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VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES HOANG VAN HANH ENSURING THE PRINCIPLE OF PRESUMPTION OF INNOCENCE IN VIETNAMESE CRIMINAL PROCEDURE LAW Major: Criminal law and criminal procedure law Code: 9.38.01.04 DOCTORAL THESIS HANOI, 2021 This thesis is submitted at: GRADUATE ACADEMY OF SOCIAL SCIENCES Supervisor: ASSOC PROF.DR HOANG THI MINH SON Reviewer 1: Assoc Prof Dr Trinh Tien Viet Reviewer 2: Assoc Prof Dr Tran Huu Trang Reviewer 3: Assoc Prof Dr Tran Dinh Nha This thesis is defended before the Doctoral Thesis Panel at: The Graduate Academy of Social Sciences: at , on day month 202 The thesis is available for reading at: - Graduate Academy of Social Sciences Library - Vietnam National Library INTRODUCTION Importance of the research In criminal proceedings, people facing criminal charges are prone to victims of human rights infringement and wrong convictions As a matter of fact, agencies conducting criminal proceedings are not always able to clarify and “set up a crime scene” in a comprehensive and objective manner anytime and anywhere to illustrate all circumstances and developments of a criminal case as it is committed in practice There are still a few of wrong judgments in practical adjudication Logically, these wrong judgments are closely linked to violation of human rights Therefore, to minimize such violation of human rights, criminal procedure law provides for strict principles, orders, and procedures for compliance by agencies and persons conducting proceedings as well as by relevant agencies and organizations to avoid mistakes, including the principle of presumption of innocence The principle of presumption of innocence first originated in the ancient Rome in the VIth century when the Roman Emperor issued a compendium of Roman Law It was confirmed that the burden of proof lied upon him who affirmed, not on him who denied This burden of proof was only applied in civil proceedings by judges It was considered the origin of the principle of presumption of innocence However, the principle of presumption of innocence was only recognised as a legal instrument by Jean Lemoine, a French legal expert to advocate for his argument that most people were not criminals Being one of fundamental principles in criminal proceedings, the principle of presumption of innocence is considered a tool for protection of human rights in many countries The principle was officially acknowledged in Article of the French Declaration of the Rights of Man and of the Citizen 1789, confirming “as every man is presumed innocent until he has been declared guilty, if it should be considered necessary to arrest him, any undue harshness that is not required to secure his person must be severely curbed by law” Subsequently, “the principle of presumption of innocence” is confirmed a fundamental principle in several international conventions and treaties as well as in national criminal procedure law in many countries In 1982, Vietnam joined the International Covenant on Civil and Political Rights (adopted in 1966) and thus has committed to implement its principles including the principle of presumption of innocence The principle of presumption of innocence was indirectly acknowledged as a fundamental principle in the first Criminal Procedure Code (CPC) of Vietnam (adopted in 1988) (Article 10), a basic citizen’s right in the Constitution 1992 (Article 72), a human right in the Constitution 2013 (Paragraph Article 31) Subsequently, the principle of presumption of innocence is further institutionalized in provisions of the CPC 2015 (Article 13) Basically, the principle of presumption of innocence confirms that an accused person is deemed innocent until his guilt is evidenced according to the procedures and formalities as defined in the law If grounds for conviction are insufficient, competent authorities must acquit that person However, there are shortcomings both in terms of institutionalization and enforcement of the principle of presumption of innocence in criminal proceedings in practice, especially on how to ensure the principle In addition, awareness and compliance with this principle also show limitations, reflecting in some criminal cases where persons conducting criminal proceedings apply extortion of deposition and corporal punishment, or issue wrong judgments against the accused and defendant based on case dossiers but not based on results of adversarial procedures Detainees, suspects, or defendants are often considered criminals or even brutally treated despites the fact that some of them are acquitted at court Accordingly, criminal proceedings are being conducted on the basis of “presumption of guilt” but not “presumption of innocence” This causes considerable damages to the detainees, suspects, and defendants, infringing upon their reputation and dignity, resulting in wrong judgments in criminal proceedings Therefore, ensuring the principle of presumption of innocence is an crucial condition for meeting requirements of judicial reform and effective enforcement of the Constitution 2013 and the CPC 2015, development of a socialist rule-of-law state in Vietnam, protection of human rights and citizens’ freedoms in criminal proceedings, avoiding wrong judgments and severe consequences against the innocent persons, their families, and the society It is thus important to conduct a research on theoretical and practical issues relating to the principle of presumption of innocence, identifying shortcomings and gaps in legal framework and law enforcement, making recommendations on how to ensure the principle of presumption of innocence, especially focusing on conditions to ensure the principle of presumption of innocence at different stages in criminal proceedings, ensuring equality in criminal proceedings between the State on one side with its powerful competent proceeding agencies and the suspects, detainees, defendants on the other side as disadvantaged parties Due to its importance, the author has decided to select the issue of “Ensuring the principle of presumption of innocence in Vietnamese criminal procedure law” as topic for this doctoral thesis Overall objective and specific purposes of research 2.1 Overall objective of research: based on analysis of theoretical and practical issues on ensuring the principle of presumption of innocence in Vietnamese criminal procedure law, the thesis makes assessments and proposes recommendations and measures for effective implementation of this principle 2.2 Specific