GUARANTEE OF THE ACCUSED PERSON’S RIGHT TO DEFENSE COUNSEL a COMPARATIVE OF VIETNAMESE, GERMAN AND AMERICAN LAWS

LUND UNIVERSITY HO CHI MINH CITY FACULTY OF LAW UNIVERSITY OF LAW LUONG THI MY QUYNH GUARANTEE OF THE ACCUSED PERSON’S RIGHT TO DEFENSE COUNSEL - A COMPARATIVE OF VIETNAMESE, GERMAN AND AMERICAN LAWS Field of Study: International and Comparative Law Code: 62.38.60.01 A SUMMARY OF THE DOCTORAL DISSERTATION OF LAW HO CHI MINH CITY - 2011 This research was done at: LUND UNIVERSITY, FACULTY OF LAW HO CHI MINH CITY UNIVERSITY OF LAW Supervisors: PROF. PER-OLE TRÄSKMAN ASST. PROF. NGUYEN THAI PHUC Discussant 1: Ass. Prof. Dr. Christoffer Wong Discussant 2: Prof. Dr. Hồ Trọng Ngũ Discussant 3: Prof. Dr. Terttu Utriainen This dissertation will be defended at the Ho Chi Minh City University of Law Date and time: Friday November 25, 2011 at 13.30 PM This dissertation may be found at following libraries: - Vietnam National Library - Library of Ho Chi Minh City University of Law - Library of Lund University Faculty of Law PUBLISHED ACADEMIC ARTICLES RELATED TO THE THE DISSERTATION 1. Luong Thi My Quynh (2010), “Study of inquisitorial procedure model and recommendations for improving criminal procedure models of Vietnam” (“Tìm hiểu mô hình tố tụng thẩm vấn và những kiến nghị hoàn thiện mô hình tố tụng hình sự Việt Nam”), Legislative Science Journal (No.6/2010) 2. Luong Thi My Quynh (2011), “Guarantee of the right to defense counsel under the American criminal procedure (“Bảo đảm quyền có người bào chữa trong tố tụng hình sự Mỹ”), Legislative Science Journal (No.4/2011) 3. Luong Thi My Quynh (2011), “Recommendations for improving the Criminal Procedure Code of Vietnam regarding the right to defense counsel (“Những kiến nghị hoàn thiện pháp luật Tố tụng hình sự Việt Nam về bảo đảm quyền có người bào chữa”), Legislative Study Journal (No.23/2011) 1 INTRODUCTION 1. Background The tasks of guaranteeing human rights and improving the laws of criminal procedure have been currently attracting much attention of many nations. However, one of the difficulties that such nations face in improvement of the laws is the assurance of the balance between objectives of criminal procedure laws that is the balance between the task of handling crimes and maintaining the strictness of laws and the guarantee and non- violation of the procedural rights of the accused. Practically, in a few nations, the procedural rights of the accused, including the right to defense counsel, are not fully guaranteed, and are even violated. In Vietnam, practical settlement of criminal cases tends to indicate that incorrect judgments still exist that naturally prejudices the legitimate rights and interests of citizens, including the right to have defense counsel in criminal cases. This results from various causes, of which the overlapping and contradictory nature of the laws is one. Even though the Vietnamese Criminal Procedure Code has undergone several amendments and supplements, it has only partly overcome its existing shortcomings. As such, the legal rights and interests of the accused have not been fully guaranteed and are even violated. Under these circumstances, the State has taken initiatives showing its decisiveness to speedily improve the legal system in general and the Criminal Procedure Code in particular. Like many other nations around the world, Vietnam has been carrying out a comprehensive reform of criminal justice. Resolution No. 08/NQ/TW dated 2 January 2002 and Resolution No. 49/NQ/TW dated 2 June 2005 of the Politburo prescribe one of key tasks of judicial reform is to expand the proceedings at criminal trials, in which the need for further expansion of the rights of defense counsel and the accused is 2 emphasized. This is a firm basis to improve the fairness of the legislation in general and the guarantee of the accused’s right to defense counsel in particular. However, in order to obtain the effectiveness of judicial reform in criminal procedure, the expansion of international cooperation in the fight against crimes in general and criminal procedure activities in particular is an objective necessity in line with the general trend towards legal harmonization. Wishing to contribute to the enhancement of the effectiveness of improving the law regarding the right to defense counsel, the author chose to undertake the research at PhD level on the theme: “Guarantee of the accused person’s right to defense counsel - A comparative study of Vietnamese, German and American Criminal Procedure Laws”. In the author’s opinion, the research should be based on the following theoretical and practical foundations: First, like Germany, the US and many other nations in the world, Vietnam pays considerable attention to the setting up and improving of legal instruments in the field of criminal procedure which relate to the guarantee of the procedural rights of the accused, of which the guarantee of the right to defense counsel is one of the most important. As a result, studying and comparing the legal mechanisms guaranteeing the right to defense counsel in these three nations will be necessary for establishing its foundations. Secondly, Vietnamese, German and US criminal procedure law have all recognized that the right to defense counsel is a fundamental procedural right of the accused that needs to be fully guaranteed. Despite key successes in legislative aspect, there are a number of shortcomings in the regulations that need to be analyzed, clarified and improved. As