MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE HANOI LAW UNIVERSITY NGO THI NGOC VAN LAWYERS’ DIFENSIVE ACTIVITIES IN CRIMINAL TRIALS AT FIRST INSTANCE Specialty: Criminal law and criminal procedural law Code: 62.38.01.04 ABSTRACT OF DOCTORAL THESIS ON LAW STUDIES HÀ NỘI - 2016 Training Institution: HANOI LAW UNIVERSITY Supervisor : Assoc Prof Dr Nguyen Van Huyen Dr Phan Thanh Mai Opponent 1: Assoc Prof Dr Ho Trong Ngu Opponent 2: Dr Nguyen Ngoc Chi Opponent 3: Dr Nguyen Duc Phuc This thesis will be defended before the University Thesis Evaluation Board, at Hanoi Law University on dated / / 2016 This thesis can be studied more at: 1) National Library of Vietnam;
 2) Library of Hanoi Law University PREAMBLE The Imperative of Research Recently, especially since the introduction of the Constitution of 2013, the issue of expanding democracy and strengthening the rule of law in order to effectively protect human rights and citizen rights has became more and more urgent, and considered as the task of the whole society To promote judicial work as meet the need of new situation, on 01/02/2002, the Politburo of Vietnamese Communist Party issued the Resolution No 08-NQ/TW on Several Key Tasks in the Judicial Sector in the Near Future The Resolution indicates leading points such as, “ensuring reasoned debates with lawyers, defence counsels and other persons involved in the proceedings ”; “judicial bodies are responsible for supporting lawyers to participate in the proceedings: joining the interrogation of the accused, reading case files, openly debating at court hearings ” Lawyers’ defensive activity during criminal proceedings in general and in the stage of first instance trial in criminal cases in particular is practical necessity When participating in the first instance trial stage, as provided by the law, lawyers are responsible for conducting different professional activities so as to effectively defend the accused or defendant However, the defensive activity of lawyers in practice recently has remained many shortcomings and deficiencies The reasons of this situation are various, including the insufficiency of relevant legal regulations, the inadequacy of public awareness as well as in the organization and implementation of defending of related people in reality While studying a long list of reference documents, I recognize that there are quite many works, consisting of doctoral theses, master theses, research projects at grassroots or ministerial levels, and journal articles written by scientists or practitioners, which investigate and analyze the roles of defence counsels in criminal proceedings generally, the guarantees of human rights, the accused and defendants’ rights, or discuss narrower topics However, no work or research directly and intensely focuses on the actual activities of lawyers, particular their actions in defending offenders Therefore, academic research examining the matter of theory concerning the defensive activity of lawyers during the stage of the first instant trial in criminal proceedings, evaluating the actual profession of practicing lawyers in this stage, and proposing feasible solutions to enhance the effectiveness of lawyers’ defensive activity are significantly meaningful in both theoretical and practical aspects 2 The Purpose and Tasks of Research The purpose of this research project “Lawyer Defensive activity during the stage of the First-instant Trial in Criminal Cases” is to provide recommendations for revising the legal regulations concerning lawyers’ defensive activity and solutions for enhancing the effectiveness of lawyers’ defensive activity in criminal proceedings, which are based on studying the issues of theories, legal regulations and practically defensive activity of lawyers during the stage of the first-instant trial in criminal cases For the purpose stated above, this thesis has the following tasks: - Clarifying the theory about the defensive activity of lawyers during the stage of the first instant trial in criminal cases, consisting of formulating the concept of lawyers’ defensive activity in the first-instant trial in criminal cases, the contents of defensive actions, and the features, purposes, and significances of this activity - Clarifying the legal basis and the actual situation of lawyers’ defensive activity during the stage of the first instant trial in criminal cases (results, shortcomings, problems and reasons of those shortcomings and problems) - Providing practical solutions for ensuring and enhancing the effectiveness of lawyers’ defensive activity during the stage of the firstinstant trial of criminal cases The Object and Scope of Research The object of research: The research object embodies theoretical issues about defensive activity of lawyers during the stage of the fist instant trial of criminal cases, legal provisions relating to lawyers’ defensive activity, and the practical situation of lawyers’ defence The scope of research: The thesis focuses on clarifying the concept of lawyers’ defensive activity during the stage of the first instant trial in criminal cases, legal basis, content, features and significance of this activity; clarifying the necessity to improve the law on the defensive activity of lawyers and the orientation and requirements for improving the law and other solutions The research analyses the content of defensive activity and its reality during the preparation and at the court trial hearing criminal cases – which exclude lawyers’ defence in special cases, such as in juvenile cases, the cases conducted in summary procedures or after court hearings As for legal regulations, the thesis carefully analyzes specific provisions concerning the defensive activity of lawyers in the Criminal Procedure Code of 2003 In addition, the thesis also studies a number of documents guiding the implementation of Criminal Procedure Code, and other legal documents relating to the defensive activity of lawyers An examination of international law on this issue is also in the thesis scope at the level suitable to requirements and conditions of the study With regard to the practical situation of lawyers’ defence during the stage of the first instant trial in criminal cases, it is evaluated through the study of statistics of first instant trials having the participation of defence lawyers between 2005 and 2014 and the actual defence of lawyers in several provinces and cities, which are shown in the reports of Vietnam Bar Federation, the Supreme People’s Court, the Supreme People’s Procuracy, surveys and other collected data Research Methodology Through this project, Marxist-Leninist’s theory about dialectical materialism; the view of the Communist Party of Vietnam on human rights, judicial reform and the rule of law, the state of the people, by the people, for the people are applied as the research methodology As for different aspects or topics within the thesis, the author employs combined methods which are suitable to research contents as the following: - Using analysis and synthesis methods in all chapters of the thesis to clarify the issues of theory, situation and solution - Applying the comparative method when studying the literature review to provide an overall picture in both national and international scales, comparing Vietnam’s regulations with international standards, and evaluating the situation of defence lawyers participating in criminal proceedings - Using the statistical method to synthesize the data related to defence lawyers engaged in