HANOI LAW UNIVERSITY DANG CONG CUONG THE ROLE OF THE COURT IN PROTECTING HUMAN RIGHTS IN PRESENT VIETNAM Speciality: Constitutional law Code: 62 38 10 01 SUMMARY OF LAWSTUDY DOCTORAL THESIS HANOI - 2014 MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE The thesis was completed at Hanoi Law University Supervisors: 1. Prof. Dr. Thai Vinh Thang 2. Dr. To Van Hoa Reviewer 1: Assoc. Prof. Dr. Nguyen Tat Vien Reviewer 2: Dr. Ngo Duc Manh Reviewer 3: Dr. Hoang Thi Ngan The thesis is protected at the Council level thesis dot School. Meeting at Hanoi Law University The last… hours, day… month, 2014 Thesis can be found at the National Library And the Library of Hanoi Law University LIST OF RELATED PUBLISHED RESEARCHES 1 The role of the Court in protecting human rights, Legal Scientific Journal, No. 01/2014, pages 6-11; 2 Improving the effectiveness of the protecting human rights of Vietnamese Court, the Journal on Law and Development, No. 01/2014, pages 46-53; 3 Ensuring the independence of the Court by the Constitution, Magazine on Law and Development, No. 5 + 6/2013, pages 65-72; 4 The role of the Court in protecting civil rights, Journal on People’s Court, No. 22/2013, pages 7-11; 5 Completing the institution on human rights in criminal proceedings through the judicial activities of the Court, the Procurator Journal, No. 23/2013, pages 46-51. 6 The position, role and function of the court in Thailand today, Legal Information, No. 13/2012, pages 2-5; 7. The authority relationship between the state with political parties in the state, Legal Information, No. 10/2012, pages 14-20; 1 INTRODUCTION 1. The urgency of the topic Protecting human rights is one of important legal responsibility of the State. In the tendency of international integration, protecting human rights is not only the obligation of the state to the people but also the obligation of a country to the international community. This legal obligation is tightly bound by international conventions on human rights, and the direct obligation is Article 8 relating about the international Declaration on human rights: "Everyone has the right of being protected by competent national courts with effective measures against the violation of their basic rights which have been regulated by constitution or law" [34 ]. Vietnam is one of a member of international conventions on human rights and the government belongs to the people, by the people, for the people so protecting human rights become an important political task and legal duty of the state agencies. On the basis of the Party's viewpoints on ensuring and protecting human rights, the State makes into law and implementing law to meet the demand of human rights beneficiary of individuals in life. In recent years, implementing and protecting human rights in Vietnam has achieved a lot of achievements, such as: civil rights and political rights of Vietnamese people have always been secured, the beneficiary of these rights of people is more and more comprehensive and complete; economic, cultural and social rights of people have been recorded in the Constitution and the law, is shown in the country development policies of the Government and are implemented in reality, especially since Vietnam reforms the country comprehensively. Rights of vulnerable groups is codified fully in the Constitution and relevant legal documents being applicable to each specific groups according to international legal standards that Vietnam commits, such as. Children's rights, irrespective rights of gender, the disable’s rights, equal rights of ethnic minorities [3]. In spite of gaining a lot of archivements, judicial activities of People’s Courts over the years still have many limitations, such as: "Some courts have not completely overcome the overdue civil cases in accordance with law; the rate of solving administrative cases did not meet the requirements and the rate of the judgment, administrative decision being canceled or modified is still high; there are also many cases of which the court applied the suspended sentence are not in accordance with the regulation of law and guidelines of the Supreme People's Court; there are still unclear, infeasible judgments of the court. The effectiveness of checking, judging in some localities are still not high, provincial people’s courts have not appealed to repair and overcome mistakes of the lower Court "[95, page16] ; "There are still some officials, judges who lack of responsibility and quality, lack of the awareness of training, do not complete tasks, violate discipline, even violate criminal law " [96, page 3]. These limitations influence significantly to the ability of protecting the human rights of the People’s Courts, people's faith in justice is eroded and sometimes, the limitations of the People’s Courts have been used to distort and defame guidelines, policies and leadership capacity of the Party and the State. In addition, in the international integration trend today, legal inadequacies of the Vietnamese court have created legal barriers leading to the limitation of capacity to protect human rights of Vietnamese Court foreigners as well as Vietnamese citizens having relationship with foreigners. On the basis of the Party's viewpoints on the target and the strategic dynamic of socialist law-governed State and the state of capacity to protect human rights of the Courts today. We found that further