to Vietnam, difficulties and problems regarding both the awareness and the practical application of these regulations have not been resolved. My theme may lead me to explore the contents of a 3 number of laws that need to be improved. Thirdly, the practical application of Vietnamese criminal procedure laws is poorer than the statutory regulations would anticipate. The knowledge and professional conduct of persons conducting proceedings and of counsel still contain shortcomings and mismatches. This may affect or even damage the rights and interests of accused persons involved in proceedings. As such, it is advisable to study measures to remedy such circumstances. Fourthly, researching and comparing the criminal procedure laws of Vietnam and those of certain nations other regarding the guarantee of the right to defense counsel is a sound requirement in line with the general trend towards legal harmonization. This will give Vietnam opportunities to study and learn from experience, in a selective manner, when making, amending, supplementing and applying criminal procedure laws on the guarantee of the right to defense counsel. On such a basis, Vietnam can improve the statutory regulations on the right to counsel, and enhance the effectiveness of the investigation, prosecution and judgment of criminal cases. 2. Purposes and duties of the research This dissertation has two aims. The first is to study the laws of Vietnam, Germany and the US regarding the guarantee of the accused’s right to defense counsel. To serve this purpose, the dissertation focuses on clarifying scientific perspectives, provisions of the applicable criminal procedure laws and materials reflecting the practical context of the guarantee of the right to defense counsel in the selected countries, Vietnam, Germany and the United States. The foregoing researches have been conducted to answer the question of how the accused’s right to defense counsel is guaranteed in criminal procedure in Vietnam, Germany and the United States. The second aim of this dissertation is to propose suitable and practicable solutions to improve the applicable criminal 4 procedure laws of Vietnam in terms of the guarantee of the right to defense counsel and then to contribute to the improvement of the effectiveness of handling criminal cases to the satisfaction of the duty of handling crimes while still guaranteeing human rights in criminal procedure. In line with these two aims, this dissertation will solve the following duties: First, giving a comparison between the scientific and historical views of the guarantee of the right to defense counsel and clarifying the common theoretical bases concerning the guarantee of this right in criminal procedure. Secondly, clarifying the contents of the applicable provisions of international law and the laws of Vietnam, Germany and the United States on guaranteeing the right to defense counsel. This will be affected by the comparative method with a view to find out similarities and differences, and then explain such similarities and differences. Concurrently, analyzing and pointing out the advantages and limitations of the applicable criminal procedure laws on guaranteeing the right to defense counsel. Thirdly, learning about and giving assessments on the actual status of the guarantee of the right to defense counsel in Vietnam, Germany and the United States, again by the comparative method, for the purpose of acknowledging the strengths and weaknesses of applying laws in each nation. Finally, on the basis of studying theoretical foundations and applicable laws as well as the practical application of the laws of Germany and the United States on the guarantee of the right to defense counsel, the dissertation proposes a number of recommendations for improving the applicable laws of Vietnam for the purpose of improving the effectiveness of the guarantee of this right in criminal procedure. 3. Delimitation 5 The present research project lies in the field of criminal procedure law and uses a comparative approach. However, it explores questions concerning the right to defense counsel from a legal perspective rather than other aspects such as economic or social management mechanism, etc. Therefore, subjects to be researches herein will be scientific standpoints and provisions of the applicable criminal procedure laws of Vietnam, Germany and the United States which regulate the right to defense counsel as well as the practical materials of competent authorities and courts’ judgments. In addition, international legal instruments directly related to the research topic will also be analyzed to clarify the conformity of these national laws to international standards. 