VIETNAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES
L
NGUYEN HOAI NAM
EXERCISING THE RIGHT TO THE PUBLIC
PROSECUTION AND INSPECTING TRIAL PANEL
FOR CRIMINAL CASES OF THE HIGH-LEVEL
PEOPLE’S PROCURACIES IN OUR COUNTRY
TODAY
Major: Criminal law and Criminal Procedure
Major code: 9.38.01 04
SUMMARY OF THE DOCTORAL DISSERTATION IN LAW
HaNoi - 2019
The dissertation completed at Graduate Academy of Social Sciences,
Vietnam Academy of Social Sciences
Supervisor: Assoc. Prof. Dr. Cao Thi Oanh
Reviewer 1: Prof. Dr. Bui Minh Thanh
Reviewer 2: Assoc. Prof. Dr. Tran Van Do
Reviewer 3: Assoc. Prof. Dr. Hoang Thi Minh Son
The dissertation will be defended at Graduate Academy Level
Council of dissertation assessment at Graduate Academy of Social
Sciences, Vietnam Academy of Social Sciences, 477 Nguyen Trai,
Thanh Xuan, Hanoi.
Time: ………… date ………. month …… …year 2019
The dissertation may be found at:
- Vietnam National Library;
- Graduate Academy of Social Sciences Library
INTRODUCTION
1. The necessity of the research topic
The results of previous research works show that appellate, cassation, and
reopening trial, as well as exercising the right to the public prosecution and
inspecting appelate, cassation, reopening trial considered as an indispensable
need in all judiciaries, an important stage of proceedings to ensure a fair and
accurate hearing of criminal cases. However, the way to organize activities of
exercising the right to the public prosecution and inspecting appelate, cassation,
reopening trial panel is different in each country and each historical period. For
Vietnam, the high-level People’s Procuracy is a new level in the 4-level
People’s Procuracy system which undertake exercising the right to the public
prosecution and inspecting trial panels under appellate procedures to the
judgments and decisions that have not yet taken effect of provincial courts;
exercising the right to the public prosecution and inspecting trial panels under
cassation and reopening procedures to the judments and decisions that have
taken effect of the provicial and district-level courts. The high-level People's
Procuracy model is still very new in our country. The reality of exercising the
right to the public prosecution and inspecting trial panels for criminal cases of
the high-level People’s Procuracies shows that besides the achieved results,
there are still many limitations. Therefore, it is necessary to clarify theoretical
issues, summarize experiences and propose solutions to enhance the quality of
exercising the right to the public prosecution and inspecting trial panels for
criminal cases of the high-level People’s Procuracy.
2. Research purpose and tasks
The dissertation aims to clarify theoretical issues on exercising the right to
the public prosecution and inspecting trial panels for criminal cases, the reality
of stipulating and applying the law on exercising the right to the public
prosecution and inspecting appelate, cassation, reopening trial panels for
criminal cases and proposing some solutions to enhance the quality of this
work at the high-level People’s Procuracy. To achieve the above purposes, the
dissertation tries to deal with some following tasks: Clarifying theoretical
issues on exercising the right to the public prosecution and inspecting trial
panels under appelate, cassation, reopening procedures of the high-level
People’s Procuracy; Surveying the reality and application of the law on
exercising the right to the public prosecution and inspecting trial panel for
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criminal cases of the high-level People’s Procuracy in Vietnam today;
evaluating the achieved results, limitations and its causes; Clarifying
requirements, directions and proposing solutions to enhance the efficiency of
exercising the right to the public prosecution and inspecting trial panels for
criminal cases at the high-level People’s Procuracy.
3. Research subject and scope
The research subject is the course of exercising the right to the public prosecution
and inspecting trial panels for criminal cases of the high-level People’s Procuracy.
The research scope: the study is conducted within the scope of science of Criminal
Law and Criminal Procedure; using statistics on the course of exercising the right to
the public prosecution and inspecting trial panels for criminal cases of the high-level
People’s Procuracy over the last 10 years.
4. Methodology and research methods
Methodology: the dissertation based on the methodology of historical and
dialectical materialism; Marxism-Leninism, Ho Chi Minh thought on the state
and law; the CPV’s viewpoints on judicial reform and building a socialist ruleof-law state; the provisions of the existing law, especially the provisions of the
the Criminal Procedure Code (CPC) and the Law on Organization of the
People's Procuracy.
The dissertation utilizes methods of analysis, synthesis, comparison,
practical surveys, scientific seminars, direct interviews with experts and
forecasting method.
