The right of access to justice of accused persons in criminal procedure law of Vietnam

The fact that investigation authorities, procuracy, and the court respect and comply with legal settlements in the Criminal Procedure about the rights of persons facing charges and prec[r]

300 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS

THE RIGHT OF ACCESS TO JUSTICE OF ACCUSED PERSONS IN CRIMINAL PROCEDURE LAW OF VIETNAM

Hoang Thi Bich Ngoc1 PhD Candidate, School of Law, Vietnam National University, Hanoi

Abstract

The paper first analyzes the theoretical issues of justice, access to justice, and international standards in this field On that basis, the author evaluates the appropriateness of the accused person’s right of access to justice provisions in Vietnam’s criminal procedure law and suggests issues to be amended and supplemented

According to the author, access to justice is both a basic human right and a means of implementation of other human rights At the national level, although access to justice is a category contained in many disciplines of law, this term expresses the most focused and clearest in criminal procedural law, primarily through the provisions on procedural rights of accused persons

In Vietnam, the Criminal Procedure Code 2015 has several new provisions which are specialized in the 2013 Constitution’s spirit of human rights into the criminal manner and added principles related to ensuring the right for accused persons in criminal proceedings For the first time, ‘protecting justice’ and ‘protecting human rights’ are stipulated as one of the duties of the Vietnam Criminal Procedure Code

By analyzing new regulations relating to the right of access to justice for accused persons in the Criminal Procedure Code 2015, the paper aims to answer the following questions: (1) What is the access to justice rights of accused persons in the Vietnam Criminal Procedure Code? (2) How is this right ensured through the formal institution’s framework? (3) With changes in the Vietnam Criminal Procedure Code 2015, what should Vietnam need to consider ensuring the right of access to justice for accused persons?

Keywords: access to justice, accused persons, criminal proceedings, Vietnam

Acknowlegement: This research is funded by the National Foundation for Science and Technology of Vietnam (NAFOSTED) through the Research Project on “Justice and the Right to Access to Justice in Vietnam” (Code Number 505.01-2017.01 in 2017)

1 This paper is a part of the doctoral thesis titled “The Right of Access to Justice in Viet Nam Law / Quyền tiếp cận công

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Justice

Justice is a concept that appeared early in the history of humanity The concept of justice is not quite the same among the views because it is determined based on many factors such as geography, culture, history, and laws

In modern times, justice has also been analyzed by several famous scientists in the world such as Michael Sandel1, John Rawls2, Raymond Wacks, to name a few Professor Raymond Wacks made his own point when he stated that ‘justice, in any situation, is not a simple concept.’3 and ‘Justice between individuals is also difficult to solve similarly to the challenge of social justice: the creation of social and political institutions to share the pie fairly.’4

Moreover, John Rawls argued that ‘justice as fairness’ is a complete virtue, a characteristic of social institutions Justice is the belief of the law, the nucleus of morality, and a prerequisite of civil society Therefore, according to J Rawls, ‘justice is the first virtue for social institutions as well as the truth of ideological systems A theory, no matter how splendid it is, if it is wrong, it must be rejected as well as the laws and institutions no matter how complete it is, it needs to be removed if it is unfair.’5

In the Black Law Dictionary, the term justice has been defined as ‘fair and reasonable, with three basic concepts: Emphasis on personal importance, requiring individuals to be treated in an appropriate, unbiased and equal manner.’6

For the United Nations, ‘justice is an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs Justice implies the rights of the accused, for the interests of victims and the well-being of society at large.’7 The concept of justice is rooted in all national cultures and traditions Its administration extends to both formal judicial mechanisms and informal dispute resolution mechanisms8

There are many definitions of justice In general, all viewpoints uphold the role of justice in society, bringing justice and fairness together to realize the common goal of protecting human rights and improving the stability and development of society The United Nations emphasizes the protection of justice in the field of proceedings, upholding the spirit of protection for the rights and obligations of the parties involved to ensure fair trial outcomes in the spirit of human rights respects

* This paper is a part of the author (Hoang Thi Bich Ngoc)’s Ph.D thesis “The right of access to justice in Vietnamese law” at School of Law – Vietnam National University; Ph.D course term: 2018-2021

1 Professor Michael Sandel works at Havard University

2 John Rawls (1921-2002) is a leading political philosopher and famous representative of American liberalism 3 Raymond Wacks, Philosophy of Law (Triết học luật pháp) (Vietnamese edition-Pham Kieu Tung translated, Tri Thuc

Publishing 2011)

4 Raymond Wacks, ibid 115

5 John Rawls, A Theory of Justice (Harvard University Press 1971).

6 Henry Campell Black, Black’s Law Dictionary (West Publishing Co 1983) 447.

7 Security Council-United Nations, ‘The Rule of Law and Transitional Justice in Conflict and Post Conflict Societies

(Pháp Quyền Quá Độ Công Lý Trong Xã Hội Mâu Thuẫn Hậu Mâu Thuẫn)’ (2004) S/2004/616 para

8 United Nations Development Fund for Women-UN Women, ‘Fact Sheet on the Importance of Women’s Access to

302 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS Thus, justice is closely related to the law but cannot be identified as law Because only when the law ultimately conveys the values of justice, will the law be the manifestation of justice In contrast, a law that does not protect the weak but only to protect the rights of the strong and powerful minority is unjust In short, only when the law is fair, transparent, and the judgments are consistent with the law, then does justice exist1.

