ummary of the doctoral dissertation in law the legal status of accused persons under the vietnamese criminal procedure law in ho chi minh city

Therefore, to ensure and protect human rights of accused persons, the law needs to specify the accused person and their legal status so that they can exercise procedural rights and oblig

VIETNAM ACADEMY OF SOCIAL SCIENCES

GRADUATE ACADEMY OF SOCIAL SCIENCES

L

HUYNH THI NGOC HAN

THE LEGAL STATUS OF ACCUSED PERSONS UNDER THE VIETNAMESE CRIMINAL

PROCEDURE LAW IN

HO CHI MINH CITY

Major: Criminal Law and Criminal Procedure Law

Major code: 9.38.01.04

SUMMARY OF THE DOCTORAL DISSERTATION IN LAW

Hanoi - 2021

The dissertation completed at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences

Supervisor: Assoc Prof Dr Tran Dinh Nha

Reviewer 1: Prof Dr Hồ Trọng Ngũ

Reviewer 2: Assoc Prof Dr Cao Thị Oanh

Reviewer 3: Assoc Prof Dr Trịnh Tiến Việt

The dissertation will be defended at Graduate Academy Level Council of dissertation assessment at Graduate Academy of Social Sciences

Time: ………… date ……… month …… …year 2021

The dissertation may be found at:

- Vietnam National Library;

- Graduate Academy of Social Sciences Library

INTRODUCTION

1 The necessity of the research topic

Human rights are natural, inherent and objective rights of the human beings which recognized and protected by national laws and international legal agreements, and each person has rights because they are the people If people lose these rights, they are no longer human In Vietnam, human rights, basic rights and obligations of citizens are always respected and guaranteed Along with the recognition of human rights, basic rights and obligations of citizens in the Constitution 1946, 1959, 1980, 1992, our Party and State have enforced many policies to ensure human rights and basic rights and obligations of citizens and has mostly participated in international treaties of human rights The 2013 Constitution stipulated that

“Human rights and citizen rights can only be restricted by the provisions of the law in necessary cases for reasons of national defense, security, social order and safety, social ethics, community health” (Clause 2, Article 14) The accused persons are also human, however, because they are suspected

of committing a crime, they are restricted some rights by the law Therefore, to ensure and protect human rights of accused persons, the law needs to specify the accused person and their legal status so that they can exercise procedural rights and obligations that proceeding-conducting agencies and persons could not violate and obstruct them

In terms of awareness: Currently, many countries in the world and Vietnam also have specific provisions on the legal status of accused persons towards respect respect and protect human rights in criminal proceedings, when considering and resolving a criminal case the accused persons are in the central position They are the most important entity in the legal relationship of criminal proceedings, or in other words, if there are no accused persons, there will be no criminal cases, and when criminal cases occur, criminal proceedings activities will clarify the truth of the cases on the basis of implementing the provisions of the criminal proceedings in the process of investigating, prosecuting, and adjudicating to prove the accusation This activity must right procedure, order, objectiveness,

properly, right person, right crime and not neglect crimes in the context of the industrial revolution 4.0

In terms of legislation: the legal status of accused persons is now stipulated clearly and specifically by law, especially in the 2013 Constitution and the criminal procedure law The important issue is how to enforce the provisions of the law in practice to ensure and protect human rights and citizen rights of accused persons in criminal proceedings, demonstrating humanity, not to slander innocent people but not to neglect crimes, and limit procedural violations in prosecuting, investigating, hearing and executing criminal cases Although the Vietnamese criminal procedure law has legally created the premises, conditions, mechanism and measures to inspect and supervise criminal proceedings activities of proceeding-conducting agencies and persons, namely, Investigation Agency and People’s Procuracy, the People's Court, and judicial titles, facilities for legal proceedings In recent years, however, Vietnam’s criminal proceedings still reveal many limitations, the rights of accused persons are not guaranteed There are still unjust cases in some countries due to objective and subjective reasons, especially short-sighted legal thinking and misunderstanding of the law, arbitrary application of legal provisions in verifying, investigating, prosecuting and hearing when proceeding-conducting persons usually towards accusation and negative prejudices of society against the accused persons

In practice, Ho Chi Minh City (HCMC) has the largest number of lawyers (accounting for 40% of the country’s lawyers), many law-practicing organizations (accounting for one third of the whole country) Although there are many favorable conditions for the lawyer's practice, by