purposes of research: to achieve the above-mentioned overall objective, the thesis identifies specific purposes as follows: Firstly, conducting literature review of national and international works on ensuring effective implementation of the principle of presumption of innocence in criminal proceedings, analysing issues inherited from these works and issues for further research and clarification in the thesis Secondly, conducting research to clarify theoretical issues to ensure the implementation of the principle of presumption of innocence in criminal procedure law Thirdly, analysis of legal framework and current enforcement of provisions on ensuring the principle of presumption of innocence in Vietnamese criminal procedure law, pointing out limitations, shortcomings, and main reasons Fourthly, proposing recommendations and measures to improve effectiveness of the implementation of the principle of presumption of innocence in Vietnamese criminal procedure law Subjects and scope of research 3.1 Subjects of research Subjects of the thesis are theoretical and legal framework for ensuring the principle of presumption of innocence in criminal proceedings and the current situation of the implementation of the principle of presumption of innocence in Vietnamese criminal procedure law 3.2 Scope of research In terms of content, the thesis focuses on analysing theoretical and practical issues on ensuring the principle of presumption of innocence in criminal proceedings by agencies conducting criminal proceedings throughout different stages in Vietnam In terms of space, the thesis analyses the current situation of law enforcement relating to ensuring the principle of presumption of innocence in criminal proceedings nationwide In terms of timing, the thesis looks at the current situation of ensuring the principle of presumption of innocence in criminal proceedings by agencies conducting criminal proceedings in Vietnam from July 2016 when the CPC 2015 entered into force to the end of 2020, making comparison with the current situation of criminal law enforcement prior to the enforcement of the CPC 2015 in some criminal cases with wrong judgments Research methodologies and methods The research is conducted in line with methodologies of Marxism and Leninism on dialectical materialism and historical materialism Hochiminh thoughts, guidance and directions of the Party and the State on judicial reform in criminal law and criminal procedure law to ensure the principle of presumption of innocence and protection of human rights To conduct research on the topic, the thesis also uses other methods such as analytical, synthetical, systematic, historical, comparative, statistical, casestudy, sociological, etc., methods to analyse and clarify scientific issues that are subjects of the research In addition, multi-sector, and inter-sector approaches in legal research on the principle of presumption of innocence in criminal proceedings and other methods are used in the thesis including inductive and deductive methods, descriptive method, empirical review method, observational method, etc., to analyse national and international scientific issues and experiences New scientific contributions of the thesis As a comprehensive and systematic doctoral thesis on ensuring the principle of presumption of innocence in criminal proceedings in Vietnam, its new contributions are as follows: Firstly, the thesis develops a theoretical framework on ensuring the presumption of innocence in criminal procedure law, including definition, features of the presumption of innocence; content, scope, importance, and measures to ensure the presumption of innocence; subjects responsible for implementation of the presumption of innocence, subjects entitled to the right to presumption of innocence, and measures to ensure the presumption of innocence in criminal procedure law Secondly, the thesis analyses levels of ensuring the presumption of innocence in Vietnamese criminal procedure law prior to and after enforcement of the Criminal Procedure Code 2015, comparing with international standards and criminal procedure law in some countries At the same time, the thesis also assesses the current situation of ensuring the presumption of innocence in criminal procedure law in Vietnam as illustrated by typical criminal cases, and pointing out positive outcomes, disadvantages, obstacles, and reasons Thirdly, the thesis identifies guiding viewpoints, making recommendations on comprehensive measures to improve provisions of Vietnamese criminal procedure law on the presumption of innocence, reforming the criminal procedure model, the fundamental principles, and other measures to increase effectiveness of implementation of the presumption of innocence in criminal procedure law in Vietnam Theoretical and practical contributions of the thesis The thesis makes theoretical and practical contributions as follows: In terms of theories, the thesis makes contributions to analysis of legal framework on ensuring the principle of presumption of innocence in criminal proceedings based on the economic, social, and political conditions of Vietnam in line with international standards on human rights Research results of the thesis have made contributions to development of general theories on ensuring the principle of presumption of innocence in criminal proceedings in Vietnam, including definition, contents, methods, international standards on ensuring principle of presumption of innocence in criminal proceedings In terms of practical impacts, the thesis has certain practical impacts Results of the thesis might become reference materials in teaching, studying, and doing research on criminal procedure law At the same time, results of the thesis might be useful for improvement of legal framework and law enforcement on ensuring the principle of presumption of innocence in criminal procedure law in Vietnam Thesis structure Besides the introduction, the conclusion, list of reference, and annexes, the thesis has 04 chapters: Chapter 1: Literature review Chapter 2: Theoretical issues on ensuring the principle of presumption of innocence in criminal proceedings Chapter 3: Current legal framework and law enforcement on ensuring the principle of presumption of innocence in criminal procedure law in Vietnam Chapter 4: Recommendations and measures for improvement of legal framework and law enforcement on ensuring the principle of presumption of innocence in criminal proceedings in Vietnam Chapter LITERATURE REVIEW 1.1 Literature review of