Access to justice

Article of the Universal Declaration of Human Rights stated that “All human beings are born

free and equal in dignity and rights.”2 Therefore, all human beings should have equal access to justice when their dignity or their rights are infringed upon However, deficient or discriminatory justice systems can undermine this basic human right principle When such systems cannot ensure equal access to justice by all, the vulnerable and marginalized become even more vulnerable and marginalized, and their human dignity is placed at risk

Before, access to justice is mainly understood as the right to a fair trial, which means the courts are the central ‘suppliers’ of justice This interpretation seems to be directed towards legislative action in the legal field Therefore, it is required that the state establishes a judicial mechanism that ensures all the subjects participating in the proceedings must be treated fairly This view is incomplete

There is a new approach, widely used by many international organizations, such as the United Nations Development Program (UNDP) which conceptualizes “access to justice” as: ‘The ability

of people to seek and obtain a remedy through formal or informal institutions of justice, and in conformity with human rights standards.’3

Following the UNDP’s definition, the foundation of access to justice is the framework of people’s rights and obligations, which is called as legal/normative protection.4 The institutional framework that allows everyone to apply or to be assisted in obtaining compensation for the injustice, the damage, or sufferings The UNDP views it as the ability to provide compensation or capacity to provide justice remedies5 However, these systems are not sufficient because in order to achieve a fair solution to injustice or harm, people need to have the knowledge and ability to pursue the resolution process The UNDP calls this dimension the capacity to demand justice remedies6 of the masses

The understanding of the approach to justice has been greatly expanded compared to the traditional way and can be acknowledged from many different perspectives However, the right of access to justice is acknowledged and judged from the perspective of judicial activities, because it is associated with the legitimate rights and interests protection, especially the rights and interests of the accused, the victims, and the litigants with relevant rights and interests or many other civil rights Particularly, it cannot be denied that the right of access to justice is clearly demonstrated through criminal procedures, where justice outcomes are being shown

1 The Hung Dinh, ‘Exercising judicial power to ensure the right of access to justice in the rule of law state (Thực

quyền tư pháp nhằm đảm bảo quyền tiếp cận công lý nhà nước pháp quyền)’ (2010) State and Law Review

2 See more at http://www.un.org/en/universal-declaration-human-rights/

3 United Nations Development Progamme, ‘Programming for Justice: Access for All A Practitioner’s Guide to a

Human Rights-Based Approach to Access to Justice’ (2005) <https://www.un.org/ruleoflaw/files/Justice_Guides_ ProgrammingForJustice-AccessForAll.pdf> accessed 10 October 2019

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In general, we can consider the right of access to justice the human right, which expresses the

needs and capabilities of the person requesting the state (mainly formal justice institutions) This right also creates the most favorable conditions to use the law, to access, and to seek appropriate remedies and compensation when a dispute or a violation of legitimate rights and interests arise

This paper mainly tackles a part of the access to justice right, the normative protection, and the

institutional framework foundation Also, it is an analysis of a part of the right of access to justice

from the perspective of criminal proceedings, with a focus on the access to justice right of accused persons1 in Vietnam’s Criminal Procedure

2 Formal mechanisms in ensuring the right of access to justice for accused persons in the Criminal Procedure Code 2015 (the CrPC 2015)

According to the Criminal Procedure Code 2015, accused persons include those under arrest, detainees, suspects, and defendants Vietnam Criminal Procedure Code 2015 has an immensely crucial role and position in upkeeping the right of access to justice of accused persons, and thanks to that, it serves the purpose of upkeeping human rights in general and the right of access to justice of accused persons in particular

Viewpoints, purpose, and requests on upkeeping the right of access to justice of accused persons in the Vietnam Criminal Procedure Code 2015 are aligned with those of upkeeping human rights in criminal procedures as well as in other law sectors and social concepts

However, the right of access to justice and the upkeeping of this right is not settled clearly and thoroughly in the Criminal Procedure Code, yet is only presented by fundamental institution of (1) Rights and obligations of accused persons; (2) An institutional framework that guarantees the right of access to justice of accused persons The form and measures of upkeeping the right of access to justice are associated with activities, acts, formalities, and criminal procedures during the charges, investigation, prosecution, and adjudication performed by given authorities to institute proceedings

2.1 The rights and obligations of accused persons in relation to access to justice in criminal proceedings (Normative protection)

Principles of Criminal Procedure Code about accused people’s right of access to justice was presented most clearly in Chapter Each entity has its right, manner, and level of access to justice; however, this access was performed in either two ways: self-perform or performed by others (in case of the presence of legitimate defense counsel or legal representative) The right of access to justice of accused persons also means the right to live, the right to maintain health and prevent extorting statements and torture to upkeep necessary and sufficient conditions for the accused persons to perform personal rights, political rights, silent right, and the right to defend or to be defended, guaranteeing all these against being limited or taken away

a Arrest

According to the Criminal Procedure Code, a competent procedural individual is defined as one under arrest in the following cases: an emergency arrest, arrest for criminal acts in flagrant or wanted notices, suspects, and defendants for detention