5. New contributions of the dissertation
The dissertation contributes to clarify some theoretical issues such as
subjects, objects, contents and scope of exercising the right to the public
prosecution and inspecting appelate, cassation, reopening trial panel for
criminal cases; the study tries to survey and examine comprehensively
activities of building law in practice, as well as applying the provisions of the
law on the exercise of the right to the public prosecution and supervising trial
panel for criminal cases of the high-level People’s Procuracies; it also seeks to
evaluate correctly the achieved results, limitations and its causes; clarifying
new requirements for exercising the right to public prosecution and inspecting
trial panel for criminal cases of the high-level People’s Procuracies in the
current period; proposing appropriate recommendations to improve the quality
of this activity.
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6. Theoretical and practical significance of the dissertation
this is a scientific research work on exercising the right to public
prosecution and inspecting appelate, cassation, reopening trial panel for
criminal cases at high-level People’s Procuracies in Vietnam. With scientific
research methods, the dissertation seeks to deeply analyze and interpret the
theoretical issues, statutory law and the application of the provisions of the law
on exercising the right to public prosecution and inspecting appelate, cassation,
reopening trial panel for criminal cases at high-level People’s Procuracies;
evaluating the provisions of the law and the application of the provisions of the
law on exercising the right to public prosecution and inspecting appelate,
cassation, reopening trial panel for criminal cases at high-level People’s
Procuracies over the last years; proposing some solutions to improve the law as
well as ensuring the efficiency of the provisions of the law so as to enhance the
quality of exercising the right to public prosecution and inspecting appelate,
cassation, reopening trial panel for criminal cases at high-level People’s
Procuracies in the near future.
The dissertation’s results have an imporant significance, as a basis for
intensive studies on exercising the right to the public prosecution and
inspecting trial panel for criminal cases. The dissertation is also seen as an
useful reference in researching, teaching and learning, as well as in practice of
exercising the right to the public prosecution and inspecting appelate, cassation,
reopening trial panel for criminal cases at high-level People’s Procuracies.
7. Structure of the dissertation
Besides the introduction and conclusion, references and appendix, the
dissertation includes 4 chapters:
Chapter 1: Literature review
Chapter 2: Theoretical issues of exercising the right to the public
prosecution and inspecting trial panel for criminal cases of the high-level
People’s Procuracies
Chapter 3: Provisions of the law and the reality of exercising the right to the
public prosecution and inspecting trial panel for criminal cases of the high-level
People’s Procuracies in our country today
Chapter 4: Requirements, directions and solutions to ensure the quality of
exercising the right to the public prosecution and inspecting trial panel for
criminal cases of the high-level People’s Procuracies in our country today
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Chapter 1
LITERATURE REVIEW
1.1. Domestic research situation
So far, there have been many studies on issues related to the dissertation
topic from various perspectives in Vietnam which can be divided into the
following groups:
1.1.1. Research works on the public prosecution right, exercising the right
to the public prosecution and inspecting trial panels
Exercising the right to the public prosecution and inspecting appelate,
cassation and reopening trial panels for criminal cases of the high-level
People’s Procuracies regarding as a form of exercising public prosecution right
and controlling judicial activities. So far there have been many studies on
general theoretical issues on public prosecution right, exercising the right to the
public prosecution right and inspecting judicial activities. This is the basis for
further examine on exercising the right to the public prosecution and inspecting
appelate, cassation and reopening trial panels.
1.1.2. Research works on exercising the right to the public prosecution and
inspecting appelate, cassation and reopening trial panels.
According to the current law, exercising the right to the public prosecution
right and inspecting judicial activities in the process of resolving criminal cases
to be carried out in various stages and by Procuracy’s levels and departments,
in which, the high-level People’s Procuracies in Vietnam just have undertaken
the task of exercising the right to the public prosecution and inspecting trial
panels under cassation and reopening procedures. History of Judiciary shows
that the way to organize and operate public prosecution exercise and inspecting
appelate, cassation and reopening trial panels is different in each country and
each period. By examining this issue, we can divide them into some groups
such as research works related to appelate, cassation and reopening trial panels;
studies related to exercising the right to the public prosecution and inspecting
appelate, cassation and reopening trial panels by Procuracies; studies related to
evaluating results and proposing measures to implement the course of
exercising the right to the public prosecution and inspecting appelate, cassation
and reopening trial panels.