Vietnamese works There are several scientific works on the principle of presumption of innocence at different angles and scopes of criminal procedure law in Vietnam Most of these works focus on analysing subjects of the principle of presumption of innocence, contents of the principle, measures to ensure the principle in practice based on results of theoretical research, assessment of the current situation and measures for improvement of legal framework First, it is worth to review the doctoral thesis conducted in 2010 and subsequently published as a book titled “The principle of presumption of innocence in Vietnamese criminal procedure law” by Nguyen Thanh Long (National Political Publishing House, 2011) The author analysed application of this principle in stages of institution, investigation, first-instance, and appeal trials to make recommendations on revisions of this principle However, conclusions of the thesis mainly related to revisions of the Criminal Procedure Code 2003 Under the current Constitution 2013 and CPC 2015, some of these conclusions are no longer valid The book titled “Fundamental principles of Vietnamese criminal procedure law” by Hoang Thi Son and Bui Kien Dien (People’s Public Security Publishing House, 1999) focused on analysing contents of fundamental principles in criminal proceedings, including the principle of presumption of innocence This is considered “a guiding principle for the whole criminal proceedings The principle not only confirms that the court has the power to make final decision on whether a citizen is guilty or not but also requires proper mindset of proceeding subjects in all stages of criminal proceedings” After the CPC 2015 was issued, Nguyen Hoa Binh and other authors published the book “New points of the CPC 2015” (National Political Publishing House, 2016) In his thematic research on Fundamental principles of Vietnam criminal proceedings under the CPC 2015, Prof.DSc Dao Tri Uc analysed contents of principles in criminal proceedings, confirming that the principle of presumption of innocence is addressed to the accused Presumption is based on inference of innocence but not guilt In addition, other papers on this issue include: Some thoughts on the principle of presumption of innocence in Vietnamese criminal procedure law by Dinh The Hung in People’s Procuracy Journal, Volume No 3/2010; Ensuring the principle of presumption of innocence and consistency of the Constitution, the Penal Code, and the Criminal Procedure Code by Trinh Tien Viet on the Legislative Studies Journal, Volume No 5/2013; The principle of presumption of innocence by Nguyen Thai Phuc on the State and Law Journal, Volume No 11/2016 Noticeably, the paper on “The principle of presumption of innocence in criminal proceedings in Vietnam” by A/Prof Dr Tran Van Do (at a workshop at University of Vinh, 2017) and the paper on The principle of presumption of innocence in legislation and in criminal proceedings in Vietnam by A/Pro.Dr Nguyen Ngoc Chi on Sciences Journal (Law), Volume 01/2020 pointed out issues for improvement to ensure the principle of presumption of innocence in practice, avoiding possibility of considering the accused as guilty by persons conducting proceedings, and convictions without sound evidences 1.2 Literature review of international works There is no international work on the principle of presumption of innocence and how to ensure this principle in Vietnam However, some papers look at the principle at the national level Notable works include: In his paper on “The principle of presumption of innocence Canada: comparative review with Vietnamese principle” by Sasbastien Lafrance (2020) in an online workshop, the author compared the principle of presumption of innocence in Vietnam and Canada in terms of interpretation and application, making recommendations on improvement of this principle In the paper on “The principle of presumption of innocence in the US law” by Xuan Thao Nguyen (2020) in an online workshop, the author analysed interpretation of the US Supreme Court on the principle of presumption of innocence and a “reasonable doubt”, examining case studies to illustrate a “reasonable doubt” and specifying “the principle of presumption of innocence” In his paper on “The principle of presumption of innocence in China” by Zhiyuan Guo (2020), the author believed that the principle of presumption of innocence was a golden principle in criminal proceedings, serving as a special shield to protect rights of the accused, and ensuring fair trial In his book titled A presumption of innocence: the amazing case of Patrick Meehan by Kennedy, Ludovic Henry (1996), the author examined developments of settlement of the case Patrick Meehan He was finally acquitted thanks to strict application of the principle of presumption of innocence In addition, other works also mentioned the principle of presumption of innocence in criminal proceedings through investigation and prosecution at different levels including the book titled “Prosecuting serious Human Right violations” by Anja Seibert-Fohr at Oxford University, the UK, published in 2009, the book titled “Outline of the U.S Legal System” published in 2004 and the book titled “French Criminal Justice - A Comparative Account of the Investigation and Prosecution of Crime in France” by Jacqueline published in 2005, etc 1.3 Assessment of results of literature review Based on results of literature review of national and international works, it is observed that the principle of presumption of innocence and how to ensure the implementation of this principle and other principles in criminal proceedings in general are analysed at different angles and scopes by various authors The PhD candidate is grateful to inherit results of these diverse works, identifying and clarifying new contributions of the thesis In general, all research works relating to the topic of the thesis highlight importance of providing for the principle of presumption of innocence as a fundamental principle in criminal proceedings, contents, and importance of the principle, making recommendations on how to ensure the implementation of this principle in practice Other works not directly analyse the principle of presumption of innocence but create theoretical of previous works mostly focused on improvement of contents of the principle Meanwhile, in principle, shortcomings of the CPC 2003 are already fixed by provisions of the CPC 2015 Thus, these recommendations are no longer valid In addition, there are only a few of other research