304 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS The people under arrest are given the best conditions by the Criminal Procedure Code to access to justice and upkeep their rights1 Specifically, they are entitled to be informed of the reasons, to be explained about rights and duties, to give statements and opinions, to be free from an+ obligation to testify against themselves or admit to be guilty Besides, they are permitted to present documents, items, and requests, to complain about the arrest, decision, the proceeding act of authorities or individuals who are given authority to institute proceedings, and to defend our access to justice through a defense counsel This is the new point of the Criminal Procedure Act 2015, where defense counsel is allowed to engage in proceedings during the custody

b Detainees

Temporary detainees are held in emergency captivity or arrested for criminal acts in flagrant or wanted notices, or those who are confessing or surrendering and facing existing orders of temporary detainment.2

Upkeeping the right of access to justice of detainees means to upkeep the necessary and sufficient conditions for the detainees to perform their rights in engaging in proceedings, at different levels: a temporary detainment, a decision on annulling the decision on temporary detainment and discharge, a decision on charges against suspects, and application for other preventive measures, such as detention and exit restriction The right of access to justice of detainees is presented through the rights in Article 59, the Criminal Procedure Code: the right to be informed of reasons, to be explained about rights and duties, give statements, to defend themselves or to be defended, to present documents, items, and requests, and to file complaints about competent procedural authorities, persons’ decisions, and legal procedure on temporary detainment

c Suspects

Suspects are physical persons or juridical persons facing criminal charges The rights and duties of juridical persons as suspects are executed by their legal representatives, according to the Criminal Procedure Code.3

Suspects are entitled to perform their right of access to justice, including the decision on charging against suspects and the decision on suspension of investigation, suspension of the lawsuit with suspects, or the decision on annulling charge decision or the decision on having cases heard Like detainees, suspects have the right to upkeep the necessary and sufficient conditions for them to perform their rights According to Article 60 of the Criminal Procedure Code, suspects are entitled to the rights to be informed of the reasons, to be explained about the rights and duties, to give statements, to present documents, items, and requests, to require a change of competent procedural persons, valuators, and interpreters, to defend themselves or to be defended, to acquire decision on charges and decisions on enforcement, change, or termination of preventive measures, to require expert examinations and valuation, to change authorized procedural persons, expert witnesses, valuators, interpreters, and translators, to read and write digital documents or copies of such regarding charges and vindication or other copies concerning their defense, upon requests, after the end of investigations

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d Defendants

Defendants are physical persons or juridical persons tried as per a Court’s decision The rights and duties of defendants as suspects are executed by their legal representatives according to the Criminal Procedure Code.1

The right of access to justice of defendants starts from the decision on having the case heard of People’s Courts Defendants can perform this right during the legal proceedings until the decision on suspension of the lawsuit or valid conviction has been passed According to section 2, Article 61, the Criminal Procedure Code 2015, defendants are entitled to 14 specific right groups These rights present different levels of access to justice, manifested through a wide range of decisions such as decision on hearing of lawsuits at least 10 days before opening the court; decision on enforcement, change or termination of preventive and coercive measures, decision on case suspension, judgements, and Court’s ruling Other decisions on legal proceedings include enforcing preventive measures, attending the trial, being informed and explained about rights/ duties, petition for change of authorized procedural persons, expert witnesses, valuators, interpreters, translators, and petition of summoning of participants in legal proceedings who have not been summoned Besides similar rights to suspects or detainees, defendants have some unique rights such as: to inquire and request Court presidents to question courtroom participants with the Court president’s consent, to engage in oral arguments in court, to give final statements prior to the deliberation of judgments, to read the Court’s report and request amendments to the Court’s report, to appeal against the Court’s judgments and rulings, and other rights as per the laws, including all human and citizen rights not denied by Criminal Procedure Code

2.2 Institutional framework (Formal justice systems – Authorities and persons authorized to institute proceedings)

Formal justice institutions upkeeping the performance of the right of access to justice individually and other rights in Criminal Procedure Code are presented by the following map:

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Presiding authorities are agencies that are involved in the process of resolving criminal cases

under the Criminal Procedure Code at different procedural stages Assigned authorities to perform

certain investigative activities established with the function of state administration However, in the

course of performing their functions, these agencies may detect cases with criminal signs In order to ensure that the purpose of criminal proceedings is to promptly and adequately resolve criminal cases, the law grants these agencies certain powers in the proceedings, for example, the right to conduct many investigative activities

Beside Competent Procedural Authorities, there are also persons being called presiding officers and persons assigned to perform certain investigative activities by the Criminal Procedural Code 2015 as follows:

In addition to the presiding officers and assigned persons, there are some non-procedural subjects who are assigned several tasks in the process of resolving criminal cases, such as officers, civil servants in the Investigation authorities, Procuracy, Subjects assisting judicial activities such as experts, examiners, and police The trial panel shall, when instituting a lawsuit, request to institute the case in specific cases In general, when conducting criminal proceedings, these subjects directly affected rights, and they are responsible for ensuring the rights, including the human rights of litigants and accused persons in the case

* Tasks and powers belong to the competent procedural authorities:

The responsibility of upkeeping the right of access to justice of accused persons in the process of investigation, prosecution, and adjudication of criminal cases belongs to these authorities and other legal authorities; however, in the context of this essay, the author only mentions main authorized procedural authorities including presiding authorities, authorities, and persons assigned to perform certain activities of investigation mentioned above These authorities, while performing the procedural task, shall have to ensure the legitimate rights and interests of litigants and accused persons from the human rights perspective

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Within the scope of their tasks and powers, the competent procedural authorities must apply legal measures to determine the truths of the cases objectively, comprehensively, and thoroughly