1.2. Foreign research situation
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Some foreign research works related to the dissertation such as “The book
of prosecutor regime”, “Inspecting mission of the Chinese National
Procuratorate Academy”, Beijing Legal Publishing House 2002 (Translation
version of the Hanoi Procuratorate College); “Comparative criminal procedure”
by John Hatchard, Barbara Huber and Richard Vogler eds. B.I.I.C.L published,
London, 1996; the monograph “The typical criminal procedure models in the
world”, is part of the judicial partnership program (2012).
1.3. Assessing research situation and the pending questions need to be
further examined in this dissertation
1.3.1. Research results that the dissertation will inherit
So far there have been many studies on general issues on public prosecution
right, exercising the right to the public prosecution, basic issues such as
concepts, origin and scope of public prosecution right; concept, contents and
scope of exercising the right to the public prosecution and relationship with
public prosecution right. Issues of inspecting trial panels relating to the
dissertation such as concept, contents and scope of inspecting trial panels have
basically been clarified. So far there have been many research works analyze
and clarify issues on to appelate, cassation and reopening procedures; some
specific tasks and powers that the high-level People’s Procuracies must do
during this period such as appeal protest, litigation of procurators at the trial
panel, as well as actual outcomes of exercising the right to the public
prosecution and inspecting trial panels for criminal cases of the high-level
People’s Procuracies have also been explored in a number of research works
1.3.2. The pending questions that need to be further examined
The dissertation will inherit the relevant research results and it tries to
further examine the following issues: it continues to clarify some theoretical
issues such as subjects, objects, contents and scope of exercising the right to the
public prosecution and inspecting appelate, cassation, reopening trial panel for
criminal cases; the study tries to survey and examine comprehensively
activities of building law in practice, as well as applying the provisions of the
law on the exercise of the right to the public prosecution and supervising trial
panel for criminal cases of the high-level People’s Procuracies; it also seeks to
evaluate correctly the achieved results, limitations and its causes; clarifying
new requirements for exercising the right to public prosecution and inspecting
trial panel for criminal cases of the high-level People’s Procuracies in the
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current period; proposing appropriate recommendations to improve the quality
of this activity.
Chapter 2
THEORETICAL ISSUES OF EXERCISING THE RIGHT TO THE
PUBLIC PROSECUTION AND INSPECTING TRIAL PANEL FOR
CRIMINAL CASES OF THE HIGH-LEVEL PEOPLE’S
PROCURACIES
2.1. Theoretical issues of exercising the right to the public prosecution
during the period of hearing criminal cases by the high-level People’s
Procuracy
2.1.1. Theoretical issues of exercising the right to the public prosecution
during the period of hearing criminal cases
Domestic and foreign research works show that the right to accuse is an
issue of objective category. There are many different viewpoints on the concept
of exercising the right to the public prosecution but we can understand “the
right to the public prosecution in criminal procedure is the right to represent the
state to accuse people who have committed crimes”. With such definition of the
right to the public prosecution, we can understand “exercising the right to the
public prosecution is the activities of the competent state authorities to use their
legal powers stipulated by law to accuse people who have committed crimes”.
The right to the public prosecution can be exercised through many different
stages in the process of resolving criminal cases such as proceed against,
investigation, prosecution, and hearing. In which, “Exercising the right to the
public prosecution in hearing criminal cases is the activities of of the competent
state authorities to use their legal powers stipulated by law in that period to
accuse people who have committed crimes”.
2.1.2. Appellate hearing and exercising the right to the public prosecution
in the stage of appellate hearing for criminal cases.
2.1.2.1. Hearing appeals (second-instance trial) to criminal cases
* Two-level trial principle
The research results show that the formation of two-level trial principle is
an indispensable objective need. The two-level trial principle in criminal
proceedings is the dominant and compulsory ideology which expresses the
State's orientation in proceedings to hear criminal cases and is stipulated by the
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Criminal Procedure Code. In which, identifying a criminal case that is heard for
the first time at the first-instance level (the first trial level) that can be retried
and can only be heard again at the appeal level (the second trial level), if there
is a valid appeal to properly resolve the case, ensuring the state’s interests, the
legitimate rights and interests of citizens and organizations.
* Second-instance trial
Second-instance trial occurs in case the higher court re-hears a case that has
been tried by the lower tribunal (first-instance trial). Along with two-level trial
principle, the criminal procedure law of most countries stipulates that secondinstance trial is the next proceeding stage of the first-instance trial stage,
thereby creating a mechanism so that every case can be heard again.
2.1.2.2. Exercising the right to the public prosecute in the stage of secondinstance trial to criminal cases
* Subjects exercising the right to prosecute in the stage of second-instance
trial to criminal cases
In order to exercise the right to prosecute in the stage of second-instance
trial to criminal cases, the state shall organize and assign agencies to do this
task. By examining subjects exercising the right to prosecute in the stage of
second-instance trial to criminal cases show that it depends on many factors
such as the organization and jurisdiction of the court, legal traditions, political
and socio-economic conditions.