works on measures to ensure the principle of presumption of innocence and thus not meet practical requirements 1.3.3 Issues for further research The thesis highlights issues for further research as follows: First, clarification of definition, features, contents, importance of the principle of presumption of innocence, theoretical issues on ensuring the principle of presumption of innocence in criminal procedure law in practice in line with provisions of the Constitution 2013 and the CPC 2015 Second, analysis of current provisions of criminal law on ensuring the principle of presumption of innocence in criminal proceedings in Vietnam Third, research and review of practical issues on ensuring the principle of presumption of innocence in Vietnamese criminal proceedings to assess achievements, shortcomings, obstacles, and reasons Fourth, analysis of new requirements, proposing strategic measures in the new context of developing a socialist rule of law state in Vietnam to protect human rights in general and in criminal proceedings relating to ensuring the principle of presumption of innocence 1.4 Theoretical framework, research questions and assumptions 1.4.1 Theoretical framework When conducting research on the topic of the thesis, the author examines theoretical framework on protection of human rights in criminal proceedings, judicial reform, development of an advanced judicial system, improvement of the socialist rule of law state, consistency of principles of criminal proceedings, ensuring the fair trial principle 1.4.2 Research questions and assumptions 1.4.2.1 Research questions The thesis focuses on answering questions as follows: - What is the principle of presumption of innocence? Definition and measures to ensure the principle of presumption of innocence? - What are scientific viewpoints on ensuring the principle of presumption of innocence in criminal procedure law? What are definition, contents, and importance of the principle of presumption of innocence in criminal procedure law? What are methods and conditions for ensuring effective enforcement of the principle of presumption of innocence in criminal procedure law? - What are current provisions of Vietnamese criminal procedure law on the principle of presumption of innocence and how to ensure the principle of presumption of innocence? Are these provisions legally complete? Does the current situation of ensuring the principle of presumption of innocence meet the requirements of protection of justice, human rights, and freedoms of citizens? - In the context of judicial reform and development of a socialist rule of law state in Vietnam, what are recommendations and measures to improve institutional framework, conditions, methods for effective enforcement of the principle of presumption of innocence in criminal procedure law in Vietnam? 1.4.2.2 Research assumptions As a fundamental principle of criminal proceedings, it is important to clarify theoretical issues on how to ensure the principle of presumption of innocence fully and consistently in criminal procedure law and strict implementation of the principle in practice Principles of criminal proceedings are legal institutions, reflecting in normative provisions of criminal procedure law, showing the nature of criminal proceedings, serving as guiding principles for criminal proceeding activities and behaviours as required by law Additionally, the principle of presumption of innocence is specified in the CPC 2015 as a fundamental principle of criminal proceedings However, it is essential to interpret the principle of presumption of innocence fully and comprehensively, avoiding omission of criminals and wrong conviction against innocent persons, proposing recommendations and measures to improve legal framework, and facilitating effective enforcement of this principle in practice Chapter THEORETICAL ISSUES ON ENSURING THE PRINCIPLE OF PRESUMPTION OF INNOCENCE IN CRIMINAL PROCEEDINGS 2.1 Definition and importance of ensuring the principle of presumption of innocence in criminal proceedings Principles of criminal proceedings serve as guiding principles and directions in the whole or part of important stages of criminal proceedings during development and enforcement of criminal procedure law These principles reflect criminal policies and viewpoints in settlement of criminal cases of the Party and the Government, i.e., to timely detect, promptly dealing, and fairly hearing of crimes in line with provisions of the law, avoiding omission of criminals and wrong conviction against innocent persons Therefore, it is important to strictly comply with fundamental principles of criminal procedure law during development and enforcement of provisions of the law to settle criminal cases Fundamental principles of criminal proceedings serve as guiding directions in the whole or part of development and enforcement of criminal procedure law, ensuring democracy, equality, protection of human rights, and proper settlement of criminal cases The term “presumption” derives from the Latin “praesumptino”, meaning an issue is presumed true until being proved otherwise The principle of presumption of innocence is only officially considered a legal instrument by a French legal expert, Jean Lemoine to advocate for his legal argument that most people are not criminals The principle of presumption of innocence was acknowledged in Article of the French Declaration of the Rights of Man and of the Citizen on 26 August 1789, a milestone in history of the principle of presumption of innocence Subsequently, this principle was specified in Article 11 of the Universal Declaration of Human Rights 1948 and Article 14 of the United Nations International Covenant on Civil and Political Rights 1966 Thus, the principle of presumption of innocence is not only recognized in international law but also in national criminal procedure law in many countries The principle of presumption of innocence is the guiding principle for settlement of criminal cases, under which the accused is considered innocent until being proved guilty in accordance with orders and procedures of the law and with a valid court judgment The principle of presumption of innocence in criminal procedure law includes main contents as follows: First, the accused is considered innocent until the suspected crime is proved in accordance with orders and procedures of the criminal procedure code Second, the accused is only found guilty when the act of committing crime is confirmed by a valid judgment issued by a competent court