Tài liệu Guarantee of the accused person’s right to defense counsel -a comparative of vietnamese, german and american laws

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This research was done at: LUND UNIVERSITY, FACULTY OF LAW HO CHI MINH CITY UNIVERSITY OF LAW LUND UNIVERSITY FACULTY OF LAW HO CHI MINH CITY UNIVERSITY OF LAW Supervisors: PROF. PER-OLE TRÄSKMAN LUONG THI MY QUYNH GUARANTEE OF THE ACCUSED PERSON’S RIGHT ASST. PROF. NGUYEN THAI PHUC Discussant 1: Ass. Prof. Dr. Christoffer Wong TO DEFENSE COUNSEL - A COMPARATIVE OF Discussant 2: Prof. Dr. Hồ Trọng Ngũ VIETNAMESE, GERMAN AND AMERICAN LAWS Discussant 3: Prof. Dr. Terttu Utriainen Field of Study: International and Comparative Law Code: 62.38.60.01 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 A SUMMARY OF THE DOCTORAL DISSERTATION OF LAW HO CHI MINH CITY - 2011 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 nonviolation 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 multidimensional 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 9 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 of the right to defense counsel in both international aspect and national one. 3. Systemize provisions of Vietnamese, German and US criminal procedure laws concerning the guarantee of the right to defense counsel by way of contrast and comparison. Especially, it is hereby to point out similarities and differences as well as appropriate aspects and limitations in each legal system. 4. Giving a number of recommendations on improving the Vietnamese criminal procedure laws concerning crimes and the right to defense counsel on the basis of selectively absorbing experience of Germany and the United States. Concurrently, it is hereby to propose a number of recommendations on enhancing the effectiveness of applying laws on guaranteeing the right to defense counsel in Vietnam. 7. Outline of the dissertation The dissertation is outlined according to its objectives, subjects and scope of researches. The dissertation is composed of the Introduction, List of Abbreviations, List of Reference Materials and Five Chapters. 10 BASIC CONTENTS OF THE DISSERTATION Chapter 1 BASIC ISSUES ON GUARANTEEING THE ACCUSED PERSON’S 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 It is found from the research’s results that the right to defense counsel was recognized since a very early time. Initial manifestations of this right have been found in the Middle Ages and this right was strongly developed in common law-based countries. Afterwards, advanced effects of the right to defense 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 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 expanded in 16th and 17th centuries. These historical factors have indicated that the right to defense counsel is a development of the right to self-defense. - Upholding the perspective of fairness and humanitarism of laws, the right to defense counsel has been guaranteed in serious cases. The policy of guaranteeing the right to defense counsel without charge for the indigents even was first 11 recognized in 1494 in England. The foregoing historical views have set a base for current development of the right to defense counsel. 1.1.2. Legal foundation of guaranteeing the right to defense counsel By way of legal historical research method, in combination with legal dogmatics method, the author has found out the objective relationship between the concept of Due process of Law, the principle of Right to fair trial and the guarantee of the right to defense counsel. Due process of law is a historical concept closely connecting with people’s struggles for finding the equality under severe regulations and procedures stipulated by the Kings. In treating offenders, the requirement of a due process is a legal basis guaranteeing rights and interests of the accused towards accusations of the State. The concept of a due process 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’. Accordingly, the accused is guaranteed to be judged by a fair trial without bias and is granted with equal opportunities as to the accusing party in a case in terms of collecting and presenting evidences for defending and is entitled to argue equally at the trial court, etc. With the foregoing theoretical point of view, the author has clarified the relationship between the guarantee of the right to defense counsel with the principle of due process of law and principle of the right to a fair trial. This is the relationship between foundation issues and practical results. The right to defense counsel of the accused may be difficult to be completely guaranteed if there is any violation of the two 12 aforesaid principles. On the contrary, the equality of arms in criminal procedure can be only complied with 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 in criminal procedure, it is advisable to explain the objectives of studying this right. Many scientists’ opinions have shown that the right to defense counsel should be guaranteed to: - Give the accused equal opportunities as their procedural status itself expresses non-equality towards the accusations of the competent authorities; - Provide the defense counsel to guarantee human rights when the accused has to incur sanctions in criminal procedure such as arrest, provisional custody, detention, etc. 1.2. Guarantee of the right to defense counsel in international legal documents 1.2.1. Overview of international legal documents in connection with the guarantee of the right to defense counsel This content is an overview and systemization