4. Status of study The right to defense counsel of the accused has been early recognized in the history of international criminal procedure laws as well as of Vietnamese criminal procedure laws. Under the Vietnamese laws, the right to defense counsel has been recognized in the Constitution and the Criminal Procedure Code as a fundamental principle orienting procedural activities of competent authorities. Nevertheless, the guarantee of this right in practice still has many limitations, not only in Vietnam but also in many other nations in the world. In practice, researches to find out solutions to further guarantee rights and interests of the accused in criminal procedure have been conducted by many scientists. However, most researches have mentioned the guarantee of the accused’s fundamental rights only. Direct researches on the guarantee of the right to defense counsel are still in few crumbs, especially, no research has been conducted by way of a comparative approach. In Vietnam, researches relating to the guarantee of the right to defense counsel are still very limited. Most researches have been conducted under the form of academic articles or papers at Seminars and they are narrowed at the level of interpreting 6 legal positivism. Generally, contents mentioned in such articles have focused on three aspects: first, researches on provisions of the Criminal Procedure Code in terms of guaranteeing human rights (including the accused’s rights); secondly, researches on criminal procedure principle of guaranteeing the right to defend of the accused in general; thirdly, researches on the role of defense counsel in criminal procedure. In addition, few academic articles mention the guarantee of the right to defence in general in the context of judicial reform. A number of researches in the form of books and dissertations (at LL.M and Ph.D level) have become out-of-fashionable without documentary nature. In a larger range, some groups of experts have carried out researches on the actual activities of lawyers in criminal procedure; however, such researches have been halted at the level of surveyed statistics. Nevertheless, results of the aforesaid researches have helped clarify provisions of criminal procedure laws on guaranteeing the right to defend in general and point out the existing weaknesses in a relative manner. However, such researches have not been conducted by a direct and comprehensive approach to the guarantee of the right to defense counsel; especially they have hardly mentioned the guarantee of this right in an international perspective. In foreign scientific research forums, a few articles and research projects have mentioned the right to defense counsel. Most of the aforesaid researches are conducted within the scope of national laws only. Additionally, certain researches have been written by way of a comparative approach and most of them are likely a description of nations’ criminal procedure laws. Furthermore, few researches relating to procedural rights of the accused have been approached in the aspect of international laws on guaranteeing human rights. Generally, the foregoing researches have provided the author with a large range of basic knowledge about the 7 international criminal procedure, and of other countries, especially Germany and the United States. As a result, a comprehensive research on the right to defense counsel of the accused as well as legal mechanisms guaranteeing rights in comparison and contrast with international laws is greatly requisite and meaningful. 5. Research methods On the basis of the method of dialectical materialism and for the purpose of well performing given duties of the theme, the following common methods have been used to carry out researches hereof: analysis and synthesis. The universal tasks of sciences in general and legal science in particular are description, explanation, evaluation and prediction. The theme is orienting to study provisions of laws, as such, particular methods in the field of law academy have been employed by the author while writing the dissertation. Analysis can be mentioned as the first method based on legal dogmatics. This method is used to interpret, analyze and assess contents and effectiveness of statutory provisions and concurrently systemize them according to unified criteria and based on that predict and recommend the developmental path of such statutory provisions. Moreover, this method has also been used in interpreting and comprehending correctly arguments of courts and competent authorities, state policies as well as relevant legal doctrines in international laws and laws of three selected countries (Vietnam, Germany and the United States) regarding the guarantee of the right to defense counsel. Applying this method in doing researches, I do wish to give a comprehensive view of provisions of certain typical legal systems regarding the guarantee of the right to defense counsel and at the same time to propose appropriate recommendations for improving the Vietnamese laws. Legal comparison is also a particular method of the dissertation. Comparison between different legal systems aims 8 at not only finding out similarities and differences but also making a comprehensive understanding and assessment of a legal system. In addition, comparison is an effective method to help point out strengths and weaknesses in each legal system. The result thereof has also shown that there is no absolute perfect in the criminal procedure laws of each country regarding the guarantee of the right to defense counsel and the study of experience of each other from legal practices of the countries needs a selection. Taking advantage of the results of comparison and contrast with the German and American criminal procedure laws, the author has proposed recommendations on improving the Vietnamese criminal procedure laws regarding the guarantee of the right to defense counsel on the basis of contrast, selection and consideration the suitability to the conditions of Vietnamese laws. Legal historical researching method has been also used by the author to demonstrate linkages and continuance of legal provisions and legal making perspectives concerning the guarantee of the right to defense counsel. Additionally, interviews have been used to exchange information by way of discussions with legal experts, lawyers and legal scholars in the field of criminal procedure laws. Such interviews have been very helpful in providing the author with an accurate and multi- dimensional view of legal systems at work. 6. New research results of the dissertation This is one of scientific researches at Ph.D level approaching, in a comprehensive manner, the guarantee of the right to defense counsel of the accused by way of comparison of different criminal procedure laws. The research theme has given a number of fresh contributions as follows: 1. Giving an overview of historical perspectives of the formation of the right to defense counsel. Clarifying of the objective relationship between the guarantee of the right to defense counsel and the concept of Due process of law and the [...]