Third, all doubts about the fault of the accused must be interpreted in favour of him/her Therefore, as the principle of presumption of innocence is considered a basic human right of the accused, ensuring the principle of presumption of innocence also means ensuring the rights of the accused As a result, effective implementation of this principle will create legal bases for prevention of abuse of power and violation of the right to presumption of innocence Ensuring the principle of presumption of innocence in criminal procedure law means creating necessary and sufficient conditions by competent persons and agencies conducting criminal proceedings for the accused to remain innocent until the act of committing crime (if any) is proved in accordance with orders and procedures of the law and is confirmed by a valid judgment of a competent court On this basis, the thesis highlights importance of ensuring the principle of presumption of innocence in criminal procedure law Accordingly, ensuring the principle of presumption of innocence in criminal proceedings not only makes contributions to protection of human rights of the accused, prevention of violations of proceeding agencies that might result in wrong judgments, clarifying responsibilities of subjects conducting criminal proceedings in proving the act of committing crime of the accused but also ensures that the right to presumption of innocence is applied in favour of the accused 2.2 subjects responsible for ensuring the principle of presumption of innocence and subjects entitled to the right to presumption of innocence in criminal procedure law Actors and importance of ensuring the principle of presumption of innocence in criminal procedure law are as follows: First, subjects responsible for ensuring the principle of presumption of innocence are agencies conducting criminal proceedings while persons conducting criminal proceedings are directly responsible for ensuring the principle throughout the proceedings Second, subjects entitled to the right to presumption of innocence depend on identification of who are entitled to the right to presumption of innocence “The accused” include those are arrested, temporarily detained, investigated, prosecuted, and trialled (including in cases of review of valid judgments in accordance with procedures of cassation and re-opening) 2.3 Measures to ensure the principle of presumption of innocence in criminal procedure law Therefore, to ensure this principle, it is essential to apply measures as follows: First, development of consistent awareness of agencies and persons conducting criminal proceedings on contents and importance of the principle of presumption of innocence Second, competent agencies and persons conducting criminal proceedings must properly fulfil the burden of proof Third, agencies conducting criminal proceedings must ensure the rights of the accused, including the right to presumption of innocence throughout stages of criminal proceedings Fourth, ensuring fair trial in accordance with provisions of the law and a just and reasonable judgment Fifth, ensuring the consistency of principles relating to the principle of presumption of innocence 2.4 Factors for ensuring the principle of presumption of innocence in criminal procedure law Factors for ensuring the principle of presumption of innocence in criminal procedure law include improvement of the legal system, especially the criminal procedure law; capacity, qualification, ethics, responsibility of persons conducting criminal proceedings; inspection, monitoring, and supervision of competent agencies as well as infrastructure, working conditions, renumerations of persons conducting criminal proceedings Chapter CURRENT LEGAL FRAMEWORK AND ENFORCEMENT OF THE PRINCIPLE OF PRESUMPTION OF INNOCENCE IN VIETNAMESE CRIMINAL PROCEDURE LAW 3.1 Current legal framework on ensuring the principle of presumption of innocence in Vietnamese criminal procedure law 3.1.1 Overview of current legal framework on ensuring the principle of presumption of innocence prior to enforcement of the CPC 2015 In Vietnam, before the CPC 2015 entered into force, provisions on the principle of presumption of innocence were reflected throughout important legislative milestones including the Constitutions in 1946, 1959 and 1980, the CPC 1988, the Constitution 1992, and the CPC 2003 While the principle was not officially provided for in criminal procedure law, part of its contents was recognized in Article of the CPC 2003 The Constitution 2013 for the first time fully recognized all contents of the principle of presumption of innocence Accordingly, “A person charged with a criminal offense shall be presumed innocent until proven guilty according to a legally established procedure and the sentence of the court takes legal effect …” On this basis, to ensure the implementation of the presumption of innocence, the criminal procedure code provides for fundamental principles relating to this principle, responsibilities and duties of subjects, rights of the defence lawyers, requirements of first instance and appeal trial procedures where judges and lay assessors adjudicate independently and comply solely with the law, etc Therefore, the principle of presumption of innocence, as it is called, is only officially recognized in the Constitution 2013, and subsequently specified in Article 13 on the principle of presumption of innocence in the CPC 2015 At the same time, this principle is applied throughout different stages of criminal proceedings, starting from the time of identifying the suspect or the accused, or the defendant and ending when a judgment issued by the court becomes valid 3.1.2 Current legal framework on ensuring the principle of presumption of innocence in Vietnamese criminal procedure law 3.1.2.1 Provisions on subjects responsible for ensuring the principle of presumption of innocence Under the criminal procedure law, during the investigation, prosecution, and trial, competent agencies and persons conducting criminal proceedings have the rights and duties to apply all legitimate measures to determine facts of the cases in an objective, comprehensive and complete manner, clarifying proofs of guilt and proofs of innocence, and identifying aggravating and extenuating circumstances of the accused The burden of proof in criminal cases belongs to agencies conducting criminal proceedings Therefore, subjects responsible for ensuring the principle of presumption of innocence in criminal proceedings are agencies and persons conducting criminal