study rationale, interpretation of existance, limitation influencing the capacity of protecting human rights of the People's Court, and building science solutions being consistent with economic, political and culture conditions of Vietnam to overcome above shortcomings and limitations are meaningful contributing to promoting the process of building a socialist law-governed State of the people, by the people and for the people. That is the reason why the author chose the topic "The role of the Court in protecting human rights in present Vietnam" as a doctoral thesis on law. 2. Research purpose and mission 2.1. Research purpose The thesis analyzes and demonstrates theoretical aspects showing the role of Courts in protecting human rights. On the basis of theories being proven, the thesis assesses the situation of protecting human rights by judgment in Vietnam today and proposes a number of scientific solutions aiming at improving science the role of courts in protecting human rights in Vietnam. 2.2. Research mission - Analysing and demonstrating basic dimensions showing the role of Courts in protecting human rights; - Analysing and clarifying the situation of "protecting the human rights by Court," especially limitation and existance of this activity; - Researching and clarifying reasons influencing negatively to the role of Court in protecting human rights in Vietnam today; - Building the orientation and proposing solutions on enhancing the role of Vietnamese Court in protecting human rights. 3. Research methods (1) The indirect research method by summarizing and analysising documents, especially primary documents, comparing research issues among selected objects; (2) The direct research method by contacting and exchanging directly with researchers, officers in charge and investigate politics and law; (3) Using the systematic approach method, social sciences and humanities, especially paying attention to law (mainly the approach method of constitutional law, state theory and law, criminal procedure law, civil procedure code); To solve the research object and task of the topic, the author uses specific research methods such as: - Methods of analysising, summarizing, comparing and abstracting used in the process of establishing the concept of protecting human rights by Court; analysising, demonstrating and explaining characteristics, advantages and roles of protecting human rights by the Court; - The method of legal comparison is used in the process of proving the popularity of "the role of courts in protecting human rights" (mainly compare the regulation on constitutional of some countries and some international conventions on human rights); this method is also used in justifying scientific basis of solutions on enhancing the role of Courts in protecting human rights. - The method describing and analysising rules is mainly used in the process of clarifying legal limitations on the position, role, function, authority, order and proceedings of the Court; legal limitations ensure the independence of judicial activities, legal systematic organization, and the process of selecting and appointing judges; - The method of analysising and summarizing statistic figures is used to demonstrate limitations in the judgment of the court (mainly used in chapter 3). In addition, to ensure the practical basis, the urgency of scientific problems need to be solved, especially to enhance the persuasiveness of scientific solutions, the method of analysising and summarizing statistic figures is used in the thesis showing aspects of the proposed solution - The method of scientific analysis and forecast forecasts the development trend of social demand on the position and role of courts in protecting human rights and requirements of the socialist law-governed State for the Court in a near future 4. Research object and scope 4.1. Research object The thesis studies the scientific issues relating to the position and role of the Court in protecting human rights in Vietnam nowadays. It mainly focuses on the following basic content: - The theoretical and legal basis about the Court's role in protecting human rights; - Law status and practical judgment of Vietnamese Court today; - The current direction of judicial reform and the solution on enhancing the role of Courts in protecting human rights in Vietnam 4.2. Research scope - Scope of space: Theory and practice in Vietnam. - Scope of time: From 1945 to the present 5. New contributions of the Thesis The thesis is a comprehensive study about the role of Courts in protecting human rights in the context of building socialist law-governed State in Vietnam. Firstly, the thesis has established basic theoretical aspects in order to supplement on the argument system about the role of Courts in protecting human rights, including: - The concept of "protecting human rights by the Court"; - Analyzing and demonstrating basic characteristics of protecting human rights by the Court; - Justifying basic dimensions showing the important role of Courts in protecting human rights; - Clarifying basic elements ensuring the role of Courts in protecting human rights in the context of building socialist law-governed State in Vietnam. Secondly, the thesis comprehensively assesses the limitations of Vietnam Court in protecting human rights on the basis of the aspects showing the role of the Court in this field. In addition, it points