Luận án Protecting the defendant’s rights during the hearing at first instance of criminal cases in the provincial-Level people’s courts in Vietnam nowadays

1. The necessity of the topic Regarding the jurisdiction of the hearing at first instance of criminal cases, Provincial-level People’s Court adjudicates particularly serious criminal cases with a penalty frame of more than 15 years imprisonment, life imprisonment, and death penalty. Because the criminal penalty applies to defendants against criminal cases at the provincial People’s Courts is severely, any error or “accident of justice” is prohibited for the any agencies or persons conducting legal proceedings. This is reason why the Provincial-level People’s Court must comply with requirements of trial operation more stringent than the same applied to District-level People’s Court in order to protect the defendant’s rights in the best way and prevent unfairness or wrongness in the hearing at first instance of criminal cases in Provincial-level People’s Court. The Party and State adopted many policies and measures to improve the quality of the trial of criminal cases in general, and the hearing at first instance of criminal cases in Provincial-level People’s Court in particular. One of these was to constantly improve the judicial capacity of judges, People’s jurors and procurators, perfect the organization, operation, and promote the role of attorneys and judicial assistance agencies. The above efforts were recognized in Criminal Law 1999 (amended 2009), Criminal Procedure law 2003, Constitution 2013, Law on Organization of People’s Court 2014, Law on Organization of the People’s Procuracy 2014, Criminal Law 2015, Criminal Procedure Law 2015. The policies and measures of the Party and the State had positive impacts on the quality of judicial agencies’ operations, including the quality of the hearing at first instance of criminal cases in Provincial-level People’s Court. The number of unjustified and unfair judgments of the hearing at first instance of criminal cases at the Provincial-level People’s Court violating procedures and the defendant’s rights was decreased

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HO CHI MINH NATIONAL ACADEMY OF POLITICS VO QUOC TUAN PROTECTING THE DEFENDANT’S RIGHTS DURING THE HEARING AT FIRST INSTANCE OF CRIMINAL CASES IN THE PROVINCIAL-LEVEL PEOPLE’S COURTS IN VIETNAM NOWADAYS SUMMARY OF THE PHD THESIS FIELD OF STUDY: THEORY AND HISTORY OF STATE AND LAW CODE: 62 38 0101 HA NOI - 2017 Thesis is completed at the HO CHI MINH NATIONAL ACADEMY OF POLITICS Supervisor: 1. ASSOC, PROF., DR. TRUONG HO HAI 2. DR. TRAN THAI DUONG Reviewer 1: ............................................................................. Reviewer 2: ............................................................................. Reviewer 3: ............................................................................. Thesis will be defended in front of thesis Committee at Academy level, at the Ho Chi Minh National Academy of Politics At hour date month year Thesis can be found at the National Library and the Library of Ho Chi Minh National Academy of Politics 1 INTRODUCTION 1. The necessity of the topic Regarding the jurisdiction of the hearing at first instance of criminal cases, Provincial-level People’s Court adjudicates particularly serious criminal cases with a penalty frame of more than 15 years imprisonment, life imprisonment, and death penalty. Because the criminal penalty applies to defendants against criminal cases at the provincial People’s Courts is severely, any error or “accident of justice” is prohibited for the any agencies or persons conducting legal proceedings. This is reason why the Provincial-level People’s Court must comply with requirements of trial operation more stringent than the same applied to District-level People’s Court in order to protect the defendant’s rights in the best way and prevent unfairness or wrongness in the hearing at first instance of criminal cases in Provincial-level People’s Court. The Party and State adopted many policies and measures to improve the quality of the trial of criminal cases in general, and the hearing at first instance of criminal cases in Provincial-level People’s Court in particular. One of these was to constantly improve the judicial capacity of judges, People’s jurors and procurators, perfect the organization, operation, and promote the role of attorneys and judicial assistance agencies. The above efforts were recognized in Criminal Law 1999 (amended 2009), Criminal Procedure law 2003, Constitution 2013, Law on Organization of People’s Court 2014, Law on Organization of the People’s Procuracy 2014, Criminal Law 2015, Criminal Procedure Law 2015. The policies and measures of the Party and the State had positive impacts on the quality of judicial agencies’ operations, including the quality of the hearing at first instance of criminal cases in Provincial-level People’s Court. The number of unjustified and unfair judgments of the hearing at first instance of criminal cases at the Provincial-level People’s Court violating procedures and the defendant’s rights was decreased. However, in fact, the defendant’s rights at some of the first instances criminal cases in Provincial-level People’s Court in some localities were not secured. Therefore, continuing to research on theoretical issues to make recommendations to ensure the defendant’s rights in the hearing at first instance of criminal cases in Provincial-level People’s Court is essential. From the above reasons, the author chose the topic: “Protecting the defendant’s rights during the hearing at first instance of criminal cases in the provincial-level People’s Courts in Vietnam nowadays” for my PhD Thesis in Theory and History of State and Law, code number 62.38.01.01. 