Tasks and powers of assigned authorities consist of performing tasks in their management domains, receiving denunciations and notices of crimes, detecting criminal acts that are subject to examination for penal liability, and conducting examination and verification activities in accordance with the CrPC 2015 and the Law on Organization of Criminal Investigation Agencies

Tasks and powers of investigation authorities include receiving and handling denunciations, information on crimes and petitions for prosecution, receiving case files assigned by authorities performing specific activities of investigation, investigating crimes, applying all measures prescribed by law to detect and identify crimes and offenders, preparing files and proposing prosecution, finding out the cause and conditions of the crime, and requesting the concerned authorities to apply remedies and preventive measures

Decisions on pressing charges, investigation appointments, investigation organization, enforcement of investigation activities, proceedings, and procedures are performed by investigation units during the above-mentioned process

The investigation stage begins from the time the decision on pressing charges is reached until the investigation authorities issue the investigation conclusion report to prosecute or suspend the criminal investigation In this stage, the Procuracy has to supervise the investigation of the case comprehensively, to meet the requirements on the grounds, the legality, and the necessity of all investigating acts, orders and procedures, particularly the activities, acts, orders, and procedures conducted by the investigation authorities dealing with human rights and some issues concerning the right of access to justice, such as prosecution of suspects, arrest, custody, detention, and search The Procuracy shall promptly detect and request investigation authorities and assigned authorities to overcome law violations in investigation activities if any exist Investigation authorities and assigned authorities shall comply with the Procuracy’s requests and decisions following the CrPC, consider, resolve, and answer requests of the Procuracy according to law provisions

The Procuracy thoroughly and continuously inspects and supervises every investigation activity, proceeding, and procedure Specifically, the Procuracy approves and requests enforcement of decisions which relate directly to the right of accused persons The Procuracy exercises the right of prosecution in Criminal Procedure, and prosecutes the perpetrators to the Court The Procuracy oversees legal compliance in criminal procedure He/she is also responsible for exposing law violations of authorized procedural authorities and persons promptly, applying measures stipulated in the Criminal Procedure Code to eliminate the law violation of these authorities or persons, especially the violation of the right limitation The Procuracy also exercises the right of prosecution and oversees law compliance in criminal procedures to make sure all guilty acts are exposed and finalized on time and that charges, investigation, prosecution, and adjudication are applied precisely to the exact entities according to the law He/she needs to ensure that such problems as an omission of crime and criminals and misjudgment not occur

308 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS interests of the State, and the rights and legitimate interests of organizations and individuals.’ In other words, protecting justice and human rights is the top duty of the Court This provision is under the new constitutional spirit, focusing people as the goal of the state apparatus In addition, the legal framework of Vietnam also has provisions to ensure the independence of judicial activities, which are clearly stated in the Constitution and the Criminal Procedure Code For example, it is stipulated that ‘During a trial, the Judges and People’s Assessors are independent and shall obey only the law Agencies, organizations, and individuals are prohibited from interfering in a trial by Judges and People’s Assessors,’1 and ‘Judge and People’s Assessors adjudicate independently and comply solely with the laws Authorities and entities are forbidden to interfere with the adjudication by Judge and People’s Assessors.’2 There is an association between the independence of the Court and the secured access of accused persons to justice in a trial The more independent the court, the more impartial of the judgment will be

The courts, on behalf of the Socialist Republic of Vietnam, hear criminal cases in accordance with the law They are responsible for reviewing documents and evidence collected during the proceeding Also, based on the results of litigation, the Courts make judgments and decisions on the accused people whether they are guilty or not, whether they are forced to apply or not to apply penalties, and other judicial measures

When performing the task of hearing a criminal case, the court has the right to:

- examine and conclude the legality of procedural acts and decisions of investigators, prosecutors, and lawyers in the investigation, prosecution, and trial; review of the application, change, or cancellation of preventive measures; suspension or temporary suspension of the case;

- consider and conclude on the legality of evidence and documents collected by investigating bodies, investigators, procuracies, procurators, lawyers, suspects, defendants, and other participants in the legal proceedings;

- when needed, return the dossier to the procuracy for an additional investigation; request the Procuracy to supplement documents and evidence or the Court to examine, verify, collect, and supplement evidence according to the provisions of the CrPC;

- request investigators, prosecutors, and others to present matters related to the case at trial; prosecute a criminal case if the criminal has been omitted;

- make decisions to exercise other powers according to the CrPC

Overall, the accused persons are guaranteed the right of access to justice by authorized procedural authorities and persons through the following points:

- Authorized procedural authorities and persons must support accused persons to perform their rights according to the Criminal Procedure Code and the Constitution of 2013 while exercising their duties and powers

- Authorized procedural authorities and persons, when enforcing activities of investigation, prosecution, and adjudication, must not violate human rights and must only perform preventive and coercive measures settled in the law

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3 Evaluation of important changes related to ensuring the access to justice right for the accused in the Criminal Procedure Code 2015

In order to better assure human rights and the right of access to justice in criminal procedure in crucial policies issued by the Communist Party and Government of Vietnam, the Criminal Procedure Code 2015 was passed by the Eighth National Assembly with many innovations In comparison with the Criminal Procedure Code 2003, the Criminal Procedure Code 2015 has some alternations and amendments as follows:

* Principles of constitutional rights and criminal procedures: Officially recognize “The adversarial principle shall be guaranteed,” “right of defense,” and “silent right” in the Constitution and the Criminal Procedure Code 2015

It is settled in the Constitution 2013 that “A person who is arrested, held in custody, temporarily detained, charged with a criminal offense, investigated, prosecuted, or brought to trial has the right to defend himself or herself in person or choose a defense counsel or another person to defend him or her” (Section 4, Article 31) For the first time, the right of defense was settled in the chapter of human rights of the Constitution 2013

The constitutional principle is specified at Article 16, the Criminal Procedure Code 2015, concerning the guarantee of the right of defense for accused persons and protection of legal rights and benefits of defendants and litigants: “An accused person is entitled to defend himself or be defended by a lawyer or another person Competent procedural authorities and persons are responsible for informing accused persons, defendants, and litigants of all of their rights of defense, legitimate rights, and benefits according to this Law.”