out basic reasons of those shortcomings and existance. Thirdly, the thesis has developed a system of scientific solutions which are in accordance with conditions and directions of socialist law- governed State in order to enhance the role of Courts in protecting human rights, including the following solutions: - Perfecting the law on recognizing the role of Courts in protecting human rights, including: constitutional right of judging acts on violating human rights made by the legislative power, executive power; entrusting the right of explaining the Constitution and laws to the Court. - Improving the independence of judgment activities by broadening constitutional content of judiciary independence in the Constitution; building act to ensure the judicial independence; renovating leadership methods of the Vietnamese Communist Party for the judgment activity; building ethnic standard code on Judge; and removing the right of controlling the judgement activity of the People's Procuracy during the criminal trial. - Developing the order and procedure of scientific justice comprehensively and suitably with international law on human rights such as amending and supplementing the criminal law; amending and supplementing the civil procedure law; amending and supplementing the administrative procedure law. - Improving the quality of judges, including: Establishing the process of recruiting and appointing new judges; reforming the curriculum of training bachelor on law. - Improving the awareness of the Party, State and people about the role of Courts in protecting human rights - Improving the quality of civil enforcement 6. The structure of the Thesis Introduction; Chapter 1. General view about thesis research Chapter 2. Theoretical basic on role of courts in protecting hman rights Chapter 3. Evaluating the roles off the court in protecting human rights in Vietnam today Chapter 4. Direction and Advanced solutions role in the court of human rights protection in Vietnam Conclusions and next research recommendations Chapter 1 GENERAL VIEW ABOUT THESIS RESEARCH 1.1. The overseas research Through some examined research works, it is confirmed that the roles of court in human rights protection are researched in many countries in the world. Some research works have made the remarkable contributions in clarifying the position, role of court in protecting human rights and basic elements to ensure this judicial position of court. These research results are considered as the important theoretical and practical basis as scientific foundation for the author to build theoretical basis and evaluate the roles of court in human rights protection in Vietnam. In the scientific values inherited by the thesis, ensuring judicial independence and legal judging right of legislative and excutive power are concerned specially. 1.2. The research in Vietnam The examined research works mainly mention the requirements of jurisdiction state for the judicial power, the position and role of the court in the control of state power and the protection of justice for the people. Besides, they are analyzed the limitations of law, organization status and operation reality of current court. In the articles, the authors proposed scientific solutions to enhance the independence of courts and judges, as well as the reform of the the system of court of the different judging levels oriented in the Resolution No. 49/NQ-TW dated June 2 nd , 2005 from Ministry of Politics for judicial reform strategy up to 2020. 1.3. The evaluation of thesis research 1.3.1. The advantages and research results in which the thesis will inherit and continue to develop The research works (domestically) mentioned and analyzed theoretical basis of ensuring human rights in judicial proceedings, firstly came from the relationship between human rights and ensuring human rights in the legal relations arising in judicial proceedings. Judging activity has jurisdictional characteristic and is secured by coercive power of the state, together with judging activities they are arising, restriction or termination of some individual’s authorities. In court proceedings, the legal measures to guarantee the rights of the participants in the proceedings, including the basic principles of criminal procedures, civil and administrative proceedings; the rules of procedures, the proceedings, the stages of criminal proceedings, the prosecution activities to comply with the law and the responsibilities of proceedings authorities. This is a very important beginning, the theoretical basis as the premise for the author to analyze more deeply theoretical basis about the role of court in protecting human rights. The research works in Vietnam and in overseas provided a comprehensive overview of the concept of ensuring human rights, protecting human rights and the effect of protecting human rights by judging activities. The knowledge (mainly from the overseas research works) is the basis for the author to explain, analyse the advantages of protecting human rights by the court under the comparative law aspect and constitutional law science. One of the research results brings the importance to the author's thesis is that the research works above have fairly complete overview of the status of international law and the democratic jurisdiction state’s Constitution for the position and role of national courts in the protection of human rights, thus help the writer have scientific basis to study and compare with the status of position, role of Vietnam Court in protecting human rights, as well as giving the solution to improve the position and role of courts in protecting human rights . The research works in Vietnam also initially approach and analyze some aspects (viewpoints) that demonstrate the role of courts in human rights protection. This analysis continue to be evaluated and commented by the thesis writer, from then give his own assessment of the concept, characteristics and content of human rights protection by the court, as well as the basic aspects expressing the court's role in protecting human rights . [...]