases of infringing against the environment and national security) under the investigation authority of the Investigation Police Department in 24 Districts, Police Investigation Department of Ho Chi Minh City; Investigation Police Department under Ministry of Public Security C01, C03; Investigation agency of the Supreme People's Procuracy; Criminal Investigation Agency under the Ministry of Defense from Ho Chi Minh City practice
- Scope of time: The thesis studies the practice of implementing the provisions of the criminal law on legal status of lawyers in Ho Chi Minh City for 10 years from 2009 to 2018
4 Methodology and research method
4.1 Methodology
The thesis conducts research on the basis of dialectical materialism methodology of Marxist-Leninist philosophy and Ho Chi Minh's thought on the State and the law
4.2 Research method
To solve the tasks of the thesis, the author uses the following specific research methods:
- Methods of sociological investigation
- Criminal statistics method
Trang 7- Methods of summarizing experience
- Method of talks with experts
- Typical project selection method
- Methods of synthesis, analysis and comparison
- Historical method
5 New points of the thesis
- Clarifying the theoretical basis of legal status of lawyers, such as building a legal position concept of a lawyer, pointing out characteristics and meaning, content of legal status of lawyers in the investigation period criminal case
- Clarifying the shortcomings in the provisions of the criminal procedure code and the Law on Lawyers affecting the legal status of lawyers
- Clarifying the practice of implementing the provisions of criminal procedure code on the legal status of lawyers in the period of criminal case investigation; the causes of inadequacies and limitations in implementing the provisions of the procedural laws on the legal status of lawyers in the period of criminal cases investigation from the practice of Ho Chi Minh City
- Proposing solutions to implement the Criminal Procedure in the direction of extending to Lawyers many rights and opportunities to participate
in the legal proceedings in equality with the competent person to conduct the legal proceedings This is very important for ensuring the implementation, improving the quality of defense of lawyers in general and protecting the legitimate rights and interests of the accused in particular, especially the author wishes to recommend to the competent authority a legal document guiding the provisions of Clause 1, Article 79 of the Criminal Procedure Code of 2015
6 Scientific and practical significance of the thesis
Research results of the thesis can supplement the theoretical basis of the legal status of defense counsels and the lawyers in the investigation period criminal cases of in particular
With the presentation and analysis of the theoretical basis of the legal status of the Lawyer; the mechanism to ensure the legal status of the lawyer during the period of criminal case investigation under the Vietnamese Criminal Procedure, the thesis will be a meaningful source of information for competent state agencies and law makers to consult, study, review and finalize the 2015 Criminal Procedure Code and the current Law on Lawyers; propose solutions including issuing documents under the law on criminal procedure code The thesis is also a research document, useful reference for scientists, lawmakers,
Trang 8lecturers, Lawyers, and other advocates; or can be used as teaching materials at judicial training institutions
7 Structure of the thesis
The main content structure of the thesis includes:
Chapter 1 Overview of the research situation
Chapter 2 Theoretical issues and provisions of criminal procedure code on the legal status of lawyers in the period of criminal case investigation
Chapter 3 Status of legal status of lawyers in the period of criminal case investigation in Ho Chi Minh City
Chapter 4 Requirements and solutions to ensure compliance with the provisions of law and improve the legal status of Lawyers in the period of criminal case investigation
Chapter 1 OVERVIEW OF THE RESEARCH SITUATION
1.1 Foreign research situation
1.1.1 Overview of the foreign study of the issues related to the thesis
1.1.1.1 Research works on defense counsels and rights to have defense
councils of defendants in criminal proceedings
- The book”Brownlie’s document on the human rights” [183], by Ian
Brownlie – a British professor wrote in 2010
- The book “Toward an international criminal procedure” [188], by the
author Christoph Saffeling in 2003,
- The article “Evolution of U S.Criminal Law” [182], by the U.S
Criminal authors James B.Jacobs, Warren.E.Burger (the United States) - Professor of New York University, Director of the Center for Crime and Justice Research at the Faculty of Law, New York University, published in the U.S Department of State's e-Journal No 1, volume 6, July 2001
1.1.1.2 The research works on the legal status of Lawyers in the investigation period; about the legal system of countries; about procedural models
- Concerning the issue of defense activities of Lawyers in the