* Contents of exercising the right to prosecute in the stage of secondinstance trial to criminal cases
As the prosecutors use appropriate legal power stipulated by law to accuse a
person who committed crimes at the second-instance court. In order to exercise
the right to public prosecution, the prosecutors must carry out activities such as
launching trial through appeals against judgments or decisions that have not yet
taken legal effect; exercising prosecution rights in the course of resolving a
case in the appellate process (using the right to study appellate records, the
right to additionally investigate and verify, the rights of procurators at the
second-instance court).
* Scope of exercising the right to the public prosecution of Procuracies in
the stage of second-instance trial
Exercising the right to the public prosecution of Procuracies in the stage of
second-instance trial occurs right after the end of first-instance trial, judgments
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and decisions were issued. Accordingly, the Procuracy has the right to appeal
against, this leads to exercise the right to the public prosecution. Exercising the
right to the public prosecution in the stage of second-instance trial shall end
when the appellate court issues a judgment or decision on that case.
2.1.3. Cassation, reopening trial and exercising the right to the public
prosecution during the cassation and reopening trial stage for criminal cases
2.1.3.1. Cassation and reopening for criminal cases
Logically, the trial errors of the lower court can be detected right after the
verdict (decision) has been issued, not yet taken legal effect, but sometimes
detected later, when the verdict (decision) took effect. Has the verdict been
reviewed once it has taken effect? The research results show that there are
different answers to this question. Currently, most countries have provisions of
reviewing verdicts. This work can be divided into revision to discover
violations while applying the law – cassation or discover errors in determining
the truth of cases – reopening.
2.1.3.2. Exercising the right to the public prosecution during the cassation
and reopening stage for criminal cases
* Subjects exercising the right to prosecute and inspecting cassation and
reopening trial panels.
Like the stage of second-instance trial, subjects exercising the right to
prosecute and inspecting cassation and reopening trial panels are different in
countries.
* Contents: The Procuracy uses legal power in the cassation and reopening
trial stage to investigate criminal liability and accuse person who committed
crimes in the court. When exercising the right to prosecute in the cassation and
reopening stage, the Procuracy shall use the following legal powers: the right to
appeal cassation and reopening, exercising the right to prosecute in the
cassation and reopening stage (using the right to study files, additional
investigation, the right to suspend judgment, decision that took effect but being
appealed by the cassation and reopening procedure; the right of prosecutor at
the cassation and reopening trial panel)
* Scope of exercising the right to the public prosecution in the cassation
and reopening stage
Exercising the right to the public prosecution in the cassation and reopening
stage begins since the court’s judgment and decision took effect. It is the time
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the second-instance appeals towards first-instance judgment and decision has
expired or when the second-instance judgment and decision or the cassation
and reopening decisions were issued. Exercising the right to the public
prosecution in the cassation and reopening stage shall end after the court makes
the cassation and reopening decisions for that case.
2.2. Theoretical issues of inspecting trial for criminal cases of the highlevel People’s Procuracies
2.2.1. Inspecting the compliance with the law and hearing criminal cases
2.2.1.1. Inspecting the compliance with the law
The development history of countries shows that the Procuracy’s
compliance with the law is a form of inspecting the implementation of state
power. The research results show that considering the assigned functions, the
Peocuracy and similar institutions of countries around the world can be divided
into two main groups: prosecution group and inspecting group
2.2.1.2. Inspecting criminal case trial
According to general rule, all state power and its parts including judicial
rights must be controlled. No power for any reason is in outside of this
requirement. Therefore, inspecting the judge and court’s trial panels is
indispensable. It can be understood that “inspecting criminal case trial is the
Procuracy's application of measures prescribed by law to control the
compliance with the criminal procedure law of the proceeding-conducting
agencies and proceeding participants in the stage of hearing criminal case to
promptly discover violations so as to ensure the compliance with the law.
2.2.2. Inspecting the second-instance trial to criminal cases
* Objects of inspecting trial of the Procuracy in the second-instance stage
During second-instance trial period, the Procuracy will inspect activities of
appellate court such as complying with the period of time for appellate trial, the
Procuracy also inspects trial panels to similar activities of proceedingconducting agencies and proceeding participants in the first-instance trial stage.
If there are serious violations in the first-instance trial stage, the appellate
Procuracies must request the appeal court to cancel the first-instance judgments
or protest against a decision.