of international legal instruments relating to the right to defense counsel. Legal instruments referred herein include: International Convention on Civil and Political Rights; European Convention on Human Rights; American Convention on Human Rights; African Charter on Human and People’s Rights. Additionally, documents and conclusions of the Organizations and Courts enforcing Conventions have been taken into consideration to clarify the contents of guaranteeing the right to defense counsel within the scope of international laws. 1.2.2. Guarantee of the right to defense counsel under international legal documents Results of researches have shown that the right to defense counsel under international legal instruments has been 13 guaranteed in the following aspects: - The right to adequate time and facilities for the defense; - The right to defense counsel: this right appears after a person is arrested and it is guaranteed in pre-trial stage and trial stage; - The right to free defense counsel if the accused cannot afford to pay counsel’s fee or in case for public interests; - The right to communicate with the defense counsel without being overseen by a third party unless there is any other exception to ensure public security; - The right to collect evidence and summon witnesses. The above are fundamental contents consistently recognized in international legal instruments. In practice, aspects of the guarantee of such rights have been explained in more details in the awards of the Courts judging the exercise of regulations of Conventions. Nevertheless, the foregoing contents would be considered as a criterion to contrast, compare and assess selected legal systems. Chapter 2 GUARANTEE OF THE RIGHT TO DEFENSE COUNSEL UNDER VIETNAMESE CRIMINAL PROCEDURE LAWS 2.1. Overview 2.1.1. Background on Vietnamese criminal procedure One of factors making differences in mechanizms of guaranteeing the right to defense counsel among legal systems is the particular characteristic of criminal procedure models. In this content, the author has described and given demonstrations of specific characteristics in the procedures for handling criminal cases under the Vietnamese criminal procedure laws. Vietnamese laws are affected by continental European legal systems and written laws. Court awards are only valid and enforceable against each specific cases without being referred 14 as precedents. As such, the Vietnamese criminal procedure has been much affected and bears characteristics of inquisitorial procedure system. Accordingly, the Vietnamese criminal procedure has the following characteristics: - Procedural activities are conducted by way of interrogation. Results of evidencing crimes are expressed by decisions which are concluded from results of the investigation by investigation bodies and indictments of the procuracy bodies. - A court trial is regarded as a public investigation. Collected evidence must be investigated at the trial court, and the burden of proof will be undertaken by the court. The judges take the initiative role in judging. Awards of the jury are given on the basis of belief of the court about objective truth of the case which is not merely the result of a fair adversariality between the parties (the accusing party and the defending party) as it is in an adversarial procedure model. - The defense counsel plays a vague role during the proceedings. Provisions on the right to defend of the accused as well as rights and obligations of the defense counsel have remained many limitations. This is one of causes leading to the fact that the 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 been recognized in three stages: 2.1.2.1. Period from 1945 to 1954 This period marks the founding of the Democratic Republic of Vietnam. In this period, the right to defense counsel was already recognized; however, this right was only applied at the trial court. A defense counsel might be a lawyer 15 or another person (Decree No. 33 dated 13 September 1945 regarding the establishment of a Military Court and Article 67 of the Constitution 1946). 2.1.2.1. Period from 1955 to 1988 (before the comming into effect of the Vietnamese Criminal Procedure Code) In this period, basically, the right to defense counsel was only applied at the trial court. This is the first time laws recognized the responsibility of the competent authorities to guarantee the right to defense counsel (Article 101, Constitution 1959). In addition, laws already mentioned the obligation of appointing the defense counsel for the defendant who is a juvenile (Circular No. 16-TATC dated 27 August 1974 of the Supreme People’s Court Specifically Guiding the Orders and Procedures of a First Trial). Concurrently, an organization of counsel was established in this period to help the accused and other concerned persons on their legal situation (Article 133, Constitution 1980; Ordinance on Lawyer Organizations dated 18 December 1987). Adding to counsel teams is the founding of people’s advocates (Circular No. 691/QLTPK on the Defense Nationwide dated 31 October 1983). 2.1.2.2. Period from 1989 to the present In this period, the right to defense counsel has been stipulated quite complete. The right to defense counsel has been recognized as one of constitutional rights of the accused (Article 132 of the 1992 Constitution) and the guarantee of the right to defense counsel is a basic principle of the Criminal Procedure Code (Article of the Ciminal Procedure Code 2003). Accordingly, the accused is guaranteed to have a defense counsel right after having a custody decision. This right is guaranteed during the investigation, prosecution, hearings (first trial and appealate). 