criminal cases, surveys, and interviews with practicing lawyers and procedure-conducting bodies about the effectiveness of defence lawyers’ activities The new contribution of the thesis - Elucidating the theoretical issue about the defensive activities of lawyers, such as formulating the concept of defensive activity, showing the feature, significance and content of this action during the stage of the first instant trial in criminal cases - Indicating shortcomings of the law on criminal procedures and lawyers’ profession concerning the defensive activity of lawyers - Clarifying the actual defensive situation during the stage of the first instant trial in criminal cases, and the reasons of inadequacies and shortcoming concerning the defence of lawyers in this stage - Providing feasible solutions for law revision and mechanism for practical implementation to improve the effectiveness of lawyers’ defensive activities during the stage of first-instant trial of criminal cases Scientific and Practical Significance of the thesis This thesis complements and clarifies the theory about the defensive activity of lawyers in general and in the state of the first instant trial of criminal proceeding in particular The thesis would be useful reference for individuals and agencies who are interested in this topic, particularly, for law makers when revising the Criminal Procedure Code and the Law on Lawyers; and would be material for teaching and learning at institutions having the function of training legal practitioners Structure of the thesis Based on the purpose and research tasks, this thesis consists of four main chapters as below: Chapter 1: Literature review Chapter 2: Theory about the defensive activities of lawyers during the stage of the first instant trial in criminal cases Chapter 3: Legal basis and the situation of lawyers’ defensive activitys during the stage of the first instant trial in criminal cases Chapter 4: Solutions for improving the effectiveness of lawyers’ defensive activity during the stage of the first instant trial in criminal cases In addition to four main chapters, the thesis also includes an introduction, conclusion and a list of references Chapter LITERATURE REVIEW 1.1 NON-VIETNAMESE LITERATURE On both national and international forums of scientific research, there are quite many works of foreign authors mentioning the right to defence and the right to have a defence counsel The noticeable works include: Books “Brownlie's document on the right man” by Lan Brownlie, GuyS GoodwinGrill (2010) and “Toward an international criminal procedure” by Christoph Saffeling (2003); and journal articles “Basic Principles on the role of lawyers” by Adam Parker (2008), and “The development of criminal law in the United States” by GS.James, B.Jacobs, Warren.E Burger posted on the website of the United State Department of State In addition, there are several studies relating to the procedural rights of offenders, which are approached from the international perspective on human rights, including journal articles by Pham Thi Thanh Nga about the rights of juvenile offenders under the Convention on the Rights of the Child, such as “Developments in the Right to Defence of Juvenile Offenders since Vietnam’s Ratification of the Convention on the Rights of the Child” in East Asia Law Review (2014), and “Juvenile Offenders in Vietnam and the Right to Defence” in Youth Justice (2015) With regard to basic theory about procedural models, it should mention the book “Comparative Criminal Justice System” Philip.L.Reichel (Vietnamese translation by the Institute of Legal Science); the book “The outline of the United State legal system” (translated from the original English Outline of the U.S Legal System, Congressional Quarterly, Inc., 2001); “Analyses of American and French legal systems” by James Claude and Joseph Daly; “The patterns of criminal proceedings around the world” by Jean -Philippe Rivaud; “Research on the organization and operation of the judicial system in China, Indonesia, Japan, Korea and Russia” implemented by the United Nations in 2010 In relation to operational matters of defence lawyers in the stage trial of criminal cases of first instance, the book “Advocacy in criminal cases in the Russian Federation” posted on the website: http://bit.ly/ntMTwq William Burnham in 2012, Professor of Law; in the document at the International Workshop on Criminal Procedure Code of 2003 and the rights of defence lawyers in 2012, Tian Wen Chang authors Chinese experts published the article “Ideas and overall assessment about the bill of revised criminal procedure law in China” 1.2 VIETNAMESE LITERATURE 1.2.1 Group of works concerning to the theory of the thesis The studies on human rights include the fowling books: “Human Rights - a multidisciplinary approach and interdisciplinary Jurisprudence” by Professor Vo Khanh Vinh, ed., Social Sciences Publishing House, Hanoi 2010 (2 volumes); “The mechanism for the protection of human rights” by Professor Vo Khanh Vinh, ed., Social Sciences Publishing House, Hanoi 2011; “Textbook of theory and law on human rights" by Prof Dr Nguyen Dang Dung, Dr Vu Cong Giao and MA La Khanh Tung eds., the publishing house of National University of Hanoi, 2011; and the article "The theoretical issues of protecting human rights by law in criminal justices”, Ass Prof Dr Le Cam in the Journal of Courts, issues No 11, 13 and 14/2006 These studies directly on ensuring the right to defence counsel are still modest; particularly, no research has been done under the view of comparative law In Vietnam, the studies which concern to ensure the right to defence and the right to have defence counsel include: “Studying the right to defence in criminal procedure law and practices in Vietnam” by Nguyen Hung Quang and partners, 2012; Master thesis “The Implementation of the law on the right of the defendant or accused to defence in Vietnam, by Nguyen Tuong Vi; PhD thesis “Guarantee of the accused person’s right to defence counsel – A comparative study of Vietnamese, German and American criminal procedure law” by Luong Thi My Quynh; the book “Ensuring the right to defence of the accused” by Pham Hong Hai, 1999; the book “Legal status and relationship of defence counsel to the accused and the defendant in criminal proceedings” by Nguyen Van Tuan, 2003 The scientific works on the theory and the function of criminal proceedings, including the function of exoneration are also significant why conducting the thesis These include the studies: “The Model of Vietnam’s criminal proceedings”, a research project carried by the Supreme People’s Procuracy; the doctoral thesis, “The functions of criminal proceedings in Vietnam: Matters of theory and practice” by Nguyen Manh Hung; and the article “Defining accurately the basic functions of criminal proceedings: Accusing, defending and judging” by Ha An The research on the procedures, mechanisms for the implementation of procedural activities, including the defensive activity of defence lawyers are also related to the thesis, especially the study of negotiation and litigation These include doctoral thesis “Principles of litigation in Vietnam’s criminal proceedings: The issues of theory and practice” by Nguyen Van Hien, 2010; journal articles “Several issues of litigation in criminal proceedings” by Le Tien Chau, in Legal Sciences Journal, 2003; “The litigating principle in the systems of basic principles in criminal proceedings” by Associate Prof Dr Le Cam, in the Journal of Jurisprudence, 2004; “The