The guarantee of the adversarial principle in trials was recognized for the first time in Constitution 2013 This principle is the crucial legal foundation to enhance the adversarial quality in trials and guarantee the right of defense and the right of access to justice of defendants to be exercised According to this, the Criminal Procedure Code 2015 amend a principle of “Assurance of oral arguments in the adjudication process” in Article 26

On the other hand, “silent right” of accused persons is generally considered as a human right, although not directly settled in the Criminal Procedure Code 2015, recognized according to Point e, Section 1, Article 58; Point c, Section 2, Article 59; Point d, Section 1, Article 60; or Point h, Section 2, Article 61 According to this, all accused persons are entitled to give statements and opinions They not have an obligation to testify against themselves or admit guilt Hence, it can be understood that accused persons have their own rights of giving statements Unfavorably, they not have to give statements or admit their guilt in front of the presiding authorities Moreover, in the trials, defendants are also guaranteed this right On the other hand, all evidence of guilt and innocence, aggravation and mitigation of criminal liabilities, citation of Points, Sections or Articles in the Criminal Code for determination of defendants’ crimes, sentences, compensations, and handling of proofs and other facts essential to the lawsuit must be done, argued, and specified in court The Court’s judgments and rulings must be subject to the inspection and assessment of evidence and oral arguments in court

* Amendments of rights for suspects and defendants to guarantee their maximum access to justice:

310 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS This is a crucial innovation in the effort to guarantee basic rights of suspects and defendants; however, some of the followings should be noticed:

Documents allowed to be read by suspects are documents regarding charges and vindication, for example, statements, interrogation, asset valuation in case of charges of asset thieves, statements, interrogation, and examination, to name a few The time allowed to read documents is after the end of the investigation The method of reading documents is to read copies or digital documents These are settled to guarantee legitimate rights and benefits of suspects, as well as to assure the safety of documents, avoiding intentional damage acts of suspects

Some rights were amended to guarantee the right of defense of defendants such as petition for expert examinations, valuation, petition for change of authorized procedural persons, valuators, and translators, petition for summoning of witness testifies, crime victims, individuals having duties, and interests from the lawsuit, expert witnesses, valuators, other participants in legal proceedings and authorized procedural persons to the Court Besides, they can present evidence, confer on relevant evidences, documents, and items, request authorized procedural persons to inspect and assess, give statements and opinions, testify against themselves or admit guilt, inquire and request Court presidents to question courtroom participants with the Court president’s consent, read the Court’s report, and request amendments to the Court’s report

* Amendments of the institution about defense counsels and their direct impact on the right of defense for accused persons:

Extend the time of legal proceedings in which the counsels can participate in defense: Article 72

Criminal Procedure Code 2015 settled that: “Defense counsels are enabled by persons facing charges or appointed by competent procedural authorities to perform activities of pleading, the registration of which has been approved by competent procedural authorities and persons.” The Criminal Procedure Code 2015 extended entities and guaranteed the right of defense to arrest This new settlement institutionalized the settlement in Constitution 2013 about the arrest, which stated that arrests are entitled to defend themselves or ask for defense from lawyers and others From then, defense counsels can approach accused persons sooner, closely follow the proceedings, and meet accused persons from the beginning of the criminal proceedings in order to assure the right of defense for defendants and maximize their right of access to justice

Extend subjects of defense counsels: Article 72, the Criminal Procedure Code 2015 settles that

defense counsels may be lawyers, representatives of persons facing charges, people’s advocates, and legal assistants for charged persons given legal aids Therefore, in comparison with the Criminal Procedure Code 2003, legal assistants were added to defense counsels in Criminal Procedure Code 2015 This is applied to charged persons given legal aids, better facilitating accused persons to access to justice

Extend subjects of individuals who cannot plead: Section 4, Article 72, the Criminal Procedure

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Extend subjects who can select defense counsels: Section 1, Article 75, the Criminal Procedure

Code 2015 settled: “Defense counsels are selected by the accused person, his representative, or kindred.” Therefore, the Code settled specifically three subjects who can select defense counsels: accused person, his representative or kindred In the Criminal Procedure Code 2003, only the accused person and his legitimate representative can select defense counsels

Extend compulsory cases of appointment of defense counsels: Article 76, the Criminal Procedure

Code 2015, settled that competent procedural authorities shall appoint defense counsels, who are not sought by accused persons, their representative or kin in cases of suspects, defendants facing charges that may lead to the harshest sentence of 20 years in prison, life imprisonment or death as per the Criminal Code In other words, the Criminal Procedure Code 2015 extends the compulsory cases of having defense counsels to suspects or defendants facing charges that may lead to the harshest sentence of 20-year life imprisonment

* Simpler procedure for defense registration:

In terms of defense registration period, the Criminal Procedure Code 2015 reduced the new period to one-third of the old one Article 78 settled that in 24 hours upon receiving sufficient documents, competent procedural authorities must verify such papers and the absence of an application for rejection of defense counsel Meanwhile, Section 4, Article 56 of the Criminal Procedure Code 2003 settled this period to be three days

In all legal proceedings, a defense counsel must register his activities of pleading Competent procedural authorities must send registration notice to a defense counsel Registration notice is valid during the whole proceeding process, except other cases settled in Criminal Procedure Code 2015 and removal of registration of defense counsel This is an innovative settlement Instead of waiting for competent procedural authorities to issue a defense counsel certificate, the defense counsel needs only receive a notice, and it shall be valid during the proceeding process, not only in each proceeding phase, as settled in Criminal Procedure Code 2003

* Defense function in the Court is amended to equalize charge party and vindication party:

Besides the right of defendants and defense counsel amended in comparison with Criminal Procedure Code 2003, the Criminal Procedure Code 2015 spent a whole volume to settle formalities to conduct court proceedings (volume V, chapter XXI – Formalities to conduct court proceedings) In this volume, we can see two minor formalities, that is, questioning and oral arguments

312 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS more flexible than that in the Criminal Procedure Code 2003, which settled that defense counsel can only raise questions after Judge, People’s Assessor, and Procurator

Besides, defense counsel is equal to the prosecutor in questioning, requesting to raise questions to defendants and other proceeding participants Regardings defendants, they can raise questions con-cerning other proceeding participants when approved by a judge This settlement does not mean to limit the right of defendants, but to assure the order in the trial and valuable questions of defendants

The fact that investigation authorities, procuracy, and the court respect and comply with legal settlements in the Criminal Procedure about the rights of persons facing charges and precisely the right of defense counsels means a crucial guarantee of exercising the right of access to justice for accused persons Especially, proper exercise and guarantee of settlements about oral arguments, and using its results as the foundation of sentencing is an essential measure, an indispensable requirement of legal innovation process and the establishment of the Socialist Republic rule of law, assuring human rights in general and the right of access to justice in criminal procedure in particular

4 Practical issues in ensuring the right of access to justice for accused persons in criminal proceedings in Vietnam

Practices in Vietnam in recent years show that people’s demand for the protection of justice and human rights is increasing It is undeniable that the positive changes in Vietnamese law in general and in criminal procedure law, in particular, have gradually progressed towards meeting the general requirements and standards of the world in the field of protection on human rights

It must be acknowledged that although Vietnam has made great efforts to improve the quality of state governance, increase publicity and make positive changes in the laws, the justice index in general in Vietnam have not been significantly improved when compared to other countries in the region and the world (Figure 1), and even tend to decrease (Figure 2)

Figure 1: Ranking of Vietnam justice index in years

Year Criminal Justice

Regional rank Global rank

2015 8/15 39/102

2016 8/15 51/113

2017 9/15 52/113

2018 9/15 52/113

2019 10/15 60/126

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Source: The World Justice Project http://data.worldjusticeproject.org/#/groups/VNM

The justice index reflects the effectiveness of judicial activities in general and criminal proceedings in particular There are still limitations in the proceedings, so many judgements and decisions of the Court are canceled or amended to comply with the law Although the Constitution and the CrPC have added many provisions to ensure human rights in legal proceedings to ensure the honor, dignity, and life of the accused persons However, there are still several human rights in legal proceedings that are not guaranteed in accordance with the law, and there are even some inadequacies in the law itself, such as the following rights:

Right to defense: The right to defend appears from the following situations: holding a person in

an emergency, arresting a person, having a decision to detain prosecuting the accused The right to defend is completed when the case is handled, and the sentence takes legal effect (in some special cases, when the grounds of accusation no longer exist, the competent person issues a decision suspend the case, the defense function will end sooner) Although the law stipulates that the investigating authorities have the duty to notify defense counsels of the time and the place to take testimonies, it does not specify how long the notice must be given prior to the testimonies being taken Defense counsel still has difficulty in assessing the accused persons during the process of giving testimony in the event of excessive notification, or geographical conditions under challenging areas will cause defense counsel to reach the testimony room on time

When defense counsels want to meet the accused persons, they might explain their reasons, for example, ‘it is a complex sentence, so they could not have met the accused that time.’ There are cases when the defendants’ testimony is closed, the defense counsels will be able to access their clients1 In 1 Le Van Quyen, ‘The role of lawyers in criminal trial activities in Vietnam’ (Vai trò luật sư hoạt động xét xử

314 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS addition, the criminal procedure law does not distinguish the legality and proving value between the contents of the interrogation records with the participation and without the participation of defense counsels1 As a result, the accused persons’ right to defense is not fully guaranteed

The right of sustainment of bodily integrity: Although Vietnam has joined the convention against

torture and inhumane, cruel treatment, the 2013 Constitution has added provisions on prohibiting torture (Article 20), but the CrPC has only prohibited investigators, investigation officers, prosecutors, inspectors apply ‘extortion’ and ‘corporal punishments.’ While the extortion and corporal punishment are only one of the manifestations that not yet contain the full content of torture and inhumane treatment Therefore, it is easy to lead to the phenomenon of violation of conventional rights and wrongful convictions