proceedings throughout stages of criminal proceedings and they must be responsible for their behaviours and decisions 3.1.2.2 Provisions on subjects entitled to the right to presumption of innocence The right to presumption of innocence is a basic right of citizens In criminal proceedings, this right is not only applied to the accused but also to the suspect who are subject to proceeding measures To avoid authoritative tendency of agencies conducting criminal proceedings, the law provides for the right to defence for the accused to protect themselves and to prove that they are innocent against charges of agencies conducting criminal proceedings Therefore, compared to previous legal documents, the CPC 2015 has expanded the scope of subjects entitled to the right to presumption of innocence Accordingly, persons facing charges consist of the arrestees, the detainees, the accused, and the defendants Rights and obligations of these persons are provided for in Article 58, 59, 60 and 61 of the CPC 2015 3.1.2.3 Provisions on measures for ensuring the principle of presumption of innocence To ensure the implementation and objectives of the principle of presumption of innocence, the criminal procedure code provides for strict application and compliance of measures by competent agencies and persons conducting criminal proceedings as follows: First, agencies conducting criminal proceedings must strictly apply and comply with orders and procedures on the burden of proof specified in the criminal procedure code Second, agencies conducting criminal proceedings must apply legitimate measures specified in the criminal procedure code to determine facts of the case in an objective, comprehensive and complete manner Third, the court must ensure democratic, objective, and fair trial in compliance with fundamental principles of the criminal procedure code Fourth, if evidence for conviction is insufficient, the court must acquit the accused 3.2 Current situation of ensuring the principle of presumption of innocence in Vietnamese criminal procedure law 3.2.1 Current situation of application of fundamental principles and the principle of presumption of innocence of the criminal procedure law prior to 2015 Prior to 2015, the criminal procedure code did not have any specific provision on the principle of presumption of innocence Instead, Article of the CPC 2003 specified “No one is found guilty until a judgment issued by a court becomes valid” and Article 10 provided for “Determination of facts in a case.” Within their powers and duties, agencies conducting criminal proceedings must apply proper measures to identify facts of a case in an objective, comprehensive and complete manner, clarifying evidences relating to developments of the act of committing crime of the suspect, collecting proofs of guilt or proofs of innocence, and examining aggravating and extenuating circumstances of penal liability of the accused Therefore, to review the current situation of criminal procedure law enforcement in general through results of settlement of cases nationwide by the investigation bodies, the people’s procuracies and courts at all levels, the thesis has analysed 13 cases to assess how the principle of presumption of innocence is applied in practice including: the “Murder” case in Vinh Phuc province; the “Gold shop robbery” case in Tay Ninh province; the “Abuse of trust to appropriate property” case in Nam Dinh province; the “Abuse of trust to appropriate property” case and the “Obtaining property by fraud” case in Nghe An province, etc 3.2.2 Current situation of application of the principle of presumption of innocence in the CPC 2015 After the CPC 2015 entered into force, ensuring the principle of presumption of innocence is strictly complied by agencies conducting criminal proceedings in practice As this principle is specified in Article 13 of the CPC 2015, cases with wrong judgments are timely reviewed while human rights and freedoms of citizens are protected as shown in 12 cases nationwide, including the “theft of property” case in Long An province; the “violation of regulations on control of means of road transport” in Dak Lak province; the “obtaining property by fraud” case in Can Tho city, etc 3.2.3 Current situation of wrong application of provisions of the criminal procedure law In addition, when performing official duties, some persons conducting criminal proceedings have violated proceeding principles, infringing upon the principle of presumption of innocence of the criminal procedure law, resulting in wrong conviction of cases Violations of persons conducting criminal proceedings are analysed in 02 cases including the “Negligence that results in serious consequences” case and the “use of torture” case in Bac Giang province 3.2.4 Shortcomings, obstacles, and reasons 3.2.4.1 Shortcomings and obstacles In addition to achievements, practical enforcement of the CPC 2015 also shows certain shortcomings and obstacles in ensuring the principle of presumption of innocence, resulting in wrong convictions in some cases These shortcomings and obstacles often relate to the right to defence counsel in cases where participation of defence lawyers is mandatory; collection of evidences especially relating to crimes committed by new methods and tricks or using high technologies; interrogation of the accused and measures to ensure the rights of the accused during interrogation; adversarial procedures and ensuring adversarial procedures, etc 3.2.4.2 Reasons for shortcomings and obstacles Based on analysis of current situation of ensuring the principle of presumption of innocence and shortcomings and obstacles, the thesis points out basic reasons as follows: First, the current inquisitorial proceeding model with certain elements of adversarial principle in Vietnam shows limitations Second, provisions of the CPC 2015 on the principle of presumption of innocence are not consistent with other principles Third, there are shortcomings in provisions on evidences, especially digital data and evidences collected by lawyers Fourth, gaps are found in provisions on grounds for application of measures on arrest and temporary detention; limitation of trial, the right to remain silent of the accused; the power to prosecute the case and return the case dossier for re-investigation by the court Fifth, other gaps include inefficiency and lack of awareness of agencies conducting criminal proceedings on all aspects and importance of the principle of presumption of innocence, lack of capacity to perform