litigating situation and issue if enhancing the role of lawyers in litigation under the requirement of judicial reform” by Dr Nguyen Van Tuan, in Journal of Democracy and Law 2010; “Ensuring the rights of the defendant in the trial with extended litigation" by Dr Nguyen Van Huyen, in Journal of Democracy and Law, special issue in litigation of 2003, and master thesis “Litigation in the first instant criminal trial, the theoretical and practical issues” by Luu Binh Duong, 2004 1.2.2 Group of works directly related to the thesis contents The matters that are directly related to the thesis subject were studied in a range of scopes and levels At the general level, there are “Textbook on criminal procedures” of Hanoi Law University, “Textbook on criminal procedures” of the Judicial Academy, as well as other institution of legal training; “Textbook on skills of dealing criminal cases” of the Judicial Academy (2001), “Textbook on skills of participating in dealing criminal cases” – which were revised in 2013- by Judicial Academy; “Textbook on specialist skills of Lawyers in a number of criminal cases”, 2015 Intensive studies mentioning to this issue can mention doctoral thesis “Implementation of the right to defence of the accused and defendants in criminal proceedings” by Dr Hoang Thi Son, Hanoi Law University, 2003; specialized reference book “The role of lawyers in criminal proceedings” by Dr Nguyen Van Tuan, the National University publishing house, 2001; scientific project “Improving the criminal procedures to enhance the effectiveness of defence lawyers” by Hanoi Law University, 2013 Professional legal journals have published related articles, such as in Journal of Jurisprudence, issue 5/2003, Associate Prof Dr Pham Hong Hai, Institute of State and Law, National Centre for Social Sciences and Humanities has “The position of the defence lawyers in the court hearing”; the Journal of Procuracy, issue 24 (12-2005), Associate Prof Dr Lawyer Pham Hong Hai has “The situation of lawyers’ defence and defence counsel over a year of implementation of the Criminal Procedure Code, 2003”; in Journal of Democracy and Law, issue (2008), Master Nguyen Van Truong, the Central Military Court, has an article “Discussion about ensuring lawyers’ equality while litigating at court hearings”; and Master Le Van Thao, the University of Vinh has “Appreciating the professional activities of lawyers and litigation at court trials in order to enhance the quality of hearing criminal cases in our country today”, issue (2009) As for works about legal provisions on defence lawyers’ activities there are the article "The situation of legal regulations on the activities of lawyers participating in court procedures as defence counsel, and direction for perfecting” in People's Court Journal, issue (2012) by Master Vu Huy Khanh, Legal Department, Ministry of Public Security; “Advantages and disadvantages of defence lawyers during the stage of court trial, and some solutions” in People's Court Journal, issue 18 (2012) by master, Judge Nguyen Huu Chinh, Deputy Chief Justice, Ha Noi People's Court; “Activities of lawyers in the trial stage” in the People's Court Journal, issue 19 (2012) by master Dao Thi Nga, deputy director of the Appeal Court of the Supreme People's Court in Hanoi and master Nguyen Tri Chinh, Head of statistical diversion of the Appeal Court of the Supreme People's Court in Hanoi; In the proceeding of the international conference about the Criminal Procedure Code and the rights of defence lawyers in early 2012, there are two noticable papers: “Improving regulations on defence counsel in Criminal Procedure Code of 2003 to meet the requirements of judicial reform” by Dr Le Huu The, Deputy Head of the Supreme People's Procuracy and master Le Thi Thuy; and “Improving provisions of Criminal Procedure Code of 2003 about guarantees of the right of lawyers in defence” by Lawyer Nguyen Huy Thiep, Deputy Head of Hanoi Bar Besides the above works closely related to the thesis, there are a number of works published in magazines anso mention to the topic, such as “The role of defence lawyers in the investigation stage of criminal cases” in Journal of Public Security, issue (2006) by Dr Nguyen Van Huyen; “Vocational training of lawyer profession - important task of the Ministry of Justice” in Journal of the legal profession, issue (2006) by Dr Nguyen Van Huyen; “Improving regulations on defence counsel in the Criminal Procedure Code in 2003 to meet the requirements of judicial reform” by Dr Le Huu The, Deputy Head of the Supreme People's Procuracy, posted on www.liendoanluatsu.org.vn; “The role of defence counsel in criminal proceedings under the models of several countries” by Dr Nguyen Ngoc Khanh - Deputy editor of the Journal of Prosecucy, posted on www.tapchikiemsat.org.vn; “Ensuring the right to defence” of Phan Thuong and Tien Hieu, published on www.phapluattp.vn; “Right to counsel: "Barrier" by humans”, posted on www.phapluattp.vn; “Ensuring the right to defence counsel during the stage of court hearings” by Thu Hang, posted on www.dangcongsan.vn; “Assessing report about the situation of ensuring the right to defend, and the amendments and supplements of the 2003 Criminal Procedure Code” published by Vietnam Bar Federation, posted on www.liendoanluatsu.org.vn; and “Psychological features of the defensive activity”, posted on www.luathoc.cafeluat.com As for the papers focusing on theoretical issues, these are “The legal status and relationship of defence lawyers with the accused and defendants 13 - Finally, defensive activity of lawyers targets to clarify the facts of the case, contributing to comprehensively and lawfully address the cases, without crime left untrieds or doing injustice to the innocent 2.1.2 Lawyers’ defensive activity during the stage of the first instant trial in criminal cases 2.1.2.1 The stage of the first instant trial in criminal cases The stage of the first instant trial in criminal cases is a period in criminal proceedings, in which the Court in its jurisdiction conducts review and hearing of the cases, and gives judgment or procedural decision in accordance with the procedural provisions law The stage of the first instant trial in criminal cases has the following basic features: - Stage of the first instant trial in criminal cases starts when the case file with the indictment's are transferred from the Procuracy to the competent court After the case is processed, the chief judge assigns a court judge (or a group of judges) to examine case files and participate in the proceedings at the trial; - Stage of the first instant trial in criminal cases starts ends upon the expiry of the appeal or protest; - The mission of the stage of the first instant trial is to review and solve every issue of the case in accordance with law; protect the socialist legislation, the interests of the State, citizens’ legitimate rights and interests - The main entity conducting proceedings at this stage is the court The court is only competent holder to hear the case under the procedure of the fist instant trial of criminal cases In addition, in this stage there is the involvement of other entities in accordance with the law, such as prosecutors, defence counsel, victims, and witnesses 2.1.2.2 The content of defensive activity of defence lawyers during the stage of the first instant trial in criminal cases While the court preparing for trial, the lawyer has to show his dynamism and professional responsibility Whether the lawyer had participated