Regarding to the extortion crimes, it is worth noting that according to the statistics of the Crime Statistics and Information Technology Department and the Crime Investigation Department of the Supreme People’s Procuracy, in 10 years (2003-2013) there are information and accusations of crimes related to the act of extortion However, the Investigation Agency of the Supreme People’s Procuracy has not yet prosecuted or investigated any cases of extortion

Regarding the crime of corporal punishment, although a few cases have been reviewed, investigated, the number of cases prosecuted has not fully reflected the actual situation The reality shows that many cases and defendants testified in Court are due to being forced or suffering from corporal punishment, so they must give untruthful statements at the investigating authorities and ask for re-declaration with entirely different contents but often denied with the reason ‘there is no evidence to substantiate that other than that of the accused person statements.’ This is a very interesting issue to consider and solve In our opinion, in order to have a legal basis to fight against acts of abuse of positions, powers, corporal punishment and extortion in the stages of law enforcement by judicial authorities, it is necessary to consider and identify the inadequacies of the provisions of the relevant laws and specifically the provision of the current Penal Code, to create suitable remedial measures

The right to compensation for wrong-doing and wrong-sentences: According to a report of the

National Assembly’s Judicial Committee, the stages of investigating, prosecuting, and adjudicating criminal cases ensure a prosecution of the exact people and crime However, compared with the requirements of judicial reform and requirements of the 2013 Constitution, the prevention of injustice, wrongdoing, wrong sentences is still limited and inadequate2 For example, within years (2011-2014), there were 71 cases of injustice cases (accounting for 0.02% of the total number of prosecuted cases) Notably, the investigation authorities suspended 31 defendants due to no crime and 12 suspects due to the expiry of the investigation time limit without being able to prove the crime The Procuracy suspended suspects due to no crime 19 cases were declared innocent by the Court, and the sentence was legally valid However, in reality, there are very few cases of being adequately compensated for damages on time due to some reasons such as cumbersome administrative procedures, prolonged 1 Vu Cong Giao and La Khanh Tung, ‘Ensuring rights for the detainees following the Vietnam Constitution 2013’

(Đảm bảo quyền cho người bị tạm giam theo Hiến pháp năm 2013) in Exercising constitutional rights in the Vietnam

Constitution 2013 (Hong Duc publish, 2015) 249.

2 Vu Cong Giao, Nguyen Son Dong, ‘Completing the law on torture prevention in the spirit of the Constitution in 2013’

(Hoàn thiện pháp luật phòng chống tra theo tinh thần Hiến pháp năm 2013) in Exercising constitutional rights

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processing time The aggrieved person has not been given favorable conditions to exercise his/her right to compensation

Through this situation, it can be seen that there are still several issues between the law and law enforcement people, resulting in inaccurate judgment and resolution in criminal proceedings, therefore, people somehow still meet difficulty in access to justice Accordingly, the author wants to propose some solutions to improve the quality of operations and responsibilities of the procedural authorities and persons to ensure that justice is always enforced for the accused persons and the whole society

4 Assessment and suggestion for amendments of some settlements of Vietnam Criminal Procedure Code regarding the assurance of the right of access to justice

It can be observed that there are sufficient settlements about the right of access to justice in the Criminal Procedure Code In the current Criminal Procedure Code, there are many principles showing respect and guarantee of the right Some settlements of criminal procedure law also present several measures to guarantee the exercise of the rights, such as competent procedural authorities and persons are held liable for proving guilt, authority in an investigation, responsibilities of competent procedural authorities, and persons in case of an unjust situation

However, because the weaknesses has been apparent, it is clear that there are some settlements of the Criminal Procedure Code have not well satisfied with the following requirements:

* Proceeding class of representative of charging persons and defense counsels of persons facing charge have not been settled clearly enough:

Proceeding class of presiding persons and proceeding participants have not been settled appropriately, which limits the guarantee of human rights of accused persons For example, the Criminal Procedure Code 2015 has not settled in detail the institution about “representatives” of accused persons (individuals) Based on real criminal cases, from previous the Criminal Procedure Codes, proceeding subjects refer to compatible settlements between Criminal Procedure Law and Civil Code According to that, legitimate representatives of defendants include father, mother, guardian, or persons appointed by the Court A proceeding process shows some difficulties in defining the range of representatives, defining the rights and duties of representatives (common rights and duties settled together with defense counsels, not specific rights and duties of solely representatives), and figuring out what would happen to the proceeding procedure if there is difficulty in selecting representatives from two or more representatives available

316 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS In our opinion, it is necessary to either remove this settlement or retain it, but in steand, amend it to representatives of accused persons They can only be defense counsels when they fully understand criminal law and criminal procedure code

On the other hand, another inappropriate settlement concerns registration of defense counsel to competent procedural authorities in the Criminal Procedure Code 2015 In our opinion, this procedure is necessary to define legal acts and conditions to participate in the proceedings of a lawyer For the consideration of competent procedural authorities to issue a defense counsel certificate, a lawyer must have documents stated in Article 27 of Law on Lawyers, that is, lawyer’s card, professional certificate, lawyer nomination by a law-practicing organization, or its branch where he/she practices law However, Article 78, the Criminal Procedure Code 2015, settled the registration procedure that a lawyer only needs to provide two documents, including lawyer’s card and a law-practicing organization certificate Hence, due to different settlement in two laws, the application is non-standard

We suggest another amendment to Section 3, Article 77, the Criminal Procedure Code 2015 “If a defense counsel is appointed according to Point 1, Article 76 of this Law, the accused person and his representative or kin shall preserve the right to petition for the replacement or rejection of such defense counsel,” is amended when being applied to “Persons facing charges and not capable of defending themselves due to physical defects; those with mental disabilities or those under 18 years of age.” This group should only be able to replace their defense counsel but not to reject them

* Complete legal class of defense counsels.