2020, HCMC’s goal is to have over 50% criminal cases being judged by the Court with lawyer’s participation but has not yet reached for now Some lawyers have not been proactive and active in self-studying and updating legal knowledge to improve their professional skills as well as improving political, ethical and behavioral qualities In addition, some lawyers do not have responsibility for their work, and enthusiasm to their clients, they are

just interested in remuneration but disregard their practice quality This has greatly affected the legal status of accused persons in HCMC

In terms of justice and the protection of human rights: To ensure the procedural status of accused persons, it is necessary to have a direct mechanism to protect the criminal procedural rights and obligations of the accused persons In addition to the legal content stipulates the accused person’s rights and obligations along with the rights and obligations of the proceeding-conducting agencies and persons, but in order to achieve the highest efficiency, it is necessary to have further specific provisions on methods and limits for accusers and accused persons perform their rights and obligations without infringing upon each other’s rights At the same time, there is a solution to consolidate the organization, facilities and means

of work and detention of proceeding-conducting agencies and practicing organizations in a modern and professional manner and to meet promptly legal services for subjects (especially the accused persons); ensuring the quantity and quality of lawyer forces

law-Determining the legal status of accused persons is very important not only resolve a criminal case but also protect their legitimate rights and interests When referring to the legal status of a subject, it not only refers to the legal rights and obligations of the subject, but also the way of implementing the subject’s rights and obligations In practice, however, guaranteeing and protecting the legal status of accused persons is not sometimes really paid attention in theoretical studies and application of the law Although there have been so far many works that have clarified the rights and obligations of the accused persons on the basis of researching the provisions of the criminal procedure law, human rights, citizen rights of the accused persons in the criminal proceedings, but they do not pay attention

to the principle of the rights of one party to be obligations of other party and vice versa so as to examine the relationship among subjects in criminal proceedings In fact, the application of criminal procedure law shows that the law has fully provided the rights of subjects participating in the proceedings but has not specifically stipulated obligations of proceeding-

conducting subjects to meet those rights According to the author, studying the legal status of accused persons not only arising from their rights and obligations but need further examine its correlation with the rights and obligations of proceeding-conducting agencies and persons This is the way

so that the accused persons perform their rights and obligations, as well as activities of the proceeding-conducting agencies and persons, and the competent persons when implementing criminal law and policies Additionally, there are still big gaps in applying criminal procedure law and policies on ensuring human rights and procedural rights of accused persons nationwide in general and in HCMC in particular Theoretically and practically, it is necessary to examine to find out the causes and propose solutions to further improve criminal procedure law to guarantee human rights and procedural rights when the accused persons are considered without crime until proven by legal order and having the Court’s conviction that took legal effect With such reasons, it is necessary to examine

systematically theoretical and practical issues on “The legal status of accused persons under the Vietnamese criminal procedure law in HCMC”

2 Research purpose and tasks

2.1 Research purpose

Based on theory, regulations and the criminal procedure law enforcement on the legal status of accused persons, the dissertation seeks to examine and assess comprehensively the legal status of accused persons under the Vietnamese criminal procedure law over the years in HCMC The dissertation findings contribute to building and perfecting the criminal procedure law, propose solutions, mechanisms of guaranteeing and protecting human rights of the accused persons to effectively implement their legal status in criminal procedure in Vietnam in general, and in HCMC

in particular

2.2 Research tasks

First, the study seeks to analyze and explain theoretical issues on the

rights and obligations of accused persons under the Vietnamese criminal procedure law, it then distinguishes the legal status of each type of accused

persons from other criminal procedure subjects and proceeding participants Studying methods and measures to implement the rights and obligations of accused persons is shown by examining activities of proceeding-conducting agencies, proceeding-conducting persons and proceeding participants to clarify the concept, nature, subjects, rights and obligations of the accused persons under the Vietnamese criminal procedure law; criminal policies, procedural functions, procedural models to ensure the rights and obligations

of accused persons under the Vietnamese criminal procedure law; to explain factors affecting the implementation of criminal policies, procedural functions, procedural models to ensure the rights of accused persons under the Vietnamese criminal procedure law, in which the role of lawyers and defendant’s agent

Second, the dissertation tries to analyze and evaluate the reality of

applying criminal policies, criminal laws and criminal procedures for guaranteeing and protecting the rights of accused persons under the Vietnamese criminal procedure law in HCMC to find out the causes, limitations and shortcomings as a basis for proposing solutions to strengthening the legal status of accused persons

Third, the study builds and completes a system of solutions to improve

efficiency of the implementation of the rights and obligations of accused persons under the Vietnam’s criminal procedure law nowadays