* Contents of inspecting trial of the Procuracy in the second-instance stage
The Procuracy uses legal power in the appellate trial stage to discover
violations and request legal agencies, organizations, units and relevant
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individuals must deal with. For example, rights to detect violations (through the
use of the right to study files, direct participate in court and proceedings to
detect violations; to use the right to express opinions); rights to request solving
violations (the right to protest against a decision).
* Scope of inspecting trial of the Procuracy in the second-instance stage
The Procuracy's scope of appellate trial begins when the first-instance
judgments or decisions are issued. At this time, the Procuracy has the right to
appeal against the case – inspecting the appellate trial will take place. This
activity shall end when the appellate court issues a judgment or decision while
the time for appealing by the appellate Procuracy to violate the procedural law
of the court at the same level, first-instance proceeding-conducting agencies,
proceeding participants and other relevant subjects is over.
2.2.3. Inspecting cassation and reopening trial to criminal cases
* Objects of inspecting trial of the Procuracy in the cassation and
reopening stage
Objects are the cassation and reopening court’s activities and trial court. In
addition, Procuracy at cassation and reopening level must inspect activities of
the proceeding-conducting agencies and proceeding participants in the previous
trial period.
* Contents of inspecting trial of the Procuracy in the cassation and
reopening stage: The Procuracy uses legal power to discover violations and
request legal agencies, organizations, units and individuals must resolve this
issue. For example, the right to detect violations (using the right to study files,
express opinion); the right to request handling violations (right to appeal
against cassation, reopening, right to petition).
* Scope of of inspecting trial of the Procuracy in the cassation and
reopening stage
The Procuracy's scope in the cassation and reopening state begins when
judgment or decision took effect and appellate appeal against a first-instance
judgment or decision has expired or after appellate judgment or decisions were
issued. Inspecting trial in this stage shall end when the appellate judgment or
decisions were issued.
2.3. Relationship, factors and criteria for assessing the quality of
exercising the right to the public prosecution and inspecting trial for
criminal cases of the high-level People's Procuracy
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2.3.1. The relationship between the exercise of prosecution rights and
inspecting trial for criminal cases
2.3.1.1. Distinguish the exercise of prosecution rights from trial inspecting
From the above analysis, it can be seen that exercising the right to the public
prosecution and inspecting trial should be considered both in common and
different things.
2.3.1.2. The interaction between the exercise of prosecution rights and
inspecting trial
Exercising the right to the public prosecution and inspecting trial are two
independent functions of the People’s Procuracy but have close relations to
each other, as unified and complementary activities.
2.3.2. Factors affecting the quality of exercising the right to the public
prosecution and inspecting trial for criminal cases of the high-level People's
Procuracies
2.3.2.1. Adjustment of law to exercising the right to the public prosecution
and inspecting appellate, cassation and reopening trial panels to criminal
cases
In order for exercising the right to the public prosecution and inspecting
appellate, cassation and reopening trial panels are effective, the state relies on
the law, using a series of specific legal means (legal norms, legal documents,
legal relations, acts of exercising legal rights and obligations) to regulate social
relations and impacting on social relations in the direction of increasing the
quality of this work. The provisions of the law governing this work include two
main groups: the provisions directly adjust activities in exercising the right to
the public prosecution and inspecting appellate, cassation and reopening trial
panels of the high-level People’s Procuracies; the provisions on the order and
procedures of appellate, cassation and reopening trial and the provisions of
general criminal law.
2.3.2.2. Conditions to ensure the exercise of the right to the public
prosecution and inspecting appellate, cassation and reopening trial panels to
criminal cases
As other productive labor activities, exercising the right to the public
prosecution and inspecting trial are affected by workers, tools, working
facilities and the way of organizing works.
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2.3.3. Criteria for assessing the quality of exercising the right to the public
prosecution and inspecting appellate, cassation and reopening trial panels to
criminal cases
Assessing the quality of exercising the right to the public prosecution and
inspecting appellate, cassation and reopening trial panels to criminal cases is
very complex. Thus, there is no single indicator that can fully reflect the quality
of this activity, the assessment must be based on a comprehensive system of
criteria to measure various aspects such as: Criteria for assessing effectiveness
of law enforcement on exercising the right to the public prosecution and
inspecting appellate, cassation and reopening trial; Criteria for assessing quality
and quantity of criminal case.