2. Purpose and tasks of thesis 2.1. Purpose of thesis The thesis suggests view points and solutions for further protecting the defendant’s rights in the hearing at first instance of criminal cases in Vietnam 2 Provincial-level People’s Court. 2.2. Tasks of thesis To achieve the above goal, the following tasks is of thesis: - Observe and evaluate the domestic and foreign studies related to thesis topic; point out any issues to be discussed in thesis. - Analyze theoretical issues regarding to protection of the defendant’s rights at the first-instance of criminal cases of Provincial-level People’s Court. - Through the study of primary data (questionnaires and in-depth interviews) and secondary data (the figures obtained through the literatures and summary reports directly related to thesis), the author studied and evaluated the situation and content in the respect of protecting the defendant’s rights at the first-instance of criminal cases of Provincial-level People’s Court. - Analyze and propose view points and solutions for further protecting the defendant’s rights in the hearing at first instance of criminal cases in Vietnam Provincial-level People’s Court. 3. Subject and scope of studies 3.1. Subject of studies The subject of thesis is the protection of the defendant’s rights in the hearing at first instance of criminal cases of Provincial-level People’s Court, reflected in the provisions of law and the enforcement of law applied for the relevant subjects, such as the judges, People’s Jurors, Procurators, and Attorneys at the trial. 3.2. Scope of studies - Spatial scope: Thesis was studied within the territory of Vietnam. - Court: Thesis was studied within Provincial-level People’s Courts. - The hearing: Thesis was studied within the hearing at first instance of criminal cases. - Time: Thesis was studied within the period 2011 - 2016. 4. Methodology and research methods 4.1. Methodology Thesis was taken the basic viewpoints of Marxism-Leninism and Ho Chi Minh’s ideology on the State and socialist law as a basis for methodology. In particular, thesis was respected the viewpoints and policies of the Party on judicial reform, human right protection in the hearing at first instance of criminal cases as described in the Political Platform, and the Party’s documents from the 6th to the 12th Congress. 4.2. Research Methods Based on the Marxist-Leninist methodology, thesis used research methods, such as rights-based approach, analysis, synthesis; statistics - comparison, sociological investigation; theory and practice combination etc. 5. New contributions of thesis The thesis has new points of science as follows: - Developed concepts; analyzed the characteristics, roles, as well as elements of protecting the defendant’s rights in the hearing at first instance of criminal 3 cases of Provincial-level People’s Court. - Analyzed the contents and methods for protecting the defendant’s rights in the hearing at first instance of criminal cases of Provincial-level People’s Court. - Drew out the reference values in protecting the defendant’s rights in the hearing at first instance of criminal cases of Provincial-level People’s Court for Vietnam through the studies of human right protection experience in the hearing at first instance of criminal cases of courts in some countries around the world. - Analyzed and indicated the results, constraints and causes of the situations; on that basis, proposed the viewpoints and solutions for further protecting the defendant’s rights in the hearing at first instance of criminal cases of Vietnam Provincial-level People’s Court. 6. Theoretical and practical meanings of thesis For theory: The results of thesis provided a proper and sufficient awareness for Judges, People’s Jurors, Procurators, and Attorneys in respect of protecting the defendant’s rights. For practice: The results of thesis not only provided valuable reference for policy-makers, law-makers and law enforcement in respect of protecting the defendant’s rights in the hearing at first instance of criminal cases of Provincial- level People’s Court but also is used as a reference for graduate students in theory and history of state and law. 7. Structure of thesis In addition to the introduction, conclusion, references, thesis consists of 4 chapters, 13 periods. 