3 Research subject and scope

3.1 Research subject

The research subject of the dissertation is the rights and obligations of accused persons, methods and measures to implement the rights and obligations of accused persons in three aspects including reasoning, real law and implementation in practice, and applying the criminal procedure law for the accused persons in HCMC

3.2 Research scope

The dissertation analyzes and explains theoretical and practical issues on the rights and obligations of accused persons under the Vietnamese criminal procedure law It then distinguishes the legal status of the accused persons

from proceeding-conducting subjects and proceeding participants By examining activities of proceeding-conducting agencies, proceeding-conducting persons and proceeding participants, the dissertation analyzes methods, measures of implementing the rights and obligations of accused persons to clarify concept, nature, subjects, rights and obligations of the accused persons under the Vietnamese criminal procedure law

The dissertation seeks to examine, make statistics, and survey the reality

of regulations and enforcement of criminal procedure law on the legal status

of accused persons in HCMC It also points out limitations and propose solutions to improve the criminal procedure law These solutions contribute

to implementing effectively the legal status of accused persons in Vietnam

in general, and in HCMC in particular

- Regarding time: for legal documents, the dissertation mainly analyzes and evaluate regulations of Criminal Procedure Code 1988, 2003 and 2015, and legal documents

- Regarding administrative documents: statistical reports of law protection agencies, law enforcement agencies in HCMC

- Regarding survey data: the study tries to synthesize, analyze, evaluate and compare date from 2009 to 2019

4.2 Research methods

- Direct research method through actual survey, direct contact and exchange with researchers, people in charge and research in the field of politics and law

- Indirect research method by synthesizing and analyzing documents, especially the primary documents, comparing research matters among selected subjects

- Research approach based on the mode of enforcing the rights Accordingly, the study of accused persons in Vietnamese criminal proceedings through prosecution-based approach as a legal measure to exercise human rights, or more specifically, not only research on concept of accused persons, what do they have rights, but need to pay attention to the mechanism so that proceeding-conducting persons could enjoy full rights and strictly complying with obligations The approach based on the exercise of procedural rights is also the dialectical approach in a common relationship between the parties, the rights and obligations of this party will be the rights and obligations of other party, respectively In practice, proceedings will specify which agency and individual has the responsibility and obligation to ensure these rights of the accused persons, explaining why the law gives many rights for the accused persons but cannot implement Since then, we could find out problems, obstacles and resolve them in practice

To address the research tasks, the study utilizes multidisciplinary and interdisciplinary approach to the following specific research methods:

- Chapters 1 and 2: Using analysis, synthesis and comparison methods to build the concept of accused persons and their rights and obligations in the Vietnamese criminal proceedings, the bases for determining the legal status

of accused persons, namely:

+ Summarizing experience and scientific knowledge of pervious research works to make evaluation in the study so that the dissertation associates with reality and it has a higher scientific value

+ Conducting practical surveys to assess the reality of guaranteeing the rights and obligations of accused persons as well as other issues related to ensuring the accused person’s rights, obligations and powers of proceeding-conducting agencies, proceeding-conducting persons The surveys are conducted in HCMC, and then the study synthesizes, compares, analyzes data, and conclude relevant contents

- Chapter 3: The author uses the method of analysis, criminal statistics, exchanges with experts, and consulting their knowledge, experiences to clarify the legal status of accused persons in relation to the procedural subjects Contents related to the guarantee and enforcement of the rights of accused persons, the role and responsibility of the criminal proceedings system throughout the criminal proceedings, in which, it emphasizes activities of proceeding-conducting agencies, proceeding-conducting persons and proceeding participants including procurators, procuracies, judges, people's jurors, defendant’s agents and other proceeding participants who directly affect the legal status of accused persons, namely:

+ Collecting data on annual reports of agencies in HCMC such as The Procuracy, Court, Legal Committee of the People's Council, People's Committee, Judicial Reform Steering Committee and so on to analyze the reality of guaranteeing the rights and obligations of accused persons, as well as enforcing the rights, responsibilities, and obligations of the proceeding-conducting agencies and persons

+ Selecting and analyzing some typical cases to learn and evaluate the perception of competent individuals in proceedings and participate in the proceedings over the rights of the accused persons, evaluation of mechanism and conditions to ensure the rights of accused persons in HCMC

- Chapter 4 mainly utilizes the synthetic method, scientific forecasts about the trends and requirements to ensure the legal status of the accused persons, thenceforth, it proposes solutions to consolidate and strengthen the legal status of the accused persons