Section 2, Article 73, the Criminal Procedure Code 2015 settled that defense counsels are entitled to meet and raise questions to persons facing charges with the consent of investigators This Code has not settled correctly the situations of approving or not approving this right of defense counsels As a result, the consent for defense counsel to raise questions to detainees Suspects are given according to the personal will of investigators Therefore, the Criminal Procedure Code needs to settle precisely the situations when defense counsels are allowed to raise questions to suspects, detainees, as well as some other specific investigation activities, especially in the situation of participating in interrogating suspects and taking statements Defense counsels can only raise questions with the consent given by investigators Therefore, it emerges the concern of how to avoid the situation when investigators, according to his will, not allow defense counsels to raise questions, affecting the right of accused persons

* Strengthen the independence of judges in judicial activities

In a trial, the independence of the judge must be the absolute cohesion of the judges with the laws During the trial, judges and people’s assessors must not be subject to the Procuracy’s conclusions, indictments, and prosecution decisions, or other relationships with lawyers, State agencies, and social organizations At the trial, judges shall not only base themselves on the case files but also directly examine the evidence of the cases, on that basis, consider and base on the provisions of law to make an accurate judgment

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case to re-investigate instead of making a direct decision based on the provisions of law and analysis of themselves Therefore, the judge is required to have the courage to stand firm against external influences The Court system should be independent of local governments, and gradually abolish the exchange of judgments between the procedural authorities

Furthermore, in judicial activities, judges represent judicial power and exercise the right to a trial to bring justice to society The judge’s decisions contain responsibility not only for the individual but also for social responsibility This requires close supervision of the judicial process by the authorities and the Supreme People’s Court, especially the supervision of the people to avoid abuse of power Judicial independence enables not only judicial integrity in general but also an essential foundation in ensuring the people’s right of access to justice and especially the accused persons in criminal proceedings in particular

* Solutions to fight the extortion and corporal punishment

Although there have been extremely positive changes in the related laws, such as changing and expanding the scope of the crime of extortion and corporal punishment, the interrogation required audio and video recording, and so on

The principle of testimony only becomes evidence when being consistent with other objective evidence has made the defendants be grieved It is, of course, constitutional, not contrary to procedural rules But, the most important thing is that there is no other evidence to match the testimony about the extortion and corporal punishment Therefore, the mandatory requirement of audio and video recording during an interrogation of suspects, legal representatives of commercial legal entities in the stage of an investigation, prosecution, and adjudication may become ‘enemy’ of the extortion and corporal punishment

After all, audio and video recording may be the ‘remedy’ of extortion and corporal punishment, but all technical means are human-made and dominated No one can be sure that audio and video recording in interrogation and taking testimony will eliminate this situation in the investigation, prosecution stage Because the root of the problem lies in the consciousness and the respect for human rights, and the fact that the presiding officers understand and enforce it strictly Only when the spirit of respect for human rights is constitutionally permeated in each procedural officer and when achievement is not a ‘disease’ in the proceedings, then surely the extortion and corporal punishment will have a stronger ‘enemy’ than the audio and video recording measures

Therefore, the author highly appreciates human factors for this solution The presiding officers need to improve their capacity, take responsibility, avoid rush to set up achievements, foster professional ethics so that the laws become effective and bring justice to people

318 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS

* Solutions to ensure the right of compensation for unjustly and wrongly sentenced persons

In order to promote the nature of the rule of law state and to ensure the right to claim compensation due to unjust and wrongful trial, the law on state compensation liability needs to be amended and supplemented to further strengthen the protection of civil rights The author proposes some suggestions as follows:

- Simplify the procedures and conditions for receiving a claim, while ensuring fairness between state authorities and citizens, and also respecting the lawful rights and interests of the people

- Assigning the task of state compensation to a specific state authority, which is independent of the Court (the court that has judged the wrongdoing), to ensure the objectivity and independence in the process of making compensation state by the wrongful trial of a court This authority can be organized at two levels: central and local levels, to avoid pushing responsibilities between state authorities when violations occur, which ensures efficiency, objectivity, and convenience for people when there is a request for state compensation

- There should be clear and detailed regulations on how to identify responsibilities, faults of authorities and organizations that have wrongly caused and ways of calculating compensation expenses, to limit the parties’ inability to reach conclusions, which will result in prolonged litigation, financial and moral damage as well as trust in the judicial system of the people

5 Conclusion

Justice and human rights are two categories that have a dialectic relationship with each other In other words, ensuring the right of access to justice for the accused persons secures human rights for accused persons and vice versa Both categories are rights that people have the right to demand, demand for a guarantee, and that guarantee is made through the laws promulgated by the State On that basis, ensuring the right of access to justice for accused persons in criminal proceedings is one of the practical requirements consistent with the spirit of protecting justice and human rights of the Constitution 2013, and the Criminal Procedure Code 2015 in Vietnam

To support the socialist rule-of-law state, justice and the protection of justice have become one of the fundamental objectives throughout Vietnam’s socio-economic development strategy However, the fact that the implementation of regulations related to ensuring human rights and ensuring access to justice shows us that there remain points that have not been implemented effectively and comprehensively

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