2.2. The current laws of Vietnamese criminal procedure guarantees the right of the accused to defense counsel 16 2.2.1. Right to defense counsel of the accused is a basic right 2.2.2. The Criminal Procedure Code 2003 on the defense counsel As provided in Article 56 of the Criminal Procedure Code, defense counsels may be: lawyers, people’s advocates or lawful reppresentatives of the detainee, the accused or defendants. However, practically, entities involving in the defense for the accused are mainly lawyers in criminal cases while the provisions of the Criminal Procedure Code have not actually supported lawyers as well as other counsels to uphold their function of defending in cases. It is practically shown that the qualification of a defense counsel is also one of issues affecting the defense effectiveness. 2.2.3. The 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’ 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 the defense counsel to perform their defense function in a good manner. Reseaches’ results have proved that the Vietnamese Criminal Procedure Code, in comparison with international law standards, have breakthrough provisions on responsibilities of the competent authorities, for example, provisions on the responsibility of the investigation bodies to inform time and place of interrogation that the defense counsel may take part in; provisions on issuing the defense counsel certificate and making favorable for the defense counsel to meet with his/her client who is in custody or detention, etc or provisions on the responsibility to guarantee fair arguments at the trial court, etc. Nevertheless, the Code has not recognized the right to keep silent of the accused as well as the responsibility of the 17 competent authorities to interpret the right to keep silent and right not to declare evidences against himself/hersel. This is a shortcoming required to be taken into consideration for supplementing. 2.3. Comments on the practice of guaranteeing the right to defense counsel to accused persons in Vietnamese criminal procedure 2.3.1 Achievements made in the guarantee of the right to defense counsel of the accused 2.3.1.1. Legislative achievements Since the commencement of 2002 judicial reform, the activities of law-making in the field of criminal procedure have been increasingly put more attention. Amendments and supplements to the Criminal Procedure Code 2003 should be first reffered with substantial progresses that better guarantee rights and interests of people and of the accused. The right to defend has been further improved and expanded. In addition, the promulgation of the Law on Lawyers (2006) and the Law on Legal Aid (2006) have been setting up firm legal bases for defending activities. 2.3.1.2. Achievements in the area of implementation of the law - The spirit of judicial reform has positively influenced the attitude and logical thought of those conducting criminal proceedings. The defense counsel have been made more favorable as involving in criminal proceedings at investigation, prosecution and judgement stages; - Qualification of defense counsel has been paid much attention that brings effectiveness in defending and enhancing the quality of case judgment. Reports of the Supreme People’s Court and Bar Associations have shown that the participation of defense counsel in criminal cases have been further increased that makes a decrease of the number of cases subject to appealing or protesting, etc. 18 2.3.2. Shortcomings in the practice of guaranteeing the right to defense counsel of the accused In addition to the foregoing achievements, the guarantee of the right to defense counsel has remained certain shortcomings, mainly in the following aspects: 2.3.2.1. Regarding normative regulations This is the most substantial shortcoming affecting the right to defense counsel. It is hereby given an overview of shortcomings and ommissions concerning the right to defense counsel (taking the following as examples: laws have not clearly stipulated the right to waive, select and change the appointed counsel; the regulation on the time to have a defense counsel has been still strict; no comprehensive regulation has been promulgated on the responsibility of persons conducting criminal proceedings to inform and interpret the right to defense counsel, etc). Additionally, regulations on the right to defense counsel have remained many shortcomings. Inproper regulations of the Criminal Procedure Code have made unfavorable for the defense counsel to participate in defense effectively. Taking the following as examples: regulations on issuing defense counsel certificatel; the right to be informed of time and place of interrogation; right to collect documents related to the defense; right to meet with the client who is in provisional custody; inappropriate remuneration for the appointed counsel, etc. 2.3.2.2. Shortcomings in the application of the law This content reflects the negative attitude, qualification and logical thought of those conducting criminal proceedings in acknowledging the role of the defense counsel as involving in criminal proceedings. In addition, the surveyed statistics have reflected quite sufficiently the qualification as well as consciousness of the responsibility of the defense counsel as involving in criminal proceedings. Such statistics have shown that this is a matter in need of concern and remedy for the
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