in the earlier stage of the proceedings, the lawyers still have to delve into records, meet the accused to fully understand the contents of the case and the circumstances that Procuracy and investigating body Agency previously used as evidence against them, and support them in term of the law During the time studying case file at court, when the decision of bring the case to trial has not yet announced, the lawyer might present his preliminary opinion on the cases, request the preside judge to carry out the various procedural acts stipulated by law Along with these activities, before the trial, lawyers also carry out other activities such as preparing defence 14 arguments, planning their questions at the hearing, and discussing with the accused client At the trial, on the basis of their rights stipulated by the law, lawyers carry out activities aiming at clarifying the points in favour of the accused, denying or minimizing the disadvantages for the accused to protect their legal rights Lawyers ask, debate and make necessary recommendations at the trial The activity of defence lawyers may divide into two specific groups The first includes activities performed on the basis of the provisions of criminal law, such as: proposing a change of procedure-conducting persons, witness expert or interpreter; collecting documents, objects and circumstances related to the defence; presenting documents, objects and requirements; meeting the accused at detention; reading, writing and copying documents in the case file; questioning and arguing at the trial The second is other professional activities that are quite flexible, depending upon lawyers’ ideas, such as studying the case file; exchanging proposals with the court, preparing defence argument These two groups have close ties with each other, complement each other and together aim to best protect the rights of the accused persons during the stage of the first instant trial in criminal cases From the above analyses of the relevant concepts, features, contents, legal basis and the purpose of lawyers’ defensive activity during the stage of the first instant trial in criminal cases, it can define that the defensive activity of the lawyers during the stage of the first instant trial in criminal cases is the professional actions conducted by lawyers during the stage of the first instant trial in criminal cases, in compliance with the law and lawyers’ professional ethics, in order to avoid the conviction, indicating the innocence of the accused persons, or mitigate criminal responsibility, protect their rights and interests of the accused persons, contributing to determine the facts of the case 2.2 THE SICNIFICANCE OF THE DEFENSIVE ACTITY DURING THE STAGE OF THE FIRST INSTANT TRIAL IN CRIMINAL CASES 2.2.1 Political and social significances - Conducting the defence is to implement the guidelines and policies of the Party, and the law of State concerning the protection of human rights, judicial reform and the construction of the rule of law - Contributing to adequately implementing and respecting the law, protecting human rights in criminal proceedings - Contribute to ensuring that justice executed, ensuring the implementation of equality, and democracy in criminal proceedings, without doing injustice to the innocent, thereby ensuring equity in society 15 - Helping those who are involved in resolving the case to understand their rights and responsibility; helping citizens to understand the bad results if violating the law 2.2.2 Legal Significance - Defensive activity of lawyers is not only an effective tool to protect the legitimate rights and interests of the accused, but also importantly contribute in determining the facts of the case, make sure the cases solved in the way of justice, comprehensiveness and lawfulness, ensure no injustice to innocent individuals - Defensive activity of lawyers contributes actively to implement the duties of criminal proceedings that are crime prevention, accurate detection, fast and fairly address of criminal offense, no crime left hided, injustice to the innocent, contributing to the protection of the socialist regime, the interests of the State, citizens and organizations’ legitimate rights and interests, protect the legal order of the Socialist, as well as educating people to obey the law, prevent and fight against criminal offenses Conclusion of Chapter Lawyers’ defensive activity during the stage of the first instant trial in criminal cases is conducted in accordance with their rights set forth in the Criminal Procedure Code and the professional ethics of lawyers In this study, the defence is understood as the defence activity of defence counsel, including lawyers in presenting the evidence and documents in order to reject a part or all of the charges given by the investigating body, procuracy or victim, or mitigating criminal liability and ensuring the rights of accused persons Based on such understanding, the thesis formulates the concept that defensive activity of the lawyers during the stage of the first instant trial in criminal cases is the professional actions conducted by lawyers during the stage of the first instant trial in criminal cases, in compliance with the law and lawyers’ professional ethics, in order to avoid the conviction, indicating the innocence of the accused persons, or mitigate criminal responsibility, protect their rights and interests of the accused persons, contributing to determine the facts of the case Moreover, the thesis examines basic features, legal grounds, purposes, significance, and contents of the defensive activity of the lawyers during the stage of the first instant trial in criminal cases Chapter 16 LEGAL BASE AND CURRENT SITUATION OF DEFENSIVE ACTIVITY OF LAWYERS DURING THE STAGE OF THE FIRST INSTANT TRIAL IN CRIMINAL CASES 3.1 LEGAL BASIS OF DEFENDANT ACTIVITY OF LAWYER DURING THE JUDGEMENTAL STAGE IN THE FIRST CASE TRIAL IN CRIMINAL CASES 3.1.1 Legal relationship between the lawyer and the accused / defendants during the stage of the first instant trial in criminal cases 3.1.2 Legal basis for lawyers to conduct defensive activity during the stage of the first instant trial in criminal cases The right of defence counsel in general and of the lawyer is detailed at articles 56, 57, 58 and some provisions in other articles in chapters about orders and procedures of Criminal Procedure Code of 2003 These regulations are formed from constitutional principles, and contribute to the legal basis for defence counsel in criminal proceedings However, in accompany with these rights, the lawyers also have some responsibilities Excluding the advantages and progress, the defence in criminal proceedings under Criminal Procedure Code of 2003 there are several shortcomings The law provides some rights of lawyers but there is a lack of mechanism for effective implementation of these rights Especially, Criminal Procedure Code of 2003 has no provisions about important rights that provide lawyers to carry out defence, such as the right to collect evidence; in case of difficulty occurred, the lawyers have the right to be supported from procedure conducting bodies while finding evidences, such as summoning the witness or other organisation to supply lawyers with evidences; the right to receive all procedural decisions related to their accused clients, to interview and interrogate witnesses and victims during stages Some of the current procedural articles not give lawyers favour for approaching the process of criminal case; the law