duties, ineffective monitoring, and inspection of law enforcement in criminal proceedings, etc Chapter RECOMMENDATIONS AND MEASURES FOR IMPROVEMENT OF LEGAL FRAMEWORK AND LAW ENFORCEMENT ON ENSURING THE PRINCIPLE OF PRESUMPTION OF INNOCENCE IN CRIMINAL PROCEEDINGS IN VIETNAM 4.1 Recommendations on ensuring the principle of presumption of innocence in Vietnamese criminal procedure law Based on analysis of theoretical and practical issues, the thesis makes recommendations on ensuring the principle of presumption of innocence in Vietnamese criminal procedure law as follows: First, ensuring the principle of presumption of innocence also means ensuring protection of human rights and freedoms of citizens in Vietnamese criminal procedure law Second, ensuring the principle of presumption of innocence in criminal proceedings aims to increase awareness on the burden of proof by agencies and persons conducting criminal proceedings Third, ensuring the principle of presumption of innocence aims to confirm that the accused person is deemed innocent until his guilt is proved according to the procedures and formalities as defined in the law with a valid judgment of a court Fourth, ensuring the principle of presumption of innocence also means protection of humanitarian objectives of the criminal law and interests of the accused, forming the backdrop for protection of justice and development of a prosperous society 4.2 Measures for improvement of criminal proceeding model and criminal procedure law in Vietnam on ensuring the principle of presumption of innocence 4.2.1 Improvement of criminal proceeding model To ensure the principle of presumption of innocence in criminal proceedings in Vietnam, it is first important to further research on improvement of the criminal proceeding model, clarifying responsibilities of subjects participating in criminal proceedings in line with their functions and powers, and further enhancing adversarial principle Therefore, the criminal proceeding model in Vietnam should be reformed, specifying that the accusing function belongs to the investigation bodies and procuracies, the defending function belongs to the defence lawyers and the accused while the trial function belongs to the courts The model should also ensure equality between the accusing parties and the defending parties, and thus facilitating performance of their functions by the defending parties through detailed provisions on their rights and measures to ensure the implementation of these rights 4.2.2 Improvement of Vietnamese criminal procedure law on ensuring the principle of presumption of innocence 4.2.2.1 Improvement of provisions on the principle of presumption of innocence in Article 13 of the CPC 2015 Provisions of the CPC 2015 on “the principle of presumption of innocence” should be revised as follows: Article 13 The principle of presumption of innocence An accused person is presumed innocent until his guilt is proved according to the procedures and formalities as defined in this Law and a Court passes a valid conviction The accused person is entitled but not obliged to prove his innocence If grounds for conviction, as per the procedures and formalities in this Law, not suffice, competent procedural authorities and persons shall adjudge the accused person to be not guilty Therefore, the CPC 2015 provides for the principle of presumption of innocence in Article 13 which is closely linked to other principles in the criminal procedure law At the same time, results of analysis of cases with wrong judgment in practice show that agencies and persons conducting criminal proceedings are not fully aware of all aspects and importance of the principle of presumption of innocence, nor strictly comply with provisions on the principle during enforcement of the criminal procedure law, causing severe consequences, resulting in wrong conviction of innocent persons, infringing upon human rights which are considered inviolable rights recognized and protected by international law and Vietnamese laws Improper behaviours in criminal proceedings must be strictly condemned and sanctioned Moreover, it is important to revise provisions of the law to minimize finalisation of case dossiers at first-instance courts or application of Article 358 on annulment of first-instance courts’ judgments for re-investigation or retrial to ensure the principle of presumption of innocence from the initiation and investigation period of the investigation bodies and the procuracies at the same level to the trial period 4.2.2.2 Improvement of principles relating to ensuring the principle of presumption of innocence in the CPC 2015 To ensure the principle of presumption of innocence, it is essential to improve both this principle itself and other relevant principles in the CPC 2015 Specifically, - Revision and amendment of the socialist legal principle to include additional provision on “Proceeding activities and evidences are not recognized if illegally conducted or collected” This not only ensures protection of human rights in criminal proceedings in general but also ensures determination of facts in a case, forming the basis for other issues in criminal proceedings - Revision and amendment of provisions in Paragraph of Article 15 of the CPC 2015 on “Determination of facts of a case” to clarify that the burden of proof belongs to the accusing parties throughout different stages of criminal proceedings When performing the burden of proof, these subjects must ensure the principle of presumption of innocence, protecting the right to presumption of innocence of the accused - Revision and amendment of provisions on adversarial principle in trial (Article 26) by revising the title of the article into “Ensuring adversarial principle in trial”, specifying that trial of criminal cases is based on results of adversarial procedures between the accusing parties and the defending parties to ensure that the accusing parties fulfil their functions 4.2.2.3 Improvement of provisions on evidence in criminal proceedings Provisions on evidences should be revised to ensure that all evidences have equal validity The accused and defence lawyers are entitled to collect evidences by all legitimate means Evidences and proofs are only valid after being submitted and manifested at a court hearing In addition, interrogations and discussions at the court hearing must ensure equality among parties and their ability in presenting viewpoints and evidences 4.3 Other measures to ensure the principle of presumption of innocence in Vietnamese