5 New contributions of the dissertation

The dissertation not only examines and explains the rights and obligations of the accused persons from the provisions of the law and legal application in practice, but also puts the accused person’s legal status into the system of criminal law policy, criminal procedure law, combining comparison, evaluation and propose suitable solutions and mechanism to ensure the rights and obligations of the accused persons under the

Vietnamese criminal procedure law In addition, the study examines the concept of accused person, their legal status under the 2015 Criminal Procedure Code, and practice of proceeding-conducting agencies, proceeding-conducting persons and proceeding participants to detect shortcomings, obstacles while applying criminal law, criminal procedure law Thenceforth, it clearly identifies the role and functions of accusation, defense and hearing, as well as responsibilities of proceeding-conducting agencies, proceeding-conducting persons must implement properly the law

so that the accused persons could exercise their rights without being obstructed or infringed upon

6 Theoretical and practical significance of the dissertation

The research findings of the dissertation can be seen as reference for researching theoretical issues of the legal protection agency and protection

of human rights By examining and analyzing theoretical basis and mechanism to ensure the enforcement of the rights and obligations of accused persons under the Vietnamese criminal procedure law, the dissertation may be a valuable material source for the state agencies, lawmakers in their works The dissertation’s conclusion and recommendation are the theoretical and practical basis Thus, organizations and individuals, especially lawyers, defenders could refer it to protect the accused persons, and having positive effects on proceeding-conducting agencies, proceeding-conducting persons and proceeding participants while implementing criminal law and criminal procedure law

7 Structure of the dissertation

Besides the introduction and conclusion, and references, the dissertation includes 4 chapters:

Chapter 1: Literature review

Chapter 2: Theoretical issues on the legal status of accused persons Chapter 3: The reality of the provisions on the legal status of accused persons and practice of enforcing law in HCMC

Chapter 4: Recommendation and solutions to ensure the legal status of accused persons

Chapter 1 LITERATURE REVIEW 1.1 Domestic research situation

1.1.1 Research works relating to theoretical basis

1.1.1.1 Relating to criminal policy

1.1.1.2 Relating to procedural functions

1.1.1.3 Relating to procedural model

1.1.1.4 Relating to human rights, citizen rights and defense rights

1.1.2 Research works examine overview of the 2015 Criminal Procedure Code relating to the dissertation’s contents

1.2 Foreign research situation

The content can be learned selectively to further improve the criminal justice system and criminal procedure law in Vietnam in the direction of ensuring human rights and the rights of accused persons in criminal procedure

1.3 Assessing research situation and the issues that need to be examined in the dissertation

1.3.1 The debating issues

Human rights of the accused and convicted persons is natural, so the law mainly regulates obligations, restrictions and how to regulate legally What are measures to protect the accused persons, there should be specific regulations on the concept of accused persons to determine procedural status and it is also a measure to conduct human rights Whether the legal status of accused persons is guaranteed or not when strengthening the application of other measures, in addition to custody, equality of rights and obligations between accuser and accused person

1.3.3 The issues need to be further examined

From the practice of criminal procedure in HCMC to propose solutions

to strengthen the legal status of accused persons, in which, emphasizing the role of accuser, have strict regulations on legal status of accuser is one of the measures to protect human rights and citizen rights of the accused persons, the role and responsibility of the elected bodies, avoid making

pressure over investigation agency, Procuracy, Court or weakening the Court’s independence, ensuring the law’s seriousness, respecting the judiciary’s jurisdiction so as to find out objective truth of the case, not making unjust and missing crimes Guaranteeing the legal status of accused persons to define an adequate limit for the accusers and accused persons are equal in organizational structure, qualifications, compliance with the law

1.4 Theoretical basis and research methods

How is the reality of enforcing the law on the legal status of accused persons under the Vietnamese criminal procedure law in HCMC and factors affecting the implementation process?

What are the requirements and solutions to ensure the legal status of accused persons and how should they be implemented?

1.4.2 Research theories

The dissertation based on the theoretical system of Marxist-Leninist philosophy; Ho Chi Minh Thought; views and guidelines of the Party and State on criminal policy and judicial reform in Vietnam in the period 2002 -

2020 Clarifying the provisions of the criminal procedure code 2015 (CPC 2015) on the legal status of accused persons; the relationship between accused persons and other subjects in the proceedings is also an important basis to address the research tasks of the dissertation

1.4.3 Research hypothesis

In order to further improve the CPC 2015 as well as implementing effectively regulations, the dissertation examines the legal status of accused persons (arrestees, detainees, defendants (Article 58, 59, 60, 61 of the CPC 2015) is greatly influenced by the legal status of other procedural subjects, especially the legal status of the competent persons Proposal: The CPC