4 Chapter 1 GENERAL OVERVIEW OF RELEVANT STUDIES RELATED TO THESIS 1.1. RELEVANT DOMESTIC STUDIES RELATED TO THE PROTECTION OF THE DEFENDANT’S RIGHTS IN THE HEARING AT FIRST INSTANCE OF CRIMINAL CASES OF PROVINCIAL-LEVEL PEOPLE’S COURT. The domestic studies related to thesis topic are divided into two groups as follows: 1) studies related to human right protection in criminal procedure; 2) studies related to the protection of defendant’s rights in the hearing at first instance of criminal cases of People’s Court; 3) studies related the protection of defendant’s rights in the hearing at first instance of criminal cases of Provincial- level People’s Court. These studies presented issues related to human rights in procedure in general, and criminal procedure, responsibilities of the State and agencies conducting legal proceedings in respect of human right protection, or studies on specific rights, such as rights of the accused, defendants, victims etc. However, there was no comprehensive study on protecting the defendant’s rights in the hearing at first instance of criminal cases of Provincial-level People’s Court; especially in the context of the Constitution 2013, Law on Organization of People’s Court 2014 recognizing the function of the People’s Court is to protect justice and protect human rights. 1.2. RELEVANT FOREIGN STUDIES RELATED TO THE PROTECTION OF THE DEFENDANT’S RIGHTS IN THE HEARING AT FIRST INSTANCE OF CRIMINAL CASES OF THE COURT The foreign studies related to thesis topic, at different angles, discussed the issues of the judicial system and proceedings of certain countries, human rights in proceedings, role of courts in protecting human rights, rights of the offender, rights of the accused, rights of the juvenile in criminal procedure etc. However, by survey of foreign literatures, there was no comprehensive and systemic study on human rights in the hearing at first instance of criminal cases of the courts in Vietnam. 1.3. EVALUATION OF THE RESULTS OF STUDIES RELATED TO THESIS TOPIC AND ISSUES OF CONTINUING RESEARCH IN THESIS 1.3.1. Evaluation of results of studies related to thesis topic The studies related to theoretical issues in respect of human right protection in the hearing at first instance of criminal cases in Provincial-level People’s Court discussed the following issues: - Develop concept and analyze the concept of human rights and citizen rights; human right protection in criminal procedure; listed some human rights in the criminal justice field through the stages of prosecution, investigation, prosecution, adjudication and enforcement of criminal cases. - Describe functions, missions, powers and responsibilities of the agencies conducting legal proceedings, who conducted the proceedings, organizations and 5 citizens involved in the trials of criminal cases. - Research and propose some viewpoints, solutions in the human right protection (Including the defendant’s rights) in judicial activities in Vietnam today. - Overseas studies referred to the court’s organizational model and litigation principles ensuring the independence of the courts. Besides, overseas studies referred to human right protection, defendant’s rights at criminal trials of the responsibility of the subjects in the trial, which emphasized the judges, jurors etc. 1.1.1. 1.3.2. Issues of continuing research in thesis For theory: develop and analyze the concept; analyze contents and methods for protecting the defendant’s rights in the hearing at first instance of criminal cases in Provincial-level People’s Court at the trial, including 4 stages: starting procedures, interrogation, debate, deliberation and sentencing. At the same time, thesis analyzed role of the protection and the factors affecting the protection of the defendant’s rights in the hearing at first instance of criminal cases in Vietnam Provincial-level People’s Court. Study subject was on law and actual situation of protecting the defendant’s rights in the hearing at first instance of criminal cases in some countries in the world and provided the reference values for Vietnam. For practice, issues to be continued in study and resolution are comprehensive analysis and evaluation of the actual situation of protecting the defendant’s rights in the hearing at first instance of criminal cases in Vietnam Provincial-level People’s Court 2011-2016. At the same time, thesis analyzed and showed the cause of the actual situation of protecting the defendant’s rights in the hearing at first instance of criminal cases in Vietnam Provincial-level People’s Court. From that basis, thesis proposed perspectives and solutions for further protecting the defendant’s rights in the hearing at first instance of criminal cases in Vietnam Provincial-level People’s Court. 6 Chapter 2 THEORETICAL BASIS OF THE STUDIES ON PROTECTING THE DEFENDANT’S RIGHTS IN THE HEARING AT FIRST INSTANCE OF CRIMINAL CASES IN PROVINCIAL-LEVEL PEOPLE’S COURT 2.1. CONCEPTS, CHARACTERISTICS, ROLE OF PROTECTING THE DEFENDANT’S RIGHTS IN THE HEARING AT FIRST INSTANCE OF CRIMINAL CASES IN PROVINCIAL-LEVEL PEOPLE’S COURT 2.1.1. Concept of the defendant’s rights in the hearing at first instance of criminal cases Defendant’s rights are legal values, needs and interests, in accordance with international and national standards and recognized in the Constitution and other legal documents when participating in legal relations of criminal procedure during the trial period. 