criminal procedure law Accordingly, to ensure effective implementation of the principle of presumption of innocence throughout different stages of criminal proceedings, it is important to effectively apply measures as follows: First, improving consistent awareness of persons conducting and participating in criminal proceedings through stages of investigation, prosecution, trial on ensuring the principle of presumption of innocence Second, strict compliance with provisions on the burden of proof in the criminal procedure law Third, ensuring protection of the right to presumption of innocence of the accused during the pre-trial period and ensuring adversarial procedures at court hearing Fourth, enhancing inspection, supervision, monitoring of enforcement of the criminal procedure law Fifth, improving effectiveness of management, timely giving directions on removing obstacles, and increasing coordination among agencies conducting criminal proceedings in ensuring the principle of presumption of innocence Sixth, promoting legal dissemination on importance and contents of the principle of presumption of innocence Seventh, improving training and education to increase awareness, qualification, professional skills, political viewpoint, and ethics of persons conducting criminal proceedings to ensure the principle of presumption of innocence in the criminal procedure law GENERAL CONCLUSIONS In summary, several conclusions are made following research on the topic of “Ensuring the principle of presumption of innocence in Vietnamese criminal procedure law” in the form of a doctoral thesis as follows: The principle of presumption of innocence is a particularly important principle of a humanitarian and democratic judicial system, a criterion on “dignity of an advanced judicial system” and “a fundamental principle of criminal proceedings” It is an effective legal tool for protection of human rights with the basic and consistent message on no one being found guilty without a valid judgment of a court The principle of presumption of innocence acts as a guiding principle for development and enforcement of criminal procedure law by agencies and persons conducting criminal proceedings Effective enforcement of this principle provides guidance for persons participating in proceedings in relation with the accused, avoiding prejudice and unilateral accusation during investigation, prosecution, and trial, showing respect of human beings, and minimizing wrong actions in judicial activities and wrong judgment against innocent persons Ensuring the principle of presumption of innocence in the criminal procedure law means recognition and enforcement of measures and methods specified in the criminal procedure law to ensure the right to presumption of innocence of the accused and the performance of functions and tasks of agencies conducting criminal proceedings It is important to create conditions for ensuring the principle of presumption of innocence to promote advanced features of this principle Based on provisions of the Constitution 2013, the principle of presumption of innocence is officially institutionalized in the CPC 2015, forming the backdrop for improving efficiency and effectiveness in protecting the right to presumption of innocence of the accused However, practical enforcement of the principle of presumption of innocence also shows shortcomings for further improvement, especially increasing awareness and strict application of this principle throughout stages of criminal proceedings Even after the judgment becomes valid, the defendant is still entitled to the right to presumption of innocence to protect their legitimate rights and interests and protecting the truth and justice Practical law enforcement also confirms shortcomings and obstacles in provisions of the CPC 2015 affecting the implementation of the principle of presumption of innocence Therefore, it is important to further research, revise and amend provisions of the CPC 2015 Based on analysis of theoretical and practical issues on ensuring the principle of presumption of innocence in Vietnamese criminal procedure law in Chapter and Chapter 3, application of the principle prior and after enforcement of the CPC (2015) in Chapter 4, the author makes recommendations and measures for improvement of legal framework and ensuring the principle of presumption of innocence in criminal proceedings in Vietnam relating to revisions of provisions on the principle of presumption of innocence in the CPC 2015, reforming of the criminal proceeding model and other relevant provisions, proposing other measures to ensure the principle of presumption of innocence in criminal proceedings in Vietnam in the coming time Consequently, it is important that accusing parties must strictly comply with provisions of the criminal procedure law on the burden of proof at different stages of criminal proceedings in an objective, comprehensive and complete manner, clarifying proofs of guilt and proof of innocence, and examining aggravating and extenuating circumstances of the accused If there is not enough grounds for conviction as per the procedures and formalities in the criminal procedure law, competent proceeding authorities and persons must adjudge the accused person to be not guilty At the same time, accusing parties must improve awareness on ensuring the right to presumption of innocence of the accused LIST OF PUBLICATIONS RELATED TO THE THESIS’S TOPIC Hoang Van Hanh, Ensuring the principle of presumption of innocence in criminal proceedings in Vietnam, Democracy and Law Journal, Volume No {336}/2020 Hoang Van Hanh, Provisions on ensuring the principle of presumption of innocence in the Criminal Procedure Code 2015, Democracy and Law Journal, Volume No (338)/2020 Hoang Van Hanh, The principle of presumption of innocence and linkages to fundamental principles of the Criminal Procedure Code, Social Sciences and Human Resources Journal, Volume No 07 (86)/2020 ... Vietnam Chapter 4: Recommendations and measures for improvement of legal framework and law enforcement on ensuring the principle of presumption of innocence in criminal proceedings in Vietnam... Literature review of Vietnamese works There are several scientific works on the principle of presumption of innocence at different angles and scopes of criminal procedure law in Vietnam Most of these... Vietnam” by A/Prof Dr Tran Van Do (at a workshop at University of Vinh, 2017) and the paper on The principle of presumption of innocence in legislation and in criminal proceedings in Vietnam