investigation period, the book “Law and legal system of the Russian Federation” [178] by Professor William Burnham, first published in 1999, 5th
edition in 2012
- “Basic principles on the role of lawyers” [149], adopted at the 8th
United Nations Congress on Crime Prevention and Crime Treatment, held in Havana (Cuba), from August 27 to September 7, 1990
Trang 9- International Conference on Criminal Procedure Code in 2003 and the rights of defense lawyers in 2012, author Tian Wen Chang - a Chinese
expert published the article “Thinking and evaluating the overall draft of the revised Chinese Criminal Procedure Code.” [184]
- The book “Outline of the U.S Legal system, Congressional Quarterly, Inc, 2001” [185], by the author Michael Jay Friedman (the United
- The book “Comparative Criminal Justice Systems”, [187] 6th
edition in 2012 by Philip L.Reichel (the United States), Professor in Kansas
University, Colorado, New Hampshire…
1.2 Overview of the domestic study situation
1.2.1 Group of research works on procedural models and criminal procedure principles; Criminal procedure functions related to the legal status of defense counsels and lawyers; on the rights and legal status of actors in the Criminal procedure; on the rights and legal status of defense counsels, lawyers in general and in the period of investigation of criminal cases in particular
The author divided into 3 groups of research projects as follows: Group of research works on procedural models and criminal procedure principles; Criminal procedure functions related to the legal status of defense counsels and lawyers
+ The doctoral law thesis “Vietnam Criminal Procedure Model and the issue of litigation proceedings” [100] by Dr Nguyen Thi Thuy in 2014
+ The doctoral law thesis by author Nguyen Manh Hung in 2012
“Functions in Vietnamese criminal procedures - Theoretical and practical issues” [46]
+ The doctoral thesis “Principles of litigation in Vietnamese criminal procedure - Theoretical and practical issues” [36] by author Nguyen Van Hien
in 2010
+ For the outline level, there is a textbook called “Criminal Procedure code” [107] of Hanoi Law University in 2006; Textbook “Vietnam Criminal Procedure code” [108] of Hanoi Law University in 2011; textbook “Lawyer and Lawyer profession” [109] of the Training School of Justice titles in 2001;
Trang 10Textbook “Skills to solve criminal cases” [43] of the Judicial Academy (Labor Publishing House) in 2014; Textbook “Law practice skills” volume IV [42] of
the Judicial Academy in 2001
+ Articles for reference in litigation activities in criminal procedure
such as: “Discussion on litigation in criminal proceedings” by Dr Hoang Thi
The Vietnam Bar Federation has also organized scientific conferences
to study the legal status of lawyers such as the scientific conference “Judicial reform and wrongful prevention in litigation activities” [55] held in Hanoi on
November 2 & 3, 2009; Hanoi Law University and UNDP also held an
international conference “Report on defense rights in criminal procedure code and practice in Vietnam” [130] in May 2010
+ Project “New contents in the Criminal Procedure Code in 2015” by
Assoc Prof Dr Nguyen Hoa Binh (editor) - National Political Publishing House - Truth Publishing House, Hanoi, 2016 [3]
+ Project “Scientific commentary on Criminal Procedure Code in 2015” by Assoc Prof Dr Nguyen Van Huyen - Dr Le Lan Chi (Editor) -
Labor Publishing House, 2016 [47]
+ The project “Scientific Review of 2015 Criminal Procedure Code” by
Prof Dr Nguyen Ngoc Anh - LS Dr Phan Trung Hoai (Editor-in-Chief) - National Political Publishing House - Truth, 2018 [1]
- A group of research works on the rights and legal status of subjects in criminal proceedings
+ In 2014, the doctoral thesis “The defense rights of defendants who are juniors in criminal proceedings” [106], by the author Nguyen Huu The Trach
+ Doctoral thesis in law “Implementing the defense right of defendants
in criminal proceedings” [95] by Hoang Thi Minh Son, Hanoi Law University,
2003
+ Document “Studying the defense rights in criminal law and practice
in Vietnam” [76] by the researchers's group Nguyen Hung Quang et al 2012
- Group of research works on the rights and legal status of defense counsels, lawyers in general and in the period of investigation of criminal cases
in particular
Trang 11+ Theses related to the theoretical basis, master degree thesis of Hoang
Chi Hieu, in 2016 with the topic “Legal status of defense counsel in the period
of criminal case investigation” [37]; Master degree thesis of Chu Dang Chung,
in 2014 with the topic “Defense lawyers in the period of criminal case investigation” [24]
+ Doctoral thesis “Defense activities of Lawyers during the first instance trial of criminal cases” [116] by the author Ngo Thi Ngoc Van, 2016
+ Doctoral thesis “Implementing defense rights in Vietnam's criminal proceedings today” [73] in 2016, by the author Dang Tran Thanh Ngoc
+ In 2011, the doctoral thesis “Ensuring the right to defense of the accused - Comparison between the Criminal Procedure Codes of Vietnam, Germany, America” [92] by the author Luong Thi My Quynh