formulated the right of lawyer to ask procedure-conducting bodies to response to the right request of lawyer but forget to set a time limit or a due date for these responses Violating the rights of lawyer in criminal proceedings from the prosecutors is sometimes very serious but these violations are often not recognised as a law violation Addressing such shortcomings and inadequacies concerning the defence in the Criminal Procedure Code of 2003, the Criminal Procedure Code of 2015 has significant changes, creating the legal path for lawyer in carrying out their duties Nevertheless, the new advanced provisions just provide the right on paper, but the actual implementation in reality is very important 3.2 THE CURRENT SITUATION OF LAWYERS’ DEFENSIVE 17 ACTIVITY IN THE STAGE OF THE FIRST INSTANT TRIAL IN CRIMINAL CASES 3.2.1 The situation of lawyers participating in defence in criminal cases 3.2.2 The current situation of lawyers’ defensive activity during the preparation of hearing and at the first instant trial of criminal cases 3.2.2.1 The current situation of lawyers’ defensive activity during the stage of preparing for the first case trial in criminal cases * Current situation of lawyers studying case files Besides good points, the action of studying case files of lawyers exist some inadequacies Lawyer did not find out the violation of criminal procedures, and did not aware that these violations would cause bad effects on their clients, violating the legal rights and benefits of their clients or not; reading and fully understanding the indictment, report on investigating results, interrogative minutes, interview minutes and declaration minutes are very important to determine if the actions of their accused clients are crime or not, but had not been conducted by lawyers Even the problems of compensate payment related to the criminal behaviour of their clients had not been fully considered and conducted effectively * Current situation of meeting and discussion between lawyers and the accused The meeting and discussion with the accused persons of lawyer remain several shortcomings and inadequacies as the below - Some lawyers had no a right plan to discuss with their clients, leading to missing out some important evidences that is good for their clients - Some lawyers could not fully discuss with their clients because of the shortage of the time - Sometimes, some lawyers posed unclear questions or used dialect/local words that their client could not understand well or made a wrong answer while lawyers did not recognize that problem * Current situation of collecting relevant documents, case files, materials, details related to the defence of lawyers In practice, the activity of data collection, including documents, case files, materials, details related to the case for the defence conducted by lawyers existed inadequacies, such as lawyers could not decide which documents that should be collected, the plan to collect date is unclear, the way to conduct is no convenient for those who provide information, and the collection of data in a number of circumstances is very difficult * Current situation of lawyers providing the court certain suggestion In fact, lawyers’ activity of suggestion to the court has some limitations 18 In details, some lawyers did not know how to compose requests or recommendations in both format and content of the papers convincingly therefore they had been rejected by the judge; did not state clearly the reason why the case should not be returned for re-investigation while there is a lack of evident but only minor mistake, not seriously violating criminal procedures; gave suggestion on merging cases or split cases when there was not enough legal base/condition; did not suggest the judge to ask for more witnesses, did not consider thoroughly deterant measures that are best for the accused client in case suggesting changes * Current situation of lawyers plan about questioning at hearing The activity of lawyers in planning questions at the trial had some shortcomings In details, some lawyers did not catch the main content of the case, the criminal behaviour and crime prosecuted by the procuracy; some complicated questions to ask their clients are not well prepared and discussed therefore it can get a contradictive answer or even cause more difficulties to clients Planning to interrogate is not well prepared and not clear, detailed, enough, correct, proper towards interviewees, and did not forecast of the response in different situations in the trial * Current situation of lawyers preparing for logical argument However, the preparation of lawyer had some limitation such as the logical argument to defend for client is not well prepared and had a form of a slogan, lack of evident for the advantage of clients Some cases, lawyer cited or quoted wrongly legal articles while making the defence 3.2.2.2 Current situation of lawyers’ defensive activity at hearing the first instant trail in criminal cases * Current situation of lawyers’ defensive activity at the beginning section in the first instant trial Lawyers’ defensive activities at the beginning section in the first instant trial remain several inadequacies In details, lawyers did not early detect the absent of some witnesses whose declaration statement badly affecting the accused client though their statement is illogical and not compromise with other evident in the case, did not find out immediately the defect in procedure of the prosecutive side in opening the court, did not give suggest to stop the court in case if there is not enough legal conditions to open the trial, and did not ask to stop the trial to another day in case needed to protect their clients, did not suggest that their clients have their rights in criminal procedures, did not reject disadvantages given by prosecutors * Current situation of lawyers’ defensive activity at the section of questioning at the first instant trial In fact, lawyers’ defensive activity in the questioning stage is still having 19 some limitation caused by some lawyers In details, the lawyer did not help their clients legally in their rights and duties in proceedings, such as to protect their clients from prime interrogative, forced interogative, or how to response to questions that violate to dignity, humanity of the clients Lawyers did not require the judge to stop action that violate criminal procedures during the interogation, did not have the right question to confirm some details supporting clients to reduce their crime, or new details to decrease the criminal responsibility of client in the case; clarified details on the accused legal records, and motivation, purpose, attitute towards, and environment of the crime; all these factors can help to reduce the accused persons’ responsibility * Current situation of lawyers’ defensive activity at the section of debate in the first instant trial Besides lawyers conducting effectively their defence at the section of debate in the first instant trial, there are still a number of lawyers who not show their capacity in this activity In details, they did not prepare logical reasons for defending, even the primarily reasons, to use in the court; did not act flexibly in adding more evident and advantage details for the accused or to re-orient the way of defendant in the court to protect their clients in proper way of court During the debate at hearing, instead of giving new evident to protect the client or to reduce the crime of their clients, some lawyers use this valuable