... court in protecting human rights in Vietnam 2.3.1 The awareness of the Party, the state and the people about the role of court in protecting human rights - The awareness of the Party and the state about the role of court in protecting human rights - The awareness of the people about the human rights and the role of court in protecting human rights Firstly, the awareness of the people about the human rights. .. EVALUATING THE ROLES OF THE COURT IN PROTECTING HUMAN RIGHTS IN VIETNAM TODAY 3.1 The Party, the State and the people have not yet had right awareness of the roles of the Court in protecting human rights - The Party and the State have not yet had right awareness of the roles of the Court in protecting human rights of individuals - The people have not yet appreciated the roles of the Court in protecting human. .. protection of human rights and contributing to social stability 4.2 The point of increasing the role of courts in protecting human rights in Vietnam: First, enhancing the role of the Court in protecting human rights must be conducted on the basis of the views of the Communist Party of Vietnam about human and promoting human factors in the construction and protection of the socialist of Vietnam Second, linking... Secondly, the awareness of the people about the role of court in protecting the human rights 2.3.2 The recognition of law about the role of court in protecting human rights - The law recognizes the legal behavior judging right of the court - The law recognizes the authority of the court for protecting the right of freedom and personal safety 2.3.3 The independence of the judging activities Stipulating the independence... role of the Court in protecting human rights associated with the integration process of national laws with international laws on human rights 4.3 Some solutions to enhance the role of the Court in protecting human rights in Vietnam 4.3.1 Raising awareness of the Party, State and people of the role of the Court in protecting human rights Awareness of the Party, the State and society about the role of the. .. Protecting the human rights by the court is formed on the needs of individuals and the state - Protecting the human rights by the court is carried out in public, independence and fairness 2.2 The concept, content about the role of the court in protecting human rights 2.2.1 The concept about the role of the court in protecting human rights On the basis of the internal content of the term role , content... for protecting the human rights of the judgment and the court' s decision, improving the quality and execution efficiency is the important requirement to ensure the role of court in protecting the human rights 2.4 The basic criteria to evaluate the role of court in protecting the human rights in Vietnam 2.4.1 The criteria to evaluate the awareness of the Party, the state and the people on the role of court. .. enhance the role of the Court in protecting human rights with judicial reform strategy in Vietnam in 2020 Third, enhancing the role of the Court in protecting human rights be closely associated with guarantee judicial independence of the Court Fourth, enhancing the role of the Court in protecting human rights should be tied to the construction and development of socialist democracy Fifth, enhancing the role. .. in the protection of human rights of the accused and the innocent b) Limitations of civil trial work in protecting the rights and interests of the participants in the proceedings c) Limitations of administrative adjudicating activities in the protection of human rights 3.3.2 Underlying causes of the limitations of judicial activities in protecting human rights in Vietnam today a) The independence of. .. criminal of human rights and protects the rights of the innocent 2.2.2.3 The role of court in protecting democratic freedom right and individual safety 2.2.2.4 The trial is the last phase to recover the individual’s rights and benefits 2.2.2.5 The role of court in educating the awareness of respecting and protecting the human rights of individual and society 2.3 The basic factors ensuring the role of court . the role of court in protecting human rights - The awareness of the Party and the state about the role of court in protecting human rights - The awareness of the people about the human rights. enhance the role of Courts in protecting human rights, including the following solutions: - Perfecting the law on recognizing the role of Courts in protecting human rights, including: constitutional. and the role of court in protecting human rights Firstly, the awareness of the people about the human rights Secondly, the awareness of the people about the role of court in protecting the human