2.1.2. Concept of protecting the defendant’s rights in the hearing at first instance of criminal cases in Provincial-level People’s Court. Protection of human rights and civil rights is the respect and recognition of those rights by law; at the same time, the subjects (state agencies, social organizations, individuals) must fulfill their obligations and create conditions for the subjects to use their rights and enjoy those rights in practice. Protecting the defendant’s rights in the hearing at first instance of criminal cases in the Provincial-level People’s Court is that the State officially recognizes the defendant’s rights by law; and through the trial of the hearing at first instance of criminal cases performed by a provincial-level People’s Court, the subjects may perform their obligations and responsibilities so that the defendants can access and enjoy their rights in accordance with regulations of law. 2.1.3. Characteristics of protecting the defendant’s rights in the hearing at first instance of criminal cases in Provincial-level People’s Court Protecting the defendant’s rights in the hearing at first instance of criminal cases of Provincial-level People’s Court has the following characteristics: - Defendants are subjected to the most severe punishment of the hearing at first instance of criminal cases at the district level, which required the best defense of the defendant’s rights, limiting the unfairness and wrongness in the hearing at first instance of criminal cases of Provincial-level People’s Court. - In some criminal cases in Provincial-level People’s Court, defendants are entitled to certain rights, which, in accordance with regulation of court law, must satisfy the conditions that the defendants are juvenile and must have a legal representative at the hearing. If a defendant is prosecuted the highest penalty frame for 20 years, life imprisonment, and death penalty, it is required for an advocate. If the defendants are ethnic people, it is required an interpreter, etc. - Responsibility of Provincial-level People’s Court and other subjects must be larger and heavier than the same of District-level People’s Court. Specifically, compared to District-level People’s Court, Provincial-level People’s Court makes 7 the trial of criminal cases where defendants have been conducted legal proceedings or cases at many levels, branches, localities and complex areas; cases of religious dignitaries or high prestige among ethnic minorities, criminal cases involving foreigners, the defendant living in foreign country or property related to cases of foreigners. - Depending on the crime situation, requirements of local crime prevention efforts at certain times when a first instance of criminal case must be resolved at Provincial-level People’s Court. Provincial-level People’s Court takes up for a trial when they are deemed necessary these cases. Therefore, Provincial-level People’s Court and the authorities must prepare the best conditions to protect the defendant’s rights. 2.1.4. The role of protecting the defendant’s rights in the hearing at first instance of criminal cases in Provincial-level People’s Court - Protecting the defendant’s rights in the hearing at first instance of criminal cases in Provincial-level People’s Court shows the determination of our Party and State in judicial reform for human rights. - Protecting the defendant’s rights in the hearing at first instance of criminal cases in Provincial-level People’s Court promotes the modern justice, respects for and protects human rights - Protecting the defendant’s rights in the hearing at first instance of criminal cases in Provincial-level People’s Court limits violations during the application of criminal sanctions to defendants. - Protecting the defendant’s rights in the hearing at first instance of criminal cases in Provincial-level People’s Court properly handles the process of proving the criminal case; ensures the transparency, democracy, and publicity in procedural activities; and properly implements the contents of rules and principles in criminal procedure. 2.2. CONTENT AND METHOD FOR PROTECTING THE DEFENDANT’S RIGHTS IN THE HEARING AT FIRST INSTANCE OF CRIMINAL CASES IN PROVINCIAL-LEVEL PEOPLE’S COURT Content and method for protecting the defendant’s rights in the hearing at first instance of criminal cases in Provincial-level People’s Court were studied on two basic aspects as follows: 2.2.1. Protecting the defendant’s rights in the hearing at first instance of criminal cases in Provincial-level People’s Court in accordance with regulations of law. Protecting the defendant’s rights in the hearing at first instance of criminal cases in Provincial-level People’s Court in accordance with regulations of law is the overall development and issuance of legal regulations, creating a solid legal corridor to record, respect, and create the best condition for defendants to use their rights during the trial. It is able to confirm that protecting the defendant’s rights in the hearing at first instance of criminal cases in Provincial-level People’s Court in accordance with regulations of law is shown in the following aspects: the number 8 of rights, criteria for evaluation, as well as the recognition manner of law on protection of defendant’s rights. In term of the goal, law on protection of defendant’s rights in the hearing at first instance of criminal cases in Provincial- level People’s Court must have specific and feasible regulations so that defendants may use their rights at the trial. At each stage of the proceedings, defendants may be recognized by law with corresponding rights. The defendant’s rights have a close relation. Law on defendant’s rights and protection of defendant’s rights in the hearing at first instance of criminal cases in Provincial- level People’s Court is provided for the legal documents with different levels of legal effect. 2.2.2. Protecting the defendant’s rights in the hea
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