Chapter 3
PROVISIONS OF THE LAW AND THE REALITY OF EXERCISING
THE RIGHT TO THE PUBLIC PROSECUTION AND INSPECTING
TRIAL PANEL FOR CRIMINAL CASES OF THE HIGH-LEVEL
PEOPLE’S PROCURACIES IN OUR COUNTRY TODAY
3.1. Provisions of the law on exercising the right to the public
prosecution and inspecting trial to criminal cases of the high-level People’s
Procuracies in our country today
3.1.1. Position, duties and powers of high-level People's Procuracy in our
country today
High-level People's Procuracy is a direct subordinate of the Supreme
People's Procuracy and is a superior of the provincial and district-level People's
Procuracy in the course of exercising the right to the public prosecution and
inspecting trial. The high-level People's Procuracy has the following duties:
exercising the right to the public prosecution and inspecting trial by appellate
procedure to verdict and decision that have not taken effect by the provincial
court; exercising the right to the public prosecution and inspecting cassation
and reopening trial to verdict and decision that have taken effect by the
provincial and district-level court; direct, guide and inspect professional work
to exercising the right to the public prosecution and inspecting trial panels of
lower People’s Procuracy.
3.1.2. Provisions of law on exercising the right to the public prosecution
during the appellate, cassation or reopening trial period for criminal cases of
the high-level People's Procuracies in our country today
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3.1.2.1. Provisions of law on exercising the right to the public prosecution
during the appellate trial period
a. Appellate (second-instance) trial
Both the 2015 and the 2003 Criminal Procedure Code (CPC) determine the
nature of appellate trial is that superior court directly re-hears a case or review
the first-instance decision that has not been taken effect and has been appealed
or protested. According to the provision of Article 170 of the 2003 CPC and
Article 268 of the 2015 CPC, the provincial People's Courts have jurisdiction to
hear first-instance of criminal cases to particularly serious crimes and other
crimes specifically prescribed by the law. If first-instance judgments and
decisions of the provincial People's Courts are appealed or protested against,
they shall be heard by the high-level People's Courts.
b. Exercising the right to the public prosecution during the appellate trial
period
On the basis of the provisions of the law, exercising the right to the public
prosecution during the appellate trial period to criminal cases has the following
contents: protest against, supplement and change of protest; Exercising the
right to the public prosecution during the process of resolving criminal cases by
appellate order (studying files and additional verification; exercising the right
to prosecute at the court panel)
3.1.2.2. The provisions of the law on exercising the right to prosecute
during the cassation, reopening trial period to criminal cases of the high-level
People's Procuracies
a. Cassation and reopening trial panel
In nature, the 2003 and the 2015 CPC stipulate cassation trial means review
verdict and decisions that have taken effect of the court but are protested
against due to the serious violations in resolving the case. Reopening trial
means review verdict and decisions that have taken effect but are protested
against because there are new circumstances that may substantially change the
contents of the verdict and decisions which the court does not know while
issuing such the verdict and decisions.
b. Exercising the right to prosecute during the cassation, reopening trial
period
Based on the provisions of the law, it is possible to determine duties and
powers of the Procuracy and procurator when exercising the right to prosecute
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in the cassation, reopening trial period as follows: Appeal to cassation and
reopening of criminal case; temporarily suspending the execution of judgments
or decisions being appealed against cassation and reopening; exercising the
right to prosecute in the cassation, reopening trial period.
3.1.3. The provisions of the law of inspecting appellate, cassation and
reopening trial panels for criminal cases of the high-level People's
Procuracies
Based on the provisions of the law, it is possible to identify main duties and
powers of the Procuracy and procurator when inspecting trial as follows: Duties
and powers in detecting violations; duties and powers in handling violations.
3.1.4. Limitations of the law on exercising the right to prosecute in the
appellate, cassation and reopening trial stage to criminal cases of the highlevel People's Procuracies
3.1.4.1. Limitations of the law on exercising the right to prosecute in the
appellate, cassation and reopening trial stage to criminal cases of the highlevel People's Procuracies
Regulations of exercising the right to prosecute in the appellate, cassation
and reopening trial stage still have some inadequacies: there are not provisions
on the scope of exercising the right to prosecute of Procuracy in the appellate
stage; provisions of Article 266 of the 2015 CPC and Article 18 of the law on
organization of the People’s Procuracy 2014 are inappropriate; there has not
been any regulation on grounds for second-instance appeal as well as there
have not been any regulation on exercising the right to prosecute and inspecting
cassation and reopening trial panels.