time just to judge the behaviour of prosecutor and make suggestions which were not based on the benefit of clients but cause more troubles Some of the logic for defence is not logical, only analyse and assess the situation of the accused to recommend that the accused clients’ behaviour is not criminal and did not display adequate evident or relevant documents to protect clients in convincing the hearing panel * Current situation of lawyers’ defensive activity at the section of announcing court conviction Quite many lawyers affirmed that even during the section of announcing court conviction, the lawyer also have some activities to support their clients The lawyer should follow guidance from the judge in conviction stage, carefully listen to catch all details of contents of the conviction and the real characteristic of sentence, especially in all decision/conviction related to their clients so that they can discuss with their clients on the right to appeal to a higher court determined by law In case needed, the lawyer can prepare for an appeal to a court of appeal determined by law 3.3 REASONS FOR SHORTCOMINGS IN DEFENSIVE ACTIVITY IN THE STAGE OF THE FIRST INSTANT TRIAL IN CRIMINAL CASES 3.3.1 Reasons concerning legal regulations 20 Firstly, Criminal Procedure Code of 2015 provides no articles to guarantee the active collection of evidences by lawyers when other organisations not collaborate in this activity and not supply them with evidences The law neither assign procedure-conducting bodies to inform lawyers every related decision and document that they are defended about the rights and benefits of their clients (the accused, the temporary prisoner) and documents on the change of the course of criminal procedure The regulation is also not defined when the lawyer can ask for new witnesses or suggest for the court, and show new evidences, and call for new witness to the court To all of these they need to ask permission from the judge The regulations that allow the lawyer to take part in the investigation is not very clear; the regulation on permission of lawyer to photocopy of documents, files of the case at different stage of the trial is not well defined The regulations confirm that lawyers can only interview and talk to their clients under the permission of the interviewer (the police and the prosecutors) who may restrict the right of the lawyer because the permission depend so much on the perception and subjective opinions of detectives/interviewrs The regulation has no articles about the responsibility of procedure-conducting bodies to inform the lawyer about the time, place of interview so that the defence lawyer can implement their right There is a lack of regulations that allow lawyers to meet with their accused privately during the legal procedure, and these meetings and discussions should be confidential, and allow the lawyers to meet their clients are many times as needed, whenever they need, no limitation of the durations of meeting, and keep secret (not under control) of the content of the meeting and discussion There should have regulations to guarantee for meeting, communicating of lawyer and client privately and independently; and these meeting are a duty of the prosecutive side (investigating organisations, prosecutive organisations, the court and the prison organisations) There is still a lack of regulation on the exemption for criminal responsibility and civil responsibility and not exist the regulations that request procedure-conducting bodies to respect the result of defendant side, to consider thoroughly of the evident (document, items) display on the court by lawyers, to accept the logical defence of the lawyer Violation of the right of lawyer from the side of prosecutors must be considered as a greater violation of criminal procedures and those violations exclude in the court as evident to prove for the case Criminal Procedure Code has no article saying that there is a sanction for those activities performed by procedure-conducting persons violated these regulations, in which procedure-participating persons have no responsible for those mistakes 21 Secondly, there is no adequate sanction to connect individual responsibility of the defence lawyers; or the legal responsibility of investigating bodies, procuracies, in terms of ensuring the participation of lawyers during criminal proceedings Thirdly, some of procedural regulations are not insure the equality before the court, and strangeness of court debates Regulations about the debate at court hearing not guarantee of procedure-conducting persons with its function of blaming, and the lawyer side/defendant side with their role as protective side/defendant side, and the equal role of lawyer compared to prosecutor and responsibility of lawyer as one objective side to protect their clients 3.3.2 Other reasons 3.3.2.1 From lawyers’ side - During their defensive activities, many lawyers did not show high responsibility for their clients, the professional skills of these lawyers are also not at the same levels, some are in high level but some are still at low level - Because of lacking understanding the rights and duties provided by the law, the lawyers did not carried out the right and duty of themselves to protect and defend for the accused - A number of competent lawyers did not have a competitive environment to work; lawyer’s associations or offices are not well organised in the locality; these offices are not distributed equally at different localities therefore can not meet the request of people living in the rural and remote areas of some provinces 3.3.2.2 From the procedure-conducting bodies’ side - many procedure-conducting bodies prevent lawyers from their professional activities, did not support them to carry out the defensive activities as requested by law; perception of prosecutors on the activities of lawyers at the court is not right, and also their capacity did not meet the requirement of their jobs, in some cases - Professional ethics and interaction of procedure-conducting persons remain many inadequacies - During the performance in some court, lawyers can be attacked on their life, health, humanity, honor and association of lawyers had a very strong reaction on these cases but finally their was no right answer by the prosecutive organisations, that makes people lost of their thust towards the right of lawyers and a lost of trust of the whole society on the role of lawyer in the legal and judiciary system 3.3.2.3 Legal education and dissemination 22 In fact, actions on propaganda of law and regulations towards people are not very effective Some organisations did not have a right perception of this propaganda, did not know the role, the importance of these activities; therefore they did not eager in doing it; did not find out more effective ways to it by the right model, method, way of doing which are appropriate with the real situation at their locality; even the staff to conduct these activities are mainly not professional and did not show a high concern with this job Conclusion of chapter Defensive activities of lawyers in the stage of the first instant trial in criminal cases not only produce effectiveness for the accused persons, but also contribute to clarify the criminal case that help the court doing the right thing for the right decision and conviction based as provided by the law Although there are still difficulties the defensive activities of lawyers meet the requirements of defence performance and achieved some good