+ In 2003, the doctoral thesis “The theoretical basis of completing law
on lawyers in Vietnam today” [38, p 155] by the author Phan Trung Hoai
+ The doctoral thesis in law by the author Do Van Duong in 2000
“Collecting, evaluating and using evidence in the investigation of criminal cases in Vietnam today” [33]
+ The book “Mechanism to ensure and protect human rights” [122] -
Monographs of the Human Rights Education Forum Project - Prof Dr Vo Khanh Vinh, Editor-in-Chief, Social Sciences Publishing House, Hanoi 2011
Besides, human rights studies such as monograph “Human rights - disciplinary and interdisciplinary approach to Law” [121] by Prof Dr Vo
Multi-Khanh Vinh editor, Social Science Publishing House, Hanoi 2010 (2 volumes)
+ The book “The role of Lawyers in criminal proceedings” [110] of Dr
Nguyen Van Tuan, National University Publishing House, Hanoi 2001
+ The Works “The position of the lawyer defending in trial” [35] of the
author Pham Hong Hai in 1999
+ Contemporary commentary articles about the wrongful and false
cases, such as “Prosecutor, litigant accused to refuse Lawyer by Lawyer” [136] dated December 08, 2016 by Nguyen Duc;“Preventing Lawyers from copying documents is illegal” [161] on December 4, 2016 by author Dinh van Que; Tuoi Tre newspaper published the article: “Lawyers can copy the case
documents” [November 18, 2016] by the author Tuyet Mai
Trang 12- A project on the reference book “New points of defense regimen in
2015 Criminal Procedure Code” of Dr Lawyer Phan Trung Hoai - National
Political Publishing House - Truth, Hanoi, 2016 [41]
1.2.2 Reports at conferences, scientific research workshops, surveys on defense rights of lawyers in the period of criminal case investigation
+ Survey conducted by a group of experts in Vietnam such as:
“Report on the defense rights in the Criminal Procedure Code and Practice in Vietnam”
+ At the International Conference on Criminal Procedure Code in
2003 and the right of defense lawyer, in 2012, Lawyer Nguyen Huy Thiep,
published the article “Completing the provisions of the Criminal Procedure Code 2003 on the defense of lawyers' rights” [97]
+ Workshop on evaluating 1 year of implementing Circular 70/2011/TT-BCA and Regulation on coordination between Vietnam Bar Federation and the Supreme People's Procuracy, JPP [140]; Report at the Conference on summarizing the implementation of 10 years of implementing the 2003 Criminal Procedure Code of the Supreme People's Procuracy in 2015 [128];
1.3 Evaluating the research situation related to the thesis and the issues that the thesis continues to study and solve
1.3.1 Issues related to the topic have been resolved
- Foreign studies related to the thesis
IT can be affirmed that, up to now, most of the published research projects abroad only analyze and comment on the provisions of the law on the defense of the accused; litigation position of Lawyers during the investigation period; practice rights, advantages and disadvantages when practicing practice
- Domestic studies related to the thesis
Through an overview of the research situation on the legal status of lawyers during the investigation period of criminal cases according to Vietnam's Criminal Procedure Code, it shows that the research works, articles have solved the problems:
Trang 13Firstly, the research works have mentioned and solved the content of legal status of the lawyer but only at a preliminary level; being able to solve the theoretical basis of the legal status of the lawyer; It is necessary to ensure that the legal status of lawyers in the investigation period under Circular 70/2011/TT-BCA [11] is necessary but it is recommended to cancel because it
is no longer appropriate for the Criminal Procedure Code of 2015
Secondly, in the published studies, the authors focused mainly on solutions to complete the Criminal Procedure Code in 2003 [80]
Thirdly, a number of research works and articles mentioned very briefly about the legal status of Lawyers, with little research, specific analyses
of related aspects or just going into a research of some specific issues without having been invested specifically in the legal status of lawyers during the criminal case investigation period, failing to provide an overview of synchronous solutions and recommendations for the amendment and supplement the Criminal Procedure Code of 2003
1.3.2 The contents of the thesis that continue to study and solve
- Related overseas studies need to be researched and addressed
Through studying foreign projects, especially on the Due Process of Law and the principle of fair trial (Right to fair trial) [93; p 25]
- Related domestic studies need to be researched and resolved
There are 6 contents to be studied and solved
1.4 Theoretical basis and research methods
In some separate studies on the legal status of lawyers during the criminal case investigation period, the theoretical basis has not been addressed in a comprehensive and systematic way Therefore, as a comprehensive study of the legal status of lawyers during the criminal case investigation period, the thesis continues to study at a deeper level to become a full-scale systematic research