3.1.4.2. Limitations of the law of inspecting the appellate, cassation and
reopening trial to criminal cases of the high-level People’s Procuracies
Regulations of inspecting the right to prosecute in the appellate, cassation
and reopening trial stage still have some inadequacies: here are not provisions
on the scope and subject of inspecting trial by the Procuracy in each stage;
provisions of Article 267 of the 2015 CPC and Article 19 of the law on
organization of the People’s Procuracy 2014 are inappropriate; the procuracy's
powers are meant to be tools to hearing, especially for detecting violations have
not been fully and clearly stipulated; there are still unclear points of the legal
norms on order and procedure for resolving cassation and reopening petition in
general, the regulations on authority of the high-level Procuracy in particular.
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3.2. Exercising the right to prosecute and inspecting trial panels for
criminal cases of the high-level People's Procuracy in practice in our
country today
3.2.1. Exercising the right to prosecute in the appellate, cassation and
reopening trial stage to criminal cases of the high-level People's Procuracies
in practice
3.2.1.1. Exercising the right to prosecute in the appellate trial stage to
criminal cases of the high-level People’s Procuracies in practice
* Situation of accepting and solving appellate cases
From June 1, 2015 to November 30, 2018, three high-level Procuracies
accepted and heard 8,337 criminal cases with 14,926 defendants (high-level
Procuracy 1: 4226 cases/7577 defendants; high-level Procuracy 2: 1299
cases/2156 defendants; high-level Procuracy 3: 2,812 cases/5,193 defendants);
Heard 7,613 cases/13,352 defendants (high-level Procuracy 1: 3,844
cases/6,829 defendants; high-level Procuracy 2: 1252 cases/2056 defendants;
high-level Procuracy 3: 2,517 cases/4,467 defendants); The unresolved cases:
724 cases/1,574 defendants (high-level Procuracy 1: 382 cases/748 defendants;
high-level Procuracy 2: 47 cases/100 defendants; high-level Procuracy 3: 295
cases/726 defendants).
* Appellate protest outcomes
From June 1, 2015 to November 30, 2018, the provincial Court of First
Instance had heard first instance of 16,010 criminal cases, after receiving and
checking the sentences of court at the same level, the provincial Procuracy sent
to high-level People’s Procuracy 12,744 judgments and decisions at first
instance (reaching 79.6%). High-level People's Procuracy had inspected and
issued 180 protests.
In the same period of time, 3 high-level People’s Procuracies had exercised
the right to prosecute and inspected appellate trial for 7,613 criminal
cases/13,352 defendants, of which 959 cases/1,722 defendants had appellate
protests of provincial People's Procuracy. High-level People's Procuracy
defended protests against of 1,617 defendants, withdrew protests of 105
defendants (6.1%). By hearing, the high-level People's Court accepted an
appeal against of 1,374 defendants (85%).
* Outcomes of exercising the right to prosecute at the appellate court
- Achieved results in studying case files
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Although the number of appellate cases is very huge, over the years, the
high-level Procuracies have always made sure to study the case files and
returned the files to the court within the time stipulated by law. The quality of
studying case files and set up the files of inspecting criminal cases have
generally met requirement of exercising the right to prosecute and inspecting
trial panels. By examining files, Procurators have discovered issues need to be
verified and supplemented so that the high-level People’s Procuracy can verify
itself or request the provincial Procuracy and investigation agency to verify
additionally.
- Achieved results in exercising the right to prosecute at the court of second
instance
Procurators have well implemented the regulations on interrogation at the
court, actively participated in interrogation, contributed to clarify criminal acts,
the nature and seriousness of the crimes as well as tricks, motives, the purpose
of the crimes, harmful effects and record of defendants. They have attempted to
arguments with defendants, defense counsels and other proceeding participants;
ensuring responses to defendants’ opinion as well as defense counsels and other
proceeding participants.
3.2.1.2. Exercising the right to prosecute in the cassation and reopening
trial stage to criminal cases of the high-level People’s Procuracies in practice
* Practice of receiving, processing, noticing and proposing appeals for
cassation and reopening judgments and criminal decisions that have taken
legal effect
From June 1, 2015 to November 30, 2018, three People’s Procuracies
received the total number of 7,246 petitions/3,386 criminal matters (High-level
Procuracy 1: 3,695 petitions/1,400 matters, High-level Procuracy 2: 1,665
petitions/893 matters, High-level Procuracy 3: 1,886 petitions /1,038 matters);
in which, the maximum number of the VKSND professional Affairs units to
hand over to the high-level VKSND at the time of establishment is 1976
applications / 932 jobs; solved: 6352 applications / 2850 jobs (Advanced
Institute 1: 3539 applications / 1348 jobs, Advanced Institute 2: 1067
applications / 557 jobs, Advanced Institute 3: 1,746 applications / 945 jobs); in
which, the Supreme People's Procuracy hands over to the high-level People's
Procuracies 1,976 petitions/932 matters; solved 6352 petitions/2,850 matters
(High-level Procuracy 1: 3,539 petitions/1348 matters, High-level Procuracy 2:
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1,067 petitions /557 matters, High-level Procuracy 3: 1,746 petitions /945
matters). Results: The issuance of the decision to appeal 377 petitions/282
matters; Answer to not to protest 3884 petitions/1,900 matters; Other solving
2,097 petitions/668 matters. Compared with the previous stage of 4-level
People’s Procuracy system, resolving petitions for cassation and reopening
appeals of the Procuracy has made great progress.