results However, the quality of defensive activity during the stage of the first instant trial in criminal cases remains poor or inadequate The reasons for shortcomings include both subjects and object reasons, such as the unclearness and insufficient of criminal procedure law and other related regulations; poor awareness about professional knowledge, skill and ethics of procedure-conducting bodies, lawyers as well as regular individuals in general, and the accused persons particularly these activities of working under an unclear condition of criminal procedure and other related regulations besides the restrain on capacities of some prosecutors and some lawyers and of the citizens and the accused Chapter SOLUTIONS FOR STRENGHTENING THE QUALITY OF LAWYERS’ DEFENSIVE ACTIVITIES IN THE STAGE OF THE FIRST INSTANT TRIAL IN CRIMINAL CASES 4.1 THE REQUIREMENTS OF JUDICIAL REFORM AND THE ISSUE OF STRENGHTENING THE QUALITY OF LAWYERS’ DEFENSIVE ACTIVITIES 4.2 SOLUTIONS FOR THE PERFECTION OF CRIMINAL PROCEDURE REGULATIONS - Firstly, perfecting legal regulations on the rights and duties of defence counsel, mechanism for implementing of the law, such as adding new articles about the orders and duties of procedure-conducting bodies in terms of guaranteeing the right for the lawyers to meet their accused clients Guarantee the procedure of meeting between lawyer and their clients in new regulation, and clarify the right of procedure-conducting persons to organize the meeting of lawyer and the accused persons detained The law should have 23 a clear regulation on procedure that guarantee the right to read, to photocopy for defense counsel; this clear regulation must guarantee the right of lawyer and have a right sanction applicable to procedure conducting persons who violate these regulations; sanction of the lawyer is also needed to their responsibility The Criminal Procedure Code should have an article that allows lawyers to be present at the first time while police interview or interrogate the accused or arrested persons in order to protect the objectiveness and accuracy of the confession - Secondly, promoting the principle of debate at court hearings, conducting judicial rights; regulating the responsibility of procedureconducting persons in informing all people who conduct the defense - Thirdly, regulating the responsibility and specific sanction of bars, lawyer association and lawyer offices if they not appoint lawyers to defend the accused persons as requested by the procedure-conducting bodies; adding the cases that required appointing the compulsory defense and the duty of the government in payment for these cases and in those cases that the lawyers need to be there in the first interview of the accused 4.3 OTHER SOLUTIONS 4.3.1 As for lawyers It is need to establishing large numbers of lawyers who are influent in law, good at professional tasks and ethics, meeting the requirement of protecting the objective truth in the period that Vietnam focus on building a jurisdiction government Increasing the number of defence counsel with high quality to take part in defending the accused for all court trial in not only big cities but also in anywhere across the country The defence lawyer in the court must be considered as one party at the same level as the prosecutor Increasing professional knowledge of lawyer and their professional skills and ethics is essential Facilitating lawyers’ capacity in real court and practical issues; creating favourite working environment for high ability staff to join the association of lawyer is also needed It needs to enforce regulations on legal career and professional path Strengthen effectiveness and efficiency of lawyer career and management of this profession, governmental management on lawyers and lawyer professional, and managers on lawyer career Facilitate the demand to use legal services of person, organisations The issue is facilitating policies on recruiting lawyers with high capability in profession Supply citizens and organizations with enough information and make it easy for them to get access to information of activities of the lawyers Create a policy on incentive for legal staff working at rural areas, areas with low socio-economic condition Let these lawyers to get a higher important role in policy making process, in building and implementing the law, in contributing 24 for the responsibility of protecting people on their proper rights to protect justice, build a society with democracy, equity, civilisation Allow the apprentice in law to attend the court under supervison and guide of the senior lawyer so that they can learn by practice and learning by doing to avoid a lack of professional skills in their real work in the future 4.3.2 As for procedure-conducting persons The government needs to correct their perception on the role of lawyers in the court; lawyers were there on purpose, not just to decorate for the procedures The procedure-conducting persons should self learn to get a qualified level of training so that they can use fluently the regulation and legal articles in the court especially the law of their main major to meet the requirement of the new situation; procedure-conducting bodies should also hold many training courses for their staff of knowledge on law, on profession, on experience sharing items These persons also need to obey ethical code of performance during their work and in implement the case in court; they need to fulfil specific requirements from the frequency of training and self training needed and should have some sanction in case the prosecutor violate the regulations The procedure-conducting bodies need to build up the new policy to recruit the capable person to work in their organisations, and collaborate with educational organisations / universities / academic institutions to create a better training curriculum on legal professional job description with high quality to meet the higher requirement of the reality 4.3.3 Increasing law education and dissemination - Doing better in legal education and dissemination for the public or every one, raising their awareness on legal issues By doing so, we can help them obey the law deliberately, be aware of their rights and protect themselves by these proper rights - Creating a habit to obey the law in every regular individuals; increasing educational level of the society; propaganda law to all people by easy methods so that they can access easily and be attractive to them for instance some movies in which the important role of lawyer in their court should be focused on protect and defend for the case that the accused becoming innocent and did not get a wrong accusation Conclusion of chapter In the context of judicial reform focusing much more on strengthening the debate, the focus of defence issues in criminal procedure, the role of lawyers in judicial debate should be considered thoroughly together with factors that guarantee lawyer’s defensive activities to be useful in reality Defensive activity of lawyers is the matter of much concern during the process of judicial reform To improve the quality of lawyers’ defensive 25 activity in criminal proceeding generally as well as in the stage of the first instant trial in criminal cases, I believe that a number of solutions should be conducted simultaneously to increase the perception about the role of lawyer in criminal procedures; to perfect or improve the law on criminal procedures by inserting additional the rights of lawyers while participating in proceedings It should