... is to resist the severity of judgment procedures against the offender; - The participation of the defense counsel closely attaches to the history of formation of a fair adversariality (a particular of the adversarial model) The defense counsel plays the role of assisting the accused at the court to oppose the accusations of the King This model appeared since early 12th century in England and was drastically... regulations in laws and practical application of the right to defense counsel and also pointed out causes of such difficulties Chapter 3 GUARANTEE OF THE ACCUSED PERSON’S RIGHT TO DEFENSE COUNSEL UNDER GERMAN CRIMINAL PROCEDURE LAWS 3.1 Overview of the German criminal procedure 3.1.1 Sources of law Germany is a federal nation with the existence of two legal systems of federal laws and state laws However,... right to defense counsel is not guaranteed 2.1.2 History and development of the right to defense counsel of the accused under Vietnamese criminal procedure laws Studying the formation and development of the right to defense counsel has given an indication that policies of the State of Vietnam are consistent and always heighten the guarantee of fundamental procedural rights of the accused This process has... improving the effectiveness of defense Limitation and lack of social knowledge and legal understanding of the accused is also a cause restraining the defense and the improvement of effective guarantee of the right to defense counsel In conclusion: On the basis of studies and analyses in Chapter 2, it can be hereby given an overview of main contents relating to the guarantee of the right to defense counsel. .. of law has formed a foundation for the formation and development of the principle of the right to a fair trial This is a fundamental principle in guaranteeing procedural rights of the accused and has been recognized in most international and national legal instruments In criminal cases, the principle of the right to a fair trial contains one sole content, that is the guarantee of the ‘equality of arms’... foundation principle of the Right to fair trial in criminal procedure Pointing out the connection between the guarantee of the right to defense counsel and the guarantee of the fairness and unbiased in criminal procedure 2 Generalizing views and conceptions of international laws and Vietnamese laws concerning the right to defense counsel by which summarizing and affirming fundamental contents of guaranteeing... in guaranteeing the defense right of the accused On the basis of the principle of ‘Guaranteeing the defense right of the detainee, the accused and the defendants’ under Article 10 of the Criminal Procedure Code, the competent authorities (including investigation bodies, procuracies bodies and courts) have the obligation of guaranteeing that the accused can perform their right to defend and facilitating... actually guaranteed the implementation of the right to defense counsel in practice In addition, the belief to disregard the role of defense counsel as well as negative sides existing in capacity, qualification and morality of lawyer teams are those restraining the guarantee of the right to defense counsel 24 Chapter 4 GUARANTEE OF THE ACCUSED PERSON’S RIGHT TO DEFENSE COUNSEL UNDER AMERICAN CRIMINAL PROCEDURE... Code of Vietnam regarding the guarantee of the right to defense counsel 5.1 Assessment and comparison of the laws of Vietnam, Germany and the United States regarding the guarantee of the accused s right to defense counsel In this part, the author has focused on giving comments on two aspects, general assessment and specific assessment In terms of contents of the general assessment, the author has given... counsel have spread to continental European nations Historical views have acknowledged the right to defense counsel as a fundamental right and requires to be guaranteed on the basis of the following theoretical and practical foundations: - The participation of the defense counsel is recognized upon objective demands in terms of fairness in treating the offender - The participation of the defense counsel . RIGHT TO DEFENSE COUNSEL 1.1. Basic theoretical issues on the guarantee of the accused person’s right to defense counsel 1.1.1. Historical views of the guarantee of the right to defense counsel. once the right to defense counsel is respected and guaranteed. 1.1.3. Purpose of the right to defense counsel In order to determine the importance of the guarantee of the right to defense counsel. responsibility of the competent authorities in guaranteeing the defense right of the accused On the basis of the principle of ‘Guaranteeing the defense right of the detainee, the accused and the defendants’