* Practice of exercising the right to prosecute in the cassation and
reopening trial stage
From June 1, 2015 to November 30, 2018, three People’s Procuracies
received 898 criminal cases/2122 defendants under the cassation and reopening
procedure, including: High-level Procuracy 1: 491 cases/1,431 defendants,
High-level Procuracy 2: 183 cases/261 defendants, High-level Procuracy: 224
cases/430 defendants; amongst 898 cases of cassation and reopening, 03 highlevel Procuracies accepted 254 cases of cassation and reopening that protested
by Procuracy (the Supreme People's Procuracy appealed 11 cases and 03 highlevel Procuracies protested 243 cases), accounting for 28.2%; 843 cases/1,983
defendants were resolved, in which, High-level Procuracy 1: 478 cases/1,401
defendants, High-level Procuracy 2: 164 cases/192 defendants, High-level
Procuracy 3: 201 cases/390 defendants; For appeals for cassation and reopening
of the Procuracy, the cassation and reopening trial panel accepted the protest
232/254 cases accounting for 91.3%(exceeding the target compared to the
requirements of the National Assembly is 85%). This shows that the cassation
and reopening appeals of the high-level Procuracy over the last years have
ensured in terms of quality.
3.2.2. Inspecting the appellate, cassation and reopening trial panels to
criminal cases of the high-level People's Procuracies in practice
3.2.2.1. Inspecting second-instance trial to criminal cases of the high-level
Procuracies in practice
* Detecting violations
In general, activities of inspecting trial of Procuracy are still limited but there
have been many positive changes in inspecting first-instance verdicts in recent
years. On the basis of the provisions of the law and the regulations of exercising the
right to prosecute and inspecting trial of the Supreme People's Procuracy, detecting
violations in verdicts and decisions first instance has been systematically
implemented by the high-level People’s Procuracies. Additionally, in many cases,
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the high-level People’s Procuracies have promptly issued appropriate petitions. In
fact, the People’s Procuracies have issued 65 petitions, in which 25 petitions for
inspecting verdict and decisions first instance.
* Resolving violations
Over 3 years (from June 1, 2015 to November 30, 2018), by inspecting
appellate trial for criminal cases, 3 high-level Peoples Procuracies promptly
detected violations so as to have flexible measures such as issuing petitions to
overcome in documents, discuss directly with court of the same level. Highlevel People’s Procuracies issued 65 petitions (compared to 3 years between
2012 and 2014, they just issued 36 petitions), the content of petitions was quite
diverse. In fact, however, appellate appeals of high-level People's Procuracies
are mainly aimed at overcoming shortcomings when applying the provisions of
the Penal Code; there is a very little appellate appeals violate procedural
procedures (for example, Appeal No. 03/QD-VC1 dated December 29, 2015 of
the high-level People's Procuracy in Hanoi on the court first instance violated
the provisions of the CPC regarding jurisdiction, the People's Court hears the
case under the jurisdiction of the military court).
3.2.2.2. Inspecting the cassation and reopening trial to criminal cases of the
high-level Procuracies in practice
* Detecting violations
Similar to inspect the appellate trial panels, in fact, activities of detecting
violations through the cassation and reopening trial are not fully reflected. In
addition to inspect the cassation and reopening judgments, activities of
inspecting trial to detect violations during the stage of preparation for hearing
and hearing cassation and reopening are not reflected and statistics into system.
* Resolving violations
By inspecting cassation and reopening trial to criminal cases from June 1,
2015 to November 30, 2018, three high-level People's Procuracies issued 49
petitions to agencies and organizations to deal with violations. In addition to
cases of appeals for cancellation of verdict and decisions that took effect of the
first-instance court due to the serious mistake in applying Criminal Code and
violating legal procedures; there have been a large of appellate and reopening
appeals due to mistakes of the first-instance court.
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