also need a mechanism for strengthening and enforcing regulations on the rights of lawyers in defence The professional skill and career level of lawyers should be improved and force the lawyer to obey legal ethical code CONCLUSION Lawyers’ defensive activity in the stage of the first instant trial in criminal cases is a job, professional actions conducted during the period of hearing criminal cases as the first instant process in accordant with legal regulations and lawyers’ professional ethics That aims to combat against the accusation, determine the innocent of the accused or to mitigate criminal responsibility for them, in order to protect the accused persons’ right and legal benefits; contribute to the determination of the truth in the case In fact, recently defensive activities of lawyers has made a great contribution to the process of adequately hearing, determining the exact criminals, no un-justice doing with innocent persons, and adequate implementation of the law, contributing towards strengthened democracy of legal procedures, increasing litigation and court debate, and protect the accused persons’ legal rights and benefits However, lawyers’ defensive activity in the stage of the first instant trial in criminal cases still remains a number of shortcomings and inadequacies The reasons of these shortcomings and inadequacies embody the insufficiency of relevant legal regulations, the inadequacy of public awareness as well as in the organization and implementation of defending in practice Enhancing the quality of lawyers’ defensive activity in the stage of the first instant trial in criminal cases requires adequately understanding the role of lawyers in criminal proceedings, clarifying the functions of hearing and accusation, and attaching the importance of defence Therefore, the lawyer should be considered as a side in criminal proceedings, equalling with procuracies at court hearing in general as well as in the first instant trial This understanding should be attached among judicial staff, particularly procedure-conducting persons Moreover, it requires solutions for perfecting criminal law, improving lawyers’ professional knowledge and ethics, notifying the role of bar, lawyer associations in the process of enhancing the effectiveness of judicial activities The government should revise the law to encourage lawyers in their professional actions as well as the self-management of bars and lawyer associations During the process of judicial reform, it should 26 reinforce and enhance lawyers’ organizations and activities This innovation should be set up in the general context of judicial reform, based on the ideas of the Party about build the socialist state of law, the rule of law in Vietnam 27 LIST OF AUTHOR’ THESIS-RELATED PUBLICATIONS The following publications contain aspects of the research and were published while the thesis project was being undertaken: Ngo Thi Ngoc Van (2015), “ Lawyers’ defensive activity in the stage of the first instant trial in criminal cases: Models of Interrogation and Debate” Journal of Legal Profession, (5) Ngo Thi Ngoc Van (2015), "”he legal basis for conducting defense and the content of defensive activity by lawyers in the stage of the first instant trial in criminal cases” Journal of Legal Profession, (6) Ngo Thi Ngoc Van (2015), “Several issues about the right to defence of accused persons under international law”, Journal of Democracy and Law, (12) [...]... wrongly legal articles while making the defence 3.2.2.2 Current situation of lawyers’ defensive activity at hearing the first instant trail in criminal cases * Current situation of lawyers’ defensive activity at the beginning section in the first instant trial Lawyers’ defensive activities at the beginning section in the first instant trial remain several inadequacies In details, lawyers did not early... activity in the stage of the first instant trial in criminal cases requires adequately understanding the role of lawyers in criminal proceedings, clarifying the functions of hearing and accusation, and attaching the importance of defence Therefore, the lawyer should be considered as a side in criminal proceedings, equalling with procuracies at court hearing in general as well as in the first instant... lawyers participating in defence in criminal cases 3.2.2 The current situation of lawyers’ defensive activity during the preparation of hearing and at the first instant trial of criminal cases 3.2.2.1 The current situation of lawyers’ defensive activity during the stage of preparing for the first case trial in criminal cases * Current situation of lawyers studying case files Besides good points, the action... Lawyers’ defensive activity in the stage of the first instant trial in criminal cases is a job, professional actions conducted during the period of hearing criminal cases as the first instant process in accordant with legal regulations and lawyers’ professional ethics That aims to combat against the accusation, determine the innocent of the accused or to mitigate criminal responsibility for them, in. .. activity during the stage of the first instant trial in criminal cases, it can define that the defensive activity of the lawyers during the stage of the first instant trial in criminal cases is the professional actions conducted by lawyers during the stage of the first instant trial in criminal cases, in compliance with the law and lawyers’ professional ethics, in order to avoid the conviction, indicating... to lawyers’ defensive activity during the stage of the first instant trial in criminal cases have not often presented separately but in some aspects while analyzing the defence in general In separate studies focusing on lawyers’ defensive activities during the stage of the first instant trial in criminal cases, the specializing theoretical issues have not been addressed in a comprehensive and systematic... 2.1.2 Lawyers’ defensive activity during the stage of the first instant trial in criminal cases 2.1.2.1 The stage of the first instant trial in criminal cases The stage of the first instant trial in criminal cases is a period in criminal proceedings, in which the Court in its jurisdiction conducts review and hearing of the cases, and gives judgment or procedural decision in accordance with the procedural... Hence, in this thesis, studying about the situation of practical defence during the stage of the first instant trial in criminal proceedings is new, having no overlap of published works The thesis refers to published works in relevant points 1.3.3 Solutions for improving the quality of defence lawyers’ activities during the stage of the first instant trial in criminal cases To the date of writing, the... provisions in the Criminal Procedure Code of 2015 – which comes into the effect on 01 July 2016; investigating the actual defence of lawyers through the period of trial preparation and court hearing during the stage of the first instant trial in criminal proceedings; then identifying the reasons of shortcomings of lawyers’ defensive activity in general, and during the stage of the first instant hearing Hence,... the lawyers during the stage of the first instant trial in criminal cases is the professional actions conducted by lawyers during the stage of the first instant trial in criminal cases, in compliance with the law and lawyers’ professional ethics, in order to avoid the conviction, indicating the innocence of the accused persons, or mitigate criminal responsibility, protect their rights and interests of